RECORD SWIMMING POOL ACCIDENT VERDICT REACHED IN PRODUCTS LIABILITY CASE IN FAVOR OF AN INCOMPLETE QUADRIPLEGIC WHO DOVE INTO A RESIDENTIAL SWIMMING POOL
A Cook County jury entered an $8.1 million verdict in favor of an Irish immigrant carpenter, 22 years old at the time, who dove into a swimming pool and was rendered an incomplete quadriplegic. The verdict was reduced by 50% to $4,051,200, for the Plaintiff, Don Duffy’s, assumption of risk. The verdict is believed to be the highest pool-related accident verdict in Illinois.
The case had previously been dismissed on defendants’ motion for summary judgment, based on the alleged open and obvious nature of the hazard of the pool. However, the appellate court, in a 2-1 opinion, reversed summary judgment order finding that the open and obvious hazard is not a per se bar to recovery. Duffy v. Togher, et. al., 382 Ill.App.3d 1 (1st Dist. 2008). The Supreme Court denied Defendants’ Petition for Leave to Appeal.
After closing a 4:00 a.m. tavern, Duffy and a number of acquaintances were invited by a female friend to a house in Palos Hills with an in-ground pool. He had never been to the house before and was unfamiliar with the pool. The pool had two shallow ends and a deep middle. Duffy assumed the pool was a typical shallow end/deep end configuration.
At about 4:45 a.m. Duffy initially went into the pool at the south shallow end which had steps and railings into the pool. Walking around the south end, he felt the slope of the bottom of the pool going downwards toward the north end and saw what he thought to be a deep end ladder at the other end. He got out of the south end of the pool, and walked 2/3 of the way towards the north end. He then dove toward the north end which he believed to be the deep end, but which actually had about 3 ½ feet of water.
Duffy admitted that he didn’t know the depth of the pool at the north end, didn’t ask anyone how deep the pool was or swim or walk the length of the pool to determine the depth prior to diving. He admitted there was no diving board or depth marker indicating the depth of the north end of the pool. But, there were also no signs saying he couldn’t dive.
Duffy also admitted that he had 2-3, 16 oz rum and cokes, but denied that he was intoxicated. Defendants produced an expert, Dr. Jerold Leiken, a M.D./toxicologist, who opined that Plaintiff was impaired and intoxicated. Defendants argued that Duffy’s assumed the risk of diving into unknown depths of water while intoxicated, and that assumption of risk was the sole proximate cause of his injury.
Defendants also argued that the pool was a safe and popular “sports pool” design. They finally argued that the pool was not a product subject to strict liability, but rather an improvement to real estate subject to negligence principles only.
The trial proceeded only on a strict products liability claim against the installer of the pool, Black Oak Pool & Supply, and the manufacturer of the pool liner, Latham Plastics. The trial before Judge Susan Zwick lasted almost four weeks. The jury found in favor of Duffy against Black Oak, but found in favor of Latham Plastics, the liner manufacturer.
Duffy was represented by Martin Healy, Jr., Jack Cannon and Dennis M. Lynch of The Healy Law Firm. Latham Plastics was represented by John Huston, Andrew Purcell and Shannon Dunne of Tressler, LLP. Black Oak Pool & Supply was represented by Michael Progar of Doherty & Progar and John Piegore of Sanchez, Daniels & Hoffman.
A confidential high-low agreement with Black Oak was reached during trial and a confidential high-low agreement was reached with Latham after closing arguments.
For more information contact:
Martin Healy, Jr.
312-977-0100
