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CAPRIOTTI v. BUNNELL

February 24, 1988

Carl Capriotti, Jr., Plaintiff
v.
Leonard Bunnell and Ethel Bunnell, husband and wife, and Robert Bunnell, Defendants



The opinion of the court was delivered by: NEALON

 WILLIAM J. NEALON, CHIEF JUDGE, MIDDLE DISTRICT OF PENNSYLVANIA

 This case arises out of an incident wherein plaintiff dove into defendants' pond and struck his head on a rock. Presently before the court is defendants' motion for summary judgment. For the reasons set forth below, the motion will be denied.

 BACKGROUND

 The parties are in substantial agreement over a number of underlying facts. Defendants Leonard and Ethel Bunnell, husband and wife, have since 1963 owned in fee simple a tract of land of approximately forty-two (42) acres which is located adjacent to Route 29 in Bridgewater Township, Susquehanna County, Pennsylvania. The land is largely unimproved and lies in a rural setting. The Bunnells originally used the land as a grazing pasture for horses and cattle, but the Bunnells no longer raise any animals on the land and currently utilize only about three (3) acres of the tract for farming purposes. No one lives on the property. The Bunnells reside approximately one mile away in Montrose, Pennsylvania.

 In 1966, the Bunnells hired a contractor to build a one-and-a-half (1 1/2) acre pond on their property in Bridgewater Township. A dam was also constructed at the southwest edge of the man-made pond, and water from the pond spills over the dam whenever the pond reaches a certain maximum depth. When the pond was being constructed, the contractor was unable to move a large rock from the site of the planned pond, and the rock now occupies an area in the pond near the east edge of the water. At least initially, the top of the rock protruded above the water level and was visible from the surrounding shore, and the Bunnells and their son, defendant Robert Bunnell, were at all relevant times aware of the existence and location of the rock. *fn1" The pond is occasionally used for swimming and fishing by acquaintances of the Bunnells and by neighborhood children. The Bunnells have never charged a fee for the right to enter upon or utilize the premises.

 On June 23, 1985, Robert Bunnell invited a group of his friends to the Bridgewater Township property for a picnic/swimming party. Present at the picnic were Robert Bunnell, plaintiff Carl Capriotti, Joe Mulcarowitz, Tina Sherick and Cheryl Eckenrod. This group, with the possible exception of Cheryl Eckenrod, arrived at the pond between 11 a.m. and noon. *fn2" No fee was charged for attending the party or for using the land or pond.

 At this point, Robert Bunnell's recollection begins to differ dramatically from Carl Capriotti's version of events. Bunnell testified during his deposition that he, Capriotti and Mulcarowitz swam intermittently during the afternoon prior to 4:30 p.m. when Capriotti left temporarily to pick up Cheryl Eckenrod from her place of employment in order to bring her to the picnic (dep. tr. at 13). Bunnell stated that on the day of the picnic, the top of the rock in the pond protruded an inch-and-a-half to two inches above the water level and was plainly visible (dep. tr. at 21). Further, Bunnell maintained that he cautioned Capriotti and the others about the presence of the rock at least three times throughout the afternoon and that Capriotti acknowledged his warnings on at least one occasion (dep. tr. at 19-21 and 46-50).

 In contrast, Capriotti testified in his deposition that he did not enter the water until approximately 5:00 p.m., at which time the accident in question occurred (dep. tr. at 27). He also indicated that he never left the pond area following his arrival there at midday and that Cheryl Eckenrod had accompanied him from the outset of the picnic (dep. tr. at 23-24, 27). Moreover, he asserted that prior to diving into the pond he visually inspected the water surface, and according to Capriotti, the rock did not protrude above the water surface and was not visible (dep. tr. at 26, 32). Capriotti was not asked during his deposition whether he had any reason to suspect, because of warnings from Robert Bunnell or otherwise, the existence and location of the rock, but the clear inference from his deposition testimony is that he would deny any knowledge of the rock prior to the time he dove into the pond. *fn3"

 It is undisputed from the deposition testimony of Robert Bunnell and Carl Capriotti that between 5:00 p.m. and 5:30 p.m. on June 23, 1985, Capriotti dove into the pond and injured his head, presumably on the above-described rock. He suffered contusions and abrasions and was taken to a nearby hospital. No deposition testimony or affidavits from any of the other individuals at the picnic has been submitted to the court.

 Plaintiff commenced this action on June 19, 1987, alleging that defendants were negligent by, inter alia, failing to warn of or alleviate a dangerous condition. Plaintiff claims that as a result of his head injury, he experienced a concussion and seizures and continues to periodically experience headaches, numbness in his head and pain in his ears, eyes and neck.

 No further documents have been forwarded to the court, and defendants' motion for summary judgment is ...


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