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November 24, 1999


The opinion of the court was delivered by: Lisa Margaret Smith, United States Magistrate Judge.


Plaintiff Joseph C. Anderson ("plaintiff" or "plaintiff Anderson") brings this action against defendants Hedstrom Corporation ("Hedstrom") and Bradlees Stores, Inc. ("Bradlees"), to recover for personal injuries he suffered when he fell from a trampoline that was manufactured by Hedstrom and sold by Bradlees. Plaintiff alleges causes of action against both defendants sounding in negligence, strict liability, and breach of implied warranties. Pursuant to the provisions of 28 U.S.C. § 636(c), the parties have consented to conduct all proceedings in this case before me.


In accordance with Federal Rule of Civil Procedure 56(e), "[a] motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgement for the moving party as a matter of law." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 320-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard for summary judgment "provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505). The moving party may rely on the evidence in the record to point out the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548.

The responding party must set forth facts showing that there is a genuine issue for trial. FED.R.CIV.P. 56(e). A summary judgment motion cannot be defeated by speculation or conjecture. See Pollis v. New Sch. for Soc. Research, 829 F. Supp. 584, 586 (S.D.N.Y. 1993) (quoting Western World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir. 1990)). Rather, the responding party must show the existence of a disputed material fact in light of the substantive law. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.

"In evaluating whether a genuine issue of material fact exists, `[t]he evidence of the non-movant is to be believed.'" Sim v. New York Mailers' Union Number 6, 166 F.3d 465, 469 (2d Cir. 1999) (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505), and "a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party." McNeil, 831 F. Supp. at 1082 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam) and Donahue v. Windsor Locks Bd. of Fire Commr's., 834 F.2d 54, 57 (2d Cir. 1987)). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992) (quoting H.L. Hayden Co. of New York, Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1011 (2d Cir. 1989)).


On or about May 20, 1998, plaintiff's father, Joseph E. Anderson (referred to herein as "Anderson, Sr.," to distinguish father from son), bought from the Bradlees store in Ramsey, New Jersey, a circular trampoline, thirteen feet in diameter, which was manufactured by Hedstrom. (Complaint at 2; Deposition of Joseph E. Anderson ("Anderson, Sr.Dep."), attached to Affirmation of David L. Lewittes ("Lewittes Aff."), Ex. 2 at 5-15.) Anderson, Sr. brought the trampoline to his home in Rockland County, New York, (Complaint at 2, ¶ 6.) After reading the manual that came with the trampoline, Anderson, Sr. assembled the trampoline according to the instructions contained therein. (Anderson, Sr. Dep. at 17.) At one point plaintiff, who was twenty-four years old and who lived in his father's house, watched part of the assembly process briefly before leaving to go to work. (Id. at 32; Plaintiff's Dep. at 24). Plaintiff remembers putting some bolts together (Plaintiff's Dep. at 23), though his father only remembers plaintiff watching the process for a while. (Anderson, Sr. Dep. at 32.) Anderson, Sr. then let his three other children, ages 5, 8, and 14, and two or three other young neighborhood children use the trampoline. (Id. at 19-20, 23.) Before the first child got on the trampoline, Anderson, Sr. cautioned her not to do any somersaults (id. at 21), because "that was one of the things in the cautions that [it] said not to do." (Id. at 22.) The children stayed on the trampoline for fifteen or twenty minutes before getting off (id. at 23); during that time Anderson, Sr. stayed right next to the trampoline. (Id. at 27.) Then Anderson, Sr. told the children to get off the trampoline so he could go inside. (Id. at 28-29.) He told the children to stay off the trampoline while he was gone, and told them that no one was allowed to use it unless he or his wife was there. (Id. at 29.)

Shortly thereafter plaintiff returned home, and talked his father into going out with him to jump on the trampoline. (Id. at 34.) Plaintiff had never been on a trampoline before, with the possible exception of one time, which may or may not have been a dream, when he was less than five years old. (Deposition of [Plaintiff] Joseph C. Anderson ("Plaintiff's Dep."), attached to Lewittes Aff. Ex. 1 at 14; Affidavit of [Plaintiff] Joseph C. Anderson ("Plaintiff's Aff.") at 1.) Plaintiff had a vague memory that his parents had previously refused to get a trampoline for his sister because they thought it was dangerous (Plaintiff's Dep. at 19), but plaintiff's "notion about the dangers of the trampoline," according to his affidavit submitted with this motion, "was that they could be dangerous if you did somersaults or flips." (Plaintiff's Aff. at 4.) Plaintiff testified in his affidavit that when he decided to jump on the trampoline, he thought of it as a toy to be used by his younger brother and sisters. (Plaintiff's Aff. at 2.)

