dissenting:
I agree with the appellate court that the circuit court committed reversible error when it entered summary judgment in favor of defendants. The purpose of a summary judgment proceeding is not to try an issue of fact, but to determine whether any genuine issue of material fact exists. Happel v. Wal-Mart Stores, 199 Ill. 2d 179, 186 (2002). Because summary judgment is a drastic means of disposing of litigation, the court has a duty to construe the record strictly against the movant and liberally in favor of the nonmoving party. Summary judgment should not be allowed unless the moving party’s right to judgment is clear and free from doubt. Accordingly, where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue should be decided by the trier of fact. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423-24 (1998).
My colleagues’ analysis overturns the appellate court and deprives plaintiffs of the right to have their claims decided by a jury on the theory that the issue before the court presents a question of law. I disagree. Plaintiffs’ claim against Jumpking is based on products liability. In a products liability case, the determination of whether a product is defective, and therefore unreasonably dangerous, is ordinarily a question of fact for the jury. Korando v. Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 344 (1994).
The failure to warn of a product’s dangerous propensities may serve as the basis for holding a manufacturer or seller strictly liable in tort. In such cases, the product is considered to be defective and unreasonably dangerous, not because of some defect inherent in the product itself, but because of the absence of an adequate warning accompanying the product. Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 29-30 (1980). This is the type of products liability claim plaintiffs are asserting against Jumpking.
Just as the issue of whether a product is defective presents a question of fact for the jury, so too does the issue of whether a product was in an unreasonably dangerous or defective condition because of the failure to give adequate warnings. See Collins v. Sunnyside Corp., 146 Ill. App. 3d 78, 80-81 (1986). Whether the warnings given were adequate is likewise a question for the jury in most instances. Palmer v. Avco Distributing Corp., 82 Ill. 2d 211, 221 (1980). A jury may determine that warnings are not adequate if those warnings: (1) do not specify the risk presented by the product; (2) are inconsistent with how a product would be used; (3) do not provide the reason for the warnings; or (4) do not reach foreseeable users. See Pell v. Victor J. Andrew High School, 123 Ill. App. 3d 423, 428 (1984).
The purpose of a warning is to apprise a person of a danger of which he is not aware, and thus enable the person to protect himself against it. When a danger is fully obvious and generally appreciated, a warning adds nothing of value. Collins v. Sunnyside Corp., 146 Ill. App. 3d at 81. Accordingly, there is no duty to warn where the product is not defectively manufactured and where the possibility of injury results from a common propensity of the product which is open and obvious. Genaust v. Illinois Power Co., 62 Ill. 2d 456, 467 (1976).
My colleagues hold that the risks attendant to use of the Jumpking trampoline should have been open and obvious to a person in Kathleen’s position. They have overlooked, however, that the issue is not for them to resolve. Whether a condition presents an open and obvious danger is a question of fact for the trier of fact. See Simmons v. American Drug Stores, Inc., 329 Ill. App. 3d 38, 43-44 (2002); Pullia v. Builders Square, Inc., 265 Ill. App. 3d 933, 939 (1994); see also American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 27 (1992).
There are sound reasons for this rule. A danger is open and obvious only where “both the condition and the risk are apparent to and would be appreciated by a reasonable person in the plaintiff’s position exercising ordinary perception, intelligence, and judgment.” (Emphasis omitted.) Simmons, 329 Ill. App. 3d at 43-44. Where the product at issue is one whose use by children is reasonably foreseeable, and Jumpking trampolines certainly fall within that category, the determination of what is open and obvious must be made from the point of view of a child, rather than an adult. Accordingly, the pertinent inquiry here is whether it should have been obvious to a reasonable 15-year-old girl, exercising the ordinary perception, intelligence and judgment of someone her age, that “rocket” jumping on a backyard trampoline could result in the type of knee injuries that Kathleen sustained. See Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1039-40 (1994).
This court (average age, approximately 61; predominant sex, male; trampoline experience, negligible) is ill-equipped to assess what 15-year-old girls know or should know about trampoline gymnastics, potential knee injuries, or any other topic. That is why the law has made assessments such as this the jury’s responsibility and not ours.
