Hornbostel v. South Burlington School District, No. 1502-01 CnC (Katz, J.,

Feb. 4, 2004)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.]

STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. 1502-01 CnCv

HORNBOSTEL

v.

SOUTH BURLINGTON

SCHOOL DISTRICT

ENTRY

Plaintiff commenced this negligence action by alle ging that he was injured when he “made a dive into a snowbank” at a school facility. The fact of the dive seems to be accepted by all partie s. The serious injury is also accepted—quadriplegia. The court has attempte d to understand better what was involved in the dive. The only gre ater detail in the record provided us comes from the deposition of another yo ungster, with whom plaintiff was engaging in this form of play, James Andres:

Q. Who was playing in the snowbank? A. Me and [plaintiff].Q. All right. What were you doing?

A. Trying to do front flips off the top of it. Q. Did you ever dive into the snowbank?

A. Yes. Q. Head-first?

A. Yes. Q. What was [plaintiff] doing? A. The same thing. Except he didn’t use his hand s to break his

fall. Q. You, in other words, dove in using your hands?

A. Yeah. And he had his hands at his side. Q. How many times did he do that? A. I’m not sure. Probably around three.

(Andres Deposition, at 10–11). The foregoing was s ubmitted by plaintiffs in response to defendant’s motion for summary judgm ent, largely underlined in red, apparently to catch the court’s attention.

In responding to the District’s presently pending summary judgment motion, plaintiffs engage in a great deal of rebuttal, but largely fail to present a theory of liability of their own. So the court is left attempting to guess what that theory is, to see if admissible evidence supports it such that it should be submitted to a j ury.

We certainly assume that plaintiff, as a fifteen y ear old student, was permitted to remain on school grounds to wait for h is mother to pick him up. Part of that assumption is that he was an invi tee on the premises and

that reasonable care was due him. The snowbank was an artificial condition on the land, created as part of plowing s now from driveways and parking areas. Defendant asserts, and plaintif fs do not dispute, that the school district owed a “duty of ordinary care.” 16 V.S.A. § 834. The district then argues that the presence of snowbanks did not breach this duty, because they pose no unreasonable risk and an y risk from them is open and obvious.No one has presented any evidence giving particula r definition to

the snowbank in question. We must therefore assume that it is an unremarkable pile of snow, resulting from plows or front-end loaders clearing an area, and storing snow along one side. Plaintiff seems to hint that there must have been some hidden object within the bank, which actually caused his injury. We reject any such sug gestion, unaccompanied by actual evidence. The mere fact that he suffered a spinal cord injury does not show that there was any foreign object wit hin the bank. Snowbanks are not natural formations; they result f rom shoveling, plowing, snowblowing or piling. They are not fluff y, fresh-fallen snow or even akin to a downy pile accumulated by the wind b ut are of a significantly denser genus. They often contain ice or dense layers of melted and re-frozen snow. This fact may be judici ally noticed, Evid. Rule 201(b); see Jarvis v. Koss , 139 Vt. 254, 255 (1981) (approving judicial notice for matters of common knowledge suc h as the fact that pigs are rooting animals), as it is generally known in V ermont and other states. See Artrip v. E.E. Berry Equipment Co. , 397 S.E.2d 821, 824 (Va. 1990) (affirming a finding that snowbanks are an open and obvious condition).

Although an artificial condition on the land, snow banks are certainly reasonable. The alternatives to snowbank s would appear to be two: Don’t plow, but let the snow become trampled, melted, re-frozen, and icy through May; or remove the snow from the si te, as by loading it onto trucks. The first alternative clearly poses a greater danger than do the snowbanks themselves; that is why Vermonters sh ovel and plow snow every winter. See Sagar v. Warren Selectboard , 170 Vt. 167, 175 (1999) (citing to standards for snow removal dating from t he 19th century). The second alternative would clearly increase the costs of snow removal. Creating a snowbank is essentially an activity with out cost—once one removes the snow from the surface, piling it up nea rby costs virtually nothing. Each property owner finds an area on whic h snow can be piled, and remain sufficiently out of the way so as to per mit ordinary activity to continue. To require total removal may be feasible for a few highly developed urban locations, such as Burlington’s Chu rch Street mall, but it is an expense which the common law has never impose d on landowners aspart of reasonable or ordinary care. Such a reques t would be analogous to

