LEGAL SERVICES DEPARTMENT

By James C. Kozlowski, J.D.

Personal injury costly to manufacturer, school

In the case of Pell v. Victor J. Andrew High School 462 N.E.2d 858 (Ill.App. 1 Dist. 1984), plaintiff Lauren Pell, a 16-year-old sophomore and beginner gymnast, was injured after attempting a somersault on a product manufactured by defendant AMF, called a mini-trampo-line ("mini-tramp"). The circumstances surrounding the incident were as follows:

On the day of injury, plaintiff [Pell] had first performed two somersaults off the mini-tramp. Both of the school 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 plaintiffs 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 [jumping surface]. 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.

In her complaint. Pell alleged: (1) AMF's mini-tramp was not reasonably safe for its intended use; (2) 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 (3) AMF carelessly and negligently failed to provide a support harness or restraining device to prevent improper landing. Based upon these allegations, Pell contended that "as a direct and proximate result of the defect in the mini-tramp . . . [she] landed on her neck, severed her spine and was permanently paralyzed."

A jury awarded Pell $5 million against defendant AMF. Prior to trial, Victor J. Andrew High School had entered into a settlement agreement with Pell for $1.6 million. As a result, a final judgment was entered against AMF for $3.4 million (the $5 million jury being reduced by the amount of $1.6 million settlement agreement). AMF appealed.

On appeal, AMF maintained that the trial court had erred in not di-

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recting a verdict in its favor or alternatively not granting AMF a judgment notwithstanding the verdict. In pertinent part, AMF argued:

• AMF could not be held liable for failing to provide warnings and instructional materials to the school district;

• the proximate cause of Pell's injury was the school district's willful and wanton misconduct in failing to properly instruct and supervise Pell in the use of the trampoline; and

• Pell's knee condition was the proximate cause of her injury.

In addition, AMF contended that Pell "had assumed the risk of injury because she knew of the condition of the mini-tramp and the dangers involved in using it."

Inadequate Warning

The AMF mini-tramp sold to the school district contained the following caution label attached to its polypropylene fabric jumping surface;

"Caution. Misuse and abuse of this trampo line 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."

The mini-tramp was assembled by a faculty member of the high school. As assembled, the jumping surface 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." Additional printed warnings appeared on the frame of the mini-tramp. However, these warning labels "were covered by frame pads on each of the four sides" of the mini-tramp.

AMF contended gymnast assumed risk of injury

Based upon these facts, AMF argued that "it could not 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." The appeals court rejected this argument:

"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 it used tor somersaulting without a safety device operated by a trained instructor."

According to the appeals court, '''warnings must be adequate to perform their intended function of risk reduction." As described by the appeals court warnings may be inade-

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quate if they:

• do not specify the risk presented by the product;

• are inconsistent with how a product would be used;

• do not provide the reason for the warnings, and

• do not reach forseeable users. Applying these principles to the facts of the case, the appeals court found sufficient evidence "from which the jury could conclude that AMF's warnings were ineffective."

[T]he 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 a mini-tramp.

The assembly instructions failed to specify that the warning label should be clearly visible to gymnast.

The appeals court further found "the jury could have reasonably determined that the warnings were inadequate because their location was inconsistent with the equipment's use." As described above, the warning labels were not visible to Pell at the time of the accident. The appeals court also took note of evidence offered by Pell indicating "the assembly instructions failed to specify that the warning label should be placed in such a manner that it could be clearly visible to a gymnast."

Foreseeability Triggers Liability

The appeals court also rejected AMF's contention that "the proximate cause of plaintiff's injury was the school district's failure to provide plaintiff with proper gymnastic instructions in the safe use of the mini-tramp." According to the appeals court, "a manufacturer may remain a contributing cause of an injury if the intervening acts or omissions of others were foreseeable." As defined by the appeals court, "foreseeability" refers to "that which is objectively reasonable to expect, not what might conceivably occur." Once the negligence of others is deemed foreseeable, "liability will also attach if the defendant's conduct contributed in whole or in part to the injury so long as it was one of the proximate causes." Applying these principles to the facts of the case, the appeals court found AMF liable:

"In the case before us, there was sufficient evidence to support a finding that it was objectively foreseeable that mini-tramp users such as plaintiff would not always be under the direct supervision of a coach and that neither a gymnast nor a coach would have sufficient knowledge of the dangers of the mini-tramp because the warnings were inadequate. As we have previously explained, plaintiff submitted ample evidence which strongly suggested that AMF's warnings were inadequate. Additionally, the record shows that both Larry Fie and Mike Jacki [AMF vice-presidents] testified that coaches were not "told to put the kids in harnesses if they're using a mini-tramp to avoid crippling injuries from doing a somersault." In our judgment, therefore, the trial court could not have directed a verdict for AMF since the evidence . . . demonstrated that (1) the absence of direct supervision was reasonably foreseeable, and (2)that AMPs failure to adequately warn of the risk of serious injury was a proximate cause of plaintiff's injury.

The appeals court further rejected AMF's contention that "plaintiff's 'idiosyncratic' knee condition was the proximate cause of her injury and because of this condition was unforeseeable, AMF did not have a duty to warn or protect the plaintiff against the danger of performing on the mini-tramp with such a condition." Pell had testified that "her knee had never been such a problem for her that she could not practice gymnastics, although it had been 'locking-up' on her during her diving (swimming) practice in her freshman year." According to the appeals court, "the jury in the instant matter could reasonably determine that plaintiffs injury was not caused by any unusual propensity on her part." As a result, the appeals court concluded: "[E]ven if AMF had known of plaintiff's 'knee condition', it would not be absolved of the duty to adequately warn users of the high risk of injury associated with the mini-tramp."

Having rejected these and other points raised on appeal by AMF, the appeals court affirmed the judgment of the trial court in favor of Pell.

ABOUT THE AUTHOR:

Mr. Kozlowski is an attorney and legal affairs consultant to the National Recreation and Park Association in Alexandria, Virginia. Kozlowski is the author of the Recreation and Parks Law Reporter (RPLR). RPLR is a subscription service of the National Recreation and Park Association (NRPA). It is a quarterly publication reviewing recent recreation-related personal injury court decisions similar to the Pell case described here.

RPLR is available at the rate of $45/yr. for NRPA members ($90/yr. non-members) payable to "NRPA Law Reporter." Forward subscription requests to; NRPA Membership, 3101 Park Center Drive, Alexandria, Virginia 22302. For further information contact: Kent J. Blumenthal, RPLR coordinator, at NRPA (703) 820-4940.

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