Dissenting Opinion
Arterburn, J.I dissent from the majority opinion.
This is a case in which Bruno Garzolini, age 13 at the time, was injured when he jumped from an aqua diver trampoline manufactured by the Nissen Trampoline Company. The trampoline was set up on a recreation beach. He climbed the ladder, stood at the top and attempted to jump on the mat, avoiding certain cables which connected the mat to the metal frame. In jumping he slipped and fell off the mat, his leg went through the cables and his body fell forward breaking his leg on the frame, which necessitated amputation of the leg above the knee.
The jury returned a verdict for both the defendants, the trampoline company and the owner of the breach. The trial *467court granted a new trial as to the defendant trampoline company but not as to the owner of the beach.
In substance the majority opinion claims that the trial judge cannot properly grant a new trial because it' did not state facts sufficient to show liability as required under the rules. With this conclusion I do not agree. The trial court found specifically, among others, that the left leg of the child Bruno became entangled in the elastic cables when he landed on the trampoline and that his leg was broken at the knee necessitating an amputation. The court further found:
“The evidence is undisputed that prior to selling the aqua diver, the defendant, Nissen Corporation, had determined by tests that it was possible for a user’s foot to slip between the elastic cables of the aqua diver.
The greater weight of the evidence, by expert testimony of persons knowledgeable in rebounding equipment, is that supervision and instruction should accompany the use of such equipment by beginners.
From the foregoing findings of fact the Court concludes that the aqua diver, manufactured and sold by the defendant, Nissen Corporation, is a defective product dangerous to the user without warning and instruction; that on the 28th day of June, 1970, the aqua diver sold by Nissen to Herbert A. Mason was used by the plaintiff, Bruno Garzolini, Jr., while in substantially the same condition in which it was sold and as a result the plaintiff is entitled to recover for the injuries sustained by use of the product.
It is therefore ordered that the plaintiff’s Motion to Correct Errors be sustained as to plaintiff’s claim under the theory of strict liability, the jury’s verdict being against the weight of the evidence and a new trial is ordered herein.”
The finding of the trial court as set forth above shows that the verdict of the jury was contrary to the evidence and the law.
The law is well settled in this state that a user of equipment who is injured by hidden or latent defects is entitled to recover from the manufacturer who designs and sells such equipment. J. I. Case Co. v. Sandefur, (1964) 245 Ind. 213, 197 N.E.2d 519. We made plain therein that for recovery *468the defect must be hidden and not observable. If the defect was open and observable there was no liability upon the company because the user and the purchaser should have been aware of such conditions. There should be no prohibition against a manufacturer manufacturing any product if its condition is known to the purchaser by observation or information or by direct contract for such a product.
However, in this case we have a different factor entering into the question of liability. A child, age 13, does not have the mature judgment and the awareness of danger that an older person has. An older person might see a danger in the way a product is constructed and avoid the danger where a child would not recognize or see such condition. Therefore, a manufacturer may manufacture a product for which he would not be liable to mature individuals using same because the dangers are observable, while it would be liable where a like product was intended and sold to be used by immature persons or children. In my opinion that is the case here. This trampoline with the dangerous cables holding a mat of some eighteen inches in diameter was known to be dangerous from the finding of facts herein. It shows that a leg or foot might become entangled therein. As the majority states, these were all observable undoubtedly to a mature individual. Indeed, this situation in my opinion might be classified as an attractive nuisance where liability attaches for resulting injury for a child but not for a mature individual. I point out a like analogy when the law fixes different standards in negligence and contributory negligence when a child is involved rather than an adult. I therefore feel in this field of products liability it is logical that the standards of care for observable defects should be different in the case of children and that of mature adults.
I would affirm the judgment of the trial court.