Markowitz v. Arizona Parks Board

705 P.2d 937, 146 Ariz. 260, 1984 Ariz. App. LEXIS 665

• Court: Court of Appeals of Arizona
• Decided: November 6, 1984
• Docket: 1 CA-CIV 6111
• Status: Published

Opinions

OPINION

FROEB, Judge.

This is a negligence action to recover damages for injuries sustained by David Markowitz (hereafter referred to as plaintiff) when he dove into shallow waters of Lake Havasu. Plaintiff was 16 years old when the accident occurred on June 21, 1975, and was under 18 when the action was begun on his behalf by Ruth Markowitz, his mother.

The suit was brought against defendants Arizona Land Department, Arizona Parks Board and the State of Arizona (hereafter collectively referred to as “the State”). Suit against Joe T. Fallini, Commissioner of the Arizona Land Department, and Michael Ramnes, Director of the Arizona Parks Board, was earlier dismissed and the resulting judgment is not now before the court.

The State moved for and was granted summary judgment from which plaintiff and his mother now appeal.

Plaintiff sustained paralyzing injuries when his head struck a ledge or sandbar in the edge waters of Lake Havasu after he dove off a cliff on the shore. His complaint alleged that the State was negligent in failing to warn him of the dangerous conditions existing at the lake. The State moved for summary judgment on the ground that it owed plaintiff no duty to warn him of the danger of diving and that, even if it did, the -failure to warn was not a proximate cause of his injuries.

The facts are taken from plaintiff’s deposition. In June of 1975, plaintiff joined a friend and his family on a water skiing trip to Lake Havasu. From a campsite at the water’s edge known as “Three Dunes,” plaintiff and his companions spent two days water skiing and camping. At about 7:00 P.M., on the evening of June 21st, plaintiff went with his friends to a secluded cove located approximately sixty yards from the campsite, but hidden from view by the contour of the shoreline. The existence of the cove was previously unknown to plaintiff and had only been discovered by some of his companions earlier that day. When plaintiff arrived at the cove, he saw approximately fifteen people diving and swimming in the area. The waters of the cove reached to the base of a cliff from which plaintiff’s companions had earlier in the day been diving. Access to the diving spot was via a path up the back of the cliff which plaintiff described as “well worn”. Without spending any time in the waters below the cliff, plaintiff proceeded up the path to the diving spot. From the top he watched one of his companions complete her dive and swim away unharmed. Plaintiff surveyed the water below, but because of fading light could not see below the surface. Taking a trajectory different from that of the first diver, plaintiff dove into the water, striking his head on a shallow ledge or sandbar beneath the surface. Plaintiff did not know the ledge or bar was there. It appears that had his dive been further out into the cove, he would have reached deep water. There were no signs posted anywhere near the cove prohibiting diving or warning of potential dangers. Nor were he or his companions given any warning when they entered the park. There is no evidence that the State or any of its personnel were aware that visitors to the park dove from the cliff into the water.

Plaintiff described himself as a “very good swimmer” and stated that he was aware of the risks of diving into unknown waters. He stated that he knew one should check the diving area by wading into it to determine the depth, but said that he assumed it was safe because of the number of people diving and swimming and the existence of the path.

Although summary judgment is not frequently granted in negligence cases, it is appropriate when the record demonstrates that there are no material issues of fact and that the moving party is entitled to judgment as a matter of law. Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982). The material facts earlier set forth are not in dispute, and we do not find any disputed factual inferences arising from the undisputed facts in this case. Rather, the legal conclusions to be drawn from these facts are the matters in actual dispute and they are properly resolved by the court as questions of law. Bennett v. Estate of Baker, 27 Ariz.App. 596, 557 P.2d 195 (1976).

DUTY TO WARN

To succeed in establishing liability against the defendant State, it is well settled in Arizona that the plaintiff must prove the elements of an action for negligence which are “a duty owed to the plaintiff, a breach thereof and an injury proximately caused by the breach.” Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979).

The traditional point of departure for establishing liability has always been an inquiry into whether the defendant owed a duty of care toward the plaintiff in the given factual setting. Whether a duty exists upon which a party harmed may recover for negligence is a question of law for decision by the court. Barnum v. Rural Fire Protection Co., 24 Ariz.App. 233, 537 P.2d 618 (1975). If this were not so, everyone would be potentially liable to everyone else who has suffered accidental injury, the only question being whether the cause is proximate.

We approach the question of the duty of the State in a negligence case as we would the duty of an individual, a principle now well established in Arizona. Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982); Wisener v. State. Thus, in this case, we must contemplate the possession of 45 miles of shoreline and 13,000 plus acres of undeveloped land as though held in possession by an individual but at the same time open to the public for use as a park. There is no dispute that members of the public, including the injured plaintiff, were permitted freely to enter upon the lands and waters of Lake Havasu Park and to use its resources for recreation. As such, they are classified as “invitees” for purposes of tort law. There is no dispute about this in the present case.

In considering the duty of the State, it is necessary to give some perspective to the physical and geographical circumstances involved. Lake Havasu Park is not a small, confined area with supervised facilities for campers and picnickers, constantly within view of park rangers and supervisory personnel. The area is essentially undisturbed and unimproved rolling desert terrain down to the water’s edge. The State Parks publication describes it as follows:

LAKE HAVASU State Park is an unlikely meld of opposites — stark desert mountains meeting brilliantly blue water along 45 miles of shoreline to create a unique recreational world. The park extends from the Bill Williams River to Lake Havasu City and consists of 13,000-plus acres.

