New England Legal Foundation
  • Home
  • About
    • Mission & History
    • Annual Reports
    • Board of Directors
    • State Advisory Councils >
      • Connecticut
      • Maine
      • Massachusetts
      • New Hampshire
      • Rhode Island
      • Vermont
    • Trustees
    • Members
    • Staff
    • Job & Internship Opportunities
  • News & Events
  • Docket
  • Briefs
  • Donate
  • Contact

Patricia Zackular v. Grant Wilber, Inc.

2/4/2004

 
Whether There Is a Duty to Warn of an Open and Obvious Danger
(Unpublished table decision.)

The plaintiff Zackular was severely injured when she executed a stunt on an inflated Velcro obstacle course.  During the stunt she dived headlong from the top of a five-foot high obstacle, trying to reach an opening in another obstacle approximately six feet away and appreciably below her.  The plaintiff sued the product manufacturer and product lessor on theories of negligence and breach of warranty, claiming breach of the duty to warn.  The trial court held that a person of ordinary perception and judgment should have realized the danger and the risk of serious harm. Since the danger was open and obvious, the court said, there was no duty to warn.  

In its brief NELF addressed two of the plaintiff’s arguments on appeal.  The first is the argument that the defendant’s provision of some warnings created a duty to warn of the hazards of diving.  NELF argued that if manufacturers are required to warn of obvious dangers as well as non-obvious ones, it will necessarily dilute the impact of all warnings.  The plaintiff’s second argument is that the obstacle course constituted a non-obvious danger because the surface had some elasticity.  NELF argued that the stunt was obviously dangerous regardless of the surface “give” because the plaintiff dived into it from a significant height.  The Appeals Court affirmed the decision below, placing particular emphasis on the arguments about the open and obvious nature of the hazard.

Comments are closed.

    The Docket

    To obtain a copy of any of NELF's briefs, contact us at info@nelfonline.org.

    Categories

    All
    1st Circuit Court Of Appeals
    2nd Circuit Court Of Appeals
    3rd Circuit Court Of Appeals
    Business Litigation Session
    CT
    CT Superior Court
    CT Supreme Court
    Employer Employee Relationships
    February 2018
    February 2019
    Government Regulation/Administration Of Justice
    MA
    MA Appeals Court
    MA Division Of Administrative Law Appeals
    March 2015
    MA Superior Court
    MA Supreme Judicial Court
    MA US District Court
    ME
    ME Supreme Judicial Court
    NH
    NH Supreme Court
    Property Rights
    RI
    RI Supreme Court
    SCOTUS
    United States Supreme Court
    US Court Of Appeals Federal Circuit
    US District Court ME
    VT
    VT Supreme Court

    RSS Feed

    Archives

    August 2020
    June 2020
    January 2020
    June 2019
    April 2019
    October 2018
    June 2018
    February 2018
    October 2017
    October 2016
    June 2016
    February 2016
    October 2015
    June 2015
    March 2015
    October 2014
    June 2014
    February 2014
    October 2013
    June 2013
    February 2013
    October 2012
    June 2012
    February 2012
    October 2011
    June 2011
    February 2011
    October 2010
    June 2010
    February 2010
    October 2009
    February 2009
    October 2008
    June 2008
    February 2008
    October 2007
    June 2007
    October 2006
    June 2006
    February 2006
    October 2005
    June 2005
    February 2005
    October 2004
    June 2004
    February 2004
    October 2003
    May 2003
    February 2003
    September 2002
    May 2002
    February 2002
    May 2001