(dissenting). The question presented is whether summary disposition was properly granted defendant manufacturers and sellers of aboveground swimming pools on the basis that the danger of diving in a shallow aboveground swimming pool is open and obvious.
We would hold that the plaintiffs presented sufficient evidence to raise a genuine issue of material fact whether the danger is open and obvious, and would remand these cases for trial.
The plaintiff in each of these cases became quadriplegic as the result of diving in an above-ground swimming pool, and commenced an action claiming that the manufacturer and seller was negligent in failing to provide a warning concerning the dangers of diving in such a pool.
The majority holds, as a matter of law, that the dangers of diving in shallow pools are open and obvious, and there is no duty to warn. We would adhere to the approach outlined in Glittenberg v Doughboy Recreational Industries, Inc, 436 Mich 673, 699; 462 NW2d 348 (1990) (Glittenberg I), where, in remanding to the circuit court for further factual development, I joined in saying that "a manufacturer’s duty to warn is not automatically excused when the risk of harm is obvious.”
This Court remanded Glittenberg I for further factual development so that the question whether there was an obligation to warn of the dangers of diving in an aboveground pool would not be an*413swered in a "vacuum.”1 The plaintiffs in the instant cases, consolidated on appeal, proceeded to develop a factual record that contains substantial evidence tending to show that users of above-ground pools do not perceive the risk of quadriplegic injury from diving, that they do not know how to dive in shallow water safely, and that it is possible to effectively warn of the risks of diving in shallow pools.
The majority adopts an analysis that ignores that evidence. In that vacuum, the majority concludes that because the shallowness of an above-ground pool is obvious, and the general risk of diving in such a pool is also obvious, there is no obligation to warn of the speciñc risk of "shallow” diving and catastrophic diving injury.2
The majority effectively immunizes manufactur*414ers and sellers of aboveground swimming pools from liability, and is regressive because it invites the swimming pool industry to take a step back on safety issues.
i
Our principal disagreement with the majority is with its failure to consider the evidence in the light most favorable to the plaintiffs.
As set forth in the majority opinion, "[t]he gravamen of each of the plaintiff’s argument is that the danger presented is not open and obvious because the specific harm of paralysis or death is not generally recognized. Plaintiffs Horen and Spaulding add the argument that the danger is not open and obvious because the average user does not generally recognize that the laws of physics, biomechanics, and hydrodynamics can transform a miscalculated shallow dive into a deep dive that is recognized as dangerous.”3
Dr. Gabrielson offered the following data:
The National Spinal Cord Injury Data Research Center, through its publications estimates that 800 diving injuries occur each year resulting in paralysis; further that as many as 25% of these injuries occur in pools.
The majority dismisses this evidence with the observation that the fact of injuries does not establish the latency of the danger alleged.4 Putting aside that the majority concludes that the danger of diving in shallow water is open and obvious as a matter of law without considering the evidence, the frequency of such injuries suggests both the *415latency of danger and that it is not open and obvious.
A reasonable person, viewing the plaintiffs’ evidence as a whole, could conclude that a significant number of catastrophic injuries occur, that the swimming pool industry has been aware of the potential for such injuries for a number of years5 and in many instances provided warnings with the product, and that the likely consuming public does not appreciate either the general risk of diving in shallow water in an aboveground swimming pool or the specific risk of quadriplegic injury occurring during a shallow dive assumed by the uninformed diver to be safe.
The majority acknowledges that Dr. Lawniczak testified that "the general public is not aware of and does not appreciate the grave risk of serious spinal cord injury when diving,”6 and that James Richardson testified that "the average person does not appreciate the fact that diving in shallow water carries the potential for life-threatening injuries.”7
Lawniczak testified that diving in shallow water is not necessarily an open and obvious danger to a recreational swimmer. Richardson, diving coach at the University of Michigan, testified that divers do not really understand the potential for serious injury when diving in a shallow pool: "the general public just does not understand about entering the water and what can happen, even at depths that appear to be, to everybody concerned, safe depths .... It’s just a lot more going on there than *416people understand and can imagine is going on.” (Emphasis added.)
