The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
On July 4, 1982 Geoffrey and Linda Smith and their four-year-old son Adam were at a party at the home of their friends the Beijins. Adam fell into the Beijins' above-ground swimming pool while alone and was found unconscious in the pool. He never regained consciousness and died almost two years later.
The Smiths seek damages for Adam's injury and death. In their complaint against the manufacturer of the pool, Hub Manufacturing Co., and against the manufacturer of the ladder attached to the pool, Lincoln Manufacturing Co., the Smiths argue that the pool and ladder were defectively designed because they did not adequately protect children. The Smiths also argue that Hub and Lincoln breached a duty to warn against the dangers of the pool and ladder for children. Hub and Lincoln assert in counterclaims that the Smiths are liable for contribution because they failed to prevent Adam from gaining access to the pool. Hub and Lincoln also seek contribution from the Beijins as third-party defendants. The Beijins in turn seek contribution from fourth-party defendant Pacific Pools of Albany, Inc., who sold them the pool and the ladder.
II. MOTIONS BEFORE THE COURT
Hub, Lincoln, and Pacific move for summary judgment on the issues of defective design and failure to warn.
Lincoln moves for summary judgment on the ground that the Smiths cannot establish that Adam used the Lincoln ladder to climb up to the pool, rather than another ladder that stood next to the pool.
The Smiths move for dismissal or summary judgment on the counterclaims by Hub and Lincoln.
In the event that summary judgment is denied and a trial is ordered, Hub, Lincoln, and Pacific move for a limitation of the issues of damages to be tried.
The plaintiffs argue that the pool and the ladder were defectively designed because they could have more effectively protected against access by unaccompanied children. Hub and Lincoln counter that the pool and the ladder were designed according to the state of the art of the pool and pool ladder industries.
The standard in a design defect case is whether, "if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner." Voss v. Black & Decker Manufacturing, 59 N.Y.2d 102, 450 N.E. 2d 204, 463 N.Y.S.2d 398, 402 (1983). The task of "balancing the product's risks against its utility and cost" belongs to the jury. Id. "The plaintiff, of course, is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner." Id.
In the present case, the plaintiffs' expert witness has testified that other swimming pools have ladders that are more effective in preventing pool accidents. This is enough evidence to warrant a trial on the facts. Whether Hub and Lincoln could have feasibly employed a safer design is a question for the jury.
A product can be dangerous even if it is not defectively designed. See Kerr v. Koemm, 557 F. Supp. 283, 285 (S.D.N.Y. 1983). Under New York law, if the supplier of a product should know that the product is dangerous when put to normal use, the supplier has a duty to warn users of the danger. Billiar v. Minnesota Mining & Manufacturing Co., 623 F.2d 240, 243 (2d Cir. 1980). But there is no duty to warn if the plaintiff knows of the danger or if the danger is well known and should be obvious to anyone. Id. ; Jiminez v. Dreis & Krump Manufacturing Co., 736 F.2d 51, 55 (2d Cir. 1984); Kerr, 557 F. Supp. at 287; Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 376 N.E.2d 920, 405 N.Y.S.2d 448, 449 (1978). In such situations a warning would be superfluous. Moreover, the elements of a tort claim would not be satisfied in such situations because no plaintiff could establish that the failure to warn caused harm. Whether the danger of a product is obvious is a question for the court. Kerr, 557 F. Supp. at 287.
The danger of swimming pools to small children is obvious and well known. Everyone should know that an accident like the one in this case is liable to happen if a child is left alone near a pool for even a short time. If some pools have ladders that prevent access by small children, such ladders are uncommon enough that parents should assume that ...