(Unpublished table decision.)
The plaintiff Zackular was severely injured when she executed a stunt on an inflated Velcro obstacle course. During the stunt she dived headlong from the top of a five-foot high obstacle, trying to reach an opening in another obstacle approximately six feet away and appreciably below her. The plaintiff sued the product manufacturer and product lessor on theories of negligence and breach of warranty, claiming breach of the duty to warn. The trial court held that a person of ordinary perception and judgment should have realized the danger and the risk of serious harm. Since the danger was open and obvious, the court said, there was no duty to warn.
In its brief NELF addressed two of the plaintiff’s arguments on appeal. The first is the argument that the defendant’s provision of some warnings created a duty to warn of the hazards of diving. NELF argued that if manufacturers are required to warn of obvious dangers as well as non-obvious ones, it will necessarily dilute the impact of all warnings. The plaintiff’s second argument is that the obstacle course constituted a non-obvious danger because the surface had some elasticity. NELF argued that the stunt was obviously dangerous regardless of the surface “give” because the plaintiff dived into it from a significant height. The Appeals Court affirmed the decision below, placing particular emphasis on the arguments about the open and obvious nature of the hazard.