{ "id": 4277047, "name": "DONALD DUFFY, Plaintiff-Appellant, v. JAMES G. TOGHER et al., Defendants-Appellees (Shauna Travis, Defendant)", "name_abbreviation": "Duffy v. Togher", "decision_date": "2008-03-31", "docket_number": "No. 1\u201406\u20141447", "first_page": "1", "last_page": "22", "citations": [ { "type": "official", "cite": "382 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "231 Ill. App. 3d 46", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5202409 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "51-52" }, { "page": "53", "parenthetical": "\"Even if a risk is considered open and obvious, a duty to warn may still be imposed\"" }, { "page": "52", "parenthetical": "\"a duty to warn arises where the existence of a dangerous condition is known *** and it is not apparent to the other party\"" }, { "page": "52", "parenthetical": "\"a duty to warn arises where the existence of a dangerous condition is known *** and it is not apparent to the other party\"" }, { "page": "52", "parenthetical": "\"a duty to warn arises where the existence of a dangerous condition is known *** and it is not apparent to the other party\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0046-01" ] }, { "cite": "329 Ill. App. 3d 620", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472421 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0620-01" ] }, { "cite": "238 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5154152 ], "weight": 5, "year": 1992, "pin_cites": [ { "page": "359" }, { "page": "357-59" }, { "page": "357-59" }, { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0355-01" ] }, { "cite": "168 Ill. App. 3d 558", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3512092 ], "weight": 5, "year": 1988, "pin_cites": [ { "page": "560" }, { "page": "563" }, { "page": "563" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0558-01" ] }, { "cite": "369 Ill. App. 3d 27", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267104 ], "year": 2006, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0027-01" ] }, { "cite": "215 Ill. 2d 78", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4059883 ], "year": 2005, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0078-01" ] }, { "cite": "169 Ill. 2d 110", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909171 ], "year": 1995, "pin_cites": [ { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0110-01" ] }, { "cite": "939 F. Supp. 619", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7654377 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "622" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/f-supp/939/0619-01" ] }, { "cite": "119 F.3d 551", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 199920 ], "weight": 7, "year": 1997, "pin_cites": [ { "page": "555" }, { "page": "552" }, { "page": "552-53" }, { "page": "553" }, { "page": "554", "parenthetical": "after stating \"whether a particular danger is open and obvious is an objective inquiry,\" appellate court affirmed without even mentioning plaintiffs alcohol consumption, which had been noted in the district court's opinion" } ], "opinion_index": 0, "case_paths": [ "/f3d/119/0551-01" ] }, { "cite": "277 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172412 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "1038-39" }, { "page": "1039-40", "parenthetical": "proximate cause" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/1034-01" ] }, { "cite": "314 Ill. App. 3d 195", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140092 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "203", "parenthetical": "\"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\"" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0195-01" ] }, { "cite": "201 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477033 ], "year": 2002, "pin_cites": [ { "page": "20-21", "parenthetical": "Harrison, C.J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0001-01" ] }, { "cite": "329 Ill. App. 3d 38", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472414 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "43", "parenthetical": "\"Whether a condition presents an open and obvious danger is a question of fact\"" }, { "page": "42" }, { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0038-01" ] }, { "cite": "268 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381796 ], "weight": 7, "year": 1994, "pin_cites": [ { "page": "1044" }, { "page": "1044", "parenthetical": "danger of dive into shallow, above ground pool was not open and obvious to reasonable 14-year-old" }, { "page": "1041" }, { "page": "1044" }, { "page": "1035" }, { "page": "1035" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/1031-01" ] }, { "cite": "171 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57330 ], "weight": 7, "year": 1996, "pin_cites": [ { "page": "445-47" }, { "page": "449", "parenthetical": "not \"an automatic or per se bar\"" }, { "page": "456" }, { "page": "456" }, { "page": "456" }, { "page": "447", "parenthetical": "contributory negligence" }, { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0435-01" ] }, { "cite": "185 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121957 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "391" }, { "page": "388" }, { "page": "391" }, { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0380-01" ] }, { "cite": "375 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4271880 ], "year": 2007, "pin_cites": [ { "page": "14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/375/0001-01" ] }, { "cite": "224 Ill. 2d 247", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3606843 ], "weight": 14, "year": 2007, "pin_cites": [ { "page": "269" }, { "page": "271" }, { "page": "270" }, { "page": "254" }, { "page": "254-56" }, { "page": "255" }, { "page": "256" }, { "page": "259" }, { "page": "259, 262-63, 271" }, { "page": "266" }, { "page": "264-65" }, { "page": "271" }, { "page": "262" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0247-01" ] }, { "cite": "266 Ill. App. 3d 434", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887262 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "435" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0434-01" ] }, { "cite": "226 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610622 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "370" }, { "page": "370" }, { "page": "370", "parenthetical": "a genuine issue of material fact requires the denial of a summary judgment motion" }, { "page": "370", "parenthetical": "a genuine issue of material fact requires the denial of a summary judgment motion" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0359-01" ] }, { "cite": "185 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121970 ], "weight": 14, "year": 1998, "pin_cites": [ { "page": "423" }, { "page": "423-24" }, { "page": "424" }, { "page": "424" }, { "page": "425", "parenthetical": "providing citations to cases" }, { "page": "426-27", "parenthetical": "submerged pipe created danger in lake that was not open and obvious" }, { "page": "425" }, { "page": "425" }, { "page": "425" }, { "page": "426" }, { "page": "425" }, { "page": "427", "parenthetical": "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" }, { "page": "425" }, { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0418-01" ] }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "year": 1986, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] }, { "cite": "226 Ill. 2d 307", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610870 ], "year": 2007, "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0307-01" ] }, { "cite": "377 Ill. App. 3d 1109", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273037 ], "year": 2007, "pin_cites": [ { "page": "1118", "parenthetical": "Myerscough, J., specially concurring" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/377/1109-01" ] }, { "cite": "706 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 1 }, { "cite": "606 N.E.2d 384", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "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" } ], "opinion_index": 1 }, { "cite": "633 N.E.2d 111", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "260 Ill. App. 3d 707", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863752 ], "year": 1994, "pin_cites": [ { "page": "715" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/260/0707-01" ] }, { "cite": "238 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5154152 ], "year": 1992, "pin_cites": [ { "page": "359", "parenthetical": "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" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/238/0355-01" ] }, { "cite": "119 F.3d 551", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 199920 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "555" }, { "page": "555" }, { "page": "555" } ], "opinion_index": 1, "case_paths": [ "/f3d/119/0551-01" ] }, { "cite": "268 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381796 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ill-app-3d/268/1031-01" ] }, { "cite": "266 Ill. App. 3d 434", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887262 ], "year": 1994, "pin_cites": [ { "parenthetical": "Myerscough, J., specially concurring" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/266/0434-01" ] }, { "cite": "185 Ill. 2d 418", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121970 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "425" }, { "page": "426" }, { "page": "426" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/185/0418-01" ] } ], "analysis": { "cardinality": 1589, "char_count": 54401, "ocr_confidence": 0.845, "pagerank": { "raw": 5.8797817548445e-08, "percentile": 0.3684324839015711 }, "sha256": "62e172d253aff6fd7034ea0ef33978d625c3e3fe5bd4c2ad7a09ca8d67af4985", "simhash": "1:9b9ed416582594fc", "word_count": 9163 }, "last_updated": "2023-07-14T21:27:01.752924+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DONALD DUFFY, Plaintiff-Appellant, v. JAMES G. TOGHER et al., Defendants-Appellees (Shauna Travis, Defendant)." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nOn 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\u2019s 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 the Toghers\u2019 niece and the person who invited plaintiff to use the Toghers\u2019 pool.\nPlaintiff 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.\nBACKGROUND\nThe parties agree that at the time plaintiff dove into the Toghers\u2019 pool, there were: (1) no signs saying \u201cno diving\u201d; 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 \u201cno diving\u201d 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 \u201cno diving\u201d because she believed that diving into the pool was \u201cdangerous.\u201d Defendant Renee Togher testified that she repeated these oral warnings \u201ca lot.\u201d Neither James nor Renee Togher was at home when plaintiff dove into their pool.\nAt his discovery deposition, plaintiff testified that he stood on the west side of the pool\u2019s 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 Togh-ers\u2019 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 \u201cseen the ladder, so [he] figured that the water\u2019s deep enough that you need a ladder to climb out of [it],\u201d that he \u201cfigured a pool had a shallow end and a deep end,\u201d and that he assumed he was diving into the deep end of the pool.