Anatomy of a Case: Harper v. Herman (Part II)

NB: In this article we will link to PDFs of all of the relevant legal documents we discuss. Though these documents are part of the public record, law students rarely encounter documents like them before they become practicing attorneys.

In Part I, we asked you, the readers, to serve as the jury for Harper v. Herman. To this point, you have voted largely in favor of boat captain Herman. Those who have commented have expressed sincerity towards Harper, but felt that to some degree what he did was patently risky and that Herman shouldn’t have to pay for those mistakes. It’s a particularly interesting exercise for us because in the real Harper v. Herman case, there was no jury. In fact, in nearly seven years of litigation, nobody--no jury, no judge--assessed the credibility of Theodore Herman. Nobody ever took the measure of Jeffrey Harper.

For those of you who aren’t practicing lawyers, that may come as a surprise, but it’s not at all uncommon. Throughout this Part II of the Harper v. Herman story we’ll give you a blow-by-blow account of the legal battle following Jeff Harper’s fated plunge into Lake Minnetonka. Hopefully it will not only shed light on this particular case but also our civil legal system.

The accident from Harper v. Herman occurred on August 9, 1986 but it wasn’t until July 24, 1990 that the case was actually filed. We don’t know why the delay was so long, but the suit was filed well within Minnesota’s six year statute of limitations for such accidents. Harper and Herman’s lawyers spent the next 14 months battling through various pre-trial stages, such as a state-mandated arbitration hearing. But on September 18, 1991, defendant Herman’s lawyers took the fairly major step of filing a motion for summary judgment.

When a court makes a summary judgment, it determines the fate of a case without a trial. It is only appropriate where there are no issues of material fact in the case--that is, where, even if all the facts proposed by one party were true, the other party would still win. In essence, Herman was saying to the court, “even if Harper’s version of the story is 100% correct, the law still precludes him from recovery.”

At its heart, Harper vs. Herman is a case about negligence. Negligence is perhaps the biggest concept in torts, and to explain it would require something like a semester, so I will try to summarize it in the most succinct possible way. A defendant has acted with negligence if they owed a duty to the plaintiff, they breached that duty, the plaintiff was harmed, and the breach caused that harm. Duty, breach, cause, harm. Four words that will be familiar to any law student.

Herman's Memorandum in Support for his Motion for Summary Judgment

In his summary judgment papers, Herman focused primarily on the issue of duty, specifically that he owed no duty to protect Harper against injuries related to diving off of his boat. He argued that he owed only a ship captain’s duty, which is generally limited to the “safe operation of a vessel.” And even if Herman owed a duty to his passengers to take them to a safe place to swim (given his statements), he did not owe a duty to his passengers regarding diving. Herman also made a defense that Harper had assumed his own risk by engaging in an inherently dangerous activity. This argument in particular seems to have resonated with our readers in our survey last week.

Harper countered that focusing only on the safe operation of a boat is too narrow. Herman was not only a boat captain but also a social host (although he did not use that term). Further, Herman owed a heightened duty because, according to his own deposition, he volunteered to take his passengers to a good place to swim and was aware of certain dangers at his chosen location that would be unapparent to a casual observer--specifically that the murky water was extremely shallow. As for assumption of risk, Harper argued that he could not assume a risk because the risk was not apparent due to that same unusually shallow and murky water.

Harper's Opposition to Summary Judgment

When a party files for summary judgment, the court can either issue a judgment or declare that the case must go to trial. In this case, in addition to the papers we’ve linked to above, there was also a hearing during which the attorneys for each side made their best arguments to the court for why summary judgment should or should not be granted. Ultimately the trial judge, Delila F. Pierce, agreed with Herman and issued a summary judgment in his favor. In particular she agreed with his argument that a duty to protect swimmers is not the same as a duty to protect divers:

“Here, Herman, a social host, informed his guests that he knew of a good swimming area.  Such a statement may have created a duty to warn his guests of unobservable swimming hazards.  Herman, however, did not inform his guests that he knew of a good place for diving.  Hence, he had no duty to warn Plaintiff of any dangerous diving conditions.” Order for Summary Judgment and Memorandum, File No. PI 90-13055, MN 4th Judicial District, Oct. 23, 1991.

