Volenti Fit Injuria?

January 27, 2009 by admin.

Boston is apparently a dangerous city in the winter.

Walk around the city this time of year, and you’ll see signs on every other block that say something like: “Falling Ice! Use Caution!” As I wrote earlier this month, these signs are presumably posted in an effort to release landowners and others from liability.

Practically speaking, however, what is the reasonably cautious pedestrian supposed to do?

Not walk on that sidewalk?

Well, okay. I suppose a pedestrian could go out of his way to cross the street. But then what if the other side of the street has a sign just like it?

Of course, if the sign is right outside the building the pedestrian is going into, then there’s very little hope for the pedestrian…without looking silly, anyway. I suppose he or she could dash in to the building while holding his arms over his head.

Still, so long as the property owner him/her/self did not contribute to the dangerous situation, then the property owner would most likely not be held liable for any injury so long as s/he properly warned others. These prominent signs likely qualify.

But then there’s this situation:

Don’t go out this door! You might be impaled by a 3′ icicle. There is nothing we can do. Don’t even try. Abandon hope, ye who exit here.

It is hard to argue that this is not a sufficiently prominent warning; it’s right there at eye level as you try to walk out the door (assuming you’re not a child or “little person”).

The sign, however, outright tells people that the exit is not usable. Depending upon the actual level of danger, one can speculate how problematic this might be in the case of an emergency.

As many Bostonians are already aware, Boston was the site of the second-deadliest building fire in American history when a trendy nightclub – The Cocoanut Grove – burned in 1942.

As a subsequent investigation revealed, the place was a deathtrap waiting to happen. The decorations were extremely flammable and the exit doors swung inwardly (indeed, the Cocoanut Grove fire was the catalyst for strict fire codes that Massachusetts and other states subsequently enacted). Even more appalling, most of the exit doors were blocked or sealed shut (to prevent patrons from skipping out on their bill). Based on these and other facts, the owner of the nightclub, Barney Welansky (who knew of and authorized these dangers), was convicted on nineteen counts of manslaughter.

So how is this relevant?

In theory, if the exit door pictured above is truly dangerous, it may impute some duty upon the owner to remove the danger itself (i.e., by getting on the roof and manually removing the dangerous ice). After all, if some emergency were to arise, it is unfair to expect a reasonable person trying to escape that they should use a different exit. This is recognized in the English common law under the doctrine of “sciens non est volens” – which is Latin for “knowing is not volunteering.” A person knowing of the risk of something does not necessarily consent to it.

Case in point: successful tobacco lawsuits.

As I’ve been saying time and time again, the best time to hire a lawyer is before you need one. If you have any questions about your potential liability as a property owner – or if you’ve been injured and it was somebody else’s fault – consider contacting an attorney today.

- Joe Stanganelli, Esq.

  Beacon Hill Law

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