\nThe parties do not dispute the following facts about the Toghers\u2019 pool. The Toghers\u2019 in-ground swimming pool was completed on May 10, 2000, approximately a year before plaintiff\u2019s 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\u2019s east side. There is no diving board.\nThe 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.\nIn the middle, the floor has a two-foot, flat area, with the pool\u2019s deepest depth. The floor of the pool slopes down from both its north and south ends, toward this flat area in the middle.\nPlaintiff 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.\nThis 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.\nDr. Ralph Johnson, a swimming pool expert retained by plaintiff, listed in his affidavit a number of ways in which the Toghers\u2019 pool violated industry standards set by the National Spa 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\u2019 pool was \u201cvery unusual.\u201d\nWith respect to the pool liner, Dr. Johnson\u2019s affidavit stated that its design was \u201ca dangerous, deceptive and non-traditional design in the residential pool market.\u201d Dr. Johnson explained that \u201c[mjixing 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.\u201d\nDr. Johnson\u2019s affidavit further stated that the Toghers\u2019 pool ere-ated an \u201coptical illusion of a deep end,\u201d with \u201ca classic deep-end ladder\u201d at one end of the pool; and broad steps typically associated with a shallow end, at the other end of the pool. He stated: \u201cIn my opinion, had the north end of the pool been designed with steps and handrails, this accident would not have occurred.\u201d He also observed: \u201cIn order to comply with ANSI/NPSI, the ladder should have been placed in the deepest part of the pool, which is the middle.\u201d\nIn addition, Dr. Johnson\u2019s affidavit stated that since \u201cthe pool bottom [was] uniform in texture and posture,\u201d the pool depth was \u201cdifficult if not impossible to judge.\u201d At his deposition, he noted that the liner was \u201cSparkle Blue\u201d in color, with a \u201cCreek Stone\u201d pattern. Dr. Johnson testified that \u201c[t]he pattern would help to obscure the bottom.\u201d He explained that: \u201cIf 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.\u201d\nDr. Johnson also testified at his deposition about his qualifications as a swimming pool expert, as follows: He received his bachelor\u2019s and master\u2019s 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.\nDr. 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\u2019s affidavit and deposition testimony and plaintiff\u2019s deposition testimony, that it was not open and obvious that the north end of the Toghers\u2019 pool was shallow.\nDr. Leon Kazarian, a biomechanical engineer specializing in accident-related industries retained by plaintiff, submitted an affidavit and testified at his discovery deposition that plaintiffs injuries were consistent with a headfirst dive into shallow water.\nDr. Jerrold Blair Leikin, a medical physician specializing in toxicology retained by defendants, testified at his discovery deposition that he reviewed: plaintiffs 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 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.\nIn 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 \u2014 501.2(b) (West 2006). If a defendant\u2019s blood-alcohol level was .05 or less, \u201cit shall be presumed that the person was not under the influence of alcohol.\u201d 625 ILCS 5/11 \u2014 501.2(b)(1) (West 2006). If the defendant\u2019s blood-alcohol level was more than .05 but less than .08, then \u201csuch facts shall not give rise to any presumption that the person was or was not under the influence of alcohol.\u201d 625 ILCS 5/11 \u2014 501.2(b)(2) (West 2006). If the defendant\u2019s blood-alcohol level was .08 or more, \u201cit shall be presumed that the person was under the influence of alcohol.\u201d 625 ILCS 5/11\u2014 501.2(b)(3) (West 2006).\nPlaintiff\u2019s second amended complaint, which is the operative complaint on this appeal, alleged the following counts: count I, against the Toghers, for premises liability; counts II and III, against defendant Latham, for strict liability and negligence; and counts IV and V, against defendant Black Oak, for strict liability and negligence. Counts VI and VII 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.\nIn his complaint, plaintiff alleged that defendants\u2019 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).\nDefendants 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\u2019 primary argument for summary judgment was that the Toghers\u2019 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.\nOn May 17, 2006, the trial court issued a handwritten order that disposed of the summary judgment motions in one line: \u201cAll motions for summary judgment are granted, instanter.\u201d The order did not specify the trial court\u2019s 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.\nANALYSIS\nThis appeal concerns the grant of summary judgment. \u201c[S]ummary judgment is a drastic measure [that] should only be allowed \u2018when the right of the moving party is clear and free from doubt.\u2019 \u201d 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 \u201conly where \u2018the 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.\u2019 \u201d Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 370 (2007), quoting 735 ILCS 5/2\u20141005(c) (West 2006).\nOn a motion for summary judgment, the trial court has \u201ca duty to construe the record strictly against the movant and liberally in favor of the nonmoving party.