This is a fascinating argument, and one that is completely absent from the Supreme Court opinion students read today. At its core appears to be a disagreement as to whether the term “swimming” encompasses the activity “diving.” To Harper they are one and the same. To Herman, one is a normal activity and the other is inherently dangerous. 

Knowing when to appeal and when to pack up and go home is an extremely important part of an attorney’s job. Appeals cost money and take time. And in a personal injury case like this, that time and money is almost always going to come from the plaintiff’s lawyer because they tend to operate on a contingency fee basis. That is, the plaintiff pays nothing for the lawyer’s time or materials, and in exchange the lawyer claims 1/3rd of any award or settlement. The firm representing Harper only works on a contingency fee basis, so they took a business risk by filing an appeal to State of Minnesota Court of Appeals.

The specifics of an a judicial structure vary from jurisdiction to jurisdiction, but the model in Minnesota is fairly representative. There is a trial court level at which witnesses are examined and cross examined, facts are found, etc. This is what you are probably used to seeing on television and in movies. Law and Order, a Civil Action, and of course my favorite, My Cousin Vinny. Trial courts often have juries and opening arguments and closing arguments, although here we skipped all that when the trial judge granted Herman’s motion for summary judgment.

Next up is the Court of Appeals, where the parties may go to dispute whether the trial court made a mistake of law, misapplied the law, or made a process error (e.g. improperly allowed something into evidence). There are various other reasons to appeal, including if the finder of fact made an egregious error as to the facts of a case, but they are less common and not applicable here. In Minnesota, as in most jurisdictions, any trial court case can be appealed to the Court of Appeals and the case will be reviewed by a panel of three judges.

Here, Harper argued that Judge Pierce erred in finding that a boat captain and social host in Herman’s situation owed no duty to a diver in Harper’s situation. Unsurprisingly, Herman countered that Pierce made the right call. In an opinion written by Roland C. Amundson, the Appeals Panel agreed this time with Harper. Specifically, it said that:

“Respondent [Herman] owed a duty of care to warn appellant [Harper] not to dive from the boat because he knew the water was dangerously shallow.  Respondent voluntarily assumed a duty to exercise reasonable care when he allowed appellant to embark on his boat.” Harper v. Herman, C0-92-196, Minn. Ct. App.(1992).

In Minnesota, the ruling issued by the Court of Appeals is almost always final, as only around 100 of the 2000+ cases it decides every year are granted state Supreme Court review. Like its more famous cousin, the United States Supreme Court, appeal to the Supreme Court of Minnesota is not automatic. Appellants who wish further review by the Supreme Court must file a Petition for Review of Decision of Court of Appeals, and only around one in eight petitions are granted.

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Minnesota's Historic Supreme Court Chamber 

If the Supreme Court had not granted review of Harper v. Herman, we almost certainly would not be talking about it now. Instead, the case would have been remanded to the trial court to go ahead with the trial that Jeff Harper wanted all along. He STILL may have lost based on the facts. For example, we know that in sworn depositions, Harper claimed that the boat was 200 feet from shore while Herman believed the distance was only 30-40 feet. A jury could very well have found in favor of Herman if it believed his rendition of the facts even though Harper had won at the appeals level.

But we will never know what a jury would have found, because here, the Supreme Court did choose this case for review. And in the end the seven-judge state Supreme Court sided with Herman, saying that:

“Superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence.  Thus, Herman’s knowledge that the water was ‘dangerously shallow’ without more does not create liability...In this case, Harper was not deprived of opportunities to protect himself, and Herman was not expected to provide protection.” Harper v. Herman, 499 N.W.2d 472 (1993).

