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Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
er depth most favorable to Mohr-that at least five feet of water is needed to safely use the eighteen-inch platforms for competitive racing dives.
. Whether KDI had a duty to warn the high school given the school's level of knowledge implicates Restatement (Second) of Torts § 388(b). Under this subsection, KDI did not have a duty to warn the high school that the platforms were likely to be dangerous when used in water less than five feet if KDI had "reason to believe" that the high school would realize that danger. When this subsection is applied in the context of a user who allegedly has the knowledge to realize the dangerous condition of the product, it is often called the "sophisticated user" doctrine. See Haase v. Badger Mining, 2003 WI App 192, , ___ Wis. 2d ___, 669 N.W.2d 737. In Haase, we considered § 388(b) in the context of a negligence claim that the supplier of silica sand failed to adequately warn the foundry about the dangers of inhaling silica dust from the sand. The supplier had successfully moved in the trial court for dismissal at the close of the plaintiff's case on the ground that the supplier reasonably expected the foundry, a sophisticated user of the sand, to institute the necessary safeguards for its employees. We rejected the plaintiff's argument that Wisconsin law does not recognize the "sophisticated user" doctrine and concluded that, based on the evidence the plaintiff presented, there was no dispute that the foundry, with whom the supplier had been dealing for years, had extensive knowledge of the hazards of inhaling silica dust, the disease of silicosis, and proper duct control methods. Id., . We therefore concluded it was reasonable for the supplier to expect that the foundry would institute the necessary safety precautions. Id.
. Mohr contends that Haase does not support the application of a sophisticated user defense in this case because Haase addressed an employer-employee situation and did not hold the defense was appropriate in other situations. We do not agree. While it is true that some of our reasoning in Haase related specifically to the workplace, the broader analysis was that the sophisticated user doctrine was "embodied" in Restatement (Second) of Torts § 388, which Wisconsin had adopted. Id., . We can see no reason to limit the application of subsec. (b) to an employer. This subsection is simply an expression of the general negligence principle that what is reasonable depends on the circumstances. Gritzner v. Michael R., 2000 WI 68, , 235 Wis. 2d 781, 611 N.W.2d 906 ("`Ordinary care is the care which a reasonable person would use in similar circumstances.'") (quoting Wis JI-Civil 1005). Thus, what 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.
. We next examine the evidence to determine whether there are disputed issues of fact on this point. The athletic director at the high school from 1986 to 1994 averred that he was responsible for deciding to purchase the eighteen-inch platforms from KDI and to use them in the shallow end of the pool; he made that decision in consultation with the school district staff and the principal. In making that decision, he relied on the Federation's rule and the WIAA's adoption of the rule because he understood they were promulgating the safest rules. Since the rule gave high schools the option of using eighteen-inch platf
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