Dooley v. Economy Store, Inc. , 109 Vt. 138, 141–42 (1937). In Dooley

, the plaintiff slipped on a set of stairs in the def endant’s store. Id . Plaintiff argued that a railing would have stopped her fall o r made her injuries less

serious. Id . The Court rejected this basis for negligence: The absence of a railing was apparent to all who ha d occasion to use the stairs. Moreover, there was no evidence fairly and reasonably tending to show that a railin g would have prevented plaintiff's fall or lessened the for ce of it. The mere possibility or conjecture that it might have i s insufficient to justify a finding that it would.

Id . The same can be said for removing snowbanks. Th e creation and

maintenance of snowbanks are not unreasonable. See Sagar , 170 Vt. at 175 (acknowledging the broad authority towns have t o manage their affairs and duties including methods and manner of snow removal). Their removal is not something a business, school, or gov ernment should be required to do, as a matter of law, based merely on the speculative theory that it might prevent certain accidents.

This leads to the next question, whether the defen dant owed plaintiff a duty to either warn or make the snowban k safer from its open and obvious condition. According to the First Rest atement of Torts, a landowner owed no duty to his invitees to make the premises safe or to warn of dangers known or obvious to invitees. Rest atement (First) of

Torts § 343 (1939). The Second Restatement, however, so ftened this position by providing that when the allegedly dange rous condition is open and obvious, the landowner is not liable to invitee s for harm from known or obvious dangers except where the landowner shoul d anticipate harm in spite of the knowledge or obviousness. Restatement (Second) of Torts § 343A (1965). Essentially, this means that open and obvious dangers are

not a per se bar to negligence that they were under the First R estatement. Yet, the comments following § 343A make clear what duty anticipation means to a landowner. The basis for liability unde r § 343A centers on a landowner’s ability to 1) anticipate the injury and 2) the level of reasonable distraction plaintiff is likely to have around the danger. Id . atcmt. f. In the examples given, liability adheres m ost often when the

landowner creates distractions that blind the plain tiff to the danger, where the plaintiff is likely to immediately forget about the danger, or where the defendant forces the plaintiff to traverse the dang er despite its easily cured

nature. Id . In contrast, liability does not attach when the distraction is self-created by the plaintiff and unrelated to dang er or where the danger can be safely traversed by the exercise of ordinary care. Id . at cmt. e. To take a brief step back, snowbanks, while an open an d obvious condition, are not inherently dangerous. They don’t move. Th eir main danger arises when people are forced to traverse them to get to a necessary destination. Artrip , 397 S.E.2d at 824. The bank at issue here was no t in the middle of a necessary route; it did not collapse. Cf. McCorm ack v. State , 150 Vt. 443, 446 (1988) (discussing the effects “sloughing off” from a snowbank can have on a road). The plaintiff was not forced to traverse it or deal with it on any other basis than voluntary engagemen t. This snowbank only became a source of danger because of the form of play which several teenage boys consciously and knowingly pursued upon it.

