Date: 11-10-2004

Case Style: Leesa Bunch, a minor, etc. v. Hoffinger Industries, Inc., et al.

Case Number: C040177

Judge: Unknown

Court: California Court of Appeals for the Third Appellate District on appeal from the Glenn County Superior Court

Plaintiff's Attorney:

Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, C. Athena Roussos; Charter Miller Davis and Whitney Davis for Plaintiff and Respondent.

Defendant's Attorney:

Finley and Buckley, Timothy J. Buckley III, Chad D. Graddy, Dennis A. Brown III; Foley & Lardner and Robert J. Wenbourne for Defendants, Cross-Defendants and Appellants.

James A. Henderson, Jr., and Aaron D. Twerksi for amicus curiae Aqua Magazine on behalf of Defendants, Cross-Defendants and Appellants.

Description:

One hot summer day, 11-year-old Leesa Bunch (Bunch) dove into a four-foot deep, aboveground swimming pool and changed her life forever. Rendered quadriplegic by the dive, Bunch eventually filed suit against, among others, defendants Hoffinger Industries, Inc., doing business as Doughboy Recreational Company, and Golden West Marketing, Inc. (collectively Hoffinger). Hoffinger manufactured the replacement pool liner used in the pool. Bunch also sued crosscomplainant McMasker Enterprises, Inc. (McMasker), the seller of the liner. McMasker eventually settled with Bunch.

Bunch's complaint alleged negligence, products liability, failure to warn, and breach of warranty. A jury awarded Bunch over $12 million and awarded McMasker $1 million on its indemnity claim. Hoffinger appeals, contending: (1) it owed no duty to warn of possible injury from the obvious danger of diving into a shallow aboveground pool, (2) the court misapplied the doctrine of primary assumption of risk, (3) Hoffinger's acts or omissions were not the proximate cause of Bunch's injury,

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(4) the court erred in admitting evidence of prior accidents involving Hoffinger pools, (5) the trial court erred in failing to bifurcate the liability and damage phases of the trial, and (6) the court violated Hoffinger's due process rights in refusing to admit evidence of McMasker's default judgment and refusing to enforce Bunch's covenant not to sue. Finding no error, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Preliminaries

Bunch suffered her catastrophic injuries in August 1993. She filed suit against various corporate entities, including McMasker, alleging negligence, strict products liability manufacturing defect, strict products liability design defect, failure to warn, and breach of warranty, and requesting punitive damages. McMasker failed to respond, and in August 1998 the court granted Bunch's request for a default judgment against McMasker in the amount of $20,001,157.

After Bunch informed McMasker's insurer of the default judgment, McMasker brought a motion for relief from the default judgment. Subsequently, McMasker abandoned the motion and pursued settlement negotiations with Bunch.

McMasker tendered both the defense and indemnity of the action to Hoffinger; Hoffinger declined to participate. Hoffinger also opted out of McMasker's settlement negotiations with Bunch. McMasker filed a cross-complaint for indemnification against Hoffinger.

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During settlement negotiations, Bunch agreed to set aside the McMasker default judgment and settle her claim against the company for $1 million, the limit of McMasker's insurance policy. Bunch also agreed not to sue Hoffinger, the target of McMasker's indemnity cross-complaint.

After settling with McMasker, Bunch requested that McMasker waive her agreement not to sue Hoffinger. McMasker agreed to waive the agreement not to sue. Accordingly, Bunch amended her complaint to substitute Hoffinger as Doe defendants.

Motion for Summary Judgment

Hoffinger filed a motion for summary judgment. Prior to trial, the court heard oral argument on the motion. The court found the central issue to be the adequacy of the warning provided by Hoffinger with its pool liners. The court queried whether the danger of diving into an aboveground swimming pool was obvious to an 11-year-old child. The court further questioned whether Hoffinger discharged its duty to warn by placing warning labels in the pool liner package with instructions for the consumer to affix them to the sides of the installed liner. Finding these issues raised questions of fact, the court denied Hoffinger's summary judgment motion.

Pretrial Motions

Hoffinger also filed a motion to dismiss Bunch's complaint, arguing the complaint was filed in direct opposition to the terms of her settlement with McMasker. The court denied the motion.

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Hoffinger moved to bifurcate the trial, separating the liability and damage determinations. The court denied the motion, noting multiple witnesses would be testifying regarding both aspects of the trial, resulting in the same evidence being presented twice.

The Trial

A 17-day jury trial followed. The jury heard testimony about Bunch's fateful dive and Hoffinger's warning labels, and heard expert testimony regarding the efficacy of warning labels on the minds of children.

