                                                                    FIRST DIVISION
                                                                    MARCH 31, 2008




No. 1-06-1447


DONALD DUFFY,                                        )       Appeal from the
                                                     )       Circuit Court of
                      Plaintiff-Appellant,           )       Cook County.
                                                     )
       v.                                            )       No. 02 L 5279
                                                     )
JAMES G. TOGHER, RENEE TOGHER,                       )
LATHAM PLASTICS, INC. f/k/a Pacific                  )
Pools Industries, Inc., BLACK                        )
OAK POOL SUPPLY, INC., and                           )
PACIFIC INDUSTRIES, INC.,                            )       Honorable
                                                     )       Ralph Reyna,
                      Defendants-Appellees           )       Judge Presiding.
                                                     )
(Shaunna Travis,                                     )
                                                     )
                      Defendant).                    )

       JUSTICE ROBERT E. GORDON delivered the opinion of the court:

       On July 15, 2001, plaintiff Donald Duffy, age 21, dove into an in-ground swimming pool

and sustained injuries that led to his becoming a quadriplegic. The swimming pool was located in

the backyard of a single-family house owned and occupied by defendants James G. and Renee

Togher in Palos Hills, Illinois. Defendant Black Oak Pool Supply, Inc. (Black Oak), sold the pool

to the Toghers and installed the pool in their backyard; and defendant Latham Plastics,

Inc.(Latham), manufactured the pool’s liner. Pacific Industries, Inc. (Pacific), was simply a

former name used by Latham. Defendant Shauna Travis, who is not a party to this appeal, is both
No. 1-06-1447


the Toghers’ niece and the person who invited plaintiff to use the Toghers’ pool.

       Plaintiff appeals the order of the circuit court of Cook County, granting motions for

summary judgment by defendants Toghers, Black Oak and Latham. For the reasons discussed

below, we reverse.

                                         BACKGROUND

       The parties agree that at the time plaintiff dove into the Toghers’ pool, there were: (1) no

signs saying “no diving”; and (2) no markers indicating the depth of the water. At his discovery

deposition, defendant James Togher testified that Vincent Perfetto, the owner of Black Oak,

provided the Toghers with “no diving” signs and other warning signs that he chose not to post.

At her discovery deposition, defendant Renee Togher testified that when friends and family came

to use the swimming pool, she told them “no diving” because she believed that diving into the

pool was “dangerous.” Defendant Renee Togher testified that she repeated these oral warnings

“a lot.” Neither James nor Renee Togher was at home when plaintiff dove into their pool.

       At his discovery deposition, plaintiff testified that he stood on the west side of the pool’s

perimeter and dove horizontally into the north end portion of the pool; his hands struck the

bottom of the pool first, before his head. Plaintiff testified that he had never been in the Toghers’

pool prior to the date of his injury, that he had not walked into the north end of the pool before he

dove, that he had “seen the ladder, so [he] figured that the water’s deep enough that you need a

ladder to climb out of [it],” that he “figured a pool had a shallow end and a deep end,” and that he

assumed he was diving into the deep end of the pool.

       The parties do not dispute the following facts about the Toghers’ pool. The Toghers’ in-

                                                  2
No. 1-06-1447


ground swimming pool was completed on May 10, 2000, approximately a year before plaintiff’s

accident. The pool is rectangular, with a length of 36 feet and a width of 18 feet. On the south

end of the pool, there are broad, built-in steps leading down into the pool. The steps traverse the

entire width of the pool, with hand rails on either side. At the opposite end of the pool, there is a

ladder descending into the pool. The ladder is close to the north end, but located on the pool’s

east side. There is no diving board.

        The floor of the swimming pool has a U shape, with a vinyl liner. The deepest part of the

pool is in the middle, with shallow areas at both its north and south ends. The water depth in the

north and south ends is less than 3 feet, while the depth in the middle is 5 feet 7 inches.

        In the middle, the floor has a two-foot, flat area, with the pool’s deepest depth. The floor

of the pool slopes down from both its north and south ends, toward this flat area in the middle.

        Plaintiff admitted at his deposition that he had gone to a bar approximately two hours

prior to the accident and consumed two to three glasses of rum and Coke. Plaintiff testified at

his deposition that he was approximately 5 feet 10 inches tall and weighed 180 pounds at the time

of the accident, and that he was definitely not intoxicated at the time of the accident.

        This case involved the affidavits and deposition testimony of several experts. Plaintiff

retained Dr. Ralph Johnson, a swimming pool expert; Dr. Sam Glucksberg, a professor of

psychology; and Dr. Leon Kazarian, a biomechanical engineer. Defendants retained Dr. Jerrold

Blair Leikin, a toxicologist.

        Dr. Ralph Johnson, a swimming pool expert retained by plaintiff, listed in his affidavit a

number of ways in which the Toghers’ pool violated industry standards set by the National Spa

                                                  3
No. 1-06-1447


and Pool Institute (NSPI) and the American National Standards Institute (ANSI). In his affidavit

and at his discovery deposition, Dr. Johnson stated that the design of the Toghers’ pool was

“very unusual.”

       With respect to the pool liner, Dr. Johnson’s affidavit stated that its design was “a

dangerous, deceptive and non-traditional design in the residential pool market.” Dr. Johnson

explained that “[m]ixing shallow and deep water in a non-standard application is confusing,

deceptive and unsafe for the ordinary pool user who expects to swim in a pool with a shallow and

a deep end.”

       Dr. Johnson’s affidavit further stated that the Toghers’ pool created an “optical illusion of

a deep end,” with “a classic deep-end ladder” at one end of the pool; and broad steps typically

associated with a shallow end, at the other end of the pool. He stated: “In my opinion, had the

north end of the pool been designed with steps and handrails, this accident would not have

occurred.”     He also observed: “In order to comply with ANSI/NPSI, the ladder should have

been placed in the deepest part of the pool, which is the middle.”

       In addition, Dr. Johnson’s affidavit stated that since “the pool bottom [was] uniform in

texture and posture,” the pool depth was “difficult if not impossible to judge.” At his deposition,

he noted that the liner was “Sparkle Blue” in color, with a “Creek Stone” pattern. Dr. Johnson

testified that “[t]he pattern would help to obscure the bottom.” He explained that: “If you have

no pattern on the bottom, if you have a solid bottom with a contour line down, then you can

perceive the slope of the pool.”

       Dr. Johnson also testified at his deposition about his qualifications as a swimming pool

                                                 4
No. 1-06-1447


expert, as follows: He received his bachelor’s and master’s degrees in physical education, and his

doctorate in sports administration. He worked for 25 years at Indiana University of Pennsylvania,

where he served as a swimming and diving coach, a director of aquatic facilities and programs,

and a professor of health and physical education. In 1997, he became a professor of sport

management and chairman of the sport management department at North Greenville College in

South Carolina, where he is currently employed. In 1993, he founded Professional Aquatic

Consultants International, which provides aquatic consulting services to clients such as the Red

Cross, the YMCA and the United States Department of the Navy. He has also authored

textbooks that are used by architects and engineers to design aquatic facilities.

