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New SJC Ruling on the Open and Obvious Rule


The Supreme Judicial Court came down with a decision relative to the open and obvious danger of swimming pools.

A man was injured when he unsuccessfully attempted to flip into an inflatable pool from a trampoline that had been set up directly adjacent to it on the backyard of a property he was renting from the Defendants. His lawsuit claimed that the Defendants were negligent in setting up and maintaining a trampoline next to the pool and failing to warn him of the danger of jumping from the trampoline into the pool.

The jury came back with a verdict for the Defendants, which the Plaintiff appealed. The basis of the Plaintiff's appeal included the argument that the judge erred in instructing the jury on the 'open and obvious' danger rule without giving a requested instruction on a recognized exception to the rule.

The SJC's decision stated, "we conclude that a landowner has a duty to remedy an open and obvious danger, where he 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...the existence of an open and obvious danger will not necessarily relieve a landowner of the duty to remedy that danger."

They went on to discuss the elements of the case at hand. "Here, Jose set up a trampoline immediately adjacent to a two-foot deep pool, with a ladder leading directly from the pool to the trampoline, for the very purpose of enabling people to jump from the trampoline into the pool. He knew that the pool warned against jumping of any kind, and he knew that the setup was dangerous but proceeded with the setup because he thought it would be 'fun'. In many ways, Jose's actions were equivalent to installing a diving board in the shallow end of an in-ground pool. The danger from using a diving board in the shallow end of an in-ground pool would be open and obvious, but a defendant who installs or maintains the diving board in this manner would surely have reason to anticipate that persons would use the board to propel themselves into the water despite the danger. Far from failing to warn users not to jump or dive into the shallow pool - which, standing alone, would not give rise to liability - Jose actively facilitated this improper and highly dangerous use."

As a result, the SJC ruled that the judge needed to give that instruction to the jury in addition to the open and obvious rule instruction.

This decision clarifies the obligations of a landowner and does not absolve them of responsibility just because a danger is open and obvious. If they help to create the danger, they must remedy it.