O'Sullivan v. Shaw

431 Mass. 201 · Massachusetts Supreme Judicial Court · 2000

Facts

The plaintiff dived headfirst into the shallow end of the defendants' residential swimming pool at night, sustaining severe neck and back injuries. He had previously swum in the pool, knew its approximate shallow depth, and was aware of the risk of injury from hitting his head. The pool had no depth markers, but a diving board was located at the deep end.

Issue

Did the trial court err in granting summary judgment by ruling that the danger of diving into the shallow end of a swimming pool is an open and obvious danger, thereby negating the defendants' duty of care, and does the comparative negligence statute abolish the open and obvious danger rule?

Holding

The court affirmed the summary judgment, holding that the danger of diving into the shallow end of a swimming pool is open and obvious to a person of average intelligence. Therefore, the defendants owed no duty to warn the plaintiff, and the comparative negligence statute does not abolish the open and obvious danger rule.

Rule

A landowner's duty to protect lawful visitors against dangerous conditions on their property does not extend to dangers that would be obvious to persons of average intelligence. The open and obvious danger rule negates the existence of a duty of care and is distinct from the abolished defense of assumption of risk.

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Case brief last reviewed 2026-01-08. Prepared by CaseReader from the published opinion.