The Accident

Bunch's brother Erick rescued his sister from the bottom of the pool following her dive. According to Erick, who was nine years old at the time, he saw no warning labels on the pool. Loretta Frank, the owner of the pool, had told them not to dive on a previous visit. She did not tell them why they should not dive and did not repeat the warning the day of the accident. Another child, Tyler Breeding, dove into the pool. Breeding performed a shallow dive, diving straight out into the water. He dove from the bench located on the deck adjacent to the pool.

Bunch also dove at least once before the dive that led to the accident. Erick did not see Bunch's final dive, but he heard the splash and saw her curled up and floating in the middle of the pool. Bunch whispered she could not breathe, and Erick dragged her to the edge of the pool.

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Loretta Frank testified about the pool and the accident.

Sometime between 1988 and 1990, she and her husband, Joe Frank, received a used frame for an aboveground swimming pool as a gift. The pool frame measured 33 feet long, 18 feet wide, and four feet high. Since the vinyl pool liner had rotted, the Franks purchased a new one from McMasker, a swimming pool supplier doing business as Waterworks. Hoffinger manufactured the liner.

Mr. Frank erected the frame and installed the replacement liner. He recessed the pool about two feet into the ground.

Mr. Frank built an adjacent deck at the level of the top of the pool frame and built wooden benches on the deck next to the pool.

Mrs. Frank testified the Hoffinger liner came with labels cautioning against diving. She described the label as threequarters of an inch wide and five and one-quarter inches long, stating: "‘[C]aution [--] no diving [--] shallow water.'" She testified the labels were "most likely" on the pool the day of the accident.

At the Franks' pool the rule was "no diving." Although Mrs. Frank testified she never saw anyone jump into their pool, she acknowledged children probably jumped from the deck into the pool when her back was turned.

The day of the accident, Mrs. Frank testified she took Bunch and Erick by the hand and led them to the side of the pool. She told them: "This is a shallow pool, it is only four feet deep, no diving." Mrs. Frank did not mention the

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possibility of injury, nor did she warn Bunch she risked neck injury if she dove into the pool.

Just prior to the accident, the children were not in the pool. Mrs. Frank went into the house prior to Bunch's dive. Mr. Frank testified he found his check register containing a notation for a check for the purchase of the replacement liner dated April 1988. When he purchased the liner from Waterworks, the box the liner came in had been previously opened. He was sure he got what he paid for, and testified the box showed no signs of being tampered with and the contents appeared to be intact.

Mr. Frank could not recall if the package contained any warning labels. Mr. Frank was certain he never saw a warning that cautioned against diving and warned about neck injuries. Had Hoffinger provided such a warning, he would have put it on the liner. If the warnings cautioned against putting a deck near the pool, Mr. Frank would not have placed the bench next to the pool.

Tyler Breeding, the other swimmer the day of the accident, also testified. According to Breeding, the Franks had a rule at their pool of no diving or jumping. Mrs. Frank told them "‘no diving.'" Breeding testified the Franks' pool had 15 to 20 warning labels circling the top of the pool. Breeding later retracted the statement concerning the labels. Breeding stated he did not dive the day of the accident.

Bunch dove twice. After the first dive, Mrs. Frank told Bunch

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not to dive or she could not continue to swim. Then Mrs. Frank walked into the house.

Out of the corner of his eye, while he was on the bench tying his shoe, Breeding saw Bunch dive again. Bunch made a sharp vertical dive; she did not make a shallow dive. Bunch testified about the day of the accident. She stated she vaguely remembered stickers on the pool liner that day. The stickers said: "‘No diving in shallow water'" and showed a man making a "pike," or vertical, dive with the word "‘caution.'" Bunch believed the label warned her "[n]ot to dive like that." Bunch had no memory of Mrs. Frank standing by the side of the pool, talking about the pool's depth and warning both her and Erick not to dive into the pool. Bunch did remember Mrs. Frank telling her not to dive on occasion. The day of the accident, Mrs. Frank said "be careful and don't dive." Despite the warning, both Bunch and Breeding made shallow dives into the pool. The Franks allowed children to jump into the pool. According to Bunch: "Well, the sign [by the pool] said not to jump but she let us, so I figured she was just being a mom, and mom's [sic] say no all the time, so."

Bunch had watched the summer Olympics the previous year and tried to imitate the shallow racing dives of the Olympic swimmers. At other pools she practiced the shallow racing dive, diving far out and trying to go less than a foot into the water. Because she believed she dove well, Bunch never worried about diving too deeply.

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On the day of the accident, after Mrs. Frank went into the house, Breeding and Bunch dove a few times from the deck into the pool. Bunch made flat racing dives.

