looks to the side wall of the pool above the water line, it all looks the same and one cannot tell if the water is at a depth of six feet, five feet, or four feet"; and "even in broad daylight, it is very difficult to visually tell how deep the water is simply by looking at the bottom of the pool." Moreover, Litwin opined that, in addition to depth markers, warning signs (such as "Danger!," "No Diving!," "Shallow Water," or "Paralysis can occur!") were necessary to warn Lederman and other swimmers of the dangers of diving into shallow depths.
Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); GCIU Employer Retirement Fund v. Chicago Tribune Co., 66 F.3d 862, 864 (7th Cir. 1995). When considering a motion for summary judgment, the court may review the entire record, drawing all reasonable inferences from the record in the light most favorable to the non-moving party. Cornfield by Lewis v. School Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993). The burden of establishing the lack of any genuine issue of material fact rests with the movant. Jakubiec v. Cities Serv. Co., 844 F.2d 470, 473 (7th Cir. 1988).
The non-movant, however, must make a showing sufficient to establish any essential element for which it will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party cannot rest on the pleadings alone, but must identify specific facts which establish that there is a genuine triable issue. Cornfield, 991 F.2d at 1320. The non-movant must do more than simply "show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). It is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. Carey v. Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir. 1988).
Here, subject matter jurisdiction rests on diversity. Lederman is a resident of Illinois, and Pacific resides in New York. In a diversity case, the district court must apply the law of the jurisdiction in which it sits. Rexford Rand Corp. v. Ancel, 58 F.3d 1215, 1218 n.6 (7th Cir. 1995). This court sits in the Northern District of Illinois and, accordingly, must apply Illinois law. Id. The parties do not dispute this.
In "ordinary negligence" cases in Illinois, Lederman must plead (1) that Pacific owed him a duty of care; (2) that Pacific breached that duty; and (3) that the breach was the proximate cause of Lederman's injuries. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863, 867, 214 Ill. Dec. 156 (Ill. 1995).
A. Duty of Care
A duty is "an obligation to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm." Id. Whether an individual owes another person a duty of reasonable care under a specific group of facts and circumstances is an issue not for the jury, but for the court. Bucheleres v. Chicago Park Dist., 171 Ill. 2d 435, 665 N.E.2d 826, 831, 216 Ill. Dec. 568 (Ill. 1996). If the court finds that no duty exists, then--for obvious reasons--the plaintiff cannot prevail, and judgment must be entered in the defendant's favor. Zion, 660 N.E.2d at 867.
Pacific, a swimming pool manufacturer, has a duty to warn prospective users of their manufactured pools about dangers associated with reasonable use of the pool. However, Pacific had no duty to warn Lederman about dangers of which he was already aware, Blakely v. Camp Ondessonk, 38 F.3d 325, 328 (7th Cir. 1994) (applying Illinois law), nor does it have a duty to warn him of "open and obvious" dangers, Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 643 N.E.2d 1360, 1365, 205 Ill. Dec. 753 (Ill. App. Ct. 1994).
1. Open and Obvious Danger
In cases involving obvious and common conditions, such as fire, height, and bodies of water, the law generally assumes that persons who encounter these conditions will take care to avoid any danger inherent in such condition. The open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight; people are expected to appreciate and avoid obvious risks.