Olson v. Sanitary & Improvement Dist. No. 177

• Decision Date: 03 January 1997
• Docket Number: No. S-95-080,S-95-080
• Citation: 251 Neb. 380,557 N.W.2d 651
• Parties: Erik OLSON, Appellant, v. SANITARY & IMPROVEMENT DISTRICT NO. 177, a Political Subdivision, et al., Appellees.
• Court: Nebraska Supreme Court

Page 651

557 N.W.2d 651

251 Neb. 380

Erik OLSON, Appellant, v. SANITARY & IMPROVEMENT DISTRICT NO. 177, a Political Subdivision, et al., Appellees.

No. S-95-080.

Supreme Court of Nebraska.

Jan. 3, 1997.

Syllabus by the Court.

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

3. Negligence: Proof. In order to succeed in an action based on negligence, a plaintiff must establish the defendant's duty not to injure the plaintiff, a breach of that duty, proximate causation, and damages.

4. Negligence. The question of whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

5. Negligence: Proof: Intent: Words and Phrases. In order for an action to be willful or wanton, the evidence must prove that the defendant had actual knowledge that a danger existed and that the defendant had a constructive intention as to the likely consequence.

6. Negligence: Waters. A body of water, natural or artificial, does not constitute a concealed, dangerous condition.

Timothy K. Kelso, of Rasmussen Mitchell & Kelso, and James E. Harris, of Harris, Feldman, Stumpf Law Offices, Omaha, for appellant.

Patrick G. Vipond and Raymond E. Walden, of Kennedy Holland DeLacy & Svoboda, Omaha, for appellee SID No. 177.

Terry K. Gutierrez, of Gast, Ratz & Gutierrez, P.C., Omaha, for appellee Riverside Lakes Recreational Cooperative Assn.

Milton A. Katskee, of Katskee, Henatsch & Suing, Omaha, for appellee Larry Tighe.

Thomas A. Otepka and Susan E. Fieber, of Gross & Welch, P.C., Omaha, for appellee Charles Varvel.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, WRIGHT, CONNOLLY, and GERRARD, JJ.

WRIGHT, Justice.

The plaintiff dove off a dock into shallow water and broke his neck. The trial court entered summary judgment in favor of the defendants. The Nebraska Court of Appeals affirmed, and we granted the plaintiff's petition for further review.

SCOPE OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Young v. Eriksen Constr. Co., 250 Neb. 798, 553 N.W.2d 143 (1996).

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. Nelson v. Metropolitan Utilities Dist., 249 Neb. 956, 547 N.W.2d 133 (1996).

FACTS

On July 4, 1992, the plaintiff, Erik Olson, and his friend Scott Weidner went to Scott's grandparents' house at Riverside Lakes. Weidner's grandparents, Stanley and Myrtle Miller, lived in a townhome consisting of four private units. Each unit had its own section of beach, and every two units shared a stairway to the beach and a boat dock.

The dock located between the Millers and their closest neighbor, Jim Twiss, was for the use of those two units. The defendants Larry Tighe and Charles Varvel owned the two west units, and they, likewise, shared a dock. It was the residents' understanding that these docks were privately owned by the two units to which they corresponded and that one needed explicit permission to use another's dock.

The lake on which the Millers lived was owned by the defendant Sanitary & Improvement District No. 177 (SID 177). The lake was guarded by a gate which had a "no trespassing" sign stating that the lake was for the use of residents only. The residents of the lake were not required to pay a fee for use of the lake, but they paid real estate taxes to SID 177 which were used for the maintenance of the lake. The rules and regulations promulgated by SID 177 provided that persons who were neither residents nor guests of residents were to pay a fee to use the lake.

Olson, who was 21 years old at the time of the accident, had been going to the Millers' townhome since he was about 10 years old. He lived across the street from two of the Millers' grandchildren, Scott and Ted Weidner, and had been at the lake more times than he could count. On July 4, 1992, Olson, the Weidner brothers, and other friends went to the Millers' townhome to eat and enjoy the summer, lake activities.

Throughout the afternoon, Olson and other guests played volleyball, and in between games, Olson and the Weidner brothers dove off the Tighe-Varvel dock. Before doing so, however, Olson and Scott Weidner, in accordance with their customary practice, had tested the depth of the water to see where it was safe for diving. Olson testified he knew that there were some areas around the dock which were unsafe. For instance, Olson was aware that it was unsafe to dive directly off the end of the dock or to dive to the east of the dock.

