Orthmann v. Apple River Campground, Inc.

Decision Date19 March 1985
Docket NumberNo. 84-1290,84-1290
Citation757 F.2d 909
PartiesOwen ORTHMANN, Plaintiff-Appellant, v. APPLE RIVER CAMPGROUND, INC., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Clint Grose and Shawn Bartsh, Grose, Von Holtum, Sieben & Schmidt, Minneapolis, Minn., for plaintiff-appellant.

Robert F. Wall, Richards, Wall & Harris, Hudson, Wis., Thomas D. Bell, Doar, Drill & Skow, New Richmond, Wis., for defendants-appellees.

Before CUDAHY and POSNER, Circuit Judges and SWYGERT, Senior Circuit Judge.

POSNER, Circuit Judge.

Owen Orthmann, age 19, was rendered a quadriplegic when he dove into the Apple River near the village of Somerset, Wisconsin, and his head struck a rock on the shallow bottom. A resident of Minnesota (to which he moved after the accident), Orthmann brought this diversity suit in a federal district court in Wisconsin against the village and against eight firms that comprise the Floater's Association. Members of the association rent inner tubes for floating down the river to tourists like Orthmann, who was injured when he interrupted his float to go on shore to do some diving. The district judge granted the motion of the members of the Floater's Association, made under Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint for failure to state a claim, and the village's motion for summary judgment. Thus the complaint was dismissed in its entirety, and Orthmann has appealed.

A statute of Wisconsin provides that a suit may not be brought against a public agency unless two conditions are satisfied: "written notice of the circumstances of the claim" must be served on the agency "within 120 days after the happening of the event giving rise to the claim," unless the "agency had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial to the defendant" agency, Wis.Stat. Sec. 893.80(1)(a); and "a claim containing the address of the claimant and an itemized statement of the relief" sought "must be presented to the appropriate clerk [for the defendant agency,] ... and the claim ... disallowed," id., Sec. 893.80(1)(b). No claim was ever presented to the village. Section 893.80(1)(b), unlike (1)(a), contains no excuses, and the Wisconsin courts interpret its requirement strictly (as must we in this diversity case, since the Wisconsin statute clearly is "substantive" for purposes of applying the rule of Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938)). See Rabe v. Outagamie County, 72 Wis.2d 492, 499-501, 241 N.W.2d 428, 432-33 (1976); cf. Mannino v. Davenport, 99 Wis.2d 602, 614-15, 299 N.W.2d 823, 829 (1981). Orthmann is therefore barred from suing the village. But should he want to reinstitute his suit against the village (assuming it is not barred by the statute of limitations) by filing his section (1)(b) claim now, the question would arise whether, as the district court thought, he is barred anyway because he failed to file the notice required by section (1)(a), and we ought to address this question now, in order to minimize the parties' uncertainty about the possibility of reinstatement.

The accident occurred on July 19, 1980, and the complaint was not filed till July 13, 1983--three years later. No written notice of the circumstances of Orthmann's claim was ever served on the village. Orthmann says the village knew of the accident because, although it occurred outside of the village limits, a village policeman rushed to the scene along with men from the county sheriff's office, and because three months after the accident an investigator for Orthmann sought information from that policeman and another village policeman. But if knowledge of an accident by a municipality's police officers were knowledge by the municipality, the notice statute would have little effect in personal-injury cases, since police are called to the scene of almost every serious accident, sometimes--as here--outside their own jurisdiction. In some cases the circumstances make it obvious that the municipality will be a defendant. For example, in Rabe v. Outagamie County, supra, 72 Wis.2d at 497, 241 N.W.2d at 431, where the plaintiff's injury was caused by county employees who were loading tree stumps onto vehicles on county business, there could be no doubt that the county was the potential target of a tort suit. Here the accident occurred outside of the village limits and no village employees were involved, at least directly; the only theory of municipal liability is that the village was a lessor of a member of the Floater's Association. This liability is not so transparent that actual notice can be presumed.