Anderson, Sr. jumped on the trampoline for about a minute and then got off. (Id. at 34-37.) After that, Anderson, Sr. recalls, plaintiff got on the trampoline, bounced a few times, and then got off by sitting down on the edge and reaching his feet to the ground. (Id. at 37-39). Plaintiff's father remembers staying next to the trampoline while plaintiff was on it. (Id. at 40.) There is some uncertainty in Anderson, Sr.'s mind as to whether plaintiff's first use of the trampoline actually occurred immediately after Anderson, Sr.'s own use of the trampoline — and therefore before neighbor Katherine Flagg ("Flagg") came over and jumped on it — or just after Flagg's first session on the trampoline; but Anderson, Sr.'s best recollection is that plaintiff used the trampoline before Flagg used it. (See Anderson, Sr. Dep. at 37-39). An acquaintance named Kevin Barrett, who came to the Anderson residence with Flagg, does recall seeing plaintiff on the trampoline as they approached the house (Deposition of Kevin Barrett ("Barrett Dep."), attached to Lewittes Aff., Ex. 4 at 11), but Barrett testified in his deposition that he believes that, as a result of a past bout of encephalitis, he may have a memory condition that affects his ability to remember fine detail. (Id. at 6-8.) Flagg did not see plaintiff jump on the trampoline before she got on. (Deposition of Katherine Flagg ("Flagg Dep"), attached to Lewittes, Aff., Ex. 3 at 9, 11, 15). As for plaintiff,*fn1 he only remembers jumping on the trampoline once that evening, and does not remember seeing either his father or Flagg jumping on it. (Plaintiff Aff. at 2.)*fn2

In any event, while plaintiff and his father were at the trampoline, Katherine Flagg, a woman in her thirties or forties, stopped by to talk. Flagg used the trampoline for a short time (between two and five minutes) and then got off, and plaintiff got on. (Anderson, Sr. Dep. at 37-38, 41-42; Flagg Dep. at 16-17.)

Plaintiff states in his affidavit that "when I got on this trampoline it looked big to me, and I did not think it would be dangerous to jump other than in the center of the trampoline. I do remember having trouble staying in the center and for that reason I was not jumping hard or high." (Plaintiff's Aff. at 2.) He did not "notice anything in the way of a label or words that appeared on the surface of the trampoline," and said that there was no writing or labeling there "that really jumped out at me, no." (Plaintiff's Dep. at 25.) Flagg also testified during her deposition that she did not recall seeing any label or writing or language on the trampoline itself (Flagg Dep. at 16),*fn3 although Anderson, Sr., who assembled the trampoline, remembered seeing a label on either end of the trampoline's jumping surface. (Anderson, Sr. Dep. at 27-28.) He recalled that the label said "Caution." (Id.) In their submissions to this Court, defendants contend that on the "bed" or jumping surface of the trampoline were two identical labels, one directly across from the other, saying,











(See Defendants' Statement of Undisputed Material Facts, annexed to Lewittes Aff., at 5; Affidavit of Patrick Welsh ("Welsh Aff."), annexed to Lewittes Aff., at 2-3, ¶ 6, and Ex. C thereto (black and white copies of labels): Reply Affirmation of David I, Lewittes ("Lewittes Reply Aff.") at I, and Ex. A thereto ("original," colored version of same labels — collectively. "Def. Label Submissions") (boldface in original label)). The version of this label submitted to the court as the "original," in the Lewittes Reply Affidavit at Ex. A, measures approximately one and three-quarters inches high and eight inches wide. Plaintiff apparently does not dispute that this is the label that was on the trampoline bed.*fn4

