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Mohr v. St. Paul Fire & Marine Ins. Co.12/18/2003
ing dive from an eighteen-inch starting platform in 3.5 feet of water would not be obvious to coaches.
. As to the issue whether there is an open and obvious danger for purposes of allocating negligence, we also conclude there are disputed issues of fact. There is conflicting evidence on whether Mohr was executing the type of shallow racing dive he was taught to do when he was injured or instead was attempting to dive into the water at a steeper angle. There is also, as we have noted above, a conflict in the evidence over whether Mohr understood that there was a danger in 3.5 feet of water even if he did the shallow racing dive as he had been instructed. Finally, from the evidence that the school placed the platforms at the shallow end of the pool specifically for the use of swimmers like Mohr, one can infer that he reasonably believed it was not dangerous to do a shallow racing dive from the platforms as he had been taught by his coaches.
. KDI relies on cases in which the court granted summary judgment or a motion to dismiss against persons who dove into water of unknown depths, concluding that they confronted an open and obvious danger as a matter of law. These cases are not applicable. Mohr was supposed to be doing a shallow racing dive off the platform into the water, which everyone knew was 3.5 feet. Whether he was negligent in the manner in which he dove is, at this stage, in dispute; but there is no basis for concluding as a matter of law that he acted unreasonably in diving into the pool.
. The parties also debate whether, if Mohr did confront an open and obvious danger, he would on that basis be more negligent than KDI as a matter of law or if that would be only a factor in allocating negligence. Because this issue will likely arise at trial, we address it now.
. KDI relies on Wagner v. Wisconsin Municipal Mutual Insurance Co., 230 Wis. 2d 633, 638, 601 N.W.2d 856 (Ct. App. 1999), for the proposition that " ithin the context of comparative negligence principles, the application of the open and obvious danger doctrine is tantamount to a determination that the plaintiff's negligence exceeds the defendant's as a matter of law." However, this statement is difficult to reconcile with the supreme court's holding in Rockweit v. Senecal, 197 Wis. 2d 409, 423, 541 N.W.2d 742 (1995), in which the supreme court reaffirmed that it had in previous cases
abrogated the common law immunity [for owners of premises] by subsuming the concept of open and obvious danger into the consideration of common law negligence. In the ordinary negligence case, if an open and obvious danger is confronted by a plaintiff, it is merely an element to be considered by the jury in apportioning negligence and will not operate to completely bar the plaintiff's recovery.
The statement from Wagner is also inconsistent with Strasser, which relied on Rockweit in explaining the distinction between the question of ordinary care and the open and obvious danger doctrine, and expressly recognized that "the doctrine operates ... to allocate the plaintiff's contributory negligence." 236 Wis. 2d 435, . When a decision from this court conflicts with a decision of the supreme court, the latter controls. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). We therefore follow Rockweit and Strasser. Under those cases, whether Mohr confronted an open and obvious danger in diving into the pool is an element for the jury to consider in deciding if and to what extent he is contributorily negligent. The determination that he did confront an open and obvious danger does not result in a conclusion as a matter of law that he was more negligent than KDI.
2. Strict Pr
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