*1 al., et G. TOGHER DUFFY, Plaintiff-Appellant, v. JAMES DONALD Defendant). (Shauna Travis, Defendants-Appellees Division) (1st 1 — 06—1447 No. First District Opinion filed March *2 J.,
GARCIA, dissenting. (William counsel) Harte, Healy Law Firm William Harte Ltd. J. of and J. (Martin counsel), Jr., Cannon, Mannix, M. of both of Healy, J. Jack and Joan Chicago, appellant. for Buenik,
Bollinger, Chicago (Christopher of Ruberry Garvey, & G. counsel), Togher Togher. appellees and Renee for James G. (John Soderstrom, Priess, LLP, Chicago H. Hus
Tressler, Maloney & Plastics, ton, counsel), appellee Inc. for Latham (Michael Stephanie Progar, LLC, Chicago Progar J. and Doherty & counsel), Supply, Pool Inc. Weiner, appellee for BlackOak
Waxier opinion ROBERT E. delivered the JUSTICE GORDON court: into an in- 15, 2001, Duffy, age dove July
On Donald becoming that led to his ground swimming pool injuries and sustained backyard in the swimming pool was located quadriplegic. James G. and occupied by house owned and defendants single-family Pool Hills, Sup- in Palos Illinois. Black Oak Togher Renee Defendant (Black Oak), Toghers installed the ply, Inc. sold the to the (Latham), Plastics, Inc. backyard; defendant Latham their Industries, (Pacific), was pool’s manufactured the liner. Pacific Inc. Travis, simply name Defendant Shauna a former used Latham. party appeal, who not a to this is both the niece person Toghers’ pool. who invited to use the County, court appeals
Plaintiff the order the circuit of Cook granting summary judgment by Toghers, motions for Black defendants below, Oak and Latham. For the reasons discussed we reverse.
BACKGROUND The parties agree Toghers’ that at the time dove into the plaintiff (1) pool, signs saying diving”; there were: no “no and no markers indicating depth discovery deposition, of the At his water. Togher Perfetto, defendant James testified the owner of that Vincent diving” Black provided Toghers signs with “no and other warning post. deposition, that he her signs discovery chose not At Togher family defendant Renee friends testified that when and came swimming to use told “no pool, diving” she them because she diving “dangerous.” believed was Renee pool that into Defendant Togher repeated warnings testified that she lot.” Neither these oral “a Togher James nor Renee was at home when dove into their pool. on discovery
At testified that he stood deposition, his pool’s horizontally west into the north perimeter side of the dove first, portion pool; pool end of the his hands struck the bottom of the Togh- before had never in the his head. Plaintiff testified that he been pool ers’ to the his that he had not walked into prior injury, date of ladder, dove, pool the north of the he that he had “seen end before you deep enough [he] so need a ladder to figured the water’s [it],” had a end a “figured pool climb out of that he a shallow end,” and that he diving assumed he was into the deep end of the pool. parties
The do dispute following facts about Toghers’ pool. The in-ground swimming pool completed May was on 10, 2000, approximately year plaintiff’s a before pool accident. The rectangular, with length a of 36 feet and a width of 18 feet. On the pool, broad, south end of the there are steps leading built-in into down pool. steps The pool, traverse the entire width of the with hand rails on either side. At the opposite end of the there is a ladder descending end, into the pool. ladder is close to the north but located on the pool’s diving east side. There is no board.
The floor swimming pool of the has a shape, vinyl U with a liner. The deepest part middle, is in the with shallow areas at both its north depth and south ends. The water in the north and feet, south ends is less than 3 depth while the in the middle is 5 feet 7 inches. middle, two-foot,
In the area, the floor has a pool’s flat with the deepest depth. The floor of the slopes down from both its north ends, and south toward this area in flat the middle. deposition
Plaintiff admitted at his gone ap- that he had to a bar proximately prior two hours to the accident and consumed two to glasses three of rum deposition and Coke. Plaintiff testified at his approximately he was 5 feet 10 weighed pounds inches tall and accident, the time of the and that he definitely was not intoxicated at the time of the accident.