Plaintiff bounced for a total of between three and ten minutes after Flagg's arrival on the scene. (Anderson, Sr. Dep. at 45 (ten minutes total time spent on trampoline after Flagg arrival); Flagg Dep. at 25-27 (not more than three to four minutes total time for two jumping sessions)). In addition to bouncing on his feet, plaintiff also bounced down into a sitting position and up again onto his feet, as he had seen Flagg do, and as she was now instructing him to do. (Flagg Dep. at 22; see also Plaintiff's Aff. at 3-4 ("The only thing I did on this trampoline was jump up and down and I remember sitting down and bouncing up."))*fn5 During this period, Anderson, Sr., Flagg, and Kevin Barrett were standing around the trampoline. (Anderson, Sr. Dep. at 45; Flagg Dep. at 21.)

After plaintiff had been jumping for a couple of minutes, Flagg saw him "go off center of the trampoline and then I saw him being propelled off." (Flagg Dep. at 25, 26.) At that time, Flagg remembers, "there was a car parked on the side of the road and [plaintiff] sort of used that to stop his forward motion" by putting his hands out, taking a few steps, slowing down and stopping with his hands against the car. (Id. at 28-30.) Plaintiff has no memory of this event (Plaintiff's Aff. at 2.), and Anderson, Sr. makes no reference to it in recounting the events of that day in his deposition.*fn6 According to Flagg, plaintiff, who did not appear to be injured, got back on the trampoline (Flagg. Dep. at 29-30), although it is not clear from Flagg's testimony whether that took place immediately after he was propelled off or after Flagg first took another opportunity to bounce for a very short time. (Id. at 30-34.)*fn7

On his return to the trampoline, plaintiff bounced for only "a couple of minutes." (Id. at 33.) In the first one or two jumps, Flagg says that plaintiff may have jumped into a sitting (or knee-down) and then standing position, but then he returned to simple jumping up and down, facing Flagg, without turning his body. (Id. at 33-34.) Asked whether plaintiff was bouncing in "a controlled manner, or in an uncontrolled manner," Barrett, who had watched people on trampolines before, replied that he was bouncing "in a fairly typical manner" (Barrett Dep. at 19), and "generally speaking towards the central [sic]" rather than the sides. (Id. at 22.) At one point, however, according to Flagg, plaintiff "got off center," and "very shortly after he got off center he was basically launched off the trampoline. I would say at the most maybe two or three jumps before once [sic] he was off center that he was propelled off." (Flagg Dep. at 35.) Barrett, in describing the event, reported that once plaintiff got on the trampoline, "he bounced 6, maybe 7 times, and suddenly and unexpectedly launched off the surface of the trampoline on to the ground." (Barrett Dep. at 16.) Flagg remembers seeing plaintiff "being sort of sideways as he was going off the trampoline. . . . I just remember his body being completely off balance." (Flagg Dep. at 39.) In response to questioning about whether plaintiff jumped off the trampoline head first, Flagg replied, "I don't think he jumped head first. I literally think he was launched off it. He definitely did not jump off that trampoline." (Id. at 48.) Similarly Barrett, when asked if plaintiff intentionally jumped off, replied, "No. He appeared to come off the trampoline very unexpectedly." (Barrett, Dep. at 23.) Plaintiff himself said, "it was kind of hard to stay in the middle. . . . I wasn't on it for more than a couple of minutes, and when I went to the side I wasn't able to come back. I went off the side. . . . It wasn't like I was getting closer to the side. I went from the middle to the side and then off." (Plaintiff's Dep. at 36.) Asked whether he was trying to go off, plaintiff replied, "No." (Id.).

Plaintiff landed within a couple of feet of Flagg, Barrett, and Anderson, Sr., "on the . . . side of his body, sort of on his head and his neck." (Flagg Dep. at 37.) After landing, plaintiff's body remained still; he attempted to lift his head, which resulted in "a small movement, after which his head returned to the ground, and he said to his father, words to the effect that I'm unable, I can't feel anything. I can't remember the exact words, but it was clear that he couldn't move." (Barrett Dep. at 25; see also Flagg Dep. at 37.)

Anderson, Sr. did not see plaintiff's fall; he turned around to see plaintiff on the ground. (Anderson, Sr. Dep. at 46.) He said to his son, "Come on, Fred, get off the ground,"*fn8 and plaintiff replied "I can't" (Id. at 47.) An ambulance was called, and plaintiff was taken to a hospital. (Id. at 48 et seq.) It is undisputed that, as a result of the impact of his fall from the trampoline, plaintiff is now a quadriplegic.


