Telak v. Maszczenski

McWilliams, J., delivered the opinion of the Court. There was a swimming party at the Maszczenskis’ on 4 July 1962. Some 40 to 50 friends and relatives had been invited to ⁴⁷⁹ celebrate the birthday of Mrs. Maszczenski’s sister, Helen Gajewski. Among the guests were the appellant (Telak), his wife and 7 year old son.

They arrived at the Maszczenski home in Pikesville, Baltimore County, around 1:00 p.m. At about 4:30 p.m. tall, husky, 35 year old Telak mounted the diving board, dove into the pool and struck his head against the bottom. Face down, he floated to the surface, paralyzed and “in terrific pain.” Ever since he has been a quadriplegic, helpless and utterly without hope. On 7 May 19'63 he sued the Maszczenskis, Van Dorn (who sold the pool), and Bacharach (architects and professional engineers).

On 9 February 1966 trial began before Jenifer, J., and a jury, in the Baltimore County Circuit Court. After 9 days of trial the plaintiff concluded his case whereupon all defendants moved for directed verdicts. At this juncture Judge Jenifer fell ill. The parties chose not to wait for his recovery.

They agreed to continue before the same jury and Judge Proctor to whom was read all of the testimony and who read all of the pleadings and examined all of the exhibits. Judge Proctor heard argument on the motions for several days and on 3 March he directed the entry of verdicts in favor of all of the defendants. We agree, regretfully, that his decision was correct. There was a time when swimming pools were appurtenances of the well-to-do.

During the past 10 years, however, private residential pools have become both inexpensive and commonplace. In Baltimore County alone, the evidence reveals, 419 private pools were installed between 1956 and 1959. The Maszczenski pool is a fiberglass shell 35 feet long and 15 feet wide. Its maximum depth is 7 feet below the ground level.

Its 5 preformed sections, each 7 feet long, were manufactured in Florida by Delorich, Inc. They were delivered to Maszczenski (also called Tony) in the late summer of 1959, arriving in a truck bearing a Florida license. Maszczenski was present during the unloading. It was shown that at least one other company, from 1955 to 1961, manufactured and marketed identical pools in at least 4 states, including New York, New Jersey and Connecticut, where they were approved for use in residences and small motels. When Van Dorn began selling the Delorich pools in 1955 the county authorities required the pool to be approved by an ⁴⁸⁰ architect.

Van Dorn engaged Bacharach to do whatever was necessary in this regard. The county engineering authorities, in 1956, approved the drawings developed by Bacharach. Two blocks from the Maszczenski home, a neighbor had installed a Delorich pool. Except that it was 7 feet (one section) shorter it was identical with the Maszczenski pool.

Along with his brother-in-law, Thomas Gajewski, he visited the property, examined the pool and discussed it with his neighbor for several hours. Shortly thereafter he bought the pool from Van Dorn. Gajewski (on behalf of Maszczenski) applied for the required building permit, submitting with his application copies of Bacharach drawings which had been approved by county authorities in 1956. The zoning, engineering and health officials approved the application (including the Bacharach drawings), and the permit was issued on 5 August 1959.

Maszczenski employed Gajewski to supervise the installation of the pool. Gajewski was a maintenance man at the Bethlehem Steel plant. He could read blueprints and he had built 3 or 4 houses, including his own. When the excavation was finished Gajewski glued the 5 sections together, embedded the shell in the ground and filled it with water.

By the end of the year all of the work was finished except for the laying of the tile walkway around the edge of the pool. This was accomplished in the summer of 1960 with the help of Telak who knew “how to lay tile” whereas Gajewski did not. They were close friends, “just like brothers.” Gajewski explained to Telak how he had put it all together. Since Delorich did not provide a diving board with the pool, Gajewski procured one from another source and installed it for Maszczenski.

