Glittenberg v. Doughboy Recreational Industries

Doughboy 379 v INDUSTRIES DOUGHBOY RECREATIONAL GLITTENBERG v (ON REHEARING) LESCO CORPORATION INTERNATIONAL SPAULDING INDUSTRIES HOREN COLECO (Calendar 8, 88429, 85391, Argued 1991 88580. October Docket Nos. 1-3). September Rehearings denied in 1992. Decided Nos. Horen, post, Spaulding 1202. and against brought plaintiffs manufactur- in these cases actions The swimming pools pool aboveground after each and owners ers of plaintiff diving paralyzed permanently result was as a of husband respective pools. into the Glittenberg brought an action in Jackson and David Connie Doughboy against Recreational Industries and Circuit Court others, negligent pertinent part alleging in that the defendants’ grave paralysis or of death inherent of risk failure warn diving aboveground resulted in serious and in into an court, Britten, J., granted injury. permanent mary The sum- Gordon disposition Doughboy ground that the swim- for on the simple diving ming pool product, into hazards of its was obvious, open thus and had water were and shallow no Maher, P.J., Appeals, duty and of to warn. The Court Shepherd JJ., reversed, open holding that the Tertzag, K. Michigan, danger longer in is no viable and obvious rule tool, swimming pool simple and the was not a the paraplegia 98313). (Docket The and obvious No. was Supreme case the trial court to deter- remanded the Court required duty warning, reasonable care mine whether the (1990), subsequently granted the defendant’s Mich 436 motion (1991). rehearing. for Mich 1224 Wayne Spaulding brought action an Allan and Jane against Corporation, and Leseo International Circuit Court alia, court, others, duty alleging, The inter to warn. breach J., Hausner, disposition summary granted for the H. John defendants, finding that there warn The Court of into water. and obvious shallow P.J., JJ., Sawyer, Griffin, Appeals, affirmed and Gillis References 2d, Liability 342. Products § Am Jur liability Liability: that there is no modern status rule Products dangers. patent 861. ALR4th obvious 441 Mich (Docket 99524). opinion per plaintiffs ap- curiam No. peal. brought Saginaw William and Pamela Horen an action in the against others, alleging Circuit Court Coleco Industries and pertinent part diving breach of a to warn of the court, pool. Joseph into an R. McDon- ald, J., granted defendants, summary disposition for the con- cluding danger that because the involved in headfirst aboveground swimming obvious, open an into was no is and Weaver, P.J., there duty Appeals, to warn. The Court of and Shepherd JJ., reversed, holding Brouillette, and F. D. foreseeable, injury reasonably question where the remained was a of fact concerning whether the manufacturer used reason- guarding unreasonable, against inju- able care in ries, foreseeable (Docket 101110). danger even where the was obvious No. appeal. The defendants opinion by joined by In an Boyle, Justice Brickley, Justices Supreme Riley, Griffin, and the Court held: simple product duty The manufacturer of a has no to warn of product’s potentially dangerous the conditions or characteris- readily apparent upon inspection tics that are or visible casual reasonably expected recognized by average and of to be user ordinary cases, intelligence. pools In these were not unreasonably dangerous warning; defective or for want of a thus, summary disposition properly granted. The obvious danger negligent doctrine in cases of failure to warn is valid respect simple products. with to Because the doctrine addresses warn, duty adoption comparative the existence of a negligence to duty. had no effect on the determination of dispute aboveground pools 1. There is no that the in these simple products. creating cases are The condition the asserted danger, water, readily apparent shallow is a fact that is or upon inspection. potential injury discoverable casual The observably pools a dive into the shallow water in these is generally recognized danger a common and of which users are Special experience required perceive aware. is not to the dan- Where, ger. case, require as in this the facts the conclusion that obvious, open the risk of serious harm is impose duty upon and the law does not a a manufacturer to warn of all conceivable injuries might ramifications of foreseeable misuse of its occur from the use or simple product. design defects, liability 2. In the context of for the choice of a design solely is not determined on the obvious nature of a However, warn, defect. in the context of a failure to the obvious simple product’s potential danger nature of a inherent condition functions as an present. very the risk is Where the injury wholly by that causes an is revealed casual simple product use, duty observation of a serves no obvious, in normal to warn purpose. open fault-based Whether a condition is and danger and whether the asserted is the cause of an warning allegedly prevented, injury must be would have that a product by product. addressed product- of a of the obvious character 3. Determination typical objective. danger focus user’s is The is connected perception knowledge whether the relevant condition and and danger fully with is associated use that creates the or feature apparent, widely known, recognized, anticipated commonly plaintiff’s subjective ordinary by or user consumer. While regard knowledge is with to whether a is immaterial whether, given obvious, determining it is relevant to duty, proximate to warn was existence of a failure injuries. of a user’s cause duty argues to warn that it owes no 4. a defendant Where required, danger, of a a court is obvious nature because matter, minds determine whether reasonable as a threshold to respect whether the to could differ obvious. If reasonable differ, the matter is deter- minds cannot If minds can of law. reasonable the court as matter mined differ, must the risk be determined the obviousness of jury. products liability an 5. warn in the context to nonrescue, obliga- imposing exception general rule safety-related known information tion buyers sellers to transmit on that the know or should know or users when the sellers question buyer information. or user is unaware purchasers have a warn one of law. Manufacturers reasonably use or with the intended users of associated scope products; the of the is of their foreseeable misuse not unlimited, seller must have however. A manufacturer or knowledge danger, of the claimed have actual or constructive product’s the will realize the no dangerous to believe that users reason condition, care fail to exercise reasonable to and dangerous likely or facts that users a condition of inform dangerous. product Manufacturers have no would make the duty may reasonably perceived that a warn where it to apparent product readily potentially dangerous of a is condition by may inspection, and it cannot be said or that be disclosed casual experience prod- only persons special will realize the danger. potential uct’s Glittenberg, reversed.

Spaulding, affirmed.

Horen, reversed. dissenting, joined by Chief Justice Cavanagh, Justice Levin, plaintiffs presented the evidence sufficient stated that because to raise a diving danger question of material fact whether aboveground swimming pool and in a is shallow obvious, for the cases should be remanded trial. automatically A warn is not excused manufacturer’s to cases, plaintiffs risk harm obvious. In these when the is 441 Mich presented tending to substantial evidence show that users aboveground pools perceive quadriplegic do not risk of injury diving, they that know to in from do not how dive safely, possible effectively shallow water and that it is warn diving pools, majority of the in risks of shallow evidence the ignores. aboveground pool concluding In an that because shallowness of general diving is obvious and the risk of in obligation such a specific obvious is also there is no to warn of the diving catastrophic diving injury, risk of shallow majority effectively the aboveground swimming pools ming pool industry immunizes manufacturers sellers liability, inviting the swim- step safety to take a on back issues. person, viewing plaintiffs’ A reasonable evidence as whole, significant catastrophic could conclude that a number of occur, injuries swimming pool industry has been aware potential injuries years, of the such for a number of in many provided warnings product, instances with the and that consuming likely public appreciate the general does not either the diving aboveground risk of in in shallow water an swimming pool specific quadriplegic injury or risk of occur- dive, ring during a shallow assumed uninformed diver dive, be safe. Performance of a shallow while evidence that the recognizes modify response diver a need to actions to a perceived danger, incorrectly is per- also evidence divers protection ceive that execution of a shallow dive sufficient danger presented by diving from the swimming pool. ain shallow light plain- Viewed most favorable to the tiffs, may plaintiffs be concluded the offered sufficient evi- latency specific dence both injury catastrophic of the risk of posed diving and that divers are unaware of the risks pose genuine in shallow water to issue of material fact specific whether the risk is and obvious. legal obligation supply superfluous While there warnings, plaintiffs they claim that should have been catastrophic warned might injury quadriplegia— that the risk of a — aboveground pools, result from into shallow obvious, pools this risk is not and that these would have been warning provided. jury properly safer if a had might been A danger warning conclude that the asserted is latent and that a product would make the safer to use. simplicity complexity controlling of a is not required. and is not determinative of whether a pertinent product clearly inquiry simple is whether a is latent. If a users, principle present can never obvious risk to simple product merely expresses the definition of prejudgment point that no latent At risk inheres. inquiry prejudgment. given product, specific on should focus the basis for If a latent obligation is associated with a there is an even warn where an obvious of a more general present. character also dissenting, Mallett, Justice stated that because the threat Doughboy obvious, aboveground pool manu- presented is not and to warn. facturer has (1989) 321; App reversed. 435 NW2d 480 174 Mich (1990) 285; App affirmed. 451 NW2d 182 Mich (1988) App reversed. NW2d Mich Simple — Duty — Liability — Obvious Products Warn Products Ordinary Dangers — Users. simple has warn of a The manufacturer dangerous potentially or characteristics product’s conditions upon inspection readily apparent and visible casual that are reasonably recognized by average expected user to be ordinary intelligence. Bluestone, Erlich, Lopatin, Miller, Freedman, Shaw) E. (by Richard & Bartnick Rosen for the Glittenberg. plaintiffs Walker, Goodman, L. Jonathan M.

Richard Stephens, Mark Granzotto Thomas W. for the and Spaulding. plaintiffs Trogan Trogan, F. P.C. Bruce & for (by Trogan), in Horen. plaintiffs Russell, G. Kerr, Robert Russell & Weber (by Furioso) Swanson, A. and Janice Joanne Geha Glittenberg. the defendants Cooney, R. Bazzana P.C. Ernest & Plunkett (by Conger), Dwight G. for defendants-appellees Pietila Brothers. Nagi Baxter, Jeannette A. Paskin, & P.C. (by Seymour), Daniel J.

Paskin for defendant- Inc., Industries, and defendants Coleco appellee Hoffinger. Wesley, A. Ula- P.C. Stuart Ulanoff, Ross & (by Farmer-Brooks), for defendant Leso and Hilde noff Corporation. International Cooper Becker, Seward, & Miller, Garan, Lucow, 441 Mich Opinion Court (by Lucow, Rochkind, P.C. David M. Milton Rosalind and

Shafer), K. Plastics defendant S. Cor- poration. Nagi (by Baxter,

Paskin, & P.C. A. Jeanette Paskin), (by Hauffe, and Irwin F. Irwin F. P.C. II), for in Hauffe the defendants Horen.

Amici Curiae: Nagi (by Baxter,

Paskin, & P.C. Jeanette A. Seymour), Paskin and Daniel J. for Hartford In- Company Management, surance and Claims Inc. Bazzana), Cooney, (by & Plunkett P.C. Ernest R. Michigan Counsel, for Association of Trial Defense Counsel, Defense Trial and Defense Insti- Research tute. (by

Aaron D. Twerski and Bowman & Brooke Haggerty) Liability Terrence E. for Product Advi- sory Council, Inc.

Barry Waldman, Granzotto, P. Mark Monica Linkner, Farris P. Charles Burbach for Michi- gan Lawyers Trial Association. Spinal R.

Ronald Gilbert for Foundation for Injury Aquatic Injury Safety Cord Prevention and Foundation.

