By Georgia D. Koutouzos, J.D.
The parents of a nearly 12-year-old girl failed to support negligent design and strict liability design defect and failure to warn claims against the manufacturer of a skateboard from which the child fell and was injured after attempting to ride on the board down the aisle of a large retail chain store while unsupervised and without wearing the proper protective gear, an Illinois federal court determined. The skateboard’s purported design defect presented an openly and obviously dangerous condition evident to a reasonable adolescent in the girl’s position at the time of the accident and no duty to warn exists where the danger is apparent or open and obvious, the court reasoned (Gutterman v. Target Corp., March 17, 2017, Lee, J.).
An adolescent girl sustained personal injury when she fell off a skateboard she had been attempting to ride down the aisle in a neighborhood Target store. Apparently, the girl had accompanied her parents to the store and had asked them if she could go off by herself to a different section of the store while they were shopping. She then took the skateboard off the shelf and rode it down an aisle while wearing flip-flops instead of any protective gear. The parents sued both Target and the skateboard’s manufacturer, Bravo Sports, asserting causes of action for negligence and strict products liability against the latter. Both defendants moved for summary judgment on all claims.
Negligent design. In support of their negligent design theory, the parents argued that the skateboard was defectively designed because the board maker should have equipped it with a better deterrent device than the "truck box" placed on the rear axle and wheels of the board to protect the board from damage pre-sale and to protect customers by inhibiting them from riding skateboards in stores. The plaintiffs’ theory appeared to be that, because the truck box on Bravo’s skateboards could be so easily removed, the boards could be too easily ridden in retail stores, thus rendering them unreasonably dangerous (both parties agreed that no truck box was on the board at the time when the child attempted her ride and that it must have been removed some time beforehand).
Additionally, at the time that the girl rode the skateboard, the board’s surface was covered in plainly visible, protective plastic shrink wrap that covered the traction-providing "grip tape" surface and made it unsuitable for riding until/unless the wrap was removed. Further, a warning sticker on top of the plastic wrap read as follows: "WARNING! Reduce the risk of serious injury and only use this skateboard while wearing full protective gear—Helmet, Knee Pads, Elbow Pads, Wrist Guards, and Flat Soled Shoes[.] Max Rider Weight 110 lbs[.]"
In that regard, the danger presented by the skateboard’s purported design defect—that the truck box could be removed and the skateboard used in a store—appeared to be no different from the danger presented by the skateboard itself, i.e., a skateboard is a precarious device that rolls on wheels and invites the user to fall. Accordingly, the skateboard’s purported design defect presented an openly and obviously dangerous condition. On that basis, the girl’s injury resulting from the purported defect was not reasonably foreseeable because it was reasonable for the manufacturer to expect that she would not have ridden the skateboard inside the Target store. Similarly, because the open and obvious nature of the danger made it likely that the child would avoid the injuries she suffered, her injuries were not likely to occur for the purposes of the design defect analysis.
Moreover, the magnitude of the burden and the consequences of imposing a burden on Bravo to prevent such use would be significant; not only would the board maker have to conduct research to determine an appropriate deterrent device that is impenetrable within a retail store, it would have to outfit all of its skateboards with that device at great expense. Such an imposition was unjustifiable given the open and obvious danger of riding a skateboard in a retail store. For those reasons, the manufacturer did not owe the girl a duty of care and summary judgment in its favor was warranted on the negligent design claim.
Strict liability failure to warn. The parents’ strict products liability claim was premised on the notion that: (1) the manufacturer failed to warn of the danger that its boards’ use presented; and (2) the skateboard at issue had two design defects—an inadequate deterrent device and plastic wrapping. To succeed under a failure to warn theory, the parents had to show that the skateboard possessed dangerous propensities, that there was unequal knowledge with respect to the risk of harm, and that Bravo knew or should know that harm could occur absent a warning. That said, however, no duty to warn exists where the danger is apparent or open and obvious and, as explained above, the risks presented by the skateboard were open and obvious. Ergo, the strict liability failure to warn theory failed.
Strict liability design defect. As for their strict-liability design defect theory, the parents pointed only to the reason they thought that the skateboard’s packaging rendered the board defective, i.e., the truck box was too easily removed, permitting individuals in their daughter’s position to remove it and ride the skateboard. However, they offered no evidence as to the expectations of ordinary consumers, nor did they argue that the risk presented by the truck box outweighed its utility relative to other potential deterrent devices.
In any event, the parents could not establish a design defect regarding the skateboard and its truck box under either the consumer-expectation test or the risk-utility test, making their claim unfit to submit to a jury. No evidence was proffered from which a reasonable jury could find that the skateboard or its truck box did not function as an ordinary consumer would expect. Even if the truck-box deterrent could be easily circumvented, an ordinary consumer would expect that riding a skateboard in a retail store would create a risk of falling down from its use.
Under the risk-utility test, the open and obvious nature of the skateboard’s purported defect again weighed in the manufacturer’s favor and reduced the magnitude and possibility of harm. The parties acknowledged that the skateboard had been equipped with a warning notice accessible to a reader in the girl’s position that cautioned against use without proper protective wear. There was no evidence in the record from which the court could evaluate the cost and utility of alternative designs for equipping Bravo’s skateboards with deterrent devices, nor was there any indication that the board maker did not comply with industry standards, voluntary organization guidelines, or government regulations.
The parents also failed to provide any further analysis or support for their theory concerning the plastic wrapping, as it was not reasonably foreseeable that an ordinary skateboard user would ride a skateboard without first removing the plastic wrap. And if a skateboard user did so, he or she would reasonably expect to fall, thus negating any finding of defect under the consumer-expectation test. Finally, the utility of protecting a skateboard’s appearance for sale outweighed the need to eliminate the open and obvious risk presented by riding the skateboard with the plastic wrap still on. Accordingly, the parents’ design defect theory based on the skateboard’s packaging also failed and the board maker was entitled to summary judgment on the strict products liability claim.
The case is No. 15 C 5714.
Attorneys: Kenneth C. Apicella (Drost, Gilbert, Andrew & Apicella, LLC) for Donald Gutterman. Robert Michael Burke (Johnson & Bell, Ltd.) for Target Corp. Donald J. O’Meara, Jr. (Pretzel & Stouffer, Chtd.) for Bravo Sports.
Companies: Target Corp.; Bravo Sports
MainStory: TopStory DesignManufacturingNews WarningsNews SportsandRecEquipmentNews IllinoisNews
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