Appeals court rejects landowner liability for 'open and obvious' danger of backyard zipline

The same day the Massachusetts Supreme Judicial Court decided the Boston Globe case this week, the Court of Appeals affirmed summary judgment for the defendants against a landowner liability claim in which a six-year-old was injured on a backyard zipline.

A backyard zipline with a child safety seat. (Larry Koester CC BY 2.0.)

A handy defendant had installed the backyard zipline himself.  Six-year-old Aaron was visiting with his father to pick up Aaron's older brother from a sleepover.  The father aided Aaron in trying out the zipline, but after giving the boy some freedom, Aaron lost his grip, fell, and suffered compound fractures to his arm, requiring multiple surgeries.

Plaintiffs sued in landowner liability, alleging an unreasonably dangerous condition, as the zipline lacked a safety seat that could have prevented such an accident.  Defendants answered that the danger of the zipline, including the lack of a safety seat, was open and obvious, so negated the landowner's duty.

The court agreed that the condition was open and obvious, which somewhat negates the duty of a landowner, because it is the open-and-obvious nature of the hazard that makes it unforeseeable that the guest would fail to exercise reasonable care.  Plaintiffs argued that the condition was not open and obvious to the perception of a six-year-old.  The court held that when the child is under adult supervision, it is the perception of the adult, not that of the child, that controls.

However, the court held that an open and obvious condition does not necessarily negate a duty to abate an unreasonably dangerous condition "when the owner knows or has reason to know that visitors might nonetheless proceed to encounter the danger for a variety of reasons, including being distracted, forgetful, or even negligent, or deciding that the benefits of encountering the condition outweigh the risks."  Still, the court found the record "devoid of evidence that the zip line was unreasonably dangerous, or that the defendants facilitated an 'improper' or 'highly dangerous use' ...."

The conclusion is sound, but the reasoning highlights a problem with persistent common law doctrines that revolve around "open and obvious danger."  There is a tendency for litigants and courts to indulge "open and obvious" as a magical incantation that changes the rules of the match, such as here, to negate a duty of care.  Yet as the court observes, the doctrine does not necessarily negate the duty of care.  This approach gets legal duty analysis tied up in a web of factual intricacy that is not what policy-driven landowner duty is supposed to be about.

Harry Potter magic duel 095/365 (Louish Pixel CC BY-NC-ND 2.0)

Rather than indulging in a tennis match between duty, no duty, and duty again!, the courts should recognize that "open and obvious" is a factual circumstance, so goes to the standard of reasonable care exercised in warning about the danger or abating it.  That's where this case winds up anyway.  And just because it's a reasonableness analysis doesn't mean the court cannot, as here, dispose of the case in pretrial summary judgment when ordinary minds could not differ on the outcome.

I teach landowner negligence (page 25), or premises liability, with "open and obvious" as a matter of evidence rather than a sort-of defense, and I think that's the cleaner doctrine.  But I always have to warn students to watch out, in any given jurisdiction, that a judge might be entranced when counsel waves her wand and utters the spell, "Openanobvius!"

The case is LaForce v. Dyckman, No. 18-P-1234 (Mass. App. Ct. Sept. 9, 2019).  Sullivan, Massing, and Lemire, JJ., were on the panel.