Section 3

Denkensohn v. Davenport (1989, 3d Dept) 144 App Div 2d 58, 536 NYS2d 587, affd, ctfd ques ans 75 NY2d 25, 550 NYS2d 584, 549 NE2d 1155 [issue of duty of pool installer to post warnings as to depth of the pool.]

Castro v. Alden Leeds, Inc. (1988, 2d Dept) 144 App Div 2d 613, 535 NYS2d 73 [duty of manufacturer of canister of pool chemicals.]

Summary judgment granted in favor of landowner who owned, closed and winterized swimming pool in which trespasser dove head-first, rendering himself quadriplegic. Court held that landowner's pool was considered an "artificial condition" under Restatement (Second) of Torts §334 and as such, landowner only owed trespasser the duty to avoid willful and wanton conduct. Court concluded that landowner's conduct was not wanton as plaintiff's conduct was not obvious. Micromanolis v. Woods Sch., Inc. (1993, CA3 Pa) 989 F2d 696.

19-month-old child suffered brain damage after falling into swimming pool. Family sued homeowners of pool. Court reversed lower court grant of summary judgment in favor of homeowners, finding that the risks associated with a swimming pool are not open and obvious to a 19 month old as a matter of law. The court continued that the open and obvious nature of the risks is a question of breach, not duty and must be determined from the perspective of the child at issue. Shaw v. Petersen (1991, App) 169 Ariz 559, 821 P2d 220.

See infra Battistoni v. Weatherking Products, Inc. (1996) 41 Conn App 555, 676 A2d 890 at §2:4, n. 7.

See also, Note, The Duty Owed to Children: Application of Attractive Nuisance Concepts in Products Liability Actions for Failure to Childproof, 68 Univ. of Detroit Law Rev. 537 (1991).

"More than 350 children under 5 years old drown in pools each year nationwide ... ." <ntc ref.id="I05G7D1">CPSC press release no. 98-124, June 11, 1998.

&ldquo;Drowning is the second lead cause of death from unintentional injuries to children under 5 years old...In 2003, approximately 1,800 children under 5 were treated in U.S. hospital emergency rooms for near drowning injuries related to swimming pools. About 69% of these children were hospitalized or further treated.&rdquo; 9 Consumer Product Safety Review 1 (Summer 2004).

Products liability: swimming pools and accessories, 6 ALR4th 492.

[49] Annotation: Products liability: liability for injury or death allegedly caused by defect in snowmobile or other recreational-purpose vehicle, 81 ALR3d 394.

[50] Annotation: Products liability: liability for injury or death allegedly caused by defect in snowmobile or other recreational-purpose vehicle, 81 ALR3d 394.

[51] A boy was thrown from his child-size sled while riding in the kneeling position, rendering the boy a quadriplegic. The boy and his parents brought a products liability action against the sled's seller claiming the sled was defective due to the manufacturer's failure to warn of a known "dig and flip" hazard associated with kneeling on the sled. The seller was found to be strictly liable. Marcon v. Kmart Corp., 573 N.W.2d 728, Prod. Liab. Rep. (CCH) &p;15163 (Minn. Ct. App. 1998), review denied, (Apr. 14, 1998).

[52] See <ntc ref.id="I05GG8W">Bucklely, J.P. and Rooney, S.W., All-Terrain Vehicles, 24 Trial Magazine 56 (No. 11, November 1988).

<ntc ref.id="I05GGAB">CPSC press release dated September 28, 1995 (no. 6003) gave an updated account of all-terrain vehicle deaths and injuries. "On June 30, 1995, the Commission had reports of 2,638 ATV-related deaths that occurred since 1982. The reported deaths increased by 68 since the March 31, 1995 tabulation for the last update dated May 26, 1995."

See Emshwiller, 'All Terrain' Vehicles Spark Debate As User Deaths and Injuries Mount," Wall Street Journal, section 2, wherein it states that more than 600 people have died in ATV accidents and 275,000 have been injured; additionally, nearly half the statistics involve children under 18 years of age.

See infra Ladd by Ladd v. Honda Motor Co. (1996, Tenn App) 939 SW2d 83 at §9:19, n. 14.

[53] Annotation: Products liability: liability for injury or death allegedly caused by defect in snowmobile or other recreational-purpose vehicle, 81 ALR3d 394.

[54] CPSC recently issued a new federal safety standard for bicycle helmets. This standard provides a uniform mandatory safety standard for all bike helmets, and special requirements for younger children's bike helmets. Additionally, under the new standard, the following safety standards are mandated: performance test to insure impact protection in a crash; increased head coverage; performance tests for chin strap to ascertain if strong enough to prevent breaking, excessive elongation and rolling off in a collision; peripheral vision requirement; labels and instructions for care of helmet and proper wear; certification labels, testing, and record-keeping provisions. (compliance by March 1999). This new standard was pursuant to the <sst ref.id="I05HKXS">Children's Bicycle Helmet Safety Act of 1994.

Court found that bicycle manufacturer that selected a generic industry design for its braking system was liable for design defects. Huffy Corp. v. Arai Indus. Co., Ltd., 187 F.3d 635 (6th Cir. 1999).