This case involved the deposition testimony affidavits and experts. Johnson, several Plaintiff retained Dr. Ralph swimming a pool expert; Dr. Sam Glucksberg, professor psychology; and Dr. Kazarian, engineer. Leon a biomechanical Defendants retained Dr. Leikin, toxicologist. Jerrold Blair Johnson, Ralph swimming pool
Dr. expert by plaintiff, retained listed in ways Toghers’ pool his affidavit a number of in which the industry Spa violated standards set the National Pool Institute (NSPI) (ANSI). and the American National Standards Institute discovery deposition, affidavit and at his Dr. Johnson stated that the “very unusual.” liner, With to the Dr. Johnson’s affidavit stated that *4 in design dangerous, deceptive design its was “a and non-traditional “[mjixing Dr. Johnson pool explained residential market.” confusing, in deep application shallow and water a non-standard deceptive ordinary pool expects and unsafe for the user who to swim in a with a shallow and a end.” pool deep ere-
Dr. Johnson’s affidavit further stated that end,” deep-end “a classic lad- with “optical ated an illusion associated with a steps typically and broad pool; der” at one end of the my “In opinion, He stated: end, pool. the other end of the shallow at handrails, and designed steps been with had the north end of the “In order to He also observed: this accident would not have occurred.” ANSI/NPSI, placed been in the comply with the ladder should have which is the middle.” deepest part of the addition, since “the bot-
In Dr. Johnson’s affidavit stated that “dif- posture,” pool depth in texture and [was] tom uniform he noted that the impossible judge.” deposition, ficult if not At his color, pattern. in Stone” Dr. “Sparkle liner was Blue” with a “Creek the bot- pattern help Johnson testified that would to obscure “[t]he bottom, if He “If on the explained you pattern tom.” that: have no down, you can you have a solid bottom with a contour line then perceive slope pool.” deposition qualifications
Dr. Johnson also testified at his about his swimming pool as a as follows: He received his bachelor’s and expert, education, in in degrees physical sports master’s and his doctorate University years administration. He worked for 25 at Indiana coach, Pennsylvania, swimming diving where he served as a and a aquatic director of facilities programs, professor and and a of health 1997, physical professor sport and education. In he became management sport management department and chairman of the Carolina, currently North Greenville in College South where he is employed. Aquatic he founded Professional Consultants International, provides aquatic consulting which services to clients Cross, Department such as the Red and the United States YMCA Navy. by He has also authored textbooks that are used architects engineers facilities. aquatic Glucksberg, expert by plaintiff, Dr. Sam hired as an psychologist professor psychology faculty is a and has been on the of Princeton University discovery deposition, opined, since 1963. At his he based testimony part deposition on his review of Dr. Johnson’s affidavit and testimony, plaintiff’s deposition that it was that the north end of the was shallow. Kazarian, engineer specializing Leon
Dr. biomechanical affidavit by plaintiff, accident-related industries retained submitted an were discovery plaintiffs injuries deposition testified at his consistent with a headfirst dive into shallow water. Leikin, in toxicol- physician specializing
Dr. Jerrold Blair a medical defendants, discovery deposition ogy retained testified at Hills testimony; he records of the Palos plaintiffs deposition reviewed: scene; fire to the accident and records department responded which *5 Hospital plaintiff brought Christ where after the accident. Based records, on his review of these Dr. Leikin testified that it was his opinion plaintiff was intoxicated at the time of the Dr. accident. Leikin also sample testified a blood drawn from at Christ Hospital approximately an hour after the accident contained a blood- alcohol level of .06. alcohol, for driving actions under the influence of the Illinois requires
Vehicle Code that certain give blood-alcohol levels rise to 501.2(b) (West 2006). presumptions. certain 625 ILCS If a 5/11 — less, presumed defendant’s blood-alcohol level was .05 or “it shall be person that the was not under the influence of alcohol.” ILCS 501.2(b)(1) (West 2006). If the defendant’s blood-alcohol level 5/11 — .08, give was more than .05 but less than then “such facts shall not any presumption rise to that the or under the person was was not (West 2006). 501.2(b)(2) influence of If alcohol.” ILCS the 5/11 — more, defendant’s presumed blood-alcohol level was .08 or “it shall be that the person was under the influence of alcohol.” 625 ILCS 5/11— 501.2(b)(3) (West 2006).
