open and obvious danger rule in Massachusetts

2013In O’Sullivan, supra at 201-202 , this court affirmed a grant of summary judgment for the defendant homeowners on claims that they “were negligent in allowing visitors to dive into the shallow end of [an in-ground] pool and in failing to warn of the danger associated with this activity.” In addition to the obvious fact that both cases involve injuries sustained by jumping or diving into shallow pools, the trial judge relied on O’Sullivan presumably for its statement that “the open and obvious danger rule . . . operates to negate the existence of a duty of care,” and its citation to a long line

2009The open and obvious danger rule not only affects the duty to warn, but also “operates to negate the existence of a duty of care.” Id. at 206 .

2013To the extent there was any doubt regarding whether Massachusetts recognizes this “exception” to the open and obvious danger rule, see id. at 55 , our decision in Papadopoulos, supra, explicitly reaffirmed our view that the existence of an open and obvious danger will not necessarily relieve a landowner of the duty to remedy that danger.

2009Cf. O’Sullivan v. Shaw, 431 Mass. 201, 206 (2000) (involving the duty to warn); Quinn v. Morganelli, 73 Mass. App. Ct. 50, 55 (2008) (addressing the duty to remedy).

2010See Silver v. Cushner, 300 Mass. 583, 587-588 (1938). 6 *338 No reported Massachusetts case has held that the obviousness of the dangers posed by the hazards of an unnatural accumulation of snow or ice negates an owner’s duty to remedy the hazard. 7 Despite this, the owner argues that the open and obvious danger rule is a generally applicable principle and that there is no good reason not to apply it to ice hazards of the sort at issue here.

2010The plaintiff was using the steps as contemplated . . . .” Id. at 587 . 7 The owner endeavors to rely upon the concurring opinion to Barrasso v. Hillview West Condominium Trust, 74 Mass. App. Ct. 135, 140 (2009) (Kantrowitz, J., concurring), which suggested that, had the defendants in that case raised the open and obvious danger doctrine, it would have been relevant to the defendants’ duty to remedy (or refrain from creating) the snow bank on which the plaintiff fell.

2010The plaintiff was using the steps as contemplated . . . .” Id. at 587 . 7 The owner endeavors to rely upon the concurring opinion to Barrasso v. Hillview West Condominium Trust, 74 Mass. App. Ct. 135, 140 (2009) (Kantrowitz, J., concurring), which suggested that, had the defendants in that case raised the open and obvious danger doctrine, it would have been relevant to the defendants’ duty to remedy (or refrain from creating) the snow bank on which the plaintiff fell.

2003Bank v. Dawes, 369 Mass. 550, 553-554 (1976), summary judgment for the defendant was appropriately entered. 5 Judgment affirmed.

2000See, e.g., Lyon v. Morphew, supra; Thorson v. Mandell, supra; Toubiana v. Priestly, supra; Young v. Atlantic Richfield Co., supra; Polak v. Whitney, supra at 354 .

2000Not surprisingly, then, our more recent formulations of the open and obvious danger rule omit any reference to dangers subjectively “known” to the plaintiff, speaking exclusively in objective terms of dangers “obvious to a person of average intelligence.” See, e.g., Lyon v. Morphew, 424 Mass. 828, 833 (1997).

2000“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).

2000See cases cited, supra at 204; Callahan v. Boston Edison Co., 24 Mass. App. Ct. 950, 953 (1987) (“Whether a danger is open and obvious has to do with the duty of the defendant, not the negligence of the plaintiff”).

2000See, e.g., Harrison v. Taylor, 115 Idaho 588, 590-593 (1989) (abolishing open and obvious danger rule, but holding that issue of comparative negligence may be decided as matter of law if reasonable minds could not differ); Northern Ind. Pub.

2000See 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.