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White v. Quechee Lakes Landowners' Association9/24/1999
the superior court to examine it as well. Quechee Lakes cannot now claim that the superior court overstepped its authority in relying on that evidence. Nor can Quechee Lakes prevail on its motion to strike portions of Helo's supplemental printed case and brief.
B. Substantive Issues
Irrespective of the proper scope of the record below, Quechee Lakes contends that there were disputed questions of material fact as to whether it had acquiesced in the continuation of a known dangerous condition. In support of this argument, Quechee Lakes challenges the superior court's finding that in 1973 the Association selected a control panel without a timer for the women's sauna. Quechee Lakes raised this same objection in its motion for reconsideration, to which the court acknowledged that in 1973 Quechee Lakes's predecessor-in-interest selected the control panel for the women's sauna, and that in 1990 Quechee Lakes purchased a control panel with a timer for the men's sauna.
In any event, contrary to Quechee Lakes's assertions, the superior court did not focus primarily on the absence of a timer in the women's sauna. Rather, the court granted Helo summary judgment because few of Anthony White's claims implicated Helo in any way, and to the extent that the absence of safety features contributed to a dangerous condition in the sauna, Quechee Lakes acquiesced in that danger, given that (1) there was no evidence suggesting that the sauna's heating unit or control panel contained hidden dangerous defects unknown to Quechee Lakes; (2) it was undisputed that Helo had taken no part in the design or construction of the sauna itself; and (3) the sauna's features, dangerous or not, had existed unchanged and obvious to Quechee Lakes for over twenty years.
Seeking to avoid summary judgment on the acquiescence issue, Quechee Lakes submitted along with its motion for reconsideration an affidavit of its building superintendent, Erik Roth, containing the following statement: "At no time during my tenure at Quechee Lakes did I become aware of any dangerous condition associated with the sauna." Quechee Lakes now relies heavily on this bare assertion to claim that a disputed issue of material fact exists, even though the assertion is contrary to overwhelming evidence at the underlying trial indicating that Roth and other Quechee Lakes employees were well aware, as well they should have been, of the potential danger posed by saunas. Indeed, evidence at the White trial indicated that Quechee Lakes's own safety committee considered how to make the women's sauna safer, and that Roth and other employees were aware of the committee's recommendations. While we generally accept as true allegations made in opposition to motions for summary judgment, Quechee Lakes cannot survive Helo's summary judgment motion by raising an unsupported assertion that is contrary to the affiant's prior undisputed testimony. See Central Hudson, 202 N.Y.S.2d at 822 (mere conclusory allegations without facts to support them are insufficient to sustain indemnity complaint).
Quechee Lakes contends, however, that the superior court erred in its acquiescence analysis because although the conditions of the sauna were open for all to see, the dangerousness of those conditions was not obvious to ordinary consumers with ordinary knowledge common to the community. This argument is not persuasive. We agree with the trial court that the obviousness of the potential danger created by a superheated room such as a sauna is comparable to the obviousness of the danger posed by an openly accessible pond. See Goulette, 153 Vt. at 651, 571 A.2d at 75 (owner of apartment complex acquiesced to danger created by absence of fence surrounding po
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