59 Mass. App. Ct. 850 | Mass. App. Ct. | 2003
After Arthur Greenslade sustained serious injuries as the result of falling from a rope swing, he commenced an actian in Superior Court against Mohawk Park, Inc., the owner of a seasonal campground where Greenslade was camping when he was injured. The rope swing was attached to the limb of a tree on land owned by Joanne and Larry Lemek,
Greenslade and his companion, Christina Morton, arrived at the Mohawk Park campground on August 29, 1996, the beginning of the Labor Day holiday weekend, and were assigned a campsite located just off the river bank. At that location, according to Greenslade, the Deerfield River was approximately fifty feet wide. On the river bank opposite the Mohawk Park campground was a formation of cliffs and large rocks, either close to or on land owned by Joanne and Larry Lemek. Directly across from the site where Greenslade and Morton had pitched a tent, a rope swing hung from the limb of a tree on the Lemek property. The twenty-foot rope hung about five feet inland from a rock embankment. The embankment itself rose about five feet above the Deerfield River. At the rope’s end was a knot the size of a softball. Individuals using the rope swing would grab onto the knot of the rope, jump while holding on and swinging away from the bank and out over the river, then release the rope to plunge into the water below.
Neither party knows the identity of the person who constructed or hung the rope swing. There is also nothing in the record indicating that Paul Fantucchio (who, with his wife Deborah Fantucchio, owned and operated Mohawk Park) or any employees of Mohawk Park had ever witnessed visitors to the campground using the rope swing at any time prior to Greenslade’s fall on August 31, 1996. However, we agree with the motion judge that prior to the date of Greenslade’s accident, the facts — including the proximity of the rope swing to, and its visibility from, Mohawk Park’s premises; and that on at least one occasion prior to the accident Deborah Fantucchio had warned campers who asked if they could use the rope swing that they could not and that it was dangerous — support the reasonable inference that Mohawk Park was aware of the rope swing’s existence and that its guests would use it on occasion.
On August 31, Greenslade, Morton and another couple (James
After the foursome returned to the campsite, Greenslade made his way across the river to use the rope swing.
Greenslade was airlifted to BayState Medical Center where he remained unconscious for over a month. He sustained a spinal cord injury, leaving him without the use of his legs and with only limited use of his arms.
Discussion. A Superior Court judge entered a summary judgment in favor of Mohawk Park, ruling that Mohawk Park had no duty to warn its campers or visitors to the camp of the dangers associated with the rope swing, or to advise that the use
It is a familiar principle that a landowner has a duty to warn of any unreasonable danger of which the owner is or reasonably should have been aware. “The extension of the duty in appropriate circumstances to conditions on adjacent property derives from the same general obligation to act reasonably to protect one’s invitees from the hazards of which the owner is aware.” Polak v. Whitney, 21 Mass. App. Ct. 349, 352 (1985). We need not, however, address whether the plaintiffs are correct that there are material questions of fact involving the issue of control over the premises on which the swing was located, because the dispositive issue in this case is whether, as matter of law, the risks attendant to the rope swinging activity are open and obvious, precluding liability. That is to say, the outcome in this case would be the same even if it had been established that the rope swing was located on Mohawk Park’s property.
“[I]t is well established in our law of negligence that a landowner’s duty to protect lawful visitors against dangerous conditions on his property ordinarily does not extend to damages that would be obvious to persons of average intelligence.” O’Sullivan v. Shaw, 431 Mass. 201, 204 (2000). See Davis v. Westwood Group, 420 Mass. 739, 743 n.9 (1995); Polak, supra at 352. This rule has continued vitality despite the Legislature’s abolition of the assumption of risk defense. O’Sullivan v. Shaw, supra at 205 (summary judgment properly entered for defendant pool owner, where injury resulted from plaintiff’s dive into shallow end of pool). “Landowners are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer
The undisputed facts of this case do not overcome the rational conclusion that would be reached by a person of ordinary intelligence that it is unsafe to swing on the end of a rope suspended over water, heedless of the potential presence of rocks beneath the water’s surface or of the possibility that letting go of the rope too late or too soon could result in a landing on the rocky embankment. In this respect, our decision is in accord with those of numerous other jurisdictions, described in the margin, that have concluded that diving into a river from a cliff or from a rope swing is activity undertaken in conditions that a person of average intelligence would consider to be dangerous.