ON REHEARING again cases, InJ. these we confront Boyle, scope summary disposition to warn. The issue is whether granted properly in favor of the defendant manufacturers and sellers on they basis that had warn of the of a headfirst dive into shallow water an aboveground pool, parties dispute which the do not Opinion Court simple tool,1 is, all of whose ais apparent. fully are characteristics essential background procedural lengthy factual appendix. inquiry In in the set forth for this tragic plaintiff injuries brief, he when sustained each the shallow water of into dove pool previously pool. had been Each acknowledged question depth that he knew and each deep that a dive water dangerous. The Court shallow water was into Appeals mary grant of sum the trial court’s reversed disposition Glittenberg Wilcenski, 174 in (1989), App 435 480 Horen v 321; NW2d Inc, Mich App Industries, 426 725; 169 Mich Coleco (1988), summary disposi and affirmed 794 NW2d tion in App Corp, Spaulding 182 Mich v Lesco Int’l (1990). plurality 603 Court’s 285; 451 NW2d This Glittenberg Recreational result 462 348 Industries, Inc, NW2d 436 Mich (1990) I), rehearing (Glittenberg led to and consoli (1991). 437 Mich 1224 these cases. dation of consideration records meticulous After implicated,2 significant we and the issues below properly summary disposition was now hold granted the The manufac- in favor of defendants. simple product duty to has no warn turer of dangerous product’s potentially or conditions the readily apparent or visible that are characteristics expected inspection reasonably upon casual average ordinary recognized by user be intelligence. record we conclude that On this dangerous unreasonably or is not defective question warning. duty of a Because for want there is the issue of fault for which involves fact, the decisions of issue of we reverse material Appeals and Horen the Court presented if were 1 A issue would be contended different pools in these cases could not be so characterized. involved 2 inadequate prior us to to allow evaluate whether record regarding fact and obviousness material issue of could created. 386 441 Mich Opinion of the Court Appeals and affirm the decision of the Court of Spaulding. i products In context, to warn has been exception general described as an to the rule of imposing obligation nonrescue, transmit know on sellers to safety-related they information when buyer should know that or user is agreed unaware of that information. As in Glitten- berg, question is to be decided trial court as a matter of law. Antcliff v State Employees Union, Credit 624, Mich 640; 327 (1982); NW2d 814 Co, Smith v Allendale Mutual Ins (1981).3

410 Mich 713-715; 303 NW2d 702 jurisdictions Most that have addressed similar unwilling impose cases liability have been on Summary judg- manufacturer or seller.4 ment in favor of the defendant has been based on lack negligent alleged of a causal connection between the plaintiff’s failure to warn and the in- jury.5 typically plaintiff’s depo- Courts focus on the testimony, establishing familiarity sition with the Keeton, (5th ed), 96, See p 686; Prosser & Torts § Restatement Torts, 2d, 388, 300-301; pp 3d, § Liability, American Law of Products 33:25, pp 52-54; Twerski, Weinstein, § Piehler, Donaher & warnings products use and abuse of liability design litiga defect — age, 495, (1976). tion comes of 61 Cornell L R 523-524 4 Stark, See cases cited in 844; n 5 and also Smith v 103 AD2d 478 (1984); Industries, Inc, NYS2d 353 (D Neff v Supp Coleco 760 F 864 Kan, 1991); Clark, Super 197; (1991); Mucowski v 404 Pa 590 A2d 348 Doughboy Recreational, Inc, Greibler v 547; 160 Wis 2d 466 NW2d (1991); Pools, (ED 897 1989). Supp NY, Winant v Carefree 709 F 57 Contrary dissent, to the assertions the similar results have been despite See, reached Neff, example, similar record supra. evidence. for 5Kelsey Inc, (CA 2, v 1988); Muskin 848 F2d 39 May Colosimo v Dep’t Pools, Inc, Co, (CA 3, 1972); Store 466 F2d 1234 McCormick v Custom (Minn App, 1985); 376 NW2d 471 Corp, v Vallillo Muskin Super 155; (1986); 212 NJ 514 Pools, A2d 528 Howard v Poseidon 72 972; 360; NY2d (1988); Belling NYS2d Haugh’s NE2d 1280 Pools, Ltd, (1987). 126 AD2d 511 NYS2d 732 dissent, 32, Of the cases cited only the ns two are apposite presented. to the issue (On Opinion of Court the depth pool the of the water in and awareness recognition body, and hence the to the relation shallow, in order to flat dive to execute a need pool the with the bottom of avoid contact injury. plaintiff pool’s this, that, because the it is concluded From condition of the aware of the shallow dangers in a head-

water and the inherent observably water, the ab- dive into shallow first very warning conveying those facts of a sence plaintiff’s proximate cause of the not a could be injuries.6

Although decided on the these cases could be temptation specific causation, to fact basis jury rely a on observation that do so or to permitted to determine whether should p latent, Levin, J., asserted simply ple post, day grap- postpones the need to to another duty analysis. difficult On the with the more plaintiffs’ presented, find we record here evidence necessary of a fails to demonstrate the existence causation antecedent resolution plaintiffs issue, i.e., a that the defendants owe duty to warn.

ii A purchas- a Manufacturers have to warn associated with in- ers or users reasonably misuse of tended use or their foreseeable scope products,7 but swimming attempts distinguish cases on The dissent plaintiffs allege they injured were while basis that some opposed steep, attempting a dive vertical dive. flat or shallow as Nonetheless, are, fact, dives. shallow or flat dives headfirst 7Antcliff, supra this Court’s at 638. Court concluded "prior support policy standard of that manufacturer’s decisions information, styled whether dissemination of such care includes the as product. provided instructions, appropriate warnings use of its as is safe warnings required, are the information If or instructions Id. adequate, accurate and effective.” must be 441 Mich op Opinion the Court unlimited.8 As one commentator observed: obligation If against there were an to warn all injuries might that conceivably result from the use product, or misuse of a manufacturers would find

it practically impossible goods. to market their [Noel, Products defective inadequate because of warnings, 256, directions or (1969).] SW L J duty A manufacturer’s or seller’s to warn of its product’s potentially dangerous condition "is not a duty necessarily which attaches to the status seller, manufacturer or nor is it one which exists regardless product.” nature of the Anno: 8Id. at 639. The Court was careful to note that the manufacturer’s protection. Furthermore, interests are also entitled to in Owens v 413, Corp, 432; (1982), Allis-Chalmers 414 Mich 326 NW2d 372 Co, 670, Mfg 683; (1984), Prentis v Yale 421 Mich 365 NW2d 176 this recognized Court insurers injuries manufacturers and sellers are not and, thus, they "absolutely any are not liable for and all products.” sustained from the use of [their] Moning Alfono, 425; The dissent cites 400 Mich 254 NW2d 759 (1977), support argument placing product on the market requisite relationship per- creates sons affected duty between a manufacturer and product giving legal obligation use of the rise to a affected, persons 420, post, p However, to the so n 17. we note Moning Prosser, (4th ed), 37, that which whether the Court in p relied on Torts § provided: part province jury "It is no of a to decide goods any obligation a manufacturer of is under for safety consumer,” of the ultimate to conclude: It is now established that the manufacturer and wholesaler product, it, by marketing legal duty of a owe a to those affected

by directly turer duty its use. The of a retailer to a customer with whom he long deals was well established before the manufac- obligated. scope and wholesaler were held so of their bystander. now also extends to a Mich [400 433.] support proposition case law cited to this was Piercefield v Co, Remington Inc, 85; (1965), Arms 375 Mich 133 NW2d 129 Co, (1916). MacPherson v Buick Motor 217 NY 111 NE 1050 Both liability of those cases involved defectively manufacturer when made products foreseeably injured bystanders. Imposing innocent safety upon or misuse of a persons injured by retailers manufacturers to the use product sold, regard type product, without to the marketing, defective, effect, method of lute or whether it was is in abso liability; concept rejected by Mfg this Court in Prentis v Yale Co, supra. Opinion of the Court warnings duty give to or seller’s Manufacturer’s liability affecting regarding product his as for policy injury, 9, product-caused 16. For 76 ALR2d duty qualifies to reasons, a manufacturer’s the law declaring by to be outside some risks warn supra 630-631,9 duty. Elbert See at Antcliff, Saginaw, 463, 109 879 475-476; NW2d Mich 363 (1961),10 1, 22; Dozorc, 412 Mich and Friedman (1981).11 312 NW2d 585 duty imposed to or seller is on manufacturer A principles negligence summarized under warn pp 2d, Torts, 300-301.12 2 § 388 of Restatement (a) Basically, have seller must manufacturer or 9 at Court in Antcliff 631: This stated duty legal to that a is owed one The terse conclusion policy, represents judgment, matter of the the as a another legal protection against latter’s interests are entitled to former’s conduct. 10 476: As the Elbert Court elucidated at degree problem duty problem simply of to [T]he undisciplined activities will be one’s uncontrolled which recognition organized needs of the curtailed the courts seen, involves, history, legal society. much of ... as we have It precedent, and loss. of allocations risk 11 22, at The Friedman Court observed: question negligence the defendant is In a action whether legal duty plaintiff of law an to the one owes actionable assessing competing policy after which court decides duty. against recognizing the for and asserted considerations Keeton, 53, supra, p 358: also & § See Prosser recognized "duty” is not sacrosanct should be [I]t itself, expression only of those but of the sum total say policy to which lead the law considerations of plaintiff protection. to is entitled changes in the ment Torts, basic § duty revision, 388, p to warn section was Restatement has Torts, been initially 2d, reaffirmed § set out in 2 Restate- 388. minor 441 Mich Opinion op the Court knowledge actual or constructive danger, claimed (b) have "no reason to believe that those supplied for whose use the chattel will realize (c) dangerous condition,” "fail of its its reasonable care to inform condition or of the facts which make to exercise dangerous [users] likely to be dangerous.” Id. at 301. 388(b) explains

Comment k to subsection recognition necessary conditions stating accepted duty generally warn, rule that a manufacturer or seller has no open warn

and obvious connected with an other- product.13 wise nondefective See anno: 76 ALR2d Liability, 38. See also American Law of Products p 3d, § 33:25, 52. A manufacturer has no perceives reasonably potentially if it warn that the dangerous product ap- readily condition of the is parent inspection, may be a disclosed mere casual only persons it cannot be said that special experience product’s of will realize that the 13The full text of comment k reads: supplies any purpose One who a chattel to others to use for is duty under a dangerous to exercise reasonable care to inform them of its him, character in far so as it is known to or of facts knowledge likely dangerous, if, which to his make it to be but if, only expect he has no reason to that those for whose use the supplied chattel is danger will discover its condition and realize the necessary supplier involved. It is not for the to inform supplied those for whose use the chattel is of a condition which disclose, looking a mere casual over will unless the circum- supplied stances under which the it However, are such as to make chattel likely inspection that even so casual an will not be made. condition, although observable, readily may be only persons special experience one which of would realize to case, dangerous. supplier, having special be In such if the such experience, knows that the condition involves and has no reason to believe that special experience those who use it will have such perceive danger, as will enable them to required he is to inform them of the risk of which he himself suppose they knows and which he has no reason to will Torts, 2d, 388, pp Emphasis realize. Restatement added.] 306-307. [2 § Opinion Court it poten- a carries or characteristic condition danger. tial of the obvious warnings

In the context asks whether inquiry the duty simple products, know. already they told what must people manufac- consumers where Warnings protect knowledge prod- superior seller has turer or to whom and those dangerous characteristics ucts’ ignorant would be be directed warning would warning would communicate. that a the facts exists Thus, has been observed good position as a just "the consumer where associ- gauge the manufacturer as Liability, . ...” 3 Products with the ated 29-30. See Anno: 76 ALR2d 33:25, 55. supra, § p products warn in liabil- Madden, also criticism, 89 W Va L R Contours ity: (1986). tools” regarding "simple case seminal Lothrup, & App 101 US DC Woodward

