Liesener v. Weslo, Inc., Civ. No. S 90-2152.

• Decision Date: 17 October 1991
• Docket Number: Civ. No. S 90-2152.
• Citation: 775 F. Supp. 857
• Parties: James J. LIESENER, et al. v. WESLO, INC., et al.
• Court: U.S. District Court — District of Maryland

775 F. Supp. 857

James J. LIESENER, et al. v. WESLO, INC., et al.

Civ. No. S 90-2152.

United States District Court, D. Maryland.

October 17, 1991.

Jacob A. Stein, Gerard E. Mitchell, Stein, Mitchell & Mezines, Warren L. Miller, Washington, D.C., for plaintiffs.

Joseph G. Finnerty, Jr., John J. Kuchno, Piper & Marbury, Baltimore, Md., for defendant Weslo.

William D. Coston, John P. Morrissey, Venable, Baetjer, Howard & Civiletti, Washington, D.C., for defendant Wal-Mart.

MEMORANDUM OPINION

SMALKIN, District Judge.

I.

This tragic case of a paralyzing backyard trampoline injury is before the Court on both defendants' motions for summary judgment, as well as defendant Weslo's motion for partial summary judgment. No oral hearing is necessary. Local Rule 105, D.Md.

The case involves a circular trampoline manufactured and distributed by defendant Weslo and sold at retail by defendant Wal-Mart Stores (d/b/a Sam's Wholesale Club) to one James Huff in Atlanta, Georgia. Huff assembled the trampoline and placed it on the lawn of his home in Maryland in June of 1989. The trampoline was used by Huff and guests until the plaintiff in this case, then 17 years old, attempted a "back flip" (somersault) that disastrously ended in quadriplegia. The plaintiff never read the instruction manual which came with the trampoline and which had pages of detailed warnings, including a specific caution that most serious trampoline accidents result from somersaulting, and cautions to the owner not to allow anyone to use the device without reading the manual. Plaintiff did, though, read a warning notice and a red and white placard on the trampoline. The warning label and instruction placard contained the following relevant specific instructions:

CAUTION

Misuse and abuse of this trampoline is dangerous and can cause serious injuries. Read instructions before using this trampoline. Inspect before using and replace any worn, defective or missing parts. Any activity involving motion or heights creates the possibility of accidental injuries. This unit is intended for use only by properly trained and qualified participants under supervised conditions. Use without proper supervision could be dangerous and should not be undertaken or permitted.

* * * * * *

9. Do not attempt somersaults without proper instructions and coaching or without the aid of safety apparatus such as overhead suspension training rig, or spotting mechanic sic — parallel provision in instruction manual reads "machine". Most serious trampoline injuries occur during somersaults.

Before the bad landing that resulted in his quadriplegia, the plaintiff, who had had no instruction or coaching from a qualified gymnastics coach in somersaulting, had performed a number of somersaults successfully on the trampoline in question. The injury in suit happened when he landed on his head while attempting a three-quarter back flip somersault; the only other person in the vicinity was another teenager smoking a cigarette while "spotting." That teenager, though he was an accomplished gymnast and the best of the Huff backyard trampolinists, was unable to keep the plaintiff from landing on his head, although he attempted to do so.

The background facts relevant to all the motions, as described above, are not materially disputed. The plaintiff's product liability claim (although asserted under theories of negligence, warranty, and strict liability) is that the defendant Weslo did not adequately warn potential users of the dangers of serious or paralyzing injury from somersaulting.

II.

