Hornbostel v. South Burlington School District, No. 1502-01 CnC (Katz, J.,
Feb. 4, 2004)

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STATE OF VERMONT                                      SUPERIOR COURT
Chittenden County, ss.:                           Docket No. 1502-01 CnCv


HORNBOSTEL

v.

SOUTH BURLINGTON
SCHOOL DISTRICT


                                   ENTRY


        Plaintiff commenced this negligence action by alleging that he was
injured when he “made a dive into a snowbank” at a school facility. The
fact of the dive seems to be accepted by all parties. The serious injury is
also accepted—quadriplegia. The court has attempted to understand
better what was involved in the dive. The only greater detail in the record
provided us comes from the deposition of another youngster, with whom
plaintiff was engaging in this form of play, James Andres:

       Q. Who was playing in the snowbank?
       A. Me and [plaintiff].
                Q. All right. What were you doing?
        A.   Trying to do front flips off the top of it.
        Q.   Did you ever dive into the snowbank?
        A.   Yes.
        Q.   Head-first?
        A.   Yes.
        Q.   What was [plaintiff] doing?
        A.   The same thing. Except he didn’t use his hands to break his
fall.
        Q.   You, in other words, dove in using your hands?
        A.   Yeah. And he had his hands at his side.
        Q.   How many times did he do that?
        A.   I’m not sure. Probably around three.

(Andres Deposition, at 10–11). The foregoing was submitted by plaintiffs
in response to defendant’s motion for summary judgment, largely
underlined in red, apparently to catch the court’s attention.

        In responding to the District’s presently pending summary
judgment motion, plaintiffs engage in a great deal of rebuttal, but largely
fail to present a theory of liability of their own. So the court is left
attempting to guess what that theory is, to see if admissible evidence
supports it such that it should be submitted to a jury.

        We certainly assume that plaintiff, as a fifteen year old student, was
permitted to remain on school grounds to wait for his mother to pick him
up. Part of that assumption is that he was an invitee on the premises and
that reasonable care was due him. The snowbank was an artificial
condition on the land, created as part of plowing snow from driveways
and parking areas. Defendant asserts, and plaintiffs do not dispute, that
the school district owed a “duty of ordinary care.” 16 V.S.A. § 834. The
district then argues that the presence of snowbanks did not breach this
duty, because they pose no unreasonable risk and any risk from them is
open and obvious.
        No one has presented any evidence giving particular definition to
the snowbank in question. We must therefore assume that it is an
unremarkable pile of snow, resulting from plows or front-end loaders
clearing an area, and storing snow along one side. Plaintiff seems to hint
that there must have been some hidden object within the bank, which
actually caused his injury. We reject any such suggestion, unaccompanied
by actual evidence. The mere fact that he suffered a spinal cord injury
does not show that there was any foreign object within the bank.
Snowbanks are not natural formations; they result from shoveling,
plowing, snowblowing or piling. They are not fluffy, fresh-fallen snow or
even akin to a downy pile accumulated by the wind but are of a
significantly denser genus. They often contain ice or dense layers of
melted and re-frozen snow. This fact may be judicially noticed, Evid.
Rule 201(b); see Jarvis v. Koss, 

, 255 (1981) (approving
judicial notice for matters of common knowledge such as the fact that pigs
are rooting animals), as it is generally known in Vermont and other states.
See Artrip v. E.E. Berry Equipment Co., 

, 824 (Va. 1990)
(affirming a finding that snowbanks are an open and obvious condition).

