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.
