HOREN
v.
COLECO INDUSTRIES, INC.
Docket No. 101110.
Michigan Court of Appeals.
Decided July 5, 1988.Trogan & Trogan, P.C. (by Bruce F. Trogan), for plaintiffs.
Zamplas, Paskin, Nagi, Baxter, Johnson & Walker, P.C. (by Jeannette A. Paskin and Paul J. Johnson), for Coleco Industries, Inc.
Irwin F. Hauffe, II, for Bridgeport Pools, Inc.
Before: WEAVER, P.J., and SHEPHERD and F.D. BROUILLETTE,[*] JJ.
*727 WEAVER, P.J.
Plaintiffs appeal as of right from a circuit court order which granted summary disposition in favor of defendants. We reverse.
I
On July 3, 1981, while visiting the home of his parents-in-law, Mr. and Mrs. Ralph Cox, thirty-three-year-old William Horen began swimming in the Coxes' above-ground outdoor swimming pool which had been manufactured in 1978 by defendant Coleco Industries, Inc. The pool, measuring twenty-four feet in diameter, contained a water depth of between four and five feet and was surrounded by side walls to which a large, manufacturer-supplied deck had been attached. After observing others jumping and diving into the pool, Mr. Horen executed one "normal" flat, shallow dive with no difficulty. However, when Mr. Horen attempted a second such dive from a standing position on the manufacturer-supplied deck, his hands, head, or torso apparently became tilted in such a way as to act as a rudder when he entered the water, and he struck his head on the bottom of the pool. As a result, Mr. Horen suffered a fractured neck and became a permanent quadriplegic.
The pool contained only one small, faded and peeling warning label affixed at the base of a corner of the chain-link wall adjoining the deck, which read: "No Diving. Shallow Water." However, Mr. Horen testified that he saw no warning labels or signs in or around the pool to indicate that there should be no diving. He also testified that he was a recreational swimmer of limited swimming and diving experience and that he had never received any diving instruction.
Upon motion for summary disposition brought by defendants Coleco Industries, Inc., Lomart Industries *728 and Bridgeport Pools, Inc., the trial court granted summary disposition in favor of the moving-party defendants. Plaintiffs appeal as of right.
II
First we note that defendants moved for summary disposition pursuant to MCR 2.116(C)(8) on grounds of failure to state a claim upon which relief can be granted. However, defendants actually argued the motion pursuant to MCR 2.116(C)(10), since they alleged there was no genuine issue of material fact that diving headfirst into an above-ground pool was an open and obvious danger for which there was no duty to warn. Further, a review of the trial court's findings indicates that the judge looked beyond the pleadings, to which he would have been limited had the motion been decided under MCR 2.116(C)(8). See Harrison Twp v Calisi, 121 Mich. App. 777, 781-782; 329 NW2d 488 (1982). We therefore review the order of summary disposition as one entered pursuant to MCR 2.116(C)(10). Huff v Ford Motor Co, 127 Mich. App. 287, 293; 338 NW2d 387 (1983).
In deciding whether to grant or deny the motion for summary disposition brought under MCR 2.116(C)(10), the trial court was required to view the matter in a light most favorable to the nonmoving party, giving that party the benefit of reasonable doubt to find any facts in support of its assertion that an issue of fact existed. Id. Before granting summary disposition, the trial court was to be satisfied that it would be impossible for the claim asserted to be supported by the evidence at trial. Id. Because in the instant case we do not believe it impossible for plaintiffs' claim to be supported by the evidence at trial, we find that the trial court incorrectly granted summary disposition in favor of defendants.
*729 III
On appeal, plaintiffs argue that the trial court applied the wrong test. We agree. Defendants argued, and the trial court accepted, the test enunciated in Fisher v Johnson Milk Co, Inc, 383 Mich. 158; 174 NW2d 752 (1970) namely, that there is no duty to warn of a patent and obvious danger inherent in a simple tool or product. Id. at 160. See also Coger v Mackinaw Products Co, 48 Mich. App. 113, 122; 210 NW2d 124 (1973). The moving-party defendants utilized this test to assert that, since the above-ground swimming pool was a simple product in which there openly and obviously inhered a risk of serious injury from diving, summary disposition was proper because there was no duty to warn.