Plaintiff’s complaint, operative second amended which is the I, complaint appeal, alleged following against on this counts: count III, Toghers, premises liability; against for counts II and defendant Latham, V, liability negligence; against for strict and and counts and IV liability negligence. defendant Black for strict Counts andVI Pacific, against liability defendant were also for strict VII above, negligence. merely As noted Pacific was a name of former separate entity.1 defendant Latham and not a alleged In his that defendants’ acts and omis- complaint, plaintiff rules, failing post provide warning signs, pool sions included: or waters; depth markings safety rope deep or a to divide shallow from installing floor, deceptive a which created a pool with unusual end, impression depth; locating thereby creating a ladder at one end; installing a that did not misleading impression swimming pools for residential as industry conform standards (ANSI). Institute established the American National Standards Latham, Toghers Oak and the all moved for Defendants Black 13, 2006, argument court heard summary judgment. April On trial concerning summary judgment from all counsel motions. summary judgment was that the primary argument defendants’ for and, thus, none constituted an third-party complaintsfor contributionthat are not at 1Defendantsfiled for appeal. third-party defendants filed motions issue on this Some of the appeal. summaryjudgment that are also not at issue this protect to warn or otherwise of the defendants owed diving into it. against order 2006,
On court issued handwritten May trial “All motions motions one line: summary judgment disposed did The order are instanter.” granted, for judgment summary granting court’s for specify the trial reasons with to defendants judgment motions. The order was final 18, 2006, May plaintiff filed a Toghers, Black Oak and Latham. On notice and this followed. appeal, appeal
ANALYSIS summary judgment. “[S]um This concerns appeal *6 mary only be allowed judgment [that] is a drastic measure should ” ‘when is clear free from doubt.’ right moving party 307, (2007), Mydlach DaimlerChrysler quoting 226 Ill. 2d 311 Corp., v. (1986). A Hess, 229, required Purtill 111 Ill. 2d 240 is not v. prove to at the Jackson v. TLC As stage. his case sociates, (1998). Inc., 418, may grant 2d A trial 185 Ill. 423 court sum mary “only judgment pleadings, depositions where ‘the admis affidavits, file, together any, sions on with if that there is show no genuine any moving party to issue as material fact and that the ” entitled as law.’ judgment Principal to a a matter of Rich v. Life Co., (2007), 2d 359, Insurance 226 Ill. 370 735 ILCS quoting 5/2— 1005(c) (West 2006). duty
On summary judgment, a motion for the trial court has “a to construe in strictly liberally the record the movant and favor against Jackson, 423-24; 2d nonmoving party.” 185 Ill. at Osborne v. (1994). Claydon, 434, result, summary 3d As a judg 266 Ill. 435 (1) ment is is a to a appropriate: dispute not if “there as material (2) (Jackson, 424); fact” 185 Ill. 2d if persons “reasonable could (Jackson, draw divergent undisputed inferences from material facts” 424); persons 185 Ill. 2d at or if differ on “reasonable could (Calles weight given legal to be factors” of a standard v. relevant (2007)). Scripto-Tokai 247, Corp., 2d 269 A trial court’s Rich, Ill. summary judgment is to de novo 226 subject review. not below, summary ap- For judgment the reasons discussed The propriate genuine in this case. creates a issue of material record fact there and failed about whether defendants knew was a Latham, through duty to on to warn. Defendant follow their pool liner, sticky warning, which manufacturer of created labels Oak, turn, it passed to defendant Black the installer. Black customer, even it knew passed sticky though labels custom- 8 rarely
ers stuck them on their pools. expected, As defendant James Togher did not stick the labels on his which left his wife Renee telling people short, not to In dive. the record genuine creates a issue n of material fact about whether the pool was an accident wait- ing Below, to happen. we theory discuss detail each of liability against each defendant. Toghers
Defendant complaint, plaintiff alleged premises one count of liability against defendant Toghers. Generally, possessor premises “[a] has a duty guard against harm to an invitee.” Matthews v. Avalon Co., 1, (2007), Petroleum 3d 14 citing LaFever v. Kemlite (1998). Co., 380,
The Toghers’ attorney stated to during the trial court argument that the Toghers moving were for summary judgment point “on one point only”: they and one duty did not owe of care pool posed open because their danger. and obvious The defendant Toghers’ argument is based on “the principle of Illinois law which own, persons holds that occupy who or control and maintain land are ordinarily required protect against to foresee and injuries from potentially dangerous Jackson, conditions that are and obvious.” 424-25, 185 Ill. 2d at citing District, Bucheleres v. Chicago Park (1996). 435, Ill. 2d 445-47 question particular whether a landowner owed a particular
care to a theory premises liability invitee under a is a (1998). Co., question of law. LaFever v. Kemlite 185 Ill. 2d However, when a court cannot conclude as a matter of law that a condition posed danger, then “the obviousness of *7 Pool, danger Inc., the is for jury the determine.” Klen v. Asahi 268 1031, (1994); Stores, Ill. App. 3d 1044 Simmons v. American Drug (2002) (“Whether Inc., 38, App. 329 Ill. 3d 43 presents a condition an open fact”), and obvious a danger question by is of cited Sollami v. Eaton, 1, (Harrison, C.J., dissenting) 201 Ill. 2d 20-21 (“Whether a presents open danger ques condition an and obvious is a fact”); tion of fact for the Family trier of Buchaklian v. Lake County (2000) (“sum Ass’n, Young Men’s Christian 314 Ill. 3d 203 mary judgment proper is not when reasonable minds could differ as to *** obvious[;] open whether a condition was and such a determination fact”). finding involves a general body presents rule in Illinois is that a of water an
open danger naturally occurring, and obvious whether it is such as man-made, Jackson, Michigan, swimming pool. Lake or it is such as a
9
cases).2 Despite
general
citations to
(providing
support
summary
of their
Calles,
court has held with
liability.
