Notice |
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KATHLEEN M. SOLLAMI, | ) Appeal from the | ||||||
) Circuit Court of | |||||||
Plaintiff-Appellant, | ) Williamson County. | ||||||
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and | ) No. 98-L-32 | ||||||
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PHILLIP SOLLAMI, | ) | ||||||
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Plaintiff and Counterdefendant-Appellant, | ) | ||||||
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v. ) | |||||||
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LAWRENCE EATON, | ) | ||||||
) | |||||||
Defendant and Counterplaintiff-Appellee, | ) | ||||||
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and | ) | ||||||
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ICON HEALTH AND FITNESS, INC., a | ) | ||||||
corporation, d/b/a JUMPKING, INC., a | ) | ||||||
corporation, | ) Honorable | ||||||
) Phillip G. Palmer, | |||||||
Defendant-Appellee. | ) Judge, presiding. |
JUSTICE MAAG delivered the opinion of the court:
Kathleen Sollami was injured while jumping on a trampoline that was manufacturedby ICON Health and Fitness, Inc., a corporation, doing business as Jumpking, Inc., acorporation (Jumpking), and was purchased by and located on property owned by LawrenceEaton (collectively, defendants). Kathleen Sollami and her father, Phillip Sollami(collectively, plaintiffs) filed a complaint in the circuit court of Williamson County againstJumpking under a theory of strict product liability and against Lawrence Eaton under atheory of premises liability. The circuit court granted a summary judgment in favor of bothdefendants, and plaintiffs appealed. The issue is whether the circuit court erred inconcluding that the dangers associated with jumping on the Jumpking "Backyard Round"trampoline are open and obvious, thereby obviating defendants' respective duties to warn.
On May 10, 1997, Kathleen Sollami went to the Eaton residence to visit her friend,Jackie Eaton. Another mutual friend, Molly, was at Jackie's house when Kathleen arrived. Two other friends arrived later. The Eatons owned a Jumpking trampoline that was locatedin the side yard. During the visit, Kathleen, Jackie, and three other friends decided to jumpon the trampoline. Jackie Eaton's parents were not home at the time. They did not knowthat their daughter had invited friends to visit and were not aware that the group was goingto be playing on the trampoline.
Kathleen jumped on the trampoline with her friends for awhile, became bored, gotoff and looked through a yearbook, and then climbed back on. Sometime later thatafternoon, the group decided to do "rocket" jumps. The effect of a rocket jump is to propelone jumper, the "rocket", higher than the other jumpers. To begin, all participants stand onthe outside perimeter of the trampoline mat. On the count of three, all jump upsimultaneously. All but one of the participants are supposed to jump up and land in place. The "rocket" jumps toward the center of the trampoline. When the "rocket" lands in thecenter of the trampoline mat, he or she is propelled higher than the other participants.
Kathleen watched as her friend Molly, the first "rocket", was propelled upwardwithout incident. Kathleen, who was 15 years old at the time, had never seen or participatedin a rocket jump. She had jumped on a trampoline on limited occasions in the past, but shehad not received instruction or training in the use of a trampoline or in proper jumping andlanding techniques.
Kathleen was the second "rocket". On the count of three, all participants jumped up. Kathleen jumped toward the middle of the trampoline. Just as her feet came into contactwith the trampoline bed, she felt her right knee pop. Kathleen asked Jackie to call for help. Jackie contacted Kathleen's parents, and they came to the house. Kathleen was thentransported to the emergency room by ambulance. She suffered a serious injury to her knee,which required surgery and rehabilitation.
The Eaton family had purchased the trampoline a few years prior to the accident. Thetrampoline, a "Backyard Round 14' diameter trampoline", was manufactured by defendantJumpking. The trampoline did not come assembled. Included within the package containingthe trampoline parts were a user's manual, which contains instructions on assembly, use,safety, and care and maintenance, and model instructional materials, warnings decals, andan instruction placard. In its user's manual, Jumpking states that the use of its trampolineshould always be under the direct supervision of a qualified instructor. Jumpking also statesthat a lack of basic skills and knowledge is the greatest single cause of injury. Jumpkingrecommends that United States Gymnastics Federation certified instructors providesupervision and training to all users of its product. According to the user's manual,Jumpking recognizes that its trampolines are commonly used informally in a home or abackyard setting. Illustrative passages from the user's manual are set forth as follows:
Page two of the user's manual is entitled "WARNING". The last paragraph on thatpage states as follows:
"USE OF ANY TRAMPOLINE EXPOSES THE USER TO THE RISK OFSERIOUS INJURY, INCLUDING PERMANENT PARALYSIS OR EVENDEATH FROM LANDING ON THE BACK, NECK[,] OR HEAD. USE OF ATRAMPOLINE SHOULD ALWAYS BE UNDER THE DIRECT SUPERVISIONOF A QUALIFIED INSTRUCTOR. ALWAYS FOLLOW THE INSTRUCTIONSAND WARNINGS PROVIDED WITH YOUR TRAMPOLINE."
