Full opinion text
MEMORANDUM DECISION AND ORDER LISA MARGARET SMITH, United States Magistrate Judge. Plaintiff Joseph C. Anderson (“plaintiff’ or “plaintiff Anderson”) brings this action against defendants Hedstrom Corporation (“Hedstrom”) and Bradlees Stores, Inc. (“Bradlees”), to recover for personal injuries he suffered when he fell from a trampoline that was manufactured by Hedstrom and sold by Bradlees. Plaintiff alleges causes of action against both defendants sounding in negligence, strict liability, and breach of implied warranties. Pursuant to the provisions of 28 U.S.C. § 636(c), the parties have consented to conduct all proceedings in this case before me. Defendants have filed a motion for summary judgment, asking for dismissal of the plaintiffs claims against both defendants under all causes of action. Defendants argue that plaintiff assumed the risk of the injuries he suffered, thereby precluding his causes of action; that he has failed to establish a triable issue as to either a failure to warn by the defendants, or a design defect in the trampoline; and that even if he did arguably establish a triable issue as to either a failure to warn or a design defect, neither of those alleged deficiencies proximately caused plaintiffs injuries. For the reasons discussed below, defendants’ motion for summary judgment is denied in its entirety. STANDARD FOR SUMMARY JUDGMENT In accordance with Federal Rule of Civil Procedure 56(e), “[a] motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgement for the moving party as a matter of law.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 320-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard for summary judgment “provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court’s responsibility is to perform “the threshold inquiry of determining whether there is the need for a trial— whether, in other words, there are any genuine factual issues that properly can be resolved by a finder of fact because they may reasonably be resolved in favor of either party.” McNeil v. Aguilos, 831 F.Supp. 1079, 1082 (S.D.N.Y.1993) (quoting Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505). The moving party may rely on the evidence in the record to point out the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548. The responding party must set forth facts showing that there is a genuine issue for trial. Fed.R.CivP. 56(e). A summary judgment motion cannot be defeated by speculation or conjecture. See Pollis v. New Sch. for Soc. Research, 829 F.Supp. 584, 586 (S.D.N.Y.1993) (quoting Western World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir.1990)). Rather, the responding party must show the existence of a disputed material fact in light of the substantive law. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. “In evaluating whether a genuine issue of material fact exists, ‘[t]he evidence of the non-movant is to be believed.’ ” Sim v. New York Mailers’ Union Number 6, 166 F.3d 465, 469 (2d Cir.1999) (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505), and “a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party.” McNeil, 831 F.Supp. at 1082 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam) and Donahue v. Windsor Locks Bd. of Fire Commr’s., 834 F.2d 54, 57 (2d Cir.1987)). “Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.” Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir.1992) (quoting H.L. Hayden Co. of New York, Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1011 (2d Cir.1989)). BACKGROUND On or about May 20, 1998, plaintiffs father, Joseph E. Anderson (referred to herein as “Anderson, Sr.,” to distinguish father from son), bought from the Brad-lees store in Ramsey, New Jersey, a circular trampoline, thirteen feet in diameter, which was manufactured by Hedstrom. (Complaint at 2; Deposition of Joseph E. Anderson (“Anderson, Sr.Dep.”), attached to Affirmation of David L. Lewittes (“Lewittes Aff.”), Ex. 2 at 5-15.) Anderson, Sr. brought the trampoline to his home in Rockland County, New York, (Complaint at 2, ¶ 6.) After reading the manual that came with the trampoline, Anderson, Sr. assembled the trampoline according to the instructions contained therein. (Anderson, Sr. Dep. at 17.) At one point plaintiff, who was twenty-four years old and who lived in his- father’s house, watched part of the assembly process briefly before leaving to go to work. (Id. at 32; Plaintiffs Dep. at 24). Plaintiff remembers putting some bolts together (Plaintiffs Dep. at 23), though his father only remembers plaintiff watching the process for a while. (Anderson, Sr. Dep. at 32.) Anderson, Sr. then let his three other children, ages 5, 8, and 14, and two or three other young neighborhood children use the trampoline. (Id. at 19-20, 23.) Before the first child got on the trampoline, Anderson, Sr. cautioned her not to do any somersaults (id. at 21), because “that was one of the things in the cautions that [it] said not to do.” (Id. at 22.) The children stayed on the trampoline for fifteen or twenty minutes before getting off (id. at 23); during that time Anderson, Sr. stayed right next to the trampoline. (Id. at 27.) Then Anderson, Sr. told the children to get off the trampoline so he could go inside. (Id. at 28-29.) He told the children to stay off the trampoline while he was gone; and told them that no one was allowed to use it unless he or his wife was there. (Id. at 29.) Shortly thereafter plaintiff returned home, and talked his father into going out with him to jump on the trampoline. (Id. at 34.) Plaintiff had never been on a trampoline before, with the possible exception of one time, which may or may not have been a dream, when he was less than five years old. (Deposition of [Plaintiff] Joseph C. Anderson (“Plaintiffs Dep.”), attached to Lewittes Aff. Ex. 1 at 14; Affidavit of [Plaintiff] Joseph C. Anderson (“Plaintiffs Aff.”) at 1.) Plaintiff had a vague memory that his parents had previously refused to get a trampoline for his sister because they thought it was dangerous (Plaintiffs Dep. at 19), but plaintiffs “notion about the dangers of the trampoline,” according to his affidavit submitted with this motion, “was that they could be dangerous if you did somersaults or flips.” (Plaintiffs Aff. at 4.) Plaintiff testified in his affidavit that when he decided to jump on the trampoline, he thought of it as a toy to be used by his younger brother and sisters. (Plaintiffs Aff. at 2.) Anderson, Sr. jumped on the trampoline for about a minute and then got off. (Id. at 34-37.) After that, Anderson, Sr. recalls, plaintiff got on the trampoline, bounced a few times, and then got off by sitting down on the edge and reaching his feet to the ground. (Id. at 37-39). Plaintiffs father remembers staying next to the trampoline while plaintiff was on it. (Id. at 40.) There is some uncertainty in Anderson, Sr.’s mind as to whether plaintiffs first use of the trampoline actually occurred immediately after Anderson, Sr.’s own use of the trampoline — and therefore before neighbor Katherine Flagg (“Flagg”) came over and jumped on it — or just after Flagg’s first session on the trampoline; but Anderson, Sr.’s best recollection is that plaintiff used the trampoline before Flagg used it. (See Anderson, Sr. Dep. at 37-39). An acquaintance named