Duty to Warn

Open and Obvious Negligence?

 In Massachusetts an owner or person in control of property owes a duty of reasonable care to persons lawfully on their premises which includes an obligation to maintain the premises in a reasonably safe condition and to warn visitors of any dangers of which they are aware or reasonably should be aware. However, there is no duty to warn lawful visitors from risks that are open and obvious to persons of average intelligence. This test is an objective one. Generally, risks to children are analyzed from the perspective of a reasonable child of the same age as the person injured. However, when a child is under an adult’s supervision, no separate duty is owed to the child apart from that owed to the adult. Once the supervising adult has notice of the danger, the attendant risks are viewed from the adult’s rather than the child’s perspective.

Remedy Dangerous Conditions

Even so, where an open and obvious danger exists, a property owner or person in control of property still has a duty to remedy an unreasonably dangerous yet obvious condition when they know or have reason to know that visitors might nonetheless proceed to encounter the danger for a variety of reasons, such as being distracted, forgetful, or even negligent, or deciding that the benefits of encountering the condition outweigh the risks. In such a case, however, an injured person’s damages could be reduced by their comparative negligence and in Massachusetts their recovery would be barred altogether if they were found to be more than fifty per cent at fault.

Duty to Warn Further

 In one recent case that dealt with each of these standards, a six-year old boy and his father went to a friend’s house who had installed a 200-foot zip line between trees in the backyard. The boy asked if he could use the zip line and his father lifted his son up to grab onto the hand trolley and guided him along the zip line for about five feet then let go. The boy traveled down the zip line a short distance, began to lose his grip, and started to fall. His father managed to grab him as he was falling, but the boy’s arm nevertheless hit the ground and was fractured. In affirming the grant of summary judgment to the property owner, the Appeals Court stated that “any duty to warn would be owed to the boy’s father, who was expected to keep his son safe, had the opportunity to prevent his son from using the zip line, and placed his son in the position that led to his injury.” Because the danger was open and obvious to the boy’s father, the defendant had no duty to warn him or the boy. With regard to the duty to remedy, the Appeals Court found that the plaintiff had produced no evidence that the zip line was defective in any way or that it was poorly constructed, and, therefore, the plaintiff had no reasonable expectation of showing that the zip line as installed was unreasonably dangerous.

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