Bunch v. Hoffinger Industries, Inc.
20 Cal. Rptr. 3d 780, 2004 Daily Journal DAR 13645, 123 Cal. App. 4th 1278 (2004)
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Rule of Law:
The danger of diving into a shallow aboveground swimming pool is not 'open and obvious' to an 11-year-old child as a matter of law, meaning a manufacturer has a duty to provide adequate warnings of the risk of severe spinal injury, and the lack of such warnings can be a proximate cause of injury.
Facts:
- In August 1993, 11-year-old Leesa Bunch dove into a four-foot deep aboveground swimming pool, rendering her quadriplegic.
- The replacement pool liner used in the pool was manufactured by Hoffinger Industries, Inc., and sold by McMasker Enterprises, Inc.
- Between 1988 and 1990 (Mr. Frank's check register indicated April 1988), Joe and Loretta Frank received a used aboveground pool frame and purchased the Hoffinger liner; Mr. Frank installed it, recessed the pool two feet into the ground, and built an adjacent deck with wooden benches.
- Mrs. Frank testified the Hoffinger liner came with small labels stating "'Caution — no diving — shallow water'", but Mr. Frank could not recall seeing any; Bunch vaguely remembered similar stickers with a 'pike' dive image, believing it meant 'not to dive like that'.
- Mrs. Frank had previously told Bunch and her brother Erick not to dive, and on the day of the accident, she reiterated, "This is a shallow pool, it is only four feet deep, no diving," but did not mention the possibility of injury, then went into the house.
- Bunch, having watched the Olympics and practiced "shallow racing dives" at other pools, and believing she dove well, made several flat racing dives from the deck and then from a bench.
- Bunch testified she was completely unaware of the danger of severe injury (like breaking her neck) from diving into a shallow pool and stated a warning explicitly pointing out that risk would have prevented her from making the dive.
Procedural Posture:
- Leesa Bunch filed suit against various corporate entities, including McMasker Enterprises, Inc., alleging negligence, strict products liability (manufacturing and design defect), failure to warn, and breach of warranty.
- McMasker failed to respond, and in August 1998, the trial court granted Bunch a default judgment against McMasker for $20,001,157.
- After Bunch informed McMasker’s insurer of the default judgment, McMasker moved for relief from the default judgment, but later abandoned this motion to pursue settlement negotiations with Bunch.
- McMasker tendered the defense and indemnity of the action to Hoffinger Industries, Inc., which Hoffinger declined, also opting out of McMasker’s settlement negotiations.
- McMasker filed a cross-complaint for indemnification against Hoffinger.
- During settlement negotiations, Bunch agreed to set aside the McMasker default judgment and settled her claim against McMasker for $1 million (McMasker's insurance policy limit), also agreeing not to sue Hoffinger.
- Bunch later requested that McMasker waive her agreement not to sue Hoffinger, which McMasker agreed to.
- Bunch amended her complaint to substitute the Hoffinger parties as Doe defendants.
- Hoffinger filed a motion for summary judgment, which the trial court denied, finding that issues regarding the adequacy of warnings and the obviousness of danger to an 11-year-old raised questions of fact.
- Hoffinger filed a motion to dismiss Bunch's complaint, arguing it violated the settlement terms, which the trial court denied.
- Hoffinger moved to bifurcate the trial (separating liability and damage determinations), which the trial court denied.
- A 17-day jury trial was held.
- The jury returned a verdict in Bunch’s favor, finding a defect in design or a failure to warn defect in Hoffinger’s product that caused the injury, and that the injury was reasonably foreseeable.
- The jury awarded $16,112,306, which was reduced by Bunch’s 5 percent comparative fault and the 20 percent comparative fault of other nondefendants.
- The trial court awarded Bunch $12,526,890.70 plus costs and awarded McMasker $1 million plus costs.
- Hoffinger moved for a new trial.
- Hoffinger filed a notice of bankruptcy with the trial court, leading the trial court to drop the hearing on the motion for a new trial from its calendar.
- Hoffinger filed a timely notice of appeal to the California Court of Appeal.
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Issue:
Does a manufacturer of an aboveground swimming pool liner owe a duty to warn an 11-year-old child of the danger of severe spinal injury from diving into a shallow pool, even if the child has received general "no diving" instructions and attempted a shallow dive, where the risk of catastrophic injury is not "open and obvious" to a child of that age?
Opinions:
Majority - RAYE, J.
No, the danger of severe spinal injury from diving into a shallow aboveground pool is not "open and obvious" to an 11-year-old child as a matter of law, and therefore, the manufacturer does owe a duty to warn, and the lack of adequate warnings can be a proximate cause of injury. The court rejected Hoffinger's contention that it owed no duty to warn because the danger was open and obvious, emphasizing that the "open and obvious" doctrine must be applied considering the cognitive abilities of a foreseeable child user. Drawing persuasive reasoning from Klen v. Doughboy Recreational, Inc., the court held that when children are foreseeable product users, the standard for determining an "open and obvious" danger must be what is true for a child of that age, not an adult, given children's immaturity and potential inability to appreciate certain risks obvious to adults. Bunch's experts, Dr. Buck and Dr. Johnson, testified that the warnings supplied by Hoffinger were inadequate and ineffective for an 11-year-old, failing to command attention, evoke emotion, or explicitly state severe consequences like paralysis, and that explicit warnings would have prevented the accident. Regarding proximate cause, the court affirmed the jury's finding, applying the "substantial factor" standard. It found sufficient evidence that the lack of an adequate warning was a "more than negligible or theoretical" contribution to Bunch's injury, especially given Hoffinger's knowledge of foreseeable child misuse and the proven efficacy of explicit warnings in preventing injuries. The court further clarified that the primary assumption of risk doctrine generally does not apply to insulate equipment suppliers from liability for defective products; instead, a user's knowledge of a defect is addressed under comparative negligence, not as a complete bar to recovery.
Analysis:
This case is significant for solidifying the "child reasonable person" standard in assessing the "open and obvious" danger doctrine within products liability claims involving children. It emphasizes that a manufacturer's duty to warn must consider the cognitive abilities and understanding of a foreseeable child user, rather than an adult's. By affirming the jury's finding of proximate cause based on the inadequacy of warnings, the decision places a heightened burden on manufacturers of products commonly used by children to provide explicit, consequence-driven warnings. Future cases involving product-related injuries to minors will likely refer to this precedent to establish the appropriate standard for evaluating warning adequacy and the obviousness of dangers.
