Parish v. Icon Health & Fitness, Inc., 04-1544.

• Decision Date: 21 July 2006
• Docket Number: No. 04-1544.,04-1544.
• Citation: 719 N.W.2d 540
• Parties: James PARISH II, Individually and as Parent and Next Friend of James Parish III, a Minor Child, Appellant, v. ICON HEALTH & FITNESS, INC. Defendant, Jumpking, Inc., Appellee.
• Court: Iowa Supreme Court

719 N.W.2d 540

James PARISH II, Individually and as Parent and Next Friend of James Parish III, a Minor Child, Appellant, v. ICON HEALTH & FITNESS, INC. Defendant Jumpking, Inc., Appellee.

No. 04-1544.

Supreme Court of Iowa.

July 21, 2006.

COPYRIGHT MATERIAL OMITTED

Martin A. Diaz, Iowa City, for appellant.

Michael D. Ensley of Hanson, Bjork & Russell, L.L.P., Des Moines, for appellee.

LARSON, Justice.

James Parish was severely injured while using a trampoline manufactured by the defendant, Jumpking, Inc. Parish sued Jumpking on theories of defective design of the trampoline, and negligence in failing to warn of the danger in using it. The defendant moved for summary judgment, which was granted, and the plaintiff appealed. We affirm.

I. Facts and Prior Proceedings.

In June of 1999, Delbert Parish (the plaintiff's brother) and Shelley Tatro purchased a Jumpking fourteen-foot trampoline for use in their backyard. They set up the trampoline, and Delbert tried it out by attempting a somersault. He nearly fell off the trampoline, prompting Delbert and Shelley to purchase a "fun ring"—a netlike enclosure with one entry point onto the trampoline. While the plaintiff was visiting his brother on September 11, 1999, he attempted to do a back somersault on the trampoline, but he landed on his head and was rendered a quadriplegic. In August 2001 Parish filed suit, on his own behalf and on behalf of his minor son, against Jumpking, as designer and manufacturer of the trampoline and its enclosure.¹

II. The Issues.

The district court entered summary judgment against the plaintiff on all claims, and he argues on appeal that this was error because there were genuine issues of material fact on his design-defect claim, and on the adequacy of Jumpking's warnings. He also contends that the "open and obvious" defense is not applicable to a design-defect case, and in any event, there was an issue of material fact as to its application here.²

III. Principles of Review.

We review the granting of a motion for summary judgment for correction of errors at law. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000). Summary judgment is appropriate when there is no genuine issue of material fact, and the burden of showing the lack of a genuine issue is on the moving party. Fischer v. UNIPAC Serv. Corp., 519 N.W.2d 793, 796 (Iowa 1994). A fact is material if it will affect the outcome of the suit, given the applicable law. Id. An issue of fact is "genuine" if the evidence is such that a reasonable finder of fact could return a verdict or decision for the nonmoving party. Junkins v. Branstad, 421 N.W.2d 130, 132 (Iowa 1988). The evidence is viewed in the light most favorable to the nonmoving party. Fischer, 519 N.W.2d at 796. If the moving party can show that the nonmoving party has no evidence to support a determinative element of that party's claim, the moving party will prevail in summary judgment. The nonmoving party in a summary judgment motion "may not rest upon the mere allegations or denials in the pleadings." Iowa R. Civ. P. 1.981(5). In a nutshell, the summary judgment procedure does not contemplate that a district court may try issues of fact, but must determine only whether there are issues to be tried.

IV. The Defective Design Claim.

In Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002), we adopted sections 1 and 2 of the Restatement (Third) of Torts: Products Liability [hereinafter Restatement]. Section 2 of the Restatement recognizes three types of product defect:

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

. . . .

(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe[.]

The plaintiff's first argument is that the district court erred in granting summary judgment on his design-defect claim under section 2(b). Under a design-defect claim, a plaintiff is essentially arguing that, even though the product meets the manufacturer's design specifications, the specifications themselves create unreasonable risks. To succeed under section 2(b), a plaintiff must ordinarily show the existence of a reasonable alternative design, Wright, 652 N.W.2d at 169, and that this design would, at a reasonable cost, have reduced the foreseeability of harm posed by the product. Restatement § 2 cmt. d.