        Dr. Sam Glucksberg, a psychologist hired as an expert by plaintiff, is a professor of

psychology and has been on the faculty of Princeton University since 1963. At his discovery

deposition, he opined, based in part on his review of Dr. Johnson’s affidavit and deposition

testimony and plaintiff’s deposition testimony, that it was not open and obvious that the north

end of the Toghers’ pool was shallow.

        Dr. Leon Kazarian, a biomechanical engineer specializing in accident-related industries

retained by plaintiff, submitted an affidavit and testified at his discovery deposition that plaintiff’s

injuries were consistent with a headfirst dive into shallow water.

        Dr. Jerrold Blair Leikin, a medical physician specializing in toxicology retained by

defendants, testified at his discovery deposition that he reviewed: plaintiff’s deposition testimony;

records of the Palos Hills fire department which responded to the accident scene; and records of

Christ Hospital where plaintiff was brought after the accident. Based on his review of these

                                                    5
No. 1-06-1447


records, Dr. Leikin testified that it was his opinion that plaintiff was intoxicated at the time of the

accident. Dr. Leikin also testified that a blood sample drawn from plaintiff at Christ Hospital

approximately an hour after the accident contained a blood-alcohol level of .06.

        In actions for driving under the influence of alcohol, the Illinois Vehicle Code requires that

certain blood-alcohol levels give rise to certain presumptions. 625 ILCS 5/11-501.2(b) (West

2006). If a defendant’s blood-alcohol level was .05 or less, “it shall be presumed that the person

was not under the influence of alcohol.” 625 ILCS 5/11-501.2(b)(1) (West 2006). If the

defendant’s blood-alcohol level was more than .05 but less than .08, then “such facts shall not

give rise to any presumption that the person was or was not under the influence of alcohol.” 625

ILCS 5/11-501.2(b)(2) (West 2006). If the defendant’s blood-alcohol level was .08 or more, “it

shall be presumed that the person was under the influence of alcohol.” 625 ILCS 5/11-501.2

(b)(3) (West 2006).

        Plaintiff’s second amended complaint, which is the operative complaint on this appeal,

alleged the following counts: count 1, against the Toghers, for premises liability; counts 2 and 3,

against defendant Latham, for strict liability and negligence; and counts 4 and 5, against defendant

Black Oak, for strict liability and negligence. Counts 6 and 7 against defendant Pacific were also

for strict liability and negligence. As noted above, Pacific was merely a former name of defendant

Latham and not a separate entity.1



        1
            Defendants filed third-party complaints for contribution that are not at issue on this

appeal. Some of the third-party defendants filed motions for summary judgment that are also not

                                                     6
No. 1-06-1447


        In his complaint, plaintiff alleged that defendants’s acts and omissions included: failing to

post or provide warning signs, pool rules, depth markings or a safety rope to divide shallow from

deep waters; installing a pool with an unusual floor which created a deceptive impression of

depth; locating a ladder at one end, thereby creating the misleading impression of a deep end; and

installing a pool that did not conform to industry standards for residential swimming pools as

established by the American National Standards Institute (ANSI).

        Defendants Latham, Black Oak and the Toghers all moved for summary judgment. On

April 13, 2006, the trial court heard argument from all counsel concerning the summary judgment

motions. The defendants’ primary argument for summary judgment was that the Toghers’ pool

constituted an open and obvious danger, and thus none of the defendants owed a duty to warn or

otherwise protect plaintiff against the danger of diving into it.

        On May 17, 2006, the trial court issued a handwritten order that disposed of the summary

judgment motions in one line: “All motions for summary judgment are granted, instanter.” The

order did not specify the trial court’s reasons for granting the summary judgment motions. The

order was a final judgment with respect to defendants Toghers, Black Oak and Latham. On May

18, 2006, plaintiff filed a notice of appeal, and this appeal followed.

                                             ANALYSIS

        This appeal concerns the grant of summary judgment. “[S]ummary judgment is a drastic

measure [that] should only be allowed ‘when the right of the moving party is clear and free from



at issue in this appeal.

                                                   7
No. 1-06-1447


doubt.’ ” Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d 307, 311 (2007), quoting Purtill v. Hess,

111 Ill. 2d 229, 240 (1986). A plaintiff is not required to prove his case at the summary judgment

stage. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423 (1998). A trial court may grant

summary judgment “only where ‘the pleadings, depositions and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’ ” Rich v. Principal Life Insurance Co.,

226 Ill. 2d 359, 370 (2007), quoting 735 ILCS 5/2-1005(c) (West 2006).

        On a motion for summary judgment, the trial court has “a duty to construe the record

strictly against the movant and liberally in favor of the nonmoving party.” Jackson, 185 Il. 2d at

423-24; Osborne v. Claydon, 266 Ill. App. 3d 434, 435 (1994). As a result, summary judgment is

not appropriate: (1) if “there is a dispute as to a material fact” Jackson, 185 Ill. 2d at 424); (2) if

“reasonable persons could draw divergent inferences from undisputed material facts” Jackson,

185 Ill. 2d at 424); or (3) if “reasonable persons could differ on the weight to be given the

relevant factors” of a legal standard (Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 269 (2007)).

A trial court’s grant of summary judgment is subject to de novo review. Rich, 226 Ill. 2d at 370.

        For the reasons discussed below, summary judgment was not appropriate in this case. The

record creates a genuine issue of material fact about whether the defendants knew there was a

danger and failed to follow through on their duty to warn. Defendant Latham, the manufacturer

of the pool liner, created sticky labels of warning, which it passed to defendant Black Oak, the

installer. Black Oak, in turn, passed the sticky labels to the customer, even though it knew

customers rarely stuck them on their pools. As expected, defendant James Togher did not stick

                                                   8
No. 1-06-1447


the labels on his pool, which left his wife Renee telling people not to dive. In short, the record

creates a genuine issue of material fact about whether the Toghers’ pool was an accident waiting

to happen. Below, we discuss in detail each theory of liability against each defendant.

                                         Defendant Toghers

       In his complaint, plaintiff alleged one count of premises liability against defendant

Toghers. Generally, “[a] possessor of premises has a duty to guard against harm to an invitee.”

Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 14 (2007), citing LaFever v. Kemlite Co.,

185 Ill. 2d 380, 391 (1998).

       The Toghers’ attorney stated to the trial court during argument that the Toghers were

moving for summary judgment “on one point and one point only”: that they did not owe plaintiff a

duty of care because their pool posed an open and obvious danger. The defendant Toghers’

argument is based on “the principle of Illinois law which holds that persons who own, occupy or

control and maintain land are not ordinarily required to forsee and protect against injuries from

potentially dangerous conditions that are open and obvious.” Jackson, 185 Ill. 2d at 424-25,

Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 445-47 (1996).

       The question of whether a particular landowner owed a duty of care to a particular invitee

under a theory of premises liability is a question of law. LaFever v. Kemlite Co., 185 Ill. 2d 380,

388 (1998). However, when a court cannot conclude as a matter of law that a condition posed an

open and obvious danger, then “the obviousness of the danger is for the jury to determine.” Klen

v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1044 (1994); Simmons v. American Drug Stores, Inc.,

329 Ill. App. 3d 38, 43 (2002) (“Whether a condition presents an open and obvious danger is a

                                                  9
No. 1-06-1447


question of fact.”), cited by Sollami v. Eaton, 201 Ill. 2d 1, 20-21 (2002) (Harrison, C.J.,

dissenting) (“Whether a condition presents an open and obvious danger is a question of fact for

the trier of fact”), Buchaklian v. Lake County Family Young Men’s Christian Ass’n, 314 Ill. App.

3d 195, 203 (2000) (“summary judgment is not proper when reasonable minds could differ as to

whether a condition was open and obvious[;] *** such a determination involves a finding of

fact”).

          The general rule in Illinois is that a body of water presents an open and obvious danger

whether it is naturallyoccurring, such as Lake Michigan, or it is man-made, such as a swimming

pool. Jackson, 185 Ill. 2d at 425 (providing citations to cases).2 Despite the general rule, Illinois

courts have found that the dangers of particular bodies of water were not open and obvious.

Jackson, 185 Ill. 2d at 426-27 (submerged pipe created danger in lake that was not open and

obvious); Klen, 268 Ill. App. 3d at 1044 (danger of dive into shallow, above-ground pool was not

open and obvious to reasonable 14 year-old); Schellenberg v. Winnetka Park District, 231 Ill.

App. 3d 46, 51-52 (1992).

              In addition, the “one and only” ground asserted by the Toghers in support of their

summary judgment motion is not an absolute bar to liability. Calles, 224 Ill. 2d at 271. Our



          2
              Approximately 20 court cases involving headfirst aquatic injuries have occurred in Illinois

since 1990. Clement, Risk Management Issues in Sport: Headfirst Aquatic Incident Court

Decisions: The Plaintiff’s Odds, 17 J. Legal Aspects of Sport 107, 125 (Winter 2007) (listing 19

Illinois state and federal court cases between 1990 and 2005).

                                                      10
No. 1-06-1447


supreme court has held with respect to a premises liability claim that “[t]he existence of an open

and obvious danger is not a per se bar to finding that a defendant who owns, occupies or controls

land has a duty to exercise reasonable care.” Jackson, 185 Ill. 2d at 425, Bucheleres, 171 Ill. 2d

at 449 (not “an automatic or per se bar”). Other relevant factors include: “[1] the likelihood of

injury, [2] the reasonable forseeability of such injury, [3] the magnitude of [the burden of]

guarding against the injury, and [4] the consequences of placing that burden on the defendant.”

Jackson, 185 Ill. 2d at 425, Bucheleres, 171 Ill. 2d at 456. Our supreme court has held that once

a court finds that a danger is open and obvious, the court’s analysis is not “complete” until it has

analyzed these four “traditional” factors. Jackson, 185 Ill. 2d at 425, Bucheleres, 171 Ill. 2d at

456.

        The Toghers’ brief to the trial court sought summary judgment on one ground only: “The

Toghers did not owe the plaintiff a duty to warn against ‘open and obvious’ dangers.” Dr.

Johnson, an expert hired by plaintiff, stated in his affidavit and at his deposition, that the design of

the Toghers’ pool was “very unusual.” First, Dr. Johnson’s affidavit stated that the design was

“unsafe for the ordinary pool user” who expects a pool to have both a shallow and a deep end.

Second, Dr. Johnson’s affidavit stated that the problem was compounded by an “optical illusion of

a deep end,” created by the placement of a classic deep-end ladder at one end of the pool, and the

placement at the opposing end of broad steps typically associated with a shallow end. Third, Dr.

Johnson’s affidavit observed that the pool bottom was uniform in texture and pattern, which Dr.

Johnson stated made the pool depth “difficult if not impossible to judge.” At his deposition, he

testified that the “Sparkle Blue” color in the “Creek Stone” pattern “would help to obscure the

                                                  11
No. 1-06-1447


bottom.” The expert’s affidavit and deposition testimony created a material issue of fact about

whether a shallow bottom in a “deep end” section of the pool was a nonobvious danger.

        Plaintiff testified at his deposition that it was this illusion that caused him to assume it was

safe to dive. However, the obviousness of the danger and the duty to warn are decided not based

on plaintiff’s own subjective perception but by an objective standard. Klen, 268 Ill. App. 3d at

1041.

        The Toghers’ appellate brief cited three cases which held that a swimming pool was an

open and obvious danger. All three cases are readily distinguishable from the case at bar. First, in

Osborne v. Claydon, 266 Ill. App. 3d 434 (1994), the appellate court affirmed a grant of summary

judgment against a 17-year-old plaintiff who suffered spinal injuries from a headfirst dive into a

pool located in defendants’ backyard. The appellate court in Osborne held that defendants had

“no reason to believe that a 17 year old *** would not appreciate the obvious danger of

attempting a running dive into the shallow end of the pool.” Osborne, 266 Ill. App. 3d at 440.

By contrast, in the case at bar, the end of the pool into which plaintiff dove was not obviously a

shallow end.

        Second, in Barham v. Knickrehm, 277 Ill. App. 3d 1034, 1038-39 (1996), the appellate

court held that an aboveground swimming pool with a uniform depth of 3 ½ feet was an open and

obvious danger to a reasonable 13-year-old.3 Unlike the pool in Barham, the Toghers’ pool did



        3
            The 1996 holding in Barham contradicts the 1994 holding in Klen, where this court held

that it could not find as a matter of law that the danger of a shallow, aboveground pool was

                                                  12
No. 1-06-1447


not have a uniform depth and was not above ground. Plaintiff in the case at bar alleged that the

danger of the Toghers’ pool was due, in part, to its unpredictable variation in depth. In addition,

depth is usually more obvious in an aboveground pool than in an in-ground pool like the Toghers’

pool. Thus, the pool in Barham is readily distinguishable from the pool in the case at bar.