supreme
The Toghers’ sought summary judgment brief to the trial cotut on ground only: Toghers one “The did not owe the against Johnson, warn ‘open dangers.” expert and obvious’ Dr. by plaintiff, deposition hired stated in his and at his that the affidavit First, design “very unusual.” Dr. Johnson’s ordinary pool affidavit stated that was “unsafe for the user,” end. expects deep who to have both a shallow and a Second, problem Dr. Johnson’s affidavit stated that was com- end,” pounded by “optical place- illusion of a created deep-end place- ment of a classic ladder one end of the and the typically ment at the end of associated with a opposing steps broad Third, shallow end. Dr. observed that the bot- Johnson’s affidavit tom was uniform in Johnson stated pattern, texture and which Dr. injuries
2Approximately involving aquatic have 20 court cases headfirst Clement, Management Sport: occurred in Illinois since 1990. A. Risk Issues in Odds, Legal Aquatic 17 J. Incident Court Decisions: The Headfirst Plaintiff’s (Winter 2007) Aspects Sport 107, (listing 19 Illinois state and federal 2005). court cases between 1990 and *8 10 the pool depth impossible judge.”
made “difficult if not At deposition, he testified the “Sparkle Blue” color in the “Creek pattern help Stone” “would to obscure the expert’s bottom.” The af- deposition testimony fidavit and a created material issue of fact about whether a shallow bottom in a end” “deep pool section of the was a nonobvious danger.
Plaintiff testified deposition at his that it was this illusion that him However, caused to assume it was safe to dive. the obviousness of danger and the to warn are decided plaintiffs not based on subjective Klen, own perception by objective but an standard. 268 Ill. App. 3d 1041. Toghers’ appellate
The brief cited three cases which held that a swimming pool open danger. was an and obvious All three cases are readily distinguishable First, from the case Clay at bar. in Osborne v. don, (1994), App. appellate 266 Ill. 3d 434 court affirmed a against 17-year-old plaintiff who suffered injuries spinal pool from a headfirst dive into a located in defendants’ The backyard. appellate court in Osborne held that defendants had *** “no reason to believe year appreciate that a 17 old would not danger attempting running obvious dive into the shallow end of Osborne, pool.” By contrast, 3d at 440. in the case at bar, the end of the pool obviously into which dove was not shallow end.
Second, Knickrehm, in Barham v. 1038-39 (1996), the appellate aboveground swimming pool court held that an depth danger with a uniform feet was an and obvious to a 3V2 13-year-old.3 Barham, Toghers’ reasonable in pool pool Unlike the depth aboveground. did not have a uniform and was Plaintiff in due, alleged danger the case at bar that the addition, depth in in part, unpredictable depth. to its variation usually in-ground in in aboveground pool more obvious an than an Thus, pool readily like the in Barham is pool. distinguishable from the in the case at bar. (7th Industries, Third, Inc., in 551 Lederman v. 119 F.3d Pacific 1997), Appeals
Cir.
the Seventh Circuit Court of
held that the swim
Illinois
ming pool
posed
at issue
under
Lederman,
swimming
in Lederman was
law.
3The
in Barham contradicts the 1994
where
this court held that it could not find as a matter of law
Klen,
shallow, aboveground pool
14-year-old.
was obvious to a reasonable
opinion
opposing
1044. The Barham
made no mention of the
years
issued
this court two
earlier Klen.
decision
Lederman, end.
and a
with a shallow end
in-ground pool,
end,
shallow
leading down into the
steps
were three
F.3d at 552. There
*9
Lederman,
deep end.
opposite,
located at the
diving
and a
board was
across the
painted
line was
A one-foot-wide white
Even if the trial court had found that the obvious, finding by itself would not was and have enough summary judgment. Schellenberg, been for a (“Even obvious, Ill. at 53 if and a risk is considered duty may required to warn still be The trial court was still imposed”). 425; Jackson, to analyze the four “traditional” factors. Bucheleres, Ill. 2d at 456. factors, respect
With to the first two traditional the likelihood injury foreseeability injury, and the reasonable of such defendant mate Togher’s deposition testimony genuine Renee created a issue of dangerous rial into diving fact when she admitted that her danger. others of this Schel compelled repeatedly she felt to warn (“a exist 3d at 52 to warn arises where the lenberg, *** dangerous ence of a condition is known apparent it is not to Also, the other party”). Togher defendant James testified he plastic received a warning sign from defendant Black sign Oak. The stated: “Danger. Shallow diving. Diving may death, water. No cause paralysis permanent or injury.”4 factors,
With
to the last two relevant
magnitude
guarding against
burden of
injury
and the consequences
placing
that burden on
Toghers,
defendant
defendant
Togher’s deposi
James
testimony
tion
genuine
created a
issue of material fact when he admit
ted that he was provided
diving”
with “no
warning signs
that he
post, although
chose
to
his wife admitted that she knew that she
dangerous
had a
Jackson,
situation in the
pool.
use of their
185 Ill. 2d
(duty
based,
at 427
part,
warn was
on the
fact that the
could have been
virtually
expense”
“eliminated at
no cost or
defendant).
