On a hot summer day, 11-year-old Leesa Bunch dove headfirst into a 4-foot-deep, aboveground swimming pool. Rendered quadriplegic by her dive, she eventually sued the Doughboy pool manufacturer for negligence, products liability, failure to warn, and breach of warranty.

Leesa must now use a diaphragm pacemaker and a ventilator to breathe.

Purchase Bob Bruss reports online.

The pool manufacturer defendant responded that Leesa and the other children playing around the pool had been warned by the homeowner not to dive into the pool. At the moment of the injury, the homeowner had left the pool area and was inside the house.

By disobeying safety instructions and diving anyway, the manufacturer argued, Leesa assumed the risk of diving headfirst into the shallow pool.

At the trial, an expert witness testified there were no warning labels on the pool nor were there any signs that could have prevented Leesa’s injury. He presented evidence that when pool warnings against diving are obvious, even for children Leesa’s age, pool injuries diminish dramatically.

If you were the judge would you rule 11-year-old Leesa assumed the risk of diving into a shallow swimming pool and the manufacturer has no liability?

The judge said no!

Although the assumption-of-risk defense is available when teenage and adult sports participants are injured during sporting activities, the judge began, this liability defense is not realistic for an injured 11-year-old child to understand.

The expert testimony showed that when pool manufacturers provide warning labels showing the dangers of diving into a shallow pool, injuries drop dramatically, he continued.

If the pool manufacturer provided warning labels along the side of the aboveground pool, the judge explained, this type of injury might have been prevented.

Because the pool manufacturer made little or no attempt to provide warnings of the dangers of diving into a shallow pool, the court will confirm the jury award to Leesa of $12 million, the judge ruled.

Based on the 2004 California Court of Appeal decision in Bunch v. Hoffinger Industries Inc., 20 Cal.Rptr.3d 780.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

***

What’s your opinion? Send your Letter to the Editor to opinion@inman.com.

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