Is Your Yard a Lawsuit Waiting to Happen?

Summer is here, and it’s time for pools, trampolines, and outdoor fun. Is there danger lurking in your yard or your neighbor’s property? Outdoor equipment can be a major source of liability for homeowners and landlords. In recent years, Massachusetts courts have increased landowners’ potential liability for injuries suffered by visitors. A 2013 S.J.C. case from Framingham, Mass. is a tragic illustration of potential dangers and increased liabilities.

In Dos Santos v. Coleta, the defendant-landlord put a trampoline next to a two-feet-deep kiddie pool, with the trampoline’s ladder resting in the pool. 465 Mass. 148 (2013). The defendant acknowledged that he knew it was dangerous, but thought it would be “fun” to jump from the trampoline into the pool, even though the pool had warnings printed on the pool cautioning against jumping or diving into the pool. Thereafter, the defendants moved out of the state, but left the pool and trampoline behind for their tenants to enjoy.

The plaintiff-tenant was playing with his young son on the property when he decided to attempt a flip off the trampoline into the water. The plaintiff landed on his head and was paralyzed from the chest down. The plaintiff sued the defendant-landlord, seeking reimbursement for his $700,000+ in medical bills for treating his quadriplegia.

Landlords generally have a duty to “warn visitors of any unreasonable dangers of which the landowner is aware or reasonably should be aware.”Id. at 154 and cases cited. However, the defendant-landlord in this case invoked the “open and obvious danger” defense, arguing he owed no duty to the plaintiff-tenant where the danger of jumping from the trampoline into the kiddie pool was obvious.

The Trial Court and the Appeals Court allowed the “open and obvious danger” defense by the landlord, but the S.J.C. reversed to impose greater liability on landowners. The S.J.C. held that even if the jury thought that the danger was “open and obvious,” the jury should have been instructed to consider whether the defendant-landlord should have remedied the dangerous trampoline/pool arrangement. The plaintiff-tenant in this case got a new trial.

This decision imposes an additional duty on landowners to “remedy an open and obvious danger, where [the landowner] has created and maintained that danger with the knowledge that lawful entrants would (and did) choose to encounter it despite the obvious risk of doing so.” Id. at 154-55.

With this increased duty to remedy, homeowners and landlords may want to carefully review their properties and insurance policies. Premises liability cases can be difficult and painful, regardless of which party you are. If you have questions about possible liability, call the attorneys at Hutchins Law, P.C.

The purpose of this article is to inform our clients of developments in the law and to provide information of general interest. It is not intended to constitute legal advice or to assume a client relationship. The content of this article could be considered advertising under the rules of the Massachusetts Supreme Judicial Court. Copyright © 2012 Hutchins Law, P.C. All Rights Reserved.