Jun 28 2007

Massachusetts Continues to Find Property Owners Not Liable for Open and Obvious Conditions

It is well accepted that one who owns or controls land owes a duty of reasonable care to all persons lawfully on their premises. That does not require a property owner to provide a place of maximum safety, but only one that would be safe to a person under ordinary circumstances. As such, a property owner can be said to have the obligation to keep their property in a reasonably safe condition, and to warn visitors of dangers on the property. Most claims for injuries occurring on private property allege a failure by the property owner to follow one or both of these requirements. However, the duty of a property owner is limited to protecting the public from dangers not obvious to the ordinary person and of which they would not be expected to know. This caveat can be a very helpful tool in defending claims that ordinarily would proceed to trial.

It is generally accepted in Massachusetts that the question whether there was negligence is one of fact for a jury to decide. Thus, even where it appears that the property owner has done nothing wrong, the courts cannot take the case out of the jury's hands. However, the question whether a property owner owes a duty to the claimant is one of law for the court to decide. And as a matter of law, a property owner owes no duty to warn a visitor of a condition which is open and obvious (because the law holds that it is not reasonably foreseeable that a visitor exercising reasonable care would suffer injury from such a blatant hazard).

Massachusetts courts have held that whether a condition is open and obvious is a question of law appropriately reserved for the court's determination. This means that before a jury is allowed to consider whether a property owner was negligent in allowing a particular condition to exist, the judge first would decide whether that property owned owed a duty to the claimant. Even more significant is the standard that the judge is obligated to apply.

In deciding whether a condition is open and obvious, the court does not look to whether a particular person knew of the condition at issue. Instead, the court considers "whether the dangerous condition was, objectively speaking, so obvious that the [property owner] would be reasonable in concluding that an ordinarily intelligent [person] would perceive and avoid it and, therefore, that any further warning would be superfluous." Thus, the courts use an objective standard which focuses on the reasonableness of the property owner's conduct rather than that of the claimant. Thus, a defect may be open and obvious even if the injured party has been exposed to it only once. But certainly, there is no duty to warn someone of that to which they have been exposed for an extended period of time.

Massachusetts also holds that some conditions are so obvious from human experience that warnings are not necessary. Moving doors that are designed to swing in either direction in response to human force are open and obvious dangers. The same applies to the normal operation of building systems. For example, rear elevator doors that do not indicate on what floors they will suddenly open are deemed to be within the realm of understanding of the average individual.

A recent Massachusetts Superior Court case has elaborated further on this trend. In Matthew v. Harbor Towers, et al., Suffolk Superior Court C.A. No. 05-4975, (decided May 20, 2007), a woman sued her condominium complex and its security company when she fell as a result of being "startled" by the sudden lifting of a security gate. Granting summary judgment for the security company, the judge stated that "the fact that an artificial mechanism can abruptly move does not compel a finding that a corresponding warning regarding its movement is necessary. Given the ubiquitous nature of parking garages, traffic control gates such as the one involved in the present case are common objects in today's society. An ordinarily intelligent person knows how such a gate functions and is aware of its range of movement.

While the trend in some other areas of the law is to make persons less responsible for their own safety, the Massachusetts courts continue to demonstrate a willingness to consider defenses based on the assertion that injured parties should have been aware of open and obvious conditions. As such, consideration of this issue should be given in response to any claim based upon an alleged defect in property.

This article originally appeared in The Standard(http://www.spcpub.com/article.cfm?id=957).

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