Published on:

Open and Obvious Dangers – Mass. Homeowners Beware

jumping-boy-594938-m.jpgThe general rule in Massachusetts is that a property owner has the duty to maintain their property in a reasonably safe condition given the circumstances. Mounsey v. Ellard, 363 Mass. 693 (1973). This is why we usually remove broken glass from our floors and clean up slippery liquid spills in our homes.

This duty to keep property reasonably safe includes the obligation to warn lawful visitors of dangerous conditions, such as those glass or liquid spills that somehow haven’t been cleaned up. However, the law states that the property owner has no duty to warn visitors of dangers that are “open and obvious” to a person of reasonable intelligence. O’Sullivan v. Shaw, 431 Mass. 201 (2000). In other words, if there is a large bright red liquid puddle on a white tile floor in a well-lit room, the owner need not warn a visitor because the hazard is apparent.

Like most rules, they are based on some degree of common sense. But, we live in a world where common sense doesn’t always govern human behavior. People are often unpredictable, and the law sometimes struggles to keep up.

A recent case from our Supreme Judicial Court is a good example.

In Dos Santos v. Coleta, 465 Mass. 140 (2013), the adult Plaintiff and the Defendants lived in a two family home owned by the Defendants. In the back yard, the Defendants set up a two feet deep inflatable pool next to a trampoline. The Plaintiff became permanently paralyzed when he launched himself from the trampoline, landing on his head in the shallow water.

At trial, the Defendants testified that they knew the set up was dangerous, but thought it would be “fun”. In fact, they knew before the Plaintiff’s accident that other people had performed the same risky move (but without injuries). The jury found for the Defendants because they believed the Defendants had no duty to warn the Plaintiff of such a danger.

The SJC agreed that there was no obligation to give a warning. However, the Court found that the Defendants still had a duty to remedy or prevent this danger. The Court wrote that if it was reasonably forseeable that someone would do something this foolhardy, then the Defendants could easily have prevented an accident by separating the pool and trampoline. Of significance were the facts that the Defendants created the hazard knowing that other people would engage in behavior that was both fun – and dangerous.

The case will now return to the Superior Court for a new trial.

Karsner & Meehan, P.C. is a well-established law firm. We have handled personal injury and premises liability cases for over 30 years. If you or someone you know has been injured as a result of someone else’s negligence in Bristol County, Plymouth County, or elsewhere in Massachusetts, you should contact the Massachusetts personal injury attorneys at Karsner & Meehan, P.C. to schedule your free consultation.