Dos Santos v. Coleta
81 Mass. App. Ct. 1 (2011)
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Rule of Law:
A landowner is not relieved of the duty to remedy a dangerous condition on their property, even if the danger is open and obvious, if the landowner created the condition and can or should anticipate that a lawful visitor will encounter the danger and suffer physical harm despite its obviousness.
Facts:
- Maria A. and Jose T. Coleta rented one unit of their two-family home to their half-brother/tenant, Cleber Coleta Dos Santos.
- Jose set up a trampoline immediately adjacent to a two-foot-deep inflatable swimming pool in the shared backyard.
- Jose intentionally placed the trampoline next to the pool to enable people to jump from one to the other, stating he thought it would be 'fun'.
- In setting up the trampoline and pool, Jose disregarded printed warnings on the pool cautioning against jumping or diving into it and acknowledged the setup might be dangerous.
- During the summer, the Coletas were aware that children and visitors frequently jumped from the trampoline into the pool.
- The Coletas took no steps to discourage this activity or separate the trampoline and the pool.
- On August 2, 2005, Dos Santos, who had not previously used the trampoline, attempted a front flip from it into the pool.
- Dos Santos underrotated the flip, struck his head on the bottom of the shallow pool, and sustained an injury that resulted in permanent paralysis.
Procedural Posture:
- Cleber Coleta Dos Santos sued Maria A. and Jose T. Coleta for negligence in the Massachusetts Superior Court (trial court).
- The case was tried before a jury, which the judge instructed to end deliberations and find for the defendants if it determined the danger was 'open and obvious'.
- The jury answered a special question finding the danger was 'open and obvious' and returned a verdict for the defendants.
- The plaintiff, Dos Santos, as appellant, appealed the judgment to the Massachusetts Appeals Court.
- The Appeals Court affirmed the trial court's judgment in favor of the defendants, the Coletas.
- The plaintiff, Dos Santos, petitioned for further appellate review by the Supreme Judicial Court of Massachusetts, which granted the petition.
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Issue:
Does a landowner have a duty to remedy an open and obvious danger on their property when they created the dangerous condition and should anticipate that lawful visitors will encounter the danger, despite its obviousness?
Opinions:
Majority - Cordy, J.
Yes, a landowner has a duty to remedy an open and obvious danger when they can and should anticipate that the dangerous condition will cause physical harm to a lawful visitor, notwithstanding its known or obvious danger. While the 'open and obvious' nature of a hazard negates a landowner's duty to warn, it does not automatically eliminate the duty to remedy the unsafe condition. The court adopted the principle from the Restatement (Second) of Torts § 343A, which provides that a landowner can be liable for an obvious danger if they should anticipate harm will occur despite the visitor's knowledge. This anticipation does not require a 'cost-benefit' analysis by the visitor; it applies even when the landowner should foresee that a visitor might negligently encounter the danger. Here, the defendants did more than fail to warn; they created and actively facilitated a dangerous condition by placing the trampoline next to the shallow pool for the express purpose of encouraging people to jump between them. This action is analogous to installing a diving board over the shallow end of a pool. Because the defendants created the hazard and knew people were using it in a dangerous manner, they could and should have anticipated the harm that occurred, and thus had a duty to remedy the situation.
Analysis:
This decision significantly clarifies the 'open and obvious danger' doctrine in Massachusetts, establishing that it is not an absolute bar to a landowner's liability. The ruling distinguishes the duty to warn from the duty to remedy, holding that the latter can persist even when the former is negated. The case creates a precedent that a landowner's affirmative actions in creating and encouraging interaction with a known hazard are critical to the duty analysis. This shifts the focus from solely the plaintiff's perception of risk to also include the landowner's role in creating a foreseeable, albeit obvious, path to injury.
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