Kevin Barrett, who came to the Anderson residence with Flagg, does recall seeing plaintiff on the trampoline as they approached the house (Deposition of Kevin Barrett (“Barrett Dep.”), attached to Lewittes Aff., Ex. 4 at 11), but Barrett testified in his deposition that he believes that, as a result of a past bout of encephalitis, he may have a memory condition that affects his ability to remember fine detail. (Id. at 6-8.) Flagg did not see plaintiff jump on the trampoline before she got on. (Deposition of Katherine Flagg (“Flagg Dep”), attached to Lewittes, Aff., Ex. 3 at 9, 11, 15). As for plaintiff, he only remembers jumping on the trampoline once that evening, and does not remember seeing either his father or Flagg jumping on it. (Plaintiff Aff. at 2.) In any event, while plaintiff and his father were at the trampoline, Katherine Flagg, a woman in her thirties or forties, stopped by to talk. Flagg used the trampoline for a short time (between two and five minutes) and then got off, and plaintiff got on. (Anderson, Sr. Dep. at 37-38, 41-42; Flagg Dep. at 16-17.) Plaintiff states in his affidavit that “when I got on this trampoline it looked big to me, and I did not think it would be dangerous to jump other than in the center of the trampoline. I do remember having trouble staying in the center and for that reason I was not jumping hard or high.” (Plaintiffs Aff. at 2.) He did not “notice anything in the way of a label or words that appeared on the surface of the trampoline,” and said that there was no writing or labeling there “that really jumped out at me, no.” (Plaintiffs Dep. at 25.) Flagg also testified during her deposition that she did not recall seeing any label or writing or language on the trampoline itself (Flagg Dep. at 16), although Anderson, Sr., who assembled the trampoline, remembered seeing a label on either end of the trampoline’s jumping surface. (Anderson, Sr. Dep. at 27-28.) He recalled that the label said “Caution.” (Id.) In their submissions to this Court, defendants contend that on the “bed” or jumping surface of the trampoline were two identical labels, one directly across from the other, saying, WARNING! MISUSE AND ABUSE OF THIS TRAMPOLINE IS DANGEROUS AND CAN CAUSE SERIOUS INJURIES. DO NOT DO SOMERSAULTS DO NOT LAND ON NECK OR HEAD PERMIT ONLY ONE PERSON AT A TIME' ON THIS TRAMPOLINE. MORE THAN ONE PERSON AT A TIME ON THIS TRAMPOLINE INCREASES THE CHANCE OF INJURY. WARNING! 1) MISUSE AND ABUSE OF THIS TRAMPOLINE IS DANGEROUS AND CAN CAUSE SERIOUS INJURIES. 2) READ INSTRUCTIONS BEFORE USING THIS TRAMPOLINE. 3) INSPECT BEFORE USING AND REPLACE ANY WORN DEFECTIVE OR MISSING PARTS. 4) THE SURFACE OF THE BED MUST BE DRY. DO NOT USE WHEN WET. 5) FOR USE BY ONE PERSON WEIGHING LESS THAN 250 LBS. 6) THIS PRODUCT IS RECOMMENDED FOR AGES 6 AND UP. (See Defendants’ Statement of Undisputed Material Facts, annexed to Lewittes Aff., at 5; Affidavit of Patrick Welsh (“Welsh Aff.”), annexed to Lewittes Aff., at 2-3, ¶ 6, and Ex. C thereto (black and white copies of labels): Reply Affirmation of David I, Lewittes (“Lewittes Reply Aff.”) at I, and Ex. A thereto (“original,” colored version of same labels — collectively. “Def. Label Submissions”) (boldface in original label)). The version of this label submitted to the court as the “original,” in the Lewittes Reply Affidavit at Ex. A, measures approximately one and three-quarters inches high and eight inches wide. Plaintiff apparently does not dispute that this is the label that was on the trampoline bed. Plaintiff bounced for a total of between three and ten minutes after Flagg’s arrival on the scene. (Anderson, Sr. Dep. at 45 (ten minutes total time spent on trampoline after Flagg arrival); Flagg Dep. at 25-27 (not more than three to four minutes total time for two jumping sessions)). In addition to bouncing on his feet, plaintiff also bounced down into a sitting position and up again onto his feet, as he had seen Flagg do, and as she was now instructing him to do. (Flagg Dep. at 22; see also Plaintiffs Aff. at 3-4 (“The only thing I did on this trampoline was jump up and down and I remember sitting down and bouncing up.”)) During this period, Anderson, Sr., Flagg, and Kevin Barrett were standing around the trampoline. (Anderson, Sr. Dep. at 45; Flagg Dep. at 21.) After plaintiff had been jumping for a couple of minutes, Flagg saw him “go off center of the trampoline and then I saw him being propelled off.” (Flagg Dep. at 25, 26.) At that time, Flagg remembers, “there was a car parked on the side of the road and [plaintiff] sort of used that to stop his forward motion” by putting his hands out, taking a few steps, slowing down and stopping with his hands against the car. (Id. at 28-30.) Plaintiff has no memory of this event (Plaintiffs Aff. at 2.), and Anderson, Sr. makes no reference to it in recounting the events of that day in his deposition. According to Flagg, plaintiff, who did not appear to be injured, got back on the trampoline (Flagg. Dep. at 29-30), although it is not clear from Flagg’s testimony whether that took place immediately after he was propelled off or after Flagg first took another opportunity to bounce for a very short time. (Id. at 30-34.) On Ms return to the trampoline, plaintiff bounced for only “a couple of minutes.” (Id. at 33.) In the first one or two jumps, Flagg says that plaintiff may have jumped into a sitting (or knee-down) and then standing position, but then he returned to simple jumping up and down, facing Flagg, without turning his body. (Id. at 33-34.) Asked whether plaintiff was bouncing in “a controlled manner, or in an uncontrolled manner,” Barrett, who had watched people on trampolines before, replied that he was bouncing “in a fairly typical manner” (Barrett Dep. at 19), and “generally speaking towards the central [sic]” rather than the sides. (Id. at 22.) At one point, however, according to Flagg, plaintiff “got off center,” and “very shortly after he got off center he was basically launched off the trampoline. I would say at the most maybe two or three jumps before once [sic] he was off center that he was propelled off.” (Flagg Dep. at 35.) Barrett, in describing the event, reported that once plaintiff got on the trampoline, “he bounced 6, maybe 7 times, and suddenly and unexpectedly launched off the surface of the trampoline on to the ground.” (Barrett Dep. at 16.) Flagg remembers seeing plaintiff “being sort of sideways as he was going off the trampoline.... I just remember his body being completely off balance.” (Flagg Dep. at 39.) In response to questioning about whether plaintiff jumped off the trampoline head first, Flagg replied, “I don’t think he jumped head first. I literally think he was launched off it. He definitely did not jump off that trampoline.” (Id. at 48.) Similarly Barrett, when asked if plaintiff intentionally jumped off, replied, “No. He appeared to come off the trampoline very unexpectedly.” (Barrett, Dep. at 23.) Plaintiff himself said, “it was kind of hard to stay in the middle.... I -wasn’t on it for more than a couple of minutes, and when I went to the side I wasn’t able to come back. I went off the side.... It wasn’t like I was getting closer to the side. I went from the middle to the side and then off.” (Plaintiffs Dep. at 36.) Asked whether he was trying to go