\u201d Jackson, 185 Ill. 2d at 423-24; Osborne v. Claydon, 266 Ill. App. 3d 434, 435 (1994). As a result, summary judgment is not appropriate: (1) if \u201cthere is a dispute as to a material fact\u201d (Jackson, 185 Ill. 2d at 424); (2) if \u201creasonable persons could draw divergent inferences from undisputed material facts\u201d (Jackson, 185 Ill. 2d at 424); or (3) if \u201creasonable persons could differ on the weight to be given the relevant factors\u201d of a legal standard (Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 269 (2007)). A trial court\u2019s grant of summary judgment is subject to de novo review. Rich, 226 Ill. 2d at 370.\nFor 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 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\u2019 pool was an accident wait- \u25a0 ing to happen. Below, we discuss in detail each theory of liability against each defendant.\nDefendant Toghers\nIn his complaint, plaintiff alleged one count of premises liability against defendant Toghers. Generally, \u201c[a] possessor of premises has a duty to guard against harm to an invitee.\u201d Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 14 (2007), citing LaFever v. Kemlite Co., 185 Ill. 2d 380, 391 (1998).\nThe Toghers\u2019 attorney stated to the trial court during argument that the Toghers were moving for summary judgment \u201con one point and one point only\u201d: that they did not owe plaintiff a duty of care because their pool posed an open and obvious danger. The defendant Toghers\u2019 argument is based on \u201cthe principle of Illinois law which holds that persons who own, occupy or control and maintain land are not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.\u201d Jackson, 185 Ill. 2d at 424-25, citing Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 445-47 (1996).\nThe 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 \u201cthe obviousness of the danger is for the jury to determine.\u201d 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) (\u201cWhether a condition presents an open and obvious danger is a question of fact\u201d), cited by Sollami v. Eaton, 201 Ill. 2d 1, 20-21 (2002) (Harrison, C.J., dissenting) (\u201cWhether a condition presents an open and obvious danger is a question of fact for the trier of fact\u201d); Buchaklian v. Lake County Family Young Men\u2019s Christian Ass\u2019n, 314 Ill. App. 3d 195, 203 (2000) (\u201csummary 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\u201d).\nThe general rule in Illinois is that a body of water presents an open and obvious danger whether it is naturally occurring, such as Lake Michigan, or it is man-made, such as a swimming pool. Jackson, 185 Ill. 2d at 425 (providing citations to cases). 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).\nIn addition, the \u201cone and only\u201d 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 supreme court has held with respect to a premises liability claim that \u201c[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.\u201d Jackson, 185 Ill. 2d at 425; Bucheleres, 171 Ill. 2d at 449 (not \u201can automatic or per se bar\u201d). Other relevant factors include: \u201c[1] the likelihood of injury, [2] the reasonable foreseeability 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.\u201d 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\u2019s analysis is not \u201ccomplete\u201d until it has analyzed these four \u201ctraditional\u201d factors. Jackson, 185 Ill. 2d at 425; Bucheleres, 171 Ill. 2d at 456.\nThe Toghers\u2019 brief to the trial cotut sought summary judgment on one ground only: \u201cThe Toghers did not owe the plaintiff a duty to warn against \u2018open and obvious\u2019 dangers.\u201d Dr. Johnson, an expert hired by plaintiff, stated in his affidavit and at his deposition that the design of the Toghers\u2019 pool was \u201cvery unusual.\u201d First, Dr. Johnson\u2019s affidavit stated that the design was \u201cunsafe for the ordinary pool user,\u201d who expects a pool to have both a shallow and a deep end. Second, Dr. Johnson\u2019s affidavit stated that the problem was compounded by an \u201coptical illusion of a deep end,\u201d 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\u2019s affidavit observed that the pool bottom was uniform in texture and pattern, which Dr. Johnson stated made the pool depth \u201cdifficult if not impossible to judge.\u201d At his deposition, he testified that the \u201cSparkle Blue\u201d color in the \u201cCreek Stone\u201d pattern \u201cwould help to obscure the bottom.\u201d The expert\u2019s affidavit and deposition testimony created a material issue of fact about whether a shallow bottom in a \u201cdeep end\u201d section of the pool was a nonobvious danger.\nPlaintiff 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 plaintiffs own subjective perception but by an objective standard. Klen, 268 Ill. App. 3d at 1041.\nThe Toghers\u2019 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\u2019 backyard. The appellate court in Osborne held that defendants had \u201cno 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.\u201d 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.\nSecond, 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 3V2 feet was an open and obvious danger to a reasonable 13-year-old. Unlike the pool in Barham, the Toghers\u2019 pool did not have a uniform depth and was not aboveground. Plaintiff in the case at bar alleged that the danger of the Toghers\u2019 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\u2019 pool. Thus, the pool in Barham is readily distinguishable from the pool in the case at bar.