There is also a section of the user's manual entitled "TRAMPOLINE SAFETY". Thissection contains a subsection entitled "USER'S ROLE IN PREVENTING ACCIDENTS". That subsection states as follows:
"Education on the part of the user is a must for safety. The user must understand thathe/she has to first learn a low, controlled bounce. Then he/she learns the basiclanding positions and combinations before proceeding to intermediate skills. He/shemust understand why he/she has to master control before he/she can start thinkingabout other moves. Understanding the proper progression of skills in reboundtumbling on a trampoline must be the first lesson. Lack of basic skills andknowledge is the greatest single cause of injury."
The trampoline safety section also contains a subsection entitled "OWNER'S ROLE INPREVENTING ACCIDENTS". A portion of that subsection states:
"It is not uncommon for trampolines to be informally used in a home or a backyardsetting. If so, it is the responsibility of the owner or other person responsible for thetrampoline to ensure that young or inexperienced persons use the trampoline onlyunder mature supervision ***."
The third subsection is entitled "INSTRUCTOR'S ROLE IN PREVENTINGACCIDENTS". A portion of that subsection states:
"The instructor must teach the fundamentals, supervise the use, and enforce the rules. Strict supervision and enforcement of the rules will help minimize the likelihood ofaccidents and injuries. The instructor must be in direct charge of the program."
The fourth subsection is entitled "Rules". The second rule states that the trampoline shouldonly be used with mature, knowledgable supervision. This rule is also listed as the secondrule on the instruction placard that is supposed to be attached to the trampoline.
Within the manual there are also sections titled "Instruction Program" and "ModelLessons". These sections appear to be directed to the instructors. These sections "stronglyrecommended that the first few periods of instruction embrace nothing beyond thediscussion and demonstration of fundamental body mechanics and practice in the executionof the eight fundamental bounces-singly and in combination." They also discuss theimportance of perfecting a technique called "spotting" and a technique called "checking thebounce", which teaches the student how to land and "to absorb the upward thrust of themat". The instructions indicate that control rather than height should be emphasized withbeginners and that students should be forbidden to practice alone and unsupervised.
Two warning decals are provided with the package materials. The assembler isdirected to attach one decal to the mat. It states in pertinent part as follows: "This unit isintended for use only by properly trained and qualified participants under supervisedconditions." The other decal is to be attached to the frame. It states in pertinent part: "DoNot use this trampoline without the direct supervision of a qualified instructor. Werecommend United States Gymnastics Federation certified instructors."
Mr. Eaton assembled the trampoline shortly after it was purchased. He placed thewarning stickers on the mat and frame as directed. He also attached an instruction placardto the trampoline with a wire tie. Mr. Eaton then placed the trampoline in the side yard onthe east side of the house. Mr. Eaton stated that during the spring prior to this incident, hefound the instruction placard on the ground in his yard. He did not reattach it.
Plaintiffs sued Jumpking under a theory of strict liability. Plaintiffs alleged that thetrampoline was not reasonably safe for its intended use due to one or more design defects. Specifically, plaintiffs claimed that the trampoline was unreasonably dangerous because itwas designed as a training device only to be used under the direct supervision of certifiedinstructors but was sold as a backyard toy and because it failed to warn foreseeablepurchasers and users that the trampoline should only be used under the direct supervisionof a qualified instructor. Plaintiffs also claimed that the product failed to warn users thatonly one person was permitted to use the trampoline at a time and that there was not anadequate means to permanently affix the instruction placard to the trampoline.
Plaintiffs sued Lawrence Eaton under a premises liability theory. Plaintiffs allegedthat Mr. Eaton failed to warn Kathleen about the danger of more than one person jumpingon the trampoline, permitted more than one person to use the trampoline, and failed tosupervise the activity of the minor children to ensure that only one person was jumping onthe trampoline at any given time.
