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Vigil v. Franklin11/30/2004
in Teneyck), distinguished Teneyck on the grounds that it arose in a commercial context and "the plaintiff has not directed our attention to any statutes, comparable to those cited in Teneyck, indicating that the General Assembly intended to remove the protection afforded landowners by the open and obvious danger doctrine in connection with the myriad private purposes to which land may be put." Id. at 1084 (emphasis added). I agree that the existence of statutes codifying the 'no duty' rule as to some sporting events or other activities has little persuasive impact here, where the question is whether the general assembly intended to afford private landowners the right to assert the no duty rule in a negligence action. I cannot agree that by limiting the causes of action, the general assembly also implicitly limited all defenses thereto.
VI. Application
The court of appeals held, as a matter of law, that the landowners had no duty to warn Vigil of the risk from diving into an above ground shallow swimming pool on their land because it presented an open and obvious danger. The trial court held similarly in granting the defendants' motion for summary judgment.
The majority of jurisdictions hold that an above ground pool is an open and obvious danger. See Hemphill v. Johnson, 497 S.E.2d 16 (Ga. App. 1998), O'Sullivan v. Shaw, 726 N.E.2d 951 (Mass. 2000), Barham v. Knickrehm, 661 N.E.2d 1166 (Ill. App. 1996), Donacik v. Pool Mart, Inc., 705 N.Y.S.2d 784 (N.Y. App. Div. 2000), Long v. Manzo, 682 A.2d 370 (Pa. Super. 1996), Griebler v. Doughboy Recreational, Inc., 466 N.W.2d 897 (Wis. 1991), Glittenberg v. Doughboy Recreational, Inc., 491 N.W.2d 208 (Mich. 1992), but see, Bertrand v. Allen Ford, Inc., 748 F.2d 411 (7th Cir. 1984), Leonard v. Pitstick Dairy Lake and Park, Inc., 464 N.E.2d 644 (Ill. App. 1984). Indeed, Colorado has applied the open and obvious danger doctrine in cases involving injuries sustained from diving into shallow water. Smith, 726 P.2d at 1125, Webb v. Thomas, 133 Colo. 458, 296 P.2d 1036 (1956), Phipps v. Mitze, 116 Colo. 288, 292, 180 P.2d 233, 235 (1947) (danger of reservoir was open and apparent therefore landowner not liable for child's drowning).
Vigil testified he was attempting to perform a shallow racing-style dive into the pool. By itself, this is some indication that he, too, was aware of the risk associated with diving into shallow water. See Glittenberg, 491 N.W.2d at 208 ("fact that ... plaintiffs acknowledged the necessity to perform a shallow dive simply underscores the conclusion that the risk of diving in shallow water is open and obvious").
Applying the open and obvious doctrine to this case, I would conclude that the landowner had no duty to warn Vigil of the risk of diving into an above ground swimming pool and summary judgment was appropriate.
VII. Conclusion
The premises liability statute was enacted to protect landowners. By defining and limiting the circumstances in which a landowner may be liable to someone entering upon his or her land, the general assembly did not intend, by my reading, to abrogate defenses that would otherwise be available to that landowner at common law. Indeed, those defenses are consistent with the very essence of the statute and hence should be honored by the courts. Accordingly, I would affirm the court of appeals, and respectfully dissent from the majority's opinion.
I am authorized to state that JUSTICE HOBBS and JUSTICE COATS join in this dissent.
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