The plaintiff seeks to recover for injuries he sustained when he dived, headfirst, into the shallow end of a swimming pool owned by the defendants and located on their residential property. His complaint alleges that the defendants
1. Facts. The undisputed record before the motion judge, viewed in the light most favorable to the plaintiff, establishes the following material facts:
The pool in question is an in-ground type, measuring eighteen feet in width by thirty-six feet in length, with both shallow and deep ends. The bottom of the pool is level in the shallow end, for approximately ten feet of the pool's length, after which it slopes gradually toward the deep end, the sides of which are tapered. When filled to capacity, the pool is four feet deep at its shallowest point and eight feet at its deepest. There are no markers, either in the pool or on its exterior surround, to indicate the pool's depth at various points along its length or to demarcate the separation of its shallow and deep ends. However, a diving board is affixed to the exterior of the pool at its deep end. The pool's interior is covered with a vinyl liner and there is no underwater lighting, so that the bottom of the pool is not visible at night.
The plaintiff, who was a friend of the defendants' granddaughter, had swum in the pool at least once prior to the night of the accident, during daylight hours. He had observed various swimmers dive into the pool's deep end from the diving board. He also saw swimmers dive into the pool from the shallow end by performing a flat or "racing dive," i.e., diving headfirst, with arms outstretched over their heads, landing in the water at an angle roughly parallel to the bottom of the pool, gliding just beneath the water's surface and eventually surfacing in the deep end. The plaintiff himself had previously dived into the pool's deep end from the diving board two or three times, and had made one dive into the shallow end. Although he did not know the exact dimensions of the pool, the plaintiff was aware of approximately where the shallow part ended. Moreover, he was aware of the shallow end's approximate depth, having observed other swimmers standing in that part of the pool and having subsequently stood next to these people outside the pool.
2. Standard of review. 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. See Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974); Lyon v. Morphew, 424 Mass. 828, 831 (1997). "[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "A complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Id. at 711, citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
3. Survival of the open and obvious danger rule. "Before liability for negligence can be imposed, there must first be a legal duty owed by the defendant to the plaintiff, and a breach of that duty proximately resulting in the injury." Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995). Whether a defendant has a duty of care to the plaintiff in the circumstances is a question of law for the court, to be determined by reference to existing social values and customs and appropriate social policy. See id. at 743, citing Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989).
Although we have not previously addressed this precise issue, Massachusetts courts have continued to apply the open and obvious danger rule in cases decided after the Legislature's abolition of the assumption of risk defense, thereby at least implicitly recognizing the rule's continuing viability. See, e.g., Lyon v. Morphew, supra; Thorson v. Mandell, supra; Toubiana v. Priestly, supra; Young v. Atlantic Richfield Co., supra; Polak v. Whitney, supra at 354. See also Gauvin v. Clark, 404 Mass. 450, 454-455 & n.5 (1989) (given statutory abolition of assumption of risk defense in negligence cases, court's analysis of limits on defendants' liability properly proceeds in terms of existence of duty of care). Assumption of risk, along with contributory negligence, was an affirmative defense to negligence for which the defendant bore the burden of proof at trial. See Winchester v. Solomon, 322 Mass. 7, 11 (1947), citing Leary v. William G. Webber Co., 210 Mass. 68, 73 (1911) (assumption of risk); Duggan v. Bay State Ry., 230 Mass. 370, 377 (1918) (contributory negligence). A plaintiff assumed the risk of harm when he voluntarily exposed himself to a known danger which had been caused by the defendant's negligence; the focus of the inquiry was thus on the plaintiff's own carelessness or negligence in failing to avoid a hazard which he knew about and appreciated. See Breault v. Ford Motor Co., 364 Mass. 352, 354-355 (1973); Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 158-159 (1891); W.L. Prosser & W.P. Keeton, Torts § 68, at 486-487 (5th ed. 1984). By contrast, the open and obvious danger doctrine arises in connection with the separate issue of a defendant's duty to protect others from dangerous conditions about which the defendant knows or should know. See cases cited, supra at 204; Callahan v. Boston Edison Co., 24 Mass.App.Ct. 950, 953 (1987) ("Whether a danger is open
Thus, the superseded common-law defense of assumption of risk goes to a plaintiff's failure to exercise due care for his own safety, whereas the open and obvious danger rule concerns the existence of a defendant's duty of care, which the plaintiff must establish as part of his prima facie case before any comparative analysis of fault may be performed. Because "[a] statute is not to be interpreted as effecting a material change in or repeal of the common law unless the intent to do so is clearly expressed," Riley v. Davison Constr. Co., 381 Mass. 432, 438 (1980), quoting Pineo v. White, 320 Mass. 487, 491 (1946), we conclude that the Legislature's express abolition of "the defense of assumption of risk" in G. L. c. 231, § 85, does not alter the plaintiff's burden in a negligence action to prove that the defendant owed him a duty of care in the circumstances, and thus leaves intact the open and obvious danger rule, which operates to negate the existence of a duty of care (emphasis added).