Maszczenski’s maintenance of his pool was such that it “was crystal clear — at all times.” “It was very clear” on 4 July 1962. The pool had been used by Maszczenski’s 4 daughters and others all during the .spring, summer and early fall of 1960 and 1961, and during spring and early summer of 1962. Judge Jenifer refused to let Maszczenski answer questions as to whether any one had ever been injured in the pool but his brother Chester, who works for him and who used the pool from time to time, was allowed to say that, prior to Telak’s injury, he had no knowledge of any injuries to anyone using the ⁴⁸¹ pool. An expert witness produced by Telak admitted that no one, including counsel for Telak, had informed him that, between 1956 and 1961, 18 identical pools with similar diving boards had been installed in Baltimore County and adjoining counties, and “that no word of any injuries in any of those pools” had ever come to the dealer who sold them.

The appellees stress Telak’s admission that no pool of the type here involved has ever been proven to be “dangerous or hazardous.” Chester testified that once in July 1961 he dove from the diving board and as he “came out of * * * [his] dive and took a stroke, * * * [he] brushed the ledge of the pool, the upgrade of the pool” with his forehead. He was “not in any way injured.” There were no “marks of any kind on” him. He stayed in the water and “kept on fooling around” with his brother, Michael. Eater on he “casually mentioned” to Tony that he “had touched bottom.” Telak, in his original declaration, described himself as “an expert swimmer and athletic in build.” When he was a “kid” he dove from the piers into Baltimore harbor.

As he grew older he continued to swim and dive in pools in Baltimore and at Air Force bases in this country and abroad. Additional experience was gained over the years in the ocean at Myrtle Beach, South Carolina, Ocean City, Maryland, Wildwood and Atlantic City, New Jersey and in the Chesapeake Bay and the Santee and Columbia rivers in South Carolina. He swam frequently from the pier of a neighbor at Rock Creek (in Anne Arundel County) where the water varied in depth from 6 inches to 12 feet and where one cannot see the bottom except in shallow water. Telak stood near the pool and watched his son during much of the time the boy was in the water.

It was close to 4:30 p.m. when he and Gajewski put on bathing trunks and walked to the shallow end of the pool where the water was from 3 to 4 feet deep. Telak said he had never before been in the pool. After looking to see if there were any children in the way he “just shoved off” in a “shallow dive” toward the deep end of the pool. When he stood up he was in about 4 feet of water.

He swam over to where his son was standing, spoke to him, ⁴⁸² went to the ladder and climbed out of the pool. The ladder was about midway on one side where the water was waist deep. He walked to the diving board, intending, he said, to dive so that he could go the length of the pool under water and surface near his son at the shallow end. As he stood on the end of the board he could see Gajewski who was standing on the bottom in about 4 feet of water and who was no more than 15 feet directly in front of him.

He “just shoved off in a normal shallow dive.” He was unable to say precisely where on the bottom he struck his head but he placed on the drawing an “X” mark at what he thought was the spot. It would not be amiss, perhaps, to add that Van Dorn is owned by Wayne Nield and Frances, his wife, and that, as a sideline, they began to sell Delorich pools sometime in 1955. Neither of them has any technical training or experience and their knowledge of the design and manufacture of the pools appears to have been limited to the information contained in the Delorich literature, all of which was made available to the Bacharachs when they were employed by the Nields to prepare drawings for submission to the county authorities. We shall deal with Telak’s assignments of error in the order in which they appear in his brief and in so doing we shall state whatever additional facts may be necessary.

We are required, of course, to consider the evidence and all logical and reasonable inferences deducible therefrom in a light most favorable to Telak. I. Although Judge Proctor found that Telak was a “guest” of the Maszczenskis’ he restricted his legal status to that of a “bare licensee” to whom is owed only the duty of abstaining from intentional injury. Telak, charging error, claims he is entitled to the status of “social guest” to whom, he insists, is owed a duty just short of the duty owed to an invitee or business visitor. Since the trial below we have considered, in two cases, what status is to be accorded the social guest.

