Case 9.5: Bunch v. Hoffinger Industries, 20 Cal. Rptr.3d 780 (Ca. App. 2004) (p. 298)

Facts: Bunch, an 11-year-old girl, suffered a severe injury to her spine by jumping into a four-foot-deep above-ground swimming pool. 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 consumers because the danger was open and obvious. There was one warning sticker, and expert witnesses of Bunch testified 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 Bunchs experts testified that it was difficult for someone in the age group to judge the depth of a pool. Hoffinger countered that warning labels on pools were not feasible before it left the factory because they would become distorted by the stretching of the liner, and 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 advised against diving.

Issue: Did Hoffingers failure to warn against diving into an above-ground pool constitute a defect or was the danger open and obvious?

Ruling: The California Court of Appeals affirmed the judgment and verdict in favor of Bunch. The court rejected Hoffingers 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. The expert testimony concluded that the warning used by Hoffman were below industry standards.

Answers to case questions:

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

2. Do you agree with the courts ruling that the 11 year old, injured party did not assume the risk?

True or False:

1. Hoffinger, the manufacturer of the pool, is liable to Bunch for her severe injuries under Restatement of Torts 2d 402A, because it failed to provide an adequate warning addressed appropriately to an 11-year-old child.

2. Assuming an alternate, cost beneficial label design exists, Hoffinger could also be found liable to Bunch for negligent design of the product and for breach of warranty of fitness.

3. Bunchs recovery against Hoffinger should be reduced by her comparative negligence, i.e., that percentage of her injuries which were caused by her own negligence.

4. Bunch is also entitled to recover punitive damages from Hoffinger for its failure to provide an age-appropriate warning on its pools consistent with industry standards.

5. If Bunch were injured diving into a shallow pool owned by a neighbor who invited her to use the pool, the neighbor may be found liable to her for her injuries, because the neighbor failed to warn her about the dangers of diving into shallow pools.