The duty imposed upon the district is to use ordin ary care to guard against foreseeable risk. While it is foreseeable that schoolchildren, including teenagers, will play upon a snowbank, the particular form of play apparently pursued by plaintiff is less forese eable. In fact, neither party has been able to produce evidence of such an activity being litigated before. Jumping upon a snowbank, climbing up, slid ing down, even finding or improvising sleds to speed up the slidin g are all foreseeable. But diving headfirst? Keeping one’s hands at one’s side? Even if foreseeable in a general sense, it smacks of reckle ss behavior that no duty can prevent. Learned Hand concluded that the duty “to provide against resulting injuries is a function of three variables : (1) The probability that the [accident will occur]; (2) the gravity of the r esulting injury, if [it] does; (3) the burden of adequate precautions.” United St ates v. Carroll Towing

Co. , 159 F.2d 169, 173 (2d Cir. 1947). What is the pr obability that teenagers will dive into snowbanks with their hands at their side? We must conclude that such dangerous if not suicidal c onduct is highlyimprobable. We have already discussed some of the cost of Judge Hand

would call adequate precautions—not forming snowban ks in the first place. We have indicated a view that it is unreaso nably high.

Another precaution might have been the employment of full-time parking lot supervisors, who would watch the teenag ers, until they left the school property. The school district would argue t hat such would not have prevented this accident, as plaintiff had left school grounds before he returned. Plaintiffs apparently counter this argum ent by citing Adam’s deposition testimony that he was merely sitting on the front steps of a neighboring house, before returning. This does sug gest that he left school grounds. But whether he did or did not leave is ir relevant to determination of the district’s duty. The question is essentially whether the district had a duty to warn plaintiff not dive head-first into a snowbank on its property. Again, we find an analogous situa tion enlightening and persuasive. In Bachelere v. Chicago Park District , the Illinois Supreme Court considered a consolidated group of park users (invitees) who sued after sustaining severe injuries from diving off co ncrete seawalls into shallow parts of Lake Michigan. Bachelere v. Chica go Park District , 665 N.E.2d 826, 828 (Ill. 1996). The Illinois Court fo und that diving into a natural body of unknown depth was an open and obvio us condition and that even the young and immature could reasonably f oresee this danger.

Id . at 832, 836. Such accidents could be anticipated in a general sense, but the Park, they concluded, should be able to rel y on individuals to appreciate the dangers. Id . at 837. The Illinois Court concluded that it was neither practical nor economically feasible to mark the areas around the lake or provide lifeguards to warn divers. Id

.

In the present case, it is not practical or econom ically feasible to require the district to provide monitors on the sch ool grounds to warn students from in engaging in obviously dangerous ac tivity. Even a young child should reasonably foresee the danger of divin g into a snowbank, which, like the water of Lake Michigan, is of unkno wn depth, hardness, and contents. While we are sympathetic to the trag ic situation of theplaintiff, we cannot conclude that the district had a duty to warn him about

the obvious danger of diving headfirst, with arms a t his side, into a snowbank. Furthermore, unlike Bacheleres , this activity was unique. In

Bacheleres , the Illinois Court considered the activity’s perv asiveness to be important. Id . at 838 (noting a metal ladder at the site of one accident, which may have signaled the site’s expediency for d iving). Indeed, the plaintiffs both claimed to have dove in the spots o n previous occasions.

Id . at 829. Nevertheless, the Illinois Court found t hat such prior activity did not vitiate the obvious nature of the danger an d create a duty in the Park to take any further steps to warn about such d angerous activities. Id

. at 836. Likewise, the district did not have a duty to warn the plaintiff off the snowbank because the danger was obvious. Moreo ver, plaintiff’s behavior was reckless and apparently isolated enoug h to make this an aberrant event, which was beyond anything but the m ost general foreseeability, let alone duty. As a result, the d istrict had no duty to warn plaintiff about diving into the snowbank.

Without a duty, there can be no breach and therefo re no case for negligence. The purpose of summary judgment is to “smoke out” the facts to see if anything remains to be tried. Donn elly v. Guion , 467 F.2d 290, 293 (2d Cir. 1972). Even in the most generous light, plaintiff fails to show demonstrate a legal cause to hold the district liable for his injuries. Since plaintiff has failed to come forward with adm issible evidence showing a cause of action, his complaint cannot sta nd as a matter of law.

Based on the foregoing, defendant’s motion for sum mary judgment is granted. The case is dismissed.

Dated at Burlington, Vermont, _________________, 2 004.__________________________ Judge