Massachusetts premises liability law

Watch Your Kid! Homeowner Not Responsible for Backyard Zip Line Accident

by Rich Vetstein on September 23, 2019

in Massachusetts Real Estate Law, Premises Liability, Safety

Appeals Court Rules That Law Places Responsibility On Parents

From hotel quality pools, to monster play-sets, to the ubiquitous trampoline and fun houses, backyard activities are all the rage these days. But what happens when a guest or young one is injured in your backyard play space? Can you be held liable for negligence and personal injuries? Or are the parents responsible for the actions of their own children? A recent court ruling considered these issues.

LaForce v. Dykeman, Mass. Appeals Court Sept. 9, 2019

Earlier this month, the Massachusetts Appeals Court considered a case where a 6 year old boy fell off a backyard zip-line and sustained a very serious fractured arm. The little boy was a guest of the homeowners. The zip-line was of the classic variety with the line attached to two trees, and a hand trolley used to traverse the line. The little boy was helped onto the hand trolley by his father, who held him for the first few yards, then (as we fathers tend to do), let him go, saying “You’re on your own, buddy!” Unfortunately, mid-way down the line, the child fell off the trolley and broke his arm in several places, requiring multiple surgeries.

Parental Responsibility Remains the Rule of Law

The child’s father sued the homeowners, whose insurance policy covered the loss, claiming that the zip-line should have had a seat apparatus which was recommended by the manufacturer. The Appeals Court, in an opinion written by Justice Gregory Massing, held that the law puts responsibility on the boy’s father, not the homeowner, to ensure that his kid is safe on the zip-line. The father argued that a duty of care was owned not to him, but to his young son, who is too young to assess the dangerousness of the zip-line without a seat component. Justice Massing, using a dose of common sense, saw otherwise, commenting that “Aaron [the boy] used the zip line with his father’s assistance and under his father’s supervision. Any duty to warn would be owed to Aaron’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. And because the danger was open and obvious to Aaron’s father, the defendants had no duty to warn him.” The end result is that the homeowners are off the hook for liability.

An Insurance Agent’s View

I asked my friend and insurance company owner, Carlos Vargas of Vargas and Vargas Insurance about the take-away’s from this case. He stated that “insurance companies do get nervous with “attractive nuisances,” and that’s why it is important to review your policy. If your neighbor’s kid gets hurt using the trampoline and mom and dad sue you then your policy would afford coverage or at least the cost of legal cost to defend you. Insurance is designed to provide you coverage, however, it is a legal contact and you want to honest with your agent on what is happening on your property. A phrase we like to use is that “You are paying for coverage, don’t risk it by not answering questions honestly.” Carriers are loosening the guidelines for certain liability scenarios. Go back 10 years ago, you couldn’t find a company to insure you if you had a German Shepherd. Today we have 3 markets that will accept the breed. Same goes with trampolines, we have some carriers that are okay with the trampoline in the backyard and they are not restricting the liability.”

Rich’s View

I have mixed feelings about this case. I just googled “backyard zip-lines” and they all have seats or safety harnesses. The older ones were definitely not the safest contraptions around. On the other hand, this child was only 6 years old and obviously didn’t have the upper arm strength to stay on the trolley for the entire length of the line. That’s on the father. It’s a tough case for the court. But accidents do happen, and not every accident is a result of someone else’s negligence.

That said, this case simply underscores why you want to have a good property insurance policy in place. Here, the insurance company paid for all the legal fees for the homeowner. (This case was originally filed in 2016). Also, and especially if you have a zip-line, trampoline or pool, you definitely want to get yourself an umbrella excess policy in case you get sued for something catastrophic. If you need insurance guidance, click Carlos’ link above!

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Tenant Paralyzed In Tragic Backyard Kiddie Pool Accident Gets New Trial From SJC

by Rich Vetstein on May 16, 2013

in Insurance, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Premises Liability, Rental Housing, Safety

dive-warningLandlords Could Be Held Responsible for Tenant Paralyzed Jumping from Trampoline into Kiddie Pool

I don’t write a lot about premises liability in this blog, but this tragic case out of my hometown of Framingham may be a classic example of the saying that “hard cases make bad law.” The Supreme Judicial Court has granted a new trial to a man paralyzed by jumping off a trampoline into a kiddie pool while playing with his small son. The case is Dos Santos v. Coleta (SJC – 11188). This is a case which will get all the tort-reformers screaming in protest, but it is evident that premises liability law in Massachusetts keeps on evolving and not in a good way for property owners.

The moral of this case for landlords and all homeowners is to not leave potentially dangerous contraptions in yards for tenants and kids to get injured on. Also, make sure you have liability insurance coverage for at least $1 Million, and look into getting an excess umbrella policy for up to $5 Million.

Summer Fun Goes Terribly Wrong

In the summer of 2005, Cleber Dos Santos lived with his wife and son in one unit of a two-family home in Framingham that he rented from the Coleta family. The landlords, who lived in the other unit, set up a trampoline immediately adjacent to an inflatable kiddie pool in the backyard. The landlord disregarded warnings printed on the side of the pool cautioning against jumping or diving into the pool. He knew that setting up the trampoline next to the pool might be dangerous but thought it would be “fun.”

The landlords moved to South Carolina on July 31, but they maintained ownership of the home and continued to rent the other unit to Dos Santos and his family. The landlords left the pool and trampoline in the backyard and understood that both items would continue to be used by their friends and family.