Olson and Scott Weidner were able to locate a "target area" off the southwest orner of the ighe-Varvel dock. Olson estimated that this area of greater depth was approximately 8 to 12 feet in diameter, but the precise parameters of the diving area were not clearly defined. Olson attributed this area of greater depth alongside the dock to "propwash," an area where the sand has been moved by a boat starting from a dead stop.

Olson successfully dove off the dock approximately five times that day. On the sixth dive, however, Olson dove somewhat east of the target area in an attempt to miss Scott and Ted Weidner, who had immediately preceded him. Olson hit his head on the bottom of the lake and broke his neck. He now suffers permanent quadriplegia.

At the time of the accident, Tighe was out of town and unaware that the Millers' grandchildren and their guests were planning to use the dock. Although Tighe had once granted permission for the Millers' granddaughters to use the dock for sunbathing, Tighe testified that he had never given the Millers "blanket permission" for their guests to use the dock. Tighe testified at his deposition that he had never seen anyone swimming or diving near his dock.

Varvel had also given the Millers' guests permission, on occasion, to use the Tighe-Varvel dock for sunbathing. However, Varvel did not give anyone blanket permission to use the dock, nor was there any evidence that he had given the Millers permission to use the dock on the day of the accident. Varvel testified he was unaware that anyone had ever used the dock for diving or jumping. He did not see Olson and the others using the dock on July 4, 1992, because he was inside preparing for his guests, who were to arrive late in the afternoon.

Following the accident, Olson sued the owners of the units corresponding to the Tighe-Varvel dock and, in addition, sued SID 177 and the defendant Riverside Lakes Recreation Association, an unincorporated homeowners' association. Olson alleged that the defendants were, jointly and severally, negligent in failing to ascertain and maintain sufficient and safe water depth; in failing to warn users of the lake, in general, and the dock, in particular, of the dangerous and shallow condition of the lake surrounding the end of the dock; and in constructing or allowing to be constructed a hazardous, dangerous structure on or in the lake in the form of a dock without providing for protection from or warning of the dangers of use thereof.

Olson further alleged that Riverside Lakes Recreation Association, Tighe, and Varvel were jointly and severally negligent (1) in failing to enforce reasonably safe rules and regulations relating to the use of the lake and the docks; (2) in failing to promulgate and publish rules relating to jumping or diving from the docks; (3) in failing to warn users of the docks of the dangers of diving therefrom by conspicuously posting reasonably safe safety rules and regulations pertaining to diving; and (4) in adopting, publishing, and posting safety rules and regulations which did not include warnings for the protection of swimmers and divers.

Summary judgment was granted against Olson as to all of the defendants. The trial court held, inter alia, that at best, Olson had presented evidence that he was a licensee and that the only duty of the occupier to a licensee is to give notice of traps and concealed dangers, which a body of water is not. The trial court also held that Olson's assumption of risk and contributory negligence in the amount of more than 50 percent barred recovery as a matter of law.

ASSIGNMENTS OF ERROR

Olson appealed the trial court's judgment to the Court of Appeals, where he made four assignments of error: The trial court erred (1) in sustaining the defendants' motions for summary judgment, (2) in finding Olson to be a mere licensee, (3) in finding that Olson had assumed the risk of his activities, and (4) in finding that Olson had been contributorily negligent in an amount greater than 50 percent. The Court of Appeals affirmed, and we granted Olson's petition for further review.

In his petition for further review, Olson argues that McIntosh v. Omaha Public Schools, 249 Neb. 529, 544 N.W.2d 502 (1996), in which we held that a student attending a school-sponsored football clinic was an invitee, dictates that Olson be deemed an invitee and not merely a licensee. Therefore, Olson contends that the Court of Appeals necessarily applied the wrong standard of care and did not make a proper determination of comparative fault. In addition, Olson asserts that the Court of Appeals erred in finding that there was no issue of material fact as to whether Olson assumed the risk of diving into the lake.

ANALYSIS

The determination of whether Olson had the status of an invitee or a licensee is governed by our decisions in McIntosh v. Omaha Public Schools, supra, and Heins v. Webster...