Paquin v. McGinnis, 246 Md. 569 , 229 A. 2d 86 (1967) and Stevens v. Dovre, 248 Md. 15 , 234 A. 2d 596 (1967). In Stevens , Judge Marbury, who also wrote the opinion in Paquin , said, for the Court: ⁴⁸³ “The duty of a home owner to social guests was first decided by this Court in the recent case of Paquin v. McGinnis, 246 Md. 569 , 229 A. 2d 86 , where we stated the conditions imposing liability on a host as follows: * * (1) the host knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such guests, and should expect that they will not discover or realize the danger, and (2) the host fails to exercise reasonable care to make the condition safe, or to warn the guests of the condition and the risk involved, and (3) the guests do not know or have reason to know of the condition and the risk involved.’ We further said that * * the guest is expected to take the premises as the host uses them, and he may not expect that they will be prepared for his reception or that precautions will be taken for his safety in any manner in which the host did not prepare or take precautions for his own safety or the safety of the members of his family.’ (Citing authorities.) “We think that for the purpose of determining the duty owed to a social guest that he stands in the position of a licensee. While in Paquin we did not specifically state that a social guest was a licensee the standards that were pronounced are those that would be applicable to licensees under the established case law of this state.” Id. at 18. It should be observed that in equating “licensee” with “social guest,” we intended “licensee” to mean a “licensee by invitation” and not a “bare licensee” to whom an owner owes a duty no greater than the duty he owes to a trespasser.

Carroll v. Spencer, 204 Md. 387, 393 , 104 A. 2d 628 (1954). Applying, as we are bound to do, the criteria announced in Paquin and Stevens , Judge Proctor’s direction of a verdict for the Maszczenskis must, nevertheless, be upheld. The only evidence in the record which might be said to provide support for the contention that Maszczenski knew or had reason to know of a condition involving an unreasonable risk of harm to his ⁴⁸⁴ guests is the testimony of Chester Maszczenski concerning the incident in 1961 when he brushed “the upgrade of the pool” with his forehead as he came out of a dive “and took a stroke.” He said he “casually mentioned” to Tony that he had “touched bottom.” It cannot be supposed, in the circumstances, that this trivial remark informed Maszczenski, or even suggested to him, that his guests would be exposed to an unreasonable risk of harm if they dived into the pool upon which he had lavished so much time, attention and expense. After all, the pool had been in constant use for 2 full seasons and a good part of the third season without injury to anyone.

Maszczenski said he was “not a great swimmer,” that he had been in the pool only once or twice and that he had never dived from the diving board. On several occasions he drained the pool and got down into it so he could clean it but it can hardly be said that he thereby acquired any information or knowledge he did not already have. Telak seems to attach much importance to the fact that the maximum depth of the pool was only 7 feet whereas the American Public Health Association, Inc. (1957 pamphlet) 1 recommends “a minimum safe-water depth of 8 feet for diving.” In the case of diving platforms elevated 9 to 10 feet above the water a depth of 10 feet is recommended. As Judge Proctor said, there is nothing in the record to show that Maszczenski knew or should have known of these recommendations.

In any event, the fact that the pool had a maximum depth of 7 feet is not especially significant because the water is only 5 feet deep at the spot where Telak thought he struck his head. Indeed, his first dive, from which he emerged unharmed, was into water which was but 3 to 4 feet deep. Moreover, during the few hours just before he “shoved off in [the] normal shallow dive” resulting in his injury he had acquired personal knowledge of the fact that not more than 15 feet out from the diving board the water was no more than 4 to 4J4 feet deep. ⁴⁸⁵ II. Judge Proctor set forth in considerable detail his reasons for directing a verdict in favor of Van Dorn.

