Edward Shensky, Jeffrey A. Brann, United States District Judge.
The case was heard by Howard J. Malaguti for the plaintiff. Joseph Flanagan for the defendants. The plaintiff seeks to recover for injuries he sustained when he dived, headfirst, into the shallow end of a swimming pool owned by the defendants and located on their residential property.
His complaint alleges that the defendants Page were negligent in allowing visitors to dive into the shallow end of the pool and in failing to warn of the danger associated with this activity. A judge in the Superior Court allowed the defendants' motion for summary judgment, reasoning that diving into the shallow end of a swimming pool is an open and obvious danger which was known to the plaintiff, and that the defendants therefore did not owe the plaintiff a duty of care.
The plaintiff timely appealed, and we transferred the case here on our own motion. The undisputed record before the motion judge, viewed in the light most favorable to the plaintiff, establishes the following material facts: The pool in question is an in-ground type, measuring eighteen feet in width by thirty-six feet in length, with both shallow and deep ends.
The bottom of the pool is level in the shallow end, for approximately ten feet of the pool's length, after which it slopes gradually toward the deep end, the sides of which are tapered. When filled to capacity, the pool is four feet deep at its shallowest point and eight feet at its deepest. There are no markers, either in the pool or on its exterior surround, to indicate the pool's depth at various points along its length or to demarcate the separation of its shallow and deep ends.
However, a diving board is affixed to the exterior of the pool at its deep end. The pool's interior is covered with a vinyl liner and there is no underwater lighting, so that the bottom of the pool is not visible at night.
The plaintiff, who was a friend of the defendants' granddaughter, had swum in the pool at least once prior to the night of the accident, during daylight hours.
He had observed various swimmers dive into the pool's deep end from the diving board. He also saw swimmers dive into the pool from the shallow end by performing a flat or "racing dive," i.
The plaintiff himself had previously dived into the pool's deep end from the diving board two or three times, and had made one dive into the shallow end.
Although he did not know the exact dimensions of the pool, the plaintiff was aware of approximately where the shallow part ended.
Moreover, he was aware of the shallow end's approximate depth, having observed other swimmers standing in that part of the pool and having subsequently stood next to these people outside the pool.
Page On the evening of July 16,the plaintiff, then twenty-one years of age, was a guest of the defendants' granddaughter at the defendants' residence. The defendants were out of town, but their granddaughter had permission to be on the premises and to use the swimming pool.
Sometime between 9 and 9: At the time, he was attempting, in racing dive fashion, to clear the ten-foot expanse of the shallow end and surface in the deep end, but he entered the water at too steep an angle and struck his head on the pool bottom, resulting in a fracture of his cervical vertebrae.In light of the holding of the New York Court of Appeals in Trupia v.
Lake George Cent. School Dist., monstermanfilm.com , NY Slip Op (Apr. 6, ), practitioners should be aware that. What is Voluntary Assumption of Risk or the Volenti Doctrine? Today we are going discuss a common defence used by insurers and defendants in personal injury lawsuits – The doctrine of volenti non fit injuria, or in English, the voluntary assumption of risk.
Under this system, the plaintiff’s negligence, if any, is factored into the analysis of the defendant’s fault, and the overall plaintiff’s recovery is reduced by the percentage of his fault. The premise for the doctrine of primary assumption of the risk was that it was limited to only sporting or professional-activity-related cases.
However, there has been a slow, but growing trend to extend the primary assumption of risk defense beyond these traditional areas. Assumption of the risk is a common defense used by many defendants in Florida personal injury cases.
When it applies, the doctrine prevents a plaintiff from pursuing a claim against a defendant if the plaintiff was engaging in a dangerous activity for which the risks were known.
Sep 22, · The primary assumption of the risk doctrine states that a participant in a sport has assumed the particular risks inherent in a sport by choosing to participate. The test is not a subjective one, but an objective one.