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Kelsey v. Muskin Inc.

decided: May 31, 1988.

DONALD KELSEY, DAVID KELSEY, AND KATHY KELSEY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS-CROSS-APPELLEES
v.
MUSKIN INCORPORATED, A CORPORATION, MUSKIN CORPORATION, A CORPORATION, U.S. LEISURE, INCORPORATED, A CORPORATION, AMCORD INCORPORATED, A CORPORATION; AMERICAN CEMENT COMPANY, A CORPORATION; CERTAIN OFFICERS AND DIRECTORS OF MUSKIN, INDIVIDUALLY; CBS URBAN RENEWAL CORPORATION, A CORPORATION; IDEAL TOY CORPORATION, A CORPORATION; STERLING UNION CORPORATION, A CORPORATION; U.S. FIBER & PLASTICS COMPANY, A CORPORATION; CERTAIN OFFICERS AND DIRECTORS OF THE CBS URBAN RENEWAL CORPORATION, INDIVIDUALLY; NATIONAL SPA AND POOL INSTITUTE, A CORPORATION; WILLIAM LEROY JOHNSON D/B/A JOHNSON POOL COMPANY, INDIVIDUALLY; IMPERIAL POOLS, A CORPORATION; SAM HART, INDIVIDUALLY; COLECO INDUSTRIES, INC., A CORPORATION; DOUGHBOY RECREATIONAL, A CORPORATION; ESTHER WILLIAMS/JOHNNY WEISMULLER POOLS, A CORPORATION; BILNOR POOLS, A CORPORATION; AND DOES 1-20, INCLUSIVE, DEFENDANTS-APPELLEES, DONALD HART (INCORRECTLY SUED AS "SAM HART"), INDIVIDUALLY AND DOUGHBOY RECREATIONAL, A CORPORATION, DEFENDANTS-CROSS-APPELLANTS



Appeal and cross-appeals from a judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, dismissing claim against manufacturer of above-ground swimming pool, and others, under Consumer Product Safety Act, 15 U.S.C. § 2051 et seq., and state law, for injuries resulting from dive into pool. Affirmed.

Feinberg, Chief Judge, Kearse and Friedman*fn*, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge:

Plaintiffs Donald Kelsey and his parents, David Kelsey and Kathy Kelsey, appeal from a final judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, dismissing their complaint under the Consumer Product Safety Act ("CPSA" or the "Act"), 15 U.S.C. § 2051 et seq. (1982), and state law, seeking damages for injuries suffered by Donald Kelsey ("Kelsey") upon his dive into an above-ground swimming pool. The defendants are the National Spa and Pool Institute, a trade association; 15 manufacturers and suppliers of above-ground swimming pools, together with certain unnamed officers and directors of the corporate defendants (the trade association, manufacturers, suppliers, and their officials collectively referred to as the "industry defendants"); and Donald Hart ("Hart"), owner of the pool in which Kelsey was injured. The district court granted the industry defendants' motion for summary judgment dismissing the complaint against them on the ground that Kelsey's own conduct was, as a matter of law, the superseding cause of his injuries. The court dismissed the complaint against Hart for lack of subject matter jurisdiction. On appeal, plaintiffs contend principally that the court erred in granting summary judgment rather than allowing the case to proceed to trial. Defendant Doughboy Recreational ("Doughboy") cross-appeals, urging that the CPSA does not provide a private right of action and that the court should thus have dismissed the action against it for lack of subject matter jurisdiction. Hart cross-appeals, urging that the court should have granted him judgment on the merits instead of dismissing for lack of subject matter jurisdiction. For the reasons below, we affirm the judgment of the district court.

I. BACKGROUND

A. The Events

The following facts do not appear to be in dispute. At about 2 p.m. on June 23, 1984, Kelsey, then 21 years old, went to the Hart home with two friends, remaining there until his friend Richard Hart ("Richard"), Donald Hart's son, returned from work. At about 5 p.m., all four went to a bluegrass concert, returning after 7 p.m., whereupon Kelsey and Richard went swimming in the Harts' above-ground pool. Kelsey was a good swimmer and diver and used to do swan dives off a bridge into the Oswego River, a distance of about eight feet.

The pool, at the rear of the Hart house, was about four feet deep and was surrounded by a wooden deck about one-and-one-half feet wide; the pool deck was surrounded by a chain link fence about two-and-one-half feet high. The rear of the Hart house had a deck that was surrounded by a railing. The pool was laterally about five feet from the house deck; it was about eight feet below the level of the railing surrounding the house deck.

Between 1:30 and 7:30 p.m. on June 23, 1984, Kelsey had consumed at least 5 beers; his blood alcohol level was later shown to be .2%. He was described by one of his companions as being "rowdy" but not intoxicated. Before the accident, he and Richard had been in the pool for some 15 minutes, having jumped in feet-first from the railing of the house deck, a jump of some eight feet. Then Kelsey dived into the pool head-first from the railing of the house deck, his arms at his sides. He struck his head on the bottom of the pool, suffering injuries that have left him a quadriplegic,

Plaintiffs brought the present action in the district court against Hart and the industry defendants for failure to provide adequate warnings that head-first diving into the pool could result in serious injury. They contended that the industry defendants' failure to warn violated the reporting requirements of the CPSA, 15 U.S.C. § 2064(b), and reporting rules of the Consumer Product Safety Commission ("Commission" or "CPSC"), 16 C.F.R. §§ 1115.12(c) and (e) (1987). Plaintiffs also contended that all defendants were liable under state-law principles of negligence and strict liability. Subject matter jurisdiction was premised on the alleged violations of the CPSA and CPSC rules.

B. The Dismissals

After a period of discovery, the industry defendants moved for summary judgment dismissing the complaint on the ground that, as a matter of law, Kelsey's own conduct was the sole proximate cause of his injuries. In addition, Doughboy sought dismissal on the ground that the CPSA does not provide a private right of action for violation of the CPSC reporting rules invoked by plaintiffs, and hence the court lacked subject matter jurisdiction over the controversy.

The district court ruled that the CPSA provides a private right of action for violation of the reporting rules, and it thus denied the motion to dismiss for lack of jurisdiction. It granted the motion to dismiss for lack of proximate cause, however, on the ground that, based on his prior experience, Kelsey either was or should have been aware of the dangers of diving head-first into the pool from the house deck, and that, under New York products liability law, "a plaintiff who dives into a swimming pool, with actual or constructive knowledge that the depth of the water will not permit such action safely, has disregarded an obvious or known danger and, as a result, will be considered the sole proximate cause of his or her injuries." Memorandum Decision and Order dated June 25, 1987, at 13.

Thereafter, Hart moved for dismissal of the claims against him on the merits on the ground that the court's ruling on proximate cause was equally applicable to him. Alternatively, he sought dismissal for lack of jurisdiction on the ground that, since there was no diversity between plaintiffs and Hart, the dismissal of the claims against the industry defendants eliminated the CPSA claim and hence left no federal question to which jurisdiction ...


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