Harper v. Herman
| Decision Date | 07 May 1993 |
| Docket Number | No. C0-92-196,C0-92-196 |
| Parties | Jeffrey J. HARPER, Respondent, v. Theodor H. HERMAN, Petitioner, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. An affirmative duty to act for the protection of another only arises when a special relationship exists between the parties.
2. A special relationship does not exist between a "social host" of a private boat and a guest on that boat.
Gene P. Bradt, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, for appellant.
Sharon L. VanDyck, Michael A. Zimmer, Schwebel, Goetz, Sieben & Moskal, Minneapolis, for respondent.
Heard, considered, and decided by the court en banc.
This case arises upon a reversal by the court of appeals of summary judgment in favor of the defendant. The court of appeals held that defendant, the owner and operator of a private boat on Lake Minnetonka, had a duty to warn plaintiff, a guest on the boat, that water surrounding the boat was too shallow for diving. We reverse and reinstate judgment in favor of defendant.
The facts are undisputed for the purpose of this appeal. On Sunday, August 9, 1986, Jeffrey Harper ("Harper") was one of four guests on Theodor Herman's ("Herman") 26-foot boat, sailing on Lake Minnetonka. Harper was invited on the boat outing by Cindy Alberg Palmer, another guest on Herman's boat. Herman and Harper did not know each other prior to this boat outing. At the time Herman was 64 years old, and Harper was 20 years old. Herman was an experienced boat owner having spent hundreds of hours operating boats on Lake Minnetonka similar to the one involved in this action. As owner of the boat, Herman considered himself to be in charge of the boat and his passengers. Harper had some experience swimming in lakes and rivers, but had no formal training in diving.
After a few hours of boating, the group decided to go swimming and, at Herman's suggestion, went to Big Island, a popular recreation spot. Herman was familiar with Big Island, and he was aware that the water remains shallow for a good distance away from its shore. Harper had been to Big Island on one previous occasion. Herman positioned the boat somewhere between 100 to 200 yards from the island with the bow facing away from the island in an area shallow enough for his guests to use the boat ladder to enter the water, but still deep enough so they could swim. 1 The bottom of the lake was not visible from the boat. After positioning the boat Herman proceeded to set the anchor and lower the boat's ladder which was at its stern.
While Herman was lowering the ladder, Harper asked him if he was "going in." When Herman responded yes, Harper, without warning, stepped onto the side of the middle of the boat and dove into approximately two or three feet of water. As a result of the dive, Harper struck the bottom of the lake, severed his spinal cord, and was rendered a C6 quadriplegic.
Harper then brought suit, alleging that Herman owed him a duty of care to warn him that the water was too shallow for diving. On October 23, 1991, the trial court granted Herman's motion for summary judgment, ruling that the law does not impose such a duty. In reversing the trial court, the court of appeals concluded that Herman voluntarily assumed a duty to exercise reasonable care when he allowed Harper onto his boat, and that the duty of care included warning Harper not to dive because he knew that the water was "dangerously shallow." Harper v. Herman, 487 N.W.2d 908, 910 (Minn.App.1992).
The sole issue on appeal is whether a boat owner who is a social host owes a duty of care to warn a guest on the boat that the water is too shallow for diving.
Harper alleges that Herman owed him a duty to warn of the shallowness of the water because he was an inexperienced swimmer and diver, whereas Herman was a veteran boater. Under those circumstances, Harper argues, Herman should have realized that Harper needed his protection.
We have previously stated that an affirmative duty to act only arises when a special relationship exists between the parties. "The fact that an actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action * * * unless a special relationship exists * * * between the actor and the other which gives the other the right to protection." Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn.1979), reh'g denied, Jan. 11, 1980 (citations omitted). Accepting, arguendo, that Herman should have realized...
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