Law Life: Is diving into swimming pool an 'open and obvious' danger?

By Pat Murphy
The Daily Record Newswire
 
Common sense protects most of us from the tragic consequences of diving head first into a swimming pool of unknown depth.
But common sense does not always prevail in the court room.

The Oklahoma Supreme Court recently decided that an apartment complex may be liable for a guest who was left paralyzed after diving into the shallow end of an outdoor swimming pool.

The court concluded there was a genuine issue of whether “the diver was presented with a deceptively innocent appearance of safety which cloaked the reality of danger.”

The injured diver is Cassidy Sholer. On the night of May 31, 2005, Sholer visited friends at an apartment complex in the Oklahoma City area. The apartments are owned and operated by ERC Management Group.

Around 11:30 p.m., Sholer and a few friends went to the pool to take a dip.

Sholer had been drinking that night, but there is a dispute as to how much she had imbibed.

The pool itself was secured by gates, but there is a dispute as to whether the gates were locked at the time.

The depth of the pool is marked, but there is a dispute as to the visibility of the depth markers.

The area was illuminated, but there is a dispute as to how good the lighting was.

However, there is no dispute that Sholer did not know how deep the pool was when she decided to dive in.

Unfortunately, Sholer attempted a “racer’s dive” at the shallow end of the pool, which happened to be three feet deep. Her head struck the bottom, rendering her a quadriplegic.

Sholer sued for negligence, alleging that that the apartment complex failed to keep the pool area safe by locking the gates, providing adequate lighting, and posting clear and visible signage warning of the depth of the pool and the danger of diving.

The apartment owner’s defense was about as straightforward as a property owner can get: the danger of diving head first into a pool with an unknown depth is open and obvious.

The trial court granted summary judgment on that basis, but the Oklahoma Supreme Court weighed in and decided that Sholer should have the opportunity to bring her case before a jury.

The court observed that “[d]espite Sholer’s admissions indicating that she understood the dangers of diving into waters with an unknown depth, she also indicated that the pool’s lighting made her believe that it would be safe to do a shallow-water dive.

Based on what she observed, Sholer thought the water was as deep as five or six feet. Sholer specifically stated that her perception was linked to the pool’s lighting which created shadows.”

The court concluded that “the openness and obviousness of the dangerous condition and whether Sholer appreciated the risk are questions for the trier of fact making the entrance of summary judgment inappropriate.” (Sholer v. ERC Management Group)
Chief Justice Steven Taylor issued a dissent joined by Justice James Winchester. Justice Taylor hit the mark in his dissent with objections that readily apply to so many of these diving injury lawsuits.

“An intoxicated young woman decided to dive head first into a shallow swimming pool. A few feet from her dive was a marker clearly indicating the water was only three (3) feet deep. She admits that was a dangerous act on her part. The danger of diving into water of unknown depth is open and obvious. ...

“The combination of being under the influence of alcohol and diving head first into very shallow water will usually result in unfortunate serious injury. However unfortunate, this injury is not the legal responsibility of the apartment complex,” the judge wrote.