(dissenting). We respectfully dissent as, in our view, Belling v Haugh’s Pools (126 AD2d 958), relied upon by the majority, was wrongly decided. We agree with the views expressed by Justice Green in his dissent therein.
As Justice Green there noted, the adequacy of a warning in a products liability case which is based on a failure to warn is, in all but the most unusual circumstances, a question of fact to be determined at trial (see, Cooley v Carter-Wallace Inc., 102 AD2d 642). "The imposition of the duty to give a warning of some kind involves a balancing test which weighs the seriousness of potential harm to the consumer against the costs to the manufacturer. Since the cost of providing warnings is often minimal, the balance usually weighs in favor of an obligation to warn.” (Cooley v Carter-Wallace Inc., supra, at 644.)
Here defendants were aware that hundreds of persons have sustained quadriplegic and paraplegic injuries as the result of diving into similar pools. Whether such knowledge gives rise to a duty to warn and, if so, the scope of that duty is an issue to be determined by a fact finder. The fact that plaintiff knew *928that the pool was only four feet deep bears on his comparative negligence but, in our view, does not as a matter of law absolve defendants of any duty to warn of the foreseeable risk of diving into this type of pool. The obviousness of the danger is a factor to be weighed in the ultimate determination but should not prevent plaintiff from establishing his case (see, Micallef v Miehle Co., 39 NY2d 376, 387). (Appeal from order of Supreme Court, Allegany County, Horey, J. — summary judgment.) Present — Callahan, J. P., Denman, Boomer, Green and Balio, JJ.