Pierce, Davis & Perritano Winter 2001 Newsletter, Massachusetts High Court Rejects Admissibility of MCS Opinion

Open and Obvious Danger Doctrine Reaffirmed

The Massachusetts Supreme Judicial Court recently affirmed the validity of the open and obvious danger rule in Massachusetts, putting to rest any speculation that it might have been implicitly repealed by the enactment of the comparative negligence statute, M.G.L. ch. 23 1, § 85, which definitively abolished the affirmative defense of assumption of the risk. See O'Sullivan v. Shaw, 431 Mass. 201 (2000). This ruling should come as good news to product manufacturers seeking to limit their potential liability in situations where the alleged risks created by a product's use are obvious to a person of average intelligence.

The case, O'Sullivan v. Shaw, arose after the plaintiff, Joseph O'Sullivan, suffered a fractured cervical vertebra (without any permanent paralysis) when he dived head first into the shallow end of an in-ground swimming pool located at the defendants' home. The accident at issue in the case occurred on the evening of July 16, 1996, sometime shortly after 9:00 p.m., while O'Sullivan was on the defendants' property as a guest of their granddaughter, who had permission to use the swimming pool even though the defendants were out of town.

At the time of the accident, O'Sullivan intended to perform a racing dive in order to dive from the shallow end of the pool over its ten foot length, and into the deep end of the pool. According to the plaintiff's own testimony, he had swum in the Shaws' pool on at least one occasion prior to the day of the accident, during daylight hours. The plaintiff had seen other people swimming in the pool and was also roughly aware of the depth of the pool's shallow end.

The plaintiff had, prior to the date of the accident, used the diving board to dive into the pool two or three times, and had also made one racing dive into the shallow end of the pool on that previous occasion. He testified, however, that because it was dark outside and there was no lighting in the pool, he could not see its bottom or sides.

Unfortunately, O'Sullivan entered the water at too steep of an angle, striking his head on the pool's bottom. After surfacing in the deep end, he was able to make his way over to the edge of the pool despite having no feeling in his legs, where he was eventually rescued by the defendants' neighbors. O'Sullivan subsequently filed a complaint against the Shaws, alleging they were negligent by allowing visitors to dive into the shallow end of their pool, and for failing to warn those visitors about the dangers associated with that activity.

At the completion of discovery, the defendants filed a motion for summary judgment, arguing that the dangers associated with diving into the shallow end of a pool are open and obvious and, accordingly, they owed O'Sullivan no duty to warn him against those dangers. A Superior Court judge found that O'Sullivan's injuries resulted from his own lapse of common sense, errors in judgment, and despite his personal knowledge and lifetime experience in the defendants' and other swimming pools. Accordingly, he ruled that O'Sullivan was not owed any duty of care by the defendants, and he allowed their motion for summary judgment.

The plaintiff appealed and the Supreme Judicial Court subsequently transferred the case by its own motion. On appeal, the plaintiff argued that the trial judge's ruling was improper because it was based on the open and obvious danger rule which, he claimed, was implicitly invalidated through the creation of the comparative negligence statute. The plaintiff's theory was that since that statute specifically nullified the defense of assumption of the risk, and since the open and obvious danger rule is nothing more than a "corollary" of the assumption of risk defense, the legislature must necessarily have intended to repeal it when it repealed the assumption of the risk defense.

The Supreme Judicial Court was not persuaded. Affirming the allowance of the defendants' motion for summary judgement, the Court was careful to draw a bright-line distinction between the affirmative defense of assumption of the risk, which was based on a plaintiff's own negligence in failing to avoid a hazard which he knew about and understood, and the open and obvious danger rule, which focuses on a defendant's reasonableness in deciding not to warn against a hazard which he deemed to be so apparent to any person of average intelligence as to obviate the need for any additional warning about it. The Court also noted that, prior to its abolition, assumption of the risk had to be proven affirmatively by a defendant, by establishing the plaintiff's carelessness despite personal knowledge of the specific hazard created by the defendant. On the other hand, the open and obvious danger doctrine is pertinent to the inquiry whether the defendant owed any duty of care to the plaintiff, which must be proven by the plaintiff as part of his prima facie case before any determination of comparative fault can be made by a jury.

With reference to the case at issue, the Supreme Judicial Court ruled that the trial judge was "indisputably correct" in finding that the defendants' legal duty to warn O'Sullivan not to dive head-first into the shallow end of their swimming pool was obviated by the openness of the dangers associated with that activity, together with "plain common sense" and the weight of authority in other jurisdictions which have addressed the same question. The court also noted that because the open and obvious danger standard is to be analyzed objectively, based on a determination whether the hazard complained of would be obvious to a person of average intelligence exercising reasonable care for his own safety, it does not matter whether many people might, in fact, engage in the same type of hazardous conduct (i.e. performing a racing dive into shallow water). The existence of a defendant's duty of care is to be analyzed in light of the obvious and objective risks of the activity at issue, and not by the subjective and potentially "fool hardy" belief that the activity can be performed safely despite those risks.