\nThird, 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\u2019s 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\u2019d, 119 F.3d 551 (7th Cir. 1997). The Toghers\u2019 pool is nothing like the pool in Lederman. The Toghers\u2019 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\u2019 appellate brief are readily distinguishable from the facts at hand.\nPlaintiff 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\u2019 pool, namely its \u201coptical illusion\u201d of depth, was also submerged. Dr. Johnson, plaintiffs swimming pool expert, stated in his affidavit that the Toghers\u2019 pool created an \u201coptical illusion of a deep end.\u201d We cannot reach a conclusion as a matter of law that the danger of the Toghers\u2019 pool was obvious. As this court has held before, \u201c[w]here there is a doubt, the obviousness of the danger is for the juiy to determine.\u201d Klen, 268 Ill. App. 3d at 1044.\nEven if the trial court had properly found that the danger of the Toghers\u2019 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 (\u201cEven if a risk is considered open and obvious, a duty to warn may still be imposed\u201d). The trial court was still required to analyze the four \u201ctraditional\u201d factors. Jackson, 185 Ill. 2d at 425; Bucheleres, 171 Ill. 2d at 456.\nWith respect to the first two traditional factors, the likelihood of injury and the reasonable foreseeability of such injury, defendant Renee Togher\u2019s 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 (\u201ca duty to warn arises where the existence of a dangerous condition is known *** and it is not apparent to the other party\u201d). Also, defendant James Togher testified that he received a plastic warning sign from defendant Black Oak. The sign stated: \u201cDanger. Shallow water. No diving. Diving may cause death, paralysis or permanent injury.\u201d\nWith 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\u2019s deposition testimony created a genuine issue of material fact when he admitted that he was provided with \u201cno diving\u201d 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 \u201celiminated at virtually no cost or expense\u201d to defendant). Defendant James Togher testified that after completion of the pool, Vincent Perfitto, the owner of defendant Black Oak, provided both adhesive \u201cno diving\u201d 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 \u201cliner information\u201d 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).\nPrior to the trial court\u2019s summary judgment decision, defendants offered the affidavit and deposition testimony of a medical toxicologist who offered an opinion about plaintiffs intoxication at the time of the accident. Plaintiffs alleged intoxication does not affect this court\u2019s 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 Cir. 1997) (after stating \u201cwhether a particular danger is open and obvious is an objective inquiry,\u201d appellate court affirmed without even mentioning plaintiffs alcohol consumption, which had been noted in the district court\u2019s opinion), affirming Lederman v. Pacific Industries, Inc., 939 F. Supp. 619, 626 (N.D. Ill. 1996); 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) (\u201cobjective standard\u201d). Plaintiffs 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); Barham, 277 Ill. App. 3d at 1039-40 (proximate cause). However, it 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.\nIn addition, if we were to find that the unknown depth of the Toghers\u2019 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 \u201cwhen the possessor \u2018has 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.\u2019 \u201d LaFever, 185 Ill. 2d at 391, quoting Restatement (Second) of Torts \u00a7343A, Comment f, at 220 (1965). The deliberate encounter exception has no application to this case.\nThe distraction exception states that \u201cthe possessor of the premises should anticipate harm to an invitee when the possessor \u2018has reason to expect that the invitee\u2019s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.\u2019 \u201d LaFever, 185 Ill. 2d at 391, quoting Restatement (Second) of Torts \u00a7343A, Comment f, at 220 (1965). The combination of a number of factors about the Togh-ers\u2019 pool came together to create a distraction or, as Dr. Johnson phrased it, \u201can optical illusion.\u201d 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\u2019s expectation of a deep and a shallow end; and a \u201cSparkle Blue\u201d color in a repeating \u201cCreek Stone\u201d pattern which helped to obscure the bottom.\nFor the reasons stated above, we reverse the trial court\u2019s grant of summary judgment in favor of defendant Toghers.\nDefendant Black Oak\nPlaintiff 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 plaintiffs injury was proximately caused by the defendant\u2019s 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.\nTo 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 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 \u201cthe product failed to perform as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.\u201d Calles, 224 Ill. 2d at 256. Under the risk utility test, a plaintiff succeeds by proving that \u201cthe magnitude of the danger outweighs the utility of the product, as designed.\u201d Calles, 224 Ill. 2d at 259.\nIn 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\u2019 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, 262-63, 271. In a negligence suit, we are still required to consider the four traditional factors: (1) the likelihood of injury; (2) the reasonable foreseeability 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, \u201cthe court must balance factors it finds relevant to determine if the case is a proper one to submit to the jury.