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Laforce v. Dyckman

Appeals Court of Massachusetts, Plymouth

September 9, 2019

DANIELLE LaFORCE [1]
v.
JAMES E. DYCKMAN & another. [2]

          Heard: May 1, 2019.

         Civil action commenced in the Superior Court Department on July 5, 2016.

         The case was heard by Cornelius J. Moriarty, II, J., on a motion for summary judgment.

          John F. Danehey for the plaintiff.

          Kenneth F. Rosenberg for the defendants.

          Present: Sullivan, Massing, & Lemire, JJ.

          MASSING, J.

         The plaintiff, Danielle LaForce, filed a complaint on behalf of her minor son after he was injured falling from a zip line that the defendants, James E. and Deborah L. Dyckman, had installed in their backyard. A judge of the Superior Court granted the defendants' motion for summary judgment. The plaintiff appeals, arguing that the zip line was unreasonably dangerous without a seat and that the defendants negligently failed to warn the child of this danger or to remedy it. We affirm.

         Background.

         The undisputed facts, viewed in the light most favorable to the plaintiff, are as follows. The plaintiff's son, Aaron, was six years old. The night before the incident, the defendants had taken Aaron's older brother, Steven, to a Red Sox game, and Steven had spent the night at the defendants' home. Aaron's parents went to pick up Steven the next day, taking Aaron along with them. When they arrived, the Dyckmans met Aaron and his parents outside. Aaron noticed a zip line set up between two trees in the backyard and asked if he could use it. The zip line consisted of 200 feet of cable with a hand trolley used to glide along its length. James Dyckman had purchased all the parts and had installed the zip line himself. Dyckman knew that the hand trolley could accommodate a seat, but a seat was not included and he chose not to purchase one.

         Aaron's father lifted Aaron up to the zip line. After helping Aaron grab onto the hand trolley, his father held him by the hips, guiding Aaron along the zip line for about five feet. When Aaron arrived at a point that his father felt was safe enough for Aaron to hold on by himself, he told Aaron, "You're on your own, Buddy," and let go. Aaron traveled down the zip line a short distance before his hands began to slip and he started to fall. Although Aaron's father managed to grab him as he was falling, Aaron's arm hit the ground, resulting in complex fractures requiring multiple surgeries.

         The plaintiff's negligence claim focused on the defendants' failure to install a safety seat attachment to the hand trolley, as recommended by the manufacturer. The plaintiff alleged that the zip line was unreasonably dangerous without a safety seat and that the defendants failed to warn Aaron of the danger that he might therefore fall. The plaintiff also claimed that the defendants negligently maintained, and failed to remedy, this unreasonably dangerous condition. The judge granted the defendants' motion for summary judgment, concluding that "the danger a six-year-old boy, dangling from a hand trolley, might lose his grip was so obvious that it was reasonable for the Dyckmans to conclude that a person of ordinary intelligence would perceive and avoid it, obviating the need for a warning directly to the plaintiff."

         Discussion.

         "Summary judgment is appropriate where there is no genuine issue of material fact and, where viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." 0'Sullivanv.Shaw, 431 Mass. 201, 203 (2000). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). When the moving party does not bear the burden of proof, the party may succeed by demonstrating that the opposing party "has no reasonable expectation of proving an essential element of that party's case." Kourouvacilisv.General Motors Corp., 410 ...


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