Summary
In Hensley v Muskin Corp, 65 Mich. App. 662; 238 N.W.2d 362 (1975), the Court of Appeals affirmed summary judgments on behalf of a pool manufacturer, retailer, and owner in a case in which the plaintiff dove off of a seven-foot garage roof into a four-foot deep swimming pool and complained that the defendants had a duty to warn him not to dive.
Summary of this case from Glittenberg v. Doughboy Recreational Industries, Inc.Opinion
Docket No. 22899.
Decided August 18, 1975. Leave to appeal denied, 395 Mich. 776.
Appeal from Genesee, John W. Baker, J. Submitted June 6, 1975, at Lansing. (Docket No. 22899.) Decided August 18, 1975. Leave to appeal denied, 395 Mich. 776.
Complaint by George L. and Norma L. Hensley against The Muskin Corporation, Federal's, Inc., and Glenn Smith, for damages suffered when plaintiff George L. Hensley dove into a shallow swimming pool. Summary judgment for defendants. Plaintiffs appeal. Affirmed.
Benton, Hicks, Beltz, Behm Nickola, for plaintiffs.
Plunkett, Cooney, Rutt, Watters, Stanczyk Pedersen (by John A. DeMoss and Charles A. Huckabay), for defendant The Muskin Corporation.
Robert P. Keil, for defendant Federal's, Inc.
Milliken Magee, for defendant Smith.
Before: BASHARA, P.J., and J.H. GILLIS and M.F. CAVANAGH, JJ.
Plaintiff, George Hensley, was permanently injured in a tragic accident. On June 20, 1971, he dove off a 7-foot high garage into a 4-foot deep swimming pool. The pool was owned by plaintiff's brother-in-law, Glenn Smith, and was located in Smith's backyard. Hensley sued the pool manufacturer, The Muskin Corporation, the retail seller, Federal's, Inc., and his brother-in-law, alleging breach of various warranties and negligence, as well as a theory of strict liability.
In essence, plaintiff alleges that defendants were under a duty to warn him that he should not dive into the pool. The record reveals that plaintiff was a 28-year-old person with some swimming experience and that he helped assemble the pool and knew full well that it was only 4 feet deep. Under these circumstances we feel that the trial judge correctly granted summary judgment for all defendants. Neither the manufacturer, the seller, nor the brother-in-law were under any duty to warn this plaintiff of an obviously dangerous use of an otherwise nondangerous product. Fisher v Johnson Milk Co, 383 Mich. 158; 174 N.W.2d 752 (1970), Colosimo v May Department Co, 466 F.2d 1234 (CA 3, 1972).
Affirmed. Costs to defendants.