Sticker Shock

Obvious risks are not always so obvious, a California court rules.

Photo of warning stickersPhoto of warning stickersIs diving headfirst into a shallow pool an open and obvious danger to an 11-year-old child, or do pool manufacturers have a duty to warn of such dangers? If manufacturers do have such a duty, does the manufacturer discharge its duty by placing warning labels in the pool liner package along with the instructions for the customer to affix them to the sides of the installed liner, or is the manufacturer required to affix them? These were just two of the questions the California Court of Appeal was recently asked to answer in Bunch v. Hoffinger Industries and McMasker Enterprises [2004 Cal. App. LEXIS 1869]. While the case, which started all the way back in 1993, involved a residential pool, it has applicability to manufacturers of commercial pools and sporting goods, as well.

In Bunch, 11-year-old Leesa Bunch and her brother Erick were swimming in a 4-foot-deep aboveground swimming pool. The pool was owned by Joe and Loretta Frank, who had purchased the vinyl pool liner from McMasker, a swimming pool supplier doing business as Waterworks. The liner, which was manufactured by Hoffinger, was installed by Mr. Frank, who also built an adjacent deck at the level of the top of the pool. Mr. Frank could not recall if the package with the liner contained any warning labels.

Mrs. Frank, on the other hand, testified that the Hoffinger liner came with labels cautioning against diving. She described the label as being three-quarters of an inch wide and five-and-one-quarter inches long and stating, "Caution/No Diving/Shallow Water." She testified that the labels were "most likely" on the pool the day of the accident. In addition, Mrs. Frank also testified that she took Leesa and Erick by the hand, led them to the side of the pool and told them that it was a shallow pool and that diving was not allowed. Mrs. Frank was not specific, however, about what injuries they might suffer if they dove into the pool.

When Mrs. Frank was in her house, Leesa and another child started to dive from the deck into the pool. Leesa, who had watched the summer Olympics the previous year, tried to imitate the shallow racing dives of the Olympic swimmers. Because she believed she dove well, Leesa never worried about diving too deeply. On her last dive, however, instead of doing a flat racing dive, Leesa did a sharp vertical dive and broke her neck when she hit the bottom of the pool.

Leesa testified that she vaguely remembered stickers on the pool liner that read, "No diving in shallow water" and showing a man making a "pike," or vertical, dive with the word "caution." Leesa believed the label warned her "not to dive like that." Leesa also testified that she was completely unaware of the danger of diving into a shallow pool and that a warning pointing out the risk of severe injury would have prevented her from making the dive. (It is important to note that the pool liner itself was never admitted into evidence, thus the reason for the conflicting testimony as to the existence and substance of any warning labels visible the day of the accident.)

As a result of her injuries, Leesa filed a product-liability suit against McMasker and Hoffinger, alleging that the companies were negligent in failing to warn her of the dangers associated with the product. McMasker eventually settled out of court for $1 million, the limit of the company's insurance policy.

At the Hoffinger trial, after hearing testimony showing the importance of warning signs on swimming pools and the impact they have on minors, the jury concluded that there was a failure-to-warn defect in the pool liner and the accompanying materials. As a result, the trial court awarded Leesa more than $12 million.

On appeal, Hoffinger argued that since an aboveground swimming pool is a simple product, the manufacturer is under no duty to warn of any dangerous conditions or characteristics that are readily apparent or visible upon casual inspection by the average user of ordinary intelligence. In the alternative, Hoffinger claimed that the company satisfied its duty to warn of such dangers by placing warning labels in the pool liner package with instructions for the consumer to affix them to the sides of the installed liner.

In support of its claim that it had no duty to warn, Hoffinger cited a number of cases in which the courts ruled that pool manufacturers have no duty to warn of the danger of diving into an aboveground pool because the danger was open and obvious.