Bunch then dove from the bench, trying to make a flat racing dive.1 Bunch remembers little of the aftermath of the dive. After she hit the water her neck "felt like it hit my funny bone," and she had trouble breathing.2 Bunch testified she was completely unaware of the danger of diving into a shallow pool. A warning pointing out the risk of severe injury would have prevented her from making the dive.

The pool liner itself was never admitted into evidence. As noted, Erick Bunch, Mrs. Frank, Mr. Frank, Tyler Breeding, and Bunch all provided conflicting testimony as to the existence and substance of any warning labels visible the day of the accident.

Bunch's Experts

Bunch presented testimony by Ross Buck, Ph.D., a professor of communication sciences and psychology at the University of Connecticut. According to Buck, effective warnings "act as brakes to stop dangerous behaviors." Buck outlined the

1 Hoffinger claims: "[Bunch] dragged a bench -- not manufactured by [Hoffinger] -- to the edge of the pool deck (also not manufactured by [Hoffinger]), climbed up and hurled herself head first with her hands by her sides into the shallow, above-ground pool." The trial transcript does not support Hoffinger's characterization of events.

2 The accident dislocated Bunch's cervical spine, crushing her spinal cord. She was instantly completely paralyzed below the neck. She breathes only with the aid of a diaphragm pacemaker and a ventilator.

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components of an effective persuasive warning: it must command attention, galvanize memory, evoke emotion, contain an explicit instruction, and show a consequence. This kind of warning is especially important for children under the age of 12. Buck also discussed pool culture and the behavior of children vis-à-vis swimming pools. According to Buck, the ethos of backyard swimming pools includes letting kids have fun. The pool and the surrounding atmosphere encourage rambunctious, rowdy behavior by children.

In addition, children are motivated to try new things. Eleven year olds think in concrete terms. These two factors, the urge to experiment and concrete thought processes, render the dangers of diving into a shallow pool not readily apparent to an 11-year-old child. Buck testified a young diver standing at the edge of an aboveground pool cannot necessarily judge the depth of the pool.

Buck discussed the standards for warning labels developed by the American National Standards Institute (ANSI). ANSI provides guidelines to manufacturers; these guidelines are not mandatory.

Buck also noted that from 1963 through 1971 various aboveground pool manufacturers ran ads showing children diving from both pool side and diving boards into aboveground pools. However, in 1977 Sears began putting labels on its pools stating: "‘[D]anger [--] no diving [--] shallow water.'"

The label was accompanied by a picture of a diver with a slash through it and the words: "‘Diving can cause paralysis.'"

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In 1983 Hoffinger began to use a warning label that said, in effect, "you could break your neck." Buck also studied the claims history of Coleco, the swimming pool company Hoffinger bought in 1985. For the 10 years prior to instituting the paralysis warning, Coleco's claims records revealed between two and 10 claims per year for spinal cord injuries resulting from diving into Coleco pools. For the three years after Coleco employed the paralysis warning labels up until Hoffinger bought Coleco, there were no claims for spinal cord injuries.

In Buck's opinion, the labels that accompanied pool liners of the same vintage as the Franks' pool liner were neither adequate nor effective. The labels did not meet the minimum requirements for size under ANSI standards; the letters were too small. Most importantly, the labels failed to spell out any consequences of diving into shallow water.

Buck summarized his opinion of Bunch's accident: ". . . I conclude that Leesa's accident was caused by the pool. How can an inanimate object cause something? This is a pool, something that people have to act on in order for it to have any effect at all. [] But all the gas pedals were there; the expectations encouraging diving and discouraging strict rules; the playful, rowdy behavior pulled out of the kids by the pool environment; the dangerous shallowness of the pool not readily apparent to the diver. The effective brakes were not there; the eyecatching memorable, emotionally evocative, explicit warnings . . . that effectively communicate consequences."

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Ralph Johnson, a professor and Ph.D. in sports administration, testified concerning the efficacy of warnings on children. Johnson described an effective warning as consisting of three parts: (1) an "attention getter," for example, "danger"; (2) a rule, such as "no diving"; and (3) the most important component, a consequence, such as "serious or fatal injury."

According to Johnson, it was both possible and feasible to put warnings on the liners at the factory instead of trusting the consumer to apply them after the liner was installed. Johnson described several methods of applying the warnings. In the alternative, Johnson stated manufacturers could take steps to insure consumers applied the warnings after set-up.

Johnson testified that many people who dive into aboveground pools are unable to gauge the depth of the pool.

Johnson stated the risk of severe, permanent spinal injury was not readily apparent to an 11 year old. His review of the facts of the accident led Johnson to believe Bunch was attempting a shallow racing dive and had no idea of the possible consequences of the dive.

Johnson stated diving causes the majority of quadriplegic accidents. However, the pool industry has been reluctant to warn users of the risk and has been slow to employ warning labels. Current pool industry standards require manufacturers, not consumers, to prominently display on their pools tamperproof warnings against diving.