So for those keeping score at home, Herman won. Almost seven years after the accident, and four years after the case was filed, the parties would no longer be in litigation. Harper would collect nothing from Herman despite his severe injuries. Herman, for his troubles, undoubtedly paid a significant amount of money to his attorneys to defend him over all the years of litigation. By the nature of the activity, defense attorneys do not operate on a contingency fee basis.

We don’t really know what happened to Jeff Harper and Theodore Herman. Today, Harper would be a 50-something quadriplegic person, while Herman would be in his 90s. It’s been over 30 years since both of their lives were turned upside-down by the activities on a 26 foot Thunderbird Motorboat. But as evident from our summary above, their story did not end when Jeff Harper hit the lakebed. Instead, Harper and Herman were tied together in the aftermath through years of litigation. And because their dispute was reviewed by the Minnesota Supreme Court, in a way they are tied together forever.

When we read cases in law school, we rarely think about all that came before the decision we read. Students don’t know about arguments that won and lost at the stages below. For example, the Minnesota State Supreme Court never mentioned the distinction between swimming and diving in its opinion, even though that was the basis for Herman’s initial win. Students aren’t given the opportunity to consider why a losing party appealed, or even how the litigation itself impacted the parties or their attorneys. In researching this article, we reached out to the attorney for Jeffrey Harper, who is still in practice (Herman’s attorney has since retired). She did not respond to our inquiry. Given the battle she fought on behalf of her client and lost, one can only wonder how much that loss hurts to this day. Behind each case there is a story. There are winners and losers, but nearly everybody is impacted in some crucial and important way.

-Ellis & Acton

Anatomy of a Case: Harper v. Herman (Part I)

I often tell students that the cases we read are, by definition, outliers. While they may reflect ordinary disputes, they are all extraordinary because they reached the stage where a judicial opinion was written. The vast, vast majority of cases settle or come to a dispositive resolution before reaching the highest judicial level in a given jurisdiction. And only a tiny fraction of the cases that do have an appellate opinion written are then put in circulation in legal academia. So yes, all of our cases are outliers.

Sometimes our cases make the cut because the underlying facts are a vivid illustration of a legal concept. Other times we read cases because they are “important,” they are landmarks. Still other times our cases have made it into textbooks because they are eloquently written. But perhaps the most interesting cases are those where the weight of justice is precariously balanced on the knife’s edge that separates the plaintiff and defendant. These are the cases where there is no obvious answer. We don’t teach them so that students learn black letter law. We teach them so that students can start thinking like a lawyer, seeing both sides of an issue.

And so for the next two articles here on This Week in Torts we’re going to unpack one such case, Minnesota’s Harper v. Herman. In today’s Part I we will set out the facts as best as we can discern them from the record. We will try to be as impartial as possible, noting any discrepancies between the two accounts, and close with a statement arguing on behalf of each side. Finally, we will ask you to be the jury. Tell us which side should win. Don’t worry about the law, just rely on your instincts.

In Part II we will look at what happened from the time the case was filed to its ultimate resolution in the Minnesota Supreme Court. As a final note, we’d like to thank the Harvard Law Library and the Minnesota Historical Society for helping us track down the documents we’ve relied upon to build this story.

The Story

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1978 Thunderbird Cabin Motorboat 

On August 9th, 1986, Theodore Herman, a 64 year-old experienced boat captain, took four guests for a boat ride on Lake Minnetonka. Jeffrey Harper, a 20 year-old college student, was one of Herman’s guests although he did not know Herman personally. One of Herman’s other guests, Cindy Palmer, had invited Harper to join the party.  The group met a little before noon and boarded Herman’s 26-foot 1976 Thunderbird motorboat to spend the day swimming and sightseeing.