The majority argues that "[t]he fact that all plaintiffs acknowledged the necessity to perform a shallow dive simply underscores the conclusion that the risk of diving in shallow water is open and obvious.”8
Performance of a shallow dive, while it is evidence that the diver recognizes a need to modify his actions in response to a perceived danger, is also evidence that divers incorrectly perceive that execution of a shallow dive is sufficient protection from the danger presented by diving in a shallow aboveground swimming pool.
Viewing the evidence most favorably to the plaintiffs, we would conclude that they offered sufficient evidence both of the latency of the specific risk of catastrophic injury, and that divers are unaware of the risks posed by diving in shallow water, to pose a genuine issue of material fact whether the specific risk is open and obvious.
ii
The majority frames the analysis by distinguishing design defect cases from failure to warn cases for the purpose of applying the open and obvious, or "patent” danger rule. The majority, while acknowledging that the decision of this Court in Owens v Allis-Chalmers Corp, 414 Mich 413; 326 NW2d 372 (1982), abrogated the patent danger rule in design defect cases, holds that the open and obvious/patent danger rule still governs in failure to warn cases.9
*417A
The patent danger rule was abrogated in Owens, supra, because, in part, the rule removed the incentive for adopting safer product designs.10 The correlative rationale applies to a failure to warn; a manufacturer should provide warnings that make a product safer to use.11
To be sure, there is no legal obligation to supply "superfluous” warnings, warnings that are by definition unneeded. A superfluous warning is not required because a warning is required only when it would make the product safer to use. We all agree that a product warning that does not apprise a consumer of anything of which he is not already aware does not make a product safer to use.
The plaintiffs in the instant cases do not claim that the defendants should have warned of obvious dangers associated with aboveground swimming pools. The plaintiffs claim rather that there is a *418risk of catastrophic injury, quadriplegia, that may result from diving in shallow aboveground pools, that this risk is not obvious, and that such pools would be safer to use if manufacturers provided a warning concerning the risk of catastrophic injury. A jury might properly conclude from the plaintiffs’ evidence that the asserted danger is latent, and that a warning would make the product safer to use. Such a warning would not, on such a finding, be superfluous.
hi
The majority attaches considerable significance to what it describes as the "simple” character of aboveground pools. The majority argues that because an aboveground pool is a "simple product” its inherent "characteristics and features . . . are readily apparent or easily discernible upon casual inspection.”12
This description of "simple product” begs the question, since it assumes that all characteristics of a "simple” product are universally known, and therefore such products cannot present a latent danger. Under the majority’s approach, a latent danger could never be found, and a warning never would be needed with a "simple product” because the characteristics of such products are, by definition, "universally known.”
At some point "simplicity” and "complexity” come full circle. If simple products require no warnings because their characteristics are universally known, so too complex products because their characteristics are universally unknown, and consumers should reasonably treat them with caution. If a car battery is not a simple product, then it can be argued that it is mysterious enough to warrant *419extreme caution in its use. But surely the majority would not suggest that this "universally known latency” of risk obviates any obligation to warn.
The simplicity or complexity of a product is not controlling on a warning issue. The pertinent inquiry is whether a danger is latent. If a simple product can never in principle present an obvious risk to users, then the definition of "simple product” merely expresses the prejudgment that no latent risk inheres. But at that point the inquiry should focus on the basis for making that prejudgment.
The claim that there is nothing "enigmatic” about such pools is not accurate.13 The plaintiffs presented evidence of properties inherent in a shallow aboveground pool that are indeed enigmatic and not observable upon casual inspection. The testimony of the expert witnesses negatives defendants’ claims that the pools are comprised only of "universally known characteristics.”14
Undeniably the shallowness of aboveground pools is readily apparent.15 It does not follow that because the "condition creating that danger” is readily apparent, all dangers created by the obvious condition are readily apparent or "discoverable upon casual inspection.”_
*420The majority assumes that the bare observation of shallow water fully reveals all dangers inherent in shallow water. It is precisely plaintiffs’ contention that at least some danger, the risk of quadriplegic injury, is not discoverable upon casual inspection of a shallow pool, and there is substantial evidence in the record supporting that contention.16
IV
At the heart of the majority’s analysis is the assertion that there is no need to warn of a specific risk if the general risk is open and obvious. Since the general risk of diving in shallow waters is, according to the majority, open and obvious, it is of no importance that the specific risks of quadriplegia, paralysis and the consequences are not generally recognized.17_
*421Although the plaintiffs acknowledged that they knew diving in shallow pools was dangerous, they offered evidence to support their claim that they did not appreciate the risk of quadriplegic injury.
