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Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
orms in a minimum of 3.5 feet of water, he believed the organizations had evaluated that option and concluded it was safe. He also relied on KDI's advertising literature for the eighteen-inch platforms, which quoted from the Federation's then-new rule, "In pools with water depth less than 4 ft. at the starting end, starting platforms shall be no more than 18" above the water surface or be located at the deep end of the pool," and then stated: "Limit your risk. Also let your team become accustomed to the new racing height now." Prior to Mohr's injury, the athletic director had no knowledge of research reporting injuries to competitive swimmers performing forward racing dives from starting platforms, of the depths swimmers may reach in executing such dives, or of the minimum depths needed to provide a margin of safety. He had no knowledge that organizations other than the Federation and the WIAA had greater minimum depths.
. The girls' swimming coach at the high school was involved with the athletic director in discussions concerning purchase of the eighteen-inch platforms after learning at the WIAA meeting that Rule 2-7-2 had been changed. She wrote a memo regarding the need to make a change to comply with the new rule because the platforms the school had then were at the shallow end of the pool and were twenty-five-and-one-half inches high. This coach testified that at the time of the rule change, she had heard there had been several serious injuries to swimmers diving off starting platforms, and she understood this was the reason for the rule change, but she did not know the specifics of those accidents. She also testified that Chuck Walters of Walters Swim Supplies, Inc., with whom she had previously done business, recommended the eighteen-inch platforms so that the school would be in compliance with the Federation and the WIAA rule, and she relied on his recommendation because he had more knowledge of starting platforms than she did.
. According to KDI, because this evidence shows that the high school employed "swimming professionals," was a member of organizations providing "swimming expertise," and the swimming coach was aware generally of the risks of injury from racing dives from starting platforms, KDI had no duty as a matter of law to warn the school. We disagree.
. We first observe that the issue under Restatement (Second) of Torts § 388(b), correctly framed, is whether KDI had reason to believe that the high school had knowledge the platforms were likely to be dangerous if used in less than five feet of water, not whether the high school actually did have that knowledge. Thus, the actual knowledge of this particular high school is relevant if KDI knew of it or if the knowledge of this high school may be reasonably inferred to be the knowledge of high schools in general who purchase this product; but, in and of itself, this high school's actual knowledge is not dispositive under § 388(b). This reading of § 388(b) is consistent with Haase, in which we framed the issue as whether it was "reasonable for [the supplier] to expect that [the foundry] would institute the necessary safety precautions based on its own specific use of [the supplier's] sand." 669 N.W.2d 737, .
. With this clarification, we examine the evidence. There is very little evidence on what KDI had reason to believe regarding the knowledge of this high school or high schools in general on the safe water depths for these platforms. There is no evidence that KDI knew of this high school's level of knowledge on safe water depths, and the evidence, in any event, is that the coach who participated in the decision to purchase the platforms had very little knowledge on the subject and the athletic dir
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