Cohen v. Elephant Rock Beach Club, Inc.
63 F. Supp. 3d 130
D. Mass.2014Background
- Elephant Rock Beach Club, Inc. operates a private Westport, MA beach club, renting the land from WHIC and controlling the beach.
- Elephant Rock lies about 250 feet offshore and may be owned by the Commonwealth, outside the Beach Club lease.
- Non-members can access the adjacent water and rock; the rock is beyond the safety ropes and buoys set by the club.
- The club maintains safety measures: three safety ropes, a flag system, lifeguards, and signage; the rock is not within a clearly restricted area.
- Guests commonly swim to and jump from the rock; jumps from the highest part drop 8–12 feet into water whose depths are not visible.
- On July 6, 2009, plaintiff Andrea Paige Carter Cohen, a guest, jumped from the rock and sustained a compound leg fracture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to visitors for adjacent rock | Beach Club exercised control over rock, creating a duty to warn or protect. | No legal right to control rock; no duty beyond open premises. | There may be a duty to warn based on voluntary control and knowledge of danger. |
| Open and obvious danger | Rock dangers below surface render risk not open and obvious. | Danger is open and obvious given visible rock and typical use. | jury must decide if danger was open and obvious; not appropriate for summary judgment. |
| Recreational Use Statute applicability | Club not open to the public for free; 17C does not apply. | 17C bars ordinary negligence when land open for recreational use without charge. | Statute not applicable; club open to a paid member/guest, and partial public access is contested. |
| Summary judgment standard | Sufficiency of facts to support a jury finding of duty and warning. | No genuine issue of material fact and no duty to warn. | Not entitled to summary judgment; material factual disputes remain for trial. |
Key Cases Cited
- O’Brien v. Peterson, 329 Mass. 427 (1952) (duty question jury-worthy in open conditions context)
- Davis v. Westwood Group, 420 Mass. 739 (1995) (control and duty; open-space limits on open land duties)
- Dos Santos v. Coleta, 465 Mass. 148 (2013) (open-and-obvious danger not fatal if danger created or anticipated)
- Papadopoulos v. Target Corp., 457 Mass. 368 (2010) (open-and-obvious doctrine and duty to warn refinement)
- Wilkins v. City of Haverhill, 468 Mass. 86 (2014) (recreational use statute open to public without charge not available here)
- Spillane v. Adams, 922 N.E.2d 803 (Mass. App. Ct. 2010) (boundary marker analysis for waterfront properties; extreme low tide discussion)
- Marcus v. City of Newton, 967 N.E.2d 140 (2012) (public access and charge for use; fee linkage to recreational use defense)