Summary
In Godsoe, a young boy was severely injured when he used an eight-and-a-half foot tall slide installed by the defendant in a man-made lake on the defendant's campground property.
Summary of this case from Cohen v. Elephant Rock Beach Club, Inc.Opinion
CIVIL ACTION NO. 06-10405-DPW.
August 9, 2007
MEMORANDUM
Dawn Godsoe filed this personal injury action individually and on behalf of her minor son, Richard Shank, against Defendant in Massachusetts state court, and Defendant removed to this Court based on diversity jurisdiction. Richard Shank suffered injuries as a result of an accident which took place on a campground owned and operated by the Defendant. The complaint alleges in Count I that Richard Shank suffered serious injuries as a direct and proximate result of the Defendant's negligence. Count II alleges that, consequently, Ms. Godsoe, Richard's mother, suffered a loss of her son's consortium. Defendant filed a motion for summary judgment. Because I find the evidence sufficient for a reasonable jury to conclude that the Defendant was negligent in the maintenance of the campground property, I have denied Defendant's motion on both counts.
The Plaintiff initially named Tucy Enterprises, Inc., as the Defendant but discovery developed that the proper defendant as owner and operator of the property where the injury took place is Maple Park Properties, Inc. Accordingly, the Plaintiff has been permitted to amend the complaint.
I. BACKGROUND
This dispute stems from injuries suffered by Richard Shank on July 30, 2002 during a stay at Maple Park Family Campground ("Maple Park") in East Wareham, Massachusetts. Richard and his mother are both residents of Walnut Bottom, Pennsylvania. It is undisputed that Richard and his family were lawful guests at Maple Park. The complaint alleges that Richard Shank suffered a neck injury while using a slide located in a lake on the campground property, and that these injuries were the direct and proximate result of the negligence of the Defendant. More specifically, the complaint alleges that the Defendant and its officers/employees failed to maintain the campground in a reasonably safe condition. Defendant admits that Richard Shank suffered an injury on its premises but contends that Plaintiff's claims are negated by the fact that the danger of sliding headfirst into the Maple Park lake was open and obvious.
A. Maple Park Campground
Maple Park is a campground located in East Wareham, Massachusetts. The campground is owned and operated by Defendant Maple Park Properties, Inc., a duly organized business corporation with its office located at 290 Glen Charlie Road, East Wareham, MA. Brock Tucy is the sole officer of Maple Park Properties. The land on which Maple Park is located is owned by Tucy Enterprises, Inc., which rents the land to the Defendant. The sole executive officer of Tucy Enterprises is Brock Tucy; there are no other officers or directors of that company. Brock Tucy was, at least for the 2002 camping season, the person who managed and operated the campground on a day-to-day basis.
The campground contains a freshwater lake that guests can use for recreational purposes, including swimming and snorkeling. The lake was contoured by Brock Tucy's father, Clayson Paul Tucy, who was the owner and operator of Tucy Enterprises and Maple Park Properties immediately before his son took over the companies. The lake is graded somewhat like a swimming pool; the water depth increases farther from the shoreline and maximizes at 6 1/2 feet in the middle of the lake. An exception to this grading at the time of the incident was a swimming hole approximately eight feet deep located at the end of a dock where a diving board was attached for guests to use.
Apparently the dock and the diving board are no longer in existence. The depth measurement of eight feet was taken at the time the swimming hole was dug but it is unclear whether the depth had changed over the years.
At the time of the incident, a galvanized metal slide was located along the shore of the lake, approximately thirty feet from the dock. The slide is described as being the type that one would see in a school playground; it was not a specially constructed water slide. It was approximately 8 1/2 feet high and approximately 16 1/2 feet in length. During the time of its use at the campground, the slide was not removed from the pond at the end of the camping season, but was kept in the lake throughout the year. The campground never kept a lifeguard on duty at the pond nor were any rules posted regarding beach use or the use of the slide, at least during the summer of 2002. The campground may have posted warnings at the pond saying "no lifeguard," but this is unclear.
