(dissenting).
I respectfully dissent. I would have affirmed the trial court’s decision to grant summary judgment to respondents.
Appellant was one of three roomers in respondent Kvaal’s house. He moved into Kvaal’s house in June 1980, and, in fact, stayed there fairly regularly before he formally moved in. Appellant had a lengthy and complete familiarity with the pool in question.
In his backyard, Kvaal had an above ground swimming pool, manufactured by respondent, Doughboy. The pool was twelve feet wide and thirty-six feet long. The minimum depth was four feet, maximum depth was seven feet. A ten to twelve foot wide deck ran along one side of the pool, and a ladder ran from the pool to the deck. The pool was about eight inches higher than the deck. A portion of the pool had been dug into an elevation in Kvaal’s backyard. The pool had placards at appropriate locations indicating depths of four feet and seven feet. The pool also bore a warning sign stating, “no jumping/no diving.”
Sometime in mid-July 1980, Kvaal and appellant took the pool completely apart and cleaned it. They drained most of the water out of the pool, bailed out the rest, removed and cleaned the liner, and they reassembled the pool. Appellant helped remove and replace the depth markers and the “no jumping/no diving” sign when he and Kvaal cleaned the pool. Appellant conceded in his deposition testimony that he was aware of the pool depth at all levels, was aware of the depth markers, knew the shallow end from the deeper end, and was aware of the warning sign that said “no jumping/no diving.” Appellant helped Kvaal clean the pool on a regular basis, and used the pool on a regular basis.
On the night of August 24, 1980, appellant and a friend, Jeff Nash, watched a Vikings football game at Kvaal’s house. While watching the game, appellant consumed an unknown quantity of strong beer, more than one can, but less than six. Appellant does not recall if he ate dinner. Around 10 p.m., after the Vikings game ended, Nash and appellant went to the Red Rooster Bar, where appellant consumed more beer. He could not recall how much he consumed there, but it could have been more than six beers. Appellant and Nash left the Red Rooster with two women around 12:45 a.m. From the Red Rooster, the women followed appellant and Nash to Timothy O’Toole’s Bar and to Jethro’s Bar. Appellant had at least one beer at Jethro’s and cannot recall what he had to drink, if anything, at Timothy O’Toole’s. Appellant consumed no food during this time.
The two women followed Nash and appellant back to Kvaal’s house. Kvaal, two other men, and one women were already at Kvaal’s house. After talking to Kvaal and another man in the kitchen, appellant stripped off all his clothes, ran out of the house, through the garage, and leaped over the side of the pool into the shallow end. He attempted to do a surface dive. In his deposition, appellant admitted that he was feeling loose or a little intoxicated when he dived into the pool. From that point on, there are no witnesses who can testify to precisely what happened underwater, but both sides assume that appellant came in contact with the bottom of the pool. Although the two women were apparently in the area, no one actually saw appellant strike the bottom of the pool. Appellant lost consciousness after he hit the water and awoke in St. Paul Ramsey’s intensive care unit. Appellant did not surface imme*264diately. When this was noticed, appellant was pulled out of the pool. It was later discovered that he had sustained a neck injury and is now a quadriplegic as a result.
Appellant could not recall exactly whether the garage light that normally illuminated the pool was on at the time of the accident. Kvaal's deposition indicated that the pool area was also illuminated by a nearby street light and by a light shining through Kvaal’s dining room window.
Prior to the accident, after moving in with Kvaal, appellant swam in the pool nearly every day. He used the pool at least ten times before moving in with Kvaal, and had previously used the pool at night. The pool was last cleaned about a week before the accident, but some algae had formed at the time of the accident. Appellant, in resisting summary judgment, attempted to argue that there is a genuine issue of material fact as to the illumination around the pool, or lack of it, and the discoloration of the water, if any. However, there is no evidence in the record, nor even a claim by appellant, that had there been one more flood light above the pool, or had the pool been cleaned the day before rather than about a week before, that anything would have been different. Appellant did not base his intention to deliberately dive into the shallow end of the pool on any claim that he was mistaken as to where he was or what he was doing. His uncontroverted intention was to dive head first into that pool at the place that he did, knowing full well in advance what the exact depth of the water was where he went in.
Appellant, 24 years old at the time of the accident, had approximately twenty years of swimming experience. He was familiar with the concept of diving into backyard pools, and had previously done surface dives into the shallow end of this pool. Sometime prior to the accident, appellant had jumped into the pool from the nearby garage roof and had been warned by Kvaal not to do that any more.
On these facts, the trial court ruled in favor of respondents Kvaal and Doughboy on their motion for summary judgment. In its order dated May 30,1986, the trial court made the following findings of fact:
At about 1:00 A.M. Sunday, August 24, 1980, plaintiff Jonathan, who was then 24 years old, was present at a gathering in defendant Kvaal’s house. There were ladies present. Plaintiff, who had been drinking, abruptly stripped off all his clothes and ran through the dining room and out of the house into the back yard.
In the back yard was an above-ground swimming pool manufactured by defendant Doughboy. Without breaking stride, plaintiff ran across the back yard and took a flying leap off the ground and over the side of the pool, entering the water head first.
