On May 15, 2013, the Massachusetts Supreme Judicial Court (SJC) announced a decision that clarified an important aspect of premises liability law in the Commonwealth. It is a major development that any landowner or property owner should know about and it is particularly relevant as the summer begins.

In Dos Santos v. Coleta, the SJC clarified what is known as the “open and obvious danger” rule. In general, that principle holds that a landowner does not have a duty to warn others of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor, exercising reasonable care for his or her own safety, would be injured by such “blatant hazards.” It has been thought that a warning in such circumstances would be unnecessary or superfluous. The existence of an open and obvious danger did not, however, relieve the landowner of the duty to fix the danger or remedy it.

In Dos Santos, the plaintiff, Cleber Coleta Dos Santos, and his family were living in one unit of a two-family property rented from the defendant, Jose Coleta, Dos Santos’s brother-in-law. The defendant and his family lived in the other unit. In June of 2005, the defendant set up a three foot high trampoline in the back yard, directly adjacent to a small, two foot deep inflatable pool. A ladder led from the trampoline into the pool. The defendant’s children and adult family friends used the trampoline and pool frequently that summer and were seen jumping into the pool from the trampoline. Several weeks after setting up the trampoline and pool, the defendant and his family moved out of state, and the plaintiff and his family remained in their rented unit. The defendant left the trampoline and pool set up in the backyard.

On August 2, 2005, Dos Santos attempted to perform a front flip or dive off the trampoline and into the pool while playing with his son. It was his first time using the trampoline. He struck the bottom of the pool, breaking his neck and sustaining permanent injuries. Dos Santos brought suit against the defendant, claiming the defendant was negligent in setting up and maintaining the trampoline next to the pool and in failing to warn him of the danger in using the trampoline/pool arrangement.

At trial, the defendant testified that he positioned the trampoline and pool purposely to allow people to jump into the pool from the trampoline, because he thought it would be fun. He did this despite the fact that he knew it was dangerous and the pool specifically warned against any jumping in a number of languages, including the defendant’s native language of Portuguese.

A jury found for the defendant on the grounds that the danger was open and obvious. The plaintiff appealed and the Appeals Court affirmed the judgment. On review, the SJC set aside the verdict and granted the plaintiff a new trial. Specifically, the Court, clarifying a mistaken belief of many insurance companies and their attorneys, reiterated the holdings of several Appeals Court cases and held that the existence of an open and obvious danger does not necessarily relieve a landowner of the duty to remedy that danger. The SJC ruled that the lower court erred in failing to instruct the jury accordingly regarding that duty. The Court further held that landowners are not relieved from remedying an open and obvious danger where they could (or should) anticipate that the dangerous condition will cause physical harm to a lawful entrant on the property, regardless of whether an entrant may be negligent in encountering the danger.

The law regarding premises liability is constantly changing and evolving, as this case demonstrates. The attorneys at SUGARMAN have a long history of successfully handling cases involving premises liability. If you have any questions and wish to speak to one of our attorneys about a premises liability case or an injury suffered on another person’s property, please fill out a Contact Form, send an e-mail to info@sugarman.com, or call us at (617) 542-1000.