Togher
Defendant James
completion
testified that after
Perfitto,
the pool,
Vincent
the owner of
provided
defendant Black
both adhesive “no diving” signs to attach to the pool liner and a
*10
plastic warning sign that could be hung
pool. Togher
near the
testified
that Perfitto told him that the “liner
ap
information” indicated the
propriate placement
warning signs. Thus,
of the adhesive
the record
genuine
created
issues of material fact with
to all four of the
(a
Rich,
traditional
genuine
factors.
4The was read into the record at the of Perfitto, asking Vincent ownerof defendantBlack in the contextof Per question fitto about it. Toghers’appellate opinion
5The brief cited the federal district court’s citing opinion. subsequentappellate Ledermanwithout court’s
13 cause, proximate such as relevant to issues may later be intoxication not raised which were contributory negligence, of risk and assumption 1035, n.10 at 1042 Klen, Ill. appeal. 268 issues on this as Bucheleres, at 447 risk); 171 Ill. 2d cause, assumption of (proximate Barham, 3d at 1039-40 (contributory negligence)6; cause). to the determination However, it not relevant (proximate Klen, appeal. defendants, issue on this which is the by owed n.10. App. 3d at 1042 of the depth unknown find that the addition, if we were to find that we must danger, then open and obvious Toghers’ pool was rule The and obvious distraction. was a (2) the deliber exception; and the distraction exceptions: has two Inc., 215 Engineering, Blue v. Environmental exception. ate encounter 380, Co., Ill. 2d 391 (2005); 185 78, LaFever v. Kemlite Ill. 2d 106 (1998). possessor states that exception encounter The deliberate possessor “when the is liable for an premises to encounter proceed that the invitee will expect ‘has reason to in his position man danger because to a reasonable known or obvious ” LaFe outweigh apparent risk.’ doing so would advantages (Second) §343A, Torts ver, 391, quoting Ill. 2d at Restatement 185 (1965). exception has no encounter f, at 220 deliberate Comment application to this case. possessor that “the exception
The distraction states possessor ‘has anticipate harm to an invitee when premises should distracted, so that may be expect reason to that the invitee’s attention obvious, forget will what he has what is or he will not discover ” LaFever, Ill. 2d it.’ discovered, protect against fail to himself or (Second) §343A, at f, Torts Comment quoting Restatement (1965). Togh- about the of a number of factors The combination facts, Toghers appellate 6In to their briefs statement a footnote requirements for admis argue expert’s testimony would meet the that their S.P.,Inc., appellate court in Bodkin v. sibility set forth *11 Bodkin, (2002). in Illinois courts this court stated that App. 3d 620 consumption of alcohol negligence “consistently held that evidence cases have resulting impairment of showing a of intoxication is inadmissible absent ability corresponding diminution in the and a physical mental or abilities Bodkin, court further App. 3d at 634. This ordinary 329 Ill. act with care.” persons in different “[i]ntoxicating beverages affect different observed that quantity consumption of a by the ways persons would be intoxicated and some Bodkin, Ill. person.” 329 might have no effect on another of alcohol which concerning the future admissibil position This court takes no 3d at 634. possible to the alleged or its relevance ity plaintiffs intoxication of evidence of negligence. cause, contributory assumption or proximate of risk issues of 14 or, together
ers’ came to create a distraction as Dr. Johnson it, phrased optical place- “an illusion.” These factors included: the end; ment of deep-end positioning a classic ladder in a shallow broad, steps opposing deep-end shallow-end on the side the classic lad- der; mixing deep shallow and waters a nontraditional which ordinary expectation confounded the swimmer’s and a end; “Sparkle repeating shallow and a Blue” color in a Stone” “Creek pattern which helped to obscure the bottom. above, grant
For the reasons stated we reverse the trial court’s Toghers. in favor of defendant Defendant Black Oak Plaintiff sued defendant Black the seller and installer of the negligence liability. negligence for and strict To succeed on a (1) claim, plaintiff prove plaintiff a must that: the defendant owed the (2) (3) care; duty; plaintiff a the defendant breached that (4) injury; plaintiffs injury suffered an caused proximately was by Calles, 270; 224 the defendant’s breach. Ill. 2d at Harlin v. Sears Co., (2006); Simmons, Roebuck & 3d 3d at 42. claim, liability plaintiff prove
To succeed on a strict
a
must
Calles,
product
unreasonably dangerous
a
was sold in an
condition.
In its brief to the trial
defendant Black Oak
duty to warn
mary judgment solely
ground
on the
it had no
above,
already discussed
concerning
danger.
As
cannot reach a conclusion as a matter of law that the
this court
a conclu
was obvious. Even if we could reach such
sion,
to sustain a
holding by
itself would be insufficient
is not an absolute bar to
summary judgment. Obviousness
Calles, 224 Ill. 2d
liability
claim or a strict
claim.
negligence
either a
259, 262-63,
suit,
required to
negligence
271. In a
we are still
(2)
injury;
traditional factors:
the likelihood of
consider the four
*12
15
(3)
the
magnitude of
injury;
foreseeability of such
the reasonable
(4)
of
consequences
and
injury;
against guarding
burden
at
Simmons,
Ill.
