A recent Illinois diving lawsuit has resulted
in an $8.1 million judgment, an amount that’s been called the
highest award for a pool-related case in the state. Yet the facts
may not spell a clear victory for the plaintiff.
“I would venture to say that, for a quadriplegic case in
Cook County, Ill., the amount of the verdict was strikingly
low,” said Michael Progar, attorney for Black Oak Pool &
Supply, the firm that built the vessel. “I think normally you
would expect … a verdict in the range of probably $20 million
to $30 million,” added Progar, a partner in Chicago-based
& Progar, LLC .
The award was subsequently cut in half when the plaintiff was
found to be 50 percent at fault for the accident.
In July 2001, Don Duffy closed a bar at 4 a.m., and went to a
friend’s house in suburban Chicago. The then-22-year-old
Irish immigrant dove into what he thought was the deep end of his
friend’s pool. However, the vessel was shallow at both ends
and deep in the middle. Duffy hit his head, leaving him a
quadriplegic with some use of his arms.
Duffy sued the homeowner, along with Black Oak Pool & Supply
and the vinyl-liner manufacturer, Latham
Plastics . He was seeking $31 million to $45 million. The
homeowners settled out of court.
In court proceedings, Duffy said he had reason to believe the
water was deep. Before diving, he had spent time in the other end
of the pool and felt the floor slope downward. In addition, he
noticed that one side had stairs and railings, while the other had
a ladder normally associated with a pool’s deep end.
“The reasonable conclusion would be that the other [end]
was deep,” explained the plaintiff’s attorney Martin
Healy Jr., a founding partner in The Healy Law
Firm , based in Chicago.
“Under NSPI, there is no requirement for signage, but
where you have … what we considered to be an almost deceptive
type of pool, there should have been something that alerted the
individual … that it’s not the typical shallow end and
deep end,” he continued.
The defendants argued that play pools and sports pools are
Duffy admitted to having three to four rum and Cokes sometime
before swimming. “One argument was that the plaintiff was
intoxicated,” Progar said of his strategy. “But the
primary argument was that the plaintiff admittedly did not know the
depth of the water into which he was diving. In Illinois, many
cases have been ruled upon by the appellate court in which they
held that the danger of diving into water of unknown depth is an
open and obvious danger of which there is no duty to
Progar said Black Oak Pool & Supply had provided the owners
of the relatively new pool with signage and discussed the
importance of diving safety, but the homeowners did not post the
But Duffy’s attorneys argued a straight product liability
case, classifying Black Oak as a manufacturer such as Latham. It
was the builder’s job to post the signs, Healy said, and
Latham should have printed warnings on the liner, rather than
providing stickers and literature.
The product liability strategy meant the plaintiff’s
behavior factored less into the case, though evidence of
intoxication was allowed.
In the end, Duffy and Black Oak were each found to be 50 percent
at fault, and Latham was found fault-free. How much the plaintiff
will receive is not actually known. Both defendants signed
confidential high/low agreements before the final verdict. This is
a type of settlement that’s contingent on a jury’s
award of damages. It sets a minimum amount that the defendant will
pay if the award is below that amount and a maximum figure if the
award is above that amount.
This meant Latham had to pay, even though it was found not at
fault. And the builder may have paid a different amount from the
jury award if the $4.05 million judgment fell outside the high/low
Looking back at the outcome, attorneys for both defendants
questioned how much sympathy came into play, noting that if Duffy
had been found more than 50 percent at fault, he would have
“When the jury sees a man in a wheelchair and a technicality
in the law could produce zero damages, sympathy often will allow
him to get something,” said Latham’s attorney John
Huston, a partner with Tressler, LLP , in Chicago. “The jury will work
backwards to some extent to get to their verdict.”