This section contains the nature of the case and procedural background.

Harper (P) was one of four guests on Herman's (D) boat. P was invited on the boat outing by another guest on D's boat. P and D did not know each other prior to the boat outing. The group decided to go swimming, and D suggested a popular recreation spot. D was familiar with the spot and was aware that the water remained shallow for a good distance from the shore. P had been there once before. The bottom of the lake was not visible from the boat. P asked if D was 'going in.' D responded with a yes and unannounced, P stepped onto the side of the middle of the boat and dove into approximately two or three feet of water. P struck the bottom of the lake, severing his spinal cord, rendering him a quadriplegic. The trial court granted summary judgment for D, which was reversed by the court of appeals. D appealed.

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