Find Legal Information

Docket Nos. 91284, 91378 cons.-Agenda 35-September 2001.

KATHLEEN M. SOLLAMI et al., Appellees, v. LAWRENCE EATON et al., Appellants.

Opinion filed June 6, 2002.

JUSTICE GARMAN delivered the opinion of the court:

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

BACKGROUND

The facts of this case are not in dispute and may be brieflysummarized. Kathleen was acquainted with Lawrence Eaton'sdaughter. Kathleen went to Eaton's house on the day in questionto see her friend. Another friend arrived. The girls called two boysto come over. At one point, all five of the children were jumpingat the same time on the Eatons' trampoline, which was located inthe side yard. The trampoline was described as a " 'BackyardRound 14' diameter trampoline.' " 319 Ill. App. 3d at 614. NeitherLawrence Eaton nor his wife were home at the time. The groupdecided to do "rocket" jumps, in which one jumper is propelledhigher than the other jumpers. Completing a rocket jump requiresthree or four persons to jump simultaneously on the perimeter ofthe trampoline mat, while one person jumps to the center and isthereby propelled higher than the other jumpers. After watchingone of her friends successfully complete a rocket jump, Kathleentook a turn at being the "rocket". As she landed on the trampolinemat, Kathleen felt her knee pop. 319 Ill. App. 3d at 614.

Lawrence Eaton had purchased the trampoline in 1992 andassembled it according to written instructions provided byJumpking. Pursuant to those instructions, Eaton affixed decals tothe trampoline mat and frame warning that the trampoline shouldbe used only by properly trained participants with directsupervision of a qualified instructor. Eaton also attached aninstruction placard to the frame with a wire tie. During the springprior to Kathleen's injury, Eaton found the placard on the groundand did not reattach it. 319 Ill. App. 3d at 616.

Count I of plaintiffs' third amended complaint alleged, as toEaton, that Kathleen was an invited guest on premises owned andcontrolled by Eaton and was injured while jumping on atrampoline located on said premises. Plaintiffs alleged that Eatonwas negligent in (1) failing to warn Kathleen of the dangersassociated with more than one person jumping on the trampolinesimultaneously in that he failed to replace the warning placardprovided by Jumpking on the trampoline prior to the date ofKathleen's injury, (2) permitting more than one person to use thetrampoline at one time, and (3) failing to supervise the activity ofminors on his premises to verify that only one person used thetrampoline at a time. Count III of the complaint, as to Jumpking,alleged that the trampoline contained one or more manufacturingor design defects which rendered it not reasonably safe for itsintended use. It was alleged that Jumpking (1) permitted thetrampoline, which was designed as a training device, to be used asa backyard toy, (2) failed to warn persons, including Kathleen, thatonly one person was permitted to use the trampoline at a time, (3)failed to verify that when the trampoline was sold, its instructionsas to use were attached to the trampoline and could not beremoved, and (4) failed to adequately warn persons, includingKathleen and Eaton, that the trampoline should be used only underthe direct supervision of a qualified instructor recommended bythe United States Gymnastics Federation.

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

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

"Though certain recognized hazards associated withtrampoline jumping may be considered open and obviousdepending on the circumstances, we doubt thatrecreational users appreciate the hazards and the risk ofinjury posed by the thrust capacity of the trampoline matand appreciate that the risk and severity of the injury isreduced when the user is instructed on fundamentallanding techniques to manage that impact. Theinstructions and warnings demonstrate that theconsequences of encountering these hazards are notobvious and are not appreciated or understood byforeseeable purchasers and users." 319 Ill. App. 3d at 619.

The court concluded that Jumpking had a duty to warnbecause of its superior knowledge of the hazards and risks of harmthat its trampoline posed to foreseeable users. 319 Ill. App. 3d at620.

The court also concluded that Eaton had a duty to warnKathleen of the dangers of jumping on his trampoline, based uponhis superior knowledge of the warnings and instructions suppliedby 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 factand that the moving party is entitled to a judgment as a matter oflaw." 735 ILCS 5/2-1005(c) (West 2000); Petrovich v. ShareHealth Plan of Illinois, Inc., 188 Ill. 2d 17, 30-31 (1999). Ourreview 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 pleadand prove that the injury resulted from a condition of the product,that the condition was an unreasonably dangerous one, and that thecondition existed at the time the product left the manufacturer'scontrol. 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 virtueof a physical flaw, a design defect, or a failure of the manufacturerto warn of the danger or instruct on the proper use of the productas 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 productpossesses dangerous propensities and there is unequal knowledgewith respect to the risk of harm, and the manufacturer, possessedof such knowledge, knows or should know that harm may occurabsent a warning. Goldman v. Walco Tool & Engineering Co., 243Ill. App. 3d 981, 992 (1993); Smith v. American Motors SalesCorp., 215 Ill. App. 3d 951, 957 (1991). No duty to warn existswhere the danger is apparent or open and obvious. Ford, 307 Ill.App. 3d at 300. The duty to warn is determined by an objectiveanalysis, i.e., the awareness of an ordinary person. Klen v. AsahiPool, Inc., 268 Ill. App. 3d 1031, 1035 (1994). The determinationof 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 Districtcase with an almost identical factual situation. There, a 14-year-old girl injured herself on a backyard trampoline manufactured byJumpking. The injury occurred while the plaintiff and somefriends were "double-jumping," an activity designed to make onejumper go higher, similar to the "rocket" jump performed byKathleen and her friends in the instant case. The plaintiff injuredher knee when she contacted the trampoline mat. The owner of thetrampoline received a user's manual, warning decals, and awarning placard with the trampoline. Ford, 307 Ill. App. 3d at299. The plaintiff sued Jumpking and the premises owner. Theappellate court affirmed the circuit court's grant of summaryjudgment to defendants, finding that the dangers involved in usinga recreational trampoline are analogous to the dangers associatedwith falling from a height. Such dangers are open and obvious toteenagers and adults. The court also stated that "[r]isks associatedwith double jumping, such as collisions or increased impact fromsomeone else in addition to oneself applying pressure to thetrampoline mat, are also open and obvious. The increased impactand the ability to jump even higher is exactly what attracts jumpersto engage in double jumping and is what attracted [the plaintiff] inthis case." Ford, 307 Ill. App. 3d at 302.