Jamieson v (1957), 355 US 855 cert den 32, 35, 37; 247 F2d (1957). explained: The court a knife manufacture cannot A manufacturer that will not mash cut or a hammer

that will not finger. The that will not burn thumb or a stove to warn of require does not law such common [a manufacturer] dangers. thing simple article is a manufactured [W]here characteristics, not a device universally known mechanism, being danger only parts or user, if the any possible obvious to not latent but article does injury go awry, but not break or use, the article through mishap normal occurs manner, foreseeable reacting in its normal and negligence. is not liable manufacturer of a character of the "obvious” Determination The focus is objective. is danger product-connected 441 Mich 379 392 Opinion op the Court knowledge perception typical user’s the relevant condition or feature that whether danger fully is creates the associated with use apparent, commonly recognized, widely known, anticipated by ordinary user or consumer. and 3 p Liability, supra, § 33:22, 47.14 Products Open dangers and obvious are conditions that create a risk of harm that visible, danger, ... is a well known or ... is Thus, by inspection. casual one cannot

discernible danger say be heard to that he did not know of a ous condition that was so obvious that apparent it was intelligence. ordinary those of Prod [3 33:26, supra, p Liability, ucts § 56.][15]_ 14 Keeton, 96, supra, pp Prosser & 686-687 observed: § [Cjourts usually by danger” have meant "obvious a condition ordinarily danger that would be seen and the of which would ordinarily appreciated by expected those who would be product. use the 15 analysis dangers” This and definition of "obvious is consistent approach by majority jurisdictions with the negligent used a vast in their Rodgers, failure to warn See cases. Ford Motor Co v 337 So 1976) 736, (Ala, known”); Parachutes, ("commonly 2d 740 Prince v 1984) Inc, 83, (Alas, ("dangers readily 685 88 P2d that would be recognized Sears, ordinary product”); user of the Brown v (1983) Co, 556, 562; ("simple thing Roebuck & 136 Ariz 667 P2d 750 characteristics,” universally "every known adult knows that if an frayed electrical extension cord is cut or of electrical shock 1989) created”); (DC 758, Delahanty Hinckley, App, v 564 A2d 760 (" 'danger, potentiality danger, generally known and ”); recognized’ App Exterminating Products, Orkin Co v Dawn Food 186 Ga (1988) (“common 201, 203; 366 SE2d 792 connected with product”); Kokoyachuk Aeroquip Corp, App the use of a 432, 439; 172 Ill 3d (1988) 348; ("generally appreci 122 Ill Dec 526 NE2d 607 1986) ated”); Maguire Brewing Co, 565, (Iowa, v Pabst 387 NW2d (risks sufficiently large); known to consumers at Duncan v Louisiana (La 1988) Co, 968, ("the Light App, Power & 532 So 2d avoiding knowledge”); and the manner of it are common Lorfano v 1990) Inc, 195, (Me, Steps, ("patently Dura Stone 569 A2d obvious all”); Co, equally apparent and App Nicholson v Yamaha Motor 80 Md (1989) 695, (generally recognized); 566 A2d 135 known and Sears, Co, (CA 1986) Laaperi Inc, 726, 1, & Roebuck 787 F2d law) (risks (applying inspection); Massachusetts discernible casual (Minn 1986) Products, Inc, App, Mix v MTD 393 NW2d Doughboy 393 v Opinion of the Court knowledge plaintiff’s subjective

Thus, is im- of an material to the antecedent determination danger. relevant, rather, It is and obvious given whether, the determination existence duty, the defendant’s failure warn was the to. legal proximate plaintiff’s injuries. 3 or cause of supra, pp Liability, § 33:23, 48-50.16 Products recognizes jurisprudence the well-estab- Our rule that there is no to warn of dan- lished gers have also that are and obvious.17We application no-duty narrowed cases rule to those involving "simple products.” tools or Owens Corp, 413, 425; Allis-Chalmers 414 Mich 326 v (1982). proposition rejected 372 We have NW2d that incantation that obviates the danger” "open rule is an obvious inquiry

threshold design duty in defect cases. We have not held that similarly inquiry limited the the should be as to

obligation safety-related to communicate infor- ("obvious anyone using product”); Grady Optical v American 1985) (Mo 911, known”); Corp, App, ("commonly 702 SW2d 915 Smith (ND 1986) Inc, 1505, NY, Mfg, Supp (danger v 634 F 1508 that is Hub Performance, Inc, 445, known); Simpson Supp 437 F 447 well v Hurst 1978) (CA ("a (MD NC, 1977), 4, aff’d 588 F2d 1351 condition which is 89, observable”); Philadelphia, 94; plainly Snyder v 129 Pa Commw (1989) ("generally recognizable” danger); Brune v 564 A2d 1036 1988) (Tex (well Corp, App, Brown Forman 758 SW2d 827 known to 1104, Inc, community generally); Shuput v 511 1106 Heublein F2d law) 1975) (well (CA 10, known; knowledge); (applying Utah common 53, (1977) Newhall, 55; ("generally A2d Menard v 135 Vt 373 505 recognized”). known and 16 397; Nabkey Enterprises, See also v Jack Loeks 376 Mich 137 Co, 356; (1965); Spencer App 132 v Ford Motor 141 Mich 367 379 NW2d NW2d NW2d NW2d 643 (1985); Inc, 176; App 393 Van Dike v AMF 146 Mich Interlake, Inc, 397; (1985); Bishop App 412 121 Mich 328 Canada, (1982); Ltd, App 693; Cooper 99 Mich Durkee (1980). Twerski, 620 also Henderson & Doctrinal 298 NW2d collapse See warn, products liability: empty shell of failure to 65 306(1990). L R NYU 17 Co, Inc, 158; Milk 383 Mich 174 NW2d 752 Fisher v Johnson 662; (1970); (1975); Corp, App Hensley 362 v Muskin 65 Mich 238 NW2d Canada, Ltd, Cooper supra; Mach v General Durkee v (1982); App Corp, 112 Mich 315 NW2d 561 Raines v Colt Motors Industries, (ED 1991). Inc, Mich, Supp 757 F See also anno: ALR2d 28-29. Mich op Opinion the Court products warnings leg upon which

mation liability pre- Thus, issue the narrow claims rest.18 duty to there is a warn here is whether sented simple dangerous of a characteristics the that upon apparent easily readily discoverable are average inspection by the user casual ordinary intelligence.

B may design context, obvious risks defect In the design adopt duty unreasonably a the breach against feasibly guards safely foreseeable that misuse. choice of ing liability for manufacturer’s Because the solely by alleged design look- is not determined defect, nature of the at the obvious preclude danger the does not of the obviousness possibility design could reduce that an alternative and in a manner that of harm at a cost the risk supra. utility. product’s Owens, maintains the context, the obvious na- In failure to warn simple product’s potential ture of the serves tions purpose claim, i.e., it func- the core warning that the risk is as an inherent present. otherwise, if the risk is obvious Stated prod- product, characteristics of the from the telegraphs precise uct plaintiffs Twerski, itself lacking.19 complain See Henderson & liability: collapse products in Doctrinal 18 approach preclude inquiry conclud would Justice Levin’s relationship ing consumer, a exists between a manufacturer a that because jury subjects it to a determina the manufacturer’s status concerning the reasonableness of its conduct. tion 19 contrast, product By ordinary it consumer or user will find posed some medicines or to uncover difficult to discover the risk other See, e.g., injury producing Larson v Johns-Manville Sales facts. 301; (1986); Questions, Corp, In re Certified 427 Mich 399 NW2d (1984). 686; utility balancing, Risk consumer Mich expectation, 358 NW2d 873 supports and the efficient allocation of resources Posner, imposition to warn in such cases. See Landes & (Cambridge, Law Mass: Harvard Univer Economic Structure of Tort Press, 1987), sity pp 295-297. op Opinion the Court empty warn, 65 L R of failure to NYU shell (1990). Thus, this is not a situation negligence principle is based on protect against which injury. Nor foreseeable omission is held to where the manufacturer a situation protect against higher unknown or standard unappreciated properties or in its App Jennings Corp, 42 Mich use, v Tamaker (1972). observation The dissent’s 201 NW2d notwithstanding,20 pools properties all knowable, The fact and known. cases were these not understand how most individuals do that laws of operate during physics a dive no more perceived use of this alters the product medical understand the than failure to why that severed a cut with a knife reasons major artery injury. catastrophic to death or could lead warning leg simple product situation, the In a pre- products products liability in normal use risk/utility issue, it serve to nor does no real sents protect knowledgeable or who is distracted a user danger Thus, nature of the the obvious inattentive. serves risk obvious warning a that the exact function as simplest present. terms, its is Reduced to warning danger of a rule the context product regard simple fair and a is both to logical. warning is not needed because Where a (and dangerous product’s potentially condition the not the condition) ignoring consequences is that warning fully providing evident, not serve a does to make the safer.21 to warn as to obvious There is 20 concept position confuses the advocated the dissent injuries might specific example, smoking, types incurred. For be risk with the general is a risk of hazard to health while there perhaps specific risk as is to fetal life is a distinct the risk parties secondary smoke. the risk to third 21 (2d ed), 28.5, p Harper, Gray, 356: & Torts § See 5 James axes, tendency sharpness of un- of knives and 441 Mich op Opinion the Court simple product danger danger obvious because of a "reasonably” danger careful a to is no (CA person. Schoolman, F2d 1262 See Pomer 1989). requires us to rhetoric resort to The dissent’s signals holding today’s emphasize no retreat merely danger is one from Owens22 Obviousness design analysis is rea- of whether in the factor sonable. very today only, condi- that where holdWe injury wholly alleged to cause

tion that revealed in normal simple product of a casual observation use, serves no fault- to warn Mfg purpose, Co, 421 Mich Prentis v Yale based (1984), approach this and that 670; 365 NW2d thing supra. Owens, It is one is consistent with say open design case, if a defect even in a duty, has a obvious, a manufacturer warning spoil packed could be that a are so notorious fresh meat perception nothing expected useful to add knowledge gained common to all. senses and the from one’s suggest precaution any itself. feasible Nor does alternative Keeton, 96, p recognized by 687: Prosser & § As warning approach objective about obvious to the issue of This reasonable, willing regarded dangers may if the court is as way defective when there is feasible to find obvious to make the design safer. Twerski, supra, p & 282. See also Henderson claims, article, critically to warn examines failure In their which Twerski, underscore: Henderson and patent danger abandoning argument rule in [T]he cases, simply because the rule has been abandoned case, cases, design design the obviousness makes no sense. In a necessarily preclude possibility does not of an alternative contrast, cost-effectively. By design the risk would reduce obvious, patently assuming are that some risks invariably product-related serves the same a risk obviousness of Thus, nothing present. warning is that the risk is function as a warning danger already gained by adding of the a to be product telegraphed by the itself. Opinion of the Court adopt design feasible, if a to minimize harm and the manufacturer is at fault if it does not do thing quite say It that a manufac- so. another prod- obligation simple to warn of a turer has an potentially dangerous uct’s condition is recognized. condition when apparent danger

readily widely and its Warning preferable design analysis is not approach products analysis as an to situations liabil- defect ity. product may That limited when a there warning through implicitly states its danger openness of the in normal must not use inquiry prod- that the obscure ucts fact ultimate safety design.23 liability A is the of the overall warning gaping is not a Band-Aid to cover a simply wound, and a is not it safe because warning. generally, See, Twerski, carries a stein, Wein- Piehler, Donaher & The use and abuse of warnings products liability design litiga- defect — (1976). age, 61 L tion comes of Cornell R 495 design analysis true; converse is not be used to evaluate failure to warn claims. defect must also design examined, When a defect claim is the obvi- product-connected danger nature ous not plaintiff’s of the will preclude entertaining court from a design

claim that an alternative could feasibly injury. However, reduce the risk of when negligent examined, failure to warn claim is simple product may and obvious of a preclude plaintiff establishing require- prima ment of facie case.24_ 426-428, Owens, supra rejected In at we Professor Henderson’s design polycentricity analysis inherently claim that defect unmanageable for courts and the assertion that to have was better warning leg products liability design substitute defect reject jurisprudence analysis. also the claim We Henderson, inherently unmanageable. See review of manu Judicial design adjudication, facturers’ conscious choices: The limits of Henderson, (1973), revisited, Design litigation Colum L R 1531 61 Cornell L R 541 defect (1976), Twerski, Weinstein, Piehler, Donaher & n 3 Twerski, supra. supra, & and Henderson rule in the obvious remains embedded 441 379 Mich

