Harper v . Herman, 499 N.W.2d 472, Supreme Court of Minnesota (1993).

Duty of care

• On Sunday August 9 1986 Harper was one of four guests on Herman's 26 foot sailboat, sailing on Lake Minnetonka.
• Harper was invited by Palmer, another guest.
• Harper(20 years old) and Herman (64 years old) did not know each other prior to this outing.
• Herman was an experienced boater and considered himself to be in charge of the boat and his passengers.
• Harper had no formal training in diving.
• Herman positioned boat near an island in order for the passengers to go swimming
• the bottom of the lake was not visible.
• Harper dove into the water which was 2 to 3 feet deep.
• as a result of the dive he struck the bottom of the lake, severed his spinal cord, and was rendered a C6 quadriplegic.

Harper brought suit, alleging that Herman owed him a duty of care to warn him that the water was too shallow for diving. Trial court granted D's motion for summary judgement on the ground that D owed no duty to warn. Reversal by the court of appeals of summary judgement in favor of the defendant. The court of appeals held that defendant, the owner and operator of a private boat on Lake Minnetonka had a duty to warn P, that the water was too shallow for diving. The SC of Minnesota reversed and reinstate judgement in favor of defendant.

1. Does a boat owner who is a social host owes a duty of care to warn a guest on the boat that the water is too shallow for diving?
2. Was there a special relationship between the parties?

When one has the ability to protect himself, and is not deprived of that ability, and there is no expectation of protection by others, the host does not have a duty to provide protection.

1. Harman's knowledge that the water was dangerously shallow does not create liability, and therefore he had no duty to warn Harper.
2. No special relationship between the parties existed.

Previously court has held that an affirmative duty to act only arises when a special relationship exists between the parties. So was there a special relationship? Generally a special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of public lands, etc. A special relationship could only exist if Herman had custody of Harper under circumstances in which Harper was deprived of normal opportunities to protect himself. Herman did not hold considerable power over Harper's welfare, received no financial gain, and there is nothing to suggest Harper expected to receive any protection from Herman. If a child is expected to understand the inherent dangers of water (2^nd Restatement of torts), so should a 20 year old.