Plaintiffs argue that the open and obvious risk principle hasbeen inconsistently applied and should be abandoned. As anexample, they assert that the Ford case is contradictory to aprevious Fourth District decision in Johnson v. Decatur ParkDistrict, 301 Ill. App. 3d 798 (1998). However, Johnson involvedthe use of a mini-trampoline, which is a small, round trampolineset at an angle and used as a rebound device. It provides thegymnast with greater height in performing somersaults and othergymnastic maneuvers. AMF, Inc. v. Victor J. Andrew High School,172 Ill. App. 3d 337, 338 (1988). The plaintiff in Johnson wasinjured when, in attempting to perform a front flip, he fell on hishead and shoulders, breaking his neck. Johnson, 301 Ill. App. 3dat 800. Ford distinguished the Johnson case on the basis that therewere significant physical differences between the mini-trampolineand 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 demonstratethat there is a "problem" with application of the open and obviousdanger rule. They argue that these cases, both from the FirstDistrict, inconsistently applied the rule. However, upon closerreview, it is clear that the cases are not inconsistent. In Venus v.O'Hara, 127 Ill. App. 3d 19 (1984), the plaintiffs filed anegligence action against an exterminator for damages caused byhis use of naphthalene flakes in the plaintiffs' home. Theexterminator filed a third-party action in strict liability against bulkdistributors of the flakes, alleging a failure to adequately warn ofthe dangerous propensities of the flakes. The circuit court grantedsummary judgment to the distributors on the ground that thedistributors had no control over the warnings or labels placed onthe containers by their purchasers. Venus, 127 Ill. App. 3d at 23.The appellate court reversed, holding that a supplier has a duty tosupply adequate warnings to its immediate vendee and may beheld liable to the ultimate user for failure to do so. The courtrejected the distributors' contention that they had a right to rely ontheir vendees to provide adequate warnings, noting that nothing inthe record suggested that the distributors were justified in relyingon the expertise of subsequent distributors or that the dangerouspropensities of naphthalene are so commonly known as to obviatethe 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 suchknowledge as to the dangerous propensities of methanol. InJackson, plaintiffs filed suit asserting negligence and strict liabilityagainst Reliable, maker of shellac solvent that contained methanol.Reliable purchased the methanol from three suppliers. Reliablesued two suppliers for indemnification on the basis that they werestrictly liable for their failure to warn Reliable of the dangerousexplosive and flammable propensities of methanol. The suppliersalleged that they had no duty to warn because Reliable was fullyaware of the dangerous propensities of methanol. The circuit courtentered summary judgment in favor of the suppliers. Jackson, 136Ill. App. 3d at 767. The appellate court affirmed, noting that therecord showed that Reliable took special safety precautions inpumping the methanol from tanker trucks into its storage tanks,attaching the hose to its grounding lines to eliminate the possibilityof static electricity or sparks. Reliable also packaged the methanolin a building constructed with explosion-proof electrical wiring.In addition, Reliable's president was very familiar with theflammable and explosive properties of methanol. Accordingly, theappellate court held that the suppliers had no duty to warn Reliableregarding 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 allwho come in contact with the product." McColgan v.Environmental Control Systems, Inc., 212 Ill. App. 3d 696, 700(1991). We see no reason to depart from this rule.

We now address application of the rule in the instant case.The appellate court quoted extensively from the user's manual thatcame with the trampoline. The court focused on the variouswarnings and instructions for use given in the manual. It notedthat, as no reference was made to these warnings and instructionsby the Ford court, those materials were either not provided to thatcourt or not considered by it. The appellate court in this case usedthe instructions and warnings to conclude that the risk of injuryposed by the thrust capacity of the trampoline mat is not obviousand appreciated by foreseeable purchasers and users. 319 Ill. App.3d at 619. The court stated that, based upon the record, Jumpkinghad a duty to warn "because it had superior knowledge of thehazards and the risks of harm that its product posed to foreseeableusers. Because Jumpking had superior knowledge, it had a duty towarn purchasers and users of the hazards and the risk of harm thatthey may encounter while using its product." 319 Ill. App. 3d at620.