The general area where the diving accident occurred is described in the publication as follows:

Cattail Cove Unit: is 23 miles north of Parker on Ariz. 95 where it provides boat access and camping. Besides the launch ramp, facilities include showers and tent and camper sites with water and electricity provided ($2.25). One hundred boat camps dot the shoreline for several miles north and south of the Cove. They are accessible by water only and usually have pit toilet, table and firepot provided ($1.00). By land, nearest services are Parker Strip or Lake Havasu City; by water, Black Meadows across the lake or Havasu Springs seven miles south.

The cove and cliff from which the plaintiff dove are not particularly distinguishable from other areas of the lakeshore.

Lake Havasu Park is not unlike many natural areas in Arizona where matters of personal safety must necessarily be left to the individual since there are no other reasonable means of protection. In this sense, Lake Havasu Park is very much like other public lands which are open to the public, such as national forest land, national park land, federal lands managed by the Bureau of Land Management and various state lands. This varied, undeveloped natural environment, always inviting but often dangerous, accounts for more than 75% of the geographical area of the State and is open to the public. The waiting dangers are too numerous to set forth on any list of warnings or written precautions. If a duty on the part of federal or state government to take steps directed toward the safety of the public as it encounters the natural environment were to exist, it is difficult to say where it would start and where it would end.

The issue of a land possessor’s duty of care is intertwined with the nature of the use. Recently, the Arizona Supreme Court held that a fall from a step in an automobile service station raised factual issues over whether the condition was open and obvious to the plaintiff, and, if so, whether the station owner should have anticipated the harm in any event. Tribe v. Shell Oil Co., Inc., 133 Ariz. 517, 652 P.2d 1040 (1982). The court found the duty of care set forth in Restatement (Second) of Torts §§ 343 and 343A to be applicable:

§ 343. Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger, (emphasis added)

§ 343A. Known or Obvious Dangers

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

The context out of which the foregoing sections of the Restatement arise is essentially that of human activity creating artificial conditions upon the land. As the court suggests in Tribe, natural conditions existing on the land resist a factual conclusion that they entail unreasonable risk of harm. If, as a matter of law, they do not present an unreasonable risk of harm, then the possessor of such land will not be liable for injury where the condition is open and obvious to visitors. In these circumstances, there is no duty on the part of the possessor to protect the visitor. § 343, Restatement (Second) of Torts. In the present case, we hold that the natural environment did not present an unreasonable risk of harm.

We turn then to whether the danger involved in diving from a cliff into water of unknown depth is open and obvious. We hold that such a danger is open and obvious and that summary judgment was correctly entered by the trial court. There are few risks more obvious and few harms more probable than those which arise from diving into shallow water. See Carlson v. Tucson Racquet and Swim Club, Inc., 127 Ariz. 247, 619 P.2d 756 (App.1980) (recognizing, as obvious, the risk of diving into shallow water). This is supported by the undisputed facts of the present case. Plaintiff testified in his deposition that he was fully aware of the risks involved in diving into water from high places.

In conclusion, as to this issue, we note the recent decision of the Arizona Supreme Court in Beach v. City of Phoenix, 136 Ariz. 601, 667 P.2d 1316 (1983). In that case a pedestrian in the city of Phoenix encountered a fallen tree on the sidewalk, diverted his path of travel into the street to go around it, and was struck by an automobile. Summary judgment in favor of the defendant City of Phoenix based upon the open and obvious nature of the tree was reversed on the ground that the duty of care owed by a municipality to a pedestrian under these circumstances went beyond that which a possessor of land owes to an invitee. Thus the case is not directly applicable to the present case. In a footnote, however, the court adverted to the traditional standard of care owed by landowners to invitees and suggested that, even under that analysis, it was error to rule as a matter of law that the tree was open and obvious without considering certain exceptions to the general rule in the comments to Restatement (Second) of Torts § 343A. We do not find, however, that the exceptions referred to in the Restatement apply in this case so as to render the duty of care a fact question.

PROXIMATE CAUSE

The essence of plaintiff’s legal argument on this issue is that, defendant State of Arizona had a duty to warn of the danger presented by diving off the cliff into water of unknown depth. Even if we were to assume the existence of such a duty, the argument fails because the message of danger which would have been given by such a warning was already known and appreciated by the plaintiff.

In his deposition, plaintiff testified that the State should have warned him by means of a sign or signs stating that there were shallow areas and that the depth of the water should be checked before diving into it. However, plaintiff also testified that he was already aware of the danger of diving into shallow water. Therefore, the lack of a warning sign giving him information he already knew was not a cause of plaintiff's injuries. We hold that plaintiff has failed as a matter of law to show that the claimed omission on the part of the State resulted in his injuries. We recognize that generally the question of proximate cause is one for the jury. However, if after reviewing all the facts and circumstances reasonable men could not differ, proximate cause is a question for the court. Harmon v. Szrama, 102 Ariz. 343, 429 P.2d 662 (1967); Flowers v. K-Mart, 126 Ariz. 495, 616 P.2d 955 (App. 1980). We hold that the failure of the State to warn plaintiff was not a proximate cause of his injuries.

For the reasons discussed, the judgment of the trial court is affirmed.