A
Under the analytical framework adopted by the majority, if there is an obvious general danger associated with using a product, the manufacturer does not have an obligation to warn of any latent speciñc risk in using the product. The obligation to warn of a risk in using a product does not, however, depend on whether the risk is "general” or "specific.” The essential question respecting an obligation to warn is whether the risk complained of is obvious.
Failure to warn cases that consider the interplay of "patent,” "latent,” "general,” and "specific” characteristics of product-related dangers present these issues in a variety of contexts.18 But they *422share a common thread: whether there is an obligation to warn depends on the latency of the speciñc risk, not the general risk. If there is a specific latent risk, there is an obligation to warn, even if there is a more general obvious risk. In numerous cases, courts have rejected claims that mirror the arguments adopted by the majority.
In Hopkins v E I DuPont de Nemours & Co, 199 F2d 930 (CA 3, 1952), a workman was killed by a dynamite explosion during an excavation project, and his widow brought a negligent failure to warn claim against the maker of the explosives. The United States Court of Appeals for the Third Circuit observed:
Defendant tells us that everybody knows that dynamite is dangerous and that there is no need to warn against the obvious. But plaintiff’s theory does not go to the generally dangerous character of dynamite. . . . Everybody knows that dynamite should not be thrown in a fire, but apparently most construction workers do not know that it should not be placed in a hole under the conditions existent in this case. [Id. at 933. Initial emphasis added.]
In East Penn Mfg Co v Pineda, 578 A2d 1113, 1122 (DC App, 1990), a mechanic was injured by a car battery that exploded. The manufacturer of the battery argued that the mechanic’s experience had acquainted him with the particular risks associated with batteries, and thus there was no duty to warn of the dangers. The District of Columbia Court of Appeals held that the manufacturer had a duty to warn of the specific risk that the battery might explode during charging, even though the mechanic "clearly knew that a person should exer*423cise care around batteries because they produce explosive gases.”
In Whitehead v St Joe Lead Co, 729 F2d 238 (CA 3, 1984), the plaintiff claimed that lead poisoning was caused by long-term exposure to lead in the plant owned by the defendant. The defendant argued that lead contamination was a generally known danger, and thus there was no duty to warn. The United States Court of Appeals for the Third Circuit responded:
We cannot conclude that lead exposure in the workplace is a "generally known” risk requiring no warning as a matter of law. Our concern is not with whether it is generally known that lead can be harmful if deliberately consumed. Rather, we consider whether safe exposure limits to airborne lead are generally known, and whether it is generally known that these levels were exceeded in plants like Alpha’s. [Id. at 254. Emphasis added.]
In Haberly v Reardon Co, 319 SW2d 859 (Mo, 1958), a boy helping his father paint, was blinded in one eye when cement-based paint accidentally lodged in his eye. The defendant paint manufacturer argued that there was no duty to warn of the specific danger of paint entering the eye because everyone knows that paint of any kind will cause problems if lodged in the eye. In rejecting this claim the Missouri Supreme Court said:
It is certainly common knowledge . . . that foreign substances . . . should not be lodged in an eye. . . . [E]veryone knows that, generally speaking, a foreign substance in an eye . . . sometimes will result in pain and . . . possibly serious consequences. It does not follow . . . from the fact that such is common knowledge that a speciñc warning [of the tragic consequences of paint in the eye] would not alert one to act far differently than *424otherwise he would have acted .... [Id. at 867. Emphasis added.]