B. The Accident
On the morning of July 30, 2002, Richard Shank was swimming in the lake with his 14 1/2 year old brother, Nicholas Shank. The Shank family had been staying at Maple Park since July 26, 2002. The boys had been snorkeling near the dock and swimming back and forth to a rock in the middle of the lake. Richard Shank, who was approximately 5' feet 1" tall at the time of the accident, stated that in the area of the dock and the rock, he was unable to touch the bottom of the lake. He also stated that he was unable to see the bottom of the lake, because the water was a brownish color and was murky and slimy.
After snorkeling, Shank got out of the water and walked towards the slide, which he then boarded for the first time. The slide did not have a hood or canopy at the top of the ladder for purposes of channeling the user into a sitting position before descending the slide. Shank went down the slide on his knees, entering into the lake head-first. When he entered the water head-first, Shank's head struck the bottom of the lake, thereby causing compression fractures of two cervical vertebrae. Shank stated that upon impact he learned for the first time that the water at the end of the slide was two-feet deep. He stated that before using the slide, he had believed that the depth of the water would be approximately four feet, since the depth near the dock where he had snorkeled was about four feet, and the slide was just as far out as the dock had been.
As a result of the injuries he suffered, Shank had spinal fusion surgery a month after the accident, which required the permanent placement of hardware into his neck. He has healed from the injuries and has undergone rehabilitation, but he will live with hardware holding his cervical spine together for the rest of his life. Maple Park closed the slide after the accident occurred, and Brock Tucy stated that he removed the slide two summers later.
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must make a preliminary showing that no genuine issue of material fact exists. Nat'1 Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied, 515 U.S. 1103 (1995). Once the movant makes such a showing, the nonmovant must point to specific facts demonstrating that there is, indeed, a trialworthy issue. Id. The evidence is viewed in the light most favorable to the nonmoving party. Nicolo v. Philip Morris Inc., 201 F.3d 29, 33 (1st Cir. 2000).
In a negligence cause of action, the plaintiff must demonstrate: "(1) a legal duty owed by [the] defendant to [the] plaintiff; (2) a breach of that duty; (3) proximate or legal cause; and (4) actual damage or injury." Jorgensen v. Massachusetts Port Authority, 905 F.2d 515, 522 (1st Cir. 1990). With respect to legal duty, Massachusetts provides that a landowner owes a duty to its invitees, as Richard Shank concededly was in this case, under which it is "bound to use due care to keep that portion of the premises provided for the use of the patrons in a reasonably safe condition, and to warn them of any dangers that might arise from such use by reason and condition of the premises, which were not likely to be known to its patrons and of which the defendant knew or ought to have known." Repkie v. Wal-Mart, 1998 WL 787553, at *2 (Mass. Dist. Ct. App. Div. June 5, 1998) (citing Young v. Food Fair, Inc., 337 Mass. 323, 324 (1958)).
Under Massachusetts law, the lessor of commercial premises (because it assumes the duty of the landowner) is liable in tort for personal injuries caused by the failure to exercise due care with respect to property it controls. See generally Humphrey v. Byron, 447 Mass. 322 (2006); Chausse v. Coz, 405 Mass. 264 (1989); Sheehan v. El Johnan, Inc., 38 Mass. App. Ct. 975 (1995).
Massachusetts courts have been hesitant to grant summary judgment in cases involving issues of negligence, because such issues typically turn on disputed questions of fact, the resolution of which are usually left to the jury. Wilson v. Copen, 244 F.3d 178, 182 n. 2 (1st Cir. 2001) (citing Noble v. Goodyear Tire and Rubber Co., Inc., 34 Mass. App. Ct. 397, 402 n. 2 ("application of the reasonable person standard is uniquely within the competence of the jury")).
