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Sollami v. Eaton

June 06, 2002

KATHLEEN M. SOLLAMI ET AL., APPELLEES,
v.
LAWRENCE EATON ET AL., APPELLANTS.



The opinion of the court was delivered by: Justice Garman

Released for publication.

In May 1997, plaintiff Kathleen Sollami, then 15 years old, injured herself while jumping on a large recreational trampoline located on premises owned by defendant Lawrence Eaton and manufactured by defendant Icon Health and Fitness, Inc., doing business as Jumpking (hereafter, Jumpking). Her father, Phillip Sollami, sued on her behalf. The circuit court of Williamson County entered summary judgment for both defendants. The appellate court reversed and remanded (319 Ill. App. 3d 612), and we granted leave to appeal (177 Ill. 2d R. 315). We now reverse the appellate court and affirm the judgment of the circuit court.

BACKGROUND

The facts of this case are not in dispute and may be briefly summarized. Kathleen was acquainted with Lawrence Eaton's daughter. Kathleen went to Eaton's house on the day in question to see her friend. Another friend arrived. The girls called two boys to come over. At one point, all five of the children were jumping at the same time on the Eatons' trampoline, which was located in the side yard. The trampoline was described as a " `Backyard Round 14' diameter trampoline.' " 319 Ill. App. 3d at 614. Neither Lawrence Eaton nor his wife were home at the time. The group decided to do "rocket" jumps, in which one jumper is propelled higher than the other jumpers. Completing a rocket jump requires three or four persons to jump simultaneously on the perimeter of the trampoline mat, while one person jumps to the center and is thereby propelled higher than the other jumpers. After watching one of her friends successfully complete a rocket jump, Kathleen took a turn at being the "rocket". As she landed on the trampoline mat, Kathleen felt her knee pop. 319 Ill. App. 3d at 614.

Lawrence Eaton had purchased the trampoline in 1992 and assembled it according to written instructions provided by Jumpking. Pursuant to those instructions, Eaton affixed decals to the trampoline mat and frame warning that the trampoline should be used only by properly trained participants with direct supervision of a qualified instructor. Eaton also attached an instruction placard to the frame with a wire tie. During the spring prior to Kathleen's injury, Eaton found the placard on the ground and did not reattach it. 319 Ill. App. 3d at 616.

Count I of plaintiffs' third amended complaint alleged, as to Eaton, that Kathleen was an invited guest on premises owned and controlled by Eaton and was injured while jumping on a trampoline located on said premises. Plaintiffs alleged that Eaton was negligent in (1) failing to warn Kathleen of the dangers associated with more than one person jumping on the trampoline simultaneously in that he failed to replace the warning placard provided by Jumpking on the trampoline prior to the date of Kathleen's injury, (2) permitting more than one person to use the trampoline at one time, and (3) failing to supervise the activity of minors on his premises to verify that only one person used the trampoline at a time. Count III of the complaint, as to Jumpking, alleged that the trampoline contained one or more manufacturing or design defects which rendered it not reasonably safe for its intended use. It was alleged that Jumpking (1) permitted the trampoline, which was designed as a training device, to be used as a backyard toy, (2) failed to warn persons, including Kathleen, that only one person was permitted to use the trampoline at a time, (3) failed to verify that when the trampoline was sold, its instructions as to use were attached to the trampoline and could not be removed, and (4) failed to adequately warn persons, including Kathleen and Eaton, that the trampoline should be used only under the direct supervision of a qualified instructor recommended by the United States Gymnastics Federation.

In its motion for summary judgment, Jumpking alleged that the danger of jumping on a trampoline is open and obvious and should be appreciated by a reasonable 15-year-old person. Thus, as a matter of law, Jumpking had no duty to warn. Eaton's motion for summary judgment made similar allegations. The circuit court granted the motions, finding that it was bound by the decision of the Fourth District of the appellate court in Ford v. Nairn, 307 Ill. App. 3d 296 (1999), which the circuit court found virtually indistinguishable from the instant case.

In reversing the circuit court, the appellate court focused on the instructions and warnings given in the literature accompanying the trampoline. The court found that such extensive instructions and warnings demonstrated knowledge on Jumpking's part that was superior to that of purchasers and users of the trampoline regarding its characteristics and the risk of harm to consumers who purchase a trampoline for use as a backyard toy. The court stated:

"Though certain recognized hazards associated with trampoline jumping may be considered open and obvious depending on the circumstances, we doubt that recreational users appreciate the hazards and the risk of injury posed by the thrust capacity of the trampoline mat and appreciate that the risk and severity of the injury is reduced when the user is instructed on fundamental landing techniques to manage that impact. The instructions and warnings demonstrate that the consequences of encountering these hazards are not obvious and are not appreciated or understood by foreseeable purchasers and users." 319 Ill. App. 3d at 619.

The court concluded that Jumpking had a duty to warn because of its superior knowledge of the hazards and risks of harm that its trampoline posed to foreseeable users. 319 Ill. App. 3d at 620.

The court also concluded that Eaton had a duty to warn Kathleen of the dangers of jumping on his trampoline, based upon his superior knowledge of the warnings and instructions supplied by Jumpking with the trampoline. 319 Ill. App. 3d at 620.

ANALYSIS

I. Standard of Review

Summary judgment is appropriate when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2000); Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 30-31 (1999). Our review of the circuit court's judgment is de novo. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001).

