Klen v. Asahi Pool, Inc.

• Decision Date: 02 December 1994
• Docket Number: Nos. 1-92-1513,1-92-1516,s. 1-92-1513
• Parties: , 205 Ill.Dec. 753, Prod.Liab.Rep. (CCH) P 14,138 Francis J. KLEN, Plaintiff-Appellee, v. ASAHI POOL, INC., et al., Defendants-Appellants (Pool World, Inc., et al., Defendants). Francis J. KLEN, Plaintiff-Appellant, v. DOUGHBOY RECREATIONAL, INC., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1360

643 N.E.2d 1360

268 Ill.App.3d 1031, 205 Ill.Dec. 753,

Prod.Liab.Rep. (CCH) P 14,138

Francis J. KLEN, Plaintiff-Appellee, v. ASAHI POOL, INC., et al., Defendants-Appellants (Pool World,

Inc., et al., Defendants).

Francis J. KLEN, Plaintiff-Appellant, v. DOUGHBOY RECREATIONAL, INC., et al., Defendants-Appellees.

Nos. 1-92-1513, 1-92-1516.

Appellate Court of Illinois,

First District, Fifth Division.

Dec. 2, 1994.

Richard Klaus, Steven P. Handler, and Daniel M. Kotin, McDermott, Will & Emery, Chicago, and Peter K. Ledwith, Lynn & Ledwith, Garden City, NY, for appellants Asahi Pool, Inc., and Asahi Chemical Industry.

Daniel J. Zollner and Hugh C. Griffin, Lord, Bissell & Brook, Chicago, for appellee Andy's Sales and Rentals, Inc.

Michael Resis, Querry & Harrow, Ltd., Chicago, and William M. Hart and Thomas H. Crouch, Meagher & Geer, Minneapolis, MN, for appellee Doughboy Recreational, Inc.

Peter R. Coladarci, Peter R. Coladarci, Ltd., Chicago, for Francis J. Klen.

William J. Cremer and Michael J. Cronin, Tressler, Soderstrom, Maloney & Priess, and Robert Cooney, Jr., and Kathy Burne, Cooney & Conway, Chicago, for amici curiae.

Justice GORDON delivered the opinion of the court: ¹

Defendants, Asahi Pool, Inc. and Asahi Chemical Industry Co., Ltd. (collectively "Asahi"), bring this interlocutory appeal by permission of this court pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308); and Plaintiff, Francis J. Klen, appeals from a summary judgment granted to Defendants, Doughboy Recreational, Inc. and Hoffinger Industries, Inc. (collectively "Doughboy") ² and Andy's Sales and Rentals, Inc. (Andy's Sales), pursuant to Supreme Court Rule 304(a) (157 Ill.2d R. 304(a).

Plaintiff's products liability action was brought against the Defendants as sellers and manufacturers of a swimming pool (Asahi), a swimming pool liner (Doughboy), and a trampoline (Andy's Sales). ³ The Plaintiff was injured when he dove from the trampoline into an above-ground swimming pool and was rendered a quadriplegic. The Plaintiff alleged that the Defendants were liable to him for their failure to warn of the risk of permanent neurological injury presented by their products' intended and foreseeable uses and that the lack of warnings was the proximate cause of his injury.

The facts derived from the pleadings, affidavits and depositions of the parties are not in dispute. At the time of Plaintiff's injury, the trampoline had been placed adjacent to the swimming pool by the owners of the pool and trampoline, the Monroes, who were the Plaintiff's neighbors. The Plaintiff was 14 years old, although he was to turn fifteen in three days. The Plaintiff arrived at the Monroe's house accompanied by several teenage friends. He swam in the pool for approximately 15 to 30 minutes. He stood in and walked around the perimeter of the pool and knew the water was chest deep. He knew that the sides of the pool were approximately four feet high.

At some point, the individuals at the Monroe's house began using the trampoline as a springboard for diving into the pool. John Monroe bounced on the trampoline and did a somersault dive from the trampoline into the pool. Some of the Plaintiff's friends dove head first from the trampoline into the pool and instructed the Plaintiff as to how to do the same. After watching John Monroe and his friends bounce on the trampoline and dive into the pool, Plaintiff got on the trampoline and began bouncing. As he had been instructed by the others to do, he bounced three times on the trampoline and propelled himself head first into the pool. Plaintiff hit the bottom of the pool and suffered permanent neurological injury. There is no dispute that the Plaintiff was attempting a "shallow" or surface dive not a vertical dive.

Plaintiff had taken swimming and diving lessons with the Lockport Park District for seven years, beginning in second grade. He had learned to swim and dive into both deep and shallow water. He learned the difference between deep and shallow dives and learned that certain dives would be appropriate in deep water but not shallow water. Plaintiff had experience in swimming in other above-ground pools that were approximately the same size, shape and depth as the Monroes' pool; and he had experience in using a small exercise trampoline.

Plaintiff stated that he understood that it was possible to dive into shallow water without injury by executing a flat, racing type dive that others had performed safely on the night he was injured. He believed the dive he was attempting was safe.

