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Cohen v. Elephant Rock Beach Club, Inc.

United States District Court, D. Massachusetts

December 3, 2014


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For Andrea Paige Carter Cohen, Plaintiff: Debora A. Concepcion, Eric J. Parker, LEAD ATTORNEYS, Parker Scheer LLP, Boston, MA; Susan M. Bourque, Parker Scheer Attorneys, Boston, MA.

For Elephant Rock Beach Club, Inc., Defendant: John McCormack, Sloane & Walsh, LLP, Boston, MA.

For Commonwealth of Massachusetts, Interested Party: Jennifer H. Flynn, LEAD ATTORNEY, Office of the Attorney General, Trial Division, Boston, MA.

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This action arises out of an injury suffered by the plaintiff, Andrea Paige Carter Cohen, when she jumped off a natural rock formation in the Atlantic Ocean known as Elephant Rock during a visit to the Elephant Rock Beach Club (the " Beach Club" ) in Westport, Massachusetts, on July 6, 2009. The plaintiff seeks damages for the alleged negligence of the Beach Club. Before me is the Beach Club's motion for summary judgment and the plaintiff's motion to strike the supplemental report of the Beach Club's expert, on which the Beach Club relies in support of its summary judgment motion. For the reasons set forth below, after denying the motion to strike, I will deny the motion for summary judgment.


A. Factual Background

1. The Property

The defendant, Elephant Rock Beach Club, Inc., operates a private beach club in Westport, Massachusetts accessible to members and their paid guests. The Beach Club leases the land on which it sits from Westport Harbor Improvement Corporation

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(" WHIC" ). This lease provides the Beach Club with exclusive control over the leased land, including the beach along the property.

The beach is along a body of water known as Westport Harbor, which leads to the Atlantic Ocean near the opening to Buzzards Bay. The water sheet itself is not part of WHIC's property and therefore not part of the lease. As a consequence, the Beach Club has no right to restrict access to the water, and individuals who are not members or guests of the club can and do arrive by boat and swim in the water adjacent to the Beach Club without accessing the beach itself.

Approximately 250 feet off the shore of the beach (measured at low tide) is Elephant Rock (the " rock" ), a natural rock formation. According to Beach Club's expert, the rock is not located on the land owned by WHIC and leased by the Beach Club; rather, title is vested with the Commonwealth of Massachusetts because portions of the rock are beyond the mean low tide, not to mention the lowest predicted yearly tide level (the " extreme low tide" line). The rock is also located beyond the buoys at the end of safety ropes the Beach Club has installed. Individuals who are not members or guests of the Beach Club arriving by boat can and do access the rock.

The stated purpose of the Beach Club is " [t]o establish and maintain places for social meetings, encouraging athletic exercises, yachting, swimming and healthful recreation," and to " promot[e] the civic improvement of that part of the Town of Westport." [1] Guests at the Beach Club engage in " typical beachfront activities," including swimming in the Atlantic Ocean, sunbathing, socializing, playing sports, and building sandcastles. portion of the rock, a jumper must get a running start, plant her foot in the right location, and jump out.

In addition, guests commonly swim to, around and jump off the rock. Depending on the tide level, the drop from the top of the rock to the water is between eight and twelve feet. Although the rock has different elevations, guests typically jump from the highest part. In order to clear the submerged

2. Safety Precautions

The parties agree that the Beach Club employed four practices that can fairly be characterized as safety precautions related to swimming, including swimming near the rock: safety ropes, a flag system, lifeguards, and signage.

a. Safety Ropes.

The Beach Club maintains three safety ropes that are fifty to eighty yards apart in the water (east, middle, and west). Each rope is approximately seventy yards long with a buoy at the end to hold it in place. There is no single safety rope stretching entirely east to west at the buoys. The rock is located approximately twenty to twenty-five feet beyond (i.e., further from the shore than) the buoys at the end of the safety ropes.

The Beach Club appears to contend that the safety ropes are not in place to limit the swimming area for guests, that guests commonly swim past the safety ropes and are not prevented from doing so by the lifeguards.[2] Indeed, there are no signs

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advising guests to swim only within the ropes. The lifeguards primarily monitor the area within the ropes, but they view the wider expanse of the beach and ocean, including the area around the rock.

b. Flag System.

The Beach Club also operates a flag system signaling water safety and swimming conditions. A green flag signals good swimming due to relatively calm water, low waves, and high visibility. A yellow flag advises caution due to rough surf, fog, undertow or subsurface changes resulting from sand shift following rip currents. The plaintiff asserts that a yellow flag also means that lifeguards will restrict guests' use of the water (e.g., by limiting access to a certain distance); by contrast, the Beach Club contends that it could not restrain anyone from swimming but can merely advise caution. A black flag signals high surf or rip currents. The plaintiff asserts that a black flag means that swimming around and using the rock was prohibited; the Beach Club contends that the black flag alerts swimmers that the conditions for swimming to the rock are unsafe and that doing so is at one's own risk.

c. Lifeguards.

When a black flag is raised, lifeguards have whistled in swimmers who were on or near the rock. When a green flag is raised, at least one lifeguard would not whistle in guests who swam to and jumped off the rock.

d. Signage.

The Beach Club asserts that a sign accompanying the black flag, " rock closed," is merely shorthand for the true meaning of the flag: that swimming to or around the rock would be dangerous and unadvised. It appears that the black flag serves as a warning, but that the club could not prohibit anyone from swimming out to the rock.