Both defendants filed motions for summary judgment. Each defendant argued thata reasonable 15-year-old person would appreciate the open and obvious danger of jumpingon a trampoline, that Kathleen was capable of recognizing any dangers associated with theuse of a trampoline, and that there was no duty to warn of a known danger. The circuit courtfound that the danger of jumping on a trampoline was open and obvious and that, as a matterof law, neither defendant had a duty to warn of an open and obvious danger. Beforeaddressing the issue on appeal, we will take up Jumpking's motion to strike a portion ofplaintiffs' brief. Jumpking moved to strike references to an article from a medical journal,Pediatrics magazine, because the article is hearsay and does not fall within any of therecognized exceptions to the hearsay rule. Although Jumpking has indicated that the articlewas provided in discovery responses, it does not appear to be part of the record on appeal. According to plaintiffs' description, the study appears to be in the nature of a Brandeis brief,providing a survey of trampoline-related injuries, including trends, types of injuries, andmedical costs. Although the parts of the study that plaintiffs reference indicate that childrendo get hurt while playing on trampolines, they do not discuss or offer an opinion on whetheror not jumping on a trampoline is an open and obvious danger. Because there is noindication that this study was presented to or examined by the trial court and because theinformation referenced from that study does not appear to be relevant to the issue on appeal,we have not considered it in deciding this appeal. See 134 Ill. 2d R. 329.
Our review of summary judgment is de novo. Espinoza v. Elgin Joliet & Eastern Ry.Co., 165 Ill. 2d 107, 113, 649 N.E.2d 1323, 1326 (1995). Summary judgment should onlybe granted when the pleadings, depositions, and admissions on file, together with anyaffidavits, when viewed in a light most favorable to the nonmoving party, show there is nogenuine issue as to any material fact and the movant is entitled to judgment as a matter oflaw. 735 ILCS 5/2-1005(c) (West 1992); Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d867, 871 (1986).
In a strict liability case, a plaintiff must prove that a product was in an unreasonablydangerous condition, that the condition existed at the time it left the manufacturer's control,and that the condition was a proximate cause of the plaintiff's injury. Suvada v. White MotorCo., 32 Ill. 2d 612, 623, 210 N.E.2d 182, 188 (1965). The failure to warn of a product'sdangerous propensities may serve as the basis for holding a manufacturer or seller strictlyliable in tort. Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 33, 402 N.E.2d 194, 198 (1980).
The purpose of a warning is to apprise a person of a danger of which he had noknowledge, in order to enable him to take appropriate measures to protect himself. McColgan v. Environmental Control Systems, Inc., 212 Ill. App. 3d 696, 701, 571 N.E.2d815, 818 (1991). Instructions and warnings must be adequate to perform the intendedfunction of risk reduction. Pell v. Victor J. Andrew High School, 123 Ill. App. 3d 423, 428,462 N.E.2d 858, 862 (1984); Wallinger v. Martin Stamping & Stove Co., 93 Ill. App. 2d437, 442, 236 N.E.2d 755, 759 (1968).
Warnings serve to reduce the risk of harm by informing us of dangers of which weare unaware and to remind us of hazards of which we are already aware but may, due todistraction, momentarily forget. Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223Ill. App. 3d 444, 459, 585 N.E.2d 166, 175 (1991). Warnings may also convey a messagethat the risk of injury posed by a hazardous condition can be eliminated or reduced byemploying a safer method of encountering the hazard. Therefore, warnings should providesufficient information regarding the dangerous condition of a product, the consequences ofencountering that condition, and if applicable, a safer way to encounter the condition. Warnings should adequately disclose hazards of a product so that consumers and users maymake an informed decision whether or not to purchase or to use the product.
The determination of whether a duty to warn exists is a question of law. Mazikoskev. Firestone Tire & Rubber Co., 149 Ill. App. 3d 166, 175, 500 N.E.2d 622, 628 (1986). Aduty to warn exists when there is unequal knowledge and the defendant, who possessessuperior knowledge about the hazard and the risks of encountering that hazard, knows orshould know that harm might occur if no warning is given. Cozzi v. North Palos ElementarySchool District No. 117, 232 Ill. App. 3d 379, 384, 597 N.E.2d 683, 686 (1992). Ordinarily,when a danger is obvious and universally appreciated, there is nothing to be gained bygiving a warning and, therefore, none is required. McColgan, 212 Ill. App. 3d at 701, 571N.E.2d at 818.
In this case, the circuit court held that a reasonable teenager would appreciate theopen and obvious danger of jumping on a trampoline. The court expressed its reasoning ina docket entry. There, it stated that the facts in the pending case were indistinguishable fromthose in Ford ex rel. Ford v. Nairn, 307 Ill. App. 3d 296, 717 N.E.2d 525 (1999), and forthat reason the court felt bound to follow that decision.
On appeal, both defendants argue that the Ford decision controls. We respectfullydisagree. Earlier in this opinion, we purposely cited several sections of the Jumpking user'smanual. In several sections Jumpking states that the trampoline should only be used underthe strict supervision of qualified instructors. In other sections Jumpking directs that theuser obtain instruction on basic, fundamental skills of jumping and landing in order to usethe product safely. These sections of the manual were not mentioned in the Ford case, andthus, we conclude that they were either not provided to or not considered by our colleaguesin the fourth district.
