Negligent Tort Sportspower Ltd. voluntarily recalled 23,400 trampolines because the metal legs of the trampoline can move out of their correct positions, poke through the trampoline's jumping area and present the risk of injuring the user by possibly "deep, penetrating puncture wounds, cuts and bruises." On the limited facts of the case, some tests to prove negligence would be passed but a court could not decide whether other tests are passed. However, a provision of the Consumer Protection Act covers this situation and might give relief to an injured person.

On November 28, 2012, the U.S. Consumer Product Safety Commission (CPSC) announced the recall of 23,400 trampolines manufactured by Sportspower of Hong Kong and sold exclusively by Sports Authority (U.S. Consumer Product Safety Commission, 2012). The recall was voluntary and was made by Sportspower in conjunction with the CSPC because the metal legs of the trampoline can move out of their correct positions, poke through the trampoline's jumping area and present the risk of injuring the user by possibly "deep, penetrating puncture wounds, cuts and bruises" (U.S. Consumer Product Safety Commission, 2012). Though nobody has been injured by the trampolines, the manufacturer became aware of the injury risk due to one incident of a trampoline leg moving out of position and puncturing the trampoline's jumping area (U.S. Consumer Product Safety Commission, 2012).

There is insufficient information to determine whether Sportspower would have been liable in negligence if the trampolines had not been recalled and had caused harm to a consumer. The Plaintiff's case must pass several tests to hold Sportspower liable and a court could not tell whether all the tests are passed. The "Duty of Care" is "the responsibility or the legal obligation of a person or organization to avoid acts or omissions (which can be reasonably foreseen) to be likely to cause harm to others" (Webfinance, Inc., 2013). Sportspower has the responsibility or legal obligation to avoid manufacturing trampolines with metal legs that could reasonably foreseeably move out of position, puncture the jumping surface and cause deep and penetrating cuts, wounds and bruises to the person jumping on the trampoline. Sportspower breached that duty of care by manufacturing trampolines with metal legs that could reasonably foreseeably move out of position, puncture the jumping surface and cause deep and penetrating cuts, wounds and bruises to the person jumping trampoline. Also, if Sportspower had not recalled the product, it would have breached its duty of care by omission in failing to warn consumers about the defect. The "Standard of Care" is the "degree of care an ordinary, reasonable, and prudent person would exercise in given circumstances" (Webfinance, Inc., 2013). This standard is applied differently to different defendants. Sportspower's manufactures of thousands of trampolines for a profit means that Sportspower is held to a higher standard of care than, for example, a person who created a home-made trampoline. Sportspower must take sufficient care in manufacturing trampolines that would not have metal legs that could reasonably foreseeably move out of position, puncture the jumping surface and cause deep and penetrating cuts, wounds and bruises to the person jumping on the trampoline. In addition, if Sportswear manufactured such a defective product, the company would be required to tell consumers about that defect. Sportspower has already admitted that it made such a defective product and if the company had not told consumers about it by its voluntary recall, the company would have fallen below the standard of care by defective manufacture and by failing to warn consumers about the defect.

The Plaintiff's problems in proving this case come from the tests of actual injury, actual cause and proximate cause. "Actual Injury" means that there was a real physical or mental injury because of the Defendant's negligence. When courts try to restore the Plaintiff to his/her "rightful position," by deciding where the Plaintiff is because of the negligence vs. where the Plaintiff ought to be (Fischer, 2008, p. 3). In this case, the court could not be certain of actual injury due to negligence. The Plaintiff was injured by the trampoline but we do not know if the Plaintiff was injured by the metal legs moving out of position, puncturing the jumping surface and causing deep and penetrating cuts, wounds and bruises to the Plaintiff. The Plaintiff might have been injured by jumping too close to the edge and falling off, or by some other cause that was not the Defendant's negligence. The test of "Actual Causation," which means that "the defendant's culpable conduct or activity was the actual cause of the plaintiff's injury" (Lexisnexis, 2012), is not met because we...

Finally, we do not know if Plaintiff's proof has passed the test of "Proximate Cause," which means that the Defendant's negligence was the "Active, direct, and efficient cause of loss…that sets in motion an unbroken chain of events which bring about damage, destruction, or injury without the intervention of a new and independent force" (Webfinance, Inc., 2013). We do not know: whether the trampoline's metal legs moved out of position, punctured the jumping area and actively, directly and efficiently caused the unknown injuries; whether the injury was caused by a new and independent force, such as damage by the distributor or Plaintiff jumping too close to the edge of the trampoline and falling off. The facts of this case do not tell us enough to determine whether there was actual injury as a result of the Defendant's negligence, whether the Defendant's negligence was the actual cause of the Plaintiff's injury or whether the Defendant's negligence was the proximate cause of the Plaintiff's injury.
There are several defenses to negligence actions that might apply. "Intervening Cause," which is some other factor that occurred between Sportspower's negligent manufacture of the trampolines and Plaintiff's injury, could have caused Plaintiff's injury; for example, the distributor could have damaged the trampolines after receiving them from Sportspower and that damage could have actually injured the Plaintiff. "Contributory Negligence" and "Comparative Negligence" are two more defenses that might apply (U.S. Legal, Inc., 2010). For example, if the Plaintiff in this case somehow tampered with the trampoline's legs and made them more likely to move, puncture the jumping surface and cause deep, penetrating cuts, wounds and bruises to the person jumping on the trampoline, the Plaintiff will have been negligent in a way that contributed to his/her own harm. In a few jurisdictions, the Plaintiff would not be able to collect anything from the Defendant because the Plaintiff was contributorily negligent. In other states, the courts will reduce Plaintiff's recovery according to the amount of harm caused by his/her own negligence: if damages were $100,000.00 but Plaintiff's negligence was 50% the cause of his/her injuries, the Plaintiff would be awarded only $50,000.00. Finally, some other states will combine contributory and comparative negligence and completely deny any recovery to a Plaintiff who is more than 50% responsible for his/her own injuries (U.S. Legal, Inc., 2010). Still another defense to negligence actions is "Assumption of Risk," in which a Plaintiff "knowingly assumed the risk of the harm that was caused" (U.S. Legal, Inc., 2010); for example, Sportspower might argue that the Plaintiff knew or should have known that jumping on a trampoline would cause whatever injuries the Plaintiff suffered. Without knowing more about the facts of this case, we do not know whether any of these defenses would be successful.

As our textbook (Seaquist & Coulter, 2012) shows, there may be several possible statutes dealing with this situation; however, this trampoline defect would definitely be covered by the "Substantial Product Hazards" provision of the Consumer Protection Act (15 U.S.C. § 2064) (U.S. Consumer Product Safety Commission, 2011, pp. 62-68). Among other situations, this provision covers "(2) a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public" (U.S. Consumer Product Safety Commission, 2011, p. 64). By manufacturing 23,400 trampolines with metal legs that could move out of position, puncture the jumping surface and cause deep and penetrating cuts, wounds and bruises to the person jumping on the trampoline, Sportspower created a substantial risk of injury to the public. Even if a Plaintiff might not succeed with a lawsuit for simple negligence, the Plaintiff could also turn to the "Substantial Product Hazards" provision of the Consumer Protection Act and the assistance of the Consumer Product Safety Commission to obtain relief from Sportspower.

Conclusion

Twenty-three thousand four hundred trampolines manufactured by Sportspower Ltd. were recalled because the trampolines' metal legs can move, poke through the jumping area and injure the user. There is insufficient information to determine whether Sportspower would have been liable in negligence if the trampolines had not been recalled and had caused harm to a consumer. Plaintiff could prove the duty…