off, plaintiff replied, “No.” (Id.). Plaintiff landed within a couple of feet of Flagg, Barrett, and Anderson, Sr., “on the ... side of his body, sort of on his head and his neck.” (Flagg Dep. at 37.) After landing, plaintiffs body remained still; he attempted to lift his head, which resulted in “a small movement, after which his head returned to the ground, and he said to his father, words to the effect that I’m unable, I can’t feel anything. I can’t remember the exact words, but it was clear that he couldn’t move.” (Barrett Dep. at 25; see also Flagg Dep. at 37.) Anderson, Sr. did not see plaintiffs fall; he turned around to see plaintiff on the ground. (Anderson, Sr. Dep. at 46.) He said to his son, “Come on, Fred, get off the ground,” and plaintiff replied “I can’t” (Id. at 47.) An ambulance was called, and plaintiff was taken to a hospital. (Id. at 48 et seq.) It is undisputed that, as a result of the impact of his fall from the trampoline, plaintiff is now a quadriplegic. DISCUSSION Plaintiff brings three causes of action against defendants, based upon strict liability, negligence, and breach of implied warranties. Under the strict liability cause of action, plaintiff alleges that the trampoline was unreasonably dangerous by reason of both (1) design defects and (2) a failure by defendants to warn of the known dangers that did exist. Specifically, plaintiff claims that the circular-design trampoline sold for family fun is inherently dangerous and unsuitable for recreational use by the general public, and that safer alternatives in the form of an attachable safety cage or a “unitized” trampoline-and-cage design were available (the safety cage was already on the market, and the “unitized” version was already in planning by Hedst-rom), but these safety options were neither incorporated into Hedstrom’s existing trampoline, nor offered by defendants to buyers for purchase as an option, at the time Anderson, Sr. made his purchase. Plaintiff also claims that the product was defective in that it was unsafe for jumping on any part but the center, yet it contained no center markings to assist the jumper in staying in the safe center zone. In addition, he claims that the shipping carton, supportive documentation, and safety labels provided with the trampoline provided inadequate warnings about known dangers, such as the need to stay in the center while jumping, the extent of protective ground cover required, the risk and seriousness of potential injury, and the need for professional instruction to avoid such injury. In his negligence cause of action, plaintiff claims negligence based upon (1) the design, manufacture, marketing, advertising and distribution of the trampoline, (2) inadequate warnings, and (3) the omission of a center marking. He claims that the defendants knew or should have known both that the product as designed and marketed was not reasonably safe for its intended use, and that a safer design was available, yet they offered the product for sale without offering the safer options (such as a safety cage or center marking), and without providing sufficient warning of the dangers that did exist or the steps that could or should have been taken to reduce them. These actions and omissions, the plaintiff asserts, violated the defendants’ duty of care. In regard to Hedstrom in particular, plaintiff adds particularized allegations and evidence that Hedstrom knew of the risk of serious injuries such as his, of the availability of a safety cage, and of the cage’s ability to reduce such injuries. He also charges that Hedstrom knew about the need for safety instruction, center markings, and specific ground coverings to reduce such injuries, yet failed to provide either the appropriate warnings or the necessary markings to prevent or reduce the injuries. Finally, in his breach of implied warranties claim, plaintiff charges (1) that the defendants knew or should have known that the plaintiff was relying on them to provide a product that was safe and suitable for use in the backyard environment, (2) that the trampoline was not safe for its intended use, and (3) that the product’s lack of safety, together with plaintiffs reb-anee on defendants’ implied warranties of fitness and merchantability, proximately caused his injuries. Defendants move for summary judgment on four grounds. They argue (1) that plaintiff assumed the risk of the injuries he suffered, and therefore cannot state a cause of action against them; (2) that he has failed to present evidence sufficient to establish a failure to warn by the defendants; (3) that he has failed to put forth evidence which would support a pri-ma facie case of a design defect in the trampoline; and (4) that even if plaintiff did arguably present evidence sufficient to establish either a failure to warn or a design defect, neither of those alleged deficiencies proximately caused plaintiffs injuries. They argue that these alleged deficiencies preclude plaintiffs strict liability claims, and that on that basis they also preclude the negligence and breach of implied warranty claims. (-See Memorandum of Law in Support of Defendants’ Motion for Summary Judgment (“Defendants’ Mem.”) at 6; see also id. at 21 n. 10.) I. Assumption of the Risk A federal court sitting in diversity must follow the law directed by the highest court of the state whose law is applicable to the resolution of the dispute. Plummer v. Lederle Laboratories, 819 F.2d 349, 355 (2d Cir.), cert. denied, 484 U.S. 898, 108 S.Ct. 232, 98 L.Ed.2d 191 (1987). When the highest state court has not ruled directly on the issue presented, a federal court must make its best estimate as to how the state’s highest court would rule in the case. Francis v. INA Life Ins. Co. of New York, 809 F.2d 183, 185 (2d Cir.1987). In making that determination, the federal court is free to consider all the resources the highest court of the state could use. Id. “ ‘A federal court may discern the forum state’s law by examining relevant decisions from a forum state’s inferior courts, decisions from sister states, federal decisions and the general weight and trend of authority.’ ” Allstate Ins. Co. v. American Transit Ins. Co., 977 F.Supp. 197, 200 (E.D.N.Y.1997) (quoting Continental Casualty Company v. Pullman, Comley, Bradley & Reeves, 709 F.Supp. 44, 46 (D.Conn.1989)), aff'd, 929 F.2d 103 (2d Cir.1991)). It is not disputed that New York law governs in this case. Therefore, I will apply the law of New York, following the decisions of the Court of Appeals on those issues that have been considered by the court, and making the best possible estimate of how that court would rule in those instances where direct authority is absent. A. Assumption of the Risk as a Defense Against Negligence Claims Defendants argue that, under New York law, “an average adult assumes the risk of jumping on a trampoline,” and that this assumption of the risk negates any duty which might otherwise have been owed to him or her by defendants. (Defendants’ Mem. at 10.) Several New York cases have undertaken an extensive analysis of the doctrine of assumption of the risk in light of New York’s comparative negligence statute, N.Y.C.P.L.R. 1411, which provides that assumption of the risk is no longer an absolute defense. In Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490 (4th Dep’t 1993), the Appellate Division, Fourth Department, synthesized the state of the law with regard to this doctrine, basing that synthesis primarily on an analysis of decisions expounded or affirmed by the New York Court of Appeals. The court stated, Lamey, 188 A.D.2d at 162-63, 594 N.Y.S.2d 490 (additional internal citations omitted). As the Court of Appeals has explained (albeit in the context of determining'the duty of care owed by a professional jockey and the proprietor of a racetrack to another professional jockey injured in a professional race), Care must be taken to distinguish between two distinct doctrines of assumption of risk. The first is embraced within the CPLR article 14-A concept of “culpable conduct attributable to the claimant” (CPLR 1411). It is akin to comparative negligence; it does not bar recovery, but diminishes recovery in the proportion to which it contributed to the injuries (CPLR 1411). We are here concerned with another category of assumption of risk, sometimes called “primary” assumption of risk (see, Turcotte v. Fell, 68 N.Y.2d 432, 438, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986]). If applicable, the doctrine of primary assumption of risk is not a measure of plaintiffs comparative fault, but a measure of the defendant’s duty of care. Primary assumption of risk eliminates or reduces the tortfea-sor’s duty of care to the plaintiff and, in the former case, constitutes a complete bar to recovery, notwithstanding CPLR 14-A. Primary assumption of risk may be express or implied. The doctrine is frequently applied, or sought to be applied, to claims of injury arising out of a plaintiffs participation in a sporting or entertainment event or activity. while the determination of the existence of a duty and the concomitant scope of that duty involve a consideration not only of the wrongfulness of the defendant’s action or inaction, they also necessitate an examination of plaintiffs reasonable expectations of the care owed him [or her] by others. This is particularly true in professional sporting contests, which by their nature involve an elevated degree of danger. If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he [or she] is injured as a result of those risks.... Accordingly, the analysis of care owed to plaintiff [in this context] must be evaluated by considering the risks plaintiff assumed when he elected to participate in the event and how those assumed risks qualified defendants’ duty to him.... If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Turcotte, 68 N.Y.2d at 437-39, 510 N.Y.S.2d 49, 502 N.E.2d 964 (emphasis added). The applicability of the assumption of the risk doctrine depends on the nature and scope of the participant’s awareness and consent. Lamey, 188 A.D.2d at 163, 594 N.Y.S.2d 490. The Court of Appeals has clarified that standard by stating, As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation.... The question of whether the consent was an informed one includes consideration of the participant’s knowledge and experience in the activity generally. Manifestly a professional athlete is more aware of the dangers of the activity, and presumably more willing to accept them in exchange for a salary, than is an amateur. Turcotte, 68 N.Y.2d at 439-40, 510 N.Y.S.2d 49, 502 N.E.2d 964. Correspondingly, a defendant has a duty to exercise reasonable care to protect athletic participants from “unassumed, concealed or unreasonably increased risks.” Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 543 N.Y.S.2d 29, 541 N.E.2d 29 (1989). Finally, to establish assumption of the risk by a plaintiff, the burden is on the defendant to show that plaintiff was aware of the defective or dangerous condition and the resultant risk.... Whether it can be concluded that a plaintiff made an informed estimate of the risks involved in an activity before deciding to participate depends on the openness and obviousness of the risk, plaintiffs background, skill, and experience, plaintiffs own conduct under the circumstances, and the nature of defendant’s conduct. Lamey, 188 A.D.2d at 164, 594 N.Y.S.2d 490 (citing Benitez, 73 N.Y.2d at 657-59, 543 N.Y.S.2d 29, 541 N.E.2d 29; Turcotte, 68 N.Y.2d at 440, 442, 510 N.Y.S.2d 49, 502 N.E.2d 964; Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 487 N.E.2d 553 (1985)). An important factor is whether the risk is inherent in the activity; a plaintiff will not be held to have assumed those risks that are not inherent, i.e., not “ordinary and necessary” in the sport. Turcotte, 68 N.Y.2d at 433, 510 N.Y.S.2d 49, 502 N.E.2d 964 (citing Cole v. New York Racing Assn., 24 A.D.2d 993, 994, 266 N.Y.S.2d 267 (2nd Dep’t 1965), aff'd, 17 N.Y.2d 761, 270 N.Y.S.2d 421, 217 N.E.2d 144 (1966)). The issue of assumption of risk is generally a question of fact for the jury, although where the facts are not in dispute, it may be decided as a matter of law. Maddox v. City of New York, 66 N.Y.2d 270, 279, 496 N.Y.S.2d 726, 487 N.E.2d 553 (1985). Defendants cite to two New York cases, Liccione v. Gearing, 252 A.D.2d 956, 675 N.Y.S.2d 728 (4th Dep’t 1998), appeal denied, 92 N.Y.2d 818, 685 N.Y.S.2d 420, 708 N.E.2d 177 (1999), and Williams v. Lombardini, 38 Misc.2d 146, 238 N.Y.S.2d 63 (N.Y.Sup.Ct.1963), to demonstrate that, under New York law, a court can find assumption of the risk as a matter of law in a trampoline case. However, the facts in those cases—which were neither affirmed nor reversed by the Court of Appeals and therefore may not be dispositive of the position that would be taken by New York’s highest court—differed in significant respects from those in the case at bar. First, those negligence actions were brought, in one case, against the owner of a private backyard trampoline (and of the private home on whose grounds it was located), and in the other case against the operators of an ice cream stand who maintained trampolines behind their stand for the use of their customers. Since the question of assumption of the risk is so intimately related to the duty of care owed by the defendant, and operates to qualify a defendant’s existing duty to the plaintiff, Turcotte, 68 N.Y.2d at 438, 510 N.Y.S.2d 49, 502 N.E.2d 964, particular scrutiny is required when applying a finding based on a homeowner’s or amateur facility-owner’s duty of care to the very different duty of care owed by a product manufacturer or retailer to foreseeable users of the product. See Lamey, 188 A.D.2d at 167, 594 N.Y.S.2d 490. Second, in each of the cases cited by defendants, the plaintiffs behavior, and the warnings the plaintiff was given about the possible consequences of his or her behavior, also differed significantly from the facts in this case. In Liccione, the plaintiff admitted engaging in double-jumping on the trampoline—an intentional activity that is arguably more hazardous than the jumping engaged in by plaintiff in this case—despite the presence of a warning sign on the trampoline specifically directing users not to engage in double-jumping because it increased the danger of being bounced off the trampoline. (See Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (“Plaintiffs Mem.”) at 2-4: Liccione Appendix, Brief for Defendant-Appellants Thomas Gearing, Sr. and Thomas Gearing, Jr. (“Gearing Brief’) at 7-8; Liccione