(dissenting).
Because I believe there was sufficient evidence to submit the issues of liability and assumption of risk to the jury, I dissent.
In the summer of 1965, Mr. and Mrs. Hughes purchased from Kaufmann’s Department Store, a three by twelve foot circular pool. At the time of the purchase, Mrs. Hughes viewed in Kaufmann’s toy department a completely assembled pool of the type she purchased, complete with filter and ladder. The ladder was constructed in the shape of a capital “A”, and it straddled the pool with one leg of the “A” in the water and the other leg on the lawn. Near the top of the ladder, approximately 38 inches above the ground, rested a small, level platform, measuring approximately 18 by 14 inches.
The department store delivered the pool and the family assembled it in their backyard, following the instructions provided by the manufacturer. On the very first day the pool was in use, John Colosimo, age 15, a neighbor of the Hughes family, saw a group of friends frolic in the pool, and asked if he might join in the fun. After receiving permission from his parents and the Hughes family, John donned his swimming trunks and made ready to engage in the frivolity. As John approached the pool, he witnessed a number of his friends diving from the platform atop the ladder into the pool. John climbed the ladder, stood on the platform, and, arms outstretched, dove into the pool. As he carried through the water, John’s hands touched the vinyl bottom of the pool and slid apart causing his head to strike the bottom, resulting in a broken heck and other severe and disabling permanent injuries.
John’s parents filed this diversity action against Kaufmann’s the retailer of the pool. Kaufmann’s, in turn, initiated a third-party action for indemnity against Muskin Manufacturing Co., the manufacturer of the pool, and also against Mr. and Mrs. Hughes.
Essentially, plaintiffs proceeded upon the theory that Kaufmann’s should be held responsible for all injuries suffered by John as a result of the dive because the pool was defectively designed and unreasonably dangerous to the ultimate user. Specifically, plaintiffs claimed that two characteristics of the pool constituted defective conditions under normal usage. They argued first that the platform atop the ladder was an invitation for a child to use it to dive, yet there was no warning sign on or near the platform, nor a warning in any material accompanying the pool, that diving should be prohibited. Plaintiffs contended that this failure to post or paint prominently a “No Diving” sign constituted a defect in the design of the pool, making it unreasonably dangerous to the user. Plaintiffs also claimed that the smooth condition of the pool liner, and its absence of frictional qualities, made the pool floor so slippery as to cause the hands of a diver to “fly out” and thus subject his head and neck to injuries.
At the close of the testimony, the court submitted four special interrogatories to the jury, which returned the following answers:
1. Were the injuries which were sustained by John Colosimo on July 21, 1965, caused by a defective condition *1238of the pool unreasonably dangerous to John Colosimo at the time he dived into it?
Answer: Yes.
2. Were John Colosimo’s injuries sustained as a result of his having assumed the risk of a known danger? Answer: No.
3. Did the May Department Store purchase the pool from Muskin Manufacturing Company in the same condition in which it was sold to Mr. & Mrs. Hughes?
Answer: Yes.
4. Was there any negligence on the part of Mr. and/or Mrs. Hughes which was a proximate cause of the accident which occurred on July 21, 1965?
Answer: No.
Once the jury determined the liability issue, evidence was introduced pertaining to the damages aspect of the case. This time the jury returned with an award of $100,000 for John Colosimo and $25,000 for his parents. The district court entered judgment against Kaufmann’s for $125,000. The court further ordered that judgment be entered against Muskin on Kaufmann’s claim for indemnity for $125,000. After motions for a new trial and judgment n.o.v. were denied, this appeal followed.
On the basis of its review of the evidence, the majority has concluded “that as a matter of law there was no basis for the jury’s affirmative answer to question 1.” Indeed, the majority finds the § 402 issue obviated by what it terms the youth’s “abnormal use” of the pool. I disagree and would hold that it was correct to submit to the jury the question of the existence of a defective condition under § 402A on the theory that the ladder constituted an invitation to participate in a dangerous dive. One piece of the manufacturer’s literature disclosed a user in the act of swimming; another carried the statement, “Get Ready to Swim.” Thus, it was permissible for the jury to infer that diving was associated with the normal act of swimming; that diving in this pool was dangerous ; that a warning should have been posted; and that without the warning, the pool was manufactured and sold in a defective condition.
Additionally, I believe it was permissible for the jury to find that the proximate cause of the injury was the failure to construct the pool with a lining that contained frictional qualities; that the purpose of extending a diver’s hands is to protect the head from stiking the bottom; that a slippery bottom made the protection of the hands ineffective; and that a slippery liner was a defective condition. Clearly there was sufficient evidence under either or both theories to submit the defective condition issue to the jury under § 402A.
Further, I disagree with the majority’s finding that young Colosimo’s dive constituted an abnormal use of the pool, and also from the concurring opinion’s determination that the youth voluntarily assumed the risk of a known danger.
Examining the latter contention first, I note that in Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968), relied upon in the concurring opinion, the court found that appellant, an experienced glass factory worker, was cognizant of the destructive mechanisms inside the glass crushing machine into which he inserted his hand, and held that he voluntarily exposed himself to a known danger. Buttressing that decision was the presence of an on-off switch, easily accessible to appellant, which “would have provided a safe and efficient means of stopping” the machine before clearing it. 247 A.2d at 606. Cf., Blim v. Newbury Industries, Inc., 443 F.2d 1126 (10th Cir.1971). Here, John Colosimo did not voluntarily assume the risk of a known danger. Most assuredly, thoughts of danger could not have been further from the boy’s mind as he watched his friends jumping from the ladder’s platform into the coolness of the pool. To conclude that he saw his friends as performing daredevil stunts, risking life and limb to *1239jump into the pool from the platform, all the time recognizing that it was dangerous or risky to do so, is to substitute fantasy for reality. He merely saw other children diving into a new pool and he gaily followed suit. Moreover, in response to the second interrogatory the jury specifically found that John Colosimo did not assume the risk of a known danger, and there is abundant evidentiary support for that finding.
Bartkewich held, and properly so, that the defective design provisions of § 402A “should only apply * * * where the absence of the safety device caused an accidental injury which was of the type that could be expected from the normal use of the product.” 247 A. 2d 605. Here there was absent a safety device — a warning against diving— which could have prevented this accident. Clearly it was foreseeable that this platform might be viewed as an invitation to dive, and was so viewed by others besides Colosimo. Can it be urged that all of the children who were swimming and not merely wading were making abnormal use of the pool? I think not. The lack of a proper safety device indicating the dangers of diving from the platform constituted a defect in the pool’s design from which § 402A liability may result. Again, the jury so found, and, in my view, there is sufficient evidence to support that finding.
In sum, I believe that there was more than ample evidence for the jury to find (1) that the cause of the accident was the defective design of the pool rendering it unreasonably dangerous to John Colosimo, (2) that John Colosimo did not voluntarily assume the risk of a known danger when he dove into the pool, and (3) that the trial court properly charged on defective design and assumption of risk.
I would affirm the judgment in favor of the plaintiff, Appeal No. 71-1492. Because of the majority’s decision denying relief to the plaintiff, it is not necessary to meet the indemnity-contribution issue raised in Appeal No. 71-1493.