5th District Jumps into Trampoline Debate

Kathleen Sollami, 15, required surgery after injuring her knee while jumping on a trampoline in a friend’s backyard. On appeal, the 5th District held that the circuit court erred in holding that the dangers associated with a trampoline are open and obvious. Sollami v. Eaton, 319 Ill.App.3d 612, 747 N.E.2d 375 (5th Dist. 2001).

The case was remanded to determine not only whether the manufacturer’s warnings and instructions were adequate for foreseeable purchasers and users, but also to determine whether the property owner knew or should have known of the hazards and should be held accountable under a theory of premises liability. Premises Liability Act, 740 ILCS 130/2 (2000).

Although trampolines have been around for more than a half century, theories of liability revolve around three basic theories: negligence, strict liability and breach of express or implied warranty. Early cases were based in strict liability against the manufacturer that built the recreational equipment with exposed springs and side raisings that caused severe injuries. Often these decisions were conflicting because no adequate standards defined what constituted a defect in construction or inadequacy of maintenance of the equipment.

Now, the courts still appear to be divided, not as to the safety aspects and construction of the recreational toy, but as to the level of knowledge or appreciation of the dangers of it. More recent cases have wrestled with the notion of a failure of a duty to warn.

As the court in Sollami said, "Though certain recognized hazards associated with trampoline jumping may be considered open and obvious depending on the circumstances, we doubt that recreational users appreciate the hazards and the risk of injury imposed by the thrust capacity of the trampoline mat and appreciate that the risk and severity of the injury is reduced when the user is instructed on fundamental landing techniques to manage that impact". Id., 319, Ill.App.3d at 619.

The determination of a duty to warn is a question of law. The duty exists, as the Sollami court pointed out, when an unequal knowledge is apparent and when the defendant who possesses superior knowledge about the hazards and the risks of encountering those hazards knows or should know that harm might occur if no warning is given.

Today, although there is a greater awareness of the hazards of the sport and manufacturers generally provide written warnings and guidelines accompanying a sale, it is the private backyard owner of a trampoline who may find it increasingly difficult to escape liability for injuries that occur on private property, particularly when the horseplay is being conducted in an unsupervised or inadequately supervised setting, as occurred in Sollami.

But, still, the courts are divided on the standard even though the test is an objective one that focuses not on the individual plaintiff but on the awareness of an ordinary person using the product. Take the case of Ford ex el. Ford v. Naim, 307 Ill.App.3d 296, 717 N.E.2d 525 (4th Dist. 1999).

There, unlike Sollami, the court concluded that a reasonable 14-year-old would appreciate the open and obvious danger of jumping on a recreational trampoline and no duty to warn existed on the part of either the trampoline owners or manufacturers.

The Sollami court distinguished the Ford case in that the trampoline should only be used under the strict supervision of qualified instructors. It also directed that "the user obtain instruction on basic, fundamental skills of jumping and landing in order to use the product safely. These sections of the manual were not mentioned in the Ford case, and thus, we conclude that they were either not provided to or not considered by our colleagues in the fourth district." Id., at 619 [Italics in original.]

Yet, the Fourth District distinguished the hazards of the popular mini-trampoline, a rebound device set on an incline designed to provide a gymnast with greater height in performing somersaults and other gymnastic feats. The court held that the special risks of this equipment even for a 17-year-old gymnast were not open and obvious when he attempted a front flip and fell on his head and shoulder, breaking his neck.

Thus, the court found that a park district and the coach of a tumbling team were absolutely immune from liability for alleged improper or inadequate supervision but had a legal duty to warn of or protect against a user’s risks. Johnson v. Decatur Park District, 301 Ill.App.3d 798, 704 N.E.2d 416 (4th Dist. 1998).

The 10th Circuit took this idea even a step further and held in a case involving this relatively new equipment that is often used as a mode of exercise. In Richter v. Limax International, Inc., 45 F.3d 1464 (10th Cir. 1995), the court of appeals reversed the district court and held that as a matter of law the defendant manufacturer had an affirmative duty to test the impact its equipment would have on potential users.

There, the plaintiff alleged the equipment came with no instructions and a limited warning. She began jogging on it for up to 60 minutes per day and started immediately feeling pain but attributed it to her new exercise regime.

After about a month, the pain in her ankles became disabling when she tried to walk. A medical doctor diagnosed stress fractures that forced her to quit her job. The court found that it was imperative that the manufacturer conduct stress tests prior to the sale of the equipment and that the plaintiff presented evidence demonstrating a reasonable basis upon which to find the defendant liable for failing to adequately warn of the foreseeable dangers of use of a mini-trampoline.

Although the trampoline has been around for decades, it is clear that the area of law, particularly involving the duty to warn, is just evolving.