        Although an artificial condition on the land, snowbanks are
certainly reasonable. The alternatives to snowbanks would appear to be
two: Don’t plow, but let the snow become trampled, melted, re-frozen,
and icy through May; or remove the snow from the site, as by loading it
onto trucks. The first alternative clearly poses a greater danger than do
the snowbanks themselves; that is why Vermonters shovel and plow snow
every winter. See Sagar v. Warren Selectboard, 

, 175 (1999)
(citing to standards for snow removal dating from the 19th century). The
second alternative would clearly increase the costs of snow removal.
Creating a snowbank is essentially an activity without cost—once one
removes the snow from the surface, piling it up nearby costs virtually
nothing. Each property owner finds an area on which snow can be piled,
and remain sufficiently out of the way so as to permit ordinary activity to
continue. To require total removal may be feasible for a few highly
developed urban locations, such as Burlington’s Church Street mall, but it
is an expense which the common law has never imposed on landowners as
part of reasonable or ordinary care. Such a request would be analogous to
Dooley v. Economy Store, Inc., 

, 141–42 (1937). In Dooley,
the plaintiff slipped on a set of stairs in the defendant’s store. 

that a railing would have stopped her fall or made her injuries less
serious. 

rejected this basis for negligence:
        The absence of a railing was apparent to all who had
        occasion to use the stairs. Moreover, there was no evidence
        fairly and reasonably tending to show that a railing would
        have prevented plaintiff's fall or lessened the force of it. The
        mere possibility or conjecture that it might have is
        insufficient to justify a finding that it would.

can be said for removing snowbanks. The creation and
maintenance of snowbanks are not unreasonable. See 

(acknowledging the broad authority towns have to manage their
affairs and duties including methods and manner of snow removal). Their
removal is not something a business, school, or government should be
required to do, as a matter of law, based merely on the speculative theory
that it might prevent certain accidents.

        This leads to the next question, whether the defendant owed
plaintiff a duty to either warn or make the snowbank safer from its open
and obvious condition. According to the First Restatement of Torts, a
landowner owed no duty to his invitees to make the premises safe or to
warn of dangers known or obvious to invitees. Restatement (First) of
Torts § 343 (1939). The Second Restatement, however, softened this
position by providing that when the allegedly dangerous condition is open
and obvious, the landowner is not liable to invitees for harm from known
or obvious dangers except where the landowner should anticipate harm in
spite of the knowledge or obviousness. Restatement (Second) of Torts §
343A (1965). Essentially, this means that open and obvious dangers are
not a per se bar to negligence that they were under the First Restatement.
Yet, the comments following § 343A make clear what duty anticipation
means to a landowner. The basis for liability under § 343A centers on a
landowner’s ability to 1) anticipate the injury and 2) the level of
reasonable distraction plaintiff is likely to have around the danger. 

f. In the examples given, liability adheres most often when the
landowner creates distractions that blind the plaintiff to the danger, where
the plaintiff is likely to immediately forget about the danger, or where the
defendant forces the plaintiff to traverse the danger despite its easily cured
nature. 

liability does not attach when the distraction is
self-created by the plaintiff and unrelated to danger or where the danger
can be safely traversed by the exercise of ordinary care. 

e. To
take a brief step back, snowbanks, while an open and obvious condition,
are not inherently dangerous. They don’t move. Their main danger arises
when people are forced to traverse them to get to a necessary destination.

. The bank at issue here was not in the middle of
a necessary route; it did not collapse. Cf. McCormack v. State, 

, 446 (1988) (discussing the effects “sloughing off” from a snowbank
can have on a road). The plaintiff was not forced to traverse it or deal
with it on any other basis than voluntary engagement. This snowbank
only became a source of danger because of the form of play which several
teenage boys consciously and knowingly pursued upon it.