Record on Appeal at 305.) In addition, one of the individual defendants in Liccione claimed he had told plaintiff to read the warning signs. (Plaintiffs Mem. at 3; Jumpking Reply Brief of 1-2.) Thus, the question of what the Liccione plaintiff actually knew, or should be charged with knowing, about the dangers of the specific higher-risk activities in which she engaged, differs from the corresponding set of questions in this case. In this case, the only allegations of arguably incorrect, “high risk,” or culpable behavior by the plaintiff that have been put forth by defendants are, first, that plaintiff bounced off-center on the trampoline — an act which was not prohibited, warned against, or declared dangerous by any sign on the trampoline, which the plaintiff claims he did not know was dangerous, and which he further claims to have been totally unintentional and involuntary — and, second, that plaintiff got on again after being propelled off the trampoline once. Thus, because the activities in which this plaintiff engaged were arguably less risky than those engaged in by the Liccione plaintiff, as that risk was identified by the manufacturer’s own warning signs, any risk that this plaintiff can be said to have assumed may reasonably be considered more limited than was the case in Liccione. , There was also evidence in Liccione that the plaintiff there was not a total beginner, but had used the trampoline before the date of injury (Gearing Brief at 4, 7), and that she was a skilled dancer (see Liccione plaintiffs R 59 et passim), and the court took her experience into consideration in its ruling on assumption of the risk. See Liccione 252 A.D.2d at 956, 675 N.Y.S.2d 728 (parties established that plaintiff was “of sufficient age, education and experience to assume the risks”) (emphasis added). In addition, the educational factor of which the court took specific note varied between these cases; the Liccione plaintiff was a college student, while the plaintiff in this case never graduated from high school and has only a G.E.D. diploma. Thus, while the Liccione court did find that the plaintiffs specific factual circumstances were sufficient for the court to conclude that she had assumed the particular risk of her injury in that case, I cannot read that conclusion as a dispositive holding that, under New York law, all trampoline jumpers, no matter what activity they engage in, no matter what their education and experience level may be, and no matter what warnings are made available to them, assume the risk of quadriplegia as a matter of law. Similarly, the Williams plaintiff admits to having read a posted notice and rules at defendants’ trampoline site that stated, “Use trampolines at your own risk. We are not responsible for accidents” and “Do not attempt difficult tricks.” Williams, 38 Misc.2d at 147, 238 NY.S.2d 63. He then intentionally performed a front flip or somersault, as a result of which he was thrown off balance and injured. Faced with this fact pattern, the Williams court stated that “where it indisputably appears that an ordinary prudent person would under the same or similar circumstances not have incurred the risk which plaintiffs conduct involved, then the question [of whether the risk was so obvious that plaintiff must have known and comprehended it] becomes one for the court,” id., 38 Misc.2d at 148, 238 N.Y.S.2d 63, and the court thus chose to decide the issue as a matter of law. The court then concluded, on the facts before it, that an individual of that plaintiffs age (nineteen), education and intelligence (a student at Yale University) “must be presumed to have foreseen that when he propelled himself through the air in a forward flip or somersault by means of this device, he ran the risk of landing either on the frame work or beyond in such a fashion as to cause injury.... The plaintiff here voluntarily assumed the obvious risk inherent in the maneuver which he had undertaken.” Id., 38 Misc.2d at 148-49, 238 N.Y.S.2d 63 (emphasis added). By contrast, no sign disclaiming liability by either defendant existed in this case, and plaintiff did not attempt to perform a somersault or any similarly difficult maneuver. It is undisputed that at the time of his fall, plaintiff was simply jumping up and down in a fairly typical manner, and he has stated under oath that he believed the dangers of trampolines were confined to circumstances in which a user did somersaults or flips. In light of these factual differences, I cannot conclude, as did the Williams court on the facts before it, that “it indisputably appears that an ordinary prudent person would under the same or similar circumstances not have incurred the risk which plaintiffs conduct involved,” id. at 148, 238 N.Y.S.2d 63, a conclusion on which that court relied to justify removing the decision from the province of the jury. A review of case law from other jurisdictions supports the conclusion that the case should not be removed from the jury’s determination. As defendants themselves acknowledge, while some courts in other states have found assumption of the risk by plaintiffs on the facts of particular trampoline cases (see Defendants’ Mem. at 14, n. 6 (citing cases)), other courts have found genuine issues of fact as to whether the plaintiff had assumed the risk under the circumstances of the case, see, e.g., Albritton v. Kiddie, Inc., 69 Ohio App.3d 708, 711, 591 N.E.2d 781 (1990), or as to whether the risks of jumping on a trampoline are “obvious” (an alternative basis for finding assumption of the risk under Tur-cotte). See, e.g., Bryant v. Adams, 116 N.C.App. 448, 466, 448 S.E.2d 832 (1994), review denied, 339 N.C. 736, 454 S.E.2d 647 (1995); Liesener v. Weslo, Inc., 775 F.Supp. 857, 861 (D.Md.1991) (both addressing obviousness of risk as a matter of law for purpose of determining whether warnings were necessary). In the instant case, and applying existing New York law, I conclude that questions of fact exist as to whether plaintiff assumed the risk of his injury, and that a reasonable trier of fact could find in favor of the plaintiff on this question. The parties vigorously dispute the openness and obviousness of the risk of such serious injury to one who engaged in ordinary jumping- — as well as the obviousness of the risk created by moving away from the center in the course of that jumping — and no New York case has been cited by the parties or found by the Court that directly holds that the dangers of jumping on a trampoline are, in all circumstances, obvious as a matter of law. Moreover, it is undisputed that plaintiffs background, skill, and experience were those of a complete novice, factors which the jury may appropriately include in its evaluation of what he understood of the general risks of trampolining and the specific risks of jumping off-center. In this regard, plaintiff has submitted an affidavit by an expert, supported by documentation, concluding that the defects or dangers associated with the trampoline are latent and would not be appreciated by the average trampoline user. Defendant has submitted no contrary evidence which would cause the Court to disregard plaintiffs submission. Thus, there is an issue of fact in this regard. Adding to the question of what the plaintiff understood about the risks are the