Facts: Marcus participated in a softball league organized by “Coed Jewish
Sports”. Coed Jewish Sports made a payment of $1,200 to the city’s parks and
recreation department to secure the league a permit. Marcus never knew or participated
in the permit application process. While participating in a league game, Marcus
was sitting in a grassy area shaded by several nearby trees, which stood on
adjacent property owned by Temple Shalom. Marcus was hit by the falling trees
in the back. He suffered two fractured vertebrae, shattered right and left
shoulder blades and various other injuries.
Procedural History: Marcus filed his complaint in the Superior Court against the city
and the other defendants, alleging that the city had a duty to maintain McGrath
Field in a careful, safe, and prudent manner; it was negligent in poorly
maintaining the property and, specifically, allowing the allegedly rotten tree
and its branches to overhang its property without proper maintenance; and as a
result of the city's negligence, he suffered serious physical injuries. The
city filed its motion for summary judgment. The Superior Court denied the city's
motion. The city appealed.
Issues: Whether or not the city is entitled to an immediate review of the order
denying its motion for summary judgment pursuant to the present execution rule,
and whether or not recreational use statute immunize the city from liability
for ordinary negligence.
Holdings: The Supreme Judicial Court held that (1) city was not entitled to an
interlocutory appeal from the denial of its motion for summary judgment, and
(2) if the fee that the softball league paid to the city was for use of the field, the player
was not participating in a recreational use of the city’s property free of
charge, as required for city to have immunity from liability under recreational
use statute.
Rulings of Law: The city is not entitled to an interlocutory appeal from the
denial of its motion for summary judgment under the doctrine of present
execution. The recreational use statute (M.G.L. Ch.21, Section 17C) provides
that a landowner making land open to the public for recreational uses free of
charge “shall not be liable for personal injuries or property damage sustained
by such members of the public unless there is willful, wanton, or reckless
conduct”. Even if a landowner can claim the full scope of immunity available
under the statute, that landowner will still be liable for “willful, wanton, or
reckless conduct,” and thus is not immune from suit.
Section 17 C does not provide
an exemption from liability for ordinary negligence if the landlord imposes a
charge or fee for a particular use of recreational land, but the user does not
personally or directly pay the charge to the landowner. In the present case,
the fact that Marcus did not pay directly to the city its permit fee to reserve
McGrath Field is not material. What matters is that the city imposed this fee or
charge for the exclusive use of the field during the reserved blocks of time;
Coed Jewish Sports paid the fee on behalf of its league players, including
Marcus; and he was injured while playing a game on the field during one of the
reserved blocks of time. In the circumstances, Marcus was not participating in
a recreational use of the city's property free of charge.
When a landowner imposes a
charge intended solely to reimburse it for marginal costs directly attributable
to a specific user's recreational use of the property, the landowner remains
exempt from ordinary negligence claims under Section 17C. On the record before
us, there is no evidence in the summary judgment record to support the
conclusion that the payment from Coed Jewish Sports was used to reimburse the
city for marginal costs that it would not have incurred but for the league's
particular use of McGrath Field during the summer of 2007. Consequently, summary
judgment was properly denied on the city's claim that it was exempt from
negligence liability as a matter of law.
Disposition: Dismissed. (EC)
