Dos Santos v. Coleta, 465 Mass. 148

Dos Santos was injured flipping from a trampoline into a two-foot-deep pool set adjacent to the trampoline in defendants' backyard.
Defendants knew people used the trampoline to jump into the pool and did not move them apart or warn.
Defendants set up the trampoline next to the pool expressly to enable that use, despite warnings on the pool.
Plaintiff, a tenant, sued for negligence; verdict for defendants; plaintiff appealed alleging improper open-and-obvious instruction and lacking §343A remedy instruction.
Appeals Court affirmed; Supreme Judicial Court granted review; court reverses, holding a duty to remedy open-and-obvious dangers exists when owners foresee lawful entrants will encounter the danger despite the risk.
Case remanded for new trial with proper instructions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether landowners must remedy open and obvious dangers under §343A.	Dos Santos contends §343A requires a remedy duty when danger is open and obvious.	Coletas argue open-and-obvious defeats all duties to remedy.	Yes; duty to remedy may apply despite open and obvious danger.
Whether the jury should have been instructed on §343A’s remedy duty and its exceptions.	Plaintiff asked for §343A instruction and a special question on anticipation of harm.	Judge noncompliant; relied on O’Sullivan to deny remedy duty.	Judge erred by not instructing remedy duty and by limiting deliberations to open-and-obvious.
Whether a special question should have been given to determine foreseeability of harm.	Special question on whether defendants could anticipate injury from jumping into pool.	Not required if open-and-obvious negated duty.	Yes; a special question on anticipation was required.
Whether the verdict should be set aside and remanded for new trial.	Remand warranted to allow proper instructions on duty to remedy.	Remand not necessary if duty to remedy not established.	Yes; verdict set aside and remanded for new trial with proper instructions.

Papadopoulos v. Target Corp., 457 Mass. 368 (Mass. 2010) (limits on open-and-obvious danger and duty to remedy)
O'Sullivan v. Shaw, 431 Mass. 201 (Mass. 2000) (open-and-obvious negates warning duty but not remedy in all cases)
Quinn v. Morganelli, 73 Mass. App. Ct. 50 (Mass. App. Ct. 2008) (illustrates §343A illustrations and duty nuances)
Soederberg v. Concord Greene Condominium Ass’n, 76 Mass. App. Ct. 333 (Mass. App. Ct. 2010) (open and obvious dangers; foreseeability of harm; §343A comment f)
Docos v. John Moriarty & Assocs., Inc., 78 Mass. App. Ct. 638 (Mass. App. Ct. 2011) (duty to remedy where danger anticipated despite obviousness)
Luz v. Stop & Shop, Inc., 348 Mass. 198 (Mass. 1964) (foreseeability and risk concepts in duty analysis)
O’Sullivan v. Shaw, 431 Mass. 201 (Mass. 2000) (foundation for open-and-obvious rule and duty limitations)
Thorson v. Mandell, 402 Mass. 744 (Mass. 1988) (distinguishable facts; duty analysis context)