Initially, we note that the appellate court is incorrect in statingthat the Ford court did not refer to the user's manual supplied withthe trampoline in that case. That court specifically referred toinstructions in the manual stating that no more than one personshould be allowed on the trampoline at a time and noted that thewarning placard stated that two or more persons jumping on thetrampoline at one time create additional risks of injury due tocollisions, being bounced off the trampoline, and unexpectedresponses of the trampoline mat. Ford, 307 Ill. App. 3d at 300.The appellate court in the instant case used Jumpking's warningsand instructions in the user manual and on the warning decals andplacard to bootstrap a duty to warn. No duty to warn arises wherethe risk of harm is apparent to the foreseeable user, regardless ofany superior knowledge on the part of the manufacturer.

There is a dearth of Illinois cases on the issue of the open andobvious dangers of jumping on a recreational trampoline. Onecase, Fallon v. Indian Trail School, Addison Township SchoolDistrict No. 4, 148 Ill. App. 3d 931 (1986), involved the questionof whether a trampoline was a dangerous instrumentality andwhether its use was an ultrahazardous activity. The plaintiff hadbeen attempting to perform a "front drop" maneuver on thetrampoline at the time of her injury. The appellate court upheld thecircuit court's determination that the trampoline was not adangerous instrumentality and that its normal use was not anultrahazardous activity. Fallon, 148 Ill. App. 3d at 934.

Cases from other jurisdictions are of limited assistance asmany of them involved plaintiffs who were experiencedtrampoline users and who therefore appreciated the risks. In thesecases, the court found no duty to warn. Although Liccione v.Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728 (1998), involveddouble-jumping on a recreational trampoline, the court's decisionfinding no duty to warn was based upon the plaintiff's failure toraise a triable issue of fact as to whether double-jumping is uniqueand created a dangerous condition different from the usual dangersinherent in jumping on a trampoline. The court also found that theplaintiff was of sufficient age, education and experience to assumethe risks of jumping on a trampoline. In addition, the court foundthat the manufacturer's warnings were adequate as a matter of law.Liccione, 252 A.D.2d at 956-57, 675 N.Y.S.2d at 729.

In Anderson v. Weslo, Inc., 79 Wash. App. 829, 835, 906 P.2d336, 339 (1995), the plaintiff injured himself while attempting toperform a double flip on a neighbor's backyard trampoline. Theplaintiff was a very experienced trampoline user and was aware ofprevious accidents. The court of appeals used a subjective test infinding that the landowners could reasonably expect that theplaintiff would realize the danger.

Burchinal v. Gregory, 41 Colo. App. 490, 586 P.2d 1012(1978), involved a plaintiff who was injured while attempting aback flip on a recreational trampoline. The plaintiff had experienceusing trampolines at school and was aware of the dangersinvolved. He had successfully performed the back flip severaltimes prior to his injury. He sued the owners of the trampoline,alleging a duty to warn and supervise. The court held that theowners had no duty to warn the plaintiff of dangers that he alreadyunderstood and appreciated. Burchinal, 41 Colo. App. at 491-92,586 P.2d at 1013.

In Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422 (S.D.N.Y1999), the plaintiff was injured when he was propelled off thetrampoline onto the ground. At the time of the injury, the plaintiffwas jumping up and down on his feet, without turning his body inany way. He was alone on the trampoline and was propelled offthe trampoline when he got off-center on the trampoline mat. Thedistrict court denied the defendants' motion to dismiss, finding itto be a question of fact as to whether the risks attendant tobouncing off-center on a trampoline were open and obvious.Anderson, 76 F. Supp. 2d at 448. The district court noted that theaffidavit of the plaintiff's expert, together with other materials,raised a triable issue of fact as to whether the need to jump only inthe center of the trampoline mat and the ease of being propelledoff the trampoline and being injured, are obvious to the averageperson with little or no trampoline experience. Anderson, 76 F.Supp. 2d at 446.

Although the court in Bryant v. Adams, 116 N.C. App. 448,465-66, 448 S.E.2d 832, 841-42 (1994), found that a question offact existed as to whether the risks of jumping on a trampoline areopen and obvious dangers, that decision was based upon anaffidavit of a trampoline instructor who stated that the dangerswere not apparent to children or adults in the absence ofinstruction from a qualified instructor.

The purpose of double-jumping or rocket-jumping is to propelone jumper higher than the others. It is apparent that when one ispropelled higher than normal on a trampoline, contact with thetrampoline mat when coming down from the greater height willcause a considerable impact to the jumper's legs. The danger offalling from a height has been held by this court to be open andobvious to any child old enough to be allowed at large. Corcoranv. Village of Libertyville, 73 Ill. 2d 316, 327 (1978), quotingRestatement of Torts