When Shawn Meneely launched himself in what he called a "suicide dive" into a backyard swimming pool, it changed his life forever. In an instant, he slammed his head into the bottom and was left a quadriplegic.
After a lengthy court fight, Meneely won $11 million in damages from several defendants, chiefly $8.8 million from the National Spa and Pool Institute in Alexandria, a group that for several decades has set voluntary standards for the construction of pools, diving boards and other equipment -- standards that Meneely's lawyers successfully argued were lax and unsafe and led to Meneely's accident.
Eleven years after Meneely's dive into the pool at a friend's grandfather's house in Washington state, the ripples continue to spread. The case raised basic questions for the hundreds of trade groups and professional societies that set guidelines for the manufacture and use of their products. Just how responsible are they for the safety of products manufactured by their members based on voluntary standards?
The pool institute, which contends it is not responsible for whether its members follow the standards, filed for bankruptcy protection in 1998 after losing the Meneely case. It emerged in March 2000, but in late August sought bankruptcy protection again after four more lawsuits, making the same claims as in the Meneely case, were filed.
Donald E. Purcell, chairman of the Center for Global Standards Analysis at Catholic University, said: "When you look at Meneely, it sounds significant. There's a feeling that it's a watershed case of some sort. But it's happening in the midst of a wide range of opinions."
Purcell said some courts have ruled that trade groups that set voluntary standards are responsible for the measures they call for even if they have no oversight of manufacturing. But, he said, other courts have said such groups are not liable "because they do not have a duty of care to the customer of the product like there would be for the manufacturer."
"Is there potential liability? You bet there is," Purcell said, "People do have to develop safe standards where a group has chosen to voluntarily develop them."
None of the four new personal injury cases has gone to trial, and the pool group contends that the claims against it are groundless. A provision of the federal bankruptcy law halts, at least temporarily, ongoing litigation when an organization files for bankruptcy protection, as did the National Spa and Pool Institute.
"We deny these claims," said Stephen K. Gallagher, the pool group's Alexandria bankruptcy lawyer. "We believe we'll prevail. We think the Meneely case was an anomaly. We hope to resolve these lawsuits without litigation. But even a lawsuit that's frivolous has its costs." The filing for bankruptcy protection "gives us a little breathing room," he said.
The tactic angered lawyers for the accident victims.
"It certainly doesn't appear to be your typical bankruptcy case where a debtor doesn't have the money to pay their electric bill," said Jason Stephens, a Fort Worth lawyer who represents a man who was left a quadriplegic after a dive into a country-club pool in Texas. "They're using the bankruptcy court for business and strategic purposes."
David Smye, a Hamilton, Ontario, attorney who represents a teenager who was left a quadriplegic after diving into a 31/2-foot-deep, above-ground pool at a friend's house when she was 12, said: "I'm a bit bewildered. There's no judgment against it. One would have to be skeptical. Their motives are strange."
Jan Peterson, the Seattle lawyer who represented Meneely, said, "It seems to me they're talking out of both sides of their mouth, telling the bankruptcy court they're going to be bankrupt and telling their members they're not going to lose."
Meneely, now 27 and a graduate of Eastern Washington University who works for UBS PaineWebber Inc. in Seattle, has a pointed view of the trade group's bankruptcy filing: "I think they know they're in trouble. Other people followed in my footsteps. Why would they file bankruptcy if they didn't think they'd gotten caught again?"
While they initially discussed the motivation behind the bankruptcy filing after submitting papers in the U.S. Bankruptcy Court in Alexandria, Gallagher and John J. Cergol Jr., the pool institute's chief staff executive, declined to talk about it further for this article.
The institute's standards include a disclaimer: "This voluntary standard has been developed under the published procedures of the American National Standards Institute. Neither the National Spa and Pool Institute (NSPI), its members, nor those participating in its activities accept any liability resulting from compliance or noncompliance with the provisions given herein, for any restrictions imposed on materials, or for the completeness of the text.
"The National Spa and Pool Institute does not monitor or enforce compliance with the contents of this document and any certification of products stating compliance with requirements of this document are at the sole responsibility of the certifier.