329
the defendant.
that burden on
placing
test for
utility
risk
Under the
Buchaklian,
Ill.
3d at
42;
it finds relevant
factors
must balance
claim, “the court
liability
strict
Calles,
jury.”
to the
one to submit
proper
if
case is a
to determine
injury
likelihood
include the
Suggested factors
With
Black
duty warn on defendant
placing
consequences
when he testified
issue of material fact
genuine
Perfitto created a
warning stick
the adhesive
“maybe
20 minutes” to install
it takes
installation
also testified that
warning signs. He
plastic
ers and the
level,”
company
received
and that
required only
good eye [and]
“a
in a
liner manufacturer
signs from the
warning
stickers and
based,
Jackson,
(duty
to warn was
185 Ill. 2d at
“safety packet.”
have been “eliminated
danger
that the
could
part,
on the fact
defendant). Thus, the record created
virtually
expense”
no cost or
to all four of the traditional
fact with
genuine issues of material
(a
material
fact
genuine issue of
Rich,
With to first two traditional defendant safety packet genuine Latham’s created a issue of material fact with respect injury. to the likelihood and foreseeability packet of Oak, which, turn, provided by Latham to Black in provided it to James Togher; and it included warnings against dangers numerous the (“a diving Toghers’ pool. into the Schellenberg, App. 3d at 52 duty to warn dangerous arises where the existence of a condition is *** apparent party”). known and it is not to the other factors, respect magnitude
With
to the second two traditional
Latham,
and consequences
placing
duty
to warn on defendant
the deposition testimony
genuine
of John Oliver created
issues of
manager
material fact. Oliver was Latham’s technical service
at the
time
that the
was installed.8 Oliver admitted that after
an accident in
prior
another lawsuit and
to the accident in the instant
case,
spoke
Plastics,
he
with
Morris of Vinyl
vinyl
Dave
Latham’s
manufacturer,
imprinting warning signs directly
vinyl
about
on the
warnings
liner. After Morris indicated
would
that
make
attractive,
Instead,
steps.
the liner less
Oliver took no further
Latham
supreme
rejected
7The
court
that
bar in the
stated
it
absolute
negligence
already
in
context for the same reasons
stated
its earlier discussion
Calles,
liability.
in
of strict
8Oliver testified that he was hired 1995 as Latham’s years. there At Customer and Technical Service” and worked for almost 2001,” changed Support Manager,” and “sometime in his title to “Technical longer responsible he was no for customer service. He then wrote Latham’s liner, procedures build a and manuals “on how to install a how to products, problems commonly, how to assemble resolution of encountered things nature.” No safety packet. warning its sticky labels of provide
chose were more attractive— sticky labels why as to was offered explanation Oliver to use them. customer unless, course, nobody expected provided cards returned the of its customers only 15% testified applied or they had received to indicate that safety packet Latham’s warning signs. deposi Johnson, testified at addition, plaintiffs expert, In Dr. liners,” [was] “there warnings on “[y]ou put can tion that warning on some of those put of Latham to obligation part on anything that warnings or liner,” ability print that “the vinyl their industry going clear in the you vinyl want to on has been available have Latham couldn’t [was] that “there no reason back to 1983” and industry needs swimming pool opinion, it.” In Dr. Johnson’s “the done depth making safer with more stance on proactive to take a Thus, things.” warning signs and those kinds of diving markers and with to all genuine issues of material fact the record created (a Rich, genuine 2d at 370 issue factors. four traditional motion). requires of material fact the denial of a alternative, on the sought summary judgment In Latham that, part, it no ground component as the manufacturer of a owed assembly designed final that was arising out of the court, the trial Latham did not cite a built others. its brief to *14 brief, single appellate in of its brief. In its supporting case this section Energy in of this Loos v. American support point: it cited one case (1988). Savers, Inc., 3d App. 168 Ill. sup Loos, alleged had manufactured tower
In defendant tower, support designed the legs strong enough that were not port Loos, App. support 168 Ill. 3d at 560. subsequently toppled. which summary judgment, defendant submitted an affidavit of its motion for manufacturing stating that defendant “was vice-president from its for judge it could whether provided any with information from which Loos, 3d App. strength appropriate.” the of the tower would be component part appellate “[a] at 563. The court held that while injuries liable for the attributable may strictly manufacturer be found evidence to any failed to submit component,” plaintiff to the defective Thus, Loos, contradict defendant’s affidavit. Loos, 168 Ill. granted summary judgment. the trial court properly at 563. issue contrast, testimony created a material By deposition Oliver’s judge information to fact whether Latham had sufficient about Oliver testified that component part. of its appropriateness (NSPI)9 Spa National and Pool industry Institute set standards for residential, nondiving pools, and that the design pool, drawing by as reflected on a employee, a Latham did not meet a acknowledged number of NSPI standards. Oliver one of the that purposes safety. Although of the NPSI standards was Oliver claimed compliance responsibility with NSPI standards was not Latham’s responsibility acknowledged but the of the installer of the he manual,10 that Latham’s owner’s Toghers, which was delivered to the guaranteed produced conformity the liner was in with NSPI Thus, genuine standards.11 the record created a of material fact issue concerning appropriateness component manufactured part by defendant Latham. First, legal
The dissent makes a number of
errors.