\u201d 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.\nWith respect to the first two traditional factors, the likelihood and foreseeability of injury, 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 \u201ca very good idea\u201d to post \u201cno diving\u201d signs at the Toghers\u2019 pool \u201cto warn somebody prior to jumping in shallow water\u201d because it is \u201cvery possible\u201d that a person can sustain a cervical injury from such a jump. Schellenberg, 231 Ill. App. 3d at 52 (\u201ca duty to warn arises where the existence of a dangerous condition is known *** and it is not apparent to the other party\u201d). 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 \u201cnot too often.\u201d\nWith 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 \u201cmaybe 15, 20 minutes\u201d to install the adhesive warning stickers and the plastic warning signs. He also testified that installation required only \u201ca good eye [and] a level,\u201d and that his company received the warning stickers and signs from the liner manufacturer in a \u201csafety packet.\u201d Jackson, 185 Ill. 2d at 427 (duty to warn was based, in part, on the fact that the danger could have been \u201celiminated at virtually no cost or expense\u201d 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).\nFor the reasons stated above, we reverse the trial court\u2019s grant of summary judgment in favor of defendant Black Oak.\nDefendant Latham\nAs with defendant Black Oak, plaintiff\u2019s complaint against defendant Latham, the manufacturer of the pool\u2019s 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\u2019 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.\nAs already discussed above, this court cannot reach a conclusion as a matter of law that the danger of the Toghers\u2019 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 \u201copen and obvious nature of a danger is just one factor in evaluating\u201d claims for negligence and strict liability, but \u201c[i]t is not dispositive.\u201d 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.\nWith respect to the first two traditional factors, defendant Latham\u2019s safety packet created a genuine issue of material fact with respect to the likelihood and foreseeability of injury. The 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\u2019 pool. Schellenberg, 231 Ill. App. 3d at 52 (\u201ca duty to warn arises where the existence of a dangerous condition is known *** and it is not apparent to the other party\u201d).\nWith 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\u2019s technical service manager at the time that the Toghers\u2019 pool was installed. 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\u2019s 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\u2014 unless, of course, nobody expected the customer to use them. Oliver testified that only 15% of its customers returned the cards provided in Latham\u2019s safety packet to indicate that they had received or applied the warning signs.\nIn addition, Dr. Johnson, plaintiffs expert, testified at his deposition that \u201c[y]ou can put warnings on liners,\u201d that \u201cthere [was] an obligation on the part of Latham to put some of those warning on their vinyl liner,\u201d that \u201cthe ability to print warnings or anything that you want to on vinyl has been available in the industry going clear back to 1983\u201d and that \u201cthere [was] no reason Latham couldn\u2019t have done it.\u201d In Dr. Johnson\u2019s opinion, \u201cthe 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.\u201d 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).\nIn 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).\nIn 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 \u201cwas not provided with any information from which it could judge whether the strength of the tower would be appropriate.\u201d Loos, 168 Ill. App. 3d at 563. The appellate court held that while \u201c[a] component part manufacturer may be found strictly liable for the injuries attributable to the defective component,\u201d plaintiff failed to submit any evidence to contradict defendant\u2019s affidavit. Loos, 168 Ill. App. 3d at 563. Thus, the trial court properly granted summary judgment. Loos, 168 Ill. App. 3d at 563.\nBy contrast, Oliver\u2019s deposition testimony created a material issue of fact about whether Latham had sufficient information to judge the appropriateness of its component part. Oliver testified that the National Spa and Pool Institute (NSPI) set industry standards for residential, nondiving pools, and that the design of the Toghers\u2019 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\u2019s responsibility but the responsibility of the installer of the pool, he acknowledged that Latham\u2019s owner\u2019s manual, which was delivered to the Toghers, guaranteed that the liner was produced in conformity with NSPI standards. Thus, the record created a genuine issue of material fact concerning the appropriateness of the component part manufactured by defendant Latham.\nThe dissent makes a number of legal errors. First, the dissent\u2019s one and only point is that the Toghers\u2019 pool was an open and obvious danger. Our supreme court could not have been more clear: \u201copen and obvious\u201d 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\u2019 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.\nThe dissent tries to distinguish the supreme court\u2019s holding in Jackson, 185 Ill. 2d at 426, by stating \u201cJackson involved a risk of injury known to the owner but unknown to the invitee.\u201d 382 Ill. App. 3d at 22. 