[55] Annotation: Products liability: liability of manufacturer or seller for injury or death caused by defect in boat or its parts, supplies, or equipment, 1 ALR4th 411.

[56] Annotation: Products liability: protective clothing and equipment, 27 ALR4th 815.

[57] CPSC recommends use of helmets for skiers and snowboarders to prevent head injuries. "In 1997, there were 17,500 head injures associated with skiing and snowboarding. The CPSC study shows that 7,700 head injuries could be prevented or reduced in severity by wearing helmets and 11 skiing and snowboarding annual deaths could be prevented." <ntc ref.id="I05HLRK">CPSC press release no. 99-046, January 8, 1999.

[58] Annotation: Products liability: liability of manufacturer or seller for injury or death caused by defect in boat or its parts, supplies, or equipment, 1 ALR4th 411.

[59] Annotations: Products liability: personal injury or death allegedly caused by defect in motorcycle or its parts, supplies, or equipment, 98 ALR3d 317.

Products liability: protective clothing and equipment, 27 ALR4th 815.

In claim against helmet manufacturer for injuries sustained in motorcycle accident, court denied defendant's motion for summary judgment on failure to warn issue, finding that there remained genuine issues of fact concerning the sufficiency of the warning and the open and obvious nature of the dangers associated with riding a motorcycle over 30-45 mph without a helmet. Sheckells v. AGV-USA Corp. (1993, CA11 Ga) 987 F2d 1532.

[60] Amusement park operator qualified as a "common carrier" and as such, was held to a higher standard of care. Neubauer v. Disneyland (1995, CD Cal) 875 F Supp 672.

"Roller coaster-related injuries and deaths are on the rise. Six people died in amusement park accidents during the summer of 1999. Four were killed in just one week." <ntc ref.id="I05HUGJ">Reichert, Jennifer, Roller Coaster Thrills, Spills, Surge, 36 Trial Magazine 14 (August 2000).

See Braksick & Roberts, Amusement Park Injuries and Deaths, 39 Annals Emergency Med. 65 (2002).

[61] Annotation: Products liability: liability of manufacturer or seller for injury or death caused by defect in boat or its parts, supplies, or equipment, 1 ALR4th 411.

[62] Annotations: Liability of swimming facility operator for injury or death allegedly resulting from defects of diving board, slide, or other swimming pool equipment, 85 ALR3d 849.

Products liability: swimming pools and accessories, 6 ALR4th 492.

[63] Annotations: Liability of swimming facility operator for injury or death allegedly resulting from defects of diving board, slide, or other swimming pool equipment, 85 ALR3d 849.

Products liability: swimming pools and accessories, 6 ALR4th 492.

14-year-old boy dove into an aboveground swimming pool and broke his neck. Family sued the homeowners of the pool. The court denied the defendant's motion to dismiss, holding that the risk of diving is not an open and obvious risk as a matter of law, even if the risk of drowning is. Borden By Borden v. Sweeney, 1990 WL 205826 (N.D. Ill. 1990).

Summary judgment for manufacturer of aboveground swimming pool. Manufacturer had no duty to warn of dangers associated with a headfirst dive into shallow water of an aboveground pool because a pool is a simple tool and dangers associated with headfirst dives are open and obvious. Glittenberg v. Doughboy Recreational Industries (1992) 441 Mich 379, 491 NW2d 208, reh den 441 Mich 1202, 495 NW2d 388, reversing Glittenburg v. Wilcenski (1989) 174 Mich App 321, 435 NW2d 480 and Horen v. Coleco Industries, Inc. (1988) 169 Mich App 725, 426 NW2d 794, and affirming Spaulding v. Lesco Int'l Corp. (1990) 182 Mich App 285, 451 NW2d 603, app gr 437 Mich 886, 464 NW2d 710.

A 14-year-old was rendered quadriplegic when he dove from a trampoline into an above-ground swimming pool. The child sued the pool manufacturer for failure to warn. Court held that whether the risk of paralysis from diving into a shallow swimming pool was open and obvious to a 14-year-old child was a question of fact for a jury. Additionally, the court found that 14-year-old children are foreseeable pool users and as such, the reasonable child standard should be used to assess the obvious nature of the risk. Klen v. Asahi Pool, Inc. (1994, 1st Dist) 268 Ill App 3d 1031, 205 Ill Dec 753, 643 NE2d 1360, app den 161 Ill 2d 527, 208 Ill Dec 361, 649 NE2d 417.

[64] Annotation: Products liability: protective clothing and equipment, 27 ALR4th 815.

[65] Annotation: Products liability: defective heating equipment, 1 ALR4th 748.

[66] Annotation: Products liability: personal injury or death allegedly caused by defect in motorcycle or its parts, supplies, or equipment, 98 ALR3d 317.

