1. Why is the injured party’s age one of the most important factors in considering a failure-to-warn claim?   

2. Do you agree with Hoffinger’s contention that the injured party assumed the risk? Why or why not?

3. What other products can you think of that may require a more effective warning given the age of the average user? Should bicycles, skateboards, and snow boards fall into the same category? Why or why not? 

Bunch, an 11-year-old girl, dove into an above-ground pool that was only four feet deep. As a result, Bunch suffered a severe injury to her spine that rendered her quadriplegic. Bunch filed suit against Hoffinger as the manufacturer of the pool alleging, among other theories, that Hoffinger was liable for failing to provide adequate warnings which could have prevented the tragedy. Hoffinger argued that it did not owe any duty to warn consum-ers because the danger was “open and obvious.” At trial, Bunch testified that she saw only a sticker that depicted a man doing a pike dive (knees straight and body bent at the waist) with the word “caution” and she thought that the caution referred only to pike diving. Bunch also called expert witnesses to testify that warnings to children between the ages of 7 and 12 must be concrete and spell out any consequences of diving into shallow water. Another of Bunch’s experts testified that the risk of spinal paraplegia was not readily apparent to an 11-year-old and that it was difficult for someone in that age group to judge the depth of a pool. Hoffinger countered that (1) warning labels on pools were not feasible before it left the factory because the label would become distorted by the stretching of the liner, and (2) Bunch had assumed the risk because she had swum in that same pool prior to that occasion and ignored an adult present at the pool who warned against diving. The jury returned a verdict in Bunch’s favor and awarded her $16,112,306. Hoffinger appealed.

The California Court of Appeals affirmed the judgment and verdict in favor of Bunch. The court rejected Hoffinger’s contention that it owed no duty to warn Bunch of possible head injury from the open and obvious danger of diving headfirst into a shallow above-ground pool. Although the court acknowledged that some previous cases have held that no recovery was available for those who made a shallow dive into an above-ground pool because the danger was obvious, they distinguished those cases from the facts in this case because Bunch was only 11 years old. Age was one of the important factors in determining an awareness of open or obvious danger. It also rejected Hoffinger’s assumption of the risk argument and ruled that any assumed risk by an injured party does not insulate equipment suppliers from liability for injury from providing defective equipment.

With respect to the failure-to-warn issue, the court held that the jury’s conclusions were sound and in accord with expert testimony that pool industry standards require manufacturers to prominently display permanent warnings on their pools and that Hoffinger’s sticker was below industry standards. Thus, the court concluded that the record supported the jury’s determination that Hoffinger’s warnings were inadequate. 

“Given the testimony of Bunch and her two expert witnesses, we find sufficient evidence to support the conclusion that the lack of adequate warning label was neither a negligible nor theoretical contribution to Bunch’s injury. The evidence presented at trial revealed that the lack for persuasive label outlining the consequences of diving into the pool was a substantial factor in causing the injury. As the [California] Supreme Court points out ‘a very minor force that does cause harm is a substantial factor.’ Here, at the very least, the lack of an effective warning was a minor force in bringing about the fateful dive.”