Elephant Rock Beach Club in the South Coast town of Westport is named after a nearby natural rock formation. Swimmers at this private club are drawn to Elephant Rock every summer like seagulls to beach picnics. The rock’s attractiveness to swimmers was recently the focal point of a noteworthy personal injury lawsuit.
The club exclusively controls the rock’s namesake beach under a lease from a local nonprofit. Beach access is limited to dues-paying club members and their paid guests. Elephant Rock itself is about 250 feet offshore, beyond the club’s leasehold. The commonwealth of Massachusetts owns the rock. Depending on the tide, the top of the rock is eight to twelve feet above the water. With a running jump, one can leap from the top into the water without striking a submerged outcropping. The easiest access is from the club, but boaters can travel to the rock without using the beach.
The club has no legal right to restrict access to the rock, but it deploys a flag system to discourage aspiring jumpers during inclement weather. A green flag signals favorable conditions, a yellow flag means caution, and a black flag warns of unsafe wind and surf. When the black flag flies, the club posts signage stating that the rock is closed, and the club’s lifeguards whistle swimmers away from the rock. Other club signs warn that swimmers use the rock at their own risk and try to restrict children’s access.
In July 2009, Andrea Paige Carter Cohen of New York City visited the club as a member’s guest. The green flag fluttered in the breeze. Six lifeguards were on duty. Conditions seemed ideal. Watching swimmers merrily leaping from the rock, Cohen tried it herself. Her foot struck the submerged outcropping, causing a compound fracture to her leg. Cohen filed suit against the club in Massachusetts federal court in June 2012, just before the three-year statute of limitations expired. She claimed that the club failed to maintain the rock in reasonably safe condition and neglected to warn her of the rock’s dangers. The federal court had diversity jurisdiction of Cohen’s case because she was a New York resident.
The club filed a motion for summary judgment with the court, arguing that even if Cohen’s factual allegations were true, the club was not legally responsible for her injury. The club maintained that it had no duty to protect Cohen from injury on a rock beyond club property, and that dangers inherent in leaping from the rock were “open and obvious” so the club had no duty to warn her of the risks. Finally, the club invoked the Massachusetts recreational use statute (Massachusetts General Laws chapter 21, Section 17C), which bars recreational users from suing landowners for ordinary negligence on land open to the public.
The federal court ruled against the club last December. The court held that landowners can be responsible for injury on properties controlled by them, even if they do not actually own the properties. The court cited facts supporting Cohen’s argument that the club exercised sufficient control over the rock to render the club liable for Cohen’s injuries. The court also ruled that a jury, not a judge, should decide whether the dangers at the rock were “open and obvious” enough to relieve the club of a duty to warn Cohen. The court rejected the club’s reliance on the recreational use statute, because the statute only protects landowners from recreational uses on their own property, not neighboring properties like Elephant Rock, and because the club is open only to paying members and guests, not the general public.
Having lost its motion for summary judgment, and reluctant to risk trial before a jury (where most jurors probably will not be private beach club members), the club pursued settlement discussions. Cohen settled for an undisclosed amount, and she dismissed her case against the club last month.
When swimmers gather at Elephant Rock this summer, it will be interesting to learn whether the club upgrades its safety measures and warnings, or perhaps instead relinquishes all control over the rock in an effort to reduce the club’s exposure for future injuries there. Either way, it is unlikely that Cohen will be invited back to Elephant Rock Beach Club.