       Third, in Lederman v. Pacific Industries, Inc., 119 F.3d 551 (7th Cir. 1997), the Seventh

Circuit Court of Appeals held that the swimming pool at issue posed an open and obvious danger

under Illinois law. Lederman, 119 F.3d at 555. The swimming pool in Lederman was an in-

ground pool, with a shallow end and a deep end. Lederman, 119 F.3d at 552. There were three

steps leading down into the shallow end; and a diving board was located at the opposite, deep

end. Lederman, 119 F.3d at 552-53. A one-foot-wide white line was painted across the bottom of

the pool, to separate the shallow end from the deep end. Lederman, 119 F.3d at 553. It was

unclear whether plaintiff dove into the shallow or deep end: plaintiff’s brother testified that

plaintiff stood near the middle of the pool and attempted to dive into the deep end but lost his

footing, while plaintiff denied slipping. Lederman v. Pacific Industries, Inc., 939 F. Supp. 619,

622 (N.D. Ill. 1996), aff’d 119 F.3d 551 (7th Cir. 1997). The Toghers’ pool is nothing like the

pool in Lederman. The Toghers’ pool did not have either a deep end or a white line painted

across the bottom to indicate depth.    Thus, the swimming pool cases discussed in the Toghers’

appellate brief are readily distinguishable from the facts at hand.



obvious to a reasonable 14-year-old. Klen, 268 Ill. App. 3d at 1044. The Barham opinion made

no mention of the opposing decision issued by this court two years earlier in Klen.

                                                  13
No. 1-06-1447


       Plaintiff claims that the shallow depth of water in what normally would have been the deep

end is analogous to the danger created by the submerged pipe in Jackson. In Jackson, plaintiff

alleged that her son, a 19-year-old adult, died after diving into the deep end of a swimming area

and hitting his head on a submerged pipe. Jackson, 185 Ill. 2d at 422. Our supreme court held

that the danger of the submerged pipe was not open and obvious. Jackson, 185 Ill. 2d at 426.

Like the submerged pipe in Jackson, the unusual danger of the Toghers’ pool, namely its “optical

illusion” of depth, was also submerged. Dr. Johnson, plaintiff’s swimming pool expert, stated in

his affidavit that the Toghers’ pool created an “optical illusion of a deep end.” We cannot reach a

conclusion as a matter of law that the danger of the Toghers’ pool was obvious. As this court has

held before, “[w]here there is a doubt, the obviousness of the danger is for the jury to determine.”

Klen, 268 Ill. App. 3d at 1044.

       Even if the trial court had properly found that the danger of the Toghers’ pool was open

and obvious, that finding by itself would not have been enough for a grant of summary judgment.

Schellenberg, 231 Ill. App. 3d at 53 (“Even if a risk is considered open and obvious, a duty to

warn may still be imposed”). The trial court was still required to analyze the four “traditional”

factors. Jackson, 185 Ill. 2d at 425; Bucheleres, 171 Ill. 2d at 456,

       With respect to the first two traditional factors, the likelihood of injury and the reasonable

forseeability of such injury, defendant Renee Togher’s deposition testimony created a genuine

issue of material fact when she admitted that diving into her pool was dangerous and she felt

compelled to repeatedly warn others of this danger. Schellenberg, 231 Ill. App. 3d at 52 (“a duty

to warn arises where the existence of a dangerous condition is known *** and it is not apparent

                                                 14
No. 1-06-1447


to the other party”). Also, defendant James Togher testified that he received a plastic warning

sign from defendant Black Oak. The sign stated: “Danger. Shallow water. No diving. Diving

may cause death, paralysis or permanent injury.” 4

       With respect to the last two relevant factors, the magnitude of the burden of guarding

against the injury and the consequences of placing that burden on defendant Toghers, defendant

James Togher’s deposition testimony created a genuine issue of material fact when he admitted

that he was provided with “no diving” and warning signs that he chose not to post, although his

wife admitted that she knew that she had a dangerous situation in the use of their pool. Jackson,

185 Ill. 2d at 427 (duty to warn was based, in part, on the fact that the danger could have been

“eliminated at virtually no cost or expense” to defendant). Defendant James Togher testified that

after completion of the pool, Vincent Perfitto, the owner of defendant Black Oak, provided both

adhesive “no diving” signs to attach to the pool liner and a plastic warning sign that could be hung

near the pool. Togher testified that Perfitto told him that the “liner information” indicated the

appropriate placement of the adhesive warning signs. Thus, the record created genuine issues of

material fact with respect to all four of the traditional factors. Rich, 226 Ill. 2d at 370 (a genuine

issue of material fact requires the denial of a summary judgment motion).

       Prior to the trial court’s summary judgment decision, defendants offered the affidavit and

deposition testimony of a medical toxicologist who offered an opinion about plaintiff’s



       4
           The sign was read into the record by an attorney at the deposition of Vincent Perfitto,

owner of defendant Black Oak, in the context of asking Perfitto a question about it.

                                                   15
No. 1-06-1447


intoxication at the time of the accident. Plaintiff’s alleged intoxication does not affect this court’s

analysis of whether the danger was open and obvious. Open and obvious is evaluated on an

objective standard. Lederman v. Pacific Industries, Inc., 119 F.3d 551, 554 (7th 1997) (after

stating “whether a particular danger is open and obvious is an objective inquiry,” appellate court

affirmed without even mentioning plaintiff’s alcohol consumption, which had been noted in the

district court’s opinion), affirming Lederman v. Pacific Industries, Inc., 939 F. Supp. 619, 626

(N.D. Ill. 1996)5; Mt. Zion State Bank& Trust v. Consolidated Communications, Inc., 169 Ill. 2d

110, 126 (1995); Klen , 268 Ill. App. 3d at 1035, 1042 n.10 (1994) (“objective standard”).

Plaintiff’s alleged intoxication may later be relevant to issues such as proximate cause, assumption

of risk and contributory negligence, which were not raised as issues on this appeal. Klen, 268 Ill.

App. 3d at 1035, 1042 n.10 (proximate cause, assumption of risk); Bucheleres, 171 Ill. 2d at 447

(contributory negligence)6; Barham, 277 Ill. App. 3d at 1039-40 (proximate cause). However, it



       5
           The Toghers’ appellate brief cited the federal district court’s opinion in Lederman

without citing the subsequent appellate court’s opinion.
       6
           In a footnote to their appellate brief’s statement of facts, the Toghers argue that their

expert’s testimony would meet the requirements for admissibility set forth by the appellate court

in Bodkin v. 5401 S.P., Inc., 329 Ill. App. 3d 620 (2002). In Bodkin, this court stated that Illinois

courts in negligence cases have “consistently held that evidence of alcohol consumption is

inadmissible absent a showing of intoxication resulting in impairment of mental or physical

abilities and a corresponding diminution in the ability to act with ordinary care.” Bodkin, 329 Ill.