In Leonard v Uniroyal, Inc, 765 F2d 560, 566 (CA 6, 1985), where one truckdriver was injured and another killed when an underinflated truck tire blew out, the plaintiff secured a favorable jury verdict on a claim that Uniroyal was negligent in failing to warn of the dangers of tire underinflation. Uniroyal argued that the jury should have been instructed that there was no duty to warn since truckdrivers generally knew of the dangers from underinflated tires. The United States Court of Appeals for the Sixth Circuit held that Uniroyal was not entitled to a "no duty” instruction since it produced no evidence to establish that danger from underinflated tires is common knowledge among professional truckdrivers.
In Long v Deere & Co, 238 Kan 766; 715 P2d 1023 (1986), a worker, injured when a "crawler loader” rolled over, claimed that the defendant should have warned of the necessity of wearing a seat belt while operating the loader. Deere argued that since the risks of not using seat belts are generally known, a warning would have been futile. The Kansas Supreme Court held that it could not say as matter of law that because of the common use of seat belts in passenger vehicles that the risks associated with the loader were commonly known, and that a warning would have been futile.
In Brune v Brown Forman Corp, 758 SW2d 827, 831 (Tex App, 1988), the Texas Court of Appeals reversed a summary judgment in favor of a liquor manufacturer in an action brought by a survivor after her daughter died from acute alcohol poisoning. In holding that the failure to warn claim was improperly dismissed, the court said:
*425[T]he fatal propensities of acute alcohol poisoning cannot be readily categorized as ordinary common knowledge. Although there is no question that drinking alcoholic beverages will cause intoxication and possibly even cause illness is a matter of common knowledge, we are not prepared to hold, as a matter of law, that the general public is aware that the consumption of an excessive amount of alcohol can result in death. We realize that there is no clear line between what is and is not common knowledge, but where facts, as shown by appellant’s summary judgment proof, show how easily disputed the knowledge of the fatal propensities of alcohol may be, we will not recognize it as common knowledge as a matter of law. [Emphasis added.][19]
B
The majority further characterizes the plaintiff’s claims regarding the specific risk of *426quadriplegic injury as claims not about the danger presented by the pools, but, rather, only about the "specific consequences or degree of harm” from the danger.20
It would, indeed, be unreasonable, probably impossible, to require a manufacturer to warn consumers about every conceivable injury that might result from the use of a product, and the law assuredly does not impose such an obligation.21 While we agree that there is no obligation to warn of a particular danger simply because it is "conceivable,” the plaintiffs do not argue that there is an obligation to warn of all conceivable dangers associated with aboveground pools. The plaintiffs argue that there is a specific significant danger for which a warning should be supplied because that danger is latent, and a warning would reduce the number of occurrences of significant injury.
v
The majority states:
Most jurisdictions that have addressed similar cases have been unwilling to impose liability on the pool manufacturer or seller.[22]
The results in the swimming pool cases, while consistent with the holding by the majority, are problematic. Closer examination reveals merely coincidental support for the result in the instant cases, and highlights the inadequacy of the approach taken by the majority._
*427A
Several of the cases cited differ significantly from the instant cases in that they did not concern injuries resulting from shallow or "flat” dives into aboveground pools, but, rather, involved injuries sustained from vertical or "deep” dives.23
Because these cases did not involve the flat or shallow dives attempted by the instant plaintiffs, there was no expert testimony regarding the industry’s awareness of the risk or danger of shallow diving, and that the public was unaware of that risk.24
B
The majority states that it eschews the proximate cause approach25 in favor of "the more difficult duty analysis.”26_
*428As the majority notes,27 courts that concluded that a failure to warn could not have been a proximate cause of a diving injury typically focused on the testimony presented by the plaintiffs themselves.28 The courts thus drew their conclusions about the obviousness of the dangers presented by the pools without evidentiary records comparable to those in the instant cases.29
Other courts, in deciding swimming pool cases, implicitly concluded that a warning would not have altered the conduct of the plaintiff. In contradistinction to the instant cases, those courts were not presented evidence supporting claims that pool users generally are unaware of the risks of shallow diving and catastrophic injury. To the extent that the cited cases involved claims that manufacturers should have given general warnings about the dangers of diving, the claims are inapposite to those now before this Court.