In addition, the Beach Club has three signs located in different parts of the property stating that use of the rock is at one's own risk, that children under the age of eight are not allowed on the rock, and that children eight to nine years old must be accompanied by an adult.

3. The Plaintiff's Visit

On July 6, 2009, the plaintiff, a thirty-nine year old woman, went to the Beach Club as a guest of a member. She had never been to the Beach Club or jumped off the rock before. She says that she did not see any signage at the club that day.

On the day of her visit, the green flag was raised, and there were six lifeguards on duty. While she sat on the beach, the plaintiff watched many others go back and forth to, and jump from, the rock. Eventually, the plaintiff decided that she wanted to go to the rock, and did so by walking from the beach to the water and swimming to the rock. The plaintiff states that at the highest point of the rock, she could see the water below but not through it, and could not determine the conditions below the surface. After watching adults and children take a running start and jump off the highest part, the plaintiff waited her turn in line and did the same. The parties agree that at the time the plaintiff jumped, she did not think that jumping from the rock was dangerous.

The plaintiff alleges that after she jumped, her foot smashed into a portion of the rock below the surface of the water.[3]

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The lifeguards on duty noticed the plaintiff after she hit the water and went to assist her. As a result of the incident, the plaintiff suffered a compound fracture of her leg.

B. Procedural History

The plaintiff filed the underlying complaint on June 26, 2012, alleging negligence based on premises liability and a duty to warn. The Beach Club filed a motion for summary judgment on September 30, 2014. In response to my inquiry, on October 15, the Commonwealth of Massachusetts filed a notice of appearance as an interested party. After docketing a letter explaining why it has no legal responsibility in the matter and was choosing not to be a party to this case, the Commonwealth appeared at the hearing on summary judgment only as an observer.


A. Background

I set a fact discovery completion deadline of October 1, 2013, an expert disclosure deadline for the plaintiffs of November 1, and the same for the Beach Club of December 2. Under the initial discovery deadlines, expert depositions were to be completed by February 3, 2014. In May, 2014, the parties let the schedule slide. They informed me by way of a joint status report that the Beach Club had not yet disclosed its experts, but that it had agreed to provide these disclosures by July 1, a deadline I later entered as an order at a June status conference. The parties also agreed that expert depositions would be completed on or before August 15, 2014.

On July 1, the Beach Club provided an expert disclosure for Donald Medeiros. That disclosure contained Medeiros's opinion that title to the rock is vested with the Commonwealth because the rock is located in an area below the low tide mark. Although plaintiff's counsel noticed the deposition of Medeiros, she decided not to pursue this deposition and alerted defense counsel of that decision on July 24.

On August 12, the Beach Club's counsel provided the plaintiff with a supplemental expert report, dated July 22, 2014. This report contained Medeiros's opinion that title to the rock was vested with the Commonwealth because the rock is located in an area below the level of the lowest predicted yearly tide, also known as the " extreme low tide" line. This opinion was based on observations Medeiros made on July 12 at the Beach Club and additional background information provided along with the report. On August 12, the date on which the plaintiff received the supplemental report and three days before the parties' agreed upon expert deposition deadline, the plaintiff filed a motion to strike the supplemental report. The Beach Club opposes the motion to strike, noting that the plaintiff did not contact defense counsel or attempt to resolve the issue before filing the motion, contrary to the requirements of Local Rules 7.1(a)(2) and 37.1(a).

B. Legal Standard

Fed.R.Civ.P. 26(a)(2) requires that a written expert report be submitted in a timely manner in accordance with the discovery schedule set by the court. Under Fed.R.Civ.P. 37(c)(1), failure to comply with the disclosure requirements of Rule 26(a) can result in a sanction -- a prohibition on the use of testimony stemming from an untimely expert disclosure, for example -- " unless the failure was substantially justified or is harmless." See Gay v. Stonebridge Life Ins. Co., 660 F.3d 58, 62

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(1st Cir. 2011) (stating that " [t]ogether Rules 26 and 37 operate to 'prevent the unfair tactical advantage that can be gained by failing to unveil an expert in a timely fashion,'" and noting that a judge has broad discretion in determining whether, and if so which, sanctions are appropriate based on considerations of fairness and justification) (quoting Poulis-Minott v. Smith, 388 F.3d 354, 358 (1st Cir. 2004)).

C. Analysis

The plaintiff seeks to strike Medeiros's supplemental expert report because it was not provided by the expert disclosure deadline. She contends that the preparation of the supplemental report and the delay in service of the supplement on the plaintiff until three days before the deposition deadline was intentional; that the untimely disclosure was not substantially justified, as there were opportunities for extreme low tide observations prior to July 12; and that it is not harmless, because she would be highly prejudiced by the use of the supplemental information at trial without having had the opportunity to have Medeiros's opinions reviewed by her own expert or to depose Medeiros.