II. Duty to Warn in Product Liability Cases

To recover in a product liability action, a plaintiff must plead and prove that the injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer's control. Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 540 (1996); Korando v. Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 343 (1994). A product may be found unreasonably dangerous by virtue of a physical flaw, a design defect, or a failure of the manufacturer to warn of the danger or instruct on the proper use of the product as to which the average consumer would not be aware. Renfro v. Allied Industrial Equipment Corp., 155 Ill. App. 3d 140, 155 (1987). A manufacturer has a duty to warn where the product possesses dangerous propensities and there is unequal knowledge with respect to the risk of harm, and the manufacturer, possessed of such knowledge, knows or should know that harm may occur absent a warning. Goldman v. Walco Tool & Engineering Co., 243 Ill. App. 3d 981, 992 (1993); Smith v. American Motors Sales Corp., 215 Ill. App. 3d 951, 957 (1991). No duty to warn exists where the danger is apparent or open and obvious. Ford, 307 Ill. App. 3d at 300. The duty to warn is determined by an objective analysis, i.e., the awareness of an ordinary person. Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1035 (1994). The determination of whether a duty to warn exists is a question of law. Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d 879, 887 (1999); Bell v. Lincoln Electric Co., 258 Ill. App. 3d 842, 846 (1994).

The circuit court in this case relied on Ford, a Fourth District case with an almost identical factual situation. There, a 14-year-old girl injured herself on a backyard trampoline manufactured by Jumpking. The injury occurred while the plaintiff and some friends were "double-jumping," an activity designed to make one jumper go higher, similar to the "rocket" jump performed by Kathleen and her friends in the instant case. The plaintiff injured her knee when she contacted the trampoline mat. The owner of the trampoline received a user's manual, warning decals, and a warning placard with the trampoline. Ford, 307 Ill. App. 3d at 299. The plaintiff sued Jumpking and the premises owner. The appellate court affirmed the circuit court's grant of summary judgment to defendants, finding that the dangers involved in using a recreational trampoline are analogous to the dangers associated with falling from a height. Such dangers are open and obvious to teenagers and adults. The court also stated that "[r]isks associated with double jumping, such as collisions or increased impact from someone else in addition to oneself applying pressure to the trampoline mat, are also open and obvious. The increased impact and the ability to jump even higher is exactly what attracts jumpers to engage in double jumping and is what attracted [the plaintiff] in this case." Ford, 307 Ill. App. 3d at 302.

Plaintiffs argue that the open and obvious risk principle has been inconsistently applied and should be abandoned. As an example, they assert that the Ford case is contradictory to a previous Fourth District decision in Johnson v. Decatur Park District, 301 Ill. App. 3d 798 (1998). However, Johnson involved the use of a mini-trampoline, which is a small, round trampoline set at an angle and used as a rebound device. It provides the gymnast with greater height in performing somersaults and other gymnastic maneuvers. AMF, Inc. v. Victor J. Andrew High School, 172 Ill. App. 3d 337, 338 (1988). The plaintiff in Johnson was injured when, in attempting to perform a front flip, he fell on his head and shoulders, breaking his neck. Johnson, 301 Ill. App. 3d at 800. Ford distinguished the Johnson case on the basis that there were significant physical differences between the mini-trampoline and the type of round recreational trampoline involved in Ford, and in the different functions of the two trampolines. Ford, 307 Ill. App. 3d at 301. Johnson is thus distinguishable from Ford.

Plaintiffs cite two other cases that they contend demonstrate that there is a "problem" with application of the open and obvious danger rule. They argue that these cases, both from the First District, inconsistently applied the rule. However, upon closer review, it is clear that the cases are not inconsistent. In Venus v. O'Hara, 127 Ill. App. 3d 19 (1984), the plaintiffs filed a negligence action against an exterminator for damages caused by his use of naphthalene flakes in the plaintiffs' home. The exterminator filed a third-party action in strict liability against bulk distributors of the flakes, alleging a failure to adequately warn of the dangerous propensities of the flakes. The circuit court granted summary judgment to the distributors on the ground that the distributors had no control over the warnings or labels placed on the containers by their purchasers. Venus, 127 Ill. App. 3d at 23. The appellate court reversed, holding that a supplier has a duty to supply adequate warnings to its immediate vendee and may be held liable to the ultimate user for failure to do so. The court rejected the distributors' contention that they had a right to rely on their vendees to provide adequate warnings, noting that nothing in the record suggested that the distributors were justified in relying on the expertise of subsequent distributors or that the dangerous propensities of naphthalene are so commonly known as to obviate the need for warnings. Venus, 127 Ill. App. 3d at 27.

In contrast, the record in Jackson v. Reliable Paste & Chemical Co., 136 Ill. App. 3d 766 (1985), demonstrated such knowledge as to the dangerous propensities of methanol. In Jackson, plaintiffs filed suit asserting negligence and strict liability against Reliable, maker of shellac solvent that contained methanol. Reliable purchased the methanol from three suppliers. Reliable sued two suppliers for indemnification on the basis that they were strictly liable for their failure to warn Reliable of the dangerous explosive and flammable propensities of methanol. The suppliers alleged that they had no duty to warn because Reliable was fully aware of the dangerous propensities of methanol. The circuit court entered summary judgment in favor of the suppliers. Jackson, 136 Ill. App. 3d at 767. The appellate court affirmed, noting that the record showed that Reliable took special safety precautions in pumping the methanol from tanker trucks into its storage tanks, attaching the hose to its grounding lines to eliminate the possibility of static electricity or sparks. Reliable also packaged the methanol in a building constructed with explosion-proof electrical wiring. In addition, Reliable's president was very familiar with the flammable and explosive properties of methanol. Accordingly, the appellate court held that the suppliers had no duty to warn Reliable regarding dangers of which it was already aware. Jackson, 136 Ill. App. 3d at 771-72.

It is settled law that a manufacturer has no duty to warn of "those inherent propensities of a product which are obvious to all who come in contact with the product." McColgan v. Environmental Control Systems, Inc., 212 Ill. App. 3d ...


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