02-1728 Mohr v. St. Paul Fire & Marine Ins. Co. et al.

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However, the manufacturer (KDI) is entitled to present the so-called “sophisticated user” defense. “[W]hat the supplier or manufacturer had reason to know of the user’s or purchaser’s knowledge of the dangers of a product affects whether the supplier or manufacturer exercised reasonable care with respect to warnings about the product. We therefore conclude KDI may raise as a defense under § 388(b) that KDI had reason to believe the high school would realize the platforms were likely to be dangerous if used in less than five feet of water….

“As to the issue whether there is an open and obvious danger for purposes of allocating negligence, we also conclude there are disputed issues of fact. There is conflicting evidence on whether Mohr was executing the type of shallow racing dive he was taught to do when he was injured or instead was attempting to dive into the water at a steeper angle. There is also, as we have noted above, a conflict in the evidence over whether Mohr understood that there was a danger in 3.5 feet of water even if he did the shallow racing dive as he had been instructed. Finally, from the evidence that the school placed the platforms at the shallow end of the pool specifically for the use of swimmers like Mohr, one can infer that he reasonably believed it was not dangerous to do a shallow racing dive from the platforms as he had been taught by his coaches.

“Further, whether the WIAA exercised reasonable care in adopting Rule 2-7-2 without making its own inquiry depends in part on what information was available to it on safe water depths for competitive racing starts and how readily available that information was to the WIAA, given the size of the WIAA staff and its resources. These are factual disputes that cannot be resolved on summary judgment,…”

Order reversed and cause remanded.

Recommended for publication in the official reports.

Dist II, Sheboygan County, Murphy, John, J.,

Vergeront, J.

Attorneys:

For Appellant: Virginia M. Antoine, Milwaukee; Mark S. Young, Milwaukee; Molly C. Lavin, Milwaukee

For Respondent: Samuel J. Leib, Milwaukee; Gerald M. O’Brien, Stevens Point; Douglas S. Knott, Milwaukee; Katherine A. Kuchan, Milwaukee