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12/02/94 FRANCIS J. KLEN v. ASAHI POOL

December 2, 1994

FRANCIS J. KLEN, PLAINTIFF-APPELLEE,
v.
ASAHI POOL, INCORPORATED, A FOREIGN CORPORATION, ITSELF, AND AS LEGAL SUCCESSOR TO ASAHI CHEMICAL INDUSTRY COMPANY, LTD., A FOREIGN CORPORATION, ASAHI CHEMICAL INDUSTRY COMPANY, LTD., A FOREIGN CORPORATION, DEFENDANTS-APPELLANTS, POOL WORLD, INC., AN ILLINOIS CORPORATION, DOUGHBOY RECREATIONAL, INC. A DELAWARE CORPORATION, LOMART INDUSTRIES, INC., A FOREIGN CORPORATION, HOFFINGER INDUSTRIES, INC., A DELAWARE CORPORATION, AND ANDY'S SALES AND RENTALS, INC., A FOREIGN CORPORATION, DEFENDANTS, AND FRANCIS J. KLEN, PLAINTIFF-APPELLANT, V. DOUGHBOY RECREATIONAL, INC., A DELAWARE CORPORATION, HOFFINGER INDUSTRIES, INC., A DELAWARE CORPORATION, AND ANDY'S SALES AND RENTALS, INC., A FOREIGN CORPORATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE WILLIAM COUSINS, JR., Judge Presiding.

Released for Publication January 13, 1995.

Justice Gordon delivered the opinion of the court: Murray, P.j. and McNULTY, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court: *fn1

Defendants, Asahi Pool, Inc. and Asahi Chemical Industry Co., Ltd. (collectively "Asahi"), bring this interlocutory appeal by permission of this court pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308); and Plaintiff, Francis J. Klen, appeals from a summary judgment granted to Defendants, Doughboy Recreational, Inc. and Hoffinger Industries, Inc. (collectively "Doughboy") *fn2 and Andy's Sales and Rentals, Inc. (Andy's Sales), pursuant to Supreme Court Rule 304(a) (157 Ill. 2d R. 304(a).

Plaintiff's products liability action was brought against the Defendants as sellers and manufacturers of a swimming pool (Asahi), a swimming pool liner (Doughboy), and a trampoline (Andy's Sales). *fn3 The Plaintiff was injured when he dove from the trampoline into an above-ground swimming pool and was rendered a quadriplegic. The Plaintiff alleged that the Defendants were liable to him for their failure to warn of the risk of permanent neurological injury presented by their products' intended and foreseeable uses and that the lack of warnings was the proximate cause of his injury.

The facts derived from the pleadings, affidavits and depositions of the parties are not in dispute. At the time of Plaintiff's injury, the trampoline had been placed adjacent to the swimming pool by the owners of the pool and trampoline, the Monroes, who were the Plaintiff's neighbors. The Plaintiff was 14 years old, although he was to turn fifteen in three days. The Plaintiff arrived at the Monroe's house accompanied by several teenage friends. He swam in the pool for approximately 15 to 30 minutes. He stood in and walked around the perimeter of the pool and knew the water was chest deep. He knew that the sides of the pool were approximately four feet high.

At some point, the individuals at the Monroe's house began using the trampoline as a springboard for diving into the pool. John Monroe bounced on the trampoline and did a somersault dive from the trampoline into the pool. Some of the Plaintiff's friends dove head first from the trampoline into the pool and instructed the Plaintiff as to how to do the same. After watching John Monroe and his friends bounce on the trampoline and dive into the pool, Plaintiff got on the trampoline and began bouncing. As he had been instructed by the others to do, he bounced three times on the trampoline and propelled himself head first into the pool. Plaintiff hit the bottom of the pool and suffered permanent neurological injury. There is no dispute that the Plaintiff was attempting a "shallow" or surface dive not a vertical dive.

Plaintiff had taken swimming and diving lessons with the Lockport Park District for seven years, beginning in second grade. He had learned to swim and dive into both deep and shallow water. He learned the difference between deep and shallow dives and learned that certain dives would be appropriate in deep water but not shallow water. Plaintiff had experience in swimming in other above-ground pools that were approximately the same size, shape and depth as the Monroes' pool; and he had experience in using a small exercise trampoline.

Plaintiff stated that he understood that it was possible to dive into shallow water without injury by executing a flat, racing type dive that others had performed safely on the night he was injured. He believed the dive he was attempting was safe.

Upon the foregoing facts, the Defendants moved for summary judgment. The trial court granted summary judgment to Doughboy, the pool liner manufacturer, and to Andy's Sales, the trampoline manufacturer, holding that those products were "conditions" and not "causes" of Plaintiff's injuries. The court denied summary judgment to Asahi, the pool manufacturer, holding that whether the risk of quadriplegia is open and obvious to a 14 year old is a question of fact to be resolved by the jury. Upon Asahi's motion, the trial court certified the following question which this court agreed to review on appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308):

"Whether the Defendant manufacturer, Asahi, of an above ground swimming pool had a duty to warn the Plaintiff, Francis J. Klen, Jr. under strict liability of the hazzard [sic] of diving into an above ground swimming pool." *fn4

In his appeal, pursuant to Supreme Court Rule 304(a), the Plaintiff argues that the trial court erred in granting summary judgment to Defendants Doughboy and Andy's Sales because the pool liner and trampoline were proximate causes of, not conditions to, Plaintiff's injury. The Plaintiff further argues that the trial court erred in refusing to consider and striking from the record certain evidence. *fn5

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme ...


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