398 op Opinion the Court "effectively does not holding Our immunize[] swim- and sellers manufacturers Post, . 413-414. liability pp . . ming pools from warn re- duty there is no to do not hold We open to be and obvi- alleged garding all conditions obvious, and the condition is ous. Whether is the cause danger asserted very whether have allegedly would a injury an product-by- on a be addressed prevented, must basis. product a claims that

In when defendant summary, no to warn because the obvious duty owes required, a as a danger, of a court nature matter, to issue. The court threshold decide must whether reasonable minds could determine to respect differ with whether on If minds cannot differ and obvious.25 reasonable See, majority generally, cited common law of the vast in anno: ALR2d of states. cases 28-36, statutorily 76 9. has also The doctrine been § 60-3305; adopted in Kan La Ann six states. See Stat Ann Rev Stat 9.2800.57; 2A:58C-3a; 27-l-719(5)(a); Ann NJ Stat Ann Mont Code 29-28-105(d). 2307.76(B); Ann also Rev Tenn Code See Ohio Code Twerski, proposed A revision of section of the Henderson & restatement 402A (1992). (second) torts, 1513, 77 LR Cornell 1522-1523 cases, design rejected in Of those states that have the rule defect majority uphold application of the rule in failure to warn cases. 872-880, Compare adopting liability (jurisdictions adhering (jurisdictions cited in anno: 35 ALR 4th 4 § cases the view patent danger preclude rule does not cases) 28-36, design 76 9 cases cited in anno: ALR2d § duty no view that there is to warn of See, Inc, open NW2d defect manufacturer of a dangers). e.g., Sponco Mfg and obvious Holm v 324 1982) (Minn, patent danger design (rejecting 207 rule in cases) Products, Inc, supra ("[A] Mix v MTD n 15 19 at duty dangers has that are no to warn Co, anyone using product”); obvious 376; danger 283, 287, Micallef v Miehle 39 NY2d (1976) (rejecting patent 384 348 NE2d 571 NYS2d design cases), Koemm, Supp rule defect Kerr v F 557 1983) ("Obviousness (SD NY, n should relieve manu- design their facturers to eliminate if that done, reasonably can but relieves the manufacturer of obviousness Co, danger”); duty to Machine Inc inform users of Auburn Works 1979) Jones, (Fla, patent danger (rejecting 2d 1167 rule So cases), design Machinery Corp, in 7 of and Knox v Delta Int’l 554 So 2d (Fla 1989) App, ("[A] manufacturer has warn consumers danger”). ... obvious supported by This cited conclusion the bulk cases (On Opinion of the Court product-connected the "obvious” character of the danger, question the court determines the as a If, matter of hand, law. on the other the court differ, determines that reasonable minds could the the obviousness of risk must be determined jury. Liability, supra, pp § 33:42, Products 69- 70.26

hi Viewing presented by plaintiffs the materials light, dispute the most favorable there is no aboveground pools simple products. are No one they can mistake them for other than are, what large i.e., containers of water sit on the ground, all characteristics and features of which readily apparent easily upon are casual in or discernible inspection. highlighted As Justice Griffin supra I, at 695-696: nothing deceiving is appear- about [TJhere [their] ance, nothing enigmatic properties. about [their] [They devices, no mechanical but rather have] uncomplicated . . . produces] with univer- [are] sally known characteristics._ post, 422-425, pp that, although dissent at there is no where the courts found duty patent danger, to warn of a under the record facts presented, the courts could not hold as a matter of law that the risk Compare of and obvious. Brune v Brown Forman (Tex Corp, v 1988), App, Joseph Seagram 758 SW2d 827 E & Sons 1991). McGuire, (Tex, addition, many 814 SW2d 385 In of the cases rely liability theory recovery cited the dissent on a strict and do simple products. Finally, not involve the claim in Corbin v Coleco Industries, (CA Inc, 7, 1984), 748 F2d 411 described the dissent as persuasive, particularly berg along has been characterized with Glitten Wilcenski, supra, Twerski, as "absurd.” See Henderson & supra, p and n 208. issue, other, (a) any The like can be broken into rules (b) application and of those rules to the concrete facts of a given But the lays case. Here as elsewhere the court down the rules. application particular be, of those rules to facts should is, usually jury and fact committed to the on the issue upon any (2d Harper, ed), Gray, as other. James & Torts [3 18.8, p § 743.] 441 Mich Opinion the Court danger, creating i.e., the asserted The condition apparent readily or is water, fact that is a shallow inspection. upon The record casual discoverable The records that fact. not counter does evidence and support the con- not inferences do reasonable injury potential from a dive tention pools danger. observably is of these water shallow into not a recognized generally common support pools the inference not The record does of the not aware are users of experience special injury,27 general risk of perceive required or risk not injury presented by water. the shallow simple this risk of The obvious hitting danger objectively a risk is When such the bottom. warnings parse that danger determinable, general required. encom- are not risk passes injury specific In sustained. the risk of hitting the bottom encom- words, the risk other catastrophic injury. passes the risk of argu- plaintiff’s gravamen of each danger presented is not ment is that paralysis specific harm because obvious death recognized.28 generally Plaintiffs not argue, plaintiffs as does do does not reflect and The record appreciate consuming public dissent, likely does not the "that diving general in an in shallow water risk of either swimming pool p Post, injury quadriplegic . . speciñc . .” risk of or the added.) (Emphasis 415. summary disposi- argument example, support that of the in For upon Glittenberg granted, plaintiff relies his improperly tion was deposition Alexander most permit expert, provided Dr. M. testimony his and an affidavit light Viewing the record in a material and Gabrielson. this persuaded plaintiff, it does not that we are now favorable to the by Doughboy. contrary the facts asserted inferences to only of the fact deposition that he was unaware revealed Plaintiff’s testimony paralysis. posed diving of That water a risk in shallow that is cause. We cannot duty proximate of or clearly to a material issue insufficient raise plain- reasonably the bare fact that unaware conclude from specific subjectively of the that he was tiff has testified recognized, danger, was not well gravity generally ground warning that of the expected known, to above- appreciated use those of a pools, issue of fact that lack there is a material or that injury. plaintiff’s proximate cause Opinion of the Court argument Spaulding that add the Horen and danger age the aver- and obvious because is not recognize generally that the laws does not user hydrodynamics physics, biomechanics, can deep shallow dive into a a miscalculated transform dangerous.29 recognized However, as dive not whether a shallow dive issue is the threshold successfully but, rather, whether executed can be people general are unaware of the fact that

in diving in harm when a risk of serious there is shallow water. plaintiffs acknowl- The fact that all perform edged simply diving necessity to a shallow dive the conclusion that risk underscores In water is and obvious. shallow plaintiffs effect, argument by seek to convert the warn conceding readily apparent dangerous generally recognized condition for claiming duty exists, that because which no while degree specific consequence or of harm from that a dangerous paralysis death, condition, i.e., is not Furthermore, the critical Dr. Gabrielson’s affidavit does not address product-connected danger. of the issue of the "obvious” nature undisputed pool agree that it is manufacturers were aware We however, injuries aboveground pools; Dr. affidavit of does not of Gabrielson’s pool identify the number of total accidents the number type diving injuries yearly aboveground pools that occur involved in this case. Lawniczak, general expert, Dr. that the Plaintiff Horen’s testified grave public serious appreciate risk of is not aware of and does not diving. spinal injury Similarly, defendant Coleco’s cord when Stone, general expert, there is a lack of Dr. Richard testified Spaulding’s catastrophic injury. Plaintiff of the risk of awareness expert, University Michigan diving opines diving injuries. Richardson, also coach James average person appreciate the fact that that in shallow water carries does not potential life-threatening highlights testimony suggest, does when it To as the dissent 415-416, Lawniczak,post, pp that a reasonable inference can be drawn Dr. exists, pool into a two-foot that a to warn of the again simply favorably plaintiffs, when viewed most even obligation every argue that the trial courts have an to submit jury. standing liability question of water cannot be anything two feet to the A dive into a perceived by any juror reasonably as reasonable ignores properties activity the essential other than an product. simple of that 441 Mich op Opinion the Court warning is re- recognized, specific generally quired. negli- either question is no under

There principles, a fault-based gence liability or strict recognized be where liability of will theory defective, design pre- either its because product the conditions danger given sents an unreasonable use, is an unknown risk in use of or because there However, facts rec- of the where the product.30 the risk of serious require ord conclusion harm condition is from asserted obvious, question no exists disputed regarding not impose of the law does product, a manufacturer to of all conceiv- upon warn might occur injuries able ramifications product.31 of the from the use or foreseeable misuse Jamieson, supra As at 39: the court observed manufacturer, [S]urely protected to from liability possible injuries negligence, need not enumerate might one .... We which befall retina, in the case at a detached but we have might bar any had of an infinite have number ear, mouth, nose, injuries agree eye, We not etc. do with, support, authority a must utter a find holding either that a manufacturer mishap general with an catalog rope article such as this injuries possible upon or that he must mishap. such a Noel, supra, See 264. p also are difficult cases. Plaintiffs and their These tragic have human injuries, families sustained liability imposed strict if a fails to meet Even where expectations, recognized that an consumer swimming pool it has been consumer, ordinary expectation meets the Co, Swimming Vincer All-Aluminum Pool 69 Wis v Esther Williams (1975). 2d 230 NW2d personal 31 A whose causes foreseeable defendant breach however, plaintiff, consequences liable for the direct harm to the individual, particular if foreseen the even he could have Keeton, 43, p supra, 290. result that did follow. Prosser & § Opinion Court might matter of of which as a economic cost and legislative policy, However, otherwise allocated. liability jurispru- negligence nor neither legal principle every establishes dence injury legal remedy. warrants

IV validity the obvious We affirm negligent failure to warn cases as in doctrine implicates duty products. simple The doctrine plaintiffs’ prima facie case and is element question decide. Because the of law for the court to duty in the first instance is to warn existence of comparative adoption issue, of the doctrine of negligence on the determina- has no effect tion.32 properly granted disposition

