Duffy v. Togher

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 1st District Appellate » 2008 » Duffy v. Togher

Duffy v. Togher

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-1447 Rel

Case Date: 03/31/2008

Preview:FIRST DIVISION MARCH 31, 2008

No. 1-06-1447

DONALD DUFFY, Plaintiff-Appellant, v. JAMES G. TOGHER, RENEE TOGHER, LATHAM PLASTICS, INC. f/k/a Pacific Pools Industries, Inc., BLACK OAK POOL SUPPLY, INC., and PACIFIC INDUSTRIES, INC., Defendants-Appellees (Shaunna Travis, Defendant).

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County. No. 02 L 5279

Honorable Ralph Reyna, Judge Presiding.

JUSTICE ROBERT E. GORDON delivered the opinion of the court: On July 15, 2001, plaintiff Donald Duffy, age 21, dove into an in-ground swimming pool and sustained injuries that led to his becoming a quadriplegic. The swimming pool was located in the backyard of a single-family house owned and occupied by defendants James G. and Renee Togher in Palos Hills, Illinois. Defendant Black Oak Pool Supply, Inc. (Black Oak), sold the pool to the Toghers and installed the pool in their backyard; and defendant Latham Plastics, Inc.(Latham), manufactured the pool's liner. Pacific Industries, Inc. (Pacific), was simply a former name used by Latham. Defendant Shauna Travis, who is not a party to this appeal, is both

No. 1-06-1447 the Toghers' niece and the person who invited plaintiff to use the Toghers' pool. Plaintiff appeals the order of the circuit court of Cook County, granting motions for summary judgment by defendants Toghers, Black Oak and Latham. For the reasons discussed below, we reverse. BACKGROUND The parties agree that at the time plaintiff dove into the Toghers' pool, there were: (1) no signs saying "no diving"; and (2) no markers indicating the depth of the water. At his discovery deposition, defendant James Togher testified that Vincent Perfetto, the owner of Black Oak, provided the Toghers with "no diving" signs and other warning signs that he chose not to post. At her discovery deposition, defendant Renee Togher testified that when friends and family came to use the swimming pool, she told them "no diving" because she believed that diving into the pool was "dangerous." Defendant Renee Togher testified that she repeated these oral warnings "a lot." Neither James nor Renee Togher was at home when plaintiff dove into their pool. At his discovery deposition, plaintiff testified that he stood on the west side of the pool's perimeter and dove horizontally into the north end portion of the pool; his hands struck the bottom of the pool first, before his head. Plaintiff testified that he had never been in the Toghers' pool prior to the date of his injury, that he had not walked into the north end of the pool before he dove, that he had "seen the ladder, so [he] figured that the water's deep enough that you need a ladder to climb out of [it]," that he "figured a pool had a shallow end and a deep end," and that he assumed he was diving into the deep end of the pool. The parties do not dispute the following facts about the Toghers' pool. The Toghers' in2

No. 1-06-1447 ground swimming pool was completed on May 10, 2000, approximately a year before plaintiff's accident. The pool is rectangular, with a length of 36 feet and a width of 18 feet. On the south end of the pool, there are broad, built-in steps leading down into the pool. The steps traverse the entire width of the pool, with hand rails on either side. At the opposite end of the pool, there is a ladder descending into the pool. The ladder is close to the north end, but located on the pool's east side. There is no diving board. The floor of the swimming pool has a U shape, with a vinyl liner. The deepest part of the pool is in the middle, with shallow areas at both its north and south ends. The water depth in the north and south ends is less than 3 feet, while the depth in the middle is 5 feet 7 inches. In the middle, the floor has a two-foot, flat area, with the pool's deepest depth. The floor of the pool slopes down from both its north and south ends, toward this flat area in the middle. Plaintiff admitted at his deposition that he had gone to a bar approximately two hours prior to the accident and consumed two to three glasses of rum and Coke. Plaintiff testified at his deposition that he was approximately 5 feet 10 inches tall and weighed 180 pounds at the time of the accident, and that he was definitely not intoxicated at the time of the accident. This case involved the affidavits and deposition testimony of several experts. Plaintiff retained Dr. Ralph Johnson, a swimming pool expert; Dr. Sam Glucksberg, a professor of psychology; and Dr. Leon Kazarian, a biomechanical engineer. Defendants retained Dr. Jerrold Blair Leikin, a toxicologist. Dr. Ralph Johnson, a swimming pool expert retained by plaintiff, listed in his affidavit a number of ways in which the Toghers' pool violated industry standards set by the National Spa 3