        The duty imposed upon the district is to use ordinary care to guard
against foreseeable risk. While it is foreseeable that schoolchildren,
including teenagers, will play upon a snowbank, the particular form of
play apparently pursued by plaintiff is less foreseeable. In fact, neither
party has been able to produce evidence of such an activity being litigated
before. Jumping upon a snowbank, climbing up, sliding down, even
finding or improvising sleds to speed up the sliding are all foreseeable.
But diving headfirst? Keeping one’s hands at one’s side? Even if
foreseeable in a general sense, it smacks of reckless behavior that no duty
can prevent. Learned Hand concluded that the duty “to provide against
resulting injuries is a function of three variables: (1) The probability that
the [accident will occur]; (2) the gravity of the resulting injury, if [it] does;
(3) the burden of adequate precautions.” United States v. Carroll Towing
Co., 

, 173 (2d Cir. 1947). What is the probability that
teenagers will dive into snowbanks with their hands at their side? We
must conclude that such dangerous if not suicidal conduct is highly
improbable. We have already discussed some of the cost of Judge Hand
would call adequate precautions—not forming snowbanks in the first
place. We have indicated a view that it is unreasonably high.

        Another precaution might have been the employment of full-time
parking lot supervisors, who would watch the teenagers, until they left the
school property. The school district would argue that such would not
have prevented this accident, as plaintiff had left school grounds before he
returned. Plaintiffs apparently counter this argument by citing Adam’s
deposition testimony that he was merely sitting on the front steps of a
neighboring house, before returning. This does suggest that he left school
grounds. But whether he did or did not leave is irrelevant to
determination of the district’s duty. The question is essentially whether
the district had a duty to warn plaintiff not dive head-first into a snowbank
on its property. Again, we find an analogous situation enlightening and
persuasive. In Bachelere v. Chicago Park District, the Illinois Supreme
Court considered a consolidated group of park users (invitees) who sued
after sustaining severe injuries from diving off concrete seawalls into
shallow parts of Lake Michigan. Bachelere v. Chicago Park District, 

, 828 (Ill. 1996). The Illinois Court found that diving into a
natural body of unknown depth was an open and obvious condition and
that even the young and immature could reasonably foresee this danger.

836. Such accidents could be anticipated in a general sense,
but the Park, they concluded, should be able to rely on individuals to
appreciate the dangers. 

The Illinois Court concluded that it
was neither practical nor economically feasible to mark the areas around
the lake or provide lifeguards to warn divers. 

present case, it is not practical or economically feasible to
require the district to provide monitors on the school grounds to warn
students from in engaging in obviously dangerous activity. Even a young
child should reasonably foresee the danger of diving into a snowbank,
which, like the water of Lake Michigan, is of unknown depth, hardness,
and contents. While we are sympathetic to the tragic situation of the
plaintiff, we cannot conclude that the district had a duty to warn him about
the obvious danger of diving headfirst, with arms at his side, into a
snowbank. Furthermore, unlike Bacheleres, this activity was unique. In
Bacheleres, the Illinois Court considered the activity’s pervasiveness to be
important. 

(noting a metal ladder at the site of one accident,
which may have signaled the site’s expediency for diving). Indeed, the
plaintiffs both claimed to have dove in the spots on previous occasions.

Nevertheless, the Illinois Court found that such prior activity
did not vitiate the obvious nature of the danger and create a duty in the
Park to take any further steps to warn about such dangerous activities. 

Likewise, the district did not have a duty to warn the plaintiff off
the snowbank because the danger was obvious. Moreover, plaintiff’s
behavior was reckless and apparently isolated enough to make this an
aberrant event, which was beyond anything but the most general
foreseeability, let alone duty. As a result, the district had no duty to warn
plaintiff about diving into the snowbank.

        Without a duty, there can be no breach and therefore no case for
negligence. The purpose of summary judgment is to “smoke out” the
facts to see if anything remains to be tried. Donnelly v. Guion, 

, 293 (2d Cir. 1972). Even in the most generous light, plaintiff fails to
show demonstrate a legal cause to hold the district liable for his injuries.
Since plaintiff has failed to come forward with admissible evidence
showing a cause of action, his complaint cannot stand as a matter of law.

       Based on the foregoing, defendant’s motion for summary judgment
is granted. The case is dismissed.



       Dated at Burlington, Vermont, _________________, 2004.
__________________________
                     Judge