Summary in was Spaulding. Glittenberg, Horen, We reverse the Appeals in the Court of decisions of Court of the decision of the and Horen and affirm Appeals in Spaulding.33_ 132, 146; Corp, 143 Ill Dec 136 Ill 2d Ward v K mart (1990), Robertson, comparative on see also Ruminations NE2d 223 defenses,

fault, duty-risk analysis, doctrines affirmative and defensive Louisiana, litigation negligence liability 44 La L R and strict (1984). 1341, 1374-1382 Spaulding argues trial court and the Court also that the Plaintiff along design Appeals improperly claims with dismissed his defect points expert’s testimony Plaintiff to his failure to warn claims. his that platform provided to dive and thus an invitation the ladder’s expert, defectively designed. argues Gabrielson, however, expert Plaintiff’s Dr. that the ladder be, purport qualified, nor does he as is not pool apparatus. design aboveground pools Coleco, summary disposition, hearing the motion for At the on manufacturer, it was entitled to dismissal contended ladder plaintiff’s the ladder defect claim was that the essence of because diving. plaintiff warnings against did not have contained should case, argument, dispute trial court dismissed the and the Coleco’s finding was obvious. the asserted no to warn because error, Appeals Finding decision the trial court’s the Court of affirmed design regarding the defect issue. analysis clarify Although for failure to warn here that we 441 Mich Opinion of the Court JJ., concurred Griffin,

Brickley, Riley, Boyle, J.

appendix BACKGROUND PROCEDURAL FACTUAL AND paralyzed plaintiffs34 head- after were alleging aboveground pools. sued, Each into first proximately injuries caused were that his pool negligence in fail- or seller’s manufacturer’s diving. warning against ing provide a v DOUGHBOY A. GLITTENBERG paralyzed permanently Glittenberg was David on an the bottom head on he struck his when Glittenberg swimming pool. testi- Mr. surface a shallow or to make that he intended fied pool toward his of the end from the shallow dive deep floating end of chair in the a who was on wife pool. the backyard pool, in the located neighborhood Wilcenskis,

plaintiff’s friends, the rear end of a hill at into the side was built edge pool top itself the house so ground approximately level two feet above was approximately foür feet end, and on the west Doughboy ground end. on the east level above pool, manufactured Industries Recreational claims, design basis of the defect on the from that in is distinct in claims record Appeals Appeals conclu- Spaulding, the correct reached the Court Thus, Spaulding on this issue. in affirm the Court of we sion. Horen, Spaulding are Glittenberg, and Jane Pamela Connie However, claims of consortium plaintiffs. their loss because named sake, nature, term we use the convenience in and for are derivative Horen, Glittenberg, Allan and "plaintiffs,” to David William to refer Spaulding. (On Opinion of the Court redwood an attached was surrounded which approximately level fence. The water was deck and and in the end one-half feet shallow three and deepest point. There feet at the and one-half seven ledge and one-half feet below three was easy There access the water. line allow water diving depth board, ladder, mark- no no was against posted warnings diving ings, on or and no pool.35 near the experi- undisputed plaintiff an that the was

It is diver, was famil- and and that he enced swimmer including depth, having pool, its been with the iar pool He accident. at least twice before the in deep dive into shallow water was aware that was dangerous hit bottom because he could possibly concussion. break an arm suffer a and However, a shallow he considered it safe make you water, if "were versed dive in shallow diving type you knew of dive were what doing . . . .” Glittenberg brought against

Mr. an action perti- alleging Doughboy, others, defendant, part seriously permanently he was nent negligent injured as a result of the defendants’ failing grave risk of conduct to warn paralysis or death that is inherent when aboveground pool. granted The trial court into summary Doughboy’s disposition motion on the swimming pool that, because the sim- basis ple product and of into its the hazards open obvious, the defen- water were and shallow plaintiff the under these dant had no to warn ^[35] 'Warning provided by [Doughboy] to the Fred Bancroft. the pool pool by from Bancroft. labels Mr. Bancroft or the However, and [Glittenberg instructions the warning original purchaser I, Wilcenskis, supra for labels posting at 677.] were who the labels purchased not of the placed were pool, the on 441 Mich Opinion the of Court rehearing subsequent motion for Plaintiff’s facts.36 denied.37 was Appeals the decision reversed The Court of holding App 326, that the court, 174 Mich trial

the longer danger open viable rule is no and obvious Michigan case, that, of this under the facts in the simple swimming pool tool, and the was not paraplegia and obvious: was not pool itself appearance of the Nothing in the consequences warning very the serious

gives a are we dive can lead. Nor a mundane to which injury from a danger of serious convinced dive is a risk aware.[38] generally public is of which the that, I, 679-681, agreed supra al- at this Court In brought disposition summary though pursuant relief could be pursuant party material was motion for the defendant’s 117.2(1), upon 1963, which failure to state a claim to GCR brought granted, be treated as one the motion would 117.2(3), moving mandated that which to GCR genuine granted judgment law if no issue as a matter of fact existed. argued rehearing, plaintiff that he had for In his motion expert support opinion claim that an his secured the relevant opinion expert obvious and that this was not court no basis for new The trial found constituted evidence. merely supportive expert’s opinion because the reversal plaintiff’s rejected, original position, and that which the court had years plaintiff to establish the factual over four which had had his claims. basis of rejected plaintiff’s argument that he should The trial court also incorporate design complaint claims defect allowed to amend his be because incorpo- plaintiff present the court with a motion failed to Moreover, empha- complaint. rating proposed the court amended alleged design related to the defects were the fact that sized claim, pleaded. to warn which had been failure explained: Appeals The Court of also accompanied does The fact that labels Doughboy’s compliance conclusively establish defendant applicable inquiry legal duty; into the involves its standard of jury question for the to decide. care—a of fact swimming Likewise, Glittenberg’s regarding admissions his pertain duty question knowledge experience to the do not questions proximate causation and rather concern the but jury. negligence questions comparative Mich [174 —also App 328.] Doughboy 407 Opinion of the Court ap- granted appealed, leave we and (1989).39However, peal, because Mich 880 433 viability agree majority on was unable in cases doctrine and obvious negligent claim, failure to warn raising the trial court remanded to the case ordered Court question the threshold determination for a required a care of reasonable whether warning. B. HOREN COLECO INDUSTRIES permanently July 1981, Bill Horen was On attempted paralyzed he when the chest down from par- surface-type the deck dive from or a shallow pool surrounding his tially and struck in-laws’ his accident, of the At the time the bottom. on head age, years thirty-three feet ten plaintiff five was weighed pounds. tall, and inches height pool and four feet measured partial, twenty-four and included in diameter feet fencing decking manufacturer-supplied40 which and pool There was totally deck area. enclosed pool leading up area to the enclosed ladder leading The center into water. another pool approximately depth dug five to a out was ranged approximately from level The water feet. feet. one-half four and feet to three and one-half time of the accident At the small, faded only one pool contained [t]he peeling of a the base warning affixed at label whether the defendant appeal the issues was limited to duty Leave to perma plaintiff that serious to warn the had a manufacturer end of the the shallow injuries a dive into result could nent trial pool error for the it was and whether defendant’s summary disposition favor. grant in the defendant’s court Coleco, and was pool in 1978 defendant manufactured Bridgeport. Lomart Defendant defendant to the Coxes sold corporation to Coleco. successor 441 Mich Opinion the Court deck, adjoining the wall corner of the chain-link Diving. Water.” How- "No Shallow

which read: ever, that he Mr. Horen testified saw to indicate signs in or around labels or diving. He also testified be no that that he was there should of limited a recreational swimmer had diving experience and that he swimming and any diving Mich instruction. never received [169 App 727.] accident, not Mr. Horen had the date of

On taking drinking He medication. and was been testified that he had swum pool once

in the Coxes’ successfully accident, dived from had before the day on the of the at that time and the deck area occasions, accident, and, he had seen other on both pool. successfully into the adults dive acknowledged that he could see the Plaintiff pool deck, could tell the of the from the bottom depth it in where was relation to of the water danger body, of some his hitting scrape that he was aware pool, and that he could the bottom performed deep if he or bruise himself pool However, the Coxes’ was a dive. safe he believed depth shallow-type surface or dive. for a plaintiff’s Glittenberg, the thrust of claims As in duty to warn of is that the defendants breached diving pool. trial court into the granted summary motion for dis- the defendants’ 2.116(C)(8),41 brought pursuant position to MCR danger concluding that, in involved because that, Appeals recognized although the defendant The Court 2.116(C)(8), summary disposition pursuant to MCR sum moved mary disposition brought pursuant as if it were was be reviewed 2.116(0(10), argued genuine that no MCR because defendant Coleco existed, diving into an of material fact headfirst above- issue ground pool an and obvious for which a manufacturer warn, and, hence, law, duty to as a matter of that defendants a review of the has no were entitled to record revealed that the had been Furthermore, summary disposition. if trial court also considered the motion as 2.116(0(10). App brought pursuant 169 Mich 728. MCR op Opinion the Court swimming into headfirst pool obvious, the manufacturer no to warn. had Appeals decision reversed

The Court of panel concluding, court, as did the the trial holding Glittenberg, Fisher v this Court’s Inc, Co, Mich 174 NW2d Milk Johnson (1970), of an to warn there simple product associated with obvious tool, Corp, v Allis-Chalmers had modified Owens been panel supra. held, Thus, the in- where question reasonably jury jury foreseeable, a concerning the manufacturer whether remained against guarding unrea- care reasonable used injuries, the dan- sonable, even where foreseeable ger was obvious.42

C. SPAULDING LESCO INT’L CORP Spaulding quadriplegic a was as Allan rendered striking diving into and his head on result of swimming pool at the bottom an pool friend, home of Richard Henwood. his twenty-four by in four feet measured feet diameter 42Reviewing plaintiff, light in a favorable to the evidence most genuine plaintiff Appeals conclude a decided that could not that Court pointed did not out that the issue of material fact had exist and presented jury might find from which a the manufactur evidence product posed danger. an unreasonable and foreseeable er’s swimming ordinary recreational swimmer of limited [A]n training, might diving experience, that a believe flat, performed death or shallow dive could be without threat of presented paraplegia, especially was when the swimmer not sign such and when with a hazard sufficient warn of executing similar without other swimmers were observed dives [plaintiff’s] conscious- harm. Even the evidence establish should danger, preclude jury vague this from ness of a would required give finding full was nonetheless life-threatening appreciation involved. See Michi- of the risks 148, Heatilator, App

gan NW2d Mutual 422 Mich 366 Ins Co (1985). 202 Mich [169 731.] 441 Mich op Opinion the Court height depth in approximately and the of water varied

three and one-half feet at sides approximately at center.43 Mr. four feet depth in the center Henwood estimated the water forty-six forty-seven to be about or inches. On the day question, plaintiff eigh- dived from a small eighteen-inch platform by teen-inch sat a few inches above the at provided diving wooden

lip pool of the Henwood top of an frame metal ladder "a” pool. warnings against access to the No displayed any part pool were on plaintiff accident, the ladder.44 At the time of the thirty-six weighed years old, tall, was six feet good pounds, and considered himself to be swim- diving, mer. He had received some could not recall Henwood instructions any specifics, had been in the but pool prior occasion, on at one least pool twenty inwas at least fifteen to minutes day Spaulding on the of the accident. Mr. testified upright pool that he stood in the and was aware depth that around his chest of the water was somewhere during

level, and that the time pool August got 5, that he was in the on he in and pool purchased by The Henwood "used” Richard Henwood 1980, spring allegedly by the defendants Oceanic Leisure poration. Plastics, and was manufactured or distributed Corporation and Leseo International Cor replacement by Its liner was manufactured defendant S. K. Brothers, and sold to Mr. Henwood Pietila defendant its ladder was manufactured defendant Coleco. Mr. Henwood pool himself, extent, using, installed the to a certain a manual he entitled, charge free received from defendant Sears "Above-Ground Swimming Pools Do-It-Yourself Guidebook.” Spaulding Corp, supra In v Lesco Int’l at the Court of noted, however, Appeals warranty K. the S. Plastics for its warning stating: liner did include a swimming pool depth diving. This does not have sufficient dive, swimming

