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Wednesday, December 17, 2014

NO GOOD DEED GOES UNPUNISHED, AGAIN.


Massachusetts Lawyer’s Weekly reported on the U.S. District Court case of Cohen v. Elephant Rock Beach Club Inc where a negligence suit was brought by a guest of a member of the Elephant Rock Beach Club. She swam 250’ out into the ocean and dove off a natural rock formation in the water within area owned by the Commonwealth of Massachusetts. As my mother would have warned me, she was injured when she jumped off the rock and smashed her foot on a submerged portion of the rock. It is indeed unfortunate that the Plaintiff was injured, and I wish her a speedy and complete recovery.

The Beach Club argued that it had no legal right to control the rock and therefore had no duty to warn people that swimming out to rock and jumping off the rock may be dangerous. The Court disagreed and reasoned that because the Club both encouraged and prohibited the use of the rock by guests by placing some ropes on floats near the rock and having the life guards whistle at swimmers to stay away from the rock in dangerous sea conditions.  The case will proceed to a jury.

So, this means that the Beach Club should have either (a) hired life guards to blow whistles all day long and yell at anybody who looked like they may swim out to the rock or (b) sought an Order of Conditions for permission to post a half dozen signs telling everyone to stay off the rock and then instructed the lifeguards to ignore those who swam out to the rock. They had already posted signs stating that use of the rock was at one’s own risk. May I recommend changing their name to “Stay Off the Elephant Rock Beach Club”?
Paul F. Alphen, Esquire
Alphen & Santos, P.C.

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