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LEDERMAN v. PACIFIC INDUS.

October 2, 1996

WADE LEDERMAN, Plaintiff,
v.
PACIFIC INDUSTRIES, INC., Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendant's Motion for Summary Judgment. For the following reasons, the motion is granted.

 I.

 Plaintiff Wade Lederman ("Lederman") sustained injuries resulting from striking his head on the bottom of a swimming pool. Lederman is now a quadriplegic. Lederman was thirty-one years old on the date of his tragic injury.

 Lederman believes that Defendant Pacific Industries, Inc. ("Pacific") was a cause of his injury. In his single-count Complaint, Lederman alleges that Pacific negligently manufactured and designed a swimming pool in that it: "failed to display the water depths of the swimming pool"; "failed to warn what areas around the pool were not to be used for diving"; "failed to warn that at night, with pool lights on, the depth of the water was deceptive to users of the pool"; and "failed to warn that the broad white line on the floor of said swimming pool did not mean it was safe to dive to the diving board side of that line."

 The swimming pool in question is a residential, in-ground, oval-shaped pool. A white demarcation line painted on the pool bottom divides the pool into two zones: the "shallow end" and the "deep end." The "shallow end" is two-and-a-half feet deep and extends ten feet. The demarcation line, or "transition line," is a white, one-foot-wide painted stripe which extends the width of the pool to separate the "shallow" and "deep" ends. At this location, the pool depth gradually increases by one vertical foot every three horizontal feet, until the depth "levels off" at a depth of seven feet, one inch. The depth then remains constant for ten horizontal feet. A diving board is located on the "deep end" of the pool, and the "shallow end" has an entrance consisting of three steps. There were no depth markers provided by Pacific to the pool purchaser, nor did Pacific provide the owners with warnings signs to post in or around the pool. Neither markers nor warning signs were placed around the pool in question.

 The injury occurred on July 5, 1991. Lederman worked a total of five hours, and proceeded to a "family get-together" at a relative's house. After about ten hours of celebration and carousing with family and friends, Lederman decided to go swimming in the pool. This was the first time Lederman had seen, or went swimming in, the pool.

 Lederman first entered the pool at approximately 10:30 p.m. He remained in the pool for an hour-and-a-half. During that time, Lederman and three others (including his brother) took part "hollering and yelling and having a good time" and "jumping off the diving board onto rafts." Lederman also jumped from the pool sides of the pool onto rafts. While jumping off of the sides and diving board, Lederman often performed a forward flip prior to landing on the raft. Lederman remained in the "deep end," and never used the stairs to enter or exit the pool. Before and during the above pool activities, Lederman consumed around ten beers, an indeterminable amount of tequila (right from the bottle), and a "sip" of Purple Passion (a mixed alcoholic drink). When asked if he was intoxicated during the time of his accident, he answered, "I really don't believe I was honestly."

 Lederman testified that at about midnight, he dove head first into the pool, and "the next thing [he knew] . . . his arms weren't moving." Lederman testified that he did not notice the depth of the water at the diving point. He also testified that he was aware of the potential for serious injury when diving into shallow water, and was aware not only of the existence of a "shallow end" of the pool, but of the location of it.

 Brett Lederman ("Brett"), Plaintiff's brother, was an eyewitness to the events leading up to the injury-causing accident. Brett testified that the deep end was lighted. Brett witnessed Lederman diving head first into the deep end, as well as performing forward flips from the diving board. Lederman did not have his glasses on or contacts in during the hour-and-a-half of pool activities. At about midnight, Brett observed from five feet away Lederman's actions immediately prior to the accident: "He started walking down the side of the pool and he said he was going to jump in one last time, and it looked like his foot went off the edge of the pool, and that is when he flipped over and hit the bottom." Brett further clarified the event: Lederman attempted to jump from the middle area of the pool to the "deep end," but "at some point [Lederman] put his left foot down [and] . . . his left foot missed the cement and stepped into air." When asked whether he knew "one way of another if [he] in fact did slip or misstep and fall into the pool as opposed to diving," Lederman replied "I don't believe I did." The left foot continued to fall into the water, and Lederman fell backward and to his left into the pool. His head then impacted with the bottom of the pool.

 As an unfortunate result of the accident, Lederman received catastrophic injuries. He is now quadriplegic, unable to move his legs or arms.

 Lederman submitted an affidavit and deposition transcript of Gene Litwin ("Litwin"), a "swimming pool expert" who has written several publications, including an article entitled "The Duty to Warn: Disclosure Is Not The Only Answer." Interestingly, the first paragraph of the article reads:

 
Joey Smith took a last sip of beer and got up from his chair on the deck of the pool. He walked a few feet to the pool edge, then crouched slightly. He bent forward with his hands outstretched in front and dived in, making a clean and graceful entry into the water. . . . The water was three and a half feet deep. His hands hit the bottom just as the water reached his waist. His arms bent at the elbows as his dive carried his body on down to the bottom. The top of his head struck the bottom and came to an abrupt halt just as his knees entered the water. . . . But the dive wasn't over. His neck was caught in the middle of this aquatic pileup, caught between his head which had halted and his body which continued to plunge towards the bottom. His lower legs were still sticking up out of the water when his neck broke. The C-4 fracture left him paralyzed from the neck down.

 In Litwin's affidavit, he states several opinions, some admissible and some inadmissible. Some of Litwin's opinions were purely legal conclusions. For example, Litwin stated that "on the date of the Lederman accident, the danger confronting him was not open and obvious"; "Pacific . . . had an ongoing duty to update pool owners regarding warnings"; "Pacific . . . is responsible for the unreasonably dangerous condition of that swimming pool because it was lacking in depth markers and warning signs"; and "Pacific . . . breached its ongoing duty to provide information and warning signs about diving safety both from the time the pool was installed right up through the date of Wade Lederman's accident." These legal conclusions are improper and are stricken. The court will disregard the portions of Litwin's affidavit that include impermissible legal conclusion, Starke County Farm Bureau Coop. Ass'n, Inc. v. Interstate Commerce Comm'n, 839 F. Supp. 1329, 1337 n.14 (N.D. Ind. 1993), but will rely upon the remaining portions of the affidavit. See Pfeil v. Rogers, 757 F.2d 850, 861 (7th Cir. 1985) ("Because legal argumentation is an expression of legal opinion and is not a recitation of a 'fact' to which an affiant is competent to testify, legal argument in an affidavit may be disregarded.").

 II.

 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).

 III.

 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). *fn1"

 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 ...

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