Do not pool. Diving do not allow others to dive into this dangerous. Appeals that, manufactured, The Court of also noted when the allegedly warnings against diving, they Coleco ladder had but were plaintiff’s absent at the time accident occurred. Id. Doughboy Glittenbeeg op Opinion the Court jumped pool times, to fifteen the ten of about out pool, platform the dived head- into and the from pool platform the to four the into two first times. claiming they defendants, sued the

Plaintiff of him number duties under a owed breached design, negligent including manufacture, theories implied express warning, of and and breach and safety. court of and The trial fitness warranties summary disposition granted of the defen favor regard essentially finding pertinent part dants, ing duty and no to warn of all defendants diving into water. shallow of obvious Corp, supra Spaulding Int’l at 289-290. v Lesco Appeals appealed, and Court Plaintiff Disagreeing the Horen and Glitten- affirmed. berg panels, Spaulding Court concluded: no [A] has to warn manufacturer still simple product patent when a and obvious pool above-ground We is involved. believe simple product this case was a and in dangers obvious. making deep were dive into agree Moreover, with the circuit we in this that the failure to warn court’s conclusion case was proximate plaintiff’s not the cause of deep injuries. was, knew how the water Plaintiff deep dangers making was, he and the how tall breaking including water, his dive into shallow neck. [Id. 293.] at granted case the defen- trial court in each summary disposition the basis motion for on

dants’ diving into water was shallow there- defendants and obvious plaintiffs to warn owed fore danger. ruling Appeals The Court of reversed the trial court in Wilcenski Industries, Inc, affirmed v Coleco Horen 441 Mich Dissenting Opinion by Levin, J. ruling Spaulding Corp. trial court in v Lesco Int’l Glittenberg plurality This Court’s result in v Doughboy Industries, Inc, Recreational led to re hearing Spauld and consolidation with Horen and (1991). ing. 437 Mich (dissenting). question presented Levin, J. The is summary disposition properly whether granted defendant manufacturers and sellers of aboveground swimming pools on the basis that the diving in a shallow swim- ming pool open and obvious. plaintiffs presented

We would hold that genuine sufficient evidence to raise a issue of material fact whether

obvious, and would remand these cases for trial. plaintiff in

The each of these cases became quadriplegic diving as the result of in an above- ground swimming pool, and commenced an action claiming that the manufacturer and seller was negligent failing provide warning in concern- ing dangers diving pool. in such a majority holds, law, as a matter of that the dangers diving pools in shallow are obvious, and there is no to warn. We would approach Glittenberg adhere to the outlined Doughboy Industries, Inc, Recreational 436 Mich (1990) I), (Glittenberg 673, 699; 462 NW2d 348 remanding where, in to the circuit court for fur- development, joined saying ther factual I "a manufacturer’s to warn not automati- cally excused when the risk of harm is obvious.” Glittenberg

This Court remanded I for further development question factual so that whether obligation there was an diving to warn of the aboveground pool in an would not be an- Dissenting Opinion Levin, J. in the in- plaintiffs in a "vacuum.”1 swered cases, proceeded appeal, on consolidated stant contains substantial record that develop a factual that users of above- tending to show evidence quadri- the risk of perceive pools do ground know diving, do not they injury plegic it is and that safely, water to dive in shallow how warn of the risks effectively possible pools. shallow ignores that adopts an majority analysis

The vacuum, con- majority the In that that evidence. the of an above- shallowness that because cludes general risk obvious, of the and is ground obvious, there is pool is also in such a diving risk speciñc "shallow” the obligation to warn of diving injury.2 catastrophic and diving manufactur- effectively immunizes majority The 1The for the remand was stated: rationale required the judgment in cir- The whether in a vacuum. The this case should not made cumstances of problem lack the cases as this is that we such fundamental decision, necessary intelligent even information with remain to make diving. dangers regard We to the obviousness of regarding questions as largely such crucial uninformed they provided, efficacy warnings against are when fact, way is, any into shallow safe to dive whether there water, above-ground pools. actually perceived by the users of are and what remand, urge parties provide On we to evaluate the risk inher- which will allow court evidence ent qualities. product, its or nonobvious obvious in defendant’s J.) signed (Opinion Boyle, I this Mich 702. [436 opinion. Emphasis added.] majority states: require that conclusion facts of record [W]here open and the asserted condition is risk of serious harm from obvious, regarding disputed question the a manufac- exists and no duty upon impose product, not the law does injuries all ramifications turer to warn of conceivable product. might misuse of the occur from the use foreseeable [Ante, p 402.] 441 Mich Dissenting Opinion by Levin, J. swimming pools ers and sellers of regressive and is because it invites liability, on swimming pool industry step take a back safety issues.

i principal disagreement Our majority with its failure consider the evidence light most favorable to the plaintiffs.

As set forth in the majority opinion, "[t]he gravamen plaintiff’s argument each of the the danger presented is not obvious because the specific harm of or death is paralysis recognized. not generally Plaintiffs Horen Spaulding argument add the the danger and obvious because the average user does not generally recognize that of phys- laws ics, biomechanics, and hydrodynamics can trans- form a miscalculated deep shallow dive into a dive is recognized dangerous.”3 as

Dr. Gabrielson offered the following data: Spinal Injury National Cord Data Research Center, through publications its estimates that 800 diving injuries occur year resulting each in paraly- sis; occur in many further that as injuries as of these 25% pools. The majority dismisses this evidence with the observation that the fact injuries of does not estab- lish the latency of the danger alleged.4 Putting aside that the majority that danger concludes the diving of in shallow water is open and obvious as a matter of law considering evidence, without the the frequency of such injuries suggests both the

3Id., pp 400-401.

4Id., 400, p n 28. Opinion Dissenting Levin, J. latency is not and that obvious. viewing plaintiffs’ person, evi- reasonable

A significant whole, conclude that a could as a dence injuries catastrophic occur, that number swimming pool industry been aware of has years5 potential injuries for number for such provided warnings many instances consuming public product, likely does and that diving general appreciate risk of either not aboveground swimming pool in an water shallow occurring quadriplegic injury specific risk or during the uninformed dive assumed a shallow safe. diver acknowledges majority Dr. Lawniczak that general public is not aware that "the

testified grave appreciate of serious not the diving,”6 risk and does spinal injury that James cord when average person "the does Richardson testified diving appreciate the fact in shallow not life-threatening potential carries water injuries.”7 diving in shallow water

Lawniczak testified necessarily ato and obvious not diving Richardson, at coach swimmer. recreational Michigan, University divers do testified that potential really for serious not understand general pool: injury "the in a shallow when entering public just about does understand depths happen, can even at what water and depths everybody appear concerned, be, safe going just on there than more It’s lot .... deposition: Dr. Lawniczak testified on "significant pool industry evidence of a has had statistical activity problem of headfirst entries foreseeable associated with the swimming pools by the ’50’s. far back as recreational users” as into Id, p n 29. 7Id 441 Mich Dissenting Opinion by Levin, J. people imagine going understand and can on.” added.) (Emphasis majority argues "[t]he that fact that all plaintiffs acknowledged perform necessity simply shallow dive underscores the conclusion open the risk of in shallow water is and obvious.”8 dive,

Performance of a shallow while is evi- recognizes modify dence the diver a need to response perceived danger, his actions in to a incorrectly perceive also evidence that divers protection execution of a shallow dive is sufficient danger presented by diving from the aboveground swimming pool. in a shallow Viewing favorably the evidence most to the plaintiffs, they we would conclude that offered latency spe- sufficient evidence both of the catastrophic injury, cific risk of and that divers are posed by diving unaware of the risks in shallow pose genuine water, issue of material fact specific open whether the risk is and obvious.

ii majority analysis by distinguish- frames the ing design defect cases from failure to warn cases purpose applying for the obvious, "patent” majority, rule. The while ac- knowledging the decision of this Court Corp, Owens v Allis-Chalmers 414 Mich (1982), abrogated patent danger NW2d 372 design rule in cases, defect holds that the obvious/patent governs rule still in failure to warn cases.9

8Id., p 401.

9 Id., p 394. by Dissenting Opinion Levin, J.

A Owens, abrogated in rule was The patent rule removed the because, in the supra, part, designs.10 The product safer adopting for incentive warn; failure to a to a applies rationale correlative make warnings that provide should manufacturer safer to use.11 product a supply sure, legal obligation to To there is be that are defi- warnings "superfluous” warnings, warning not A is superfluous unneeded. nition when warning required only a because required all to use. We the safer product it would make not apprise that product warning a does that agree already not of he is anything which a consumer safer to use. not make a aware does claim instant cases do not The plaintiffs have warned obvious defendants should aboveground swimming associated there a plaintiffs claim rather pools. 10 Id., p 394. Owens, to According a risk is one factor be to the obviousness of prudent determining reasonably manufacturer what a considered Owens, supra, p See see also in the circumstances. would do I, supra, pp 699-700. instructed to ness duty If these cases were of a defendant manufacturer risk to the apply SJI2d plaintiff. to 25.31, be tried which does in these terms: standard a jury, not instruction mention jury speaks the obvious- would be duty at time a to use reasonable care The defendant had [product] so as to eliminate unreasonable it [manufactured] reasonably injury were foreseeable. risks harm or which However, a defendant had no [manufacture] injury or [product] risks of harm to eliminate reasonable reasonably foreseeable. risks that were not degree which reason- means that care Reasonable care ably prudent stances would exercise under circum- manufacturer reasonably you . . . . ... to decide what It is prudent those do or not do under circum- manufacturer would stances. negli- care is A to fulfill use reasonable failure Emphasis gence. 25.31. added.] [SJI2d 441 Mich Dissenting Opinion by Levin, J. catastrophic quadriplegia, risk of injury, may pools, result from shallow this risk is obvious, pools and that such if provided would be safer to use manufacturers warning concerning catastrophic the risk of injury. might A jury properly plaintiffs’ conclude latent, evidence that the asserted that a would make the product safer not, a warning use. Such would on such a finding, superfluous. hi The majority attaches considerable significance it what describes as the "simple” character aboveground pools. The majority argues that be- aboveground cause an pool "simple product” is a its inherent "characteristics . . . features are readily apparent or easily upon discernible casual inspection.”12 description

This of "simple product” begs the question, since it assumes that all characteristics of a "simple” product known, are universally therefore such products cannot present a latent danger. Under the majority’s approach, a latent found, could never be and a warning never would be needed with a "simple product” because are, characteristics of such products by defini- tion, known.” "universally

