February 2019 - Parks & Recreation - 37

can be laid down as to what constitutes contributory negligence as
a matter of law, as each case must
be decided on its own facts. "
While Core was " a first-time visitor to the park " and he had " made
numerous observations before concluding the water at the end of the
pier was deep enough for diving, "
the Commission had noted Core
had " extensive training and coaching in swimming and diving, including the method of shallow diving. "
In concluding Core was " contributorily negligent, " the appeals court,
however, found " the Commission
did not indicate which of these or
any other circumstances rendered
Plaintiff 's actions unreasonable. "
In the opinion of the appeals court:
" To say that one has failed to use
due care or that one has been negligent, without more, is to state a
mere unsupported conclusion. "
20-20 Hindsight
In this instance, Core had admitted
to the Commission that, in retrospect, he " should not have performed
a shallow dive into the lake without
first confirming the water's depth. "
According to the appeals court, this
admission by Core after the fact " did
not alone support a conclusion that a
reasonable person would have acted
differently in the moment " :
The negligence analysis does not
judge people's actions based on 2020 hindsight. Rather, it asks whether a person's actions were reasonable in light of the circumstances at
the time of the actions.
The Commission had also observed that there were " alternative
means available " to Core for entering the water and Middleton had
jumped into the water feet first. In
the opinion of the appeals court,

these observations, standing alone,
would not conclusively support the
Commission's determination that a
" reasonable person " in Core's position would necessarily have " avoided diving from the end of the pier. "
Unknown Obvious Danger?
As noted by the appeals court, the
Commission had characterized the
shallow water surrounding the pier
as " a danger unknown to Plaintiff, and
subject to being hidden visually by
water conditions. " The appeals court
found this point particularly relevant
to the question of Core's contributory negligence because state appeals
courts had generally held that " a party cannot be guilty of contributory
negligence unless he acts or fails to
act with knowledge and appreciation, either actual or constructive, of the
danger of injury which his conduct
involves. " (Emphasis of Court)
While Core may not have been
aware of the water's shallow depth,
within the context of contributory
negligence, the appeals court acknowledged that Core could still be
charged with constructive knowledge of the danger " if his conduct
ignored unreasonable risks or dangers, which would have been apparent
to a prudent person exercising ordinary
care for his own safety " :
Where a plaintiff is injured by
an unsafe condition, the doctrine
of contributory negligence will
preclude a defendant's liability if
the Plaintiff actually knew of the
unsafe condition or if a hazard
should have been obvious to a
reasonable person.
Whether a particular risk or
danger should have been apparent in the exercise of ordinary care
depends on the unique factual circumstances presented in each case.

No inflexible rule can be laid
down as to what constitutes
contributory negligence as a
matter of law, as each case must
be decided on its own facts.
While finding Core " lacked actual knowledge of the dangerous
condition of shallow water, " the
appeals court found the Commission had erred in making " no specific finding(s) as to whether or why
the danger should have been obvious "
to impute Core had constructive
knowledge. (Emphasis of Court)
Conclusion
Because the existence of contributory negligence required a determination of " reasonableness that
depends upon the particular facts
of each case, " the appeals court
found " the Commission's conclusion that Plaintiff was contributorily negligent was not supported
by sufficient findings of fact. " The
appeals court, therefore, remanded
(i.e., sent back) Core's negligence
claims to the Commission to determine which specific facts would
prove whether Core had failed to
exercise ordinary care for his own
safety under the circumstances of
this particular case.
See Also: Fateful Dive into 'Closed'
Park Pond Pool, James C. Kozlowski,
Parks & Recreation, Dec. 2016, Vol.
50, Iss. 12, http://cehdclass.gmu.edu/
jkozlows/lawarts/12DEC16.pdf.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.edu). Webpage with
link to law review articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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