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MeNeely v. S.R. Smith8/3/2000
Panel Five
OPINION PUBLISHED IN PART
The National Spa and Pool Institute (NSPI) is a trade association whose membership consists of manufacturers and retailers of swimming pools and related equipment. Since 1959, it has drafted and published voluntary safety standards for the swimming pool industry. NSPI's safety standards permitted the use of an S.R. Smith, Inc., 606 jump board on an NSPI Type II pool. The standards also set minimum dimensions for a Type II pool. In the early 1970s, a study commissioned by NSPI showed that young, tall, athletic males risked serious injury when using this board and pool combination. Instead of revising the standard to ban the board from Type II pools, NSPI initiated a program to encourage divers to 'steer up' upon entering the water.
In 1991, 16-year-old Shawn Meneely broke his neck when he dove from an S.R. Smith 606 jump board into a pool owned by Mr. and Mrs. John Williamson. The fracture paralyzed him from the neck down. Mr. Meneely sued several defendants, including NSPI. The superior court held that NSPI owed him and other consumers a duty to exercise due care in formulating its safety standards and to warn them about the risk of injury. The court based its decision on the voluntary rescue doctrine, as set forth in Brown v. MacPherson's, Inc., 86 Wn.2d 293, 545 P.2d 13 (1975). The jury found NSPI breached its duty and was the proximate cause of 60 percent of Mr. Meneely's $11 million in damages.
NSPI appeals. The primary issue on review is whether a trade association such as NSPI owes a duty of care to the ultimate consumer. We hold it does when it undertakes the task of setting safety standards and fails to change those standards or issue warnings after it becomes aware of a risk posed by the standards. We therefore affirm.
Facts
Mr. Meneely described the dive that rendered him a quadriplegic, as follows: He stated he ran from the rear of the board, hopped on the end, and dove headfirst into the pool, with arms and legs extended, then drew his limbs into his body before entering the water. His head hit the pool's transition slope, which is the slope between the floor of the deep end of the pool and the beginning of the pool's shallow portion. Mr. Meneely was using the pool as a guest of Mr. Williamson's grandson.
On March 19, 1993, Mr. Meneely and his parents Donald and Kathleen Meneely (hereafter referred to collectively as Mr. Meneely) filed this lawsuit against Mr. and Mrs. Williamson (hereafter Mr. Williamson) and various 'John Doe' defendants, alleging causes of action for negligence, products liability, and breach of express and implied warranties. Mr. Meneely subsequently amended his complaint to name as defendants the manufacturer and the retailer of the pool liner, the manufacturer and the retailer of the diving board, and NSPI.
Mr. Meneely claimed that the defendants were liable to him because they represented to consumers such as Mr. Williamson that the board he purchased was safe to use in his pool. Specifically, in 1965, Mr. Williamson purchased a 'hopper bottom' pool that Mr. Meneely contended was an NSPI Type II pool. At the same time, Mr. Williamson installed a diving board. In 1974, Mr. Williamson replaced the original board with one of a like kind manufactured by S.R. Smith. He bought the board from Don Jones of Pool and Patio Supply, and Mr. Jones's employees installed it. A label affixed to the new board stated that it was designed for use in NSPI Type II pools. According to Mr. Meneely, NSPI knew no later than 1971 that the S.R. Smith board was unsafe for use in Type II pools, but it did not change its safety standard.
Mr. Meneel
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