Tighe v. Peterson , 175 N.J. 240 ( 2002 )

LONG J.,

dissenting.

Plaintiff Paul Tighe was severely injured when he dove into defendants’ pool after apparently misjudging the point at which the pool water was deep enough for diving. Although the pool had no depth or other safety markings, the trial court granted summary judgment in favor of defendants, apparently because plaintiff had used the pool on a number of prior occasions and was generally familiar with it. Over a dissenting opinion by Judge Wecker, the Appellate Division affirmed, essentially on the ground that plaintiffs familiarity with the pool obviated any further duty that defendants otherwise might have had toward him.

That ruling dices the notion of duty too finely. Under our law, the existence of a duty of care in a particular case is a fact-sensitive inquiry that turns on whether its imposition “satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy.” Goldberg v. Housing Auth., 38 N.J. 578, 583, 186 A.2d 291 (1962).

That inquiry involves identifying, weighing, and balancing several factors — the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. The analysis is both very fact-specific and principled; it must lead to solutions that properly and fairly resolve the specific case and generate intelligible and sensible rules to govern future conduct.

[Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434, 625 A.2d 1110 (1993) (citation omitted).]

Where the potential harm resulting from a risk is great and the means of avoiding it small, “it is fair to impose a duty.” J.S. v. R.T.H., 155 N.J. 330, 339, 714 A.2d 924 (1998); see also Kelly v. Gwinnell, 96 N.J. 538, 549-50, 476 A.2d 1219 (1984) (holding defendant liable for injuries stemming from drunk driving accident where defendant had provided driver with alcohol because potential harm was “serious” and defendant’s actions were “relatively easily corrected”). That is the ease here.

As Judge Weeker observed, because the risk of serious harm from diving into shallow water is so great and the concomitant avoidance practice (painting depth marks or “no diving” signs) requires so little effort, notions of basic fairness impose a duty on pool owners to take such protective measures. To be sure, plaintiffs own conduct may ultimately bar or severely limit his recovery. But that is an issue for the jury and not for the trial court, the Appellate Division, or for us.

I would therefore reverse and remand this case for trial substantially for the reasons expressed in the thorough and thoughtful dissenting opinion of Judge Weeker.

For affirmance — Chief Justice PORITZ and Justices COLEMAN, VERNIERO, and LaVECCHIA — 4. For reversal and remandment — Justice LONG, and Justices ZAZZALI and ALBIN — 3.