Low, Ball & Lynch’s
WEEKLY
LAW RESUME
Duty
of Care - Assumption of Risk
Susan Ford v. Polaris Industries, Inc.
(
Court of Appeal, First
District
The doctrine of primary
assumption of the risk has become an important defensive tool in personal injury
litigation. This case examines
whether it may be used in a strict product liability
action.
Steve and Laura
Nakamura purchased a two-seater Polaris personal watercraft. On
The trial court granted
summary judgment for Laura Nakamura on the basis of the primary assumption of
the risk doctrine. The doctrine
holds there is no duty of care owed to those who are injured while participating
in risky activities, if they are injured by an activity inherent in it. Polaris opposed the motion. The trial court denied Polaris’ motion
for summary judgment on the same theory.
The matter went to trial, and judgment was entered against Polaris in a
sum in excess of $3,000,000.
Polaris appealed.
The Court of Appeal
affirmed. It concluded that the
trial court did not err in refusing to apply the primary assumption of the risk
doctrine to Ford’s strict product liability claim. The Court held that a manufacturer’s
duty to produce defect-free products is not excused by primary assumption of the
risk, absent extraordinary circumstances.
The Court further stated that, in recreational equipment defect cases,
the issue is whether the manufacturer has attempted to eliminate or provide
protection against an inherent risk in a sport. This helps define the scope of duty of
the manufacturer.
In this case, the risk
of falling off the watercraft and coming in contact with water from a jet ski
was inherent in use of the craft.
However, injuries from the rearward ejection of high
speed water was not part of the fundamental risk. Thus the primary assumption of the risk
doctrine did not apply. The Court
stated that, in a design case, in order to find a risk is inherent in the design
of the product, it must be found that its absence would substantially change the
sport or deter participation. In
this case, the Court noted that alternative designs existed to reduce the injury
sustained in this case. The
manufacturer’s duty under these circumstances was to minimize the risks without
altering the nature of the sport..
In this case, the
plaintiffs did not assert that the design defect affected the inherent risk of
the sport. Rather, they asserted
there were means that could have been taken to prevent injury once one fell off
of the watercraft. It was then up
to the jury to decide if the benefits of the design outweighed the dangers
inherent in that design.
The trial court also did
not err in refusing to allow Polaris to argue fault of Laura Nakamura. The contention was made that Ms.
Nakamura should have passed on the manufacturers’ warnings. The Court held that she had no such
duty. The Court held that the
manufacturer could not transfer responsibility to give warnings to the owner of
the craft. The Court held that the
operator had no duty to pass on the manufacturer’s warnings. The judgment was therefore affirmed..
COMMENT
This case gives a very
detailed analysis of the primary assumption of risk doctrine and how it should
be applied in products liability cases.
It is a very complicated opinion that is worthy of review for those
involved in these types of cases.
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