However, the "open and obvious risk" test does not adequately state the law in Michigan, since this test was subsequently modified by that set out in Owens v Allis-Chalmers Corp, 414 Mich. 413; 326 NW2d 372 (1982). Owens opined that a manufacturer is not automatically excused from responsibility merely by showing that the risks inhering in a simple tool or product are open and obvious. Id. at 424-425. Although such a determination may be utilized as one factor among others to conclude that the manufacturer has no duty to warn because the product is not unreasonably dangerous, the new test is whether the risks are unreasonable in light of the foreseeable injuries. Id. at 425. See also Francisco v Manson, Jackson & Kane, Inc, 145 Mich. App. 255, 262; 377 NW2d 313 (1985), lv den 424 Mich. 872 (1986); SJI2d 25.31 and Comment.
Defendants' reliance upon Hensley v Muskin Corp, 65 Mich. App. 662; 238 NW2d 362 (1975), lv *730 den 395 Mich. 776 (1975),[1] is unpersuasive because Hensley adopted the Fisher test which was altered by Owens. Hensley is also unpersuasive on its facts, since in Hensley the plaintiff dove from a seven-foot-high garage into a four-foot-deep above-ground swimming pool. We do not believe that plunging from a seven-foot-high garage is the equivalent of attempting a flat, shallow dive from a standing position on a manufacturer-supplied deck, like the one in this case, attached to the pool itself.
The question of duty is generally one of law for the court. Moning v Alfono, 400 Mich. 425, 436-437; 254 NW2d 759 (1977), reh den 401 Mich. 951 (1977), supplemental order 402 Mich. 958 (1978).!In this case, however, defendants' argument that they had no duty to warn of the diving danger really relates to the applicable specific standard of care a question for the jury instead of the existence of a legal duty. Id. at 437-438; Francisco, supra at 262. Where, as here, injury was reasonably foreseeable, the manufacturer's use of reasonable care in guarding against unreasonable or foreseeable risks is a jury question, even where the danger is obvious. Id.; Casey v Gifford Wood Co, 61 Mich. App. 208, 214-215; 232 NW2d 360 (1975), lv den 395 Mich. 810 (1975).
Plaintiffs' evidence, from which a jury might find the manufacturer's product to have posed an unreasonable and foreseeable danger that death or paraplegia could result from diving into the water, was sufficient to preclude summary disposition against the proffered defense. Corbin v Coleco Industries, Inc, 748 F2d 411, 417 (CA 7, 1984). The *731 record indicates: (1) that the manufacturer published promotional advertisements showing people diving into similar above-ground pools; (2) that the manufacturer knew that many people did not appreciate the risks of death or paraplegia associated with diving; (3) that defendants sold this type of above-ground pool primarily to recreational, untrained divers, with knowledge that an untrained diver might not be able to make a safe dive into it although a trained diver could; (4) that defendants admitted it to be foreseeable that users of the pool might employ the manufacturer-supplied deck as a diving platform; (5) that defendants' expert witness admitted that the public was generally unaware of the risk of catastrophic injury associated with diving into such pools; and (6) that, although defendants officially recognized the diving danger around 1969, they did not provide the type of warning signs recommended by the American National Standards Institute until 1983, when they sold the division, for fear of a negative impact on sales.
In light of the foregoing, we believe that an ordinary recreational swimmer of limited swimming and diving experience, with no diving training, might believe that a flat, shallow dive could be performed without threat of death or paraplegia, especially when the swimmer was not presented with a hazard sign sufficient to warn of such danger and when other swimmers were observed executing similar dives without harm. Even should the evidence establish Mr. Horen's consciousness of a vague danger, this would not preclude a jury from finding that a warning was nonetheless required to give full appreciation of the life-threatening risks involved. See Michigan Mutual Ins Co v Heatilator Fireplace, 422 Mich. 148, 154; 366 NW2d 202 (1985).
*732 Giving the benefit of reasonable doubt to plaintiffs as the nonmoving parties, it cannot be said that there existed no genuine issue of material fact for trial. Huff, supra. Hence it was error for the trial court to grant summary disposition in favor of defendants.
Reversed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] In Hensley, the Court held that there existed no duty on the part of the manufacturer, seller, or owner of a four-foot-deep above-ground swimming pool to warn the plaintiff not to dive from a seven-foot-high garage into the pool, because such diving was an "obviously dangerous use of an otherwise nondangerous product." Id. at 663.