O'Sullivan v. Shaw, 041300

• Citation: 431 Mass. 201,726 N.E.2d 951
• Decision Date: 13 April 2000
• Docket Number: SJC-08081
• Parties: (Mass. 2000) JOSEPH J. O'SULLIVAN v. NORMAN SHAW & another. <A HREF="#fr1-1" name="fn1-1">1 No.:
• Court: United States State Supreme Judicial Court of Massachusetts

Page 951

726 N.E.2d 951 (Mass. 2000)

JOSEPH J. O'SULLIVAN v. NORMAN SHAW & another.¹

No.: SJC-08081

SUPREME COURT OF THE STATE OF MASSACHUSETTS, Essex County

Argued January 3, 2000.

Decided April 13, 2000

[Copyrighted Material Omitted] Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ.

Summary: Practice, Civil, Summary judgment. Negligence, Swimming pool, Standard of care, One owning or controlling real estate, Duty to warn. Statute, Construction.

The plaintiff seeks to recover for injuries he sustained when he dived, headfirst, into the shallow end of a swimming pool owned by the defendants and located on their residential property. His complaint alleges that the defendants were negligent in allowing visitors to dive into the shallow end of the pool and in failing to warn of the danger associated with this activity. A judge in the Superior Court allowed the defendants' motion for summary judgment, reasoning that diving into the shallow end of a swimming pool is an open and obvious danger which was known to the plaintiff, and that the defendants therefore did not owe the plaintiff a duty of care. The plaintiff timely appealed, and we transferred the case here on our own motion. We affirm.

1.FactsThe undisputed record before the motion judge, viewed in the light most favorable to the plaintiff, establishes the following material facts:

The pool in question is an in-ground type, measuring eighteen feet in width by thirty-six feet in length, with both shallow and deep ends. The bottom of the pool is level in the shallow end, for approximately ten feet of the pool's length, after which it slopes gradually toward the deep end, the sides of which are tapered. When filled to capacity, the pool is four feet deep at its shallowest point and eight feet at its deepest. There are no markers, either in the pool or on its exterior surround, to indicate the pool's depth at various points along its length or to demarcate the separation of its shallow and deep ends. However, a diving board is affixed to the exterior of the pool at its deep end. The pool's interior is covered with a vinyl liner and there is no underwater lighting, so that the bottom of the pool is not visible at night.

The plaintiff, who was a friend of the defendants' granddaughter, had swum in the pool at least once prior to the night of the accident, during daylight hours. He had observed various swimmers dive into the pool's deep end from the diving board. He also saw swimmers dive into the pool from the shallow end by performing a flat or "racing dive," i.e., diving headfirst, with arms outstretched over their heads, landing in the water at an angle roughly parallel to the bottom of the pool, gliding just beneath the water's surface and eventually surfacing in the deep end. The plaintiff himself had previously dived into the pool's deep end from the diving board two or three times, and had made one dive into the shallow end. Although he did not know the exact dimensions of the pool, the plaintiff was aware of approximately where the shallow part ended. Moreover, he was aware of the shallow end's approximate depth, having observed other swimmers standing in that part of the pool and having subsequently stood next to these people outside the pool.

On the evening of July 16, 1996, the plaintiff, then twenty-one years of age, was a guest of the defendants' granddaughter at the defendants' residence. The defendants were out of town, but their granddaughter had permission to be on the premises and to use the swimming pool. Sometime between 9 and 9:30 P.M., the plaintiff suffered injuries to his neck and back when he dived into the shallow end of the pool. At the time, he was attempting, in racing dive fashion, to clear the ten-foot expanse of the shallow end and surface in the deep end, but he entered the water at too steep an angle and struck his head on the pool bottom, resulting in a fracture of his cervical vertebrae. By his own admission, the plaintiff knew that he could be injured if he were to hit his head on the bottom of the pool when diving, and his purpose in trying to clear the shallow end was to avoid the sort of accident that occurred. The plaintiff's injury caused immediate paralysis in his lower extremities and required a two-day stay inthe hospital, but the paralysis was not permanent.