The Beach Club asserts that the delayed supplemental disclosure was substantially justified and indeed required by Fed.R.Civ.P. 26(e) (requiring party to supplement expert report where party " learns that in some material respect the disclosure . . . is incomplete" ), because Medeiros became aware of precedent suggesting that the extreme low tide mark might denote the property boundary only after he completed his initial report. Because the first extreme low tide date following this discovery was July 12, the Beach Club contends that the delay was justified.[4]

As a preliminary observation, I note, as more fully developed in the next section, that the opinion provided in the supplemental report does not appear to be of any consequence to the outcome of this case. In Spillane v. Adams, 76 Mass.App.Ct. 378, 922 N.E.2d 803, 806, 810-13 (Mass.App.Ct. 2010), the Massachusetts Appeals Court defined the boundary line for waterfront properties as the " mean low water mark in accordance with the National Geodetic Vertical Datum (NGVD) Standards." In so doing, the court indicated an intent to create a usable, objective standard that would allow boundary determinations to be made " with relative ease." [5] Id. at 811-13. The Appeals Court observed that the use of the extreme low water line as a boundary measure had been rejected by the Supreme Judicial Court in Rockwood v. Snow Inn Corp., 409 Mass. 361, 566 N.E.2d 608, 613 (Mass. 1991). See Spillane, 922 N.E.2d at 811-12; see also Pazolt v. Director of Div. of Marine Fisheries, 417 Mass. 565, 631 N.E.2d 547, 550 n.8 (Mass. 1994) (noting that Supreme Judicial Court left open in Rockwood the proper water mark measure).

Given the state of the law, Medeiros's initial expert report, which appears to describe the mean low tide mark as the boundary measure, would be sufficient to

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place the rock beyond the property line of the Beach Club. Testimony consistent with Medeiros's supplemental expert report would be unnecessary under the current legal standard. As a result, the untimely disclosure appears harmless. Further, even if the supplemental disclosure were material, the plaintiff has not demonstrated why an extension of time to have Medeiros deposed and his report reviewed would not remedy the alleged prejudice.[6] Accordingly, to the degree the parties choose to pursue the issues,[7] I will deny the motion to strike, but will permit the plaintiff to depose Medeiros at the cost of the Beach Club if she so chooses.


The plaintiff's complaint essentially pleads two theories of negligence: that the Beach Club breached a duty of care to maintain the rock, as its premises, in a reasonably safe condition, and that the Beach Club breached a duty to warn the plaintiff of known hazards involving the rock. The Beach Club contends in its motion for summary judgment that the plaintiff can prove no set of facts supporting either of these claims, and that even if she can, the Massachusetts recreational use statute, G.L. c. 21, § 17C, protects the Beach Club from liability.

A. Standard of Review

The purpose of summary judgment practice is " to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990) (citation omitted). Summary judgment is appropriate when " there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

A " genuine" dispute is one that, based on the supporting evidence, " a reasonable jury could resolve . . . in favor of the non-moving party," and a " material" fact is one that has " the potential to affect the outcome of the suit under the applicable law." Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (citations and quotation marks omitted). When reviewing a motion for summary judgment, I view the facts " in the light most favorable to the non-moving party." Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir. 1999).

If the moving party satisfies the burden of showing, based on evidentiary material, that there is no genuine issue of material fact, the burden shifts to the nonmoving party to demonstrate by reference to specific provable facts " that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " [C]onclusory allegations,

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improbable inferences, and unsupported speculations" are insufficient to establish a genuine dispute of fact. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

B. Duty of Care

1. Legal Standard

A negligence claim requires proof that the defendant owed a legal duty to the plaintiff, that the defendant breached this duty, and that the breach was the proximate cause of the plaintiff's injury. Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829, 834-35 (Mass. 2006); see Davis v. Westwood Grp., 420 Mass. 739, 652 N.E.2d 567, 569 (Mass. 1995). The first element, the existence of a legal duty, is the primary issue raised by the parties at this stage and is a question of law for the court, " to be determined by reference to existing social values and customs and appropriate social policy." O'Sullivan v. Shaw, 431 Mass. 201, 726 N.E.2d 951, 954 (Mass. 2000) (citing Davis, 652 N.E.2d at 569; Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 536 N.E.2d 1067, 1070 (Mass. 1989)).

It is well-recognized that " an owner or possessor of land" owes " to all lawful visitors" a duty of reasonable care that " includes an obligation to maintain the premises in reasonably safe condition and to warn visitors of any unreasonable dangers of which the landowner is aware or reasonably should be aware." Davis, 652 N.E.2d at 569-70 (citations omitted); see Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43, 52-53 (Mass. 1973) (scope of duty determined " in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ).

Where a plaintiff claims injury from a dangerous condition, premises liability " depends upon [the defendant's] 'control of the offending instrumentality, either through ownership or otherwise.'" Marsden v. Eastern Gas & Fuel Assocs., 7 Mass.App.Ct. 27, 385 N.E.2d 528, 530 (Mass.App.Ct. 1979) (citing Frizzell v. Metropolitan Coal Co., 298 Mass. 189, 10 N.E.2d 115, 116 (Mass. 1937)); see Hopkins v. F.W. Woolworth Co., 11 Mass.App.Ct. 703, 419 N.E.2d 302, 303 (Mass.App.Ct. 1989) (" the party in control of premises owes a duty to a lawful visitor to keep them in reasonably safe condition" ). " [C]ontrol rather than legal ownership" is the central concern. Marsden, 385 N.E.2d at 530. (citations omitted). The guiding principle is that " [o]ne who assumes the control and management of property cannot escape liability for injuries by showing a want of title in himself." Id. (citations omitted).

The parties offer differing interpretations of what constitutes " control." The Beach Club asserts that a legal right to control the premises, such as through ownership, a lease or contract, or successful adverse possession, is required for the duty to attach. The plaintiff, in contrast, asserts that the exercise of control over the premises in question, whether pursuant to a legal right or not, determines whether a duty arises. The crux of the dispute, then, is whether in these circumstances, a commercial tenant can be said to control adjacent premises for which the tenant's property serves as a portal such that some duty of care to lawful visitors arises.