questions raised by the plaintiff as to the adequacy of the posted warnings. The appropriateness of plaintiffs own conduct under the circumstances is also a central issue of dispute. Defendants characterize plaintiffs jumping off-center as a knowing and voluntary decision whose risks were or should have been obvious to him, particularly after having been propelled off the trampoline once. By contrast, plaintiff characterizes it as an involuntary act the risks of which were not obvious, and which were not even understood by defendants’ engineers who had designed the trampoline and overseen its manufacture and warnings. (Keegan Aff. at 8; Deposition of Francis Pavolko, Former Vice President of Manufacturing and V.P. of Quality Assurance (“Pavolko Dep.”), in Affidavit of Mare A. Rabinoff, Ed. D. (“Rabinoff Aff.”), Ex. 12 at 53-55, 61; Deposition of Michelle Lee Klingensmith, Products Engineer, in Rabinoff Aff., Ex. 13 at 32.) The nature and culpability of defendants’ conduct—in choosing which warnings to display, in failing to mark the center of the trampoline, and in choosing to sell the trampoline without offering (or notifying purchasers of the availability of) a safety cage, despite then-asserted knowledge of the trampoline’s dangers and of the cage’s ability to reduce them—is also in dispute. For all these reasons, I conclude that plaintiff has raised a triable issue as to whether, under the facts presented here, he assumed the risk of his injuries, thereby relieving defendants of their duty of care to him. Defendants’ motion to dismiss the negligence claims on this basis is therefore denied. B. Assumption of the Risk as a Defense Against Strict Liability Claims. Defendants argue that the assumption of the risk defense also provides a basis for granting summary judgment dismissing the strict liability claims. Plaintiff, citing Lamey v. Foley, 188 A.D.2d 157, 594 N.Y.S.2d 490 (4th Dep’t 1993), responds that whether this Court finds assumption of the risk to be a matter of fact for the jury or a matter of law for the court with regard to the negligence claim, the defense of assumption of risk is not available to defendants with regard to the strict products liability claim. In Lamey, the Appellate Division, Fourth Department, conducted a thorough review of the principles underlying the doctrine of assumption of the risk and the doctrine of strict products liability under New York law, and concluded that “the doctrine of primary assumption of the risk cannot constitute a defense to a claim of strict products liability.” Id. at 166, 594 N.Y.S.2d 490. Although I have concluded that assumption of the risk Is an issue for the jury in this case, which would preclude dismissal of the strict liability claim on that ground even if assumption of the risk did provide a valid legal defense against a strict liability claim, I will nevertheless briefly address that argument here, because it is relevant to the issue of whether defendants may raise the defense before the jury with respect to the strict liability claim at trial. Both parties have argued the issue thoroughly in their briefs, and there is no reason to believe that any new information will be presented to the Court on this issue in the future; therefore it is appropriate to decide this legal issue now. The Lamey decision was not appealed to the New York Court of Appeals, and this Court has not found any other decision by New York’s highest court that addresses the applicability of the assumption of the risk doctrine to strict products liability. Nor has the Court been able to find any New York case contradicting the Lamey decision, or in fact addressing the issue at all. A review of case law from other states reveals courts that have adopted the same position as that taken by the Lamey court. See, e.g., Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 37, 837 P.2d 1273 (1992), as amended on rehearing by 74 Haw. 650, 843 P.2d 144 (1992) (“we join those courts that have abolished primary implied assumption of risk in strict products liability and implied warranty actions for personal injury and have retained secondary implied assumption of risk solely as a form of contributory negligence to be compared against defendant’s fault” (citing cases)); Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 111, 73 Ill.Dec. 337, 454 N.E.2d 197 (1983). While some other states do retain primary assumption of the risk as a defense against a strict products liability claim, the cases found by this Court in which a state’s highest court takes such a position have been decided in the special context of the firefighter’s rule, raising some question about their general applicability. See, e.g., Mignone v. Fieldcrest Mills, 556 A.2d 35, 41 (R.I.1989); Armstrong v. Mailand, 284 N.W.2d 343, 351-52 (Minn.1979). The Lamey court, in reaching its conclusion about the inapplicability of primary assumption of the risk in a strict products liability action, summarized the four primary rationales underlying strict products liability explicated in prior decisions of New York’s Court of Appeals. The court explained that, first, the defendant, having invited and solicited purchase and use of its product with the unquestionable intention that the customer would rely upon the defendant’s express assurance of its quality, “should not be permitted to avoid responsibility ... when the expected use leads to injury and loss.” (Codling v. Paglia, 32 N.Y.2d [330] at 339, 345 N.Y.S.2d 461, 298 N.E.2d 622 [ (1973) ]. Second, “[i]n today’s world, it is often only the manufacturer who can fairly be said to know and to understand when an article is suitably designed and safely made for its intended purpose.... ” (Codling v. Paglia, supra, 32 N.Y.2d at 340, 345 N.Y.S.2d 461, 298 N.E.2d 622). Third, the cost of injury can best be borne by those who make and sell defective products; they have the capacity to pass on their economic loss to those who purchase the products (Codling v. Paglia, supra at 341, 345 N.Y.S.2d 461, 298 N.E.2d 622). Fourth, through the imposition of strict liability, pressure is brought on the manufacturer to produce safer and more socially useful goods (Codling v. Paglia, supra). For the foregoing reasons, a “manufacturer is under a non-delegable duty to design and produce a product that is not defective” (Robinson v. Reed-Prentice Div., [49 N.Y.2d 471] at 479, 426 N.Y.S.2d 717, 403 N.E.2d 440 [ (1980) ]) and, in accordance with the public’s expectations, must “stand behind” its goods that prove to be defective and injurious (see, Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579, 585, 523 N.Y.S.2d 418, 517 N.E.2d 1304 [ (1987) ]). Lamey, 188 A.D.2d at 166-67, 594 N.Y.S.2d 490 (some internal citations edited or omitted). Having established the existence of the nondelegable duty and the rationales behind it, the court pointed out that [t]he doctrine of primary assumption of the risk, in contrast, is based on the plaintiffs consent, express or implied, to relieve the defendant of his [or her] duty of care in whole or in part.... Where primary assumption of risk is present, it does not merely diminish plaintiffs recovery, but eliminates or qualifies whatever duty defendant otherwise would owe to plaintiff in the circumstances. Thus, a claim of strict products liability and