The Massachusetts Appeals Court recently held that a landowner did not owe a separate duty to warn a child, who was under parental supervision and using a dangerous instrumentality that was open and obvious. In LaForce v. Dyckman, the plaintiff filed a complaint on behalf of her six-year-old son who was injured while using the defendant's zip line, which was installed by the defendants in their backyard. The six-year old's father lifted him up so that he could reach the zip line, and guided his son about five feet, before letting go. The son's hand slipped, causing him to fall and hit the ground.
Although the plaintiffs advanced an argument that the duty to warn was owed to the six-year old using the zip line, the Appeals Court disagreed, concluding that any duty was owed to the adults supervising the child, asking whether the risk of the zip line was an open and obvious danger to an adult of ordinary intelligence. Concluding that such a danger was in fact open and obvious to an adult of ordinary intelligence, and that no separate duty was owed to the child being supervised, summary judgment in favor of the defendant land owners was affirmed. The Court relied on both in and out-of-state precedent in reaching this conclusion, and focused on the duties of landowners when children are on their property but under the supervision of adults. Because the child's father helped him onto the zip line and supervised his son the whole time that the son was using the zip line, the landowner's duty to warn extended to the parents only. Where a zip line is an open and obvious danger, no duty to warn was owed to either the parent or the child being supervised.
The Court further disagreed that the defendants breached any duty to remedy the zip line. Unlike the trampoline that was set up adjacent to a pool in Dos Santos v. Coleta, decided by the SJC in 2013, the zip line in the defendant's back yard was not unreasonably unsafe or designed to be used in an improper way. The plaintiff's argument focused on the fact that the zip line was installed without a seat, as recommended in the zip line’s safety manual. Although the safety manual did warn that setting up the zip line without a seat may cause a user to lose his or her grip and fall, the manual continued to state that if a zip line is set up without a seat, to design the line so that any potential falls are only a few feet from the ground. Here, the record was devoid of any evidence that the zip line, installed without a seat, was unreasonably high above the ground. This shows the importance of forming a full and complete record in support of arguments presented on summary judgment and on appeal. The record here simply showed that the zip line was low enough to the ground where the child's father could lift him up onto the zip line. Therefore, without any evidence that the zip line was unreasonably high, this took the issue of a duty to remedy away from the jury, deeming it appropriate to dispose of on summary judgment.
