Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
The opinion of the court was delivered by: Kapsner, Justice
[¶1] Corey Botner appeals from a district court's summary judgment dismissing his claim against Bismarck Parks and Recreation District (Bismarck Parks). We hold the district court erroneously granted summary judgment because Botner produced sufficient evidence to create genuine issues of material fact regarding whether Bismarck Parks breached its duties to maintain its property in a reasonably safe condition and to provide adequate supervision. Therefore, we reverse the district court's summary judgment and remand the case for further proceedings consistent with this opinion.
[¶2] In July 2006, Botner's five-year-old son, D.B., went to Hillside Pool on a field trip with his daycare provider, Early Childhood Learning Center (ECLC). D.B. suffered serious injuries when he fell from the high diving board. D.B. began to run on the diving board, stumbled, and fell onto the concrete below. Botner sued Bismarck Parks, which owns and operates Hillside Pool. Botner claimed Bismarck Parks committed actionable negligence by failing to: provide safe equipment, properly supervise diving board users, or warn users of the dangers associated with the high diving board. Botner claimed Bismarck Parks' negligence was the proximate cause of D.B.'s injuries. In its answer, Bismarck Parks admitted D.B. fell from the high diving board, but denied any negligence or liability. Thereafter, Bismarck Parks filed a third-party complaint against ECLC, claiming it negligently supervised D.B. Bismarck Parks also filed a motion for summary judgment, arguing (1) Botner failed to produce sufficient evidence to establish it acted negligently; (2) Botner's claims were barred by the doctrine of discretionary immunity under N.D.C.C. §á32-12.1-03; and (3) the dangers posed by the high diving board were open and obvious.
[¶3] The district court granted Bismarck Parks' motion on the first ground, concluding Botner failed to produce sufficient evidence to create material issues of fact regarding whether Bismarck Parks committed actionable negligence. While the district court stated "Bismarck Parks had a duty to maintain its property in a reasonably safe condition," the court found "there is no evidence to suggest that Bismarck Parks did not take reasonable measures to prevent injuries. Indeed, the diving board was in use for over 50 years before any major injuries occurred." In addition, the district court found "there is no evidence to suggest that the diving board was not reasonably safe" because none of the persons deposed by either party "has any knowledge about whether modifications were needed to make the diving board reasonably safe." The district court also found there was no issue of material fact regarding whether Bismarck Parks should have modified the high diving board's guardrails because "[t]here is no evidence to suggest that the guardrails were not adequate or that the guardrails presented any foreseeable danger."
[¶4] In addition, the district court stated Bismarck Parks had a duty to adequately supervise swimmers and properly train lifeguards. However, the district court found "there is not an issue of material fact regarding whether any lifeguard had a duty to stop [D.B.] from running prior to the time that he would have jumped off the diving board." The district court based this finding upon the testimony of lifeguard Rachel Wiche, who was watching the high diving board when D.B. fell off, as well as another lifeguard on duty the day of the accident. Both testified their practice was to warn persons who ran on the diving board after they jumped and surfaced, not while they were running. The district court inferred from the lifeguards' testimony "that it is safer to let a person jump off the diving board once that person starts running on the diving board; blowing the whistle during the run could cause a distraction which could result in a fall."
[¶5] The district court also found "there is not an issue of material fact as to whether the lifeguards had any reason to know that [D.B.] was going to use the high diving board in an improper way or that [D.B.] was not capable of using the high diving board." In support, the district court noted:
[T]he lifeguards previously tested [D.B.] to make sure that he could use the high diving board. [D.B.] passed that test. Once [D.B.] passed the test, he used the high diving board numerous times, including in front of his mother. Between the time that [D.B.] passed the test and the time of [D.B.'s] accident, nobody ever witnessed [D.B.] running on the high diving board.
Based upon these findings, the district court concluded Botner failed to produce evidence demonstrating Bismarck Parks failed to adequately supervise D.B.'s use of the high diving board.
[¶6] Because the district court granted summary judgment on the basis of Botner's failure to produce evidence establishing Bismarck Parks committed actionable negligence, the district court did not address whether Bismarck Parks has discretionary immunity or whether the dangers associated with the high diving board were open and obvious. Botner now appeals.
[¶7] Botner argues this Court should overturn the district court's summary judgment because he produced sufficient evidence to create material issues of fact regarding whether Bismarck Parks committed actionable negligence by failing to have the high diving board's guardrails extend to the edge of the pool or failing to properly supervise D.B. We agree.
[¶8] In Farmers Union Mut. Ins. Co. v. Associated Elec. & Gas Ins. Servs. Ltd., 2007 ND 135, ¶á7, 737 N.W.2d 253, this Court explained its review of a district court's ...