"It is assumed and intended that pool users will exercise appropriate personal judgment and responsibility and that pool owners will create and enforce rules of behavior and warning appropriate for their pool."
The trade group was founded in 1956 and by the late '50s started to develop standards for pool construction. Peterson, who researched the history of the group while representing Meneely, said the earliest standards amounted to a "general consensus on what everyone was already doing. It didn't have anything to do with safety."
Roger Galvin, the trade group's former chief executive who is suing the institute for $3.1 million in back wages and other payments, acknowledged that the earliest standards and standards that it adopted through the 1980s "incorporated construction standards that were thought to be the best" used by the industry.
Peterson said that over the years the institute "has changed the standards periodically, but the changes have been minuscule. The depths have never changed."
In its latest standard for in-ground residential pools, adopted in 1995, the institute suggests a variety of standards for the minimum depth of the deep end, ranging from 7 feet, 6 inches to 9 feet, depending on the length of the diving boards (6 to 12 feet) installed at the pools and how far the boards are above the water (20 to 40 inches).
Peterson said that during discovery in the Meneely case, he found a variety of documents showing that the trade group had been warned in studies it commissioned or by outside researchers that at least one of its suggested depths for residential pool construction, 7 feet, 6 inches, could be too shallow if a diving board were also installed.
One of the researchers was John Wingfield, then a Ball State University physical education professor and now director and head coach of the training center for U.S. Diving in Indianapolis, where future Olympians work out. He researched backyard pool recreational diving for the Consumer Product Safety Commission in 1991, studied the institute's standards and concluded that they "are not sufficient for anyone to dive into a residential pool."
Peterson said that conclusion was particularly applied to one class of pool users, young athletic men, like Meneely at the time of his dive.
With those divers, Peterson said, "there generally was enough velocity [from their dives] that water would not slow them" sufficiently to avoid the possibility of catastrophic accidents. The National Collegiate Athletic Association said its diving pools are at least 11 feet deep.
Meneely won $6.6 million from the pool institute and the figure grew to $8.8 million with interest. Peterson said that Meneely, before the case went to trial in 1998, agreed to settle for the $160,000 the trade group said it had remaining in insurance coverage, if the standards were changed to disallow diving boards on the shallowest of residential pools and to alter the configuration of pools.
"They wouldn't do it," Peterson said.
Galvin said the trade group rejected the offer because it could not guarantee it could make a unilateral change in its standards. He said the institute would have had to follow the extensive standards-setting procedures called for by the American National Standards Institute, a Washington-based group to which 280 trade groups and professional societies adhere in adopting voluntary standards.
Galvin, who owned a Connecticut swimming pool construction company before heading the trade group that he now is at odds with, said he filed the institute's first bankruptcy petition after Meneely won his case in a lower court to keep him "from seizing all the assets that would have put [the trade group] out of business."
Galvin, too, is peeved by the latest bankruptcy filing since his claims, which were to have been heard by an arbitrator this month, are stalled.
"NSPI is doing all this without having any [of the personal injury] cases resolved, all of which leads me to believe what they're doing [in filing the bankruptcy] is aimed at me," he said.
While lawyers for victims in pool accidents have been encouraged by the Meneely verdict, Purcell said his research shows that it's at best a guess how cases against groups that set voluntary standards might turn out.
"Potential liability does exist for a nonprofit association that develops voluntary safety standards," Purcell said.
"However, that liability will vary widely depending upon the facts and circumstances of each case, and the jurisdiction in which court action has been filed." He noted that in the last decade groups that set standards for the plumbing pipe industry and blood banks have been held responsible for their actions, while the pool group, in cases other than Meneely's, and trade groups that set tire and rim standards for the automobile industry and construction trusses were not liable.
Amy A. Marasco, vice president and general counsel of the American National Standards Institute, said the Meneely verdict "is a minority viewpoint. Generally courts have ruled that standards developers do not have a duty of care to the end-users of products or services."
She said that if other cases ended similarly, it might "discourage the work" of standard-setting groups. Voluntary standards are "a huge benefit to society," Marasco said. "They do generally make things a lot safer. If they don't do it, the government would have to step in."