No. 1-06-1447 and Pool Institute (NSPI) and the American National Standards Institute (ANSI). In his affidavit and at his discovery deposition, Dr. Johnson stated that the design of the Toghers' pool was "very unusual." With respect to the pool liner, Dr. Johnson's affidavit stated that its design was "a dangerous, deceptive and non-traditional design in the residential pool market." Dr. Johnson explained that "[m]ixing shallow and deep water in a non-standard application is confusing, deceptive and unsafe for the ordinary pool user who expects to swim in a pool with a shallow and a deep end." Dr. Johnson's affidavit further stated that the Toghers' pool created an "optical illusion of a deep end," with "a classic deep-end ladder" at one end of the pool; and broad steps typically associated with a shallow end, at the other end of the pool. He stated: "In my opinion, had the north end of the pool been designed with steps and handrails, this accident would not have occurred." He also observed: "In order to comply with ANSI/NPSI, the ladder should have

been placed in the deepest part of the pool, which is the middle." In addition, Dr. Johnson's affidavit stated that since "the pool bottom [was] uniform in texture and posture," the pool depth was "difficult if not impossible to judge." At his deposition, he noted that the liner was "Sparkle Blue" in color, with a "Creek Stone" pattern. Dr. Johnson testified that "[t]he pattern would help to obscure the bottom." He explained that: "If you have no pattern on the bottom, if you have a solid bottom with a contour line down, then you can perceive the slope of the pool." Dr. Johnson also testified at his deposition about his qualifications as a swimming pool 4

No. 1-06-1447 expert, as follows: He received his bachelor's and master's degrees in physical education, and his doctorate in sports administration. He worked for 25 years at Indiana University of Pennsylvania, where he served as a swimming and diving coach, a director of aquatic facilities and programs, and a professor of health and physical education. In 1997, he became a professor of sport management and chairman of the sport management department at North Greenville College in South Carolina, where he is currently employed. In 1993, he founded Professional Aquatic Consultants International, which provides aquatic consulting services to clients such as the Red Cross, the YMCA and the United States Department of the Navy. He has also authored textbooks that are used by architects and engineers to design aquatic facilities. Dr. Sam Glucksberg, a psychologist hired as an expert by plaintiff, is a professor of psychology and has been on the faculty of Princeton University since 1963. At his discovery deposition, he opined, based in part on his review of Dr. Johnson's affidavit and deposition testimony and plaintiff's deposition testimony, that it was not open and obvious that the north end of the Toghers' pool was shallow. Dr. Leon Kazarian, a biomechanical engineer specializing in accident-related industries retained by plaintiff, submitted an affidavit and testified at his discovery deposition that plaintiff's injuries were consistent with a headfirst dive into shallow water. Dr. Jerrold Blair Leikin, a medical physician specializing in toxicology retained by defendants, testified at his discovery deposition that he reviewed: plaintiff's deposition testimony; records of the Palos Hills fire department which responded to the accident scene; and records of Christ Hospital where plaintiff was brought after the accident. Based on his review of these 5

No. 1-06-1447 records, Dr. Leikin testified that it was his opinion that plaintiff was intoxicated at the time of the accident. Dr. Leikin also testified that a blood sample drawn from plaintiff at Christ Hospital approximately an hour after the accident contained a blood-alcohol level of .06. In actions for driving under the influence of alcohol, the Illinois Vehicle Code requires that certain blood-alcohol levels give rise to certain presumptions. 625 ILCS 5/11-501.2(b) (West 2006). If a defendant's blood-alcohol level was .05 or less, "it shall be presumed that the person was not under the influence of alcohol." 625 ILCS 5/11-501.2(b)(1) (West 2006). If the defendant's blood-alcohol level was more than .05 but less than .08, then "such facts shall not give rise to any presumption that the person was or was not under the influence of alcohol." 625 ILCS 5/11-501.2(b)(2) (West 2006). If the defendant's blood-alcohol level was .08 or more, "it shall be presumed that the person was under the influence of alcohol." 625 ILCS 5/11-501.2 (b)(3) (West 2006). Plaintiff's second amended complaint, which is the operative complaint on this appeal, alleged the following counts: count 1, against the Toghers, for premises liability; counts 2 and 3, against defendant Latham, for strict liability and negligence; and counts 4 and 5, against defendant Black Oak, for strict liability and negligence. Counts 6 and 7 against defendant Pacific were also for strict liability and negligence. As noted above, Pacific was merely a former name of defendant Latham and not a separate entity.1

1

Defendants filed third-party complaints for contribution that are not at issue on this

appeal. Some of the third-party defendants filed motions for summary judgment that are also not 6

