On the Rebound

by

Lykins v. Fun Spot Trampolines (Ohio)
(Woman Falls From Trampoline; Court Holds Risk of “Double Bounce” and Risk of More Than 225 Pound on Trampoline Not Open and Obvious, Not Assumed)

The plaintiff was invited to an annual Fourth of July party, and she was injured when she fell from a trampoline. The defendant property owners (the Thompsons) had hosted a similar party for many years and had purchased a trampoline, which they had allowed party guests to use over the years. The plaintiff used the trampoline at the annual party for five consecutive years from 1995 through 2000. On the day of the incident, she was standing on the perimeter of the trampoline while another adult guest was jumping in the middle. At some point, the plaintiff (who has consumed a limited amount of alcohol) lost her balance, fell on her back, and suffered a broken neck and a crushed spinal cord, rendering her a quadriplegic.

Plaintiff filed a lawsuit against the manufacturer of the trampoline for strict products liability and against the Thompsons for negligence. Thereafter, the defendants filed motions for summary judgment, which were granted by the trial court. As to the manufacturer, the court held that the dangers presented by the subject trampoline were open and obvious and a matter of common knowledge. With regard to the Thompsons, the court also ruled that the dangers associated with trampoline use were open and obvious such that plaintiff was owed no duty. The court further found that plaintiff assumed the inherent risks associated with use of the trampoline and that the record did not support a finding of recklessness on the part of the Thompsons to impose liability upon them. The plaintiff appealed the rulings.

On appeal, the plaintiff argued that a genuine issue of material fact existed as to whether the dangers associated with use of the trampoline were open and obvious to her. More specifically, plaintiff argued that dangers created by more than one person bouncing on the trampoline at one time and the presence of more than 225 pounds on the trampoline at one time were not open and obvious.

Plaintiff’s products liability claim was based upon a failure to warn. A manufacturer has a statutory duty to warn product users potential dangers associated with products. However, that duty is obviated when the dangerous condition causing injury to the plaintiff is open and obvious or commonly known. In considering whether a product presents an open-and-obvious risk, it is necessary to determine whether the particular hazard giving rise to the subject injury was obvious or commonly known. The manufacturer argued that the dangers associated with the trampoline were open and obvious because plaintiff had used the trampoline on prior occasions, had used the trampoline while other people were on it, and testified that she had never read any of the warnings on the trampoline or asked the Thompsons about the dangers of its use.

The court acknowledged that the facts demonstrated that plaintiff was, in fact, aware of various dynamics of the trampoline at the time she decided to use it on the evening in question. However, the plaintiff also testified that testified she did not know that multiple people bouncing on the trampoline at a given time created the particular risk of a “double bounce,” which could project her out of control even though she was only standing on the perimeter of the trampoline “lightly” bouncing. Further, plaintiff testified that she did not know that the presence of more than 225 pounds on a trampoline at a given time created the particular risk of the trampoline surface transforming from a flexible, forgiving surface into a hard, inflexible surface. Plaintiff testified she was never warned of those conditions and she offered expert testimony which concluded that those particular hazards are not commonly known to most people who use trampolines. Therefore, the court ruled that there were issues of fact concerning whether the particular hazards alleged by plaintiff were commonly known.

In terms of the negligence claims, the court again stated that there was an issue of fact as to whether the alleged hazards were open and obvious to the plaintiff, such that the Thompsons duty of care to plaintiff was eliminated. The court also agreed with plaintiff’s challenge regarding assumption of the risk. The court explained that primary assumption of the risk relieved a recreation provider from any duty to eliminate the risks that are inherent in the activity because such risks cannot be eliminated. Focusing again on the testimony from plaintiff’s expert, the court indicated that it could not conclude as a matter of law that the risks alleged were inherent in the activity of using a trampoline. The court expressed that while falling down, colliding with others, or potentially falling off the apparatus altogether may be foreseeable risks in trampoline use, it could not find as a matter of law that the same was true with regard to the risks associated with the double bounce and with more than 225 pounds on the trampoline at a given time.

The lower court ruling was reversed and the case was remanded for trial.

NOTE: This case appears to do a disservice to the primary assumption of the risk doctrine in Ohio. The doctrine has been generally effective in Ohio, and the case law largely mirrors California law. The court’s focus on expert testimony and the specific and detailed risks alleged appears to be misplaced. The bottom line is that the plaintiff was bounced in the air by another person simultaneously using the trampoline and that she fell from the trampoline, suffering personal injury. The potential for this occurrence is unquestionably obvious to anyone who has ever seen or used a trampoline. Those risks were and will always be inherent in this activity. This case appears to shift the application of the primary assumption of the risk doctrine from an objective determination of the basic risks inherent in an activity to a battle of semantics among experts. Perhaps this was an example of hard cases making bad law.

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