Upon the foregoing facts, the Defendants moved for summary judgment. The trial court granted summary judgment to Doughboy, the pool liner manufacturer, and to Andy's Sales, the trampoline manufacturer, holding that those products were "conditions " and not "causes" of Plaintiff's injuries. The court denied summary judgment to Asahi, the pool manufacturer, holding that whether the risk of quadriplegia is open and obvious to a 14 year old is a question of fact to be resolved by the jury. Upon Asahi's motion, the trial court certified the following question which this court agreed to review on appeal pursuant to Supreme Court Rule 308 (134 Ill.2d R. 308):

"Whether the Defendant manufacturer, Asahi, of an above ground swimming pool had a duty to warn the Plaintiff, Francis J. Klen, Jr. under strict liability of the hazzard [sic] of diving into an above ground swimming pool." ⁴

In his appeal, pursuant to Supreme Court Rule 304(a), the Plaintiff argues that the trial court erred in granting summary judgment to Defendants Doughboy and Andy's Sales because the pool liner and trampoline were proximate causes of, not conditions to, Plaintiff's injury. The Plaintiff further argues that the trial court erred in refusing to consider and striking from the record certain evidence. ⁵

A duty to warn of an unreasonably dangerous condition ⁶ extends to the use of the product by an ordinary person with the ordinary knowledge common to the community regarding the characteristics of the product. (Palmer v. Avco Distributing Corp. (1980), 82 Ill.2d 211, 45 Ill.Dec. 377, 412 N.E.2d 959.) The duty to warn is determined using an objective standard, i.e., the awareness of an ordinary person (Erickson v. Muskin Corp. (1989), 180 Ill.App.3d 117, 128 Ill.Dec. 964, 535 N.E.2d 475), and is normally a question of law (Genaust v. Illinois Power Co. (1976) 62 Ill.2d 456, 343 N.E.2d 465), although when the record is in dispute, it becomes a question of fact (Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill.App.3d 432, 122 Ill.Dec. 348, 526 N.E.2d 607).

The duty to warn analysis, which is an objective one, should focus on the typical user's perception and knowledge. The plaintiff's subjective knowledge is immaterial to the antecedent determination of an open and obvious danger. (See Glittenberg v. Doughboy Recreational Industries (1992), 441 Mich. 379, 392, 491 N.W.2d 208, 213-14 citing 3 American Law Products Liability § 33:23, 48-40 (3rd ed.).) The plaintiff's knowledge is relevant to the issue of proximate cause; that is, whether the defendant's failure to warn was the legal or proximate cause of the plaintiff's injury; and to the issue of assumption of risk (Erickson v. Muskin Corp. (1989), 180 Ill.App.3d 117, 128 Ill.Dec. 964, 535 N.E.2d 475). Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305.

Several Illinois cases have decided the duty to warn issue with reference to the plaintiffs' subjective knowledge finding no duty to warn where the reason for warning, which is to apprise a party of a danger of which he has no knowledge, is lacking. (See, e.g., Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill.App.3d 432, 122 Ill.Dec. 348, 526 N.E.2d 607; Huff v. Elmhurst-Chicago Stone Co. (1981), 94 Ill.App.3d 1091, 50 Ill.Dec. 453, 419 N.E.2d 561; Fuller v. Fend-All Co. (1979), 70 Ill.App.3d 634, 27 Ill.Dec. 1, 388 N.E.2d 964.) To the extent that there is a reliance on the plaintiff's knowledge for purposes of determining a duty to warn, we would disagree with these cases since the plaintiff's personal awareness of the risk is irrelevant to the determination of whether a danger is open and obvious as a matter of common knowledge and perception, the analysis required for determining the existence of duty to warn under Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465. See Smith v. American Motors Sales Corp. (1991), 215 Ill.App.3d 951, 159 Ill.Dec. 477, 576 N.E.2d 146.

Applying the ordinary person standard, courts have held that there was no duty to warn of the open and obvious risk of installing a metal tower and antenna in close proximity to electrical wires (Genaust ); slipping on wet flooring while wearing shoes (Fanning v. Le May (1967), 38 Ill.2d 209, 230 N.E.2d 182); slipping on ice buildup inside a refrigeration truck (Kokoyachuk ); riding a motorcycle (Miller v. Dvornik (1986), 149 Ill.App.3d 883, 103 Ill.Dec. 139, 501 N.E.2d 160); tripping over a vacuum cleaner cord (Lara v. Thoro-Matic Vacuum Systems Inc. (1990), 194 Ill.App.3d 781, 141 Ill.Dec. 397, 551 N.E.2d 390); and not being able to see behind an opaque ventilation curtain (McColgan v. Environmental Control Systems, Inc. (1991), 212 Ill.App.3d 696, 156 Ill.Dec. 835, 571 N.E.2d 815). Since the risk of injury was open and obvious as a matter of common knowledge and perception, the products in these cases could not be deemed unreasonably dangerous or defective so as to establish a duty to warn or resultant breach of that duty. See Smith v. American Motors Sales, Corp.

A question of fact was found to exist as to the obviousness of the danger of consuming cleaning fluid in Jonescue v. Jewel Home Shopping Service (1973), 16 Ill.App.3d 339, 306 N.E.2d 312. In Jonescue, the plaintiff sought recovery under theories of strict liability and negligence based on the manufacturer's failure to warn against ingestment of the cleaning product. The court found...