Dos Santos, et al. v. Coleta, et al. (Lawyers Weekly No. 10-084-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11188 CLEBER COLETA DOS SANTOS[1] & another[2] vs. MARIA A. COLETA & another.[3] Suffolk. January 10, 2013. ‑ May 15, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Negligence, One owning or controlling real estate, Swimming pool, Open and obvious danger, Duty to warn, Standard of care. Practice, Civil, Instructions to jury. Civil action commenced in the Superior Court Department on July 25, 2008. The case was tried before Mitchell H. Kaplan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Lisa DeBrosse Johnson (Steven E. Ernstoff with her) for the plaintiffs. Mark F. Mahnken for the defendants. Timothy C. Kelleher & J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. CORDY, J. The plaintiff Cleber Coleta Dos Santos was injured when he unsuccessfully attempted to flip into an inflatable pool from a trampoline that had been set up directly adjacent to it in the backyard of a property he was renting from the defendants, Maria A. and Jose T. Coleta.[4] He brought an action in the Superior Court against the defendants, claiming that they were negligent in setting up and maintaining the trampoline next to the pool and in failing to warn him of the danger of jumping from the trampoline into the pool.[5] The jury returned a verdict for the defendants. The plaintiff appealed, arguing that the judge erred in instructing the jury on the “open and obvious danger” rule without giving a requested instruction on a recognized exception to that rule, based on the Restatement (Second) of Torts § 343A, at 220 (1965) (§ 343A), and posing a corresponding special question. The Appeals Court affirmed, Dos Santos v. Coleta, 81 Mass. App. Ct. 1 (2011) (Dos Santos), and we granted the plaintiff’s application for further appellate review. Because we conclude that a landowner has a duty to remedy an open and obvious danger, where he has created and maintained that danger with the knowledge that lawful entrants would (and did) choose to encounter it despite the obvious risk of doing so, we now reverse.[6] 1. Evidence at trial. In the summer of 2005, the plaintiff lived with his wife and son in one unit of a two-family home in Framingham […]