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Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
ector had none. However, one can reasonably infer from the evidence that KDI knew high schools in general belonged to the Federation and knew that the Federation considered safe water depths in making the rule change on platform heights. From this one might reasonably infer that KDI had a reason to believe the Federation would make available to member schools the information the Federation considered on safe water depths with eighteen-inch platforms. However, that is not the only reasonable inference: since there is no specific evidence that the Federation shared the information with high schools, one could also conclude KDI did not have a reason to believe high schools in general were knowledgeable on the topic of safe water depths for these platforms. We therefore conclude that KDI is not entitled to summary judgment on this ground.
. We now turn to KDI's assertion that it is entitled to summary judgment because, as a matter of law, diving into shallow water is an open and obvious danger. KDI appears to rely on the "open and obvious danger" doctrine both as a reason it did not have a duty to warn, beyond the warning that was on the platforms, and as a basis for finding that Mohr was more negligent than KDI.
. The open and obvious danger doctrine is distinct from the question of whether a supplier or manufacturer exercised ordinary care under Restatement (Second) of Torts § 388 with respect to warnings. Strasser, 236 Wis. 2d 435, . The open and obvious danger doctrine is an affirmative defense and an element to be considered by the fact finder in apportioning negligence, if the supplier or manufacturer has failed to exercise ordinary care. Id. However, because the duty to warn depends under § 388(b) on whether the supplier or manufacturer has reason to believe the user will realize the danger involved, some of the facts relevant to an open and obvious danger defense may be relevant to the issue of the supplier's or manufacturer's duty. As the court explained in Strasser, one of the situations under § 388(b) in which a supplier or manufacturer has no duty to warn of a danger is when "`a mere casual looking over will disclose [the dangerous condition] unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made.'" Id., (quoting Restatement (Second) of Torts § 388 cmt. k). When danger is obvious from a mere casual looking over, the supplier or manufacturer has reason to believe that the user will realize the danger. See id., .
. In this case, whether a "mere casual looking over" would disclose the likely danger of using the platforms in less than five feet of water is one of the issues in determining whether KDI had a duty to warn the high school of that danger, whereas whether doing competitive racing starts from the platforms located at a depth of 3.5 feet is an open and obvious danger is an issue in allocating negligence, if the negligence issue is resolved against KDI.
. As to the first issue, we conclude there are factual disputes. The testimony KDI relies on is that of Mohr and some swimming coaches at his school that they were aware of the need to do shallow racing dives from the platforms in order to avoid hitting the bottom of the pool. However, it is not clear from this testimony whether they understood that there was a danger of injury in diving from the platforms into 3.5 feet of water even if one executed a proper shallow racing dive, which is what Mohr is contending. In addition, it is reasonable to infer from other testimony of the girls' swimming coach that she was not aware of this. Finally, Mohr submitted testimony from his expert that the danger of doing a shallow rac
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