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Greenslade v. Mohawk Park11/10/2003
Franklin.
March 18, 2003
Negligence, Duty to warn, Invited person, Open and obvious danger.
After Arthur Greenslade sustained serious injuries as the result of falling from a rope swing, he commenced an action in Superior Court against Mohawk Park, Inc., the owner of a seasonal campground where Greenslade was camping when he was injured. The rope swing was attached to the limb of a tree on land owned by Joanne and Larry Lemek, located on the river bank opposite Mohawk Park's property. Greenslade appeals the summary judgment in favor of Mohawk Park. We affirm.
1. Background.
These undisputed facts emerge from the summary judgment materials. On land owned by Mohawk Park, which is situated between Route 2 and the banks of the Deerfield River in Charlemont, is a campground, restaurant, and bar. Although bordering the river, the campground has no beach area and no lifeguards.
Greenslade and his companion, Christina Morton, arrived at the Mohawk Park campground on August 29, 1996, the beginning of the Labor Day holiday weekend, and were assigned a campsite located just off the river bank. At that location, according to Greenslade, the Deerfield River was approximately fifty feet wide. On the river bank opposite the Mohawk Park campground was a formation of cliffs and large rocks, either close to or on land owned by Joanne and Larry Lemek. Directly across from the site where Greenslade and Morton had pitched a tent, a rope swing hung from the limb of a tree on the Lemek property. The twenty-foot rope hung about five feet inland from a rock embankment. The embankment itself rose about five feet above the Deerfield River. At the rope's end was a knot the size of a softball. Individuals using the rope swing would grab onto the knot of the rope, jump while holding on and swinging away from the bank and out over the river, then release the rope to plunge into the water below.
Neither party knows the identity of the person who constructed or hung the rope swing. There is also nothing in the record indicating that Paul Fantucchio (who, with his wife Deborah Fantucchio, owned and operated Mohawk Park) or any employees of Mohawk Park had ever witnessed visitors to the campground using the rope swing at any time prior to Greenslade's fall on August 31, 1996. However, we agree with the motion judge that prior to the date of Greenslade's accident, the facts -- including the proximity of the rope swing to, and its visibility from, Mohawk Park's premises; and that on at least one occasion prior to the accident Deborah Fantucchio had warned campers who asked if they could use the rope swing that they could not and that it was dangerous -- support the reasonable inference that Mohawk Park was aware of the rope swing's existence and that its guests would use it on occasion.
On August 31, Greenslade, Morton and another couple (James and Andrea Molinari) used inner tubes to float on the Deerfield River. As they watched others across the river who were jumping from the cliffs or using the rope swing, Greenslade or James Molinari commented that " ne of these guys is going to break their neck." Greenslade said: "If I see one more of those idiots hit it, I'm going to give it a shot."
After the foursome returned to the campsite, Greenslade made his way across the river to use the rope swing. Greenslade climbed up an embankment onto the Lemeks' property, where he caught the rope swing. He grabbed onto the rope with both hands and, with the knot between his legs, swung out over the river, released his hold, and fell in a backwards flip headfirst into the water. Greenslade climbed back up onto the embankment and attempted a sec
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