On the Rocks – Woman Injury Jumping Off Rock in the Ocean; Liability is an Issue for the Jury (MA)

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Cohen v. Elephant Rock Beach Club, Inc. (Massachusetts)
(trial court disposition)

he plaintiff was a guest at the defendant’s beach club.  During her stay, plaintiff saw guests swimming to and around, and jumping off of, a large rock that was 250 feet off the shore.  She decided that she wanted to go to the rock, and did so by walking from the beach to the water and swimming to the rock.  After watching adults and children take a running start and then jump off the highest part of the rock, plaintiff waited her turn and did the same thing.  After she jumped, her foot smashed into a portion of the rock below the surface of the water, resulting in a compound fracture of plaintiff’s leg.  Lifeguards from the defendant that were on duty noticed plaintiff after she hit the water and went to assist her.

Plaintiff filed a complaint alleging negligence based on premises liability, and a duty to warn her of the dangerous condition of the rock.  The defendant club filed a motion for summary judgment.  In support of its motion, the defendant filed a late supplemental expert witness report, and the plaintiff filed a motion to strike the report.  As to the motion to strike, the U.S. District Court denied the motion, finding that the untimely disclosure of the supplemental report was harmless.

In the motion for summary judgment, the defendant argued that the plaintiff could not prove facts supporting the claims that it failed to maintain the rock (as its premises) in a reasonably safe condition and that it breached its duty to warn the plaintiff about known hazards involving the rock.  Additionally, the defendant argued that the Massachusetts recreational use statute protected the defendant from liability.

On the issue of the duty owed by the defendant with regard to the rock, the parties disagreed about what constituted the requisite “control.”  The Court explained:

“The [defendant] asserts that a legal right  to control the premises, such as through ownership, a lease or contract, or successful adverse possession, is required for the duty to attach.  The plaintiff, in contrast, asserts that the exercise  of control over the premises in question, whether pursuant to a legal right or not, determines whether a duty arises.  The crux of the dispute, then, is whether in these circumstances, a commercial tenant can be said to control adjacent premises for which the tenant’s property serves as a portal such that some duty of care to lawful visitors arises.”

Reviewing caselaw nationally, the Court noted that there was “a common understanding that control of adjacent property, even absent a legal right, can in some circumstances confer a duty of care, as the plaintiff suggest[ed].”  Specifically, the Massachusetts Appeals Court had recognized  that “in some situations a landowner’s duty to exercise reasonable care does not terminate abruptly at the borders of his property but may extend to include a duty to take safety measures related to known dangers on adjacent property.”

The defendant and its expert argued that there were no facts indicating that it had a legal right to control the rock.  Plaintiff argued that there was evidence to create a triable issue regarding whether the defendant “exerted sufficient control over the rock to give rise to a duty.”  Plaintiff noted that the defendant both encouraged and prohibited use of the rock by guests through the use of ropes, a flag system, its lifeguards, and its signage.  The defendant did not deny that it exercised actual control over the rock, but instead maintained that the right to control is critical to a finding of duty.  The Court concluded that a “duty voluntarily assumed, like one imposed by law, must be executed with reasonable care.”  As such, the Court found that a “reasonable fact finder could therefore conclude that the [defendant] had a duty to execute its assumed duties with such care.”

As to a duty to warn of the dangers of the rock, the Court explained that “[l]andowners 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 injury from such blatant hazards.”  The parties disagreed about whether the subject activity constituted an “open and obvious” danger.  In the end, the Court determined that the facts alleged by the plaintiff raised a question for the jury.

With regard to the Massachusetts recreational use statute, the Court noted that the statute “bars a recreational user’s claim for ordinary negligence against a landowner who has opened his land to the public for ‘recreational purposes.'”  However,  application of the statute was precluded under the circumstances because the defendant was a private club requiring membership and the payment of a fee for entrance by a guest.

Therefore, the Court denied the defendant’s motion for summary judgment.

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