However, the record indicates that, several months before bringing the present suit, Orthmann filed an identical suit in Minnesota against the same defendants, including the village. The filing of the suit gave the village actual notice of Orthmann's claim. If Orthmann files his (1)(b) claim against the village, the claim is disallowed, and Orthmann refiles his suit against the village and shows that his delay in providing (by means of the Minnesota suit) notice of his claim was not prejudicial to the village, then the Wisconsin notice statute would not be a bar to his maintaining the suit.

Regarding the dismissal of the complaint against the other defendants, a different issue is presented. As fleshed out by certain documents in the appellant's appendix, of which more shortly, the complaint alleges that these defendants--a campground, a restaurant, and other businesses in Somerset--joined together in a commercial venture (the "Floater's Association") to promote innertubing on the Apple River. On the day of the accident Orthmann rented an inner tube from the campground, where he had camped the night before. The floater is supposed to float down a four-mile stretch of the river and when he comes to the end return on a bus hired by the defendants; the rental fee that Orthmann paid the campground included the bus ride. The defendants own most of the land on both sides of this stretch of the river and take various measures to keep the river clean, such as providing litter bins on the banks. The place where Orthmann dove from, however, was owned not by any of the defendants but by a family named Montbriand. A tree on the property had grown out over the river and kids liked to dive off it, but when Orthmann arrived the queue for the tree was too long and he decided to dive off the bank instead. The water was cloudy, and was reflecting the sun, so that Orthmann couldn't see the bottom, but he was reassured by the fact that he had seen other people dive into the river in the same area without incident.

If the accident had occurred while Orthmann was in the inner tube, there would be no doubt that the complaint should not have been dismissed on the pleadings. One who invites another to engage in a sporting activity for a fee owes him a duty of care. Of course, if the hazard was obvious, or so inseparable a part of the sport that it was a risk assumed by engaging in it, or if the defendants had no reason to know of the hazard (maybe some trespasser had dropped the rock into the river the night before the accident), they might well escape liability. But these issues could not be resolved on the pleadings. The complaint would be good against a Rule 12(b)(6) motion.

It is true that only one defendant (the campground) dealt directly with Orthmann, leaving unclear the role of the other seven members of the Floater's Association. But the complaint alleges--not implausibly in light of the name of the association--that floating was a joint venture of the Association's members; and whatever the ultimate truth of this allegation, it is enough to prevent a member from getting the complaint dismissed under Rule 12(b)(6) just because he did not deal directly with Orthmann. This is not to say that a restaurant which contributed to the cost of a flyer advertising floating, in the hope of getting business from floaters, would be liable as a joint tortfeasor for the torts of the firms actually engaged in renting inner tubes or launching sites. The restaurant would lack the "equal right to a voice in the direction of the enterprise" that is an element of the joint-enterprise doctrine. Restatement, Second, Torts Sec. 491, comment c (1965); see also Prosser and Keeton on the Law of Torts Sec. 72 and p. 519 (5th ed. 1984); Samson v. Riesing, 62 Wis.2d 698, 709-10, 215 N.W.2d 662, 668 (1974). But if the restaurant was a joint venturer in floating, it could not escape liability just by not dealing face-to-face with the floater who came to grief. See Pritchett v. Kimberling Cove, Inc., 568 F.2d 570, 579-80 (8th Cir.1977), and Kahle v. Turner, 66 Ohio App.2d 49, 53, 420 N.E.2d 127, 130 (1979)--cases somewhat like the present case.

We can take the analysis a step further, and assert with some confidence that if the defendants (or perhaps just one of them, if they were joint venturers) had owned the Montbriand property, with its popular tree, the complaint would withstand a Rule 12(b)(6) motion. Although the mere fact that you invite people into a part of your property for a fee does not make them business invitees on the rest of the property, see, e.g., Davis v. United States, 716 F.2d 418, 424 (7th Cir.1983), we are supposing a situation in which an enterprise trying to make a profit out of floating knows that its customers, while floating down the river, pass by land owned by the enterprise that is conveniently and enticingly fitted with a natural diving board, and that some of these customers land and dive from the tree and the surrounding property. Floating is a summer sport. (Orthmann was injured in July.) A brochure of the Floater's Association shows as one would expect that floaters are young and wear bathing suits. ...

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