On the evening of August 2, 2005, Dos Santos, who had never before used the trampoline, came home from work and decided to play with his son on the trampoline while his wife recorded a video of them to send to their extended family in Brazil. He decided to entertain his son by flipping into the pool. He severely underrotated the flip, entered the water headfirst, and struck his head on the bottom of the pool. As a result of the impact, Dos Santos sustained a burst fracture of his C-5 vertebrae, and is permanently paralyzed from the upper chest down. He has been hospitalized ever since with medical bills exceeding $700,000.

SJC Clarifies Open and Obvious Danger Rule

Perhaps not surprisingly, the jury rendered a defense verdict on the basis that Dos Santos’ backflip from a trampoline into a kiddie pool was an “open and obvious” danger. But the SJC found the trial judge’s jury instructions lacking, holding that even if the jury believed that the danger present was open and obvious, the jury should have considered whether the absentee landlord should have removed or remedied the dangerous trampoline/pool setup from the backyard.

Having established that the existence of an open and obvious danger will not necessarily relieve a landowner of all duties to lawful entrants with regard to that danger, we set out to answer the following principal question: where the duty to warn has been negated, in what circumstances will the duty to remedy nevertheless exist–or, in other words, in what circumstances “can and should a landowner anticipate that the dangerous condition will cause physical harm to the lawful entrant notwithstanding its known or obvious danger”?

In plain English, Judge Cordy is basically saying that performing a backflip from a trampoline into a kiddie pool may be stupid and dangerous, but it’s also just as stupid and dangerous for a landlord to leave the deadly contraption out in the backyard for anyone to get injured on.

The justices ordered a new trial in the case, so this tragic 8 year legal saga will continue on. (Also remember that it appears that the landlords are covered by a liability insurance policy, the amount of which is unknown).

In sum, the SJC has now shown that Massachusetts premises liability law continues to shift towards even greater responsibility and liability for rental property owners.

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RDV-profile-picture-larger-150x150Richard Vetstein is an experienced Massachusetts landlord tenant attorney. You can contact him at [email protected] or 508-620-5352.

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Landlord Held Strictly Liable For Intoxicated Tenant’s Fall Through Defective Porch Guardrail

by Rich Vetstein on March 12, 2012

in Insurance, Leasing, Massachusetts Real Estate Law, Premises Liability, Real Estate Litigation, Rental Housing, Safety

Another Expansion Of Massachusetts Landlord Liability

In yet another case demonstrating Massachusetts’ inhospitable legal environment towards residential landlords, Northeast Housing Court Judge David Kerman has ruled that an owner of a mixed used residential – commercial building is “strictly liable” for a drunk tenant’s fall through a defective porch guardrail. The 17-page ruling is Sheehan v. Weaver, and is embedded below. The imposition of strict liability, sometimes called absolute or no-fault liability, makes landlords 100% liable for the injuries of tenants where there is a building code violation, regardless of whether the tenant was equally at fault for the accident. This is a troubling ruling and another reason supporting the notion that Massachusetts is landlord unfriendly!

Faulty Porch Guardrail

The landlord, David Weaver, owned a building with three residential apartments located above a commercial establishment. None of the apartments were owner-occupied. One of Weaver’s residential tenants, William Sheehan, fell through a porch guardrail, several stories onto the asphalt pavement below, suffering serious injuries. There was evidence that Sheehan was intoxicated, however, the connection of the guardrail to its post gave way because it was defective and in violation of the Building Code.

After a four-day trial in the Housing Court, a jury found for the tenant on the negligence claim, awarding approximately $145,000 after a 40% reduction for the plaintiff’s own negligence. The jury also found the landlord strictly liable, assessing $242,000 in damages.

Building Code Violation At Issue

The Massachusetts State Building Code provides for strict (100%) liability for any personal injuries caused by any building code violation at any “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building.” The landlord argued that the primarily residential structure was not sufficiently commercial to be considered a “building” within the meaning of the Building Code’s strict liability provision. But Judge David D. Kerman disagreed:

“[T]he structure in this case may well be at the outer margin of the class of structures that fall within the ambit of the term ‘building’ in the strict liability law,” wrote Kerman. “However, it is my opinion that the mixed residential-commercial four-unit non-owner-occupied structure in this case is ‘commercial’ and ‘public’ enough to fit within the term ‘building’ in section 51.”

The imposition of strict liability resulted in the landlord being hit with the full amount of the $242,000 judgment with no reduction for the tenant’s comparative negligence due to his intoxication. Ouch.

Commentary: Bad Decision

As I stated to Massachusetts Lawyers Weekly, this is a troubling ruling. The Building Code provision, passed in the late 1800’s, was clearly intended to cover structures with a distinctively commercial nature, i.e., “public hall, factory, workshop, manufacturing establishing or building.” The law was not intended to cover a predominantly residential apartment building with commercial/retail on the ground floor, in my opinion.

This ruling will now expand liability for residential developers who have built quite a number of mixed-use residential projects in the last few years. This decision can be read as providing strict liability for anyone injured due to any type of building code violation, however minor. Property managers and commercial insurers should be aware of this ruling, and ensure that there are no building code issues which could cause harm to tenants.

Given the concerning expansion of liability in this case, look for this ruling to get appealed. Judge Kerman is a well-respected judge, and this decision is a close call, but I think he went a bit too far outside the legislative intent behind the law.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. For more information, please contact him at 508-620-5352 or [email protected].

Sheehan v. Weaver

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