At some point during the trip, Harper mentioned that his sister’s friends lived on the lake and had a dock where they could go swimming. Herman agreed to take the group to the dock but, both Harper and Herman reported that the water was “weedy,” which made swimming difficult.  Herman then suggested that they move to a different swimming spot off the north shore of Big Island in Lake Minnetonka that he had visited “hundreds of times.” According to the court documents, boating enthusiasts in the Lake Minnetonka area frequently swam or “engaged in water sports” near Big Island and knew that the water was very shallow (2-3 feet deep) “for a considerable distance off shore.” Herman acknowledged that he intended to park the boat in shallower water, so that his guests could wade in the water or swim. It’s worth noting that Big Island is an extremely popular and well-known party spot for Minnesotans. Hundreds of people gather off shore on Fourth of July and tie their boats together, so they can drink and socialize until the fireworks.  

According to Harper, Herman stopped the boat 100-200 yards off shore. Herman disagreed and claimed that he parked only 30-40 feet from the shore.  They also disagreed about whether the water was murky or clear that day.  Harper and the other guests on the boat all maintained that they were unable to see the bottom of the lake, while Herman claimed he could.  

North Shore of Big Island, Lake Minnetonka

After parking the boat, Herman began to lower the ladder down into the water.  At this point, Harper asked Herman if he planned to go in the water and Herman replied, “yes.” Without warning, Harper stood up on his seat, stepped to the edge of the boat, and dove into the water.  Unaware that the water was only 2-3 feet deep and not an experienced diver, Harper hit the bottom of the lake and severed his spinal cord. He was rendered a C6 quadriplegic and paralyzed from the shoulders down for the rest of his life. Harper likely was not the first person to suffer this fate near Big Island’s shore, as a 42 year-old man made the same mistake as Harper in 2015 and also severely injured his spinal cord.  

Harper admitted that no one on the boat would have expected him to dive into the water. He also said that his intention was to execute a shallower dive, but not having much diving experience and assuming that the water was deeper, his dive was too vertical. Harper also didn’t remember whether there were other boats parked in the vicinity and if there were people wading in the water, which might have alerted Harper that the water was shallower than he expected.

The Arguments

Harper’s best argument

When you think of Harper, imagine that he is your son. He is a 20 year-old college student, out on a small boat operated by a 64 year-old co-worker. The captain is seasoned, and he has taken his boat out on this lake too many times to count. Your son and the others go for a swim but found the location substandard. The captain tells the group that he knows a better place to swim and takes them to a location that he has been to hundreds of times, by his own account. The boat is several hundred feet from shore, and the water is too murky to see the lake bed. Everybody but the captain agrees on that. The captain, who knows that the water is extremely shallow but does not tell anybody that, lowers a ladder into the water as if it were more than knee-deep. Your son asks the captain if he’s going in and he says yes, he is going in. But the captain did not tell your son that the water was only 2 or 3 feet deep, too shallow even to swim in. Your son dives into the water, far from shore. He is now quadriplegic, permanently and profoundly disabled. The captain should have warned his guests.

Herman’s best argument

Imagine that Herman is your father. He’s a good person, and likes boating. He goes out on the lake regularly, often bringing guests on his small motorboat. And when he brings guests, he looks after them. On the weekend in question, your father brought four other people out on the water with him, including a college student he doesn’t know, a guest of a guest. The group tries to swim in a location but found it too full of weeds. Your father tells them he will take them to a better spot to swim. It’s a place he has been to hundreds of times and he thinks it will be ideal because the water is shallow enough for people to get out and wade. By your father’s recollection, he pulls the boat to a spot only 30-40 feet from shore and then he starts preparing the boat for people to get out. The college kid asks him if he’s going in and then, without any warning whatsoever, climbs to the ledge of the boat and jumps into the water head-first. By his own admission, the college student didn’t think anybody else on the boat--including your father--had any idea that he would dive in like that. Swimming and diving are different, and have different requirements. Your father took the student to a place he could swim, not a place he could dive. And while your father feels horrible about what happened, he shouldn’t be held responsible for the student’s reckless actions.

