Law Office of Isaac J. Mass -- Greenfield, Massachusuetts
_ No Premises Liability for Plaintiff’s “foolhardy” Actions

Today, the Court of Appeals released a slip opinion in Dos Santos v. Coleta, No. 10-P02184, 2011. Kantrowitz, J.

 In this case a landlord left both a two foot deep inflatable pool and an adjacent three foot high trampoline to be used by family and friends after his move out of state in the summer of 2005.  The friends and family regularly used both jumping (yes you guessed it) from the trampoline into the pool. 

Now this pool had warnings in six languages including the plaintiff’s native Portuguese as well as pictographs warning not to jump or dive.  This did not stop the plaintiff who observed many others jumping safely.  It was only a matter of time until the plaintiff made an unlucky dive and broke his neck which he did on video tape.  In the end he had $728,702 in medical bills and permanent injuries.

In this case the jury said the defendant was not liable.  The jury relied on the judge’s instructions that:
“under our law of premises liability, the standard for determining whether a landowner is relieved of a duty to warn is whether the dangerous condition complained of would be obvious to a person of average intelligence, that is, a visitor with ordinary perception and judgment exercising reasonable care for his own safety. That many people might engage in objectively hazardous conduct on the basis of a belief that it can be done safely does not affect our analysis of a defendant's duty of care under this standard if, in light of the obvious risks entailed by the activity, the belief in question, however prevalent it may be, must nonetheless fairly be judged unreasonable, if not foolhardy."

The appeals court agreed.  Despite the warning of the court inPapadopoulos v. Target Corp., 457 Mass. 368, 379-380 (2010), that an “open and obvious danger” did not always eliminate the duty to warn, the court of appeals found no duty to warn here.  They found that the court Papadopoulos employed a cost benefit analysis.  i.e. crossing ice to get to your car.  The appeals court found no benefit in the amusement of jumping from a trampoline into a pool and thus no duty to war.  Interestingly enough, there was no discussion of whether the warnings on the pool were adequate. 


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