4. Application of open and obvious danger rule. The remaining
We are not persuaded by the cases cited by the plaintiff which have held to the contrary. In Corbin v. Coleco Indus., 748 F.2d 411, 417-418 (7th Cir. 1984), the United States Court of Appeals for the Seventh Circuit, construing Indiana law, held that the danger of diving headfirst into four feet of water in a swimming pool was not, as a matter of law, open and obvious to a reasonable adult, because "whether a danger is open and obvious depends not just on what people can see ... but also on what they know and believe about what they see" and "even though people are generally aware of the danger of diving into shallow water, they believe that there is a safe way to do it, namely, by executing a flat, shallow dive." However, under our law of premises liability, the standard for determining whether a landowner is relieved of a duty to warn is whether the dangerous condition complained of would be obvious to a person of average intelligence, that is, a visitor with ordinary perception and judgment exercising reasonable care for his own safety. That many people might engage in objectively hazardous conduct on the basis of a belief that it can be done safely does not affect our analysis of a defendant's duty of care under this standard if, in light of the obvious risks entailed by the activity, the belief in question, however prevalent it may be, must nonetheless fairly be judged unreasonable, if not foolhardy. See, e.g., Griebler v. Doughboy Recreational, Inc., supra at 450. Moreover, in Liriano v. Hobart Corp., 92 N.Y.2d 232, 241-242 (1998), the New York Court of Appeals, while reasoning that the open and obvious danger exception to a manufacturer's duty to warn entails a "fact-specific" inquiry most often reserved for a jury, nevertheless concluded that "[w]here only one conclusion can be drawn from the established facts ... the issue of
The plaintiff argues, however, that the judge, in reaching this conclusion at the summary judgment stage of litigation, improperly drew inferences from the undisputed factual record that were adverse to the plaintiff. The "adverse inference" about which he complains, however, appears to be nothing other than the judge's legal conclusion that the danger of diving into the defendants' pool in the manner and circumstances described in the record was open and obvious, thus negating the defendants' duty to warn of this danger. The plaintiff's argument, then, must be that such a determination is a matter of fact properly left to the trier of fact, applying principles of comparative negligence. Thus construed, it is but a variant of his argument concerning the Legislature's implicit abolition of the open and obvious danger rule, which we have already adequately addressed.
Finally, the plaintiff argues that, in concluding that the danger was open and obvious, the judge improperly considered subjective factors particular to this plaintiff, thus revealing that, under the guise of performing an objective inquiry about the defendant's duty, he was in reality performing an assumption of risk analysis, in violation of G. L. c. 231, § 85. Admittedly, certain of the factors relied on by the judge — such as the plaintiff's prior experience and ostensible skill as a swimmer, and his awareness that serious injury could result if he were to strike his head on the bottom of the defendants' swimming pool while diving — bear on this particular plaintiff's subjective state of mind and actual knowledge of the danger of engaging in this activity, and thus should have been excluded from an objective inquiry concerning whether the risk of injury was obvious to a hypothetical "person of average intelligence."
It would be obvious to a person of average intelligence that a swimming pool must have a bottom. See, e.g., Mallard v. Hoffinger Indus., 222 Mich. 137, 143 (1997). We have no doubt that an ordinarily intelligent adult in our society would be aware that the bottom of a swimming pool is a hard surface, liable to cause injury if one were to strike it with one's head. Moreover, the design and layout of the defendants' pool would have indicated to a person of average intelligence that the end into which the plaintiff dived was not intended for this activity: the diving board was affixed to the opposite end of the pool, making it apparent that the pool's deepest water was located at that end and that diving was intended to take place there. Finally, the plaintiff attempted his dive late in the evening, when there was little if any natural light, and the defendants' pool had no underwater lighting, such that its bottom was not visible to someone standing outside the water. The water into which the plaintiff dived, then, was of uncertain depth. A person of average
5. Conclusion. We conclude that, because the danger of diving into the shallow end of a swimming pool is open and obvious to a person of average intelligence, the defendants had no duty to warn the plaintiff of this danger as a matter of law and, therefore, they could not be found liable for his injuries. The defendants' motion for summary judgment was correctly allowed.
We are aware of other jurisdictions that have held that the open and obvious danger rule is superseded by the comparative negligence rule. See, e.g., Harrison v. Taylor, 115 Idaho 588, 590-593 (1989) (abolishing open and obvious danger rule, but holding that issue of comparative negligence may be decided as matter of law if reasonable minds could not differ); Northern Ind. Pub. Serv. Co. v. Stokes, 493 N.E.2d 175, 177 (Ind. 1986) (observing that open and obvious danger rule limited under Indiana law to products liability cases and thus not applicable in general negligence suit, but affirming denial of defendant's motion for directed verdict not on these grounds but because conflicting reasonable inferences could be drawn from evidence concerning whether danger was open and obvious). See also Koutoufaris v. Dick, 604 A.2d 390, 397 (Del. 1992); Parker v. Highland Park, Inc., 565 S.W.2d 512, 516-521 (Tex. 1978); Rockweit v. Senecal, 197 Wis.2d 409 (1995). For the reasons stated in this opinion, however, we decline to follow this contrary line of authority.