Interestingly, one of those cited, McCormick v. Custom Pools Inc. [376 N.W.2d 471 (Minn.Ct.App. 1985)], sets forth the schism between courts on the issue of whether diving into shallow pools constitutes an open and obvious danger. In considering the plaintiff's awareness of the risks involved, the McCormick court discussed two cases that reached opposite conclusions in similar situations. In the first, Colosimo v. May Department Store Co. [466 F.2d 1234 (3d Cir. 1972)], the court determined that neither the platform atop the pool ladder nor the absence of warning signs caused the plaintiff's injuries. The plaintiff was aware of the risk of striking the bottom of the pool, the Colosimo court ruled, and it was the plaintiff's error of judgment in diving, and not the dearth of warning signs, that caused the accident.

In the second case, Corbin v. Coleco Industries Inc. [748 F.2d 411 (7th Cir. 1984)], the court found a genuine issue of fact as to whether the plaintiff knew that he risked spinal injury by diving into shallow water, even if he attempted a flat, shallow dive. If he did not know this, then a conspicuous warning on the side of the pool could very well have deterred him from diving.

In distinguishing cases involving adults and the Bunch case involving a child, the California Court of Appeal ruled that children perceive open and obvious dangers in a slightly different light than adults. In particular, it held that certain conditions considered harmless to adults may not be so to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved. Therefore, the appeals court concluded that the danger of diving into a shallow aboveground pool is not open and obvious to an 11-year-old as a matter of law.

Having rejected Hoffinger's claim that it had no duty to warn of the dangers of diving, the appeals court next examined the claim that Leesa assumed the risk of injury when she dove into the pool and therefore should be barred from recovering damages for any injuries that resulted. In rejecting this argument, too, the court held that assumption of risk does not insulate equipment suppliers from liability for injury due to defective equipment. Under product liability, the court held that manufacturers owe a duty to produce defect-free products, thus making the primary assumption-of-risk doctrine inapplicable, absent some extraordinary circumstance.

Hoffinger's final argument was that even if it did owe a duty to warn, its failure to do so was not the cause of Leesa's injury. In particular, the company pointed to a variety of other factors that it claimed caused the tragedy: Loretta Frank's decision to leave four young children unsupervised, uncertainty over whether Joe Frank had at the time of the accident affixed the warning labels supplied with the replacement liner, and Leesa's decision to disregard the warnings and dive into the pool. Hence, Hoffinger argued, there was no evidence to establish or support an inference that more or different warnings would have prevented the accident.

In reviewing the issue of causation in the context of product liability, the court ruled that a plaintiff need not establish that the product was the sole cause of injury, but only that it substantially contributed to the injury. A manufacturer, the court held, is required to foresee some degree of misuse and abuse of a product, and to take reasonable precautions to minimize the resulting harm. If the manufacturer could foresee any misuse of the product (and diving into a shallow pool would apply), the manufacturer would remain liable unless it provided an adequate warning.

Given the testimony of Leesa, who stated that a warning telling her that diving could cause a "crippling injury" would have prevented her from diving, the court held that there was sufficient evidence to support the conclusion that the lack of an adequate warning label was neither a negligible nor theoretical contribution to Leesa's injury. The court therefore concluded that it was clear that the lack of a persuasive label outlining the consequences of diving into the pool was a substantial factor in causing the injury.

While it may seem like the only thing clear from the court's decision is that outdoor pool manufacturers must affix warning labels to pool linings, there are two other points sporting goods manufacturers should take away from the case. First, what may seem like an open and obvious risk to some may not be so obvious to others. Whether because of age, immaturity or inexperience, not everyone can appreciate the risks involved in using certain equipment. Therefore, in order to protect themselves from liability, manufacturers should post proper warnings on all equipment they sell.

Second, as the California court noted, the assumption-of-risk defense does not insulate manufacturers and suppliers if they sell defective equipment and someone is injured. Manufacturers have a duty to produce products that are safe when used in the manner in which they were intended.

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