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Cargile's Testimony Danny Cargile, Hoffinger's corporate customer relations and quality control manager, testified extensively regarding pool liners and warning labels. Cargile had worked for Hoffinger for 30 years. Cargile stated he was the most knowledgeable person at Hoffinger about warnings design, prior accidents, and the liner involved in this case.

During Bunch's case-in-chief, Cargile testified it was not feasible to put permanent warnings on the pool liner before it left the factory. Cargile admitted he saw no warning decals on the Franks' liner and acknowledged the system of delegating the attachment of the decals to the consumer "failed."

Cargile stated diving was a misuse of the pool but also acknowledged children diving presented a foreseeable misuse. Cargile admitted children are the ordinary users of Hoffinger's pools. Cargile also acknowledged Hoffinger knew children occasionally misused its pools by diving and that a liner is unsafe without warnings that children can readily understand.

He admitted warnings work: they prevent crippling injuries resulting from diving into aboveground pools. Cargile testified that Hoffinger's practice of delegating the duty to affix the warning to the consumer was proper. He stated an informal survey of pool owners revealed 95 percent installed the warning decals. However, Cargile could provide no records of the study or of any research by Hoffinger on warnings. Hoffinger routinely destroyed all such records.

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Cargile testified it was not feasible to print warnings on pool liners. However, Cargile later admitted Hoffinger manufactures pool liners with preprinted designs for its Lomart pool division. Cargile stated Hoffinger conducted research and development projects but could not find a feasible way to print warnings on the liners. Cargile conceded Hoffinger never consulted any expert or anyone else outside the company to examine the feasibility of preprinted liners.

Cargile presented several reasons why preprinted warnings would not work. He stated the different models and styles of frames prevented positioning of the warnings so they could be read. However, Johnson testified this problem could be overcome by printing the warning on several repeating bands, visible regardless of how the liner was hung.

Cargile also testified that preprinted warnings would become distorted by the stretching of the liner. Since several companies manufacture the aboveground pool frames, it is impossible to know in advance how much the liner might stretch. However, on cross-examination, Cargile's deposition testimony revealed Hoffinger's replacement liners do not stretch. The Franks' pool liner was a replacement liner that did not stretch. Initially, during discovery, Cargile stated there had been only one prior case of a diver's becoming quadriplegic from diving into a Hoffinger pool. At trial, Cargile estimated there had been 10 such incidents. Documents produced by Hoffinger revealed there had been 47 incidents between 1977 and 1994.

Although Cargile stated he was the Hoffinger employee most

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knowledgeable about prior claims, he was unaware of the Hoffinger document listing 47 quadriplegic claims.

The vintage of the Franks' liner became an issue during Cargile's testimony. In August 1988 Hoffinger began adding a warning in its replacement liner instruction manual against building decks or placing furniture near a pool. Hoffinger did not include such a warning in liners made prior to August 1988. Cargile testified the Franks must have received the deck and furniture warning because the serial number of their liner ended with the letter "O." The "O" denoted a liner manufactured after August 1988, so the Franks must have purchased the liner around April 1989. Cargile could produce no documentation to corroborate his explanation of the Hoffinger serial numbers. However, as stated ante, Mr. Frank located his check register just prior to trial. The check register contained an entry for the check he had written to Waterworks for the liner in April 1988. In light of the date of purchase, it appears the liner instruction manual did not contain the caution against placing decks and furniture next to the pool.

The Verdict and the Aftermath

The court instructed the jury on both design defect and failure to warn products liability theories. The jury returned a verdict in Bunch's favor. The jury answered in the affirmative the question: "Was there a defect in design or a failure to warn defect in the Doughboy Pool product, which includes the liner and the accompanying materials, as to the defendant Hoffinger . . . ?" The jury also found the defect

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caused the injury and that the injury was reasonably foreseeable.

The jury awarded $16,112,306, an amount reduced by Bunch's comparative fault (5 percent) and the comparative fault of other nondefendants (20 percent). The trial court awarded Bunch $12,526,890.70 plus costs and awarded McMasker $1 million plus costs.

Hoffinger moved for a new trial. However, shortly thereafter, Hoffinger filed a notice of bankruptcy with the trial court. The trial court dropped the hearing on the motion for a new trial from the court's calendar. Hoffinger filed a timely notice of appeal.3 * * * * Click the case caption for the entire appellate court decisions.

Outcome: The judgment is affirmed. Bunch and McMasker shall recover costs on appeal.

Plaintiff's Experts: Ross Buck, Ph.D., a professor of communication sciences and psychology at the University of Connecticut

Defendant's Experts: Unknown

Comments: None