An express right to control the premises, conferred through the mechanisms of ownership, leasehold, contract or adverse possession, clearly gives rise to a duty of care. See, e.g., Humphrey v. Byron, 447 Mass. 322, 850 N.E.2d 1044, 1050 (2006) (commercial tenant controlled premises because premises expressly included in lease); McIntyre v. Boston Redevelopment Auth., 33 Mass.App.Ct. 901, 595 N.E.2d 334, 335-36

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(Mass.App.Ct. 1992) (defendant owner of public highway had right to control it); Hopkins, 419 N.E.2d at 304 (commercial tenant had duty to warn where landlord and tenant shared repair responsibilities). But the attachment of a duty of care to visitors is not necessarily limited to such arrangements.

Various compendia of nationwide case law reflect a common understanding that control of adjacent property, even absent a legal right, can in some circumstances confer a duty of care, as the plaintiff suggests. See, e.g., 62 Am.Jur.2d Premises Liability § 12 (2014) (property possessor can assume a duty of care as to adjacent property where property possessor has agreed to make safe a dangerous condition, has created a dangerous condition even if not in control of the premises, or has assumed actual control over a portion of the adjacent property despite lacking a legal right to control, or where there is an obscured danger on appurtenant land that is near a place where guests enter and exit the possessor's property); 65A C.J.S. Negligence § § 410, 684 (2014) (reciting same scenarios). The Restatement (Third) of Torts defines a possessor of land as one " who occupies the land and controls it" and indicates that actual control of the property is the key inquiry. Restatement (Third) of Torts § 49, cmt. a, reporters' note to cmt. a (2012). Such control may be exercised by one who does not have legal title. Id. § 49, cmt. c. Where the touchstone of the attachment of a duty of care is control, see Marsden, 385 N.E.2d at 530, the Restatement suggests that possession absent a legal right to control can give rise to such a duty.

It appears that Massachusetts has adopted this understanding, at least to some extent. The Massachusetts Appeals Court has recognized that " in some situations a landowner's duty to exercise reasonable care does not terminate abruptly at the borders of his property but may extend to include a duty to take safety measures related to known dangers on adjacent property." Gage v. City of Westfield, 26 Mass.App.Ct. 681, 532 N.E.2d 62, 64 (Mass.App.Ct. 1988) (citing Polak v. Whitney, 21 Mass.App.Ct. 349, 487 N.E.2d 213, 215 (Mass.App.Ct. 1985)); see Polak, 487 N.E.2d at 215 (" The extension of the duty in appropriate circumstances to conditions on adjacent property derives from the same general obligation to act reasonably to protect one's invitees from the hazards of which the owner is aware" ). Less clear, however, is how far and in what form the duty that Massachusetts recognizes will extend with respect to adjacent property.

2. Analysis

I turn now to the factual record, considered in the light most favorable to the plaintiff, to assess whether it could support a conclusion by a reasonable fact finder that the Beach Club exercised control in such a way that it owed some duty to visitors as to the rock.

The Beach Club contends, and the plaintiff does not deny, that there are no facts indicating that the Beach Club has a legal right to control the rock. The Beach Club's expert has indicated that the rock sits beyond the recognized boundary line of the mean low tide mark and therefore is not part of the Beach Club's lease. See Spillane, 922 N.E.2d at 810-13. There is no evidence of any conveyance of any right to the rock to the Beach Club by the Commonwealth or any other entity purporting to hold title.[8]

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The plaintiff contends, however, that there is evidence to create a material dispute as to whether the Beach Club exerted sufficient control over the rock to give rise to a duty. Specifically, the plaintiff asserts that the Beach Club both encouraged and prohibited use of the rock by guests through its roping arrangement, its flag system, the behavior of its lifeguards (including whistling in swimmers near the rock during dangerous conditions, allowing them to remain in calm conditions, and monitoring the area), and its signage purporting to impose rules for the use of the rock, and that this conduct involved exercising control over access to and use of the rock by visitors to the Beach Club. The Beach Club does not deny that it exercised actual control over the rock but instead maintains that the right to control is critical to a finding of a duty.

In support of her argument, the plaintiff relies primarily on O'Brien v. Peterson, 329 Mass. 427, 108 N.E.2d 538, 539-40 (Mass. 1952). In O'Brien, the plaintiff, a guest of a hotel owned by the defendant, was injured when she fell into a hole along a shoreline pathway adjacent to the hotel connecting it to an area with a shack and grill commonly used by hotel guests for " roasts." Id. at 539. The plaintiff had arranged with the hotel staff to conduct a roast that night and was on her way to the grill when she was injured. Id. The court concluded that whether the plaintiff was someone to whom the defendant owed a duty of care to keep the premises safe or to warn of dangers was a question for the jury, because there was evidence permitting the inference that " the oven was held out by the defendant as one of the facilities for the use and enjoyment of his paying guests, that he intended it to be used by his guests, and that the plaintiff was thereby induced to proceed to the oven and the place of her accident." Id. Although O'Brien is favorable to the plaintiff in theory, the case has been cited sparingly and cannot be said to have stated the standard for premises liability through the exercise of control over adjacent property.[9]