the dissent’s
only point
one and
is that the
was an
and obvious
danger.
supreme
“open
Our
court could not have been
clear:
more
Jackson,
liability.
obvious” is not an absolute bar to
correct the Toghers’ pool danger, and that was an inquiry proceed analyze our cannot end there. must still We factors, already four traditional which the dissent failed to do. As above, respect discussed the record created material issues of fact with to all four factors and with to each defendant. distinguish supreme holding
The dissent tries to court’s Jackson, 426, by risk stating 185 Ill. 2d at “Jackson involved a injury known to the owner but unknown to the invitee.” 382 Ill. very Togher 3d at 22. But that is the case we have here. Renee was risk, why that is she told not to dive. Latham and people aware of risk, warn why they Black Oak were aware of the that is distributed ings. only person who was not alert to the risk was the who party as a quadriplegic is now a result. group industry-related “an
9Oliver testified that the NSPI was promotes products pool industry” and that are sold and installed belonged that defendant Latham to NSPI. deposition, following portion of
10Athis Oliver read into the record the Institute, NSPI, Spa “The National & Pool Latham’s owner’s manual: Institute, ANSI, developed association with American National Standards produced swimming pools. liner in conform standards for residential This ANSI, either 1995 or ANSI NSPI 4 1992 standard.” ance with NSPI *15 addition, language employed by he seen 11In Oliver admitted that had Inc., panels for the Systems, which the manufacturer of the steel Cardinal was dig specifications should be verified Toghers’ pool, that Cardinal’s to the effect standards. they comply with NSPI by the liner manufacturer to insure daily on a basis with Cardinal. testified that Latham worked Oliver in such engage need not that “we The dissent also asserts authority of Bucheleres.” on the analysis in this case duty] [traditional Bucheleres, court found that supreme our 3d at 22. In App. 382 Ill. analyze each proceeded obvious” and then “open Bucheleres, 2d at 171 Ill. factors. every one of the four traditional case analysis, the Bucheleres eliminating the traditional 456. Far from requires it. in the opinion
Second, the Seventh Circuit’s the dissent discusses against plaintiff. We though finding it supports Lederman case as “open and in Lederman were depths pool that the agree can all end, big white deep and a and a obvious”: had a shallow end The Lederman the two. separate line across the bottom to painted nothing Toghers’ pool. like the conventional and was pool was a bearing on our case. Lederman has little finding against plaintiff A support” no factual for Dr. Third, the dissent claims “there is provided plenty Dr. Johnson opinion. App. Johnson’s 382 Ill. 3d at 20. These support, deposition. of factual in both his affidavit and at his included, mixing deep of shallow and facts and were not limited to: ordinary design waters in a which confounded the nontraditional end; expectation placement swimmer’s and a shallow of a broad, end; deep-end positioning classic ladder in a shallow ladder; deep-end shallow-end on the side the classic steps opposing “Sparkle repeating pattern and a Blue” color in a “Creek Stone” discussed how helped which to obscure the bottom. Dr. Johnson also number industry this standards. violated a Co., Fourth, Trust Morgan Guaranty the dissent cites Glass v. (1992), App. 3d 355 out of context. The dissent cited Glass for “ proposition that: ‘The illusion is in the mind of optical ” 21; Glass, App. App. beholder.’ 382 Ill. 238 Ill. 3d at 359. Glass, Glass, optical only plaintiff. illusion was in the mind of the mo response 238 Ill. 3d at 357-59. In to a tion, belief that plaintiff only plaintiffs subjective Glass offered Glass, optical an illusion was created the stairs down which she fell. plaintiff in that case that 3d at 357-59. This court noted or “identify failed to to substantiate” her claims expert witness “any engineering allegedly and architectural standards that were violated,” summary judgement and thus we affirmed the contrast, Glass, By favor of 3d at 359. defendant. provide:
in the case at Glass failed to supplied bar what the standards, industry expert’s opinion list of violated based on optical Applying factual created an illusion. support requires Glass to our facts a reversal.
CONCLUSION sum, In we cannot conclude as a matter of law that the danger the swimming pool was and obvious. Plaintiffs swim- ming pool expert Toghers’ pool stated that the “optical created an illu- deep sion of a end” design “very and that its unusual.” In addi- tion, an obvious is not an plaintiffs absolute bar to a recovery. A court must still consider the traditional factors of the likelihood foreseeability of injury magnitude and the consequences placing duty to warn on defendants.