                                                    16
No. 1-06-1447


is not relevant to the determination of the duty owed by defendants, which is the issue on this

appeal. Klen, 268 Ill. App. 3d at 1042 n.10.

       In addition, if we were to find that the unknown depth of the Toghers’ pool was an open

and obvious danger, then we must find that the design of the pool was a distraction. The open

and obvious rule has two exceptions: (1) the distraction exception; and (2) the deliberate

encounter exception. Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 106 (2005);

LaFever v. Kemlite Co., 185 Ill. 2d 380, 391 (1998). The deliberate encounter exception states

that a possessor of premises is liable for an open and obvious danger “when the possessor ‘has

reason to expect that the invitee will proceed to encounter the known or obvious danger because

to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.”

LaFever, 185 Ill. 2d at 391, quoting Restatement (Second) of Torts, §343A, Comment f, at 220

(1965). The deliberate encounter exception has no application to this case.

       The distraction exception states that “the possessor of the premises should anticipate harm

to an invitee when the possessor ‘has reason to expect that the invitee’s attention may be



App. 3d at 634. This court further observed that “[i]ntoxicating beverages affect different persons

in different ways and some persons would be intoxicated by the consumption of a quantity of

alcohol which might have no effect on another person.” Bodkin, 329 Ill. App. 3d at 634. This

court takes no position concerning the future admissibility of evidence of plaintiff’s alleged

intoxication or its relevance to the possible issues of proximate cause, assumption of risk or

contributory negligence.

                                                 17
No. 1-06-1447


distracted, so that he will not discover what is obvious, or will forget what he has discovered, or

fail to protect himself against it.’ ” LaFever, 185 Ill. 2d at 391, quoting Restatement (Second) of

Torts, §343A, Comment f, at 220 (1965). The combination of a number of factors about the

Toghes’ pool came together to create a distraction, or as Dr. Johnson phrased it, “an optical

illusion.” These factors included: the placement of a classic deep-end ladder in a shallow end;

the positioning of broad, shallow-end steps on the side opposing the classic deep-end ladder; the

mixing of shallow and deep waters in a nontraditional design which confounded the ordinary

swimmer’s expectation of a deep and a shallow end; and a “Sparkle Blue” color in a repeating

“Creek Stone” pattern which helped to obscure the bottom.

       For the reasons stated above, we reverse the trial court’s grant of summary judgment in

favor of defendant Toghers.

                                        Defendant Black Oak

       Plaintiff sued defendant Black Oak, the seller and installer of the pool, for negligence and

strict liability. To succeed on a negligence claim, a plaintiff must prove that: (1) the defendant

owed the plaintiff a duty of care; (2) the defendant breached that duty; (3) the plaintiff suffered an

injury; and (4) the plaintiff’s injury was proximately caused by the defendant’s breach. Calles, 224

Ill. 2d at 270; Harlin v. Sears Roebuck & Co., 369 Ill. App. 3d 27, 32 (2006); Simmons, 329 Ill.

App. 3d at 42.

       To succeed on a strict liability claim, a plaintiff must prove that a product was sold in an

unreasonably dangerous condition. Calles, 224 Ill. 2d at 254. Illinois courts utilize two tests to

determine whether a product was unreasonably dangerous: the consumer expectation test; and

                                                 18
No. 1-06-1447


the risk utility test. Calles, 224 Ill. 2d at 254-56. A plaintiff may succeed by proving the elements

of either test. Calles, 224 Ill. 2d at 255. Under the consumer expectation test, a plaintiff succeeds

by proving that “the product failed to perform as an ordinary consumer would expect when used

in an intended or reasonably foreseeable manner.” Calles, 224 Ill. 2d at 256. Under the risk

utility test, a plaintiff succeeds by proving that “the magnitude of the danger outweighs the utility

of the product, as designed.” Calles, 224 Ill. 2d at 259.

        In its brief to the trial court, defendant Black Oak sought summary judgment solely on the

ground that it had no duty to warn concerning an open and obvious danger. As already discussed

above, this court cannot reach a conclusion as a matter of law that the danger of the Toghers’

pool was obvious. Even if we could reach such a conclusion, that holding by itself would be

insufficient to sustain a grant of summary judgment. Obviousness of a danger is not an absolute

bar to either a negligence claim or a strict liability claim. Calles, 224 Ill. 2d at 259, 262-263, 271.

In a negligence suit, we are still required to consider the four traditional factors: (1) the likelihood

of injury; (2) the reasonable forseeability of such injury; (3) the magnitude of the burden of

guarding against the injury; and (4) the consequences of placing that burden on the defendant.

Simmons, 329 Ill. App. 3d at 42; Buchaklian, 314 Ill. App. 3d at 200. Under the risk utility test

for a strict liability claim, “the court must balance factors it finds relevant to determine if the case

is a proper one to submit to the jury.” Calles, 224 Ill. 2d at 266. Suggested factors include the

likelihood of injury and the burden on the defendant, with respect to the cost, feasibility and

availability of an alternative. Calles, 224 Ill. 2d at 264-65.

        With respect to the first two traditional factors, the likelihood and forseeability of injury,

                                                   19
No. 1-06-1447


Vincent Perfitto, owner of defendant Black Oak, created a genuine issue of material fact when he

admitted at his deposition that it would have been “a very good idea” to post “no diving” signs at

the Toghers’ pool “to warn somebody prior to jumping in shallow water” because it is “very

possible” that a person can sustain a cervical injury from such a jump. Schellenberg, 231 Ill. App.

3d at 52 (“a duty to warn arises where the existence of a dangerous condition is known *** and it

is not apparent to the other party”). Perfitto also testified that he left the decision to the customer

whether to post the warning signs but that, in his experience, customers posted the warning signs

“not too often.”

       With respect to the second two factors, the magnitude and consequences of placing the

duty to warn on defendant Black Oak, Perfitto created a genuine issue of material fact when he

testified that it takes “maybe 15, 20 minutes” to install the adhesive warning stickers and the

plastic warning signs. He also testified that installation required only “a good eye [and] a level,”

and that his company received the warning stickers and signs from the liner manufacturer in a

“safety packet.” Jackson, 185 Ill. 2d at 427 (duty to warn was based, in part, on the fact that the

danger could have been “eliminated at virtually no cost or expense” to defendant). Thus, the

record created genuine issues of material fact with respect to all four of the traditional factors.

Rich, 226 Ill. 2d at 370 (a genuine issue of material fact requires the denial of a summary

judgment motion).

       For the reasons stated above, we reverse the trial court’s grant of summary judgment in

favor of defendant Black Oak.



