Lynch v. Liberty Mut. Fire Ins. Co.
(3rd Dept., decided 1/8/2009)
Do you remember your flash-to-bang ratio? For each five seconds you count between seeing a lightning flash and hearing the thunder, there is one mile between you and that lightning strike. Most public swimming pools close when the flash-to-bang is 50 seconds (10 miles).
The Lynches had an above-ground swimming pool in their backyard. Liberty was their homeowners insurer. During a bad thunderstorm in late June, the Lynches' daughter felt a huge explosion at the same time she saw a flash of light in the backyard, leading her to believe that the house had been struck by lightning. When she and her father went into the backyard a short time later, it appeared that "the pool had exploded." The Lynches submitted a claim to Liberty for that damage, which Liberty denied based on its inspection of the damaged pool and determination that the pool had collapsed due to the excluded causes of wear and tear or deterioration. The Lynches sued.
Albany Supreme granted Liberty's motion for summary judgment, dismissing the complaint, and the Lynches appealed. In MODIFYING the order appealed from to deny Liberty's summary jugdment motion, the Third Department found that the plaintiffs had created a question of fact as to whether lightning was the cause of their swimming pool's collapse:
[D]efendant offered the deposition testimony of its claims representative and one of its pool inspectors, both of whom denied seeing any evidence such as charring and burning that lightning struck the pool. On the other hand, they observed that the steel truss supporting the pool was rusted. In fact, the claims representative testified that the truss was so weak that it crumpled in his hands when he touched it and the pool inspector opined that the failure of the steel truss to support the pool wall had led to the wall's collapse. Coupled with the testimony of plaintiff George Lynch that the pool was almost 20 years old when the incident occurred, this evidence established that the policy provision concerning wear and tear was applicable in this case (see id. at 1016), thereby shifting the burden to plaintiffs to raise a question of fact.
Contrary to Supreme Court's determination, we find that plaintiffs met this burden. Lynch testified that he maintained his pool in a state of good repair and that yearly maintenance had been performed up until the time of the incident. Plaintiffs also provided evidence that there was a particularly bad thunderstorm on the night the pool was damaged. In addition, the sworn statement of plaintiffs' daughter was presented wherein she alleged that she felt a huge explosion contemporaneous to seeing a flash of light in the backyard, leading her to believe that the house had been struck by lightning. When she and her father went into the backyard a short time later, it appeared that "the pool had exploded."
Plaintiffs also offered the sworn statement of Ronald Casso, a licensed architect with over 25 years of experience repairing and building above-ground pools. Based upon his review of color photographs of plaintiffs' pool taken shortly after the incident, Casso concluded that the pool had "been subjected to an extreme trauma." He further noted that the structural makeup of plaintiffs' pool was such that, even if the steel truss in question had been rusted, such wear and tear would not have been responsible for the pool's collapse. In his experience, when pools collapse due to wear and tear, it is "always the last stage in a process of deterioration that is physically apparent," and he observed nothing that would indicate that such a process of deterioration had taken place here.
Finally, plaintiffs offered the sworn statement of Howard Altschule, a certified meteorologist who performed an analysis of the weather conditions on the evening of June 29, 2005, reviewing weather data and climatological records of the area in and around plaintiffs' residence. This analysis reflected data indicating numerous lightning strikes within a five-mile radius of plaintiffs' home at or about the time of the incident, including one particular bolt that struck "very close to the house in question." While defendant's attorney questions the proximity of that particular strike based upon his interpretation of the meteorological data, nothing in the record establishes his qualifications to do so. In all events, his contrary opinion would, at best, merely create a question of fact. Additionally, Altschule explained that lightning strikes can be "hot" or "cold," with the latter failing to leave charring or scorching in and around the area of a strike. Thus, based upon the data and the testimony of plaintiffs' daughter, Altschule concluded that lightning did strike plaintiffs' pool, causing the corner of the pool to collapse.
If "cold" lightning has enough power to lift a 44,000 ton ocean liner six feet into the air, a backyard above-ground swimming pool probably won't escape a direct strike unharmed.