ABSTRACT
How is the infant plaintiff to prove a causal connection between the absence of a warning, or an inadequate warning, when frequently the child cannot yet read, or even if he can, the child’s reasoning and judgment is of limited development? Substantial decisional law supports the rule that it is sufficient that the parent or guardian offer evidence that, had an adequate warning been given to the responsible adult, measures would have been taken to insulate the child from the hazard (Emery v. Federated Foods, 1993). Illustrative is a decision arising from a 13-yearold child’s leg injury while using a small trampoline, 36 inches in diameter, marketed as a swimming pool accessory (Nissen Trampoline Co. v. Terre Haute First Nat’l Bank, 1975). The injury, ultimately requiring amputation, occurred when the child’s foot slipped through the cables attaching the jumping platform to the trampoline frame, causing him to fall and become suspended from the frame. The court found that the manufacturer’s failure to provide a warning about the risk was sufficient to support a finding of a defective condition. To provide the causal connection between the dangerous condition and the injury, the court adopted the so-called “heeding” presumption, stating. “The law should supply the presumption that an adequate warning would have been read and heeded, thereby minimizing the obvious problems of proof of causation.” Thus, the key to the operation of the duty to warn and the invocation of its concomitant heeding presumption is that an adult product with which children may have contact must contain warnings and instructions advising adults on the special risks to children that the product may create.
