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Duty to Remedy a Hazardous Condition is Based Upon Foreeseability Not On The Open and Obvious Hazard


In January of this year the First Circuit Court of Appeals decided a Massachusetts case entitled Cracchiolo v. Eastern Fisheries, Inc., et al 740 F 3rd 64. That case involved the death of crew member of a ship that was docked in New Bedford. After a night out, the crew member was returning to the shipyard where the ship was docked. Ordinarily he would go through a gate but that evening it was locked. There was a second unofficial way into the facility. There was a gap in the fence near the water that allowed crew members to access their boats after hours. Even if a crew member came through this passageway there was a safer way once through the fencing to proceed to the boat. It was a longer route. There was a shorter and more dangerous way used on the night in question. It was icy and snowy which made this more dangerous route a fatal choice as the seamen slipped, fell into the water and drowned.

The court said that “to prevail on the negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a casually relationship between the breach and the duty and the damage. The court stated that the question of breach, damages and causation are the “special province of the jury”. However, the question whether or not the defendant owed a duty of care in the first instance is an issue of law, and may be settled on Summary Judgment if the risk posed by the defendant’s actions were not foreseeable”. The court went on to say Massachusetts may also make this determination after trial in light of all the evidence.

In this case the court sited Soederberg v. Concord Greene Condominium 76 Mass.App. Ct. 33 (2010) stating that “landowners do have a duty to remove snow and ice accumulations even though those accumulations present open and obvious hazards to visitors. The court explained that the open and obvious nature of the hazard does not negate an owner’s duty to remedy the hazard”.  Rather a landowner must remedy snow and ice hazards when he can and should anticipate the dangerous condition will cause physical harm to the invitee notwithstanding it is known or an obvious danger. It went on to say “ the plaintiff’s unreasonable decision to enter into an ice hazard could bear on the issue of comparative negligence but that this is a jury question in the plaintiff’s unreasonable behavior will not bar recovery as a matter of law even when other options that voided the ice hazard were available”.

The court went on to site the case of Papadopoulos v. Target Corp, 457 Mass.368 (2010) where the court emphasized the distinction between duty to warn of dangers and the duty to remedy them. The duty to warn the court reasoned, was typically obviated in snow and ice cases by the fact that the hazard was open and obvious, so a warning would be superfluous. It then explained citing Soederberg v. Concord Greene Condominium that the duty to remedy the danger remained when it was foreseeable that visitors would choose to encounter a hazard despite the open and obvious risk it posed. The court had an interesting quotation “it is not reasonable for a property owner to leave snow or ice on a walkway where it is reasonable to expect that a hardy New England visitor would choose to risk crossing the snow or ice rather than turn back or attempt an equally or more perilous walk around it”. Based on that, the court concluded holding that snow and ice accumulation triggered the same duty to remedy as other dangerous condition….namely the duty to make reasonable efforts to protect lawful visitors against the danger.

The court also cited DosSantos v. Coleta, 465 Mass (2013) which involves setting up a trampoline next to a shallow pool. You can clearly imagine what the case was from there.  In DosSantos case the court again indicated that the analysis focuses on the foreseeability of the risk posed by an open and obvious hazard. The court in DosSantos explained that “the landowner is not relieved the duty to from remedy an open and obvious danger where the landowner can and should anticipate that the dangerous condition will cause harm to the visitor not withstanding its known and obvious danger”. The court went on to say that “Section 343A restatement of torts contemplates that a lawful entrant’s encounter with an open and obvious hazard may in some instances be a result of the entrant’s own negligence. But even if the plaintiff was negligent, plaintiff’s negligence in encountering the danger does not relieve the landowner of a duty to remedy that danger where the plaintiff’s negligent act can and should be anticipated by the landowner”.

In Cracchiolo case the defendant’s tried to argue and distinguish itself from the DosSantos case as there was no specific intent on the landowner for the fisherman to use this particular entrance. However, the court in deciding and remanding the case for trial stated that the intent is not the focus. The focus should be foreseeability as the ultimate issue. That is, when a landowner should anticipate the harm despite its obviousness.

In the Cracchiolo case, there was some evidence that the landowner should have known that the fisherman would use this route to get to their boats. There wasn’t a lot of prior use but there was some. The court in turn acknowledged that while there was only a little evidence of prior use that actual knowledge is not necessary. Liability exists if the defendant should have known about the use. In this case the court concluded that a fact finder could find the landowner should have known the gap in the fencing existed and when used it was a risky route.

I think this decision has many applications. It does not obviate the comparative negligence argument. This case is standing for the premise that the open and obvious defense is a comparative negligence argument but it is separate and apart from the duty to remedy the hazard itself. That question then depends upon foreseeability.

Contact Brian Dever 508-822-2000

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