Pell v. Victor J. Andrew High School

• Decision Date: 06 April 1984
• Docket Number: No. 82-2539,82-2539
• Citation: 78 Ill.Dec. 739,462 N.E.2d 858,123 Ill.App.3d 423
• Parties: , 78 Ill.Dec. 739, 50 A.L.R.4th 1207, 17 Ed. Law Rep. 567 Lauren M. PELL, Plaintiff-Appellee, v. VICTOR J. ANDREW HIGH SCHOOL, et al., Defendants, and AMF, Inc., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 858

462 N.E.2d 858

123 Ill.App.3d 423, 78 Ill.Dec. 739,

50 A.L.R.4th 1207,

17 Ed. Law Rep. 567

Lauren M. PELL, Plaintiff-Appellee, v. VICTOR J. ANDREW HIGH SCHOOL, et al., Defendants and AMF, Inc., a corporation, Defendant-Appellant.

No. 82-2539.

Appellate Court of Illinois First District, Fifth Division.

April 6, 1984.

[78 Ill.Dec. 741] McKenna, Storer, Rowe, White & Farrug, Chicago (Robert S. Soderstrom, James P. DeNardo, and Shaun McParland, Chicago, of counsel), for defendant-appellant

Michael J. McArdle, Chicago, for plaintiff-appellee.

Baker & McKenzie, Chicago, (Francis D. Morrissey, John W. Dondanville, and J. Kent Mathewson, Chicago, of counsel), for defendants.

WILSON, Justice:

This is an appeal by defendant AMF, Inc. ("AMF") from the entry of judgment in the circuit court of Cook County on a jury verdict for plaintiff Lauren M. Pell for permanent injuries plaintiff sustained during gym class while performing a somersault off a trampoline manufactured by AMF. Prior to trial, plaintiff and defendants School District 230 and Victor J. Andrew High School entered into a settlement agreement for $1.6 million. Thereafter, the jury awarded plaintiff $5 million against AMF on the theory of strict liability, which amount was set off by the $1.6 million settlement figure and resulted in a final judgment against AMF for $3.4 million. Ill.Rev.Stat.1981, ch. 70, par. 302, section 2(c).

On appeal, AMF contends that the trial court erroneously failed to direct a verdict in its favor or to grant its motion for judgment notwithstanding the verdict because (1) AMF cannot be held liable for failure to provide warnings and instructional materials to either of the other defendants; (2) because the proximate cause of plaintiff's injury was the school district's wilful and wanton misconduct in failing to properly instruct and supervise plaintiff in the use of the trampoline; and (3) because plaintiff's knee condition was the proximate cause of her injury. AMF contends further that the trial court erred (4) in refusing to allow AMF to present evidence on the issue of plaintiff's comparative negligence; (5) in admitting exhibits that dealt with full size trampolines; (6) in refusing to admit two of AMF's exhibits, and (7) in finding that plaintiff's settlement with the school district was made in good faith. For the reasons hereinafter set forth, we affirm.

On December 29, 1980, plaintiff, a 16-year-old sophomore and beginner gymnast at Victor J. Andrew High School, was injured as the result of a somersault she performed on a product manufactured by AMF, called a mini-trampoline or trampolette ("mini-tramp"). This equipment consists of a 37-inch, square-shaped metal frame holding a "bed" of polypropylene fabric with rubber cables which lace the "bed" to the frame. Two adjustable metal leg sections can be used to set the frame at any angle or to fold the equipment flat.

The mini-tramp was sold to School District 230 with a heat-laminated caution label affixed to the bed which stated:

"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 height 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 can be dangerous and should not be undertaken or permitted."

When the mini-tramp was assembled by a faculty member at the high school, the bed was placed so that the caution label was on the bottom, facing the floor, as opposed to the top where it would be visible to a performer. There were printed warnings also on the frame of the mini-tramp, however they were covered by frame pads on each of the four sides.

On the day of the injury, plaintiff had first performed two somersaults off the mini-tramp. Both of the school's coaches, Charlene Nutter, the varsity gymnastics coach, and Cathi Miles, were present in the gymnasium. Miles, who worked primarily with the freshmen and sophomore students, witnessed plaintiff's third somersault from a distance of approximately 10 feet. Plaintiff testified that she took a few running steps up to the mini-tramp and jumped onto the bed. When she went into the air, at the point when her feet were straight up and down above her, plaintiff said she felt a sharp pain in her knee and was unable to properly complete her somersault. She collapsed onto a nearby mat, severing her spine.

