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02/03/89 Lance Erickson Et Al., v. Muskin Corporation

February 3, 1989





535 N.E.2d 475, 180 Ill. App. 3d 117, 128 Ill. Dec. 964

February 3, 1989; Modified on Denial of Rehearing March 17, 1989.

Appeal from the Circuit Court of Cook County; the Hon. Irving R. Norman, Judge, presiding. 1989.IL.130


PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.


Plaintiffs, Lance and Valerie Erickson, appeal from various orders and the net verdicts in a strict liability/assumption of the risk case. The following facts are basic to this appeal.

On the afternoon of July 4, 1981, Lance and Valerie attended a party at the home of Charles Langdon, Sr. The Langdon's had installed an above-ground pool designed and manufactured by defendant, Muskin Corporation, in 1974. The oval pool was 33 feet long, 18 feet wide, and the water depth varied from between 3 1/2 and 4 1/2 feet; it was deeper at the ends than in the middle as the result of an expandable liner. It is undisputed that Lance had consumed no alcoholic beverages.

Sometime during that afternoon, Lance climbed onto the deck and asked Eric Stenerson, who was in the pool, to move an inner tube over to the left side so Lance could dive through it. After making a head-first dive through the center of the inner tube, Lance hit his head on the bottom of the pool. He received a compression fracture of the fifth cervical vertabra, resulting in quadriplegia.

Subsequently, Lance brought a personal injury suit against defendant Muskin and the pool liner manufacturer, Swimline Corporation. His wife, Valerie, brought a loss of consortium suit against Swimline and the retail distributor, Marathon. Muskin brought a third-party action against Langdon, Sr., and Marathon. Before trial and pursuant to the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.), the Erickson's entered into the following settlement agreement with all defendants except Muskin, as follows:

Lance Valerie

From Swimline Corporation: $25,000 $125,000

From Langdon, Sr.: 10,000 90,000

From Marathon Enterprises: 5,000 45,000

$40,000 $260,000

The trial court, in a non-final order, ruled that the gross amounts of the settlements were in good faith, but after Muskin objected to the allocation thereof, the court declined to rule on the good faith of the allocation.

The Ericksons then proceeded to trial only against Muskin on the strict liability allegation, i.e., failure to warn. The jury, in answer to a special interrogatory, found that the pool was unreasonably dangerous because of a lack of warning regarding the dangers of diving into it and that Lance's injuries were proximately caused by that unreasonably dangerous condition. In rendering its damages verdicts, the jury determined that Lance had assumed the risk to the extent of 96%. Based on Lance's assumption of the risk, the jury also reduced Valerie's consortium damages by 96%. The gross verdicts totaled $3,508,679 for Lance and $518,750 for Valerie. After the reductions for assumption of the risk, Lance received $140,347 and Valerie was awarded $20,750.

Thereafter, the court granted Muskin's post-trial motion to allocate the pretrial settlement funds in the same ratio as the total verdicts bore to each plaintiff: Lance = $262,500; Valerie = $37,500. The court then set off these settlement amounts against the net verdicts, resulting in awards of $0 to each plaintiff.

Plaintiffs appeal from the jury's net verdicts, the order granting defendant Muskin's post-trial motion for allocation of the pretrial settlement funds, and the denial of their post-trial motion. Plaintiffs raise the following issues on appeal: (1) whether the affirmative defense of assumption of risk should have been submitted to the jury in this, a failure to warn based on strict liability, case; (2) whether the jury's finding that Lance had assumed 96% of the risk was against the manifest weight of the evidence; (3) whether the jury instructions "fairly, fully and comprehensively" informed it of the relevant legal principles; (4) whether Lance's 96% assumption of risk was properly imputed to Valerie; and (5) whether the post-trial allocation of pretrial settlement funds was proper. Plaintiffs are alternatively requesting that this court grant various judgments notwithstanding the verdicts, a new trial, and vacatur of the allocation of settlement order. In order to determine several of these issues, additional facts from the record will be set forth in the Discussion.


This case went to the jury on the single issue as to whether Muskin had a duty to warn of an unreasonably dangerous condition in its above-ground pools. The jury affirmatively answered defendant's special interrogatory: "Were the plaintiffs' injuries and damages proximately caused by an unreasonably dangerous condition which existed in the Muskin swimming pool at the time it left the control of Muskin Corporation?" Muskin has not contested that finding in this appeal. Plaintiffs argue that an assumption of risk defense is legally and logically inconsistent with the jury's finding of a breach of ...

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