Davenport v. Gillmore

• Decision Date: 14 September 1988
• Docket Number: No. 87-1641,87-1641
• Citation: 431 N.W.2d 701,146 Wis.2d 498
• Parties: Daniel DAVENPORT, Plaintiff-Appellant, * v. Gail A. GILLMORE, and Citizen Security Mutual Insurance Company, a foreign corporation, John G. Fox, d/b/a Fox Brothers Construction, Richard W. Fischer, d/b/a Fischer Sand and Gravel Company, and/or Fischer Excavating and Grading Company, Defendants-Respondents, and Employers Insurance Company of Wausau, a domestic corporation, Defendant.
• Court: Wisconsin Court of Appeals

Page 701

431 N.W.2d 701

146 Wis.2d 498

Daniel DAVENPORT, Plaintiff-Appellant, ^* v. Gail A. GILLMORE, and Citizen Security Mutual Insurance

Company, a foreign corporation, John G. Fox, d/b/a Fox

Brothers Construction, Richard W. Fischer, d/b/a Fischer

Sand and Gravel Company, and/or Fischer Excavating and

Grading Company, Defendants-Respondents,

and

Employers Insurance Company of Wausau, a domestic

corporation, Defendant.

No. 87-1641.

Court of Appeals of Wisconsin.

Argued July 21, 1988.

Opinion Released Sept. 14, 1988.

Opinion Filed Sept. 14, 1988.

David Allen Hansher (argued and on brief), of Deutch, Hansher & Burns, Milwaukee, for plaintiff-appellant.

William J. Katt, on brief, and Emile H. Banks, Jr. (argued and on brief), of Kasdorf, Lewis & Swietlik, S.C., Milwaukee, James D. MacDonald (argued and on brief), of MacDonald & Koss, Union Grove, Timothy J. Strattner (argued and on brief), of Schellinger & Doyle, S.C., Brookfield, for defendants-respondents.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Daniel Davenport appeals from three orders and resultant summary judgments dismissing his negligence claims against Gail Gillmore and her insurer, Citizen Security Mutual Insurance (Gillmore), Fox Brothers Construction (Fox) and Fischer Sand and Gravel Company (Fischer). Davenport contends that Gillmore, Fox and Fischer were negligent in the design and construction of an artificially improved pond into which Davenport dove and was injured. In addition, he asserts that Gillmore was negligent in failing to discover and warn him of a dangerous condition in the pond. The undisputed facts in the record lead us to conclude that there is no evidence to support Davenport's negligent construction claim. We also conclude that Gillmore is absolved from any potential liability due to the open and obvious nature of the danger Davenport encountered. Therefore we affirm the orders and summary judgments granted by the trial court.

This action arises out of a diving accident which occurred in Gillmore's backyard pond and rendered Davenport a paraplegic. While at a college graduation party given by Gillmore's nephew, Scott Gillmore, Davenport participated in a volleyball game located next to Gillmore's swimming pond. One of the players kicked the ball into the middle of the pond and Davenport and several others raced into the pond to retrieve it. Davenport ran into the pond from the beach area, and when the water reached mid-thigh he took a shallow running dive and struck his head on the bottom of the pond, causing permanent paralysis.

At his deposition, Davenport stated that when he dove he could not see the bottom of the pond, that he had never swam in this area of the pond before, and that he did not know how deep the water was two feet in front of him. He also testified that his head struck the bottom of the pond and not "a rock or anything." Davenport was twenty years old and an experienced swimmer who had captained his high school varsity swim team for three years.

A few hours earlier Davenport had been swimming in the pond some five to ten feet to the right of the area where the accident occurred. He stated that the incline was very steep in that area and that the water went from ankle depth to about mid-shoulder depth within six feet from the shore. Davenport is six feet and one inch tall. He did not dive at that time, but only submerged himself and then got out of the water within five minutes. This was Davenport's only excursion into the pond prior to the dive resulting in his injuries.

The pond is owned by Gillmore. Thirteen years earlier, Gillmore hired Fox and Fischer to dredge the pond, build a retaining wall around it and put in a beach and a pier. Gillmore testified that her purpose was to make the pond suitable both for recreation and to support aquatic life. Prior to the improvements, the pond was approximately the same size, but had never been used for swimming.

Gillmore stated that she did not give Fox or Fischer specific instructions as to the improvements, other than that she wanted it to remain as similar as possible to the original pond so that it would fit into the landscape. There was also an understanding that the pond would slope from the shoreline into the center, to the greatest depth of approximately ten feet. Gillmore stated that after the improvements the pond was consistent all the way around and there were no drop-offs. The pond is primarily spring-fed, but a couple of times during the summer Gillmore runs a hose from the house and runs it into the pond to bring up the water level.