The Restatement recognizes exceptions to the requirement of a reasonable alternative design, but the plaintiff relies on only one: that the design was "manifestly unreasonable" under Restatement § 2(b) cmt. e. Under that comment,

the designs of some products are so manifestly unreasonable, in that they have low social utility and high degree of danger, that liability should attach even absent proof of a reasonable alternative design.

The plaintiff concedes that he has not offered an alternative design; rather, he argues a trampoline is so inherently dangerous that a reasonable design alternative is not available. He contends there is no safe way to use a trampoline in a backyard, and it must be used only by properly trained and qualified participants under supervision.

The Restatement provides this illustration of a manifestly unreasonable product under comment e:

ABC Co. manufactures novelty items. One item, an exploding cigar, is made to explode with a loud bang and the emission of smoke. Robert purchased the exploding cigar and presented it to his boss, Jack, at a birthday party arranged for him at the office. Jack lit the cigar. When it exploded, the heat from the explosion lit Jack's beard on fire causing serious burns to his face. If a court were to recognize the rule identified in this Comment, the finder of fact might find ABC liable for the defective design of the exploding cigar even if no reasonable alternative design was available that would provide similar prank characteristics. The utility of the exploding cigar is so low and the risk of injury is so high as to warrant a conclusion that the cigar is defective and should not have been marketed at all.

Restatement § 2(b) cmt. e, illus. 5.

Application of the "manifestly unreasonable" exception presents an issue of first impression in Iowa. However, the wording of section 2(b) and virtually all commentary on it suggest that this exception should be sparingly applied. In fact, such exceptions to the requirement of a reasonable alternative design were "grudgingly accepted by the Reporters," Keith C. Miller, Myth Surrenders to Reality: Design Defect Litigation in Iowa, 51 Drake L.Rev. 549, 564 (2003), suggesting that the drafters did not intend for there to be any exceptions to this requirement. One of the reporters to the Restatement agrees:

[B]ear in mind that our comment e talks about extremely dangerous products with very low social utility. It substitutes for the qualitative problem in the general design area, a kind of quantitative solution. We admit that there may be times, and I think they'd be rare, probably non-existent, when a product might come to court, to you, that was so bad, so very outloud bad, so very antisocial, that it would tug against the very grain of the way you were raised.

James A. Henderson, Jr., The Habush Amendment: Section 2(b) comment e, 8— Fall Kan. J.L. & Pub. Pol'y 86, 86 (1998).

Suits involving common and widely distributed products are more likely than others to require the showing of a reasonable alternative. According to the Restatement,

Common and widely distributed products such as alcoholic beverages, firearms, and above-ground swimming pools may be found to be defective only upon proof of [a reasonable alternative design]. If such products are [] sold without reasonable warnings as to their danger . . . then liability under §§ 1 and 2 may attach. Absent proof of defect under those Sections, however, courts have not imposed liability for categories of products that are generally available and widely consumed, even if they pose substantial risks of harm.

Restatement § 2(b) cmt. d.

While comment e recognizes the possibility that egregiously dangerous products might be held defective for that reason alone, the Restatement has noted that "a clear majority of courts that have faced the issue have refused so to hold." Restatement § 2, American Case Law and Commentary on Issues Related to Design-Based Liability, at 87. In this commentary, the Restatement discussed several cases imposing liability under comment e but observed that "[e]ach of these judicial attempts at imposing such liability have either been overturned or sharply curtailed by legislation." Id. at 89.

Under our summary judgment rules,

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in the pleadings, but the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered.

Iowa R. Civ. P. 1.981(5) (emphasis added). As previously noted, a genuine issue of fact is presented if a reasonable fact finder could return a verdict or decision for the nonmoving party based upon those facts. Junkins, 421 N.W.2d at 132. By adopting section 2 of the Restatement in Wright, we also adopted comment e. In the present case, the issue is whether a reasonable fact finder could conclude the trampoline was manifestly unreasonable in its design within the meaning of comment e as interpreted by the commentary surrounding it and the cases applying it.

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