                                                  20
No. 1-06-1447


                                            Defendant Latham

        As with defendant Black Oak, plaintiff’s complaint against defendant Latham, the

manufacturer of the pool’s liner, also alleged claims of negligence and strict liability. In its brief to

the trial court, defendant Latham moved for summary judgment on two grounds: (1) the

Toghers’ pool was an open and obvious danger and thus required no warning from defendant

Latham; and (2) as the manufacturer of a component part, defendant Latham owed no duty

arising out of the final assembly of a pool that was designed and built by others.

        As already discussed above, this court cannot reach a conclusion as a matter of law that

the danger of the Toghers’ pool was obvious; and even if we could reach such a conclusion, that

holding by itself would be insufficient to sustain a grant of summary judgment. In a case involving

a manufacturer, our supreme court held that the “open and obvious nature of a danger is just one

factor in evaluating” claims for negligence and strict liability, but “[i]t is not dispositive.” Calles,

224 Ill. 2d at 271. Our supreme court explained that the policy reason behind the rejection of an

absolute bar was the desire to encourage the consideration of alternative and safer designs.

Calles, 224 Ill. 2d at 262. 7

        With respect to the first two traditional factors, defendant Latham’s safety packet created

a genuine issue of material fact with respect to the likelihood and forseeability of injury. The



        7
            The supreme court stated that it rejected an absolute bar in the negligence context for the

same reasons already stated in its earlier discussion of strict liability. Calles, 224 Ill. 2d at 271.

The citation in the text is to the court’s strict liability discussion.

                                                    21
No. 1-06-1447


packet was provided by Latham to Black Oak, which, in turn, provided it to James Togher; and it

included numerous warnings against the dangers of diving into the Toghers’ pool. Schellenberg,

231 Ill. App. 3d at 52 (“a duty to warn arises where the existence of a dangerous condition is

known *** and it is not apparent to the other party”).

       With respect to the second two traditional factors, the magnitude and consequences of

placing the duty to warn on defendant Latham, the deposition testimony of John Oliver created

genuine issues of material fact. Oliver was Latham’s technical service manager at the time that the

Toghers’ pool was installed.8 Oliver admitted that after an accident in another lawsuit and prior

to the accident in the instant case, he spoke with Dave Morris of Vinyl Plastics, Latham’s vinyl

manufacturer, about imprinting warning signs directly on the vinyl of the pool liner. After Morris

indicated that the warnings would make the liner less attractive, Oliver took no further steps.

Instead, Latham chose to provide sticky labels of warning in its safety packet. No explanation

was offered as to why sticky labels were more attractive – unless, of course, nobody expected the

customer to use them. Oliver testified that only 15% of its customers returned the cards provided



       8
           Oliver testified that he was hired in 1995 as Latham’s “Manager of Customer and

Technical Service” and worked there for almost 10 years. At “sometime in 2001,” his title

changed to “Technical Support Manager”, and he was no longer responsible for customer service.

He then wrote Latham’s procedures and manuals “on how to install a liner, how to build a pool,

and how to assemble products, resolution of problems encountered commonly, things of that

nature.”

                                                 22
No. 1-06-1447


in Latham’s safety packet to indicate that they had received or applied the warning signs.

        In addition, Dr. Johnson, plaintiff’s expert, testified at his deposition that “[y]ou can put

warnings on liners,” that “there [was] an obligation on the part of Latham to put some of those

warning on their vinyl liner,” that “the ability to print warnings or anything that you want to on

vinyl has been available in the industry going clear back to 1983” and that “there [was] no reason

Latham couldn’t have done it.” In Dr. Johnson’s opinion, “the swimming pool industry needs to

take a more proactive stance on making the pool safer with depth markers and diving warning

signs and those kinds of things.” Thus, the record created genuine issues of material fact with

respect to all four of the traditional factors. Rich, 226 Ill. 2d at 370 (a genuine issue of material

fact requires the denial of a summary judgment motion).

        In the alternative, Latham sought summary judgment on the ground that, as the

manufacturer of a component part, it owed no duty arising out of the final assembly of a pool that

was designed and built by others. In its brief to the trial court, Latham did not cite a single

supporting case in this section of its brief. In its appellate brief, it cited one case in support of this

point: Loos v. American Energy Savers, Inc., 168 Ill. App. 3d 558 (1988).

        In Loos, plaintiff alleged defendant had manufactured tower support legs that were not

strong enough to support the designed tower, which subsequently toppled. Loos, 168 Ill. App. 3d

at 560. In support of its motion for summary judgment, defendant submitted an affidavit from its

vice-president for manufacturing stating that defendant “was not provided with any information

from which it could judge whether the strength of the tower would be appropriate.” Loos, 168

Ill. App. 3d at 563. The appellate court held that while “[a] component part manufacturer may be

                                                   23
No. 1-06-1447


found strictly liable for the injuries attributable to the defective component,” plaintiff failed to

submit any evidence to contradict defendant’s affidavit. Loos, 168 Ill. App. 3d at 563. Thus, the

trial court properly granted summary judgment.Loos, 168 Ill. App. 3d at 563.

        By contrast, Oliver’s deposition testimony created a material issue of fact about both

whether Latham had sufficient information to judge the appropriateness of its component part.

Oliver testified that the National Spa and Pool Institute (NSPI)9 set industry standards for

residential, nondiving pools, and that the design of the Toghers’ pool, as reflected on a drawing

by a Latham employee, did not meet a number of NSPI standards. Oliver acknowledged that one

of the purposes of the NPSI standards was safety. Although Oliver claimed that compliance with

NSPI standards was not Latham’s responsibility but the responsibility of the installer of the pool,

he acknowledged that Latham’s owner’s manual,10 which was delivered to the Toghers,

guaranteed that the liner was produced in conformity with NSPI standards. 11 Thus, the record



        9
            Oliver testified that the NSPI was “an industry-related group that promotes the products

that are sold and installed by the pool industry” and that defendant Latham belonged to NSPI.
        10
             At his deposition, Oliver read into the record the following portion of Latham’s pool

owner manual: “The National Spa & Pool Institute, NSPI, in association with American National

Standards Institute, ANSI, developed standards for residential swimming pools. This liner was

produced in conformance with either the ANSI, NSPI 1995 or ANSI NSPI 4 1992 design

standard.”
        11
             In addition, Oliver admitted that he had seen language employed by Cardinal Systems ,

                                                   24
No. 1-06-1447


created a genuine issue of material fact concerning the appropriateness of the component part

manufactured by defendant Latham.

       The dissent makes a number of legal errors. First, the dissent’s one and only point is that

the Toghers’ pool was not an open and obvious danger. Our supreme court could not have been

more clear: “open and obvious” is not an absolute bar to liability. Jackson, 185 Ill. 2d at 425.

