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 Doherty & 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 fairly common.
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 warn.”
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 signs.
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 parameters.
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 received nothing.
“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.”