New trial granted in Mass. trampoline-pool caseBy DENISE LAVOIE , Associated Press
May. 15, 2013 7:48 PM ET
BOSTON (AP) — A man who sued his half brother and lost after he was paralyzed doing a flip from a trampoline into a 2-foot wading pool is entitled to a new trial, the highest court in Massachusetts ruled Wednesday.
Cleber Coleta Dos Santos, his wife and son lived in half of a two-family house in Framingham they rented from his half brother and sister-in-law, Jose and Maria Coleta, who lived in the other half of the home and placed the trampoline beside the pool in 2005. The jury ruled for the Coletas, finding that it was obvious that jumping from a trampoline into a shallow pool was dangerous.
On Wednesday, the Supreme Judicial Court set aside the verdict and ordered a new trial, finding that the judge gave improper jury instructions.
The court said the judge made a mistake when he instructed the jury to stop deliberating if it concluded that the danger of jumping from the trampoline into the pool was "open and obvious." The court said the judge should have also instructed the jury that a property owner is not relieved from correcting such dangers in cases where they can or should anticipate that the dangerous condition will cause physical harm.
The court ruled that homeowner Jose Coleta disregarded warnings printed on the side of the pool against jumping or diving into the pool.
"A landowner has a duty to remedy an open and obvious danger, where he has created and maintained that danger with the knowledge that lawful entrants would (and did) choose to encounter it despite the obvious risk," Justice Robert Cordy wrote for the court in the unanimous ruling.
The Coletas lived in the other half of the house until they moved to South Carolina on July 31, 2005.
Two days later, Dos Santos, who had never used the trampoline before, decided to play with his son on the trampoline while his wife recorded a video to send to their extended family in Brazil.
Dos Santos testified that he decided to entertain his son by flipping into the pool.
In a portion of the video shown to the jury, Dos Santos is seen attempting to do a front flip into the pool. But he under-rotated the flip, entered the water head first and struck his head on the bottom of the pool. As a result of the impact, he is permanently paralyzed from his upper chest down.
The court, summarizing the evidence during the trial, said the Coletas' son had received the 3-foot high trampoline as a birthday gift about six weeks earlier. Jose Coleta set up the trampoline adjacent to the inflatable vinyl swimming pool he had put in the backyard earlier that spring.
"He knew that setting up the trampoline next to the pool might be dangerous but thought it would be 'fun,'" Cordy wrote.
A lawyer for Jose and Maria Coleta declined to comment on the ruling. Lawyers for Dos Santos did not immediately return calls seeking comment.
"We think that this is a decision that is correct and will bring about safety changes that will benefit the public because landowners have a duty to eliminate unsafe conditions when they know or should anticipate that a person will come in contact with the unsafe condition," said Timothy Kelleher, an attorney with the Massachusetts Academy of Trial Attorneys who filed an amicus brief supporting Dos Santos' position.