United States District Court, D. Massachusetts
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.
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
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
(" 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."  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. Indeed, there are no signs
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.
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.
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.
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.
II. PLAINTIFF'S MOTION TO STRIKE THE SUPPLEMENTAL EXPERT ...