B. Open and Obvious
An exception to the general legal duty standard for landowners is the open and obvious doctrine, which states that "a landowner has no duty to protect lawful visitors on his property from risks that would be obvious to persons of average intelligence." Toubiana v. Priestly, 402 Mass. 84, 89 (1988). Inquiry concerning application of the doctrine asks whether "the dangerous condition was . . . so obvious that the defendant would be reasonable in concluding that an ordinarily intelligent plaintiff would perceive and avoid it." O'Sullivan v. Shaw, 431 Mass. 201, 206 (2000). A land owner is released from the duty to warn of such dangers, because the danger is considered sufficiently apparent that any attempt to warn would not likely reduce the likelihood of resulting harm. Id. at 207. However, the rule does not mean that "a landowner has no duty to use reasonable care to protect against open and obvious dangers." Martins v. Healy, No. 005359, 2002 WL 1924882, at *2 (Mass.Super.Ct. July 10, 2002).
In this case, there are two dangerous conditions that are in dispute: the shallow depth of the lake at the point of entry from the slide bottom and the allegedly defective slide apparatus. In Subsections II.B.1 and II.B.2, I find that there is sufficient evidence for a reasonable fact finder to conclude that neither condition was sufficiently open and obvious to justify relieving the Defendant of its duty of care and awarding summary judgment in its favor. In subsection II.B.3, I discuss the impact of Richard's age on the standard of "Ordinary Intelligence" against which I have evaluated whether either condition was open and obvious.
1. The Shallow Depth
Defendant first argues that Shank's act of diving headfirst into shallow water was undertaken in the face of an open and obvious danger, consequently relieving it of a duty of care. The Defendant relies upon O'Sullivan v. Shaw, in which the court awarded summary judgment to the defendant swimming pool owner, stating that a plaintiff who dove into the shallow end of the pool did so in disregard of an open and obvious danger. Upon review of O'Sullivan however, I find that several key factors distinguish it from this case.
Prior to the day of the accident, the plaintiff in O'Sullivan had been swimming at least once in the pool where he was injured. In addition, the O'Sullivan plaintiff had attempted a shallow dive before, apparently with success. Consequently, from his previous experiences in the pool he was aware of the shallow end's approximate depth and where the shallow part ended. 431 Mass. at 202. Shank, by contrast, had never been in that portion of the campground lake before the accident; consequently, he had limited knowledge of the lake's contours and the depth at the end of the slide cannot be said to have been obvious to him. In fact, Shank's only reference point for the water's depth was his experience swimming near and around the dock area of the lake just prior to the accident, which he characterized as approximately four feet deep. Shank testified that he believed that the depth near the slide would be the same as that of the dock area, because the dock was just as far out from the shore as the slide. Shank testified that the lake water was brownish and murky; as a result, he was unable to see the lake bottom. Under these circumstances, the dangerous depth at the end of the slide cannot be said to be open. Since Shank had no basis to believe that the water depth in the area was 24 to 32 inches deep, I find that the conditions of the lake and the lake water raise a question of whether the water depth was open and obvious to a person of average intelligence.
Shank refers to the water's characteristics when he discusses swimming near the dock; he does not specifically refer to the water near the slide. In viewing the facts in the light most favorable to Plaintiff, I assume that the water coloration did not differ from one area of the lake to another.
I recognize that since the open and obvious doctrine deals with an objective view of the risk of injury from the perspective of a person of average intelligence and not the subjective view of the plaintiff, Greenslade, 59 Mass. App. Ct. 850, 852 (2003), the precise question is "whether the dangerous condition was, objectively speaking, so obvious that the defendant would be reasonable in concluding that an ordinarily intelligent plaintiff would perceive and avoid it and, therefore, that any further warning would be superfluous." O'Sullivan, 431 Mass. at 206. Accordingly, the relevant question is not whether Shank subjectively believed that the water was deep enough or even if he thought it was dangerous, but whether, based on the evidence (including his testimony), the conditions on the day of the accident can objectively be said to have been of an open and obvious nature. I cannot answer that question as a matter of law.
