Donacik v. Pool Mart, Inc.

2 Citing cases

  1. Vigil v. William Franklin

    81 P.3d 1084 (Colo. App. 2004)   Cited 1 times
    Referring to ยง 13-21-115(d)

    Although Colorado appellate courts have not specifically addressed whether the danger of diving into an aboveground swimming pool is open and obvious, the majority of other jurisdictions that have addressed the issue have concluded as a matter of law that it is an open and obvious danger. See Hemphill v. Johnson, 230 Ga. App. 478, 481, 497 S.E.2d 16, 19 (1998) (affirming summary judgment for landowner because "the existence and condition of [the swimming] pool was open and obvious");Barham v. Knickrehm, 277 Ill. App.3d 1034, 1038, 661 N.E.2d 1166, 1169 (1996) ("A homeowner's above-ground swimming pool presents an open and obvious danger as a matter of law."); O'Sullivan v. Shaw, 431 Mass. 201, 207, 726 N.E.2d 956, 957 (Mass. 2000) ("in granting summary judgment for the defendants, [the trial court] correctly concluded that the open and obvious danger rule obviated any duty to warn the plaintiff not to dive head first into the shallow end of the defendants' swimming pool");Donacik v. Pool Mart, Inc., 270 A.D.2d 921, 922, 705 N.Y.S.2d 784, 786 (2000) (recognizing the "obvious danger of diving into a four-foot above-ground pool"); Long v. Manzo, 452 Pa. Super. 451, 461-62, 682 A.2d 370, 375 (1996) (affirming summary judgment in favor of landowner because of the obvious danger of diving headfirst into a four-foot high pool); Griebler v. Doughboy Recreational, Inc., 160 Wis.2d 547, 559-60, 466 N.W.2d 897, 902 (1991) (affirming summary judgment in favor of landowner because plaintiff confronted an open and obvious danger as a matter of law when he dove headfirst into water of unknown depth). Some courts have held otherwise.

  2. Spencer v. Lansing Cent. Sch. Dist.

    2014 N.Y. Slip Op. 33834 (N.Y. Sup. Ct. 2014)

    The Lattice Ladder was delivered in April 2000, and plaintiff was injured more than seven years later, in October 2007, well beyond expiration of the statute of limitations. Plaintiff's argument that the statute of limitations was tolled, pursuant to CPLR 208, as a consequence of plaintiff's infancy, is unavailing under the facts present in this case, namely, that plaintiff's cause of action had yet to accrue when the four-year statute of limitations expired (see Ridley v Hirsch Corp., 57 AD2d 234 [1977]; see also Donacik v Pool Mart, 270 AD2d 921 [2000], citing Ridley). Thus, LSI and Parkitects are entitled to summary judgment dismissing plaintiff's breach of warranty claims.