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Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
lier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Restatement (Second) of Torts § 388.
. Mohr contends the trial court erred in granting summary judgment to KDI because there were disputed issues of fact concerning whether KDI exercised reasonable care in not warning the high school that a minimum five feet of water was needed in order to safely use the platform. In support of his position, Mohr submitted opinion evidence that it is unreasonably dangerous to perform any competitive racing start from a platform of any height in water less than five feet deep. According to one of Mohr's experts, because of variability in size, skill, and human nature, any swimmer performing a competitive racing dive has the potential of going as deep as 4.5 feet; with water depth of 3.5 feet, the risk of striking the pool bottom and sustaining a catastrophic injury is essentially the same whether the swimmer performs a racing start from a thirty-inch platform or an eighteen-inch platform, because it is the water depth, not the height of the platform, that is critical.
. Mohr also asserts that KDI had a duty to warn him, although in his main brief he does not differentiate between that duty and KDI's duty to warn the high school about the safe water depths for use of the platform. In his reply brief, Mohr points to the allegations in the complaint that KDI failed to warn users and purchasers about the types of dives that swimmers should avoid if the starting platforms were placed at the end of a swimming pool where the water depth is 3.5 feet. However, in neither brief does Mohr point to evidence in the record that there were certain types of dives KDI should have warned purchasers or swimmers to avoid and that its failure to warn of these dives caused Mohr's injury . Indeed, such a position is flatly inconsistent with the evidence Mohr presented-that he was doing precisely the flat racing start he had been taught by his coaches-and with his assertion that he was using the starting platform exactly as intended by KDI. In addition, Mohr does not explain why KDI had a duty to inform swimmers of the depth of water necessary for safe use of the platforms. There is no evidence that the swimmers had any role in choosing where to locate the platforms or that they could move the platforms once the high school installed them. Accordingly, we confine our analysis to Mohr's argument that KDI was negligent in failing to warn the high school that a minimum of five feet of water was needed in order to safely use the platforms.
. In response, KDI contends that it did not have a duty to warn the school about the depth of water necessary for safe use of the platforms because the high school was knowledgeable on the topic and because the danger of injury was open and obvious. On these two points, according to KDI, there are no facts in dispute. KDI does not contend there are no disputed facts on the question of the minimum depth at which the platforms can be used safely for competitive racing starts. Therefore, for purposes of analyzing KDI's two defenses, we will assume the view of the evidence on safe wat
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