c
The assertion that swimming pool manufacturers and sellers have not been held subject to liability in similar cases by "[m]ost jurisdictions”30 is overstated.31 Other jurisdictions have not uni*429formly responded to such claims.32
*431In Corbin v Coleco Industries, Inc, 748 F2d 411 (CA 7, 1984), the United States Court of Appeals for the Seventh Circuit reversed a summary judgment on a negligent failure to warn claim granted defendant manufacturer. After reviewing the record of expert testimony, the court said:
[E]ven though people are generally aware of the danger of diving into shallow water, they believe that there is a safe way to do it, namely, by executing a flat, shallow dive. If people do in fact generally hold such a belief, then it cannot be said, as a matter of law, that the risk of spinal injury from diving into shallow water is open and obvious. Whether a danger is open and obvious depends not just on what people can see with their eyes but also on what they know and believe about what they see. In particular, if people generally believe that there is a danger associated with the use of a product, but that there is a safe way to use it, any danger there may be in using the product in the way generally believed to be safe is not open and obvious.[33]
The result in Corbin is particularly persuasive. The Corbin court, like the majority in the instant cases, employed a "duty analysis,”34 and focused on the testimony of experts as well as the plaintiff himself,35 but reached a result contrary to that of *432the instant majority. The court did not find that the danger of diving in a shallow aboveground pool was open and obvious, but only that the plaintiff presented evidence "sufficient to preclude summary judgment ... on the basis of the open and obvious defense.”36
We would similarly so conclude that there is a genuine issue of material fact, and would remand these cases for trial.
Cavanagh, C.J., concurred with Levin, J.The rationale for the remand was stated:
The judgment whether a warning was required in the circumstances of this case should not be made in a vacuum. The fundamental problem in cases such as this is that we lack the information necessary to make an intelligent decision, even with regard to the obviousness of the dangers of diving. We remain largely uninformed regarding such crucial questions as the efficacy of warnings against diving when they are provided, whether there is, in fact, any safe way to dive into shallow water, and what dangers are actually perceived by the users of above-ground pools. On remand, we urge the parties to provide evidence which will allow the court to evaluate the risk inherent in defendant’s product, and its obvious or nonobvious qualities. [436 Mich 702. (Opinion of Boyle, J.) I signed this opinion. Emphasis added.]
The majority states:
[W]here the facts of record require the conclusion that the risk of serious harm from the asserted condition is open and obvious, and no disputed question exists regarding the danger of the product, the law does not impose a duty upon a manufacturer to warn of all conceivable ramifications of injuries that might occur from the use or foreseeable misuse of the product. [Ante, p 402.]
Id., pp 400-401.
Id., p 400, n 28.
Dr. Lawniczak testified on deposition:
The pool industry has had statistical evidence of a "significant problem associated with the foreseeable activity of headfirst entries into swimming pools by recreational users” as far back as the ’50’s.
Id, p 401, n 29.
Id
Id., p 401.
Id., p 394.
Id., p 394.
According to Owens, the obviousness of a risk is one factor to be considered in determining what a reasonably prudent manufacturer would do in the circumstances. See Owens, supra, p 425; see also Glittenberg I, supra, pp 699-700.
If these cases were to be tried by a jury, the jury would be instructed to apply SJI2d 25.31, which does not mention the obviousness of the risk to the plaintiff. The standard instruction speaks of the duty of a defendant manufacturer in these terms:
The defendant had a duty to use reasonable care at the time it [manufactured] the [product] so as to eliminate unreasonable risks of harm or injury which were reasonably foreseeable.
However, the defendant had no duty to [manufacture] a [product] to eliminate reasonable risks of harm or injury or risks that were not reasonably foreseeable.
Reasonable care means that degree of care which a reasonably prudent manufacturer would exercise under the circumstances . ... It is for you to decide . . . what a reasonably prudent manufacturer would do or not do under those circumstances.