A more recent case, Davis v. Westwood Group, 420 Mass. 739, 652 N.E.2d 567 (Mass. 1993), has been recognized by Massachusetts courts as indicating the current approach to this issue, albeit in a fashion somewhat limited by its facts. In Davis, the plaintiff was injured when he was hit by a van while crossing a state highway that separated the defendant's racetrack from its parking lot. Id. at 568. Guests who parked in the lot would assemble at a painted crosswalk and wait for a city police officer hired by the defendant to stop traffic and direct guests to cross. Id. at 569. The court noted that " a landowner or possessor

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typically is not held to any duty with respect to public highways adjacent to or crossing his land," but that " he must exercise reasonable care in the use of his land so as not to injure a traveler on the highway." Id. at 570. The court rejected the plaintiff's assertion that the defendant had a " broad duty to provide safe passage over the State highway for guests," because even though the defendant exercised some control over that portion of the highway by hiring a police officer to assist with crossing, it did not have the right to make alterations to the highway that would provide safer passage. Id. at 570-71. Rather, this authority and control rested with the Commonwealth. Id. at 570-71.

The Davis court did determine that the defendant had voluntarily assumed " a duty to exercise due care in carrying out the particular task, that of hiring police officers to direct pedestrians across [the highway]." Id. at 571. Implicitly concluding that the defendant had not breached this duty as to the plaintiff, however, the court directed entry of a judgment in favor of the defendant. Id. at 572.

Davis suggests that a legal right to control is necessary in order for the law to impose a duty to maintain the premises in a reasonably safe manner. Otherwise, property possessors would be placed in the difficult position of being expected to alter property which they have no right to alter (and which, in the case of Davis, the Commonwealth had an affirmative duty to maintain). However, Davis does not preclude the imposition of some independent duty where the defendant voluntarily assumes the duty, exercises some amount of control over the adjacent property, or has some awareness of dangers on the adjacent property. See Gage, 532 N.E.2d at 64; 65A C.J.S. Negligence § § 410, 684 (2014).

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 (and perhaps, conversely, safe) to use the rock, and posting warning signage regarding use of the rock. In Davis, the court recognized that the defendant had voluntarily assumed a duty of care in hiring police officers -- in other words, it had voluntarily assumed a duty of taking a specific precaution regarding visitors' use of adjacent property where the defendant recognized some danger. So too did the Beach Club undertake some precautions to ensure the safety of its visitors when they used the rock on the adjacent premises.[10] A duty voluntarily assumed, like one imposed by law, must be executed with reasonable care. See Restatement (Second) of Torts § 323 (1965); see also Great Northern Ins. Co. v. Paino Assocs., 364 F.Supp.2d 7, 19 (D. Mass. 2005).

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A reasonable fact finder could therefore conclude that the Beach Club had a duty to execute its assumed duties with such care. The scope of these duties would require " a fact-specific inquiry" by a jury. Cottam v. CVS Pharmacy, 436 Mass. 316, 764 N.E.2d 814, 822 (Mass. 2002).

Even absent the voluntary assumption of a duty to keep guests safe in using the rock, the facts supporting the Beach Club's exercise of some actual control over the rock and the Beach Club's knowledge that the rock posed some potential danger suggest that the Beach Club could be found to owe a duty of care as to the rock.[11] Indeed, prevailing social norms suggest that where a recreational club holds out as a benefit of attendance a myriad of beach and water-related activities, and where it can be reasonably inferred that the club serves as a portal for engaging in the activity of jumping off a nearby natural rock formation whose name the Beach Club bears, the club has some duty of care toward its guests regarding their use of the rock for recreational purposes.[12] See O'Sullivan, 726 N.E.2d at 954.

As a matter of law, however, this duty cannot include a duty to repair, to maintain, or to remedy dangerous conditions, see Davis, 652 N.E.2d at 567-69, but it could consist of a duty to warn guests of the dangers of using the rock. See Polak, 487 N.E.2d at 215 (property owner had duty " to act reasonably to protect [its] invitees from the hazards [on adjacent property] of which the owner [was] aware," and therefore could have duty to warn as to known hazards, because duty of reasonable care " did not end abruptly at the boundary line of the property over which [it] exercised control" ); Hopkins, 419 N.E.2d at 304 (commercial tenant " had a duty to keep the premises used by its patrons in a reasonably safe condition and, at the least, to warn customers of any danger of which it knew or should have known. . . . Even if a finding were warranted that [the defendant] had no control over the sidewalk on which the plaintiff fell, it would not be relieved from its duty to warn its invitees of danger" (citation omitted)). Compare Monterosso v. Gaudette, 8 Mass.App.Ct. 93, 391 N.E.2d 948, 953, 953-54 (Mass.App.Ct. 1979) (one defendant had duty to maintain adjacent premises because lease granted him rights and repair responsibilities to that area, whereas other defendant did not have duty to maintain or to warn because lease granted her neither control nor right to use adjacent premises, and because she " did not use or possess" that area). In these circumstances, a reasonable jury could find that the Beach Club exercised sufficient control over the rock to give rise to some duty to warn its guests regarding the dangers associated

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with use of the rock. The plaintiff has accordingly established that the essential element of a legal duty is " at least trialworthy." Price v. General Motors Corp., 931 F.2d 162, 164 (1st Cir. 1991).

