THIS WEEK IN TORTS

I often tell students that the cases we read are, by definition, outliers. While they may reflect ordinary disputes, they are all extraordinary because they reached the stage where a judicial opinion was written. The vast, vast majority of cases settle or come to a dispositive resolution before reaching the highest judicial level in a given jurisdiction. And only a tiny fraction of the cases that do have an appellate opinion written are then put in circulation in legal academia. So yes, all of our cases are outliers.

Sometimes our cases make the cut because the underlying facts are a vivid illustration of a legal concept. Other times we read cases because they are “important,” they are landmarks. Still other times our cases have made it into textbooks because they are eloquently written. But perhaps the most interesting cases are those where the weight of justice is precariously balanced on the knife’s edge that separates the plaintiff and defendant. These are the cases where there is no obvious answer. We don’t teach them so that students learn black letter law. We teach them so that students can start thinking like a lawyer, seeing both sides of an issue.

And so for the next two articles here on This Week in Torts we’re going to unpack one such case, Minnesota’s Harper v. Herman. In today’s Part I we will set out the facts as best as we can discern them from the record. We will try to be as impartial as possible, noting any discrepancies between the two accounts, and close with a statement arguing on behalf of each side. Finally, we will ask you to be the jury. Tell us which side should win. Don’t worry about the law, just rely on your instincts.

In Part II we will look at what happened from the time the case was filed to its ultimate resolution in the Minnesota Supreme Court. As a final note, we’d like to thank the Harvard Law Library and the Minnesota Historical Society for helping us track down the documents we’ve relied upon to build this story.

The Story

On August 9th, 1986, Theodore Herman, a 64 year-old experienced boat captain, took four guests for a boat ride on Lake Minnetonka. Jeffrey Harper, a 20 year-old college student, was one of Herman’s guests although he did not know Herman personally. One of Herman’s other guests, Cindy Palmer, had invited Harper to join the party. The group met a little before noon and boarded Herman’s 26-foot 1976 Thunderbird motorboat to spend the day swimming and sightseeing.

At some point during the trip, Harper mentioned that his sister’s friends lived on the lake and had a dock where they could go swimming. Herman agreed to take the group to the dock but, both Harper and Herman reported that the water was “weedy,” which made swimming difficult. Herman then suggested that they move to a different swimming spot off the north shore of Big Island in Lake Minnetonka that he had visited “hundreds of times.” According to the court documents, boating enthusiasts in the Lake Minnetonka area frequently swam or “engaged in water sports” near Big Island and knew that the water was very shallow (2-3 feet deep) “for a considerable distance off shore.” Herman acknowledged that he intended to park the boat in shallower water, so that his guests could wade in the water or swim. It’s worth noting that Big Island is an extremely popular and well-known party spot for Minnesotans. Hundreds of people gather off shore on Fourth of July and tie their boats together, so they can drink and socialize until the fireworks.

According to Harper, Herman stopped the boat 100-200 yards off shore. Herman disagreed and claimed that he parked only 30-40 feet from the shore. They also disagreed about whether the water was murky or clear that day. Harper and the other guests on the boat all maintained that they were unable to see the bottom of the lake, while Herman claimed he could.

North Shore of Big Island, Lake Minnetonka

After parking the boat, Herman began to lower the ladder down into the water. At this point, Harper asked Herman if he planned to go in the water and Herman replied, “yes.” Without warning, Harper stood up on his seat, stepped to the edge of the boat, and dove into the water. Unaware that the water was only 2-3 feet deep and not an experienced diver, Harper hit the bottom of the lake and severed his spinal cord. He was rendered a C6 quadriplegic and paralyzed from the shoulders down for the rest of his life. Harper likely was not the first person to suffer this fate near Big Island’s shore, as a 42 year-old man made the same mistake as Harper in 2015 and also severely injured his spinal cord.

Harper admitted that no one on the boat would have expected him to dive into the water. He also said that his intention was to execute a shallower dive, but not having much diving experience and assuming that the water was deeper, his dive was too vertical. Harper also didn’t remember whether there were other boats parked in the vicinity and if there were people wading in the water, which might have alerted Harper that the water was shallower than he expected.

The Arguments

Harper’s best argument

When you think of Harper, imagine that he is your son. He is a 20 year-old college student, out on a small boat operated by a 64 year-old co-worker. The captain is seasoned, and he has taken his boat out on this lake too many times to count. Your son and the others go for a swim but found the location substandard. The captain tells the group that he knows a better place to swim and takes them to a location that he has been to hundreds of times, by his own account. The boat is several hundred feet from shore, and the water is too murky to see the lake bed. Everybody but the captain agrees on that. The captain, who knows that the water is extremely shallow but does not tell anybody that, lowers a ladder into the water as if it were more than knee-deep. Your son asks the captain if he’s going in and he says yes, he is going in. But the captain did not tell your son that the water was only 2 or 3 feet deep, too shallow even to swim in. Your son dives into the water, far from shore. He is now quadriplegic, permanently and profoundly disabled. The captain should have warned his guests.

Herman’s best argument

Imagine that Herman is your father. He’s a good person, and likes boating. He goes out on the lake regularly, often bringing guests on his small motorboat. And when he brings guests, he looks after them. On the weekend in question, your father brought four other people out on the water with him, including a college student he doesn’t know, a guest of a guest. The group tries to swim in a location but found it too full of weeds. Your father tells them he will take them to a better spot to swim. It’s a place he has been to hundreds of times and he thinks it will be ideal because the water is shallow enough for people to get out and wade. By your father’s recollection, he pulls the boat to a spot only 30-40 feet from shore and then he starts preparing the boat for people to get out. The college kid asks him if he’s going in and then, without any warning whatsoever, climbs to the ledge of the boat and jumps into the water head-first. By his own admission, the college student didn’t think anybody else on the boat--including your father--had any idea that he would dive in like that. Swimming and diving are different, and have different requirements. Your father took the student to a place he could swim, not a place he could dive. And while your father feels horrible about what happened, he shouldn’t be held responsible for the student’s reckless actions.

Based on the facts as we’ve presented them and the best argument for both Harper and Herman, tell us which side you think should win. We’ll follow up in Part II to let you know the outcome of the case.

Ellis & Acton