Addressing first the motion of Wal-Mart Stores, the Court finds that there is no dispute that it sold the trampoline in an unaltered form, that it had no knowledge of the claimed design defect (i.e., it had not received actual or constructive notice of any claim that the label warnings were defective), that Wal-Mart could not have discovered the claimed inadequacy in the exercise of reasonable care (in that the warnings carried on the product conformed to ASTM industry standards), and that it did not manufacture or alter the product in any way that contributed to the plaintiff's injury. There is, thus, no question that MD.CTS. & JUD.PROC.CODE ANN. § 5-311(b) (1989) insulates Wal-Mart from the product liability claims asserted against it, both ex contractu and ex delicto. The clear purpose of section 5-311 is to make the chickens of a poor design come home to roost with the manufacturer, not the retailer. As to the plaintiff's contention that he would not be able to enforce a judgment against the manufacturer, the affidavit of counsel as to statements made by attorneys in the course of litigation about assets or insurance coverage of Weslo does not satisfy the requirements of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), that the party opposing summary judgment come forward with evidence sufficient to generate a factual issue under the applicable standard of proof. Here, that standard of proof (on the relevant issue) is clear and convincing evidence, under section 5-311(c)(3), and the affidavit in question shows over a million dollars in insurance coverage remaining, which means that a judgment (even if not as large as plaintiff would hope to obtain) could be enforced against the manufacturer. Furthermore, the affidavit would be inadmissible under Fed.R.Evid. 408, because it incorporates statements made in settlement discussions, and, contrary to plaintiff's assertion, it is offered on the merits of a defense rather than on a merely collateral matter. Hence, it is incompetent to support a summary judgment opposition under the federal standards governing summary judgment, whatever might be the state law to the contrary. See Wilson v. Clancy, 747 F.Supp. 1154 (D.Md.1990), aff'd, 940 F.2d 654 (Table) (4th Cir.1991). In any event, there was no defect in the product for which Wal-Mart could be held liable even if section 5-311 were inapplicable, as will be more fully discussed below.

III.

Although product liability cases frequently present issues that must be resolved by the trier of fact, see, e.g., Hong v. Marriott Corp., 656 F.Supp. 445 (D.Md. 1987), it is also true that, in the appropriate case, summary judgment is available to the manufacturer, even where there is a claim of inadequate failure to warn. See, e.g., Higgins v. E.I. DuPont de Nemours & Co., 671 F.Supp. 1055 (D.Md.1987), aff'd, 863 F.2d 1162 (4th Cir.1988).

Even giving plaintiff the benefit of the doubt on the admissibility of his experts' testimony, but see Scott v. Sears Roebuck & Co., 789 F.2d 1052 (4th Cir.1986) (requisite reliability of "human factors" expert testimony) and Wilson v. Clancy, supra, the Court finds that, were this case at the directed verdict stage, no reasonable fact finder could conclude by a preponderance of the evidence that the warnings given by the manufacturer were inadequate. See Anderson v. Liberty Lobby, Inc., supra.

There is persuasive authority that the duty to warn in Maryland is essentially identical under the U.C.C. (as a component of the implied warranty of merchantability as to labelling under U.C.C. § 2-314(2)(e)), the law of negligence, and the law of strict liability, i.e., there is a duty to provide a reasonable warning of latent defects. Dechello v. Johnson Enterprises, 74 Md.App. 228, 236, 536 A.2d 1203, 1207 (1988). There is, of course, no duty to warn of obvious dangers. See Nicholson v. Yamaha, 80 Md.App. 695, 566 A.2d 135 (1989), cert. denied, 318 Md. 683, 569 A.2d 1242 (1990). The question of obviousness of risk is objective, rather than subjective, under Maryland law, as stated in Nicholson, 80 Md. App. at 715, 566 A.2d 135.

The case law on trampoline injuries (especially as it relates to warnings) is surprisingly sparse. See Annot., Products liability: trampolines and similar devices, 76 A.L.R.4th 171. Although no Maryland case has addressed the obviousness of paralyzing injury from trampolines, the few cases in other jurisdictions that have done so have involved persons who subjectively appreciated the risks, which, the courts said, need not thus have been warned against. These cases, therefore, can be said to involve either assumption of the risk or lack of proximate cause, and they are fact-specific. See, e.g., Burchinal v. Gregory, 41 Colo.App. 490, 586 P.2d 1012 (1978) and Garrett v. Nissen Corp., 84 N.M. 16, 498 P.2d 1359 (1972). The facts of the present case cannot, on summary judgment, fairly be taken to equate the present plaintiff's knowledge of trampolining risks with that of the plaintiffs in the two cases just cited.

The most recent case in the field appears to be the case annotated in 76 A.L.R.4th, viz., Van Dike v. AMF, Inc., 146 Mich.App. 176, 379 N.W.2d 412, leave to appeal denied, 424 Mich. 898 (1985). In Van Dike, a case involving paralysis from somersaulting on a backyard...