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 now a quadriplegic as a result.\nThe dissent also asserts that \u201cwe need not engage in such [traditional duty] analysis in this case on the authority of Bucheleres.\u201d 382 Ill. App. 3d at 22. In Bucheleres, our supreme court found that a danger was \u201copen and obvious\u201d 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.\nSecond, the dissent discusses the Seventh Circuit\u2019s 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 \u201copen and obvious\u201d: 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\u2019 pool. A finding against the Lederman plaintiff has little bearing on our case.\nThird, the dissent claims \u201cthere is no factual support\u201d for Dr. Johnson\u2019s opinion. 382 Ill. App. 3d at 20. 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\u2019s 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 \u201cSparkle Blue\u201d color in a repeating \u201cCreek Stone\u201d pattern which helped to obscure the bottom. Dr. Johnson also discussed how this design violated a number of industry standards.\nFourth, the dissent cites Glass v. Morgan Guaranty Trust Co., 238 Ill. App. 3d 355 (1992), out of context. The dissent cited Glass for the proposition that: \u201c \u2018The optical illusion is in the mind of the beholder.\u2019 \u201d 382 Ill. App. 3d at 21; 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 plaintiffs 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 \u201cidentify an expert witness to substantiate\u201d her claims or \u201cany engineering and architectural standards that allegedly were violated,\u201d and thus we affirmed the grant of summary judgement in favor of defendant. Glass, 238 Ill. App. 3d at 359. 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\u2019s opinion based on factual support that the pool created an optical illusion. Applying Glass to our facts requires a reversal.\nCONCLUSION\nIn sum, we cannot conclude as a matter of law that the danger of the Toghers\u2019 swimming pool was open and obvious. Plaintiffs swimming pool expert stated that the Toghers\u2019 pool created an \u201coptical illusion of a deep end\u201d and that its design was \u201cvery unusual.\u201d In addition, an open and obvious danger is not an absolute bar to a plaintiffs recovery. A court must still consider the traditional factors of the likelihood and foreseeability of injury and the magnitude and consequences of placing a duty to warn on defendants.\nThe 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 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\u2019 pool was an accident waiting to happen. For the reasons stated above, we reverse the trial court\u2019s grant of summary judgment and remand for further proceedings consistent with this opinion.\nReversed and remanded with instructions.\nCAHILL, EJ., concurs.\nDefendants 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 at issue in this appeal.\nApproximately 20 court cases involving headfirst aquatic injuries have occurred in Illinois since 1990. A. Clement, Risk Management Issues in Sport: Headfirst Aquatic Incident Court Decisions: The Plaintiff\u2019s Odds, 17 J. Legal Aspects of Sport 107, 125 (Winter 2007) (listing 19 Illinois state and federal court cases between 1990 and 2005).\nThe 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 obvious to a reasonable 14-year-old. Klen, 268 111. App. 3d at 1044. The Barham opinion made no mention of the opposing decision issued by this court two years earlier in Klen.\nThe 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.\nThe Toghers\u2019 appellate brief cited the federal district court\u2019s opinion in Lederman without citing the subsequent appellate court\u2019s opinion.\nIn a footnote to their appellate briefs statement of facts, the Toghers argue that their expert\u2019s 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 \u201cconsistently 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.\u201d Bodkin, 329 Ill. App. 3d at 634. This court further observed that \u201c[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.\u201d Bodkin, 329 Ill. App. 3d at 634. This court takes no position concerning the future admissibility of evidence of plaintiffs alleged intoxication or its relevance to the possible issues of proximate cause, assumption of risk or contributory negligence.\nThe 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\u2019s strict liability discussion.\nOliver testified that he was hired in 1995 as Latham\u2019s \u201cManager of Customer and Technical Service\u201d and worked there for almost 10 years. At \u201csometime in 2001,\u201d his title changed to \u201cTechnical Support Manager,\u201d and he was no longer responsible for customer service. He then wrote Latham\u2019s procedures and manuals \u201con how to install a liner, how to build a pool, and how to assemble products, resolution of problems encountered commonly, things of that nature.\u201d\nOliver testified that the NSPI was \u201can industry-related group that promotes the products that are sold and installed by the pool industry\u201d and that defendant Latham belonged to NSPI.\nAt his deposition, Oliver read into the record the following portion of Latham\u2019s pool owner\u2019s manual: \u201cThe 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.\u201d\nIn addition, Oliver admitted that he had seen language employed by Cardinal Systems, Inc., which was the manufacturer of the steel panels for the Toghers\u2019 pool, to the effect that Cardinal\u2019s dig specifications should be verified by the liner manufacturer to insure that they comply with NSPI standards. Oliver testified that Latham worked on a daily basis with Cardinal.", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" }, { "text": "JUSTICE GARCIA,\ndissenting:\nI cannot agree with the majority that \u201c[t]he expert\u2019s affidavit and deposition testimony created a material issue of fact about whether a shallow bottom in a \u2018deep end\u2019 section of the pool was a nonobvious danger.