No. 1-06-1447 In his complaint, plaintiff alleged that defendants's acts and omissions included: failing to post or provide warning signs, pool rules, depth markings or a safety rope to divide shallow from deep waters; installing a pool with an unusual floor which created a deceptive impression of depth; locating a ladder at one end, thereby creating the misleading impression of a deep end; and installing a pool that did not conform to industry standards for residential swimming pools as established by the American National Standards Institute (ANSI). Defendants Latham, Black Oak and the Toghers all moved for summary judgment. On April 13, 2006, the trial court heard argument from all counsel concerning the summary judgment motions. The defendants' primary argument for summary judgment was that the Toghers' pool constituted an open and obvious danger, and thus none of the defendants owed a duty to warn or otherwise protect plaintiff against the danger of diving into it. On May 17, 2006, the trial court issued a handwritten order that disposed of the summary judgment motions in one line: "All motions for summary judgment are granted, instanter." The order did not specify the trial court's reasons for granting the summary judgment motions. The order was a final judgment with respect to defendants Toghers, Black Oak and Latham. On May 18, 2006, plaintiff filed a notice of appeal, and this appeal followed. ANALYSIS This appeal concerns the grant of summary judgment. "[S]ummary judgment is a drastic measure [that] should only be allowed `when the right of the moving party is clear and free from

at issue in this appeal. 7

No. 1-06-1447 doubt.' " Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d 307, 311 (2007), quoting Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). A plaintiff is not required to prove his case at the summary judgment stage. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423 (1998). A trial court may grant summary judgment "only where `the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 370 (2007), quoting 735 ILCS 5/2-1005(c) (West 2006). On a motion for summary judgment, the trial court has "a duty to construe the record strictly against the movant and liberally in favor of the nonmoving party." Jackson, 185 Il. 2d at 423-24; Osborne v. Claydon, 266 Ill. App. 3d 434, 435 (1994). As a result, summary judgment is not appropriate: (1) if "there is a dispute as to a material fact" Jackson, 185 Ill. 2d at 424); (2) if "reasonable persons could draw divergent inferences from undisputed material facts" Jackson, 185 Ill. 2d at 424); or (3) if "reasonable persons could differ on the weight to be given the relevant factors" of a legal standard (Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 269 (2007)). A trial court's grant of summary judgment is subject to de novo review. Rich, 226 Ill. 2d at 370. For the reasons discussed below, summary judgment was not appropriate in this case. The record creates a genuine issue of material fact about whether the defendants knew there was a danger and failed to follow through on their duty to warn. Defendant Latham, the manufacturer of the pool liner, created sticky labels of warning, which it passed to defendant Black Oak, the installer. Black Oak, in turn, passed the sticky labels to the customer, even though it knew customers rarely stuck them on their pools. As expected, defendant James Togher did not stick 8

No. 1-06-1447 the labels on his pool, which left his wife Renee telling people not to dive. In short, the record creates a genuine issue of material fact about whether the Toghers' pool was an accident waiting to happen. Below, we discuss in detail each theory of liability against each defendant. Defendant Toghers In his complaint, plaintiff alleged one count of premises liability against defendant Toghers. Generally, "[a] possessor of premises has a duty to guard against harm to an invitee." Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 14 (2007), citing LaFever v. Kemlite Co., 185 Ill. 2d 380, 391 (1998). The Toghers' attorney stated to the trial court during argument that the Toghers were moving for summary judgment "on one point and one point only": that they did not owe plaintiff a duty of care because their pool posed an open and obvious danger. The defendant Toghers' argument is based on "the principle of Illinois law which holds that persons who own, occupy or control and maintain land are not ordinarily required to forsee and protect against injuries from potentially dangerous conditions that are open and obvious." Jackson, 185 Ill. 2d at 424-25, Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 445-47 (1996). The question of whether a particular landowner owed a duty of care to a particular invitee under a theory of premises liability is a question of law. LaFever v. Kemlite Co., 185 Ill. 2d 380, 388 (1998). However, when a court cannot conclude as a matter of law that a condition posed an open and obvious danger, then "the obviousness of the danger is for the jury to determine." Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1044 (1994); Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 43 (2002) ("Whether a condition presents an open and obvious danger is a 9

