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Jan 2014

Recently, the Massachusetts Supreme Judicial Court issued a decision further refining (and limiting) the scope of the open and obvious doctrine in personal injury cases in Massachusetts.  In Dos Santos v. Coleta, 465 Mass. 148 (2013), the Court held that while the open and obvious doctrine may relieve a landowner of its duty to warn, a landowner nonetheless may be held negligent with respect to injuries resulting from an open and obvious danger where the landowner has created and maintained that danger with the knowledge that lawful entrants would choose to encounter it despite the obvious risk of doing so.

In Dos Santos, a landowner placed a three foot tall trampoline adjacent to a two foot high inflatable pool, with a ladder extending from the pool to the trampoline.  Despite posted warnings not to jump from the trampoline to the pool, the evidence indicated that the Defendant landowner was aware that individuals routinely ignored the warnings.  The landowner further acknowledged that the activity was dangerous.  The Plaintiff ignored the warnings and attempted to flip from the trampoline into the pool, but unfortunately, struck his head, resulting in quadriplegia.  Relying on O’Sullivan v. Shaw, 431 Mass. 201, 204 (2000), which held that “a landowner’s duty to protect lawful visitors against dangerous conditions on his property ordinarily does not extend to dangers that would be obvious to persons of average intelligence[,]” the trial court judge refused to instruct the jury that a landowner may be liable for injuries resulting from open and obvious dangers where the landowner should anticipate the harm despite its open and obvious nature.  Judgment entered for the Defendant and the Appellate Court affirmed. 

            In reversing the appellate court’s decision, the Supreme Judicial Court distinguished O’Sullivan as only applying to a landowner’s duty to warn, and not the duty to remedy the dangerous condition.  In summing up its decision, the court essentially adopted the provisions of Restatement (Second) Torts §343A, and stated that the trial judge “should have further instructed the jury that a landowner is not ‘relieved from remedying open and obvious dangers where he [or she] 'can or should anticipate that the dangerous condition will cause physical harm to the [lawful entrant] notwithstanding its known or obvious danger.'" See Dos Santos, supra, citing Soederberg v. Concord Greene Condo. Ass'n, 76 Mass. App. Ct. 333, 338 (2010) (quoting Restatement (Second) of Torts, supra at § 343A comment f).   The SJC also inferentially endorsed exceptions to the “open and obvious” doctrine that were discussed in previous decisions by the Massachusetts Appeals Court in Soederberg, supra and Quinn v. Morganelli, 73 Mass. App. Ct. 50 (2008).  The appeals court held in those two cases that even where there is no duty to warn because the danger is “open and obvious”, there may still be a duty to remedy when the landowner reasonably should anticipate that a visitor may forget what he had previously seen in terms of an open and obvious danger (Quinn) and where the landowner should anticipate that the lawful visitor may reasonably believe the benefit of encountering the known and obvious danger outweigh the risks of encountering it (Soederberg). 

The Dos Santos opinion thus further narrows the scope of the open and obvious doctrine by expanding exceptions to its application in cases where, even absent a duty to warn, there remains a duty to remedy.  

 

 

 


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