The genuine record created a issue of material fact as to whether the defendants this case knew there was a and failed to fol- low through Latham, on their to warn. Defendant the manufac- liner, turer of created sticky warning, passed labels of which it Oak, turn, defendant Black passed installer. Black customer, sticky labels to the though rarely even it knew customers pools. stuck them on their expected, Togher As defendant James chose not to stick the labels telling on his which left his wife Renee people affidavits, she saw not to dive. After reading deposition transcripts case, and other evidence in this this court concludes that genuine the record creates a issue material fact about whether the waiting was an accident For happen. the reasons above, stated we reverse the trial court’s and remand proceedings opinion. for further consistent with this
Reversed and remanded with instructions.
CAHILL, EJ., concurs. GARCIA, dissenting:
JUSTICE
agree
majority
I cannot
with
expert’s
“[t]he
affidavit and
deposition testimony created a material issue of fact about whether a
‘deep
shallow bottom in a
end’ section of the
was a nonobvious
danger.”
my judgment
382 Ill.
3d at 10. In
there is no factual
for
support
expert’s opinion.
expert’s opinion
only
“An
as valid
opinion.
sup
as the bases and reasons for the
there is no factual
When
conclusions,
for an
do
port
expert’s
conclusions alone
not create a
Ltd.,
question
Enterprises,
of fact.”
v.
260 Ill.
Gyllin College Craft
(1994).
707, 715,
App. 3d
633 N.E.2d
opinion
Dr. Johnson’s
centers on his contention that
I
“optical
deep
unpersuaded
created an
illusion of a
end.”
am
“optical
that a claimed
illusion” can be the basis either to create a
or,
sug
means to
question
material factual
to the extent the
deep end” was for
gest
“optical
the existence or not of the
illusion of a
my
itself.
determine,
question
a factual
to form
the trier of fact to
is no differ
end”
illusion of
judgment,
“optical
the claim of an
had after
must have
each unfortunate
thought
ent from the
deeper.”
plaintiffs
thought
“I
the water was
the disastrous dive:
on Dr.
remains based
question of fact
contention that a material
duty-to-
in the
objective inquiry
conclusions transforms the
Johnson’s
Klen,
3d 1031
See
analysis
subjective
warn
into a
one.
standard).
my
objective
With
(duty
using
to warn is determined
objective inquiry but
longer
it becomes no
apologies
poets,
to all
is in the mind
subjective
optical
assertion: “The
illusion
Co.,
Guaranty
v.
Trust
Morgan
beholder.” See Glass
il
355, 359,
“optical
claim founded on
(liability
I also
that the cases that have
pool
dive into a
are all
liability
claim of
based on a headfirst
as
distinguishable
agree
on their facts. I
with the Lederman court’s
finding against
plaintiff
sessment that the Illinois cases
an adult
stand
proposition
very uncertainty
depth
for the
that it is the
of the
in-ground pool
diving
openly
obviously
that makes
into one
Lederman,
dangerous.12
I recognize supreme our court has held existence of an “[t]he per finding obvious is not a se bar to that a defendant who owns, occupies duty or controls land has a to exercise reasonable Associates, Inc., 418, 425, care.” Jackson v. TLC 185 Ill. 2d 706 N.E.2d (1998). However, analysis ap undertaken in Jackson has no plication supreme expressly here. Our court noted that the issue in Jackson did not injury diving involve “the risk of from into water that Jackson, is too shallow. [That] risk[ ] [not] at issue here.” 185 Ill. 2d injury at 426. The risk of involved striking submerged pipe, which supreme our court solely noted “stemmed from TLC’s conduct.” Jackson, words, 185 Ill. 2d at In other Jackson involved a risk of injury known to the owner but unknown to the invitee. Because the injury injury diving risk of differed from “the risk of from into water shallow,” that is too the court in Jackson the traditional invoked analysis injury injury. of likelihood of foreseeability and the of such my judgment, engage analysis we need not in such in this case on the authority of Bucheleres.
Finally, reject I out any suggestion by of hand image “optical analogous mental in the form of an illusion” is to a natures; “submerged pipe.” they are not two are of different analogous. plaintiff’s position
Because a reasonable adult in the would have I appreciated diving depth, into a of unknown correctly summary judgment. circuit I conclude the court entered would affirm as to each defendant. *18 Petraski, PETRASKI, Margaret
MICHAEL Guardian of the Estate of THEDOS, Person, Plaintiff-Appellee, DEBORAH Indiv. and as Disabled v. al., Defendants-Appellants. et Agent/Employee County, of Cook of the Sheriff (1st Division) District No. 1 — 06—2914 First 8, Rehearing May Opinion March denied filed 2008 .