a defense of primary assumption of risk are in inherent conflict, and one must give way. Id. at 167, 594 N.Y.S.2d 490 (internal citations omitted). It was on this basis that the court concluded that the defense of primary assumption of risk is not available to eliminate or reduce a manufacturer’s duty to produce a nondefective product, even where the product’s dangerous qualities are obvious to and appreciated by the user (see, Micallef v. Miehle Co., 39 N.Y.2d 376, 383-87, 384 N.Y.S.2d 115, 348 N.E.2d 571 [ (1976) ]). To allow a defendant to escape its nondelegable duty to make a safe product by invoking the implied consent of the product user would undermine the policies underlying the doctrine of strict products liability. It would erode a defendant’s incentive to achieve safety in design and production and would sanction the marketing of dangerous products. Lamey, id. at 167-68, 594 N.Y.S.2d 490 (internal citation omitted). The analysis in Lamey is fully consistent with other New York cases on the doctrines of assumption of the risk and strict products liability. In addition, the inapplicability of the assumption of the risk doctrine in a strict products liability case is corroborated by one of the earliest and most well-known New York cases on assumption of the risk, Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 166 N.E. 173 (1929) (Cardozo, C.J.). In that case, in which “Judge Cardozo framed the modern debate by articulating the pertinent tort policy and doctrine” pertaining to assumption of the risk by a participant in a sporting activity, Morgan v. State of New York, 90 N.Y.2d 471, 482-83, 662 N.Y.S.2d 421, 685 N.E.2d 202 (1997), the court held that “[o]ne who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his [or her] antagonist or a spectator at a ball game the chance of contact with the ball.” Murphy, 250 N.Y. at 482, 166 N.E. 173. Significantly, however, the court added. A different case would be here if the dangers inherent in the sport were obscure or unobserved, or so serious as to justify the belief that precautions of some kind must have been taken to avert them.... A different case there would also be if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change....[,] that the game was a trap for the unwary, too perilous to be endured. Id. at 483, 166 N.E. 173 (quoted in part in Morgan, 90 N.Y.2d at 483, 662 N.Y.S.2d 421, 685 N.E.2d 202). As I will discuss below, in addressing strict products liability, it is this kind of excessive danger or “defectiveness” in the product that a plaintiff must demonstrate to establish a claim of strict liability. Only if a product is “not reasonably safe,” Voss v. Black & Decker Manufacturing, Co., 59 N.Y.2d 102, 108, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983), will the defendant manufacturer or retailer be subject to a claim of strict liability. Therefore, according to the Murphy guidelines, a strict products liability action based on a product that is not reasonably safe would be a “different case” from one in which primary assumption of the risk applies, and should not be subject to application of the assumption of the risk principle. Thei’efore, I find the Lamey court’s conclusion—that primary assumption of the risk is not a defense in a strict products liability action—to be the logical statement of existing New York tort doctrine; and neither the defendants, nor this Court’s own research, have identified any cases that effectively undercut the logic of that conclusion. Thus, my “best estimate,” Francis v. INA Life Ins. Co. of New York, 809 F.2d 183, 185 (2d Cir.1987), is that New York’s highest court would, if given the opportunity, rule in accordance with the conclusions of the Lamey court. I therefore conclude that primary assumption of the risk is not a defense to a claim of strict products liability under New York law, and consequently may not be raised before the jury at trial to bar defendants’ liability under plaintiffs strict liability claim. II. Failure to Warn. Plaintiff alleges, under both his negligence and strict liability causes of action, that defendants breached their duty to warn in at least five ways: (1) by not clearly warning of the potential seriousness of injury from the trampoline, (2) by not making clear the need to jump only in the center of the trampoline, (3) by not giving notice that a safety cage existed for use with the trampoline and that its use could substantially reduce the likelihood of injury, (4) by not sufficiently warning of the need for professional instruction (or, possibly, spotters) if such was necessary, and (5) by not giving adequate warning of the depth (and perhaps the kind) of ground covering that should be placed around the trampoline to reduce the likelihood or severity of injury in the event of a fall. Defendants counter by claiming (1) that the dangers were so open and obvious that no warning was necessary under the law, (2) that in any event their warnings were adequate, and (3) that any failure to warn did not proximately cause plaintiffs injury because he failed to read the warnings that existed. “Where liability is predicated on a failure to warn, New York views negligence and strict liability claims as equivalent.” Martin v. Hacker, 83 N.Y.2d 1, 8 n. 1, 607 N.Y.S.2d 598, 628 N.E.2d 1308 (1993) (citation omitted). In Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 764, 700 N.E.2d 303 (1998) (“Liviano I”), New York’s Court of Appeals summarized the current state of New York law with regard to a manufacturer’s liability for failure to warn in a products liability case: A manufacturer who places a defective product on the market that causes injury may be liable for the ensuing injuries. A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product. A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known. A manufacturer also has a duty to warn of the danger of unintended uses of a product provided these uses are reasonably foreseeable.... [A] manufacturer may be liable for failing to warn against the dangers of foreseeable misuse of its product.... This Court has also recognized that, in certain circumstances, a manufacturer may have a duty to warn of dangers associated with the use of its product even after it has been sold. Such a duty will generally arise where a defect or danger is revealed by user operation and brought to the attention of the manufacturer; the existence and scope of such a duty are generally fact-specific .... Compared to purchasers and users of a product, a manufacturer is best placed to learn about post-sale defects or dangers discovered in use. A manufacturer’s superior position to garner information and its corresponding duty to warn is no less with respect to the ability to learn of ... misuse of a product.... Id., 92 N.Y.2d at 237, 240-41, 677 N.Y.S.2d 764, 700 N.E.2d 303. It has long been established in New York that the duty to warn of dangers in the use of the product exists even though the product is perfectly designed and made. Fane v. Zimmer, Inc., 927 F.2d 124, 128 (2d Cir.1991) (citing Baker v. St. Agnes Hosp., 70 A.D.2d 400, 405, 421 N.Y.S.2d 81 (2d Dep’t 1979) (inadequate warnings alone are enough to make a product unsafe)): Rosebrock v. General Electric Co., 236 N.Y. 227, 238, 140 N.E. 571 (1923); Alfieri v. Cabot