In our view, these instructions and warnings demonstrate that the manufacturerpossessed knowledge superior to the purchasers and users about the characteristics of itsproduct and, more importantly, the risk of harm to ordinary consumers who purchased thetrampoline as a backyard toy. Based upon the warnings and instructions contained in theuser's manual, it may be reasonably inferred that Jumpking recognized that because of theperformance characteristics of its product, there was a greater risk of injury to users who didnot have formal training in gymnastics techniques and who did not have certified instructorsavailable to supervise them. Jumpking also recognized that its product was being sold touninformed consumers for use as a recreational toy. It is also reasonable to infer thatordinary consumers purchased Jumpking trampolines as recreational toys for informal useat home and that they were not aware that the product was only to be used under the directsupervision of a certified instructor and that the lack of proper instruction in basic skills,such as bouncing and landing, was the single greatest cause of injury.
Though certain recognized hazards associated with trampoline jumping may beconsidered open and obvious depending on the circumstances, we doubt that recreationalusers appreciate the hazards and the risk of injury posed by the thrust capacity of thetrampoline mat and appreciate that the risk and severity of the injury is reduced when theuser is instructed on fundamental landing techniques to manage that impact. Theinstructions and warnings demonstrate that the consequences of encountering these hazardsare not obvious and are not appreciated or understood by foreseeable purchasers and users. Therefore, to the extent that the Ford decision declares that all dangers of recreationaltrampoline use are open and obvious, we do not concur.
Whether this product is unreasonably unsafe for use as a backyard toy, whether thewarnings are adequate to advise the purchasers and users of the hazards and risks of injuryposed to untrained and unsupervised users, whether the instructions are ambiguous orotherwise inconsistent with the manner in which the product is commonly used, and whetherthere was adequate information to permit the consumer to adequately assess the risks andbenefits of the product and to make an informed choice whether to purchase or use theproduct are questions of fact and are not before us.
Based upon this record, Jumpking had a duty to warn because it had superiorknowledge of the hazards and the risks of harm that its product posed to foreseeable users. Because Jumpking had superior knowledge, it had a duty to warn purchasers and users ofthe hazards and the risk of harm that they may encounter while using its product. Therefore,we find that the trial court erred in granting summary judgment in favor of Jumpking.
The next question is whether Mr. Eaton had a duty to warn Kathleen Sollami of thedangers of jumping on the trampoline. The duty owed to entrants on a landowner's propertyunder the Premises Liability Act is reasonable care under the circumstances. 740 ILCS130/2 (West 1996). Persons who own, occupy, or control and maintain land are notordinarily required to foresee and protect against injuries from potentially dangerousconditions that are open and obvious. Bucheleres v. Chicago Park District, 171 Ill. 2d 435,445, 665 N.E.2d 826, 832 (1996); Ward v. K Mart Corp., 136 Ill. 2d 132, 148, 554 N.E.2d223, 227 (1990). In this case, we have already concluded that certain risks of harmassociated with jumping on the trampoline were not open and obvious. Accordingly,summary judgment was not proper on that basis.
The property owner's duty to warn is premised upon the possessor's superiorknowledge of a hazardous condition. Stephen v. Swiatkowski, 263 Ill. App. 3d 694, 703,635 N.E.2d 997, 1004 (1994). According to the record, Mr. Eaton had access to thewarnings and instructions for use contained in the user's manual. Mr. Eaton's duty to warnand corresponding liability are tied to the adequacy of the warnings and instructions for usecontained in the user's manual. Whether Kathleen appreciated the hazard at issue and therisk of encountering it, whether Mr. Eaton knew or should have known of the hazard, andwhether his actual or constructive knowledge of that hazard was superior to Kathleen's arequestions of fact. See Schellenberg v. Winnetka Park District, 231 Ill. App. 3d 46, 52, 596N.E.2d 93, 95 (1992). The adequacy of the warnings and instructions and whether theyreached foreseeable purchasers and users are also questions for the trier of fact. Therefore,summary judgment was not appropriate.
Accordingly, the trial court's decision to grant summary judgment in favor ofdefendant Jumpking and defendant Lawrence Eaton is reversed, and the cause is remandedfor further proceedings.
Judgment reversed; cause remanded.
CHAPMAN, P.J., concurs.
JUSTICE WELCH dissenting:
I believe that the potential danger involved with using the trampoline is "open andobvious." I agree with the Ford analysis and believe it is applicable to the instant case. Ford ex rel. Ford v. Nairn, 307 Ill. App. 3d 296 (1999). Therefore, I respectfully dissent.