We shall discuss, in the order in which Judge Proctor dealt with them, the authorities cited by Telak in support of his assignment of error. Restatement, Torts, 2d § 388, is as follows: “Chattel Known to be Dangerous for Intended Use “One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” “ ‘Reason to knots/ means that the actor has knowledge of facts from which a reasonable man of ordinary intelligence or one of the superior intelligence of the actor would either infer the existence of the fact in question or would regard its existence as so highly probable that his conduct would be predicated upon the assumption that the fact did exist. ‘Should knots/ indicates that the actor is under a duty to another to use reasonable diligence to ascertain the existence or non-existence of the fact in question and that he would ascertain the existence thereof in the proper performance of that duty.” (Emphasis supplied.) Restatement, Torts, 2d § 12, Comment a. ⁴⁸⁶ We agree with Judge Proctor, in light of the definitions above set forth, that there is no evidence in the record “that Van Dorn knew that the swimming pool would be dangerous for the intended use,” and that even if it is assumed that the pool was dangerous for its intended use and that Van Dorn knew it, this was readily discoverable by Telak. Telak next cited § 399 which provides that “a seller of a chattel, manufactured by a third person, who sells it knowing that it is, or is likely to be, dangerous is subject to the liability as stated in §§ 388-390.” We had occasion to consider §§ 388 and 399 in Woolley v. Uebelhor, 239 Md. 318, 325 , 211 A. 2d 302 (1965). Judge Hammond (now Chief Judge) said, for the Court: “We find no error in the court’s directing a verdict for Chrysler [Corporation] and Banning [the dealer].

To make Chrysler liable to a user of the highway for a sudden and unanticipated failure of the brakes on the Woolley car, it must have known, or, from facts known to it, realized, that the car was, or was likely to be, dangerous in operation. Restatement, Torts Secs. 388 and 395; Babylon v. Scruton, 215 Md. 299 ; Twombley v. Puller Brush Co., 221 Md. 476 . * * *. “The same considerations applied to Banning and justified its dismissal from the case. A vendor of a chattel which another has manufactured who sells it knowing that it is or is likely to be dangerous has the liability of a manufacturer if the dangerous condition causes the chattel to cause harm, Restatement, Torts Sec. 399, and such a vendor, like a manufacturer, is subject to liability if, although ignorant of the dangerous character or condition, he could have by the exercise of reasonable care discovered it by utilizing the peculiar opportunity and competence which he has or should have as a dealer in such chattels. Restatement, Torts Sec. 402.

The evidence discloses that Banning had no actual knowledge of any defect in the Woolley car until after the accident and offers no basis for a finding that it did not at all times exercise reasonable care in respect of the braking system.” ⁴⁸⁷ We think it is clear, as did Judge Proctor, that § 399 does not subject Van Dorn to liability. Sec. 400 subjects “[o]ne who puts out as his own product a chattel manufactured by another” to the same liability “as though he were its manufacturer.” In comment d (under § 400), it is said “where it is clear that the actor’s only connection with the chattel is that of a distributor of it (for example, as a wholesaler or retail seller), he does not put it out as his own product and the rule stated in this section is inapplicable.” The evidence is unmistakably clear that the fiberglass 15' x 35' “Algiers” pool sold to Maszczenski was manufactured by Delorich, Inc. of North Miami, Florida. It will be recalled that the pool was delivered to the Maszczenski residence in a truck with Florida tags and that there were other pools still to be delivered on the truck. We agree that § 400 is not applicable to Van Dorn.

For much the same reasons Judge Proctor concluded §§ 401 and 402 2 to be inapplicable, a conclusion with which we also agree. Finally we come to the mainstay of Telak’s argument. We are urged to enlist in what has been described (erroneously says Van Dorn) as “the most rapid and altogether spectacular overturn of an established rule in the entire law of torts.” Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 ⁴⁸⁸ Minn. L. R. 791, 793-94 (1966).

We refer, of course, to the doctrine of strict liability, irrespective of fault, as it is set forth in § 402 A of the Restatement : “Special Liability of Seller of Product for Physical Harm to User or Consumer “ (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected'to and does reach the user or consumer without substantial change in the condition in which it is sold. “(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” The American Law Institute, by the inclusion of 402 A in the Restatement, has provoked violent and highly articulate dissent and there appears to be developing a movement to delete it from the Restatement. 3 Whatever we may be persuaded to do in the future in this regard, we find it unnecessary, at this time, to espouse the cause of strict liability. Judge Proctor found that § 402 A did “not apply to th [is] transaction.” Assuming, for the sake of argument, that § 402 A is a