O’Sullivan v. Shaw case brief

O’Sullivan v. Shaw case brief summary
726 N.E.2d 951 (2000)

CASE SYNOPSIS

Plaintiff appealed summary judgment granted to defendants by the Superior Court Department, Essex (Massachusetts) on the ground that diving into the shallow end of defendants' pool presented an open and obvious danger, and the open and obvious defense was not implicitly abolished by Mass. Gen. Laws ch. 231, § 85.

CASE FACTS
Plaintiff sued after suffering an injury when he dove into the shallow end of defendants' swimming pool. The trial court granted summary judgment to defendants on the ground that the danger was open and obvious. Plaintiff appealed, arguing that the open and obvious danger defense was implicitly abolished by Mass. Gen. Laws ch. 231, § 85, which expressly abolished the defense of assumption of risk.


DISCUSSION

• The court held that the significant difference in the defenses precluded interpreting the statute to eliminate the open and obvious danger defense by implication. 
• Assumption of the risk involved a person's failure to exercise due care for his own safety, while the open and obvious danger rule involved the absence of a duty of defendants to provide a superfluous warning of a danger that plaintiff should have perceived as obvious. 
• The trial court's conclusion that diving into a shallow pool presented an open and obvious danger, while improperly considering subjective factors such as plaintiff's experience and skill, was nonetheless sufficiently supported by other undisputed objective evidence.

CONCLUSION

Summary judgment was affirmed; statutory abolition of assumption of risk defense, involving plaintiff's disregard for his own safety, did not implicitly abolish the defense that plaintiff landowner had no duty to warn plaintiff of an open and obvious danger; diving into the shallow end of defendants' pool was an open and obvious danger.

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