Plaintiff then filed a cause of action against Victor J. Andrew High School, School District 230, Crown Mats, Inc. and Counts III, IV, VII, and VIII of plaintiff's complaint alleged that AMF's mini-tramp was not reasonably safe for its intended use; that AMF failed to adequately warn or advise plaintiff that use without a harness, safety belt and supervision by a trained instructor would result in severe injury and that AMF carelessly and negligently failed to provide a support harness or restraining device to prevent improper landing. Plaintiff further alleged that as a direct and proximate result of the defect in the mini-tramp, plaintiff landed on her neck, severed her spine and was permanently paralyzed.

[78 Ill.Dec. 743] AMF. As previously explained, a pre-trial settlement between the high school and school district resulted in their dismissal and rendered moot portions of Counts I and II of plaintiff's complaint; plaintiff also dismissed Crown Mats, Inc. because of insufficient evidence.

In reply, AMF filed affirmative defenses asserting that (1) plaintiff had assumed the risk of injury because she knew of the condition of the mini-tramp and the dangers involved in using it, and (2) that any verdict against AMF must be reduced by the percentage of plaintiff's contributory negligence.

Plaintiff then filed a motion in limine to preclude AMF from presenting evidence that her conduct contributed to cause her injury. Granting the motion, the court reasoned that although it would allow AMF to offer evidence of plaintiff's negligence, it would "wait and see what happens" before deciding whether to give a comparative negligence instruction to the jury.

The record shows that during the trial of this matter, plaintiff and AMF called many witnesses to testify, including high school coaches, the president of AMF and one of its vice-presidents, as well as gymnastic experts and physicians. Because of the lengthy proceedings, we will address AMF's argument at the outset and refer to the pertinent testimony only as we deem to be necessary.

At the close of all the evidence, the question of comparative negligence was again addressed during a post-trial discussion on jury instructions, where the court determined that " * * * this case really turns on proximate cause. * * * I am taking the view [that] this is not an appropriate case for application of the principles of comparative negligence." The court once again reiterated its reasons for not instructing the jury on comparative negligence, stating that there had been absolutely no evidence of assumption of the risk as well. The jury was thereafter given an instruction on strict liability. It returned a verdict against AMF and assessed plaintiff's damages at $5 million. Following the entry of judgment on this verdict, AMF appealed.

OPINION

Initially, AMF maintains that the trial court erred in failing to direct a verdict in its favor or to grant its motion for a judgment notwithstanding the verdict because it cannot be held liable, as a matter of law, for failing to provide warnings and instructional materials for using the mini-tramp since the school district as well as the high school had all of the appropriate instructional materials. ¹ We find this reasoning unpersuasive, however, because it misstates the central issue presented to the trier of fact, which was the unreasonably dangerous condition of the mini-tramp which, plaintiff alleged, existed because AMF failed to adequately warn of the equipment's propensity to cause severe spinal cord injuries if used for somersaulting without a safety device operated by a trained instructor.

Warnings must be adequate to perform their intended function of risk reduction. Warnings may be inadequate, however, if they: (1) do not specify the risk presented by the product; (2) are inconsistent with how a product would be used; (3) if they do not provide the reason for the warnings; or (4) if they do not reach foreseeable users. Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 206, 73 Ill.Dec. 350, 454 N.E.2d 210; Palmer v. Avco Distributing Corp. (1980), 82 Ill.2d 211, 221, 45 Ill.Dec. 377, 412 N.E.2d 959; Peterson v. B/W Controls, Inc. (1977), 50 Ill.App.3d 1026, 1029, 9 Ill.Dec. 30, 366 N.E.2d 144.

Considering these principles, in our opinion there was sufficient evidence in the instant case from which the jury could conclude that AMF's warnings were ineffective. First, the warnings did not specify the risk of severe spinal cord injury which would result in permanent paralysis during somersaulting off the mini-tramp if performed without a spotter or safety harness. Charlene Nutter, head coach at the high school, testified that she did not know that the mini-tramp had any more risk involved in it than did any other gymnastic equipment and had she known, she would have taken precautions.

Coach Cathi Miles was also unaware of any rule that somersaults should not be performed on a mini-tramp without a spotter or overhead mechanical safety belt, although she had used the safety harness with a larger (full size) trampoline as well as the mini-tramp.

In addition, the jury could have reasonably determined that the warnings were inadequate because their location was inconsistent with the equipment's use. Plaintiff presented evidence that the assembly instructions failed to...