In Klen v. Doughboy Recreational, Inc. (Ill.App.Ct. 1994) 643 N.E.2d 1360, a 14 year old attempted a shallow dive from a trampoline into an aboveground pool
Prior to the dive, the plaintiff stood and walked around the perimeter of the pool, knew the water was chest deep, and knew that the sides of the pool were about four feet high. The plaintiff had taken seven years of swimming lessons and had learned to dive in both deep and shallow water. He also had experience in swimming in similar aboveground pools. The plaintiff stated he understood it was possible to dive into shallow water without injury by executing a flat, racing-type dive that others had performed the night of the accident. He believed the dive he was attempting was safe. ( Id. at pp. 1362-1363.)
Rendered quadriplegic by the accident, the plaintiff filed suit against the pool manufacturer, alleging a failure to warn of the risk of permanent neurological injury presented by the intended and foreseeable use of the pool. ( Klen, supra, 643 N.E.2d at p. 1362.) The trial court denied summary judgment to the defendant pool manufacturer, finding a question of fact existed as to whether the risk of quadriplegia was open and obvious to a 14 year old and " 'whether or not a 14 year old is chargeable with knowledge of circumstances that people who are adults who have experience would be chargeable.' " ( Id. at p. 1364.)
The pool manufacturer appealed, arguing the trial court erred in applying a subjective standard to the duty to warn and urging the use of an adult standard of reasonableness. ( Klen, supra, 643 N.E.2d at pp. 1364-1365.) The appellate court affirmed the denial of summary judgment.
The Appellate Court of Illinois began by noting: "A duty to warn of an unreasonably dangerous condition extends to the use of the product by an ordinary person with the ordinary knowledge common to the community regarding the characteristics of the product. The duty to warn is determined using an objective standard, i.e., the awareness of an ordinary person , and is normally a question of law , although when the record is in dispute, it becomes a question of fact . The duty to warn analysis, which is an objective one, should focus on the typical user's perception and knowledge. The plaintiff's subjective knowledge is immaterial to the antecedent determination of an open and obvious danger." ( Klen, supra, 643 N.E.2d at p. 1363.)
The court disagreed with the defendant's assertion that the trial court had shifted from an objective standard to a subjective standard in denying summary judgment. Rather, "the standard remained an objective one, but the reasonable person standard was that of a reasonable child of fourteen years of age rather than a reasonable adult." ( Klen, supra, 643 N.E.2d at p. 1365.)
As to the issue of whether the open and obvious nature of the danger should be judged by the standard of a reasonable adult or child, the court noted the age of the plaintiff was relevant in products liability cases and premises liability cases. ( Klen, supra, 643 N.E.2d at p. 1365.) The court considered various cases that recognized a distinction must be made between an adult's ability to recognize and appreciate certain risks and a child's corresponding ability.
The court concluded: "Certain conditions considered harmless to adults may not be so to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved. The conclusive finding that children, due to their immaturity might be incapable of appreciating certain risks open and obvious to adults, is no less conclusive when children are exposed to dangerous risks from products rather than from conditions on the land. Since it would be illogical to expect the danger created by a condition of a product to be any more obvious than a danger created by a condition on the land, where the use of a product by children is reasonably foreseeable, as is the case here, the determination of what is open and obvious to children should be based upon what is true for children as opposed to what is true for adults. Thus, in the instant case the determination of whether the risk of paraplegia was open and obvious must be judged by the reasonable or objective class of fourteen-year-olds ... ." ( Klen, supra, 643 N.E.2d at p. 1366.)
The Klen court also reviewed cases involving children making shallow dives into a public lake. In Schellenberg v. Winnetka Park District (Ill.App. 1992) 596 N.E.2d 93 (Schellenberg), the defendant park district argued the danger of shallow dives was obvious and understood by a 15-year-old diver. The Schellenberg court disagreed, noting: " 'The danger of diving head first into shallow water may seem at first glance to be a matter of common knowledge and understanding for which expert opinion is not needed. However, closer examination of the evidence indicates that the nature and extent of the danger of surface or horizontal diving by teenagers in all probability is not commonly understood, even by many adults of considerable experience.' " ( Id. at p. 96.)
Ultimately, the court concluded, based upon the evidence and pleadings before it, "it is by no means evident that, as a matter of law, the dangers of 'shallow' or surface diving into a shallow pool are open and obvious to minors. ... Where there is doubt, the obviousness of the danger is for the jury to determine. ... ... It would further seem that having made the determination that the risk of executing 'shallow' or surface dives is not open and obvious to minors as a matter of law, the jury could then be asked to redetermine this question as an issue of fact. In addition, the defense is not precluded from raising the subjective awareness of the Plaintiff as a question of fact with respect to assumption of risk and proximate cause." ( Klen, supra, 643 N.E.2d at pp. 1369-1370.)