also dissenting:
I agree with Chief Justice Harrison that the majority errs by reversing the appellate court and affirming the trial court in this case. The trial court improperly entered summary judgment in favor of each defendant. I write separately to put forth additional rationale for my disagreement with the majority’s decision.
As to the claims against the manufacturer, the appellate court properly reviewed the warnings contained in the decals to be affixed to the trampoline by the purchaser during assembly and the warnings and other information about the proper use of the trampoline contained in the user’s manual. The appellate court then correctly concluded that these instructions and warnings demonstrate that the manufacturer possessed knowledge superior to the purchasers and users about the characteristics of its product and the risks of harm to ordinary consumers who purchased the trampoline as a backyard toy. 319 Ill. App. 3d at 619.
The majority acknowledges the proposition that a manufacturer has a duty to warn where the product possesses dangerous propensities and there is unequal knowledge with respect to the risk of harm, and the manufacturer, possessed of such knowledge, knows or should know that harm may occur absent a warning. 210 Ill. 2d at 7. Nonetheless, the majority holds no duty to warn arises where the risk of harm is apparent to the foreseeable user, regardless of any superior knowledge on the part of the manufacturer. 210 Ill. 2d at 17-18.
If the “risk of harm” from trampoline use were considered to be limited to the danger of falling from a height, we would certainly be bound by our precedent in Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 327 (1978), and would correctly hold that such a danger is open and obvious, even to a 15-year-old. That is not the case here. As plaintiffs argued, the specific risk of harm at issue here, the likelihood of significant impact to a user’s knees resulting from the increased thrust capacity of the mat when more than one person is jumping at a time, is not so apparent, particularly to an inexperienced teenager, as to be “open and obvious” as a matter of law. A jury should decide this issue.
The adequacy of the warning given by the manufacturer similarly presents a jury question. Although the decals warned of the danger of unsupervised use and the user’s manual discussed some of the responsibilities of both users and instructors, only the placard contained any warning of the risks of double-jumping. The placard, originally wired to the trampoline by the purchaser, had fallen off and was not reattached. It contained the following warning:
“Permit only one performer at a time on the trampoline. Two (2) or more performers create additional risks of injury due to collisions, being bounced off the trampoline and unexpected responses by the trampoline mat.”
Warnings must be adequate to perform their intended function of risk reduction. See Pell v. Victor J. Andrew High School, 123 Ill. App. 3d 423, 428 (1984), citing Palmer v. Avco Distributing Corp., 82 Ill. 2d 211, 221 (1980). Even if the warning on the placard had reached the minor plaintiff in this case, its vague reference to “unexpected responses by the trampoline mat” may not have alerted her to the specific danger posed by those responses. The adequacy of the warning in this case is, therefore, a jury question.
Similarly, I believe the questions of whether a duty to warn on the part of the property owner exists, as well as the adequacy of any warnings given, are also issues that should be determined by a jury. Of particular relevance to these questions is the following instruction contained in the users manual: “USE OF A TRAMPOLINE SHOULD ALWAYS BE UNDER THE DIRECT SUPERVISION OF A QUALIFIED INSTRUCTOR.” It could be determined that the property owner should have not permitted the unsupervised use of the trampoline. Further, since the detached placard was the only source warning of the specific risks associated with injury at issue here, a jury could conclude that the property owner utterly disregarded the duty to warn in this case.
For these reasons, I respectfully dissent.