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MeNeely v. S.R. Smith8/3/2000
le inferences therefrom do not support the jury's finding that the proximate cause of Mr. Meneely's injuries was NSPI's negligence in promulgating its safety standards and in failing to warn pool owners when it became aware of the risk.
Proximate cause has two distinct elements: cause in fact and legal causation. Schooley v. Pinch's Deli Market, Inc., 134 Wn.2d 468, 478, 951 P.2d 749 (1998). Cause in fact is based on the physical connection between an act and an injury ; i.e., whether the defendant's act was the actual or 'but for' cause of the plaintiff's injury. That determination is generally left to the jury. Id. In contrast, 'legal cause is grounded in policy determinations as to how far the consequences of a defendant's acts should extend.' Id. 'The focus in the legal causation analysis is whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability.' Id. at 478-79. 'A determination of legal liability will depend upon ''mixed considerations of logic, common sense, justice, policy, and precedent.''' Id. at 479 (quoting King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)). Issues of duty and legal causation are intertwined. Schooley, 134 Wn.2d at 479. 'However, a court should not conclude that the existence of a duty automatically satisfies the requirement of legal causation.' Id. 'Legal causation is . . . a concept that permits a court for sound policy reasons to limit liability where duty and foreseeability concepts alone indicate liability can arise.' Id.
The jury here considered the following evidence on the issue of causation: Jordan Votja, the contractor who subcontracted the excavation work in Mr. Williamson's yard for the pool in 1965, did not rely upon NSPI specifications. Rather, the excavation was the same size as those he had provided for other 'hopper bottom' pool installations. The original vinyl pool liner and the replacement liner that was manufactured by Plastimayd and installed in 1981, fit the excavation, although it was of slightly different dimensions than the dimensions specified in NSPI's safety standards for Type II pools. Mr. Dowd, a former NSPI executive, testified that, to the best of his knowledge, all manufactured pools with vinyl liners were made consistent with NSPI standards for Type II pools. Experts retained by Mr. Meneely testified that Mr. Williamson's pool was, for all practical purposes, the same as an NSPI Type II pool.
Don Jones of Pool and Patio Supply sold Mr. Williamson the S.R. Smith 606 jump board in 1974 to replace his existing board. His employees installed the new board on Mr. Williamson's pool. Mr. Jones testified he did not measure Mr. Williamson's pool because he replaced the existing board with one of a like kind. Mr. Jones was a member of NSPI. When Mr. Williamson purchased the new board, NSPI already had commissioned and received the results of the Stone Report that stated that the slowing effect of the water was insufficient to keep a diver from impacting the pool bottom of an NSPI Type II pool.
The court also admitted a letter written in October 1982 by Dr. Robert Weiner, a consulting engineer, to NSPI Vice-President Larry Paulick. Dr. Weiner recommended that jump boards be banned from Type II pools. NSPI did not do so. At about this same time, it issued a 'NSPI Consumer Awareness Bulletin,' which addressed consumer questions about pool safety, including the safety of diving boards. The bulletin included the following:
Q Why not ban all diving boards?
A Statistics show that fewer than 5% of the diving accidents occur in the deep or diving end. Even without a diving boa
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