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Hodson v. Taylor

Supreme Court of Nebraska

March 13, 2015

COLE HODSON, APPELLANT,
v.
BRADLEY TAYLOR ET AL., APPELLEES

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Appeal from the District Court for Washington County: JAMES G. KUBE, Judge.

E. Terry Sibbernsen and Andrew D. Sibbernsen, of Sibbernsen, Strigenz & Sibbernsen, P.C., and Jeffrey B. Farnham and Andrew W. Simpson, of Farnham & Simpson, P.C., L.L.O., for appellant.

David M. Woodke and Earl G. Green III, of Woodke & Gibbons, P.C., L.L.O., for appellees Bradley Taylor, Laura Taylor, and Whitney Taylor.

Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, for appellee Willers Cove Owners Association.

Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellees Ronald D. Willers and Marilyn M. Willers.

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. STEPHAN, J., not participating.

OPINION

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[290 Neb. 350] McCormack, J.

I. NATURE OF CASE

Cole Hodson suffered a catastrophic injury when he dove into the Willers Cove

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lake near Pilger, Nebraska. Cole brings a tort action against Bradley Taylor and Laura Taylor (collectively the Taylors) and their daughter, Whitney Taylor, as his hosts at the lake; the Willers Cove Owners Association (the WCOA), claiming the lake association should have known of dangerous conditions in the lake; and Ronald D. Willers and Marilyn M. Willers (collectively the Willers), for negligently constructing a culvert which led to the dangerous condition that caused Cole's injury. The district court dismissed all of Cole's claims in summary judgment. Cole now appeals.

[290 Neb. 351] II. BACKGROUND

1. Accident

On the date of the accident, the Taylors were residents of and owned a home located at the Willers Cove lake community in Stanton County, Nebraska.

On June 26, 2010, Cole and three other friends--Adam Hodson, Caitlin Hoer (Caitlin), and Johnny Forsen (Johnny)--were invited by Whitney to the residence of the Taylors for the purpose of swimming and boating. Adam was Whitney's boyfriend, Cole was Adam's cousin, Johnny was Cole's childhood friend, and Caitlin was a friend of Whitney. Each member of the group was around 18 years old at the time. Shortly after arrival, the group boarded the Taylors' pontoon boat and proceeded on the Willers Cove lake. Deposition testimony among the people on the boat differs, but either Whitney or Adam operated the boat. The pontoon boat stopped twice at different locations. While stopped, Cole and Johnny jumped off the pontoon boat and swam in the lake.

Cole recalls that he had at least two beers since arriving at Willers Cove and before his final dive into the water. Johnny recalls that each member of the group had three beers before Cole was injured.

The last stop was made on the west side of the lake, somewhere between 50 and 200 feet from the north shoreline. Whitney stated that she chose this place for jumping and swimming because she had stopped there in the past.

Cole stated he could not see below the surface of the lake and jumped into the lake without testing the depth. Johnny also stated that the water was " pretty muddy." Further, in Cole's deposition, counsel asked:

Q [:] Okay. Now, did you know when you first dove into the lake that if you couldn't see below the surface on a lake that there was a possibility that there could be an object or shallow depth?
. . . .
A [:] Possibly.
Q [:] Okay. And how is it that you knew that could be the case?
[290 Neb. 352] A [:] That's the case in any situation like that.

Cole also admitted that the depth of lake bottoms can be different at different places in a lake or pond.

After stopping at other locations in the lake, the boat came to a stop in its final place before Cole's injury. Cole is unsure how far this was from the shoreline. Both Cole and Johnny dove, jumped, or flipped " several" or " five or more" times into the water at this location, and they swam around in the water. Cole says that during each of those dives, and during his time swimming at this location, he did not touch the bottom of the lake. Deposition testimony of all the people on the boat indicates that no one formally tested the depth of the lake at this location.

After " several" successful dives at the last location, Cole dove and abruptly came into contact with something in the water,

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which he assumes to be the bottom of the Willers Cove lake. Cole stated in his deposition that he does not know for certain that he hit the bottom of the lake, because he does not remember anything after his final dive into the lake. As a result of the dive, Cole suffered a " C5 complete spinal cord injury." The C5 spinal cord injury has left Cole paralyzed and without feeling from the chest down. He has function in his shoulders, but only limited flexion in his hands and wrists.

Johnny left the boat to retrieve Cole after the accident. Johnny testified that when he jumped off the boat this final time, he could walk for a few feet because the water in that location was only about " knee high." But, before he could get to Cole, the depth dropped off again and he had to swim. This conflicts with Johnny's original statement in which he said that he had to swim to Cole after exiting the boat. Adam also testified that Johnny had to swim to get to Cole.

2. Willers Cove

The Willers once owned and operated a sand and gravel company. The Willers Cove lake was created where they dug sand and gravel from the earth that was later filled in with ground water. The Willers were the initial owners of Willers Cove before deeding the lake to the WCOA.

[290 Neb. 353] On July 20, 2005, the Willers executed a quitclaim deed conveying ownership of the lake to the WCOA. When the lake was transferred to the WCOA in 2005, it was a completed project. The Willers did nothing more to the lake itself after the transfer. The ...


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