Plaintiff brings three causes of action against defendants, based upon strict liability, negligence, and breach of implied warranties.

Under the strict liability cause of action, plaintiff alleges that the trampoline was unreasonably dangerous by reason of both (1) design defects and (2) a failure by defendants to warn of the known dangers that did exist. Specifically, plaintiff claims that the circular-design trampoline sold for family fun is inherently dangerous and unsuitable for recreational use by the general public, and that safer alternatives in the form of an attachable safety cage or a "unitized" trampoline-and-cage design were available (the safety cage was already on the market, and the "unitized" version was already in planning by Hedstrom), but these safety options were neither incorporated into Hedstrom's existing trampoline, nor offered by defendants to buyers for purchase as an option, at the time Anderson, Sr. made his purchase. Plaintiff also claims that the product was defective in that it was unsafe for jumping on any part but the center, yet it contained no center markings to assist the jumper in staying in the safe center zone. In addition, he claims that the shipping carton, supportive documentation, and safety labels provided with the trampoline provided inadequate warnings about known dangers, such as the need to stay in the center while jumping, the extent of protective ground cover required, the risk and seriousness of potential injury, and the need for professional instruction to avoid such injury.

In his negligence cause of action, plaintiff claims negligence based upon (1) the design, manufacture, marketing, advertising and distribution of the trampoline, (2) inadequate warnings, and (3) the omission of a center marking. He claims that the defendants knew or should have known both that the product as designed and marketed was not reasonably safe for its intended use, and that a safer design was available, yet they offered the product for sale without offering the safer options (such as a safety cage or center marking), and without providing sufficient warning of the dangers that did exist or the steps that could or should have been taken to reduce them. These actions and omissions, the plaintiff asserts, violated the defendants' duty of care. In regard to Hedstrom in particular, plaintiff adds particularized allegations and evidence that Hedstrom knew of the risk of serious injuries such as his, of the availability of a safety cage, and of the cage's ability to reduce such injuries. He also charges that Hedstrom knew about the need for safety instruction, center markings, and specific ground coverings to reduce such injuries, yet failed to provide either the appropriate warnings or the necessary markings to prevent or reduce the injuries.

Finally, in his breach of implied warranties claim, plaintiff charges (1) that the defendants knew or should have known that the plaintiff was relying on them to provide a product that was safe and suitable for use in the backyard environment, (2) that the trampoline was not safe for its intended use, and (3) that the product's lack of safety, together with plaintiff's reliance on defendants' implied warranties of fitness and merchantability, proximately caused his injuries.

Defendants move for summary judgment on four grounds. They argue (1) that plaintiff assumed the risk of the injuries he suffered, and therefore cannot state a cause of action against them; (2) that he has failed to present evidence sufficient to establish a failure to warn by the defendants; (3) that he has failed to put forth evidence which would support a prima facie case of a design defect in the trampoline; and (4) that even if plaintiff did arguably present evidence sufficient to establish either a failure to warn or a design defect, neither of those alleged deficiencies proximately caused plaintiff's injuries. They argue that these alleged deficiencies preclude plaintiff's strict liability claims, and that on that basis they also preclude the negligence and breach of implied warranty claims. (See Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Defendants' Mem.") at 6; see also id. at 21 n. 10.)

I. Assumption of the Risk

A federal court sitting in diversity must follow the law directed by the highest court of the state whose law is applicable to the resolution of the dispute. Plummer v. Lederle Laboratories, 819 F.2d 349, 355 (2d Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987). When the highest state court has not ruled directly on the issue presented, a federal court must make its best estimate as to how the state's highest court would rule in the case. Francis v. INA Life Ins. Co. of New York, 809 F.2d 183, 185 (2d Cir. 1987). In making that determination, the federal court is free to consider all the resources the highest court of the state could use. Id. "`A federal court may discern the forum state's law by examining relevant decisions from a forum state's inferior courts, decisions from sister states, federal decisions and the general weight and trend of authority.'" Allstate Ins. Co. v. American Transit Ins. Co., 977 F. Supp. 197, 200 (E.D.N.Y. 1997) (quoting Continental Casualty Company v. Pullman, Comley, Bradley & Reeves, 709 F. Supp. 44, 46 (D.Conn. 1989)), aff'd, 929 F.2d 103 (2d Cir. 1991)).

