Reversing a lower court decision, the Supreme Judicial Court yesterday held that a homeowner who created a dangerous condition on his property may be liable to a visitor injured by the danger, even if the risk of harm was obvious to the visitor. The case, Dos Santos v. Coleta, marks the second time this week that the SJC has ruled that the potential liability of a tort defendant turns on whether the defendant’s negligence was a factor in creating the danger–as opposed to simply failing to warn of the danger–the first case was discussed in a previous post.
Dos Santos involved a man who suffered a serious spinal cord injury when he attempted a flip off a trampoline into an adjacent wading pool. Despite acknowledging that he knew it might be dangerous, the defendant homeowner had deliberately placed the two-foot-deep pool next to the trampoline–and even positioned the trampoline’s ladder in the pool–because he thought it would be “fun.” In fact, a warning against jumping and diving (in the plaintiff’s and defendant’s native Portuguese) and an accompanying pictograph were clearly printed on the side of the pool.
The homeowner in Dos Santos raised the “open and obvious danger” defense–a legal principle that states that a landowner has no duty to warn about dangers on his property that would be “obvious to a person of average intelligence.” The Court agreed that the property owner had no duty to warn visitors, but ruled that he could still be responsible for his negligence in failing to remedy an open and obvious danger that he himself had created and maintained. The Court noted that the homeowner admitted that he had seen visitors jumping from the trampoline into the pool–not surprising given his testimony that he had chosen the location for the trampoline specifically to permit this activity.
The Court took pains to distinguish Dos Santos, where an affirmative, deliberate action of the landowner created the danger, from other cases such as O’Sullivan v. Shaw, where the only negligence alleged was a failure to warn about the danger. This distinction is important for lawyers considering similar cases, in the need to focus on actions, rather than inactions of the defendant. Where the potential defendant had a hand in creating the dangerous condition, the principle of Dos Santos would impose liability, even if the danger was apparent.
The plaintiff’s case isn’t out of the woods yet, however. The SJC’s decision focuses only on the defendant’s conduct, and at a second trial, the jury will be told to consider whether the man was negligent in attempting the flip into the pool, and to compare that negligence to the homeowner’s conduct.
The Supreme Judicial Court’s decisions are available on its public website.