Defendant also argues that the danger of entering headfirst into water of unknown depth itself should be considered undertaken in the face of an open and obvious danger. But, here again the authority, Greenslade v. Mohawk Park, Inc., 59 Mass. App. Ct. 850 (2003), that Defendant cites can be readily distinguished. In Greenslade, the court concluded that the activity of rope swinging over a rock-strewn river, "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 result in a landing on the rocky embankment," constituted an open and obvious danger. Id. at 854. Here, Shank was using a slide installed by the Defendant in a man-made lake created specifically for the recreational purposes of campground guests, including children. There is a genuine issue of material fact whether the circumstances of Shank's headfirst slide posed as obvious a hazard as the headfirst dive from a rope swing into the rock-strewn river in Greenslade.
2. The Slide
Plaintiffs contend that the slide itself was an inherently dangerous condition that helped to cause Richard Shank's injuries. Based on the evidence of record, I find that a reasonable fact finder could conclude that the slide was defective in a way that was not of such an open and obvious nature as to relieve the Defendant of its duty of care.
Under Massachusetts law, landowners generally owe a duty of reasonable care to all persons lawfully on the premises, including "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,' and `to warn visitors of any unreasonable dangers of which the landowner is aware of reasonably should be aware.'" O'Sullivan, 431 Mass. at 204 (quoting Mounsey v. Ellard, 363 Mass. 693, 708 (1973) and Davis v. Westwood Group, 420 Mass. 739, 743 (1995)). While the open and obvious doctrine may relieve the defendant of its duty to warn, the doctrine does not mean that the defendant can maintain its property "in an unreasonably unsafe condition as long as the unsafe condition is open and obvious." Martins, 2002 WL at *2.
The Plaintiff relies on Martins to distinguish this case from O'Sullivan. In Martins, the court denied defendant's motion for summary judgment, holding that the defendant's failure to install guardrails and adequate lighting on a four-foot high deck in accordance with state building codes superseded defendant's argument that the danger of falling off a deck with no guardrails was open and obvious. 2002 WL at *1-2. In O'Sullivan, the plaintiff's negligence claim rested solely on his argument that the defendant owed a duty to warn him of the dangers of diving headfirst into the shallow end of an in-ground pool. 431 Mass. at 207. O'Sullivan did not involve allegations that the defendant failed to adhere to safety standards which could have prevented injuries, as in Martins and this case.
Plaintiff has pointed to several characteristics of the Maple Park slide that did not meet safety standards for water slides, thus creating an unreasonably dangerous condition for any user. First, according to the American Society for Testing and Materials ("ASTM") F 1487 § 8.5.5.2, "the slope of the exit region shall be between 0 and -4° as measured from a plane parallel to the underlying surface." Pictures of the slide show that the slide's bed had delaminated from the side rails in the discharge chute, thus creating an exit slope leading downwards into the lake bottom. Consequently, any user of the slide would be directed towards the lake bottom, rather than horizontal to the lake surface, making impact with the lake bottom more likely.
ASTM has promulgated safety standards for public playground equipment identified by the U.S. Consumer Product Safety Commission ("CPSC").
In addition, the slide did not possess a hood or canopy at the top of its ladder in accordance with ASTM F 1487 § 8.5.3.2, the purpose of which would be to help channel the rider into a sitting position in order to prevent him from starting in a position — like the kneeling position utilized by Richard Shank before his accident — that would be more likely to cause injury.
Lastly, state regulations specify that a splash down area at the end of a water slide must be between 30 and 42 inches in depth. 105 MASS. CODE REGS. 435.36 (2007). Based on the testimony by Brock Tucy that the water depth at the end of the slide at the time of the accident was at most approximately 28 to 32 inches deep or Shank's statements that he realized the depth was approximately two feet upon striking the bottom, the splash down area would either, at best, barely meet the minimum level of water depth in accordance with the safety standards or, in fact, violate the safety standards. In any event, a question, as framed by Plaintiff's expert, of material fact exists concerning whether the water depth was "adequate to effectively cushion a slider from striking the lake bottom if the slider descended the slide in any position other than seated with feet pointing forward."