Based on the facts as we’ve presented them and the best argument for both Harper and Herman, tell us which side you think should win. We’ll follow up in Part II to let you know the outcome of the case.

Ellis & Acton

What Happened to Chad

For most of our cases, we try to figure out whether there is sufficient evidence for summary judgment, whether the case is a nonsuit, etc. Only a small portion of the opinions reveal a final resolution and an actual damages award if the plaintiff prevailed. We'll talk about damages quite a bit next week, but those are edge cases-- cases specifically selected to teach the boundaries of a difficult damages question. I think it's instructive to learn about the damages awards in "regular" damages cases, and so several years ago, while teaching a torts reading group, I took it upon myself to try to figure out how much winning plaintiffs were actually awarded. It's a tough assignment, but sometimes the results were incredibly revealing...and none more so than Emery v. Federated Foods.

In Emery, a three year old boy choked on a marshmallow and was left with brain damage. We teach the case in the context of whether a manufacturer has a duty to warn about dangerous products. In this instance, the court found that the defendant should have printed warnings about the dangers of marshmallows for children on their product bags. That might seem a bit of an overreach, but marshmallows are in fact quite dangerous due to the way they expand when exposed to moisture. The plaintiff won and was awarded $1 million from the manufacturer and $178,000 from two treating physicians, although the total number dwindled to somewhere in the $400-500k range after medical expenses and legal fees were paid. The court appointed a prominent local businessman, Richard Dasen, conservator to maintain Chad's funds and distribute them according to his ongoing needs.

It's important to note that Chad's lingering disability was and is profound, as he is often referred to as "vegetative." His mother, the plaintiff Laura Emery, attempted to care for the boy during the first few years after the case but proved unfit for the task, with the state removing him from her care after his case workers had "found [Chad] with open sores and suffering from malnutrition, dehydration and lack of care." [I'll cite below] All the while she received some payments from conservator Dasen. Five years after the award, however, Dasen filed a one-line letter with the court saying that all the money was gone (specifically, "To Whom It May Concern: As of July 2000, cash and savings for the trust account for Laura Emery (Chad Emery's mother) were depleted to a zero balance.''). At this point it's time for the big reveal, and that is that conservator Richard Dasen was an extraordinary scoundrel/criminal. While considered a pillar of the community, he actually was the focal point of a huge methamphetamine and prostitution scandal--the crux of it being that Dasen would find and identify attractive young methamphetamine addicts and coax them into prostitution in exchange for bankrolling their drug habit---to the tune of millions of dollars of payouts. An article in the Economist even implies that Dasen was personally responsible for a spike in drug problems in his city. Another article reports that a jury awarded $2 million to one of his [very young] female victims. Neither article mentions poor Chad Emery, the nearly-brain-dead boy whose funds were supposed to be expertly guided by this pillar of the community, but instead mysteriously vanished at the same time that he was paying millions for drugs and sex.

Other articles do make the connection. Nobody has yet proven that Chad's money was used in the meth/prostitution scheme, but the facts of that case, combined with the suspiciously quick evaporation of Chad's trust fund, raise serious questions. There are some accounts that say the money was tracked to Laura Emery, who was undoubtedly unprepared to care for a vegetative boy, and other accounts that say those claims were fabricated. It's hard to divine the truth. All we know is that there was a torts case that made it to our casebook to show that manufacturers might have a duty to warn, that the court awarded a sum and that said sum was gone in five years. As far as I know Chad Emery remains alive in an institution in Washington state, with his care paid for not by the marshmallow company or the conservator but by the federal government.

We read tort cases a bit like we watch a police procedural: there's an agreed-upon set of rules and tropes, and we turn the pages to find out who "won" and why. But for many plaintiffs, the conclusion of their cases are just the beginning of a lifelong ordeal. As past, current, and future attorneys, it's important to keep that in mind.

-Ellis