WATT, J.:
¶ 1 The dispositive issue
¶ 2 Property owners have a duty to exercise care to keep their premises reasonably safe from hidden dangers, traps, snares and the like.
¶ 3 Whether a defect is open or obvious or whether the offending condition presents a deceptively innocent appearance, presents a question for the trier of fact.
¶ 4 On May 31, 2005, Sholer was visiting friends at the apartment complex. That evening, at approximately 11:30 p.m., Sholer and one of her friends entered the apartment complex pool. Sholer alleged that both gates leading into the pool area were unlocked and that the pool lights were activated. In addition, she asserts that there was no signage prohibiting diving, unsupervised swimming, or indicating the depth of the pool. When Sholer attempted a shallow water dive, her
¶ 5 Sholer filed a second amended petition on January 22, 2009 alleging her injuries resulted from the apartment complex's negligence. She insisted that the apartment complex had violated the duty to keep the pool area safe by not: locking the gates in a secure manner; providing adequate lighting in and around the vicinity; posting clear and visible signage warning and/or prohibiting diving and indicating the shallow end of the pool; and forbidding unsupervised swimming. In answering, the apartment complex denied being negligent in any matter and contended that the condition of the premises was open and obvious, preventing recovery. ERC also took the position that there were "no diving" signs in the pool area which were easily visible and that the depth of the pool was clearly marked on the pool decking.
¶ 6 On January 5, 2010, the apartment complex filed a motion for summary judgment asserting that it had no duty to protect Sholer from the open and obvious danger of diving head first into the pool. It characterized as undisputed a number of facts including: 1) Sholer had been drinking and was at least "mildly intoxicated" on the night of the accident; 2) entrance to the pool area occurred after the hour when the pool was designated to be closed; 3) the dive was executed within a few feet of depth markers indicating that the pool was only three (3) feet deep; 4) Sholer understood it was dangerous to dive into a pool without knowing its depth; and 5) Sholer attempted a shallow-water dive because she understood she could be injured by hitting her head on the bottom if the pool were shallow. Several photographs allegedly depicting the condition of the pool on the night of the accident were attached to the motion for summary judgment indicating a posting of pool rules, a "no diving allowed" sign, and pictures of depth markings around the pool area.
¶ 7 The apartment complex acknowledged the existence of a dispute as to whether the gate into the pool area was locked on the night of the accident.
¶ 8 A corrected order granting summary judgment was entered in the apartment complex's favor on February 12, 2010. Sholer appealed and the Court of Civil Appeals affirmed, finding undisputed proof of the open and obvious condition of the pool at the time of the incident. We granted certiorari on December 14, 2010.
¶ 9
¶ 10 The apartment complex alleges that it is unnecessary to resolve the question of Sholer's entry status whether as a trespasser, licensee, or invitee. It contends that
¶ 11 The threshold question in any negligence action is whether the defendant has a duty to the plaintiff.
¶ 12 Although the invitee is entitled to the greatest protection of the three categories, the landowner need not guard the invitee against dangers so apparent and readily observable that the conditions should be discovered.
¶ 13 We have rejected the "open and obvious defense" in a number of cases where the condition or defect was visible but unseen by the plaintiff.
¶ 14 Despite Sholer's admissions indicating that she understood the dangers of diving into waters with an unknown depth, she also indicated that the pool's lighting made her believe that it would be safe to do a shallow-water dive. Based on what she observed, Sholer thought the water was as deep as five or six feet. Sholer specifically stated that her perception was linked to the pool's lighting which created shadows. Her rescuer bolstered Sholer's contentions by indicating that he could not determine the depth of the water until he entered the pool. We hold that the openness and obviousness of the dangerous condition and whether Sholer appreciated the risk are questions for the trier of fact
¶ 15 The purpose of summary adjudication is not to substitute a trial by affidavit for one by the trier of fact, but rather to afford a method of summarily terminating a case when only questions of law remain.
COLBERT, V.C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, GURICH, JJ. concur.
TAYLOR, C.J., with whom WINCHESTER, J. joins, dissenting:
I dissent. The trial court and the Court of Civil Appeals were correct and I would affirm their decisions. This case was properly ended by summary judgment. An intoxicated young woman decided to dive head first into a shallow swimming pool. A few feet from her dive was a marker clearly indicating the water was only three (3) feet deep. She admits that was a dangerous act on her part. The danger of diving into water of unknown depth is open and obvious. The combination of being under the influence of alcohol and diving head first into very shallow water will usually result in unfortunate serious injury. However unfortunate, this injury is not the legal responsibility of the apartment complex.
at p. 51: ". . . Q. At any time before you dove in, did you have any information regarding how deep the pool was?
at p. 54: ". . . Q. Have you seen the photographs that were taken during the pool construction that shows the depth markers inside of the swimming pool?
A. No, not until I had entered it, entered the water. . . ."