At some point "simplicity” "complexity” come full circle. If simple products require warnings their because characteristics are univer- known, sally complex so too products because their unknown, characteristics are universally and con- sumers should reasonably treat them with caution. If a car is not a battery simple product, then it can argued that is mysterious enough to warrant

12 Ante, p 399. Dissenting Opinion Levin, J. surely majority But in its use. caution

extreme known "universally that this suggest not would to warn. obligation any risk obviates latency” is product of a not complexity simplicity The in- pertinent The issue. controlling on simple If a is latent. is whether quiry present an obvious principle can never prod- users, "simple the definition of then risk that no prejudgment expresses merely uct” inquiry But that point inheres. at risk latent that making prejudg- on the basis should focus ment. "enigmatic” nothing there that claim The plaintiffs is not pools such accurate.13

about inherent of properties evidence presented enig- are indeed aboveground shallow upon inspection. casual and not observable matic negatives witnesses expert testimony comprised pools are claims defendants’ known characteristics.”14 only "universally shallowness Undeniably It does follow readily apparent.15 pools creating danger” the "condition because by the obvi- all created readily apparent, or "discoverable readily apparent condition are ous casual upon inspection.”_ nothing enigmatic properties. . is . . about [their] "[TJhere devices, [They but rather no mechanical [are] have] universally uncomplicated produces] charac . . . known J., Glittenberg i).] Griffin, p (quoting [Ante, 399 teristics.” 14 part See i. argues: majority The simple dispute aboveground pools are is [T]here they

products. are, than mistake them other what No one can i.e., ground, large all that sit on containers water readily apparent or are and features of which characteristics easily [Ante, p upon inspection. casual 399.] discernible 441 Mich Dissenting Opinion Levin, J. majority assumes that the bare observation The fully water reveals all inherent of shallow precisely plaintiffs’ It conten- in shallow water. danger, quadri- at least some the risk of tion that plegic injury, spection upon in- is not discoverable casual pool, and there is substantial of a shallow supporting in the record that conten- evidence tion.16

IV analysis majority’s At the heart of the is the there is no need to warn of a assertion general open specific risk if the risk is and obvious. general diving risk of Since the shallow waters according open majority, is, obvious, to the importance specific qua- is of no risks of driplegia, consequences paralysis and the are not generally recognized.17_ part i. See gravamen plaintiff’s argument The of each of the is that the danger presented specific is not and obvious because the paralysis generally recognized. harm of However, or death . . . people general the threshold issue is .. . whether are unaware of the fact that there is a risk of serious harm diving plaintiffs when in shallow water. The fact that all acknowledged underscores the necessity perform simply a shallow dive that the conclusion risk of in shallow [Id., pp Emphasis water is and obvious. 400-401. added.] majority plaintiffs also states that the duty argument by conceding seek to convert the to warn

readily apparent generally recognized dangerous condition exists, duty claiming specif for which no consequence i.e., while that because a c degree condition, dangerous or of harm from that death, paralysis generally recognized [Id., pp is not .... Emphasis 401-402. added.] plaintiffs "duty analysis.” Duty do not seek to evade the is not relationship the issue. Inherent the argue only in the manufacturer —consumer negligent of reasonable care to avoid conduct. Plaintiffs obligation that this includes the to warn of a latent danger. The issue in the instant cases is whether the standard of care 421 by Dissenting Opinion Levin, J. acknowledged they plaintiffs Although dangerous, they pools diving in shallow knew they support their claim evidence offered injury. quadriplegic appreciate risk of not did A adopted by analytical framework Under the general majority, obvious if there is an using product, manufacturer a associated any obligation of latent to warn not have an does obligation using product. speciñc risk product using not, does how- a of a risk warn "general” depend or the risk ever, on whether respecting question "specific.” The essential complained obligation the risk is whether to warn is obvious. of interplay that consider cases

Failure to warn "specific” "general,” "patent,” "latent,” of present product-related of characteristics they variety But of contexts.18 in a these issues pools requires swimming applicable to a manufacturer quadriplegia. As this of shallow about the risks a 438-439; Alfono, Moning 254 NW2d 400 Mich stated in Court (1977): relationship essentially question Duty of whether legal gives any injured person rise to the actor and between product placing a on obligation. ... It is well established relationship requisite between market creates the manufacturer giving persons use of the . affected . . and persons obligation so legal to the rise to a affected. aboveground pools, have defendants As manufacturers evidentiary reasonably record products safe. Given the their make developed by that standard plaintiffs, not decide we would the instant part i. of law. See care issue as a matter 85, 118-122; Steel, 485 NW2d 440 Mich Riddle v McLouth See also (distinction "duty” (1992) J., dissenting) between (Levin, care”). "standard negli of theories in the contexts treat the issues These cases risk, risk, assumption defective liability, incurred gence, strict 441 Mich Dissenting Opinion Levin, J. there is an obli- a common thread: whether share on the gation depends latency to warn risk, If there is a general risk. speciñc warn, risk, obligation latent there is an specific risk. In general even if there is a more obvious cases, that rejected numerous courts have claims arguments adopted by majority. mirror Co, 199 Hopkins In v E I DuPont de Nemours & (CA 3, 1952), by F2d 930 a workman was killed explosion during project, an excavation dynamite his failure to warn brought negligent and widow maker of the against explosives. claim Appeals United States Court of the Third Circuit observed: everybody

Defendant tells us that knows that dynamite dangerous and that there is no need to against plaintiff’s warn But theory obvious. go generally dangerous does not of should not be thrown in a most construction workers do should not be to the character dynamite. Everybody dynamite . . . that knows fire, apparently but it not know that

placed in a hole under condi- tions existent this case. at 933. Initial [Id. emphasis added.] Mfg Pineda, 1113, In East Penn Co v A2d (DC 1990), App, a mechanic was injured by car that battery exploded. The manufacturer battery argued experience that mechanic’s him acquainted particular had with the risks asso- batteries, ciated with and thus there no duty to warn of dangers. The District of Columbia Appeals Court of held that the manufacturer had a duty specific to warn of the risk that the battery might explode during charging, though even mechanic "clearly person knew that a should exer- design, adequacy warning. frequently The cases combine two or more of these theories. Opinion Dissenting Levin, J. they produce because

cise care around batteries explosive gases.” (CA Co, F2d 238 Lead In St Joe Whitehead poisoning 1984), plaintiff lead claimed that exposure by long-term to lead in was caused plant The defendant the defendant. owned generally argued awas lead contamination danger, no thus there was known Appeals for the Court of The United States warn. responded: Third Circuit exposure in the lead cannot conclude We requiring risk workplace "generally is a known” law. concern is not as a matter of Our generally known lead can with whether Rather, deliberately if consumed. we be harmful exposure limits to airborne consider whether safe known, gener- it is generally lead are whether levels were exceeded ally known these plants Alpha’s. Emphasis at 254. like added.] [Id. (Mo, Haberly Co, 319 SW2d 859 In Reardon 1958), boy helping paint, his father was blinded a paint accidentally eye in lodged when one cement-based paint eye. manufac- in his The defendant argued duty that was no warn turer there paint entering eye specific be- paint any everyone that kind will cause knows lodged eye. rejecting problems In if in cause Supreme said: Court this claim Missouri . . certainly knowledge . that for- It is common lodged . eign . . not be in an substances should that, [E]veryone generally speak- . knows eye. . . . . ing, foreign eye in an . sometimes a substance pain . . . serious possibly in conse- will result . . . the fact that quences. It does follow not knowledge speciñc warning that a such is common tragic consequences paint eye] [of differently than not alert to act far would one 441 Mich Dissenting Opinion Levin, J. .... at 867. he would have acted otherwise [Id. Emphasis added.] Uniroyal, Inc, 560, 566 765 F2d In Leonard v (CA 1985), injured 6, one truckdriver was where truck another killed when an underinflated jury plaintiff out, the secured a favorable tire blew negligent Uniroyal on a claim that was verdict dangers failing to of tire underinfla- warn Uniroyal argued jury that should have tion. there to warn been instructed generally knew of the since truckdrivers Court from underinflated tires. The United States Uniroyal Appeals for the Sixth Circuit held that duty” it was not entitled to a "no instruction since produced no evidence establish knowledge from underinflated common tires is among professional truckdrivers. Long Co,

In v Deere & 238 Kan 715 P2d (1986), injured worker, a when "crawler over, loader” rolled claimed that the defendant necessity wearing should have warned of the operating argued seat belt while the loader. Deere using that since the risks of not seat belts are warning generally known, a would have been fu- Supreme tile. The Kansas Court held that could say as matter of law that because of the passenger common use of seat belts vehicles the risks associated with the loader were commonly known, would have futile. been Corp, Brune

In v Brown Forman SW2d (Tex 1988), App, Appeals the Texas Court of summary judgment liquor in favor of a reversed brought by manufacturer in an action a survivor daughter poison after her died from acute alcohol ing. holding In that the failure to warn claim was improperly dismissed, the court said: 425 Dissenting Opinion Levin, J. poison propensities of acute alcohol fatal [T]he ordinary com readily categorized as

ing be cannot question knowledge. Although there is no mon beverages intoxi drinking will cause alcoholic matter possibly cause illness is a even cation of prepared to knowledge, we are not common law, hold, general public is that the as a matter excessive consumption of an aware can result death. We realize amount of alcohol is and is no clear line between what there is facts, knowledge, as shown but where not common proof, show how appellant’s summary judgment propen knowledge of the fatal easily disputed the be, recognize it may will not as of alcohol we sities [Emphasis knowledge matter of law. as a common added.][19]

B majority further characterizes regarding specific plaintiff’s risk of claims 19 to the awareness of a that tie a failure to warn claim Other cases Inc, Supp Playtex, specific Int’l 688 F include Rinehart v latent, 1988) (the (SD Ind, syndrome is risk of toxic shock risk; obvious, particular Playtex had a to warn of thus general requires of a more than awareness the incurred risk defense risk); acceptance specific mishap; potential of a must show 1975) (CA (the Inc, 10, plaintiff Shuput v Heublein 511 F2d stopper being eye by plastic partially hit in the blinded after was that propensities matter of such common law and bottle; champagne popped the court said out from a "[t]he many bubbly may are not a well known to but wine knowledge as a matter of as to be established knowledge”). judicial 3d imposed Accord Burke as a matter of (1979). Inc, 768; Rptr Vineyards, App 150 Cal Almaden Cal present through the issue in terms thread runs cases that The same injury. Harley plaintiff vCota "assumed the risk” of of whether (1984) (the Davidson, plaintiff, injured App 141 Ariz 684 P2d 888 ruptured, gas motorcycle claimed defective when a tank a design; Harley that crash defense; assumption risk the court held raised an assumption Harley on of risk entitled to an instruction was not danger, knowledge because, plaintiff general although had knowledge specific that he had actual there was no evidence mph). puncture a tank at 20 to mirror bracket could risk that a assumption risk cases between the The confluence danger that centrality obviousness of the of the issue of the lies in the produced injury. 441 Mich by Opinion Dissenting Levin, J. quadriplegic injury presented not as claims about by only pools, but, rather, about consequences degree "specific from the or harm” danger.20 probably would, unreasonable, im- indeed,

It require possible, warn con- a manufacturer to might every injury conceivable sumers about result assuredly product, from the and the law use of obligation.21 impose does such an agree obligation to warn While we that there is particular danger simply it is "con- of a ceivable,” because plaintiffs argue there is dangers do not obligation all warn of conceivable pools. plaintiffs with associated argue specific significant danger for that there is a warning supplied which a should be because latent, reduce the and a would significant injury. number occurrences v majority states: jurisdictions Most that have addressed similar impose unwilling liability cases have been on seller.[22] manufacturer or swimming pool cases, The results while holding by majority, are consistent problematic. merely Closer examination reveals support coincidental for the result in the instant highlights inadequacy ap- cases, and proach taken the majority._

20Ante, pp 401-402. manufacturer, [S]urely protected liability to be from possible negligence, injuries need not enumerate which Lothrop, might befall one .... Woodward & [Jamieson 32, 39; (1957).] US DC 247 F2d 23 App

22Ante, p 386. Doughboy Dissenting Opinion Levin, J.