As a result of these defects, a reasonable fact finder could conclude that the slide itself was in an unreasonably dangerous condition at the time of the accident. Because the defects would not necessarily be ascertainable by a reasonable person, who is unlikely to be familiar with safety regulations or recreational hazards, sliding down the defective slide was not necessarily an open and obvious danger. Plaintiff is not arguing that Defendant had a duty to warn him that sliding headfirst is dangerous; rather he contends that Defendant had a duty to maintain the slide in accordance with safety regulations in order to avoid an unreasonably dangerous condition. See Martins, 2002 WL at *1 ("Martins does not contend that the Healys were negligent for failing to warn her of the absence of guardrails; she contends that the Healys were negligent for failing to install guardrails and adequate lighting.").
Defendant cites Gorfinkle v. U.S. Airways, Inc., 431 F.3d 19 (1st Cir. 2005), to support its argument that Shank's use of the slide in the condition he found it on July 30, 2002, was in the face of an open and obvious danger. But the First Circuit in Gorfinkle appeared to state (citing Martins) that if a condition is unreasonably dangerous, a defendant's negligence may not be absolved even if the danger is open and obvious. 431 F.3d at 24, n. 6 (holding that luggage stacked in an obvious manner in a lighted baggage claim area onto which the plaintiff climbed was not unreasonably dangerous but rather an open and obvious hazard).
For these reasons, I find that Plaintiff has provided sufficient evidence to withstand summary judgment on this theory because genuine issues of material fact exist as to whether the lake slide itself was in an unreasonably dangerous condition and, if so, whether that condition would present an open and obvious danger.
C. Shank's Age and "Ordinary Intelligence"
In its summary judgment briefing, Defendant contends that, despite Richard Shank's age of thirteen, he should be held to an adult standard when applying the open and obvious rule. I have already concluded that the open and obvious rule does not as a matter of law, irrespective of Shank's age, relieve Defendant of its negligence. In doing so, I have read the evidence in the light most favorable to the Plaintiff. Because this case will now proceed to trial, I address here, for the benefit of the parties, the question whether Shank's age affects the "person of ordinary intelligence" standard in this case.
State courts have held that determining the appropriate level of responsibility that young adults such as Richard Shank possess in light of the reasonable person standard is a question best left to the jury. The Defendant does cite cases in which persons around Shank's age were found to possess the responsibility of appreciating their respective risks. See, e.g., Barnett v. City of Lynn, 433 Mass. 662, 667 (2001) (holding that eleven and twelve year olds of average intelligence should have appreciated the risk of sledding down snow-covered stairs into a road); Young v. Atlantic Richfield Co., 400 Mass. 837, 842 (1987) (fifteen year old boy should have been aware of motor vehicles entering a gas station and potentially striking pedestrians). However, those decisions were not made at the summary judgment stage. Massachusetts courts have held that determinations of age and consequent responsibility are questions of fact that should be within the province of the jury. See, e.g., Di Iorio v. Tipaldi, 4 Mass. App. Ct. 640, 644 (1976) (extent of heedlessness expected from an eleven and a half year old boy who ran into defendant's plate glass window was a question for the jury); Hennessey v. Boston E.R. Co., 211 Mass. 524, 525 (1912) (jury's role to decide whether eleven to twelve year old plaintiff "exercised such care as he was bound to exercise and as naturally would be expected from a boy his age."); Tryon v. City of Lowell, 29 Mass. App. Ct. 720, 722-23 (1991) (plaintiff's capacity as a "reasonable twelve-year-old" is a question of fact.")
One might argue further whether a boy of Richard Shank's age could be expected to know of the slide's defects. As the photos of the slide and the affidavit of Plaintiff's expert demonstrate, only someone with a knowledge of water slide safety guidelines or experience with recreational hazards could be expected to know whether the slide was indeed defective and in violation of safety standards. Whether to hold Shank to an awareness of those standards and conclude that he had the responsibility to know that the defective slide was unreasonably dangerous calls for the judgment of a fact finder and cannot be resolved as a matter of law. It also must be decided at trial.
III. CONCLUSION
For the reasons above, I have denied Defendant's motion for summary judgment.