## Facts

- Cleber Coleta Dos Santos rented one unit of a two-family home owned by Maria and Jose Coleta; Jose was Dos Santos’s half-brother.
- Jose installed an inflatable backyard swimming pool and placed a trampoline immediately adjacent to it so users could jump from the trampoline into the pool.
- Jose put a ladder in the pool to allow users to climb from the pool onto the trampoline and jump or flip back into the pool.
- Jose knew the setup could be dangerous and was aware of manufacturer warnings against jumping or diving into the pool, but maintained the setup for entertainment.
- Dos Santos attempted a flip from the trampoline into the pool, landed head-first in shallow water, fractured vertebrae, and suffered a spinal cord injury causing paralysis.
- Dos Santos sued for negligence based on (1) creating/maintaining the trampoline-pool configuration and (2) failing to warn of the danger; his wife and son asserted loss-of-consortium claims.

## Issues

1. Whether a landowner who creates and maintains an open and obvious danger may still owe a duty of reasonable care to remedy the condition when the landowner knows or should know lawful entrants will choose to encounter it despite the risk.
2. Whether the trial judge erred by instructing the jury that an open and obvious danger ends the duty inquiry, without instructing on the anticipated-harm exception and without submitting a corresponding special question.

## Decision

- The Supreme Judicial Court of Massachusetts reversed the defense verdict and remanded for a new trial.
- The trial judge’s instruction was erroneous and prejudicial because it directed the jury to stop deliberating if it found the danger open and obvious.
- The jury should have been permitted to consider whether the defendants owed a duty to remedy the condition despite its obviousness, given evidence the defendants created and maintained the setup for jumping into the pool.
- The judge should have instructed consistently with the anticipated-harm exception and submitted a special question asking whether defendants reasonably could and should have anticipated injury from the trampoline-to-pool jumping.

## Legal Principles

- A landowner generally has no duty to warn lawful entrants of open and obvious dangers, because entrants are expected to recognize and avoid them.
- The open-and-obvious rule does not categorically eliminate duty; liability may exist where the landowner should anticipate harm despite the entrant’s knowledge or the danger’s obviousness.
- A landowner may have a duty to take reasonable steps to remedy or mitigate an open and obvious danger when the landowner created and maintained it and knows or should know lawful entrants will encounter it.
- In premises-liability cases involving an obvious hazard, proper instructions must allow the jury to decide whether the landowner should have anticipated harm notwithstanding the hazard’s obviousness; the duty analysis may turn on remedy, not merely warning.

## Conclusion

The court ordered a new trial because the jury was improperly instructed that an open and obvious danger ended the duty analysis; when a landowner creates and maintains a dangerous condition and should anticipate lawful entrants will confront it, the landowner may owe a duty to remedy the hazard despite its obviousness.


Dos Santos v. Coleta, 465 Mass. 148, 987 N.E.2d 1187 (Mass. 2013)