Similarly, we need not answer a further question raised by Greenslade, whether Mohawk Park incurred liability because it exercised a level of control over the instrumentality, the rope swing, which caused Greenslade’s injury. See, e.g., O’Brien v. Peterson, 329 Mass. 427, 429-430 (1952) (defendant held liable for injury resulting from plaintiff’s fall into hole, not on defendant’s property, near grill, also not on defendant’s property, held out as available for use and enjoyment of defendant’s guests). This is an issue we think is distinct from, although related to, premises liability. There are, however, no facts
We conclude that there was no error in applying the open and obvious danger rule to the circumstances of this case and that, under familiar principles set forth in Community Natl. Bank v.
Judgment affirmed.
The Lemeks, who also had been named in, the suit, settled with the plaintiffs and were not involved in the summary judgment proceeding.
The day before the incident, Greenslade had floated down the river in an inner tube and observed water levels in the Deerfield River rise and fall. He had at that time also observed thirty to forty people on the embankment across from his campsite jumping from the cliffs and rock embankments and using the rope swing. Greenslade apparently did not know the river’s depth underneath the rope swing, nor did he know whether there were, in that specific area, objects below the water. He was, however, aware that there were rocks in the vicinity of the rope swing. We need not rely on these facts — suggesting that Greenslade may have had actual knowledge of the existence of rocks beneath the water under the rope swing — for our conclusion. “[T]he inquiry is an objective one.” Barnett v. Lynn, 433 Mass. 662, 667 n.6 (2001). The “plaintiff’s subjective state of mind and actual knowledge of the danger. . . [must] be excluded from an objective inquiry concerning whether the risk of injury was obvious to a hypothetical ‘person of average intelligence.’ ” O’Sullivan v. Shaw, 431 Mass. 201, 209 (2000).
See, e.g., Barrett v. Forest Preserve Dist. of Cook County, 228 Ill. App. 3d 975, 979-980 (1992) (dangers associated with rope swing are obvious; defendant owed no duty to protect against type of injuries sustained by plaintiff, injured when she fell from rope that hung from tree on steep incline and swung out over a ravine); Holley v. International Paper Co., 497 So. 2d 819 (Miss. 1986) (summary judgment for defendant; no liability for plaintiff’s injuries resulting from diving from rope swing into shallow water on defendant’s property, to which general public was permitted); Colip v. Travelers Ins. Co., 141 Wis. 2d 363, 366 (1987) (hazard from diving from thirteen-foot cliff into pond is open and obvious; summary judgment correct where plaintiff struck his head on “visible” and “obvious” sand bar beneath water’s surface). Cf. DeVito v. State, 202 Cal. App. 3d 264, 272 (1988) (under statute precluding recovery from public entities for injuries resulting from inherently dangerous activities, State owed plaintiff no duty to warn of dangers posed by rope swinging, an inherently dangerous activity); Bishop v. First Natl. Bank of Fla., Inc., 609 So. 2d 722, 726 (Fla. Dist. Ct. App. 1992) (plaintiff uninvited licensee was owed duty to be free from any wilful or wanton negligent act; no breach of duty, as part of danger in using rope swing is open and obvious danger of something floating beneath water’s surface or possibility of hitting river bottom).
We reject the plaintiffs’ claim that the defendant was an innkeeper and therefore owed to Greenslade a heightened duty of care. See G. L. c. 140, § 5, the licensing statute for innholders, which provides in pertinent part: “Every innholder shall. . . have upon his premises suitable rooms, with beds and bedding, for the lodging of his guests.” At least as to campers, such as Greenslade, Mohawk Park was not an innholder as defined by the statute.