Thus, even if we were to assume for a moment that the dissent was correct and that the Toghers’

pool was an open and obvious danger, our inquiry cannot end there. We must still proceed to

analyze the four traditional factors, which the dissent failed to do. As already discussed above,

the record created material issues of fact with respect to all four factors and with respect to each

defendant.

       The dissent tries to distinguish the supreme court’s holding in Jackson, 185 Ill. 2d at 426,

by stating “Jackson involved a risk of injury known to the owner but unknown to the invitee.”

Slip op. at 32. But that is the very case we have here. Renee Togher was aware of the risk, that

is why she told people not to dive. Latham and Black Oak were aware of the risk, that is why

they distributed warnings. The only party who was not alert to the risk was the person who is



Inc., which was the manufacturer of the steel panels for the Toghers’ pool, to the effect that

Cardinal’s dig specifications should be verified by the liner manufacture to insure that they

complied with NSPI standards. Oliver testified that Latham worked on a daily basis with

Cardinal.



                                                 25
No. 1-06-1447


now a quadriplegic as a result.

       The dissent also asserts that “we need not engage in such [traditional duty] analysis in this

case on the authority of Bucheleres.” Slip op. at 32. In Bucheleres, our supreme court found that

a danger was “open and obvious” and then proceeded to analyze each and every one of the four

traditional factors. Bucheleres, 171 Ill. 2d at 456. Far from eliminating the traditional analysis, the

Bucheleres case requires it.

       Second, the dissent discusses the Seventh Circuit’s opinion in the Lederman

case as though it supports a finding against plaintiff. We can all agree that the depths of the pool

in Lederman were “open and obvious”: that pool had a shallow end and a deep end, and a big

white line painted across the bottom to separate the two. The Lederman pool was a conventional

pool, and was nothing like the Toghers’ pool. A finding against the Lederman plaintiff has little

bearing on our case.

       Third, the dissent claims “there is no factual support” for Dr. Johnson’s opinion. Slip op.

at 29. Dr. Johnson provided plenty of factual support, in both his affidavit and at his deposition.

These facts included, and were not limited to: the mixing of shallow and deep waters in a

nontraditional design which confounded the ordinary swimmer’s expectation of a deep and a

shallow end; the placement of a classic deep-end ladder in a shallow end; the positioning of broad,

shallow-end steps on the side opposing the classic deep-end ladder; and a “Sparkle Blue” color in

a repeating “Creek Stone” pattern which helped to obscure the bottom. Dr. Johnson also

discussed how this design violated a number of industry standards.

       Fourth, the dissent cites Glass v. Morgan Guaranty Trust Co., 238 Ill. App. 3d 355

                                                  26
No. 1-06-1447


(1992), out of context. The dissent cited Glass for the proposition that: “ ‘The optical illusion is

in the mind of the beholder.’ ” Slip op. at 30. Glass, 238 Ill. App. 3d at 359. In Glass, the

optical illusion was only in the mind of the plaintiff. Glass, 238 Ill. App. 3d at 357-59. In

response to a summary judgment motion, the plaintiff in Glass offered only plaintiff’s subjective

belief that an optical illusion was created by the stairs down which she fell. Glass, 238 Ill. App.

3d at 357-59. This court noted in that case that plaintiff failed to “identify an expert witness to

substantiate” her claims or “any engineering and architectural standards that allegedly were

violated,” and thus we affirmed the grant of summary judgement in favor of defendant.        Glass,

238 Ill. App. 3d at 359, 362. By contrast, plaintiff in the case at bar supplied what the Glass

plaintiff failed to provide: a list of violated industry standards; and an expert’s opinion based on

factual support that the pool created an optical illusion. Applying Glass to our facts requires a

reversal.

                                           CONCLUSION

        In sum, we cannot conclude as a matter of law that the danger of the Toghers’ swimming

pool was open and obvious. Plaintiff’s swimming pool expert stated that the Toghers’ pool

created an “optical illusion of a deep end” and that its design was “very unusual.” In addition, an

open and obvious danger is not an absolute bar to a plaintiff’s recovery. A court must still

consider the traditional factors of the likelihood and forseeability of injury, and the magnitude and

consequences of placing a duty to warn on defendants.

        The record created a genuine issue of material fact as to whether the defendants in this

case knew there was a danger and failed to follow through on their duty to warn. Defendant

                                                  27
No. 1-06-1447


Latham, the manufacturer of the pool liner, created sticky labels of warning, which it passed to

defendant Black Oak, the installer. Black Oak, in turn, passed the sticky labels to the customer,

even though it knew customers rarely stuck them on their pools. As expected, defendant James

Togher chose not to stick the labels on his pool, which left his wife Renee telling the people she

saw, not to dive. After reading the affidavits, deposition transcripts and other evidence in this

case, this court concludes that the record creates a genuine issue of material fact about whether

the Toghers’ pool was an accident waiting to happen. For the reasons stated above, we reverse

the trial court’s grant of summary judgment and remand for further proceedings consistent with

this opinion.

       Reversed and remanded with instructions.

       CAHILL, P.J., concurs.

       JUSTICE GARCIA, dissenting:

       I cannot agree with the majority that "[t]he expert's

affidavit and deposition testimony created a material issue of

fact about whether a shallow bottom in a 'deep end' section of

the pool was a nonobvious danger."                      Slip op. at 14.           In my

judgment there is no factual support for the expert's opinion.

"An expert's opinion is only as valid as the bases and reasons

for the opinion.            When there is no factual support for an

expert's conclusions, his conclusions alone do not create a

question of fact."             Gyllin v. College Craft Enterprises, Ltd.,

260 Ill. App. 3d 707, 715, 633 N.E.2d 111 (1994).


                                                 28
No. 1-06-1447


      Dr. Johnson's opinion centers on his contention that the

pool design created an "optical illusion of a deep end."    I am

unpersuaded that a claimed "optical illusion" can be the basis

either to create a material factual question or, to the extent

the plaintiff means to suggest the existence or not of the

"optical illusion of a deep-end" was for the trier of fact to

determine, to form a factual question itself.   In my judgment,
the claim of an "optical illusion of a deep-end" is no different

from the thought each unfortunate plaintiff must have had after

the disastrous dive: "I thought the water was deeper."   The

plaintiff's contention that a material question of fact remains

based on Dr. Johnson's conclusions transforms the objective

inquiry in the duty-to-warn analysis into a subjective one.    See

Klen, 268 Ill. App. 3d 1031 (duty to warn is determined using an

objective standard).    With my apologies to all poets, it becomes

no longer an objective inquiry but a subjective assertion: "The

optical illusion is in the mind of the beholder."   See Glass v.

Morgan Guaranty Trust Co., 238 Ill. App. 3d 355, 359, 606 N.E.2d

384 (1992) (liability claim founded on "optical illusion" that

"steps [tended] to blend together visually" rejected because

plaintiff's position that landowner should have constructed steps

differently goes beyond what the law requires for duty of

reasonable care).

