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Harper v. Herman | 499 N.W.2d 472 (1993)

Generally, a defendant isn’t liable for injuries caused to a third person when the defendant knows of a foreseeable risk of harm to the third person but fails to warn that person of the risk. However, a defendant may be liable for failing to warn a third person of such risks when the defendant and third person have a special relationship.In the 1993 case Harper versus Herman, the Minnesota Supreme Court considered whether a boat owner and passenger had a special relationship that required the owner to warn that the water was too shallow for diving.

In August 1986, Jeffrey Harper was one of four social guests aboard Theodor Herman’s twenty-six-foot boat on Lake Minnetonka. At the time, Herman was an experienced boat owner, having spent hundreds of hours on the lake. Additionally, prior to the outing, Harper had never met Herman.

After a few hours of boating, the group decided to go swimming at Big Island, a popular recreation spot on the lake. Herman was familiar with Big Island and was aware that the water was shallow for a good distance from the shore. Herman positioned the boat somewhere between one hundred to two hundred yards from the island in an area shallow enough for his guests to use the boat ladder to enter the water. The bottom of the lake wasn’t visible from the boat.

While Herman was lowering the ladder, Harper asked him if he was going into the water. When Herman responded yes, Harper, without warning, dove headfirst off the side of the boat into approximately two to three feet of water. As a result of the dive, Harper suffered severe injuries to his spinal cord and was rendered a quadriplegic.

Subsequently, Harper sued Herman in state district court for negligence. Specifically, Harper argued that Herman breached his duty of care to warn Harper that the water was too shallow for diving. In response, Herman moved for summary judgment, arguing that no such duty was required under the law. The district court granted Herman’s motion and Harper appealed to the court of appeals. The appeals court reversed and remanded the case, concluding that Herman voluntarily assumed a duty to warn Harper not to dive into the shallow water when he allowed Harper onto his boat as a social guest. Herman appealed to the Minnesota Supreme Court.

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