Dissenting Opinion
Hunter, J.I dissent from the majority opinion for the following reasons.
*469In choosing to reverse this case on procedural grounds, the majority relies upon what they find to be a lacuna in the trial judge’s recitation of facts in support of his order with regard to the issue of proximate cause. Presumably the case is reversed rather than remanded because the majority believes no such finding to be possible. I believe that a finding of proximate cause is implicit in the judge’s order and that that finding is supported by the facts recited by him, as is the finding of a defective product.
The defect in this product as found by the trial court in its order granting a new trial is the appellant’s failure to warn of a known danger involved in the use of its aqua-diver and the failure to provide instructions and adequate supervision. There is a growing feeling among orthopaedic surgeons that use of trampolines without proper and expert supervision encompasses a great danger of serious injury to the user. The gravity of foreseeable harm should be a factor in the calculus for determining strict liability. It is apparent from defendant’s Exhibit 7 that the slightest misgauging by the user of his jump could result in serious injury to him. A distance of nearly two feet was to be negotiated in the jump from the platform to a mat of but sixteen inches diameter, followed by a fall of a similar distance to the water, this distance varying with the water level.
The very nature of this defect prevents the plaintiff from adducing proof in the traditional sense of causation in fact. None can say with absolute certainty in these circumstances, that with the provision of adequate warnings and instructions, the plaintiff would or would not have been injured. Liability should not be denied where the scarcity of proof is due to the manufacturer’s actions. Neither can I say as a matter of law that a manufacturer of an obviously dangerous product should be free to assume that the peril of use is not its responsibility. Obvious dangers are not necessarily appreciated ones, and a strong allure combined with an atmosphere conducive to peer pressure could easily sublimate a rational fear.
*470An examination of the record does not lead to the conclusion that the trial judge abused his discretion in granting a new trial, that a flagrant injustice has been done, or that appellant has presented a strong case for relief.
Defendant’s Exhibit 7
Note. — Reported at 358 N.E.2d 974.