      I also disagree that the cases that have rejected an adult


                                29
No. 1-06-1447


plaintiff's claim of liability based on a headfirst dive into a

pool are all distinguishable on their facts.     I agree with the

Lederman court's assessment that the Illinois cases finding

against an adult plaintiff stand for the proposition that it is

the very uncertainty of the depth of an in-ground pool that makes

diving into one openly and obviously dangerous.12     Lederman, 119

F.3d at 555.      I concur with conclusion of the Lederman court:
"Illinois' highest court would hold that the risks associated

with Mr. Lederman's injurious dive would have been obvious to a

reasonable adult in his position."      Lederman, 119 F.3d at 555.

The Lederman court also implied that a reasonable adult would not

have attempted such a dive because "the depth of the pool at any

one point could not be ascertained from outside the pool."

Lederman, 119 F.3d at 555.     This observation echos Dr. Johnson's

conclusion that the texture and pattern of the pool bottom made

it " 'difficult if not impossible to judge [its depth].' "      Slip



      12
           These accidents occur even where the plaintiff is familiar

with the depth of the pool, but takes an unfortunate dive

nevertheless.      See, e.g., Osborne, 266 Ill. App. 3d 434.   I see

no relief for similarly situated plaintiffs short of the

disavowal of the open and obvious doctrine by our supreme court.

See Ford v. Round Barn True Value, Inc.,     377 Ill. App. 3d 1109,

1118 (2007)(MERSCOUGH, J., specially concurring).

                                   30
No. 1-06-1447


op. at 5.       This, however, is not a basis to relieve the plaintiff

of his responsibility; rather, it serves to reinforce his

responsibility to make such a judgment before attempting a dive.

The plaintiff here ignored the danger based on his unwarranted

assumption that the ladder at the end opposite the descending

steps into the pool suggested a deep-end, safe for diving.

       I recognize our supreme court has held "[t]he existence of an open and

obvious danger is not a per se bar to finding that a defendant who owns, occupies or

controls land has a duty to exercise reasonable care." Jackson v. TLC Associates,

Inc., 185 Ill. 2d 418, 425, 706 N.E.2d 460 (1998). However, the analysis

undertaken in Jackson has no application here. Our supreme court expressly noted

that the issue in Jackson did not involve "the risk of injury from diving into water

that is too shallow. [That] risk[] is [not] at issue here." Jackson, 185 Ill. 2d at 426.

The risk of injury involved striking a submerged pipe, which our supreme court

noted "stemmed solely from TLC's conduct." Jackson, 185 Ill. 2d at 426. In other

words, Jackson involved a risk of injury known to the owner but unknown to the

invitee. Because the risk of injury differed from "the risk of injury from diving into

water that is too shallow," the court in Jackson invoked the traditional duty analysis

of likelihood of injury and the foreseeability of such injury. In my judgment, we


                                           31
No. 1-06-1447


need not engage in such analysis in this case on the authority of Bucheleres.

      Finally, I reject out of hand any suggestion by the plaintiff that a mental image

in the form of an "optical illusion" is analogous to a "submerged pipe." The two are

of different natures; they are not analogous.

      Because a reasonable adult in the plaintiff's position would have appreciated

the danger of diving into a pool of unknown depth, I conclude the circuit court

correctly entered summary judgment. I would affirm as to each defendant.




                                          32
         REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                   (Front Sheet to be attached to each Opinion)
_________________________________________________________________
Please use the   ]
following form:]
                ]     DONALD DUFFY,
                ]
                ]                    Plaintiff-Appellant,
                ]            v.
                ]
                ]     JAMES G. TOGHER, RENEE TOGHER,
                ]     LATHAM PLASTICS, INC. f/k/a Pacific
                ]     Pools Industries, Inc., BLACK
                ]     OAK POOL SUPPLY, INC., and
                ]     PACIFIC INDUSTRIES, INC.,
                ]
                ]                    Defendants-Appellees
                ]
                ]     (Shaunna Travis,
                ]
                ]                    Defendant).
Complete              ]
   TITLE              ]
of Case.              ]
_________________________________________________________________
Docket No.            ]                 No. 1-06-1447
                  ] Appellate Court of Illinois
COURT             ] First District, First Division
          ]
                      ]           MARCH 31, 2008
Opinion Filed ]      (Month, Day and Year)
_________________________________________________________________
                      ]
JUSTICES          ] JUSTICE ROBERT E. GORDON delivered the opinion
                      ] of the court.
                      ]
                      ] CAHILL, P.J., concurs. GARCIA, J., dissents.
_________________________________________________________________
APPEAL from the] Lower Court and Trial Judge(s) in form indicated
Circuit Court ] in margin:
of Cook County;] Appeal from the Circuit Court of Cook County.
the Hon:______        ]
Judge Presiding] Honorable Ralph Reyna, Judge Presiding.
_________________________________________________________________
For APPELLANTS ]Indicate if attorney represents APPELLANTS or
John Doe of ]APPELLEES and include attorneys of counsel.
Chicago.              ]Indicate the word NONE if not represented.
For APPELLEES, ]_________________________________________________
Smith and     ]
Smith, of     ]
Chicago.              ]
Brown,                ]
of Counsel. ]
                      ]
                      ]PLEASE SEE REVERSE SIDE FOR LIST OF ATTORNEYS OR RECORD.
No. 1-06-1447


                   ]
                   ]
Also add atty.]
for third party]
appellants     ]
or appellees. ]

___________________(USE REVERSE SIDE IF NEEDED___________________




                           ATTORNEYS OF RECORD




                       William J. Harte
                       Chicago, Illinois 60602
                       Attorney for Appellant
                       Attn: William J. Harte
                       OF COUNSEL

                       The Healy Law Firm
                       Chicago, Illinois 60602
                       Attorneys for Appellant
                       Attn: Martin J. Healy, Jr.
                              Jack Cannon
                              William J. Harte
                              Joan M. Mannix
                              OF COUNSEL

                       Bollinger, Ruberry & Garvey
                       Chicago, Illinois 60661
                       Attorneys for Appellees, James G. Togher
                       and Renee Togher
                       Attn: Christopher G. Buenik
                          OF COUNSEL

                       Tressler, Soderstrom, Maloney & Priess, LLP
                       Chicago, Illinois 60606-6399
                       Attorneys for Appellee, Latham Plastics, Inc.
                       Attn: John H. Huston
                               OF COUNSEL


                       Doherty & Progar, LLC

                                           34
No. 1-06-1447


                Attorneys for Appellee, Black Oak Pool & Supply, Inc.
                Attn: Michael J. Progar and Stephanie Waxler Weiner
                   OF COUNSEL




                                   35
