Sorting out New Jersey laws: the state Supreme Court has clarified a defense used by pool installers. The ruling is in their favor … but manufacturers and retailers weren't as lucky

Pool & Spa News, Jan 31, 2005 by Eric L. Probst

In New Jersey, an injured swimmer or pool owner cannot sue the company that installed the project if it is more than 10 years old. This law, which is called the statute of repose, protects companies that participated in the design, construction and installation of the pool.

A recent New Jersey Supreme Court decision has clarified this defense. Retailers can be sued based on claims they sold or distributed a defective product, while manufacturers of component parts can be sued because the products are mass-produced and therefore constitute stock items or inventory. The statute will not protect these companies when the lawsuit relates to the sale of the pool and not its installation.

The court's conclusion

Events surrounding the recent decision Dziewiecki v. Bakula were as follows: Janusz Dziewiecki fractured his neck when he dove from one side of the pool and struck his head on the opposite, sloped wall. As a result, he is a quadriplegic. The inground residential pool was a kit installation. Dziewiecki sued several parties: the manufacturer, homeowner and installer, who also happened to be the distributor of the pool kit. The pool was 25 years old when Dziewiecki was injured.

The court had to deter mine whether Dziewiecki could sue the pool installer/ distributor, as well as the kit manufacturer. Dziewiecki claimed the pool was defective because warning signs were inadequately located around the project, preventing him from appreciating the vessel's depth. The installer/distributor and the manufacturer argued that the statute protected them from the suit because the pool was installed 25 years before the accident.

The court made the following three decisions:

1 Dziewiecki could not sue the installer/distributor in its role as an installer because the product was more than 10 years old.

2 Dziewiecki could sue the installer/distributor based on a claim that the company, acting as a distributor, sold an unsafe product--the pool kit.

3 Dziewiecki could sue the kit manufacturer because it did not install the pool. Basically, the court ruled the installer could not be sued for any activities related to the project's installation, but could be sued for its conduct as the pool-kit seller. The same held true for the pool-kit manufacturer.

Broad-reaching impact

The impact of the decisions depends on whether a company is a pool installer, retailer, distributor or component-part manufacturer.

* Pool installers

This decision clarifies the defense. The statute protects pool companies and subcontractors who install a project's decking, coping, plumbing lines, shell and finish. It also protects construction supervisors and pool architects. For a l0-year-old pool, the statute will bar an owner's claim that the company used faulty or improper construction methods to install the project. These claims are barred because they relate to the company's role as pool installer.

* Retailers, distributors and component parts manufacturers

These industry professionals are not involved with pool construction. Instead, they sell mainly products such as pumps, filters and heaters. The statute is limited to installers. Retailers, manufacturers and distributors have liability exposure beyond 10 years for the products they sell, manufacture or distribute. When an injured swimmer claims a manufacturer or retailer designed or sold a defective product, the companies cannot rely on the statute to defeat the claim.

Therefore, because the statute will not apply, retailers, distributors and component-parts manufacturers must strive to be litigation-savvy. They need to maintain complete records of the product line's specifications, blueprints and design history to assist in the defense of claims relating to products more than 10 years old.