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Greenslade v. Mohawk Park11/10/2003
erson of average intelligence would consider to be dangerous.
Similarly, we need not answer a further question raised by Greenslade, whether Mohawk Park incurred liability because it exercised a level of control over the instrumentality, the rope swing, which caused Greenslade's injury . See, e.g., O'Brien v. Peterson, 329 Mass. 427, 429-430 (1952) (defendant held liable for injury resulting from plaintiff's fall into hole, not on defendant's property, near grill, also not on defendant's property, held out as available for use and enjoyment of defendant's guests). This is an issue we think is distinct from, although related to, premises liability. There are, however, no facts present in the record (such as where a defendant constructs a rope swing, or advertises a rope swing as an amenity available to campers and promotes its use in a manner that suggests that rope swinging is safe) that would, if proved, tend to establish any use or control of the rope swing by Mohawk Park sufficient to impose liability. Compare Blythe v. Williams, 356 So. 2d 334 (Fla. Dist. Ct. App. 1978) (plaintiff injured diving into "swimming hole" from cable swing located on campgrounds which had allegedly constructed swing; summary judgment for campground, on ground that risk was open and obvious, reversed where factual issues existed as to whether campground was negligent in providing cable swing at swimming hole extending over area of shallow water, or in failing to provide warnings as to its use); Jackson v. TLC Assocs., Inc., 185 Ill. 2d 418, 426-427 (1998) (plaintiff injured when his head hit submerged pipe after diving from shoreline into water of man-made lake; summary judgment for defendants, on ground that diving into murky water of uncertain depth posed risk that was open and obvious, reversed where lake was designed, intended and used solely for recreational swimming, and where injury stemmed from presence of submerged pipe placed in water by defendants, who periodically changed its location; when defendants opened lake to public and charged fee for admission, patrons had right to assume existence of appropriate safety measures). See Bier v. Leanna Lakeside Property Assn., 305 Ill. App. 3d 45, 53, 61 (1999) (summary judgment should not have entered on claim under safety statute establishing and enforcing minimum safety standards for public bathing beaches, where plaintiffs alleged that defendants, shareholders of private lake, had erected and maintained ladder and rope swing connected to tree at its beach adjacent to lake; however, summary judgment properly entered for defendants on claim of common law duty to warn plaintiff where risk of injury from rope swung is open and obvious).
We conclude that there was no error in applying the open and obvious danger rule to the circumstances of this case and that, under familiar principles set forth in Community Natl. Bank v. Dawes, 369 Mass. 550, 553-554 (1976), summary judgment for the defendant was appropriately entered.
Judgment affirmed.
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