Plaintiff sustained a sprained neck and is a quadriplegic.
During the two months before his injury plaintiff had entered the pool several times head first. He was familiar with the pool and had swum in it on an almost daily basis. He had also taken the pool apart and cleaned it. Plaintiff knew the water in the pool was only four feet deep at the shallow end into which he jumped.
On one occasion plaintiff had jumped from the roof of the Kvaal garage into the shallow end of the pool. Defendant Kvaal, who was not home at the time, warned plaintiff never to do that again.
At the time of plaintiffs injury, there were three signs on the Doughboy pool. The signs stated “4 feet”, “7 feet”, and “No Diving.”
Plaintiff was an experienced swimmer and diver.
Plaintiffs injuries were caused exclusively by his own negligence and not by any breach of duty by defendants Kvaal or Doughboy.
In its conclusions of law, the trial court found:
Defendants are entitled to summary judgment in their favor, dismissing the complaint with prejudice and without costs to either party. See McCormick v. *265Custom Pools, Inc., 376 N.W.2d 471 (Minn.App.1985).
The question before this court on appeal is whether the trial judge erred as a matter of law in granting summary judgment to either or both respondents. The trial court cited McCormick v. Custom Pools, Inc., 376 N.W.2d 471 (Minn.Ct.App.1985), pet. for rev. denied, (Minn. Dec. 30, 1985).
It is difficult to distinguish this case from McCormick. The facts here are stronger to support the trial court’s grant of summary judgment than in McCormick. McCormick had done no drinking prior to his incident. McCormick was using his friend’s swimming pool during the early evening for swimming and diving purposes. McCormick was acting naturally at the time, had made a rational and voluntary decision to dive into the shallow end of the pool, and assumed he would surface at the deep end unharmed. McCormick did not contribute to his own injuries in the rash and thoughtless way that appellant did. Yet, as to McCormick, a grant of summary judgment against him by the trial court was affirmed on appeal.
The operative facts in McCormick are similar to those before this court now. McCormick became a quadriplegic when he attempted a flat surface dive into the shallow end of a swimming pool and struck his head on the pool bottom. He had dived into the pool before, and he knew the depth of the water at the point where he dove. He knew he had to execute a surface dive to avoid injury. I note that in McCormick the pool did not bear explicit depth markers and the warning sign against diving that appellant here concedes were present.
Issues of negligence and proximate cause are seldom capable of determination on a summary judgment motion. However, summary judgment is appropriate where material facts are not in dispute and compel only one conclusion. McCormick at 475. See Vanderweyst v. Langford, 303 Minn. 575, 576, 228 N.W.2d 271, 272 (Minn.1975) (Only where evidence is so clear and conclusive as to leave no room for differences of opinion among reasonable men that the issue of causation becomes one of law to be decided by the court.)
Appellant’s claims against Doughboy are predicated on negligence, warranty, and strict liability. The claims against Kvaal are predicated on negligence. For the limited purpose of the motion for summary judgment, respondents admitted the instructions and warnings were insufficient, and that there were design defects in the pool and vinyl liner. Respondents wanted to frame the issue so there would be no dispute over material facts, and then argued that, as a matter of law, they were entitled to summary judgment. The trial court agreed and, even with the tragedy of the accident, I cannot disagree.
The majority spends its time attempting to distinguish McCormick on the facts and rests on Holm v. Sponco Manufacturing, Inc., 324 N.W.2d 207 (Minn.1982), and Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976). An examination of Holm and Ferguson shows that they are actually distinguishable from the swimming pool/dive cases of McCormick and this case because, in Holm and Ferguson, the operative word is “accident.” Holm, an electrician’s assistant, was familiar with the danger of working with high voltage power lines from an aerial ladder and was doing his utmost to be cautious and avoid the electrical power line that caused his injuries. While so being cautious in attempting to avoid the power line, Holm accidentally struck the electrical power line with his right arm below the shoulder. The facts in Holm would only be precedent for the facts in this case if Holm, on a dare or in an attempt to show off, had intentionally grabbed the power line while on his aerial ladder mistakenly believing he was insulated and could get away with grabbing the line without injury. Those are not the Holm facts. Holm accidentally touched the power line.
Here, however, appellant, like in other swimming pool/dive cases, intentionally dived into the shallow part of a familiar pool. Appellant, unlike Holm, was not being extremely cautious trying to avoid acci*266dentally falling into the shallow end of the pool. Appellant intentionally dove into the shallow end.
The same is true of Ferguson. The operative concept is that Ferguson accidentally contacted a high voltage electrical transmission line, which caused his injuries. Appellant, on the other hand, intentionally dove into the shallow end of the pool mistakenly assuming that he could pull it off safely. Had Holm and Ferguson intentionally reached out and grabbed the electrical lines which caused their injuries, mistakenly believing they could to so without injury, I suspect the result in Holm and Ferguson would have been different.
