c30:Nos. 71-1492, 71-1493

HASTIE, Circuit Judge
(concurring).
I approve Judge Van Dusen’s opinion and join in the decision it requires. This concurring opinion undertakes to set out an alternative basis of decision that, in my view, also is sound.
Even if there had been a jury question on the foreseeability of a danger of abnormal use of the pool by some children for diving, and sufficient evidence to permit a finding that such danger of abnormal use was a proximate cause of the accident, the plaintiff here cannot recover because, under the law of Pennsylvania, his voluntary assumption of risk is a complete defense. Bartkewick v. Billinger, 1968, 432 Pa. 351, 247 A.2d 603; see Greco v. Bucciconi Engineering Co., 3d Cir.1969, 407 F.2d 87, 92. True, the jury, answering a special interrogatory, found that, in diving into a shallow pool to his injury, the plaintiff did not assume the risk of a known danger. But, in my judgment, the undisputed evidence required a contrary finding and a consequent denial of recovery.
Judge Van Dusen has pointed out that the plaintiff’s own testimony concedes his training and experience in diving, as well as swimming, and his observation of a man sitting in the pool with the water coming only to his chest. The plaintiff also admits that in these circumstances he attempted unsuccessfully to make a shallow enough dive to avoid striking the bottom. In the light of this evidence I can find no proper way to avoid the conclusion that recovery is barred by voluntary assumption of the risk of conduct that plaintiff knew to be dangerous. No sign warning pool users against diving would have added to his awareness of risk.
Finally, appellee argues that the smooth vinyl bottom of the pool was slippery when covered with water so that his outstretched hands slid on it and did not cushion the impact of his dive as much as would have been the case had the bottom been rough. Assuming that this was a defect in the pool’s construction, analogous Pennsylvania cases hold that where a plaintiff’s own fault causes an accidental fall and injury, recovery is precluded, even though fault of the defendant causes the impact to be more severe and the injury greater than otherwise might have occurred. Barber v. John C. Kohler Co., 1968, 428 Pa. 219, 237 A.2d 224; Zlates v. Nasim, 1940, 340 Pa. 157, 16 A.2d 381.
For these reasons, in addition to those stated by Judge Van Dusen, I would reverse the judgment.

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