Heard: May 1, 2019.
action commenced in the Superior Court Department on July 5,
case was heard by Cornelius J. Moriarty, II, J., on a motion
for summary judgment.
F. Danehey for the plaintiff.
Kenneth F. Rosenberg for the defendants.
Present: Sullivan, Massing, & Lemire, JJ.
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
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.
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
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."
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."
Corp., 410 ...