A failure to fulfill the duty to use reasonable care is negligence. [SJI2d 25.31. Emphasis added.]
Ante, p 399.
"[TJhere is . . . nothing enigmatic about [their] properties. [They have] no mechanical devices, but rather [are] uncomplicated . . . produces] with universally known characteristics.” [Ante, p 399 (quoting Griffin, J., in Glittenberg i).]
See part i.
The majority argues:
[T]here is no dispute that the aboveground pools are simple products. No one can mistake them for other than what they are, i.e., large containers of water that sit on the ground, all characteristics and features of which are readily apparent or easily discernible upon casual inspection. [Ante, p 399.]
See part i.
The gravamen of each of the plaintiff’s argument is that the danger presented is not open and obvious because the specific harm of paralysis or death is not generally recognized. . . . However, the threshold issue is .. . whether people in general are unaware of the fact that there is a risk of serious harm when diving in shallow water. The fact that all plaintiffs acknowledged the necessity to perform a shallow dive simply underscores the conclusion that the risk of diving in shallow water is open and obvious. [Id., pp 400-401. Emphasis added.]
The majority also states that the plaintiffs
seek to convert the duty to warn argument by conceding a readily apparent and generally recognized dangerous condition for which no duty exists, while claiming that because a specif c consequence or degree of harm from that dangerous condition, i.e., paralysis or death, is not generally recognized .... [Id., pp 401-402. Emphasis added.]
The plaintiffs do not seek to evade the "duty analysis.” Duty is not the issue. Inherent in the manufacturer — consumer relationship is the duty of reasonable care to avoid negligent conduct. Plaintiffs argue only that this duty includes the obligation to warn of a latent danger. The issue in the instant cases is whether the standard of care *421applicable to a manufacturer of aboveground swimming pools requires a warning about the risks of shallow diving and quadriplegia. As this Court stated in Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977):
Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation. ... It is well established that placing a product on the market creates the requisite relationship between a manufacturer . . . and persons affected by use of the product giving rise to a legal obligation or duty to the persons so affected.
As manufacturers of aboveground pools, defendants have a duty to make their products reasonably safe. Given the evidentiary record developed by the instant plaintiffs, we would not decide that standard of care issue as a matter of law. See part i.
See also Riddle v McLouth Steel, 440 Mich 85, 118-122; 485 NW2d 676 (1992) (Levin, J., dissenting) (distinction between "duty” and "standard of care”).
These cases treat the issues in the contexts of theories of negligence, strict liability, assumption of risk, incurred risk, defective *422design, and adequacy of warning. The cases frequently combine two or more of these theories.
Other cases that tie a failure to warn claim to the awareness of a specific danger include Rinehart v Int’l Playtex, Inc, 688 F Supp 475 (SD Ind, 1988) (the risk of toxic shock syndrome is latent, not open and obvious, thus Playtex had a duty to warn of the particular risk; the incurred risk defense requires more than general awareness of a potential for mishap; it must show acceptance of a specific risk); Shuput v Heublein Inc, 511 F2d 1104, 1106 (CA 10, 1975) (the plaintiff was partially blinded after being hit in the eye by a plastic stopper that popped out from a champagne bottle; the court said "[t]he propensities of bubbly wine may be well known to many but are not a matter of such common knowledge as to be established as a matter of law and imposed as a matter of judicial knowledge”). Accord Burke v Almaden Vineyards, Inc, 86 Cal App 3d 768; 150 Cal Rptr 419 (1979).
The same thread runs through cases that present the issue in terms of whether the plaintiff "assumed the risk” of injury. Cota v Harley Davidson, 141 Ariz App 7; 684 P2d 888 (1984) (the plaintiff, injured in a motorcycle crash when a gas tank ruptured, claimed defective design; Harley raised an assumption of risk defense; the court held that Harley was not entitled to an instruction on assumption of risk because, although the plaintiff had general knowledge of the danger, there was no evidence that he had actual knowledge of the specific risk that a mirror bracket could puncture a tank at 20 to 30 mph).
