May 1, 2019
N.E.3d 1017] Negligence, One owning or controlling
real estate, Open and obvious danger, Duty to warn.
Practice, Civil, Summary judgment.
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.
Danehey, for the plaintiff.
F. Rosenberg, Worcester, for the defendants.
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
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
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 ...