In Cohen v. Elephant Rock Beach Club, Inc., 2014 WL 6792106 (D. Mass. Dec. 3, 2014), the United States District Court for the District of Massachusetts ruled that a possessor of property may have a duty under Massachusetts law to warn guests of dangerous conditions located on adjacent property owned by another. The Court held, exerting a degree of “control o[ver] adjacent property, even absent a legal right, can in some circumstances confer a duty of care.” Under the circumstances presented in Elephant Rock, the Court held it was for the jury to determine whether the defendant private beach club exercised sufficient control over a natural rock formation located outside its property limits known as “Elephant Rock”, and thereby owed a duty of care to its members and their guests to adequately warn them of the dangers associated with jumping off of Elephant Rock into the water.
The plaintiff, a thirty-nine year old woman who was a guest of a member of the beach club, suffered a broken leg when she jumped off of Elephant Rock and smashed her foot into a portion of the rock below the surface of the water. The plaintiff alleges she decided to jump off Elephant Rock only after having ob- served many adults and children swim to, climb on, run and jump off of the rock. Before she jumped, the plaintiff claims she could see the top of the water surface but not the conditions that existed below the water surface.
The plaintiff brought suit against the beach club alleging negligent failure to warn of the dangers associated with jumping off of Elephant Rock.
Title to Elephant Rock is vested in the Commonwealth. It is located on public waters approximately 250 feet off shore from the club’s private beach. Club members and their guests often swim to and around Elephant Rock, and at times climb onto the rock and jump off of it into the water. Although boaters also visit Elephant Rock, the club’s private beach provides the primary or main access to it. The club maintains a number of safety ropes and buoys in the waters between its private beach and Elephant Rock, and employs life- guards who monitor the waters including those around the rock. The club’s lifeguards on occasion whistle in swimmers who are on or near the rock during hazardous swimming conditions. The club also maintains a flag system signalling water safety conditions, and posts signage on its property warning: “use of the rock is at one’s own risk,” “children under the age of eight are not allowed on the rock,” and “children eight to nine years old must be accompanied by an adult.”
The beach club moved for summary judgment on the grounds: (i) it had no duty to warn because it lacked a legal right of control over the rock; (ii) the rock posed an open and obvious danger; and, (iii) it was protected from liability under the Massachusetts recreational use statute (M.G.L. c. 21, §17C), which provides a person with interest in land who permits the public free of charge to use the land for recreational purpose shall not be liable for personal injuries or property damage sustained by members of the public in the absence of willful, wanton, or reckless conduct.
In denying the club’s summary judgment motion, the Court explained the guiding principle for determining whether the club had a duty to warn is the exercise of control over property, not the legal right to do so. Citing multiple compendia of nationwide case law, the Court held that a “property possessor can assume a duty of care as to adjacent property where the property possessor has agreed to make safe a dangerous condition, . . . or has assumed actual control over a portion of the adjacent property despite lacking a legal right to [do so].” Thus, “one who assumes the control and management of property cannot escape liability for injuries by showing a want of title.” The Court found that “Massachusetts has adopted this under- standing, at least to some extent.”
For example, in Gage v. City of Westfield, 26 Mass. App. Ct. 681 (1998), the Massachusetts Appeals Court explained, without elabo- ration, that “in some situations a landowner’s duty to exercise rea- sonable care does not terminate abruptly at the borders of his prop- erty, but may extend to include a duty to take safety measures relat- ed to known dangers on adjacent property.” The decision in Gage, however, did not elaborate on this point and did not clearly identify the extent of that duty. In the present case, the Court explained:
Here, there are facts supporting the conclusion that the Beach Club voluntarily assumed some precautionary duties as to the rock, including hiring lifeguards whose responsibilities may have extended to the area surrounding the rock, implementing roping and a flag system indicating when it was unsafe . . . to use the rock, and posting warning signage regarding use of the rock. . . . A duty voluntarily assumed, like one imposed by law, must be executed with reasonable care.
Thus, the Court held the plaintiff was entitled to have a jury resolve the disputed issues of fact as to what precautionary measures the club had voluntarily assumed concerning the rock, and whether it had discharged those duties, including the duty to warn, with reasonable care. The Court also held wheth- er the rock posed an open and obvious danger to a reasonable person of ordinary intelligence in the plaintiff’s position was a disputed factual issue for the jury to determine. Finally, the Court held, as a matter of law, the club could not claim protec- tion under the Massachusetts recreational statute, as it neither had a legal interest in Elephant Rock, nor invited the public to use it free of charge.
Property owners should take note of the Elephant Rock deci- sion, which reinforces the principle previously recognized in Massachusetts, as well as in many jurisdictions around the country, that by exercising control over property belonging to another, one may voluntarily assume a duty of reasonable care as to the dangerous conditions which exist on that property. Although the Elephant Rock decision is limited to some degree by its unique set of facts, it nonetheless serves as an important reminder that when a known dangerous condition is located on adjacent property, one should not rely on the absence of legal title as a shield against liability. This is especially true where the property owner’s land serves as the main or primary portal to the adjacent property on which the dangerous condition is located.