No. 1-06-1447 question of fact."), cited by Sollami v. Eaton, 201 Ill. 2d 1, 20-21 (2002) (Harrison, C.J., dissenting) ("Whether a condition presents an open and obvious danger is a question of fact for the trier of fact"), Buchaklian v. Lake County Family Young Men's Christian Ass'n, 314 Ill. App. 3d 195, 203 (2000) ("summary judgment is not proper when reasonable minds could differ as to whether a condition was open and obvious[;] *** such a determination involves a finding of fact"). The general rule in Illinois is that a body of water presents an open and obvious danger whether it is naturallyoccurring, such as Lake Michigan, or it is man-made, such as a swimming pool. Jackson, 185 Ill. 2d at 425 (providing citations to cases).2 Despite the general rule, Illinois courts have found that the dangers of particular bodies of water were not open and obvious. Jackson, 185 Ill. 2d at 426-27 (submerged pipe created danger in lake that was not open and obvious); Klen, 268 Ill. App. 3d at 1044 (danger of dive into shallow, above-ground pool was not open and obvious to reasonable 14 year-old); Schellenberg v. Winnetka Park District, 231 Ill. App. 3d 46, 51-52 (1992). In addition, the "one and only" ground asserted by the Toghers in support of their summary judgment motion is not an absolute bar to liability. Calles, 224 Ill. 2d at 271. Our

2

Approximately 20 court cases involving headfirst aquatic injuries have occurred in Illinois

since 1990. Clement, Risk Management Issues in Sport: Headfirst Aquatic Incident Court Decisions: The Plaintiff's Odds, 17 J. Legal Aspects of Sport 107, 125 (Winter 2007) (listing 19 Illinois state and federal court cases between 1990 and 2005). 10

No. 1-06-1447 supreme court has held with respect to a premises liability claim that "[t]he existence of an open and obvious danger is not a per se bar to finding that a defendant who owns, occupies or controls land has a duty to exercise reasonable care." Jackson, 185 Ill. 2d at 425, Bucheleres, 171 Ill. 2d at 449 (not "an automatic or per se bar"). Other relevant factors include: "[1] the likelihood of injury, [2] the reasonable forseeability of such injury, [3] the magnitude of [the burden of] guarding against the injury, and [4] the consequences of placing that burden on the defendant." Jackson, 185 Ill. 2d at 425, Bucheleres, 171 Ill. 2d at 456. Our supreme court has held that once a court finds that a danger is open and obvious, the court's analysis is not "complete" until it has analyzed these four "traditional" factors. Jackson, 185 Ill. 2d at 425, Bucheleres, 171 Ill. 2d at 456. The Toghers' brief to the trial court sought summary judgment on one ground only: "The Toghers did not owe the plaintiff a duty to warn against `open and obvious' dangers." Dr. Johnson, an expert hired by plaintiff, stated in his affidavit and at his deposition, that the design of the Toghers' pool was "very unusual." First, Dr. Johnson's affidavit stated that the design was "unsafe for the ordinary pool user" who expects a pool to have both a shallow and a deep end. Second, Dr. Johnson's affidavit stated that the problem was compounded by an "optical illusion of a deep end," created by the placement of a classic deep-end ladder at one end of the pool, and the placement at the opposing end of broad steps typically associated with a shallow end. Third, Dr. Johnson's affidavit observed that the pool bottom was uniform in texture and pattern, which Dr. Johnson stated made the pool depth "difficult if not impossible to judge." At his deposition, he testified that the "Sparkle Blue" color in the "Creek Stone" pattern "would help to obscure the 11

No. 1-06-1447 bottom." The expert's affidavit and deposition testimony created a material issue of fact about whether a shallow bottom in a "deep end" section of the pool was a nonobvious danger. Plaintiff testified at his deposition that it was this illusion that caused him to assume it was safe to dive. However, the obviousness of the danger and the duty to warn are decided not based on plaintiff's own subjective perception but by an objective standard. Klen, 268 Ill. App. 3d at 1041. The Toghers' appellate brief cited three cases which held that a swimming pool was an open and obvious danger. All three cases are readily distinguishable from the case at bar. First, in Osborne v. Claydon, 266 Ill. App. 3d 434 (1994), the appellate court affirmed a grant of summary judgment against a 17-year-old plaintiff who suffered spinal injuries from a headfirst dive into a pool located in defendants' backyard. The appellate court in Osborne held that defendants had "no reason to believe that a 17 year old *** would not appreciate the obvious danger of attempting a running dive into the shallow end of the pool." Osborne, 266 Ill. App. 3d at 440. By contrast, in the case at bar, the end of the pool into which plaintiff dove was not obviously a shallow end. Second, in Barham v. Knickrehm, 277 Ill. App. 3d 1034, 1038-39 (1996), the appellate court held that an aboveground swimming pool with a uniform depth of 3

Download Duffy v. Togher.pdf