Greenslade v. Mohawk Park, Inc., 01-P-1492.
| Citation | 798 NE 2d 336,59 Mass. App. Ct. 850 |
| Decision Date | 10 November 2003 |
| Docket Number | No. 01-P-1492.,01-P-1492. |
| Parties | ARTHUR GREENSLADE v. MOHAWK PARK, INC. |
| Court | Massachusetts Appellate Division |
Present: LAURENCE, DUFFLY, & BERRY, JJ.
Christopher S. O'Connor for the plaintiff.
Kimberly M. McCann for the defendant.
After Arthur Greenslade sustained serious injuries as the result of falling from a rope swing, he commenced an action in Superior Court against Mohawk Park, Inc., the owner of a seasonal campground where Greenslade was camping when he was injured. The rope swing was attached to the limb of a tree on land owned by Joanne and Larry Lemek,2 located on the river bank opposite Mohawk Park's property. Greenslade appeals the summary judgment in favor of Mohawk Park. We affirm.
Background. These undisputed facts emerge from the summary judgment materials. On land owned by Mohawk Park, which is situated between Route 2 and the banks of the Deerfield River in Charlemont, is a campground, restaurant, and bar. Although bordering the river, the campground has no beach area and no lifeguards.
Greenslade and his companion, Christina Morton, arrived at the Mohawk Park campground on August 29, 1996, the beginning of the Labor Day holiday weekend, and were assigned a campsite located just off the river bank. At that location, according to Greenslade, the Deerfield River was approximately fifty feet wide. On the river bank opposite the Mohawk Park campground was a formation of cliffs and large rocks, either close to or on land owned by Joanne and Larry Lemek. Directly across from the site where Greenslade and Morton had pitched a tent, a rope swing hung from the limb of a tree on the Lemek property. The twenty-foot rope hung about five feet inland from a rock embankment. The embankment itself rose about five feet above the Deerfield River. At the rope's end was a knot the size of a softball. Individuals using the rope swing would grab onto the knot of the rope, jump while holding on and swinging away from the bank and out over the river, then release the rope to plunge into the water below.
Neither party knows the identity of the person who constructed or hung the rope swing. There is also nothing in the record indicating that Paul Fantucchio (who, with his wife Deborah Fantucchio, owned and operated Mohawk Park) or any employees of Mohawk Park had ever witnessed visitors to the campground using the rope swing at any time prior to Greenslade's fall on August 31, 1996. However, we agree with the motion judge that prior to the date of Greenslade's accident, the facts — including the proximity of the rope swing to, and its visibility from, Mohawk Park's premises; and that on at least one occasion prior to the accident Deborah Fantucchio had warned campers who asked if they could use the rope swing that they could not and that it was dangerous — support the reasonable inference that Mohawk Park was aware of the rope swing's existence and that its guests would use it on occasion.
On August 31, Greenslade, Morton and another couple (James and Andrea Molinari) used inner tubes to float on the Deerfield River. As they watched others across the river who were jumping from the cliffs or using the rope swing, Greenslade or James Molinari commented that "one of these guys is going to break their neck." Greenslade said: "If I see one more of those idiots hit it, I'm going to give it a shot."
After the foursome returned to the campsite, Greenslade made his way across the river to use the rope swing.3 Greenslade climbed up an embankment onto the Lemeks' property, where he caught the rope swing. He grabbed onto the rope with both hands and, with the knot between his legs, swung out over the river, released his hold, and fell in a backwards flip headfirst into the water. Greenslade climbed back up onto the embankment and attempted a second maneuver with the rope. This time, however, the knot of the rope became entangled in his clothing, causing Greenslade to remain hanging upside down from the rope. As the rope swung back toward the bank, Greenslade fell from the rope headfirst, striking the rocky ledge on the bank below.
Greenslade was airlifted to BayState Medical Center where he remained unconscious for over a month. He sustained a spinal cord injury, leaving him without the use of his legs and with only limited use of his arms.
Discussion. A Superior Court judge entered a summary judgment in favor of Mohawk Park, ruling that Mohawk Park had no duty to warn its campers or visitors to the camp of the dangers associated with the rope swing, or to advise that the use of the rope swing was not a sanctioned campground activity. Greenslade appeals that ruling, arguing that although the rope swing was not on Mohawk Park's property, it is a disputed question of fact for the jury whether the level of control exercised by Mohawk Park and its employees over the premises on which the rope swing was located nevertheless gave rise to a duty of care owed to campers, such as Greenslade, who made recreational use of the rope swing.
It is a familiar principle that a landowner has a duty to warn of any unreasonable danger of which the owner is or reasonably should have been aware. "The extension of the duty in appropriate circumstances to conditions on adjacent property derives from the same general obligation to act reasonably to protect one's invitees from the hazards of which the owner is aware." Polak v. Whitney, 21 Mass. App. Ct. 349, 352 (1985). We need not, however, address whether the plaintiffs are correct that there are material questions of fact involving the issue of control over the premises on which the swing was located, because the dispositive issue in this case is whether, as matter of law, the risks attendant to the rope swinging activity are open and obvious, precluding liability. That is to say, the outcome in this case would be the same even if it had been established that the rope swing was located on Mohawk Park's property.
"It is well established in our law of negligence that a landowner's duty to protect lawful visitors against dangerous conditions on his property ordinarily does not extend to damages that would be obvious to persons of average intelligence." O'Sullivan v. Shaw, 431 Mass. 201, 204 (2000). See Davis v. Westwood Group, 420 Mass. 739, 743 n. 9 (1995); Polak, supra at 352. This rule has continued vitality despite the Legislature's abolition of the assumption of risk defense. O'Sullivan v. Shaw, supra at 205 (). "Landowners 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." Id. at 204.
The undisputed facts of this case do not overcome the rational conclusion that would be reached by a person of ordinary intelligence that it is unsafe to swing on the end of a rope suspended over water, heedless of the potential presence of rocks beneath the water's surface or of the possibility that letting go of the rope too late or too soon could...
To continue reading
Request your trial