The confluence between the warning and assumption of risk cases lies in the centrality of the issue of the obviousness of the danger that produced an injury.
Ante, pp 401-402.
[S]urely a manufacturer, to be protected from liability for negligence, need not enumerate the possible injuries which might befall one .... [Jamieson v Woodward & Lothrop, 101 US App DC 32, 39; 247 F2d 23 (1957).]
Ante, p 386.
In Kelsey v Muskin Inc, 848 F2d 39 (CA 2, 1988), the plaintiff became quadriplegic after diving in an aboveground pool, headfirst with his arms at his side, from a height of eight feet. In Howard v Poseidon Pools, 72 NY2d 972; 530 NE2d 1280 (1988), the plaintiff was severely injured after attempting to dive headfirst through an inner tube that was floating in a shallow aboveground pool. In Belling v Haugh’s Pools, Ltd, 126 AD2d 958, 959; 511 NYS2d 732 (1987), the plaintiff suffered serious injury after attempting what the court described as a "vertical dive” through an inner tube floating in a shallow pool.
Smith v Stark, 103 AD2d 844; 478 NYS2d 353 (1984), involved a claim of negligent design, and the memorandum opinion does not indicate whether the alleged design defect resulted from the lack of a warning. Cf. Colosimo v May Dep’t Store Co, 466 F2d 1234 (CA 3, 1972), involving a claim that the absence of a warning rendered the design of the pool defective.
Summary judgment in favor of the defendant has been based on lack of a causal connection between the alleged negligent failure to warn and the plaintiff’s injury. Courts typically focus on the plaintiff’s deposition testimony .... From this, it is concluded that, because the plaintiff was aware of the shallow condition of the pool’s water and the dangers inherent in a headfirst dive into observably shallow water, the absence of a warning conveying those very facts could not be a proximate cause of the plaintiff’s injuries. [Ante, pp 386-387.]
Id., p 387.
Id., p 386.
See cases cited in id., p 392, n 15. The courts in two of the cases held that the plaintiff’s conduct, not the lack of a warning, was the sole proximate cause of his injuries. See Howard v Poseidon Pools, Inc, n 23 supra at 974; Winant v Carefree Pools, 709 F Supp 57, 62 (ED NY, 1989). This further reduces the persuasiveness of the cases, since Michigan law recognizes that there may be more than one proximate cause of an injury.
See part i.
Ante, p 386.
The majority cites eleven cases from other jurisdictions that involve diving accidents in aboveground pools. However, four of the cases, Winant, n 28 supra, Howard, n 23 supra, Belling, n 23 supra, *429and Smith, n 24 supra, were decided under the law of a single jurisdiction, New York.
A variation on the swimming pool cases is found in Griebler v Doughboy Recreational, Inc, 160 Wis 2d 547, 560; 466 NW2d 897 (1991), where the Wisconsin Supreme Court held that diving in water of unknown depth presented a danger open and obvious as a matter of law. The plaintiff presented testimony from experts to the effect that the average consumer does not appreciate the risks of diving into water of unknown depth. The nature of the analysis is unclear, but the court appears to have looked at proximate cause instead of duty issues. The plaintiff apparently introduced expert testimony to support his argument that his conduct was not unreasonable.
The Griebler court grounded the result on two Wisconsin cases that represented "nearly twenty years of precedent,” id. at 561, and seemed to imply that the plaintiff was guilty of contributory negligence:
We refuse to overrule Scheeler [v Bahr, 41 Wis 2d 473; 164 NW2d 310 (1969),] and Davenport [v Gillmore, 146 Wis 2d 498; 431 NW2d 701 (1988),] and adopt the rule advanced by the court of appeals. Doing so would open the door to plaintiffs recovering for injuries they suffered as the result of their own unreasonable behavior.
Although expert opinion may be relevant in determining what is an open and obvious danger, the test is ultimately one of reasonableness. [Id. at 559-560. Emphasis added.]