A significantly differ the cases cited Several they concern did not cases in that the instant resulting into injuries or "flat” dives from shallow injuries aboveground pools, but, rather, involved "deep” dives.23 from vertical sustained flat or involve the did not these cases Because plaintiffs, attempted by the instant dives shallow there was regarding testimony expert in- the dustry’s diving, of shallow the risk or awareness public of that unaware the was and that risk.24

B proxi- majority the states that eschews approach25 diffi- of "the more in favor mate cause duty analysis.”26_ cult 23 (CA 1988), 2, plaintiff Inc, Kelsey F2d 39 848 In v Muskin aboveground pool, diving headfirst quadriplegic after in an became with side, eight height v feet. In Howard from a his arms at his (1988), plaintiff Pools, 972; 530 NE2d 1280 72 NY2d

Poseidon through attempting an inner severely injured tube that was to dive headfirst after Belling aboveground pool. floating In in a shallow (1987), Ltd, 959; Pools, 732 Haugh’s 511 NYS2d 126 AD2d attempting injury the court what plaintiff described shallow serious after suffered floating through in a inner tube dive” as a "vertical pool. (1984), Stark, a involved AD2d 478 NYS2d 103 design, Smith opinion does not negligent memorandum and the claim of indicate whether alleged design the lack of a defect resulted from (CA 3, Co, Dep’t May 466 F2d 1234 warning. Store Colosimo v Cf. warning 1972), involving rendered of a a claim that the absence design pool defective. of the 25 Summary judgment has been based in favor of the defendant negligent alleged causal connection between on lack of a injury. typically plaintiff’s focus Courts and the failure to warn this, testimony deposition it is plaintiff’s .... From on the concluded that, plaintiff the shallow was aware of because dangers in a pool’s inherent water and the of the condition water, observably the absence of shallow into headfirst dive proximate very warning conveying facts could not be those [Ante, pp injuries. plaintiff’s 386-387.] of the cause 26Id., p 387. Mich Dissenting Opinion Levin, J. majority courts that concluded As the notes,27 not have been to warn could that a failure proximate diving injury typically fo- of a

cause plaintiffs presented by testimony on the cused conclu- thus drew their The courts themselves.28 dangers pre- the obviousness sions about evidentiary pools records without sented comparable to those in the instant cases.29 deciding swimming pool cases, courts, in Other implicitly would not that a concluded plaintiff. In con- conduct of the have altered the cases, courts those instant tradistinction supporting presented claims evidence were not generally unaware of the risks users are catastrophic injury. To the of shallow claims that cited cases involved extent given general warn- should have manufacturers ings diving, the claims are about the inapposite before this Court. to those now

c swimming pool manufactur- The assertion that subject held sellers have not been ers and by liability "[m]ost jurisdictions”30 in similar cases jurisdictions not uni- have Other overstated.31 27Id., p 386. 28 id., 392, p in two of the cases cited in plaintiff’s n 15. The courts See cases conduct, warning, the lack was the that of

held Pools, injuries. proximate Howard v Poseidon cause of his See sole Inc, Pools, 57, 974; Supp supra 709 F 62 n 23 at Winant v Carefree 1989). cases, (ED NY, persuasiveness of the further reduces the This may Michigan recognizes one that there be more than since law injury. proximate cause of an 29 part i. See 30Ante, p 386. 31 jurisdictions majority eleven cases from other The cites However, diving aboveground pools. four of the accidents in involve cases, Winant, Howard, supra, Belling, supra, supra, n 23 n 23 n 28 Doughboy 429 v Dissenting Opinion Levin, J. to such claims.32 formly responded single Smith, supra, law of a were decided under the n and jurisdiction, York. New swimming pool cases is found Griebler on the A variation Recreational, Inc, 547, 560; 466 NW2d 897 160 Wis 2d diving (1991), Supreme held that water the Wisconsin Court where danger open depth presented as a matter and obvious unknown of of law. that the water of unknown the court experts plaintiff presented testimony from to the effect diving appreciate average risks of into does not consumer unclear, analysis depth. but The nature of duty proximate appears cause instead of to have looked at sup- expert testimony plaintiff apparently introduced issues. port argument that conduct was not unreasonable. his his grounded on two Wisconsin cases that court the result The Griebler 561, twenty years precedent,” represented "nearly id. at and of negli- plaintiff guilty contributory imply of seemed gence: Bahr, 473; 2d to overrule Scheeler Wis We refuse [v Gillmore, 498; (1969),] Davenport 146 Wis 2d NW2d 310 431 NW2d court of recovering and [v (1988),] adopt and the rule advanced plaintiffs appeals. Doing the door to so would injuries they of their own suffered as the result unreasonable behavior. determining Although expert opinion may be relevant danger, ultimately one the test is what is an and obvious Emphasis at 559-560. of reasonableness. added.] [Id. Inc, Industries, briefly 748 F2d v Coleco The court discussed Corbin 1984) (CA 411, 7, merely it: 417-418 but dismissed position already rejected as a reason to over- We have this nearly twenty years precedent. 2d Wis 561.] rule [160 (1990), Miller, App 583 NE2d 1080 66 Ohio 3d Stanton diving seriously injured after in an a diver concerned pool. grant summary judgment in favor of the The court reversed retailer, holding in the did not manufacturer risk,” assumption "primary that the record did constitute "implied assump- the dive constituted even an not demonstrate that tion of risk.” risk,” holding "assumption Although using taxonomy distinguished implicates The court to warn issues. of the court "implied” assumption "primary” risk: predicated upon [Primary assumption a determina- risk] law, tion, to the owes no matter that the defendant as a in some plaintiff. are so inherent . . because certain risks they eliminated. cannot be activities 441 Mich by Dissenting Opinion Levin, J. is, hand, assumption Implied as on the other defined of risk acquiescence appreciated, plaintiff’s or in an the known consent to plaintiff’s safety. at 203-204. or obvious risk to the [Id. Emphasis added.] added: The court diving "Clearly, injury while into a shallow there a risk of risk, pool however,

pool. operators (quoting 518 NE2d so inherent as to relieve is not any duty at 204 to all divers.” from whatsoever [Id. Club, App 3d Collier v Swim 35 Ohio Northland [1987]).Emphasis added.] "primary declining plaintiff’s By assumption to find the conduct constituted risk,” of of refused find that the the court duty aboveground preclude diving pool were so as to in an obvious part the court the of manufacturer retailer. Had to warn on found evidence assumption "implied” of of sufficient to raise the issue gone risk, ordinarily jury. at 203. the issue would have Id. 117, 121-125; App Corp, 3d 535 NE2d Erickson v Muskin 180 Ill In (1989), "assumption analysis applied to a the court an of risk” 475 case inner tube diving through concerning his neck an a diver who broke after pool. jury verdict in an The court affirmed a danger duty finding that defendant owed a warn of both ninety-six percent diving pool, plaintiff into the but that the assumed The court of the risk. said: plaintiff subjective test A whether assumed risk] [for i.e., used, plaintiff age, expe- actually knew. is rience, knowledge, what Plaintiff’s understanding, to the obvi- addition danger poses will all be ousness of defect and the jury’s for relevant factors consideration. Moreover, plaintiff’s expert testimony that the use of to show may diving public above- not be of the hazards into an aware ground himself is not to what Lance relevant [Erickson] thereof, knowledge, had Lance’s or lack and whether he knew. assumed resolved part question all or the risk was a of fact to be jury. by [Emphasis added.] duty "objective to warn this case was determined danger pre- Id. at 122. neither standard.” The obviousness reaching jury, jury’s from nor did involvement vented the case produce ninety-six plaintiff, recovery whose reduced a windfall percent. 1991) Smith, Inc, (Ala, King v S R 578 So 2d See also summary argued (reversing no in-ground pool); go judgment in favor of a who manufacturer diving into an to warn board 'open’ does not "Whether a and 'obvious’ [is] Instead, 'open’ issue of the defendant .... to the 431 Dissenting Opinion Levin, J. Industries, Inc, 748 F2d 411 In Corbin v Coleco (CA Appeals 1984), of 7, the United States Court judg summary a Circuit reversed Seventh granted negligent to warn claim on a failure ment reviewing rec After manufacturer. defendant expert testimony, the court said: ord of though people generally aware of are [E]ven water, they believe danger that diving into shallow of it, namely, by way a to do there is safe flat, people in fact executing dive. If do a shallow said, belief, a then cannot be generally hold such law, spinal injury the risk of as a matter of that open is and obvi diving into shallow water open de danger and obvious ous. Whether pends people can see with their just not on what and believe about they also on what know eyes but people generally if particular, In they what believe see. danger associated with the that there is a way to product, but that there is a safe use of a use product using it, any danger may there be to safe is way generally in the believed obvious.[33] open and persuasive. particularly The result Corbin majority in instant court, like the The Corbin employed "duty analysis,”34 on cases, and focused plaintiff experts testimony as the the himself,35 of as well contrary of a result that but reached assumption danger to the affirmative defense 'obvious’ relates . . . causation.” risk and the issue of (1991), Petersen, App 169 Ariz 821 P2d In Shaw v injured falling pool parents after in a of a 19-month-old child who was pool. the owner should have warned claimed Court said: "Whether an pool person was a reasonable would believe question child is a hazard to a 19 month old and obvious 'open duty, a hazard is to breach of not its existence. Whether relates duty, the existence of rather is not relevant to determine and obvious’ it determining duty was breached.” relevant if the 417-418. Id. at 417. Id. at summary judg- grant court also reversed the Id. at 418. The 441 Mich 379 Dissenting Opinion Mallett, J. not find court did majority. the instant in a shallow obvious, plaintiff only but open sum- preclude evidence "sufficient presented ... on basis mary judgment defense.”36 obvious there is a so conclude similarly

We would fact, remand and would material issue of genuine for trial. these cases Levin, J.

Cavanagh, C.J., concurred I concur Mallett, Although (dissenting). J. to its regard I dissent analysis, majority’s pre- I not consider Because do conclusion. obvious, open and threat sented to warn. has pool manufacturer col- my Therefore, I dissent respectfully league^_ knowledge plaintiff’s proximate based on cause issue ment on danger. 36Id. at 417.

Case Details

Case Name: Glittenberg v. Doughboy Recreational Industries

Court Name: Michigan Supreme Court

Date Published: Sep 29, 1992

Citation: 491 N.W.2d 208

Docket Number: Docket Nos. 85391, 88429, 88580, (Calendar Nos. 1-3)

Court Abbreviation: Mich.