C. Duty to Warn

1. Legal Standard

Where a property possessor has a duty to warn, that duty applies to " any unreasonable dangers of which the landowner is aware or reasonably should be aware." Davis, 652 N.E.2d at 569-70. However, " [l]andowners are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from such blatant hazards." O'Sullivan, 726 N.E.2d at 954-55. Determining whether a danger is " open and obvious" entails an objective inquiry into what " would be obvious to a person of average intelligence, that is, a visitor with ordinary perception and judgment exercising reasonable care for his own safety." Id. at 956-57.

This " open and obvious" exception to the duty to warn is based on " the assumption that the warning provided by the open and obvious nature of the danger is by itself sufficient to relieve the property owner of its duty to protect visitors from dangerous conditions on the property." Papadopoulos v. Target Corp., 457 Mass. 368, 930 N.E.2d 142, 151 (Mass. 2010); O'Sullivan, 726 N.E.2d at 955 (" any further warning would be an empty form" (citation omitted)). The assumption is challenged, however, where a property owner " can and should anticipate that the dangerous condition will cause physical harm to the [lawful visitor] notwithstanding its known or obvious danger." Id. (quoting Soederberg v. Concord Greene Condominium Ass'n, 921 N.E.2d 1020 (Mass.App.Ct. 2010)). Where such harm is anticipated or foreseeable, and where a property owner " has created and maintained that danger with the knowledge that lawful entrants would . . . choose to encounter it despite the obvious risk of doing so," the property owner has a duty to remedy the danger. Dos Santos v. Coleta, 465 Mass. 148, 987 N.E.2d 1187, 1189, 1192 (Mass. 2013).

2. Analysis

The parties do not dispute that the plaintiff, following the lead of other guests of the Beach Club, jumped off a natural rock formation into the ocean where the depth of the water and what was below the water's surface were not visible. Rather, they dispute whether this activity constituted an open and obvious danger under the circumstances.

The Beach Club contends that this activity is analogous to dangers that Massachusetts courts have previously recognized as being open and obvious. See O'Sullivan, 726 N.E.2d at 953, 956 (" div[ing] headfirst into the shallow end of the defendants' swimming pool" -- which had no depth notations -- at night posed an open and obvious danger, and citing numerous cases in other jurisdictions reaching same result); Greenslade v. Mohawk Park, Inc., 59 Mass.App.Ct. 850, 798 N.E.2d 336, 339 (Mass.App.Ct. 2003) (" person of ordinary intelligence" would have reached " rational conclusion" that " it is unsafe to swing on the end of a rope suspended over water, heedless of the potential presence of rocks beneath the water's surface or of the possibility that letting go of the rope too late or too soon could result in a landing on the rocky embankment," and citing other jurisdictions " that have concluded that diving into a river from a cliff or from a rope swing" presents an open and obvious danger); see also Polak, 487 N.E.2d at 215 (danger of

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parking cars adjacent to highway " ought to have been so obvious to the ordinary person" that host, who owned adjacent property, " was not required to warn her guests of that danger" ); Ogni v. Schlien, 72 Mass.App.Ct. 1104, 889 N.E.2d 450, *2 (2008) (table/unpublished opinion) (" traversing unfamiliar terrain in complete darkness was an open and obvious danger" ).

The plaintiff contends that the danger posed by jumping off the rock was not open and obvious because the source of the danger lurked below the surface. She asserts that the rocks below the surface of the water could not be seen by guests, and that the lifeguards knew that one needed a running start when jumping off the rock to clear these hidden below-surface rocks.[13] She further asserts that because she watched others jumping off the rock without a problem, she, and more importantly a person of ordinary intelligence, reasonably thought there was no danger in doing so.[14]

The specific facts which the plaintiff references raise a jury question regarding her contention that the danger was not open and obvious. Although the Beach Club asks me to hold as a matter of law that jumping from the rock posed such a danger, this determination in these circumstances requires findings of fact regarding what a reasonable person of ordinary intelligence in the plaintiff's position would have considered to pose an obvious danger. See O'Sullivan, 726 N.E.2d at 955. That inquiry must be conducted in the first instance by a jury with a fully developed record in light of all of the facts surrounding the plaintiff's visit to the Beach Club and the nature of the rock itself. Cf. Cracchiolo v. Eastern Fisheries, Inc., 740 F.3d 64, 73 (1st Cir. 2014) (determining that premises liability case was " not suitable for resolution on summary judgment" because " record contain[ed] too many disputes of fact and too many disputed inferences," and raised questions of foreseeability to defendants of certain visitors engaging in dangerous conduct).

Some facts, of course, will be of minimal import in the objective analysis that the inquiry requires. For example, that the plaintiff or the lifeguards may have witnessed others successfully perform the maneuver does not necessarily save a danger from classification as open and obvious. See O'Sullivan, 726 N.E.2d at 953, 956 (plaintiff's observation of other swimmers diving into shallow end of pool by performing special type of dive did not render that activity any less of an open and obvious danger because fact " [t]hat many people might engage in objectively hazardous conduct on the basis of a belief that it can be done safely does not affect [the open and obvious] analysis" ). Nor do any subjective perceptions by the plaintiff of the danger inform the result except as they might be treated by the jury as evidentiary of the perspective of the objectively conceived " reasonable person of ordinary intelligence in the plaintiff's position." Other facts, particularly those illuminating the objective perception a visitor to the Beach Club would have of the rock and the dangers that may result from jumping off of it, will be determinative, and will be elicited through witness testimony and assessed by a reasonable fact finder. After hearing all the evidence, that fact finder could find that

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jumping from the rock formation did not pose an obvious danger.