\u201d 382 Ill. App. 3d at 10. In my judgment there is no factual support for the expert\u2019s opinion. \u201cAn expert\u2019s opinion is only as valid as the bases and reasons for the opinion. When there is no factual support for an expert\u2019s conclusions, his conclusions alone do not create a question of fact.\u201d Gyllin v. College Craft Enterprises, Ltd., 260 Ill. App. 3d 707, 715, 633 N.E.2d 111 (1994).\nDr. Johnson\u2019s opinion centers on his contention that the pool design created an \u201coptical illusion of a deep end.\u201d I am unpersuaded that a claimed \u201coptical illusion\u201d 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 \u201coptical illusion of a deep end\u201d was for the trier of fact to determine, to form a factual question itself. In my judgment, the claim of an \u201coptical illusion of a deep end\u201d is no different from the thought each unfortunate plaintiff must have had after the disastrous dive: \u201cI thought the water was deeper.\u201d The plaintiffs contention that a material question of fact remains based on Dr. Johnson\u2019s 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: \u201cThe optical illusion is in the mind of the beholder.\u201d See Glass v. Morgan Guaranty Trust Co., 238 Ill. App. 3d 355, 359, 606 N.E.2d 384 (1992) (liability claim founded on \u201coptical illusion\u201d that \u201csteps [tended] to blend together visually\u201d rejected because plaintiff\u2019s position that landowner should have constructed steps differently goes beyond what the law requires for duty of reasonable care).\nI also disagree that the cases that have rejected an adult plaintiffs claim of liability based on a headfirst dive into a pool are all distinguishable on their facts. I agree with the Lederman court\u2019s 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. Lederman, 119 F.3d at 555. I concur with the conclusion of the Lederman court: \u201cIllinois\u2019 highest court would hold that the risks associated with Mr. Lederman\u2019s injurious dive would have been obvious to a reasonable adult in his position.\u201d Lederman, 119 F.3d at 555. The Lederman court also implied that a reasonable adult would not have attempted such a dive because \u201cthe depth of the pool at any one point could not be ascertained from outside the pool.\u201d Lederman, 119 F.3d at 555. This observation echos Dr. Johnson\u2019s conclusion that the texture and pattern of the pool bottom made it \u201c \u2018difficult if not impossible to judge [its depth].\u2019 \u201d 382 Ill. App. 3d 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.\nI recognize our supreme court has held \u201c[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.\u201d 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 \u201cthe risk of injury from diving into water that is too shallow. [That] risk[ ] is [not] at issue here.\u201d Jackson, 185 Ill. 2d at 426. The risk of injury involved striking a submerged pipe, which our supreme court noted \u201cstemmed solely from TLC\u2019s conduct.\u201d 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 \u201cthe risk of injury from diving into water that is too shallow,\u201d the court in Jackson invoked the traditional duty analysis of likelihood of injury and the foreseeability of such injury. In my judgment, we need not engage in such analysis in this case on the authority of Bucheleres.\nFinally, I reject out of hand any suggestion by the plaintiff that a mental image in the form of an \u201coptical illusion\u201d is analogous to a \u201csubmerged pipe.\u201d The two are of different natures; they are not analogous.\nBecause a reasonable adult in the plaintiff\u2019s 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.\nThese 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) (Myerscough, J., specially concurring).", "type": "dissent", "author": "JUSTICE GARCIA," } ], "attorneys": [ "William J. Harte Ltd. (William J. Harte, of counsel) and Healy Law Firm (Martin J. Healy, Jr., Jack Cannon, and Joan M. Mannix, of counsel), both of Chicago, for appellant.", "Bollinger, Ruberry & Garvey, of Chicago (Christopher G. Buenik, of counsel), for appellees James G. Togher and Renee Togher.", "Tressler, Soderstrom, Maloney & Priess, LLP, of Chicago (John H. Huston, of counsel), for appellee Latham Plastics, Inc.", "Doherty & Progar, LLC, of Chicago (Michael J. Progar and Stephanie Waxier Weiner, of counsel), for appellee Black Oak Pool Supply, Inc." ], "corrections": "", "head_matter": "DONALD DUFFY, Plaintiff-Appellant, v. JAMES G. TOGHER et al., Defendants-Appellees (Shauna Travis, Defendant).\nFirst District (1st Division)\nNo. 1\u201406\u20141447\nOpinion filed March 31, 2008.\nGARCIA, J., dissenting.\nWilliam J. Harte Ltd. (William J. Harte, of counsel) and Healy Law Firm (Martin J. Healy, Jr., Jack Cannon, and Joan M. Mannix, of counsel), both of Chicago, for appellant.\nBollinger, Ruberry & Garvey, of Chicago (Christopher G. Buenik, of counsel), for appellees James G. Togher and Renee Togher.\nTressler, Soderstrom, Maloney & Priess, LLP, of Chicago (John H. Huston, of counsel), for appellee Latham Plastics, Inc.\nDoherty & Progar, LLC, of Chicago (Michael J. Progar and Stephanie Waxier Weiner, of counsel), for appellee Black Oak Pool Supply, Inc." }, "file_name": "0001-01", "first_page_order": 19, "last_page_order": 40 }