It is not disputed that New York law governs in this case. Therefore, I will apply the law of New York, following the decisions of the Court of Appeals on those issues that have been considered by the court, and making the best possible estimate of how that court would rule in those instances where direct authority is absent.

  A. Assumption of the Risk as a Defense Against Negligence

Defendants argue that, under New York law, "an average adult assumes the risk of jumping on a trampoline," and that this assumption of the risk negates any duty which might otherwise have been owed to him or her by defendants. (Defendants' Mem. at 10.)

Several New York cases have undertaken an extensive analysis of the doctrine of assumption of the risk in light of New York's comparative negligence statute, N.Y.C.P.L.R. 1411, which provides that assumption of the risk is no longer an absolute defense. In Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490 (4th Dep't 1993), the Appellate Division, Fourth Department, synthesized the state of the law with regard to this doctrine, basing that synthesis primarily on an analysis of decisions expounded or affirmed by the New York Court of Appeals. The court stated,

  Care must be taken to distinguish between two
  distinct doctrines of assumption of risk. The first
  is embraced within the CPLR article 14-A concept of
  "culpable conduct attributable to the claimant" (CPLR
  1411). It is akin to comparative negligence; it does
  not bar recovery, but diminishes recovery in the
  proportion to which it contributed to the injuries
  (CPLR 1411). We are here concerned with another
  category of assumption of risk, sometimes called
  "primary" assumption of risk (see, Turcotte v.
  Fell, 68 N.Y.2d 432, 438, 510 N.Y.S.2d 49,
  502 N.E.2d 964 [1986]). If applicable, the doctrine of
  primary assumption of risk is not a measure of
  plaintiff's comparative fault, but a measure of the
  defendant's duty of care. Primary assumption of risk
  eliminates or reduces the tortfeasor's duty of care
  to the plaintiff and, in the former case, constitutes
  a complete bar to recovery, notwithstanding CPLR
  14-A. Primary assumption of risk may be express or
  implied. The doctrine is frequently applied, or
  sought to be applied, to claims of injury arising out
  of a plaintiff's participation in a sporting or
  entertainment event or activity.

  Lamey, 188 A.D.2d at 162-63, 594 N.Y.S.2d 490
  (additional internal citations omitted). As the Court
  of Appeals has explained (albeit in the context of
  determining the duty of care owed by a professional
  jockey and the proprietor of a racetrack to another
  professional jockey injured in a professional race),
  while the determination of the existence of a duty
  and the concomitant scope of that duty involve a
  consideration not only of the wrongfulness of the
  defendant's action or inaction, they also necessitate
  an examination of plaintiff's reasonable expectations
  of the care owed him [or her] by others. This is
  particularly true in professional sporting
  contests, which by their nature involve an elevated
  degree of danger. If a participant makes an
  informed estimate of the risks involved in the
  activity and willingly undertakes them, then there
  can be no liability if he [or she] is injured as a
  result of those risks. . . . Accordingly, the
  analysis of care owed to plaintiff [in this context]
  must be evaluated by considering the risks plaintiff
  assumed when he elected to participate in the event
  and how those assumed risks qualified defendants'
  duty to him. . . . If the risks of the activity are
  fully comprehended or perfectly obvious, plaintiff
  has consented to them and defendant has performed its

Turcotte, 68 N.Y.2d at 437-39, 510 N.Y.S.2d 49, 502 N.E.2d 964 (emphasis added).*fn9

The applicability of the assumption of the risk doctrine depends on the nature and scope of the participant's awareness and consent. Lamey, 188 A.D.2d at 163, 594 N.Y.S.2d 490. The Court of Appeals has clarified that standard by stating,

  As a general rule, participants properly may be held
  to have consented, by their participation, to those
  injury-causing events which are known, apparent or
  reasonably foreseeable consequences of the
  participation. . . . The question of whether the
  consent was an informed one includes consideration of
  the participant's knowledge and experience in the
  activity generally. Manifestly a professional athlete
  is more aware of the ...

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