Gillmore did not personally supervise the party on her premises at which Davenport was injured. Nor were there any signs posted warning guests as to any unsafe diving areas.

Davenport filed suit against Gillmore, Fox and Fischer under strict liability and ordinary negligence theories. Gillmore moved for summary judgment. The court granted her motion. Thereafter, Fischer and Fox also moved for summary judgment and the court granted these motions. Separate orders and judgments were entered in favor of each moving party. Davenport appeals the dismissal of his negligence claims against all three defendants.

In reviewing the trial court's grant of summary judgment, we must independently apply the standards of sec. 802.08(2), Stats., in the same manner as did the trial court. Schaller v. Marine Nat'l Bank, 131 Wis.2d 389, 394, 388 N.W.2d 645, 648 (Ct.App.1986). We review decisions on summary judgment de novo. United States Fidelity & Guar. Co. v. Goldblatt Bros., 142 Wis.2d 187, 190, 417 N.W.2d 417, 419 (Ct.App.1987).

The initial step of summary judgment methodology requires a determination of whether the complaint states a claim and, if so, whether the answer puts the complaint's allegations at issue. In re Cherokee Park Plat, 113 Wis.2d 112, 116, 334 N.W.2d 580, 582-83 (Ct.App.1983). Here there is no dispute that Davenport's complaint states a claim for relief and the defendants' answers put Davenport's allegations at issue.

With this having been established, we will first address Davenport's allegation that Gillmore was negligent in her design and construction of the pond. Gillmore supported her motion for summary judgment with an affidavit incorporating excerpts of Davenport's deposition testimony. This testimony reveals that Davenport's earlier wading in the pond showed that it sloped down toward the center from the shoreline. He testified that when he dove he did not hit a "rock or anything." Gillmore's deposition testimony is that the pond uniformly slopes down toward the center from the shoreline. To make a prima facie case for summary judgment, a defendant must show a defense which would defeat the claim. Id. at 116, 334 N.W.2d at 583. Gillmore's summary judgment evidence refutes Davenport's claim of negligent design. We conclude from this evidence that Gillmore had made out a prima facie case for summary judgment.

We must thus examine the opposing affidavits submitted by Davenport for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary. Id. In opposition, Davenport submitted an affidavit incorporating excerpts of his deposition essentially setting forth what has already been noted above. We note that on review we are not limited to the excerpts of deposition testimony incorporated or referenced by the affidavits, but may review the complete deposition because it was available to the trial court at the time the motion was made. See Schaller, 131 Wis.2d at 394, 388 N.W.2d at 648; see also United States Fidelity, 142 Wis.2d at 190, 417 N.W.2d at 419. ¹

We see nothing in Davenport's deposition which raises a genuine issue as to any material fact bearing upon his claim that Gillmore negligently designed the pond. All the evidence supports the contrary--that the pond was not negligently designed. ² Gillmore testified that the pond gradually slopes toward the center and that this was the understanding conveyed to Fischer and Fox when they improved the pond. Davenport acknowledged that he hit the bottom when he took his dive and that he did not strike any other foreign object. Davenport has failed in meeting the requirement that he "must set forth specific facts showing that there is a genuine issue for trial." Sec. 802.08(3), Stats. Summary judgment was properly granted to Gillmore on this claim.

Next, we examine Davenport's claims that Fox and Fischer were negligent in their design and construction of the pond. In support of their motions for summary judgment, Fischer and Fox submitted an affidavit incorporating an excerpt of the deposition testimony of Davenport's liability expert, George E. Lawniczak, Jr. In response to the query "the bottom line is ... [y]ou're not critical of how the pool itself was constructed," Lawniczak stated, "[n]o, there's nothing wrong with this place as a place in which to cool off, to do swimming, with an exception of failing to buoy off the [deep] water for non-swimmers." Lawniczak apparently felt that the only construction flaw was a failure to install buoys to warn non-swimmers of deep water. This fact is immaterial to this case where the plaintiff is shown to be an experienced swimmer and where the purpose of buoys is to warn of deeper water for swimming, not diving purposes. Hence, the relevant facts indicate that Davenport's own expert found nothing wrong with the pond's construction.

Davenport's failure to submit other depositions or affidavits setting forth specific facts of negligent construction showing a genuine issue for trial entitles Fox and Fischer to summary judgment. ³ Cherokee Park Plat, 113 Wis.2d at 116, 334 N.W.2d at 582-83. We affirm the orders and resultant judgments dismissing Davenport's claims against Fox and Fischer.

Finally, we turn to...