While the Supreme Judicial court acknowledged that the trial judge might have improperly considered subjective factors such as O'Sullivan's prior swimming experience and his own admission that diving headfirst into a shallow pool could result in serious injury, it flatly rejected the notion that the trial judge was, in reality, making an assumption of the risk analysis. Finding that, aside from subjective considerations, there was "sufficient undisputed evidence" to support a ruling in favor of the defendants, the Court ruled that a "person of average intelligence would clearly have recognized that diving head-first into shallow water.... posed a risk of suffering injury by striking the bottom of the pool," such that the defendants were relieved of any duty to warn against that danger.

Although O'Sullivan did not arise in the context of a product liability action, the Supreme Judicial Court's determination that the open and obvious danger rule is still good law clearly applies to any situation where the duty of a product manufacturer or distributor is at issue. At least one trial court in the Commonwealth has already utilized the Supreme Judicial Court's reasoning in the O'Sullivan case to find that a manufacturer and distributor cannot, as a matter of law, be found liable for failure to warn against an open and obvious danger. See Miller v. Randolph, Hampden Supt. Ct., Docket No. 95-CV-0588. Like the O'Sullivan case, the Miller case was brought following a swimming pool accident, although one with much more tragic consequences.

In 1993, the Randolphs purchased an above-ground swimming pool from the North American Marketing Corporation (NAMCO). It came equipped with a U-shaped or V-shaped ladder, designed to fit over the edge of the pool (with one side in the pool and one side outside of the pool), which was manufactured by Columbia Ladder, Inc. (Columbia). The ladder is designed so that, once permanently attached, the stairs can swing up while the pool is not being used, thereby making it inaccessible via the ladder. The pool is located in the Randolphs' backyard, which is surrounded by a fence and accessed via either one of two gates, on each side of the house, which were routinely padlocked when the pool was not being used. Although the ladder was not affixed to the pool, as designed, the defendants testified that it was their normal practice to remove the ladder and cover the pool whenever it was not in use.

On July 30, 1995, Beatrice Randolph called her next door neighbor, Beatrice Miller, and invited Mrs. Miller and her children, ranging in age from two to seven years, to come over and use the pool. After Mrs. Miller accepted the invitation, Mrs. Randolph unlocked the gate closest to the Millers' house and placed the ladder into the pool. After several hours of swimming in the pool, Mrs. Miller and her children returned to their home. Upon the Millers' departure, Mrs. Randolph left the ladder in the pool and left the gate unlocked, because she was expecting her daughter and grandchildren to be arriving shortly, and also because Mrs. Miller had told her she was going to return and look for a lost earring.

Upon returning home after swimming, the Millers had dinner and then the three Miller children went outside to play. Mrs. Miller's two-year-old daughter, Brittany, was subsequently found floating in the Randolphs' pool, and could not be revived.

The Millers subsequently filed a negligence suit against the Randolphs, and also filed claims against NAMCO and Columbia, on theories of negligence, breach of warranty and violation of Chapter 93A. The plaintiffs' engineering expert, Igor L. Paul, opined that NAMCO and Columbia should have warned pool owners against the danger of drowning which could result from unsupervised access to the pool, and that they should have protected the public from that risk by designing a safety ladder which could be easily pivoted and locked in the up position, thereby preventing access to the pool when it was not in use.

With specific reference to the Supreme Judicial Court's decision in O'Sullivan, the trial court determined that the issue to be decided in these circumstances is whether, as a matter of law, the danger of drowning to unsupervised children would be obvious to a person of average intelligence, such that any further warnings which might have been provided by NAMCO or Columbia concerning those dangers "would be an empty form that would not reduce the likelihood of resulting harm." Noting that while O'Sullivan involved an adult injured in a pool diving accident, rather than the drowning of a toddler, the court stated its confidence that the Supreme Judicial Court would extend the principles of that case to the circumstances of the present one, since "when young children are involved [the risks] are even more open and obvious than when adult conduct is at issue ... [and] ... an infant or toddler left unattended in a pool invites almost unavoidable harm..." Accordingly, the court ruled that NAMCO and Columbia were under no legal duty to warn users of their products against the open and obvious risks posed by allowing young children unsupervised access to swimming pools and swimming pool ladders.

The court then turned to the plaintiffs' assertions that the ladder designed by Columbia and provided with the pool was defective because the pivoting capability of the steps could have been made more obvious to the ordinary user, and the ladder could have been made safer if it included a locking or latching device which guaranteed that, once placed in the up position, the steps would be inaccessible until the lock or latch was opened. While the court agreed that either or both of these design modifications would have rendered the product safer, it ruled that there was insufficient evidence in the record to suggest that either of these defects were causally related to the accident. The court observed that the plaintiffs' own evidence demonstrated that the pool could be protected from access by removing the ladder from it altogether, and that the defendants routinely did this. Consequently, the court ruled that where "the risk of a pool accident was open and obvious, as it was, and a ready method, actually known to the owners, existed to protect against that risk, as it did, any design defect in the [ladder] could not have been causally related to the accident." Accordingly, the Court allowed NAMCO's and Columbia's motions for summary judgment.

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