The majority places emphasis on the fact that the expert Gabrielson’s last affidavit on behalf of appellant did not bring forth a responsive affidavit from respondents. The majority finds that therefore, since the affidavit was “unchallenged,” its statements thereby create genuine issues of material fact pursuant to Minn.R.Civ.P. 56.03.
I am not sure of the majority’s reliance on its claim that, since Gabrielson’s affidavit was “unchallenged,” it has extra meaning in negating the appropriateness of summary judgment. Had respondents filed a counter affidavit, the majority would then argue that, since there are conflicting affidavits, therefore now there must be a genuine issue of material fact and the case is still not ripe for summary judgment. In other words, under the majority’s logic, if Gabrielson’s affidavit did not bring forth a responsive affidavit, there must be a contested material fact issue, and if Gabriel-son’s affidavit had brought forth a responsive affidavit, there must be a contested material fact issue.
Although it is true that negligence and products liability cases are not often appropriate for summary judgment, there is nothing in Rule 56, or in any case of the Minnesota Supreme Court, which prohibits the use of Rule 56 in these cases. As the bench and bar who work in the personal injury field know, if all one had to do to escape a Rule 56 motion in a personal injury case was to find an expert with a “theory,” Rule 56 would be written out of the law. An examination of the annotations and comments of Rule 56 and the cases decided thereunder, where summary judgment was affirmed, shows that the losing party had at least a “theory” in every case. Conflicting theories are found by looking.
In this case, to combat respondents’ motion for summary judgment, appellant’s expert claims the bottom of the pool was too slippery. In McCormick, the plaintiff’s expert, in an attempt to escape summary judgment, claimed that the bottom of the pool was not slippery enough.
Zero slope is a distinct hazard in terms of anticipated bather expectation, impact degree and sliding safety upon mild impact with the bottom.
McCormick at 474 (emphasis in original).
Appellants’ expert claims that a diver does not want to slide upon a collision with the bottom of the pool. He rests this assertion on the theory that, when a person dives, his hands enter the water first. Thus, if his hands hit the bottom of the pool and did not slide, they would absorb the impact and his injuries would be limited to his hands and wrists rather than head and neck. Appellant’s expert claims this is the causal link, and the majority accepts that theory.
Examining the record, I find there is not one shred of evidence put forward by appellant to show that the following sequence took place: appellant dove into the pool; appellant’s hands struck the bottom of the pool first; appellant’s hands slid away because the vinyl liner is slippery; appellant’s head then came in contact with the bottom of the pool, causing the injuries; and, but for that particular Doughboy liner, appellant’s hands would have braked his dive, and his collision with the bottom of the pool would have involved only his hands, not his head and neck.
That is the essence of appellant’s theory in this case. However, it is theory only. Appellant produced no facts, either uncon-troverted or in dispute, that this sequence is, in fact, what took place. Rule 56 speaks to genuine issues of material fact, not *267merely conflicting theories or theories of recovery. Appellant produced only a theory, but no facts, to support the claim that Doughboy’s vinyl liner was causally related to appellant’s injuries. Appellant, to escape summary judgment, can only speculate as to how the incident occurred. The trial court found no causation and, upon review of the record, I cannot.
The majority opinion discusses appellant’s level of intoxication as if the level of intoxication is a material fact dispute. This is not a DWI or an implied consent case. There likely is a factual dispute as to whether appellant had between six and nine total drinks that night, or between seven and ten, or between five and eight, et cetera. The number of drinks is not what this case is about. What is uncontroverted and what the trial court took from the record is appellant’s concession that, prior to his injuries, he voluntarily drank a fairly large amount of alcohol, and that alcohol clouded his judgment. There is no need here for a jury to determine whether appellant’s blood alcohol concentration was more or less than .10.
The problem with this case is not the facts but the injuries. There can be nothing more tragic than quadriplegia, for the sufferer, his family, and his friends. The easiest and most natural inclination for a trial court in a swimming pool/dive case is to “give the plaintiff a day in court,” knowing that if the plaintiff’s case has no merit, a miscarriage of justice can be prevented because defendant has the right to move for a directed verdict, either during the trial, before submission to a jury, or after an adverse verdict before appeal. The trial court here made the decision not to send the case along to see what appellant might be able to put together during his case in chief. The trial court reviewed the entire record, the affidavits, the experts’ claims, the parties’ depositions setting forth the facts surrounding the incident, and it then made the hard decision that summary judgment was appropriate. The easier decision perhaps would have been to send it on to trial, but that decision was not made. Sitting as an appellate court of review, and sympathetic to appellant’s severe injuries, I conclude that the trial court’s assessment of no genuine issues of material fact was correct.
The facts here set out an even stronger case for summary judgment in respondents’ favor than does McCormick. If the majority wants to carve out an exception for diving into backyard swimming pools, and hold that these cases can never be the subject of a Rule 56 motion, unlike other product liability cases, the proper course might be to ask the supreme court to accept this case, affirm it, and overrule McCormick. That would end uncertainty among the bench and bar. If all that is needed in a backyard swimming pool/dive injury case to defeat a motion for summary judgment is a “theory,” it is inconceivable that there would ever be a case without one.