Child, through his mother, brought a products liability action against a motorcycle company for severe injuries sustained when his motorcycle was hit by another automobile, whose driver claimed the motorcycle and the boy were not visible until immediately prior to the collision. The products liability action claimed, among other things, that the motorcycle was defectively designed because its small size combined with the lack of a safety flag gave the motorcycle low visibility and the motorcycle was defective because it was marketed for children over the age of seven, children incapable of handling motorcycle safety. Court found that evidence supported the jury's finding that the motorcycle was defectively designed and said defect caused the child's injuries (Court applied section 402A of Restatement (Second) of Torts). Morales v. American Honda Motor Co., Inc., 151 F.3d 500, Prod. Liab. Rep. (CCH) &p;15329, 1998 FED App. 230P (6th Cir. 1998).

[67] CPSC issued a warning about the use of spas and hot tubs. The warning addressed the risk of death and body part entrapment that can occur in spas and hot tubs. Since 1980, the CPSC has received reports of 18 incidents of body entrapments, including 5 deaths. Moreover, the CPSC is aware of 49 incidents of entrapment since 1978. According to the CPSC, the pipes in a spa or a pool draw water through a drain and back to a pump, creating a suction that increases significantly when the drain is blocked. See <ntc ref.id="I05J9KX">CPSC press release no. 5112.

[68] As a result of this case, and others like it, the Consumer Product Safety Commission recalled mini-hammocks without spreader bars. The CPSC noted the risk of strangulation that these hammocks pose. This case reflects the significant value products liability cases can have in forcing unsafe products off the market.

[69] United States CPSC released a study showing that between 1990 and 1996 there was a 54% increase in sports-related injuries suffered by older Americans (34,000 to 53,000). <ntc ref.id="I05J9TA">CPSC press release no. 98-101, April 28, 1998.

[70] Annotation: Products liability: firearms, ammunition, and chemical weapons, 15 ALR4th 909.

[71] Annotation: Products liability: firearms, ammunition, and chemical weapons, 15 ALR4th 909.

[72] Annotation: Products liability: protective clothing and equipment, 27 ALR4th 815.

[73] Annotation: Products liability: protective clothing and equipment, 27 ALR4th 815.

[74] Annotation: Products liability: firearms, ammunition, and chemical weapons, 15 ALR4th 909.

[75] CPSC filed a lawsuit against Daisy Manufacturing for the recall of 7.5 million Powerline Airguns. <ntc ref.id="I05KEV4">CPSC Press Release No. 02-029 (dated October 30, 2001). The suit asked the company to notify consumers that the guns are defective and present a risk of death or injury. The company has refused to voluntarily recall the guns. The CPSC has learned of at least 15 deaths and 171 serious injuries from this product. Approximately 80% of those injured or killed by the airguns have been children under the age of 16.

After losing the use of his eye, Aaron, a minor, and his parents brought a product liability action against the manufacturer of the air rifle that his 11-year-old friend used to shoot him. Swix v. Daisy Mfg. Co., Inc., 373 F.3d 678, Prod. Liab. Rep. (CCH) P 17031, 64 Fed. R. Evid. Serv. 731, 2004 FED App. 0192P (6th Cir. 2004). The case claimed that the air rifle was defectively designed. The lower court dismissed the claim and the appeals court reversed. The appeals court found that the mere fact that an air rifle may be a simple tool is not dispositive in a design defect case. Swix, 373 F.3d 678, 685. Moreover, the court noted that the obviousness of the danger presented is also not a complete defense, but simply one factor to be considered. Id. In determining whether the air rifle presented an open and obvious danger the appeals court found that the lower court failed to apply the reasonable child standard. The question is "whether the reasonable child of whatever age the typical user of a Daisy air rifle is determined to be would know that it would be dangerous to aim the rifle at another and click the trigger, even after going through the process of emptying and testing the rifle...." Swix, 373 F.3d 678, 687.

[76] CPSC recommended that children playing youth baseball or softball use protective equipment to reduce the quantity and severity of the 58,400 injuries that result annually from playing these games. CPSC supports three types of protective equipment: softer than standard baseballs--there are a reported 47,900 ball impact injuries to the head and neck that occur annually; batting helmets with face guards--there are a reported 3,900 facial injuries to batters that occur annually; safety release bases without any part of the base protruding--there are a reported 6,600 injuries to players that slide into bases that occur annually. Between 1973 and 1995, the CPSC received 88 reports of baseball-related deaths. <ntc ref.id="I05KF2C">McMurry, K., 32 Trial Magazine 74-75 (August 1996).

Baseball pitcher who had been seriously injured by a batted ball brought a successful product liability action against the bat manufacturer. The plaintiff claimed the bat was defective as it caused batted balls to reach dangerous speeds -- a risk that the manufacturer was aware. Brett v. Hillerich & Bradsby Co., No. CIV - 99-981-C (W.D. Okla. 2002).

See also <ntc ref.id="I05KFAP">Reichert, Jennifer, Baseball Pitchers in Line of Fire, Jury Decides: Bat Maker Liable, Trial Magazine 12 (May 2002).

[77] Annotations: Liability of manufacturer or seller for injury caused by domestic or industrial soaps, detergents, cleansers, polishes, and the like, 79 ALR2d 482.

Products liability: personal soaps, 54 ALR4th 574.

[78] Annotation: Liability of manufacturer or seller for injury caused by domestic or industrial soaps, detergents, cleansers, polishes, and the like, 79 ALR2d 482.

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