There is no merit to the majority’s efforts to sidestep these considerations by analogizing this case to situations where a person has disregarded the danger of falling from heights. Being up high does not, in itself, constitute an open and obvious danger for tort liability purposes. Seven thousand feet above sea level is a considerable elevation, for example, but how one assesses the danger of being there depends on whether one is sitting on the front porch of a log cabin in the Rocky Mountains or jumping from a light plane with a parachute strapped to one’s back. Context, in other words, is everything.
Consider the surrounding circumstances here. This is not a case where a child old enough to be at large failed to appreciate the risks attendant to climbing a neighbor’s tree or walking too near an open stairwell or edging too close to a steep cliff. This case involves the use of a recreational device whose very purpose was to enable individuals to go up high and come down again safely and for fun.
Kathleen used the trampoline for its intended purpose, and she did so in a straightforward way. No acrobatics were involved. In the majority’s words, “Kathleen was not attempting to do a front or backflip or any other unusual maneuver ***. She merely jumped into the middle of the trampoline mat and injured her knee.” 201 Ill. 2d at 14.
Certainly, any reasonable person in Kathleen’s position would have realized that rocket-jumping would propel her higher than if she jumped alone. That was the whole point of doing it. There can also be no question that a reasonable person of Kathleen’s age would know that she risked serious injury if she fell off the trampoline or hit another jumper while performing rocket jumps. Such risks would be obvious to anyone mature enough to perform the maneuver.
Kathleen, however, did not fall off. She stayed on the mat perfectly well. Nor did she strike another jumper. The problem she had was in failing to appreciate that neither the normal “give” in the trampoline mat nor the strength in her knee were sufficient to counteract the additional stress on landing that resulted from the higher altitude she was able to attain through rocket-jumping. This was a qualitatively different and more subtle type of danger than the kind attendant to improper stunts, or striking another jumper or falling off the device. While that risk may be obvious to a Jumpking engineer or to an experienced instructor, my colleagues have no basis, other than their subjective beliefs, for holding that it should have been apparent to a casual teenage user such as Kathleen.
Because there is no basis for holding, as a matter of law, that the danger which befell Kathleen should have been open and obvious to a reasonable 15-year-old girl, exercising the ordinary perception, intelligence and judgment of someone that age, the appellate court was correct in reversing the entry of summary judgment on the products liability count against Jumpking. For the same reason, the court was also correct in reversing summary judgment on the premises liability claim against Eaton. If the danger was not open and obvious for purposes of evaluating a manufacturer’s duty to warn in a products liability case, it was not open and obvious for purposes of assessing a landowner’s liability.
I note, moreover, that I am somewhat startled by the majority’s suggestion (201 Ill. 2d at 17-18) that requiring Eaton to have supervised activity on the trampoline at his house would have subjected him to an unjustifiable burden. If a parent buys and installs a recreational device as obviously dangerous to children as the majority depicts Jumpking trampolines as being, I would have thought that parental supervision would be the least the law should require. As the risk of serious injury to children increases, the obligation for parents to provide supervision should go up, not down. The majority’s approach, however, would yield the opposite result. As they would have it, the more blatantly hazardous the activity parents have provided for their children and their children’s friends, the more inattentive the parents are entitled to be.
All too often, this court has taken the view that children should exercise a higher degree of judgment than adults or corporations. See, e.g., Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110 (1995) (six-year-old boy who suffered permanent brain damage after falling into swimming pool held to higher standard of care than multimillion-dollar telephone company); First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252 (1999) (teenage French exchange student fatally injured as a result of defendants’ illegally parked truck held to higher standard of care than multinational corporation). As applied by the majority in the case before us today, the “open and obvious danger” doctrine perpetuates this bizarre approach. Jumpking, the corporation, and Eaton, the adult property owner, have been exonerated without regard to how lax they may have been. Only the teenage girl is held accountable for her actions.
Such a result is fundamentally incompatible with the principles of comparative fault we have adopted in Illinois. Now that we have a comparative fault system, the open and obvious danger rule makes no more sense that the old defenses of contributory negligence and assumption of risk, which we have jettisoned. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 464 (1996) (Harrison, J., dissenting). Accordingly, even if Kathleen should have known better than to rocket jump on Eaton’s Jump-king trampoline, that fact should not bar her right to seek recovery from either Jumpking or Eaton. Rather, it should merely be an element for the jury to consider when apportioning fault between the parties.
For the foregoing reasons, I dissent.