The court briefly discussed Corbin v Coleco Industries, Inc, 748 F2d 411, 417-418 (CA 7, 1984) but merely dismissed it:
We have already rejected this position as a reason to overrule nearly twenty years of precedent. [160 Wis 2d 561.]
Stanton v Miller, 66 Ohio App 3d 201, 204; 583 NE2d 1080 (1990), concerned a diver seriously injured after diving in an aboveground pool. The court reversed a grant of summary judgment in favor of the manufacturer and retailer, holding that diving in the pool did not constitute "primary assumption of the risk,” and that the record did not demonstrate that the dive constituted even an "implied assumption of risk.”
Although using the taxonomy of "assumption of risk,” the holding of the court implicates duty to warn issues. The court distinguished "primary” and "implied” assumption of risk:
[Primary assumption of risk] is predicated upon a determination, as a matter law, that the defendant owes no duty to the plaintiff. . . because certain risks are so inherent in some activities that they cannot be eliminated.
*430Implied assumption of risk is, on the other hand, defined as the plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to the plaintiff’s safety. [Id. at 203-204. Emphasis added.]
The court added:
"Clearly, there is a risk of injury while diving into a shallow pool. The risk, however, is not so inherent as to relieve pool operators from any duty whatsoever to all divers.” [Id. at 204 (quoting Collier v Northland Swim Club, 35 Ohio App 3d 35; 518 NE2d 1226 [1987]). Emphasis added.]
By declining to find that the plaintiff’s conduct constituted "primary assumption of risk,” the court refused to find that the dangers of diving in an aboveground pool were so obvious as to preclude a duty to warn on the part of the manufacturer or retailer. Had the court found evidence sufficient to raise the issue of "implied” assumption of risk, the issue would ordinarily have gone to the jury. Id. at 203.
In Erickson v Muskin Corp, 180 Ill App 3d 117, 121-125; 535 NE2d 475 (1989), the court applied an "assumption of risk” analysis to a case concerning a diver who broke his neck after diving through an inner tube in an aboveground pool. The court affirmed a jury verdict finding both that defendant owed a duty to warn of the danger of diving into the pool, but that the plaintiff assumed ninety-six percent of the risk. The court said:
A subjective test [for whether the plaintiff assumed the risk] is used, i.e., what plaintiff actually knew. Plaintiff’s age, experience, knowledge, and understanding, in addition to the obviousness of the defect and the danger it poses will all be relevant factors for the jury’s consideration.
Moreover, plaintiff’s use of expert testimony to show that the public may not be aware of the hazards of diving into an above-ground pool is not relevant to what Lance [Erickson] himself knew. Lance’s knowledge, or lack thereof, and whether he had assumed all or part of the risk was a question of fact to be resolved by the jury. [Emphasis added.]
The duty to warn in this case was determined by an "objective standard.” Id. at 122. The obviousness of the danger neither prevented the case from reaching a jury, nor did the jury’s involvement produce a windfall for the plaintiff, whose recovery was reduced by ninety-six percent.
See also King v S R Smith, Inc, 578 So 2d 1285, 1287 (Ala, 1991) (reversing summary judgment in favor of a manufacturer who argued no duty to warn of the danger of diving from a diving board into an in-ground pool); "Whether a danger [is] 'open’ and 'obvious’ does not go to the issue of duty of the defendant .... Instead, 'open’ and *431'obvious’ danger relates to the affirmative defense of assumption of risk . . . and the issue of causation.”
In Shaw v Petersen, 169 Ariz App 558; 821 P2d 220, 222 (1991), parents of a 19-month-old child who was injured after falling in a pool claimed the owner should have warned of danger of the pool. The Court said: "Whether a reasonable person would believe a pool was an open and obvious hazard to a 19 month old child is a question that relates to breach of duty, not its existence. Whether a hazard is 'open and obvious’ is not relevant to determine the existence of duty, rather it is relevant to determining if the duty was breached.”
Id. at 417-418.
Id. at 417.
Id. at 418. The court also reversed the grant of summary judg*432ment on the proximate cause issue based on plaintiff’s knowledge of the danger.
Id. at 417.