Corp., 17 A.D.2d 455, 460, 235 N.Y.S.2d 753 (1962), aff'd, 13 N.Y.2d 1027, 245 N.Y.S.2d 600, 195 N.E.2d 310 (1963); 1A N.Y. PJI3d 563. The standard for evaluating “failure to warn” liability is described by the Court of Appeals as “intensely fact-specific, including but not limited to such issues as feasibility and difficulty of issuing warnings in the circumstances; obviousness of the risk from actual use of the product; knowledge of the particular product user; and proximate cause.” Liriano I, 92 N.Y.2d at 243, 677 N.Y.S.2d 764, 700 N.E.2d 303; see also id. at 240 n. 3, 677 N.Y.S.2d 764, 700 N.E.2d 303 (directing, in evaluating a post-sale duty to warn, the weighing of factors such as “the degree of danger the problem involves, the number of reported incidents, the burden of providing the warning, as well as the burden-and/or ability to track a product post-sale”) (citations omitted). The factual determination of whether an adequate warning was given is “often interwoven with the question of whether the defendant manufacturer has a duty to warn, and if so, to whom that duty is owed.” Cooley v. Carter-Wallace Inc., 102 A.D.2d 642, 644, 478 N.Y.S.2d 375 (4th Dep’t 1984) (emphasis added). In Cooley, the Fourth Department explained: Theoretically, a consumer buys a product after evaluating the risks in its use. But the consumer is not on an equal footing with the manufacturer who is in a unique position to know the specific risks involved. The imposition of the duty to give a warning of some kind involves a balancing test which weighs the seriousness of potential harm to the consumer against the costs to the manufacturer. Since the cost of providing warnings is often minimal, the balance usually weighs in favor of an obligation to warn. Once a warning is given, the focus shifts to the adequacy of the warning.... Our courts have required ... that “[wjarnings must clearly alert the user to avoid certain [unsafe] uses of the product which would appear to be normal and reasonable” (Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 65, 427 N.Y.S.2d 1009 [ (4th Dep’t 1980) ], noting that “[t]he degree of danger is a crucial factor in determining the specificity required in a warning” ([id]) and that to be adequate, the warnings must be commensurate with the risk involved in the ordinary use of the product (see McLaughlin v. Mine Safety Appliances Co., 11 N.Y.2d 62, 69, 226 N.Y.S.2d 407, 181 N.E.2d 430 [ (1962) ]).... There are several important considerations that directly affect the adequacy of a warning, including the location and eonspicuousness of the warning and the method in which the warning is communicated to the ultimate user (see Cover v. Cohen, [61 N.Y.2d 261,] 276, 473 N.Y.S.2d 378, 461 N.E.2d 864 [ (1984) ]). Of critical importance is whether the warning sufficiently conveys the risk of danger associated with the product and is qualitatively sufficient to impart the particular risk of harm. Likewise, a warning may be inadequate when the magnitude of the potential harm requires more. For example, ... [i]n Little v. PPG Inds. (19 Wash.App. 812, 579 P.2d 940 [ (Div. 2 1978) ], affd. as mod, 92 Wash.2d 118, 594 P.2d 911 [ (1979) ]), a label containing the caution “vapor may be deadly” was deemed insufficient to convey the particular danger that may cause death-The generally accepted rule, however, is that the reasonableness vel non of a set of warnings is a question of fact for the jury. Cooley, 102 A.D.2d at 644-47, 478 N.Y.S.2d 375 (some internal citations and punctuation omitted). The Cooley court added that, because of the equivalency of negligence and strict liability “failure to warn” theories under New York law, “one issue of fact typically precluding summary judgment in failure to warn cases is whether the information in the warning is commensurate with the manufacturer’s knowledge of the nature and extent of the dangers from foreseeable use of its product.” Id. at 648-49, 478 N.Y.S.2d 375. In determining what a manufacturer “knew or should have known” about such dangers, Liriano I, 92 N.Y.2d at 237, 677 N.Y.S.2d 764, 700 N.E.2d 303, the manufacturer is bound by law to keep abreast of scientific knowledge and advancements in the state of the art in the field. Cover v. Cohen, 61 N.Y.2d 261, 274, 473 N.Y.S.2d 378, 461 N.E.2d 864 [ (1984) ] (citing, inter alia, [1A N.Y. PJI3d 2:135 at 564, formerly] 1 N.Y. PJI2d 364-65). Finally, a manufacturer may not be liable for a failure to warn if the risks were sufficiently obvious to the user without a warning. As the Court of Appeals has explained, [A] limited class of hazards need not be warned of as a matter of law because they are patently dangerous or pose open and obvious risks. [W]hen a warning would have added nothing to the user’s appreciation of the danger, no duty to warn exists as no benefit would be gained by requiring a warning. On the other hand, the open and obvious defense generally should not apply when there are aspects of the hazard which are concealed or not reasonably apparent to the user.... While important to warning law, the open and obvious danger exception is difficult to administer. The fact-specific nature of the inquiry into whether a particular risk is obvious renders bright-line pronouncements difficult, and in close cases it is easy to disagree about whether a particular risk is obvious. It is hard to set a standard for obviousness that is neither under nor over-inclusive. Because of the factual nature of the inquiry, whether a danger is open and obvious is most often a jury question. Where only one conclusion can be drawn from the established facts, however, the issue of whether the risk was open and obvious may be decided by the court as a matter of law. Liriano I, 92 NY.2d at 241-42, 677 N.Y.S.2d 764, 700 N.E.2d 303 (emphasis added). A Defendants’ Causation Argument. Defendants argue that because plaintiff failed to read the warnings that did accompany the trampoline, his injury could not have been proximately caused by any alleged inadequacy in those warnings. There is, in New York, a presumption that a user would have heeded warnings if they had been provided, and that the injury would not have occurred. Power v. Crown Controls Corp., 149 Misc.2d 967, 969, 568 N.Y.S.2d 674 (N.Y.Sup.Ct.1990); 38 A.L.R.5th 683 (1996) (citing comment j to § 402(a) of the Restatement (Second) of Torts). The presumption can be rebutted by proof that an adequate warning would have been futile since plaintiff would not have read it. Power, id. However, it is the manufacturer who has the burden of proving that, even if adequately warned, the plaintiff would not have read the warnings and his behavior would have been unchanged. Summary judgment is appropriate only when that burden has been met to the level of negating the existence of a genuine factual issue. Hoffman-Rattet v. Ortho Pharmaceutical Corp., 135 Misc.2d 750, 751, 516 N.Y.S.2d 856 (N.Y.Sup.Ct.1987). In Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir.1999) (“Liriano II”), the Second Circuit confirmed the operation of this presumption in a “failure to warn” case and also confirmed the placement of the burden of rebuttal on the defendant. The court stated: We know, as a general matter, that the kind of negligence that the jury attributed to the defendant [failure to wa