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Can Massachusetts Landlords Be Held Liable for Injuries from “Open and Obvious” Hazards?

Traditionally, premises liability law held landlords accountable for injuries that resulted from hidden dangers on their property.   There has been some confusion on their liability for dangers considered “open and obvious.” For some time, it was believed that if a danger was open and obvious, there was no liability to the injured party.  This is not correct. The latest clarification of Massachusetts law came in a 2011 decision in the case of Dos Santos v.  Coleta.

A landlord or any landowner owes dual duties of care to people on their property, the duty to give an adequate warning and the duty to remedy hazards on the property.  With respect to the duty to warn, if the hazard was truly open and obvious, then there is no duty since what is the point of warning about a hazard of danger that the user is aware of. 

With respect to the duty to maintain or remedy hazards on the property, the issue would go to the jury to compare the conduct or fault of the landowner with the user. 

In Dos Santos, the plaintiff had broken his neck attempting a flip from a trampoline into a shallow wading pool, rendering himself quadriplegic. The defendant’s landlord had set up the trampoline adjacent to the inflatable pool so that tenants and guests could jump from one to the other, despite the pool manufacturer’s warnings against jumping posted on the side of the pool in several languages. The plaintiff wanted the court to instruct the jury that a landlord could be liable if the plaintiff’s injury was a foreseeable result of placing the trampoline next to the wading pool. 

However, when judging whether a plaintiff’s injuries are foreseeable, the law applies a reasonable person standard to the plaintiff’s actions. According to the Restatement (Second) of Torts § 343A comment f, at 220, harm to others is only foreseeable when the landlord “has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.” 

There are many issues to explore in these types of cases.  Was the warning adequate?  Was it in the line of sight of the user?  Was it sufficient to warn the user of the particular hazard?  For example, it is one thing to warn about the presence of a step, but quite another to warn of anything usual about the step; for example, if the step slopes in a particular direction, this would affect the stability of the person stepping onto this step.  If the step has slopes, simple design changes like a railing can provide assistance to the user and a visual cue as to the presence of the step.


If you suffered a slip and fall accident on someone’s property, a knowledgeable attorney at Swartz & Lynch LLP can evaluate your case for free. To schedule a consultation, call 857-250-0664 or contact our Boston office online.

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