Liability Despite Open And Obvious Danger

by MAR Staff | Jul 28, 2013

It is a basic legal principle that property owners and listing brokers have a duty to warn persons lawfully on the property of dangers that are known by the owner or broker, but are not apparent to visitors.  Not so for obvious dangers.  A key defense to claims for the failure to warn of a danger is that the danger was “open and obvious,” namely one that a “reasonable person” would be expected to discover.  The obviousness of the danger itself is a substitute for a verbal or written warning.  That defense has now been overshadowed by a 2013 decision of the Supreme Judicial Court, Dos Santos v. Coleta, that imposes on a landowner a “duty to remedy” known dangers.
 
Historically, for the defense that a condition was “open and obvious” to apply, it was not necessary that the injured person had actually noticed the condition or ignored a known danger.  It was sufficient that a “reasonable person” who was exercising “due care” would have noticed the condition.  The general principle applied to all types of hazards where it is claimed that the defendant failed to warn the plaintiff, such as where there was a loose stair tread; that there was a wobbly handrail; that there were live exposed electrical wires; or about the danger from construction debris.  Where the danger was obvious, there was no need to post a warning sign or to alert a person verbally.
 
Not “Obvious” in All Claims
The May 2013 decision of the Supreme Judicial Court, Dos Santos v. Coleta, reflects a willingness of the Court to impose liability, despite the long-standing “open and obvious” defense.  In Dos Santos the SJC ruled that the fact that a danger is “open and obvious” is not a defense to all claims against a property owner for negligently failing to eliminate a dangerous condition.  In Dos Santos, the plaintiff suffered serious injuries when he unsuccessfully attempted a back flip into an inflatable pool from a trampoline that had been set up adjacent to the pool in the backyard of a two family home.  He landed on his head.  The pool was only 2 feet deep.

Dos Santos had rented one side of the two family house, in which the owners, the Coletas, had occupied the other unit before renting it too.  Dos Santos claimed that the Coletas were negligent in setting up the trampoline next to the pool and failing to warn him of the danger. The trampoline had been a gift to the Coletas’ son.  The pool itself had written warnings in six languages, including Portuguese, warning against diving into it.  At trial the jury found that the Coletas were not liable.  The Appeals Court upheld the judgment, but the Supreme Judicial Court reversed.  The SJC ruled that “a landowner has a duty to remedy an open and obvious danger, where he has created and maintained that danger with the knowledge that lawful entrants would (and did) choose to encounter it despite the obvious risk of doing so.”  Essentially, the SJC ruled that a landowner has a “duty to remedy” the dangerous condition where it is foreseeable by the landowner that a visitor may encounter the known danger despite its obvious nature.

The SJC held that a “duty to remedy” applied to the property owner, Coleta, regardless of the obvious danger.  The Dos Santos ruling could be extended to other property-related defendants. Those could include any person having a right or duty to maintain a property, such as condominium association or property manager.  Although the SJC did not expressly articulate a limitation on the “duty to remedy,” one would expect that the duty would not extend to impose the duty to remedy on a listing broker who had not undertaken to manage or maintain a property. Absent ownership and absent a right to maintain a property, the listing broker does not have the right to make physical changes in a listed property. 

Duty to Remedy
The Court explained that if the only theory of liability against a defendant were based on a failure to warn, the “open and obvious” defense could still be effective.  In Coleta the plaintiff asserted a different theory, namely a “duty to remedy.”  The SJC ruled that a jury should have been given an opportunity to consider the question whether a landowner should have anticipated that a person would jump from the trampoline into the pool, despite the obvious danger.  If so, the duty to remedy would apply.

Application of a duty of a landowner to remedy a dangerous condition, despite its obvious nature, would have resulted in a different outcome in many similar claims.  Situations impacted include: failure to clear snow and ice from a sidewalk or parking lot; failure to illuminate dark areas with adequate lighting; to failure to chain a vicious dog in the backyard of a property being shown to prospective buyers.  In light of the willingness of the Court to expand liability based on a landowner’s “duty to remedy,” it is recommended that listing brokers take great care when listing and showing property.  While real estate brokers are not property inspectors, it may benefit a seller-client to urge them to correct a known hazard.  Not only will this make a property easier to sell, it will reduce the risk of a potential claim.

If a particular hazard exists in a listed property and is not remedied, a broker may impose restrictions to reduce potential harm.  Such limitations may include refusal to allow co-broke access via a lock box or refusal to allow unaccompanied showings.  When a showing does occur, the listing broker may require that all visitors remain together to reduce the risk that one person will wander off and be injured.  Even after an offer is accepted, the same restrictions may be applied during an inspection.

Simply having professional liability (errors and omissions) insurance is not adequate protection.  Most E&O policies exclude coverage for bodily injuries.  Neither will the sellers’ homeowners’ insurance provide coverage for a real estate agent.  It is essential that brokers obtain a “general liability” policy that provides coverage for bodily injuries.  Adequate automobile insurance is also a must.  It is wise to have all agents who use their vehicles to transport prospective buyers purchase optional coverage with limits of at least $300,000 per person and $500,000 per accident.  Umbrella coverage above these limits may be advisable.