The plaintiff's assertion that my opinion in Godsoe v. Maple Park Properties, Inc., Civ. No. 06-10405, 2007 WL 2317468 (D. Mass. 2007), requires a ruling in her favor is overly optimistic. In Godsoe, a young boy was severely injured when he used an eight-and-a-half foot tall slide installed by the defendant in a man-made lake on the defendant's campground property. Id. at *2. The boy, who had been swimming in the lake before using the slide, could not see the bottom of the lake and did not know that the slide let out in a portion of the lake that was just two feet deep. Id. at *2. I concluded that there were two dangers that were not open and obvious to the plaintiff: the shallow depth of the lake at the point where the slide let out, and the allegedly defective slide apparatus (the slide did not have a hood or canopy at the top to channel the user into a sitting position or otherwise comply with safety standards for water slides). Id. at *2-5. This determination was based in part on the fact that there was no basis for the boy to believe that the depth would be so shallow at the end of the slide or that the slide would be inherently unsafe where the slide was " installed by the Defendant in a man-make lake created specifically for the recreational purposes of campground guests." Id. at *4. Those conditions are in significant contrast to those of a natural rock formation along the Atlantic Ocean outside the bounds of the Beach Club's property line.

However, Godsoe does reflect an important general principle: a defendant may not maintain its property " in an unreasonably unsafe condition as long as the unsafe condition is open and obvious." Id. at *5 (citation omitted). That principle has been applied more recently by the Supreme Judicial Court in Papadopoulous and Dos Santos, which concluded that a property owner has a duty to remedy an open and obvious danger that poses a foreseeable risk of injury to a lawful visitor. See Dos Santos, 987 N.E.2d at 1189.

In Dos Santos, the Supreme Judicial Court noted that where a defendant creates a dangerous situation, such as by " set[ting] up [a] trampoline next to [a swimming] pool with the specific intent to enable the type of use that resulted in the plaintiff's injury," and where the defendant " knew that the trampoline and pool were in fact being used in this manner and that this use was dangerous," the defendant would be able to anticipate the risk of injury, despite the open and obvious nature of the danger, and therefore had a duty to remedy the danger. Id. at 1195-96.

The court adopted the Restatement (Second) of Torts § 343A & cmt. f (2014), which provides that in cases where " the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger . . . the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm." In so doing, the court distinguished O'Sullivan as a case in which " the only possible theory of liability was a negligent failure to warn," and " the negation of the duty to warn by operation of the open and obvious danger rule therefore negated any duty of care in that particular case." Dos Santos, 987 N.E.2d at 1197. In contrast, as to cases in which there is a duty of reasonable care at issue, Dos Santos suggests that the duty cannot

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be erased automatically simply because the danger was open and obvious to guests, if a defendant has intentionally created, encouraged, or facilitated the dangerous condition, rather than merely maintaining property that contains a dangerous condition. Contrast Cracchiolo, Inc., 740 F.3d at 72 (distinguishing Dos Santos because the landowner had not taken actions " to induce activity which foreseeably would cause injury" ).

There is a genuine dispute as to whether the rock here posed a foreseeable risk of physical harm to the Beach Club's guests, particularly where the Beach Club knew that guests of all ages regularly jumped off the rock and may be said to have known that the rock extended outward below the water's surface. Cf. Cracchiolo, 740 F.3d at 73-74. Were the rock located on the property leased by the Beach Club, this potentially foreseeable risk of harm would give rise to a duty to remedy the danger, even if it is an open and obvious one, under Dos Santos. But those are not the facts here.

Where, as here, " the only viable theory of negligence" is failure to warn, and not failure to remedy, the question of whether the danger was open and obvious is dispositive. Cf. Matouk v. Marriott Hotel Servs., Inc., Civ. No. 11-12294, 2013 WL 6152333 (D. Mass. Nov. 21, 2013). Contrast Dos Santos, 987 N.E.2d at 1197. If it was open and obvious, the Beach Club had no duty to warn; if it was not, the question then becomes whether the Beach Club exercised that duty with reasonable care by providing adequate notice of the dangers associated with jumping off the rock to its guests. Because the plaintiff has identified specific facts of record that could enable a reasonable jury to find that the danger posed by the rock is not open and obvious, the Beach Club is not entitled to summary judgment.

Under the circumstances, the Beach Club may not be held to a duty to remedy dangerous conditions associated with the rock. As in Davis, the Beach Club lacks the legal right to control and make modifications to the adjacent premises where the danger is located. However, although it cannot be held to a duty of care to maintain the premises in a reasonably safe condition, from which a duty to remedy arises, the Beach Club's plausible exercise of some control over access to the rock can be said to impose a duty to warn guests of the dangerous condition on the adjacent premises and take additional steps to restrict access to the rock by those using the Beach Club's own property.

D. Recreational Use Statute

1. Legal Standard

The Massachusetts recreational use statute, G.L. c. 21, § 17C, " bars a recreational user's claim for ordinary negligence against a landowner who has opened his land to the public for 'recreational purposes.'" Ali v. City of Boston, 441 Mass. 233, 804 N.E.2d 927, 929 (Mass. 2004). Section 17C(a) provides: " Any person having an interest in land . . . who lawfully permits the public to use such land for recreational . . . purposes without imposing a charge or fee therefor . . . shall not be liable for personal injuries or property damage sustained by such members of the public . . . while on said land in the absence of wilful, wanton, or reckless conduct by such person." The statute expressly states that it does not serve to limit liability if the landowner charges a fee for the use of the land by the public. G.L. c. 21, § 17C(b). The Beach Club asserts the application of the recreational use statute as an affirmative defense to any alleged negligence and an alternative ground for summary judgment.

