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

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

Who Should Win?

Harper

Herman

Why? (Optional)

Thank you!

Some Like It Hot, But...

About a decade ago I was having a meal at a Cambridge diner with my roommate, who we will call Walter. Walter was born and bred in Europe and commented that the United States does not seem to have any original food. Everything, he argued, was derivative. I tried to argue, but the diner food on the menu was not helping my cause. Chicken Parm. Lamb kebobs. Gyro with Pita. You get the picture.

Several years later Walter and I took a trip across the eastern half of the United States, and one of my stated purposes would be to show him that we have plenty of great, original food. We bought cheesesteaks in Philadelphia, pulled pork in North Carolina, and shrimp and grits in Charleston. The tail end of our trip was in Nashville, and I was on the lookout for more quintessentially American faire. That’s when I stumbled upon Nashville hot chicken.

As the name implies, Nashville hot chicken is just spicy fried chicken. But it’s not just a bit piquant. No, if you go to the true stalwarts of the specialty, you’ll find that the food is mind-numbingly spicy. So spicy, in fact, that it can and does make people physically ill. When we tried the “hot” level chicken at Bolton’s Spicy Chicken & Fish, it was so strong that Walter commented that it was barely food, but instead something like a dare. But honestly, what could be more American than that?

"Enjoy!"

When we were ordering, I noticed that on the wall there was a sign alerting customers that they would issue no refunds under any circumstances. It was an ominous message, and one that made me think of the tort theory of assumption of risk. Basically, assumption of risk means that if you knowingly enter into an inherently dangerous activity, you cannot hold the provider of that activity responsible.

So might a person be assuming a risk when eating spicy food? As a baseline matter, it’s important to note that spicy food can, in fact, be dangerous. At low levels, capsaicin, the agent that makes food spicy, is very safe and can even have health benefits. But as one climbs the chart of spiciness---that’s actually a thing, and it’s called the Scoville scale--capsaicin can severely inflame membranes in the body and even lead to heart attack.

At spicy food-eating competitions, contestants regularly become physically ill. As a result, participants are almost always asked to sign waivers releasing contest-holders from liability should anything bad happen. For example, the Seven Deadly Wings Challenge in the UK requires participants to agree to the following:

“I understand that I will be eating chicken wings that are treated with the hottest ingredients … with an extreme degree of heat...I acknowledge that there could be a risk of personal injury, illness & possible loss of life, and risk of damage to or loss of personal property which may result from participating in this challenge. I confirm that I do not have a medical condition that could jeopardise my health or wellbeing during or after the challenge. I agree that I am taking on the challenge at my own risk and hereby certify that Huckleberry’s Bar and Grill Ltd, its employees or affiliates will not be held responsible or liable for any injuries, damage or loss of earnings caused during or after the challenge.”

Agreements like this certainly indicate that people offering and consuming ultra-spicy food know or should know that there is a risk to what they are about to undertake.

But what if a person consumes extremely spicy food without knowing what they’re getting themselves into? That was the case when a boy in Tennessee was hospitalized when his server gave him “Blair’s Mega Death” hot sauce when he requested hot sauce for his food. Blair’s Mega Death has a Scoville rating of 550,000. For comparison, Tabasco hot sauce is rated at around 2,500 Scoville Units. If the boy was expecting something on the order of Tabasco but instead consumed a sauce 200+ times more powerful, one would think he did not assume a risk. At that rating, it’s hard to see a distinction between hot sauce and poison. The server and the restaurant (based on vicarious liability) were sued by the child’s parents, and one would hope that they were able to find satisfaction and make the boy whole.

To some extent, it’s remarkable that there is a market for products like Blair’s Mega Death sauce. But it turns out that there are far spicier sauces on the market, with hotsauce.com selling several dozen sauces with Scoville ratings over 1,000,000 (and therefore at least twice as hot as Blair’s Mega Death). Whether it is due to thrill-seeking or some variation of masochism, plenty of people seem to want to eat food so hot that it will literally make you sick (and could kill you). This sounds like the definition of an ultra-hazardous activity, and wherever there are ultra-hazardous activities there are torts concepts like assumption of risk, negligence, and maybe even strict liability.

So if you find yourself in Nashville looking for something basic and American to eat, perhaps look somewhere other than the local hot chicken joint. But if your real purpose is to experience severe inflammation, shortness of breath, and heart palpitations, I can definitely recommend Bolton’s Spicy Chicken & Fish. But consider yourself warned, and consider your risks assumed.

- Ellis & Acton

Sometimes Looks Are Not, In Fact, Deceiving

The entire point of many amusement parks is to make safe things seem dangerous. But what about where an amusement park's m.o. is to make the dangerous seem dangerous? Consider the case of New Jersey's Action Park ("Class Action Park"). I first encountered Action Park in a short documentary that made the internet rounds a few years ago. The park is perhaps most famous for a failed attraction called the cannonball loop, a waterslide so outlandish photos of it look photoshopped. But that extraordinarily dangerous attraction was closed in just a few days. Other rides at Action Park flaunted their dangerous nature for up to two decades.

I'm sure it's safe....

The top line figure we might look at is the number of fatalities: six people died at Action Park during its twenty year run. But the number of deaths doesn't tell the whole story. By all accounts, an enormous number of people were seriously injured at Action Park due to the design of the rides and poor oversight (including allowing local 14-15 year olds to supervise). One particularly dangerous attraction was the Alpine Slide, a concrete luge run with no safety barriers or equipment except for often-defective brakes. So many people were injured on the run that management allegedly posted graphic photos of maimed children at the top of the slide to warn guests. In another indication that the park was fully aware of how dangerous its attractions were, it also allegedly helped the town of Vernon, NJ pay for more ambulances to accommodate its patrons.

The reputation of the place--as a singularly dangerous amusement park--would seem to square with Cardozo's reasoning in Murphy v. Steeplechase. Most people knew that Action Park was legitimately dangerous, and that the danger was part of the fun. When the park recently re-opened, United States Senator Corey Booker tweeted "WOW! Action Park is back! I still have scars from long ago visits but I so want to go again[.]" So should we just think of Action Park as the amusement equivalent of mountain biking, rock climbing, or other inherently dangerous activities? Or does the "dangerous by design" nature trigger Cardozo's [perhaps dicta] suggestion that a park/ride could be so dangerous as to be beyond the scope of an assumption of risk affirmative defense?

While learning all about Action Park, I stumbled upon the website Rideaccidents.com, a slightly dated but still informative collection of severe injuries and deaths from amusement parks around the world. It reminded me that perhaps the most dangerous amusement out there, at least on a per capita basis, is the dreaded bouncy house. For the uninitiated, bouncy houses are basically giant inflatable trampolines, most popular among very little kids. The problem is that they are exceptionally dangerous, leading to a huge number of injuries and some deaths. Time Magazine (do you remember magazines?) called bouncy injuries an "epidemic," and a study in the journal Pediatrics claimed that in 2010, 31 American emergency room visits per day were due to bouncy house injuries.

Unlike Action Park and the Flopper, the danger of bouncy houses is perhaps a bit unintuitive--they are essentially huge airbags, after all. And the number of injuries is no doubt compounded by the fact that they are generally not found in amusement parks but instead town carnivals, outside local sporting events, and even birthday parties--that is, the people in charge are not necessarily professionals.  So how would Cardozo look at a bouncy house injury claim?

-Ellis