Jennifer Sheehan v. The North American Marketing C, et al

Filing 920100630

Opinion

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var WPFootnote1 = 'Of the District of Massachusetts, sitting by designation.\
'

var WPFootnote2 = ' Delair manufactured the pool wall and frame, but not the\
ladder, liner, filter unit, or skimmer. \
'

var WPFootnote3 = ' Sheehan was a reasonably experienced swimmer who had swum\
before in above-ground pools.\
'

var WPFootnote4 = ' Sheehan testified that she did not remember any conversation\
after the first dive.\
'

var WPFootnote5 = ' This opinion was based primarily on the following testimony\
by Sheehan:\
\
Q: Now the second time you went in the water\
you were preparing to do the exact same thing?\
 \
A: I was going to prepare. I just didn’t get\
that far. I fell before I got to.\
. . .\
A: I know I lost my balance on that little\
decking and it propelled me into the pool.\
. . .\
A: It wasn’t springy, but it wasn’t sturdy\
either. It was kind of loose.\
'

var WPFootnote6 = ' At his deposition, Ebro testified that he had to "fill in the\
blanks" when reaching his opinion because Sheehan did not recall\
how she entered the pool. \
'

var WPFootnote7 = ' The district court also concluded that plaintiff had made no\
factual allegations that she had relied on any express warranty\
made by defendants, and in any event had not addressed the issue of\
express warranty in her brief in opposition to summary judgment,\
thereby waiving any such claims. Sheehan does not challenge that\
conclusion on appeal. \
'

var WPFootnote8 = ' The term "intended use" encompasses the reasonably\
foreseeable consequences of normal use, even if those uses were not\
actually intended by the manufacturer or seller. See Turcotte v.\
Ford Motor Co., 494 F.2d 173, 182 (1st Cir. 1974); Ritter v.\
Narragansett Elec. Co., 283 A.2d 255, 260 (R.I. 1971). A\
reasonable jury could find that injuries sustained from diving from\
the edge of an above-ground swimming pool are risks that are\
reasonably foreseeable to manufacturers and sellers of such pools. \
NAMCO and Delair do not argue otherwise.\
'

var WPFootnote9 = ' Sheehan asserted claims for strict liability, negligence,\
breach of implied warranties of merchantability and fitness of\
purpose, and breach of express warranty. For the reasons stated\
above, Sheehan is deemed to have abandoned her express warranty\
claim for failure to address the issue in the district court or on\
appeal. She has not argued in this appeal that her implied\
warranty claims should be considered separately from her strict\
liability and negligence claims, or that the doctrine of assumption\
of risk should not also apply to those claims. We assume that all\
claims should be analyzed together.\
'

var WPFootnote10 = ' The theories are apparently inconsistent. Anything that made\
the coping broader or more stable (and therefore safer to stand on)\
would also presumably make it a more tempting platform from which\
to dive. Anything that made the coping more difficult to stand on\
(such as a rounded cap) would make it more likely that a person\
standing on it would lose her balance.\
'

var WPFootnote11 = ' Proximate cause includes the concepts of "factual," or "but-for," causation and reasonable foreseeability, sometimes referred\
to as "legal" causation. See English v. Green, 787 A.2d 1146, 1151\
(R.I. 2001). Only factual causation is disputed here.\
'

var WPFootnote12 = ' Rhode Island has a "pure" comparative negligence system,\
under which a plaintiff may recover even if she is 99% at fault. \
See R.I. Gen. Laws § 9-20-4 (2009); Austin v. Lincoln Equip.\
Assoc., 888 F.2d 934, 935 (1st Cir. 1989). Under Rhode Island law,\
the common-law defense of assumption of risk survives under the\
comparative negligence system. Fiske v. MacGregor, Div. of\
Brunswick, 464 A.2d 719, 726-27 (R.I. 1983); Drew v. Wall, 495 A.2d\
229, 231 (R.I. 1985). \
'

var WPFootnote13 = ' The weight of authority from other jurisdictions is to the\
same effect. See, e.g., Neff v. Coleco Indus., Inc., 760 F. Supp.\
864, 868 (D. Kan. 1991) (applying Kansas law) (manufacturer had no\
duty to warn of "patent, open and obvious risk of diving head first\
into shallow water" of above-ground pool); O’Sullivan v. Shaw, 726\
N.E.2d 951, 956-57 (Mass. 2000) (landowner owed no duty to warn of\
"open and obvious danger" of diving head-first into shallow in-ground swimming pool) (collecting cases); Glittenberg v. Doughboy\
Recreational Indus., 491 N.W.2d 208, 215 (Mich. 1992) (manufacturer\
owed no duty to warn of obvious danger of diving into above-ground\
pool). But see Corbin v. Coleco Indus., Inc., 748 F.2d 411, 417-18\
(7th Cir. 1984) (applying Indiana law) (danger of serious spinal\
injury from diving into shallow water of above-ground pool not open\
and obvious as matter of law).\
'

var WPFootnote14 = ' It would eviscerate, if not eliminate, the defense of\
assumption of the risk if a plaintiff could defeat it by\
testifying, in substance, "I knew that the activity was dangerous,\
and that it bore a risk of serious injury, but I thought I wouldn’t\
get hurt if I were careful." A person who drag-races a car at 120\
miles per hour no doubt subjectively believes that he will not lose\
control of it; but he nonetheless knowingly assumes the risk that\
such an event may in fact happen.\
'

var WPFootnote15 = ' In support of her position, Sheehan cites to Miller v. R.I.\
Hosp., 625 A.2d 778 (R.I. 1993), an easily distinguished medical\
consent case. In Miller, the defendant hospital provided medical\
treatment to an intoxicated trauma victim over his objection; the\
court held that whether the patient\'s intoxication affected his\
capacity to make medical decisions was a question of fact for the\
jury. Id. at 786. Of course, the doctor in such a situation--faced with the unpleasant alternatives of committing malpractice\
for failing to supply care and committing assault in doing so over\
objection--is entitled to have the extent of intoxication put to a\
jury. It is quite a different issue whether one who voluntarily\
intoxicates himself can use that as an excuse for ignoring risks\
that would be obvious and self-evident to a sober individual.\
'

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