2.Standard of review.Summary judgment is appropriate where there is no genuine issue of material fact and, where viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974); Lyon v. Morphew, 424 Mass. 828, 831 (1997). "[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial." Id. at 711, citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

3.Survival of the open and obvious danger rule. "Before liability for negligence can be imposed, there must first be a legal duty owed by the defendant to the plaintiff, and a breach of that duty proximately resulting in the injury." Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995). Whether a defendant has a duty of care to the plaintiff in the circumstances is a question of law for the court, to be determined by reference to existing social values and customs and appropriate social policy. See id. at 743, citing Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989).

An owner or possessor of land owes a common-law duty of reasonable care to all persons lawfully on the premises. See Davis v. Westwood Group, supra. This duty includes an obligation to "maintain his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," Mounsey v. Ellard, 363 Mass. 693, 708 (1978), and "to warn visitors of any unreasonable dangers of which the landowner is aware or reasonably should be aware." Davis v. Westwood Group, supra, and cases cited. However, a landowner is "not obliged to supply a place of maximum safety, but only one which would be safe to a person who exercises such minimum care as the circumstances reasonably indicate." Lyon v. Morphew, 424 Mass. 828, 833 (1997), quoting Toubiana v. Priestly, 402 Mass. 84, 88 (1988). Moreover, 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 dangers that would be obvious to persons of average intelligence. See Lyon v. Morphew, supra, quoting Toubiana v. Priestly, supra at 89. See also Thorson v. Mandell, 402 Mass. 744, 749 (1988); Young v. Atlantic Richfield Co., 400 Mass. 837, 842 (1987), cert. denied, 484 U.S. 1066 (1988), and cases cited; Waters v. Banning, 339 Mass. 777, 777 (1959), and cases cited; Greenfield v. Freedman, 328 Mass. 272, 274-275 (1952); Sterns v. Highland Hotel Co., 307 Mass. 90, 96 (1940), and cases cited; Sweet v. Cieslak, 23 Mass. App. Ct. 908, 908-909 (1986); Polak v. Whitney, 21 Mass. App. Ct. 349, 353 (1985); J.R. Nolan & L.J. Sartorio, Tort Law Sect. 336, at 89-90 (2d ed. 1989). 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. See Blackmer v. Toohil, 343 Mass. 269, 271-272 (1961); St. Rock v. Gagnon, 342 Mass. 722, 723-724 (1961). Stated otherwise, where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it and, therefore, "any further warning would be an empty form" that would not reduce the likelihood of resulting harm. LeBlanc v. Atlantic Bldg. & Supply Co., 323 Mass. 702, 705 (1949). See Bavuso v. Caterpillar Indus., Inc., 408 Mass. 694, 699 (1990) (products liability); Waters v. Banning, supra.

The plaintiff argues on appeal that the open and obvious danger rule was implicitly abolished by the comparative negligence statute, G. L. c. 231, Sect. 85, as appearing in St. 1973, c. 1123, Sect. 1, which expressly abolishes "the defense of assumption of risk," because, he maintains, the former is a corollary of the latter. Accordingly, he argues, the judge erred in concluding that the defendants owed no duty to the plaintiff due to the obvious nature of the risk, for it properly belongs to a jury to decide the issue of the defendants' liability by applying statutorily mandated principles of comparative fault. We reject this argument.

Although we have not previously addressed this precise issue, Massachusetts courts have continued to apply the open and obvious danger rule in cases decided after the Legislature's abolition of the assumption of risk defense, thereby at least implicitly recognizing the rule's continuing viability. See, e.g., Lyon v. Morphew, supra; Toubiana v. Priestly, supra; Thorson v. Mandell, supra; Young v. Atlantic Richfield Co., supra; Polak v. Whitney, supra at 354. See also Gauvin v. Clark, 404 Mass. 450, 454-455 & n.5 (1989) (given statutory abolition of assumption of risk defense in negligence cases, court's analysis of limits on defendants' liability properly proceeds in terms of existence of duty of care). Assumption of risk, along with contributory negligence, was an affirmative defense to negligence for...