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2. Analysis

a. Interest in the Land.

When addressing the question of interest in the land under § 17C, the parties are in the awkward position of offering arguments on a factual basis counter to those that they assert on the underlying negligence claims. The Beach Club contends that it has a sufficient interest in the rock if it is deemed to owe a duty as to the rock because the rock is considered part of the leased land. The plaintiff contends that the Beach Club does not have a legal interest in the rock and therefore cannot use this defense.

If the lease between the Beach Club and WHIC included the rock, or if the Beach Club had some other contractual right to use the rock, that might be sufficient. See G.L. c. 21, § 17C(b) (" 'person' shall include the person having any interest in the land, [including] his agent, manager or licensee" ); Patterson v. Christ Church in Boston, 85 Mass.App.Ct. 157, 6 N.E.3d 1099, 1101-03 & nn.4, 6-7 (Mass.App.Ct. 2014) (affirming that defendants, including foundation responsible for organizing tours of church at issue and nonprofit corporation that manages church and its use for worship, " have an interest in the church sufficient to warrant protection under the statute" ). But see Ali, 804 N.E.2d at 930-31 (speaking in terms of " landowner liability" ). It does not appear, however, that a duty under tort law as to adjacent property can be considered to create an interest in land as contemplated by the statute. Regardless of whether the Beach Club owes such a duty in tort as to the rock, there is no indication that it has a property interest in the rock.[15] Accordingly, this element is not satisfied.

b. Open to the Public for Recreational Purposes Free of Charge.

It is undisputed that the Beach Club and the rock were used for recreational purposes. See Catanzarite v. City of Springfield, 32 Mass.App.Ct. 967, 592 N.E.2d 752, 752-53 (Mass.App.Ct. 1992). However, the plaintiff has established a genuine dispute of material fact as to whether the Beach Club provided access to the rock openly to the public without a fee.

The Supreme Judicial Court recently affirmed that where access to the property is restricted to a subset of the public at the time of the injury, the recreational use statute cannot serve as an affirmative defense. See Wilkins v. City of Haverhill, 468 Mass. 86, 8 N.E.3d 753, 756 (Mass. 2014). Permitting the use of the defense in such circumstances " would expand the statutory immunity from negligence beyond that which the Legislature intended by granting such immunity whenever a landowner invites a group of people onto the landowner's property for a recreational or other listed activity free of charge." [16] Id. at 756.

Here, there is no dispute that the Beach Club is a private club requiring membership and the payment of a fee for entrance by a guest. The plaintiff was injured at a

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time when the Beach Club was open and was there as a paid guest of a club member. Because access to the club was limited to a subset of the public (members and their guests) at the time of the plaintiff's injury, Wilkins and G.L. c. 21, § 17C(b) squarely preclude the club from invoking the statute for protection from liability.

The Beach Club attempts to salvage this defense by distinguishing between access to the club and use of the rock. It contends that the fee the plaintiff paid was to access the club and the activities therein, but that use of the rock was available free of charge. As support for this contention, the Beach Club points to testimony from several individuals stating that the rock is accessed and used (for free) by members of the public who approach by boat and do not pay to access the club.

The Beach Club's maneuvering is unpersuasive. In order to assert this defense with any success, the Beach Club would need to establish that the rock was part of its property interest (a burden which, as I have stated, the Beach Club has eschewed). Were it to establish this prerequisite, it would effectively conceptualize the rock and the club as separate entities: the club as a private facility requiring the payment of a fee, and the rock a free, public facility ancillary to the club. Such a concept distorts the intended purpose of the recreational use statute.

The cases the Beach Club cites do not support its proposition. In Marcus v. City of Newton, 462 Mass. 148, 967 N.E.2d 140, 147-48 (Mass. 2012), for example, the plaintiff was injured by a falling tree during a softball game in which he was playing; he had paid a registration fee to join a softball league, which then paid the defendant city parks and recreation department for a permit to reserve a field for use by the league. Id. at 142-43. The court concluded that the plaintiff " was not participating in a recreational use of the city's property free of charge" because he had paid, albeit indirectly, to be able to use the field for a softball game at the time he was injured. Id. at 146-47. Similarly here, the plaintiff paid a fee to use the club and partake in the activities therein during the time of her visit. If the territory of the club included the rock, then jumping off the rock is surely one of the activities contemplated by entrance to the club. The language in Marcus stating that " the issue is whether the landowner charges a fee for the particular use to which the plaintiff puts the land" plainly was not intended to produce the detailed parsing in which the Beach Club engages.[17] See Marcus, 967 N.E.2d at 146.

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A reasonable fact finder could not conclude that the requirements that the property be open to the public and without charge are satisfied here.

3. Conclusion

It is clear that the Beach Club does not have the recreational use statute available as an affirmative defense to shield itself from liability at this or any other stage of the proceedings.


For the reasons set forth above, I DENY the motion to strike the supplemental expert report, Dkt. No. 18, and DENY the Beach Club's motion for summary judgment, Dkt. No. 20.

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