Murray v. Town of Hudson

472 Mass. 376

34 N.E.3d 728

John W. MURRAY

v.TOWN OF HUDSON & others.¹

SJC–11816.

Supreme Judicial Court of Massachusetts, Worcester.

Submitted April 9, 2015.

Decided Aug. 3, 2015.

Brian W. Murray, Milford, for the plaintiff.

John J. Davis, Boston, for town of Hudson.

Charlotte E. Glinka, Taunton, Thomas R. Murphy, Salem, Elizabeth S. Dillon, & John A. Finbury, Haverhill, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

GANTS, C.J.

During a varsity baseball game between two high school teams at a public park in the town of Hudson (town), the plaintiff, a ballplayer with the visiting team, seriously injured his knee while warming up in the bullpen. The plaintiff filed suit in the Superior Court against the town under the Massachusetts Tort Claims Act, G.L. c. 258 (act), alleging that his injury was caused by the town's negligence and its wanton and reckless conduct in allowing the visiting team to use a dangerous bullpen. The judge allowed the town's motion for summary judgment, concluding that the evidence did not support a finding of wanton or reckless conduct, and that the plaintiff's negligence claim was barred by the recreational use statute, G.L. c. 21, § 17C, where the injury occurred on a baseball field owned by the town that it allowed the public to use without a fee, and where the town had no “special relationship” with the plaintiff because he was a student from a visiting high school rather than the town's own high school. We conclude that the town could be found liable for negligence despite the recreational use statute because, where a town's school invites another town's school to play an athletic match on a town field, the town owes the visiting student-athletes the same duty to provide a reasonably safe playing field that it owes to its own students. We also conclude that there was no failure of presentment under § 4 of the act, and that it cannot be determined until trial whether liability is barred by the discretionary function exemption in § 10(b ) of the act. We therefore reverse the allowance of the motion for summary judgment and remand the case to

the Superior Court for trial.²

Background. We recite the undisputed facts in the summary judgment record. Hudson High School (Hudson) hosted a varsity baseball game against Milford High School (Milford) on the night of May 15, 2010.³ The game was played at Riverside Park, a public park in the town maintained by the town's department of public works.⁴ The plaintiff, a member of the visiting Milford team, alleges as follows:

“During the game, [the plaintiff] was asked by his coach to warm up as a pitcher and he went to a designated ‘bullpen’ area located behind the third base dugout. The ‘bullpen’ area consisted of a[n] ... area with wooden landscape timbers or berms enclosing the pitching rubber approximately [eighty-four] inches apart. During the course of his warm-ups, [the plaintiff]'s left foot on the follow through of a pitch struck the wooden landscape timber or berm located to his right. The uneven landing resulted in a twisting of [the plaintiff]'s left knee and caused him to fall to the ground and experience immediate pain. [The plaintiff] was caused to suffer a badly torn meniscus in his left knee which required two (2) surgical procedures as well as other medical and physical therapy treatments to repair and heal.”⁵

The bullpen was designed and constructed by a former town employee, and was maintained by the town and by student athletes.

As required under § 4 of the act, the plaintiff sent a letter to the town board of selectmen on December 10, 2010, reciting the above-quoted allegations, notifying them that he was asserting a claim against the town, and making demand of $100,000 for his “injuries, pain and suffering and medical expenses.” The letter

alleged that the town had “engaged in willful, wanton or reckless conduct,” and had committed a breach of its “duty of reasonable care to visiting high school baseball players and was negligent in allowing them to utilize the ... bullpen area.” The letter further alleged that the “bullpen area” was “inherently dangerous” in three ways:

“First, the width of approximately [eighty-four] inches between the wooden timbers that enclose the pitching mound is much too narrow an area, particularly when compared to the field's actual pitching mound which is approximately 140 inches across in the landing area and 203 inches in diameter at the pitching rubber.

“Secondly, the use of wooden timbers at all in this type of athletic setting, i.e. a pitching mound, is extremely dangerous. It invites exactly the kind of injury which occurred in this instance by creating an uneven landing spot for pitchers.

“Third, the area itself is poorly lit. As stated, [the plaintiff] was injured during a night game. The poor lighting prevented him from viewing clearly, competently and thoroughly the condition of the warm up mound, particularly the type, size and locations of the wooden berms.”

After the town's insurer denied the plaintiff's claim, the plaintiff brought this action, claiming that the town had committed a breach of its “duty of reasonable care” and “engaged in willful, wanton and reckless conduct” by “allowing a ‘bullpen’ area to be accessed by [the plaintiff] that was poorly constructed, maintained and illuminated, all without any posted warnings.” After the town's motion for summary judgment was allowed by the judge, the plaintiff appealed, and we transferred the case to this court on our own motion.

Discussion. 1. Recreational use statute. Murray challenges the judge's ruling that the recreational use statute bars his negligence claim against the town.

The recreational use statute, G.L. c. 21, § 17C, was enacted in 1972 “to encourage landowners to permit broad, public, free use of land for recreational purposes by limiting their obligations to lawful visitors under the common law.” Ali v. Boston, 441 Mass. 233, 238, 804 N.E.2d 927 (2004). General Laws c. 21, § 17C (a ), provides, in relevant part:

“Any person having an interest in land including the structures, buildings, and equipment attached to the land ... who lawfully permits the public to use such land for recreational ... purposes without imposing a charge or fee therefor ... shall not be liable for personal injuries ... sustained by such members of the public, including without limitation a minor, while on said land in the absence of wilful, wanton, or reckless conduct by such person.”

The statute makes recreational users a “discrete subgroup of lawful visitors owed only the standard of care applicable to trespassers: that is, landowners must refrain from wilful, wanton, or reckless conduct as to their safety.” Ali, supra at 237, 804 N.E.2d 927. Because landowners do not owe recreational users the reasonable duty of care owed to other lawful visitors, they may not be found liable to them for ordinary negligence. See id. Government landowners that provide free access to their land for public use are protected from liability by G.L. c. 21, § 17C, to the same extent as private landowners. See G.L. c. 21, § 17C (b ) (including “any governmental body, agency or instrumentality” within meaning of term “person”).⁶ The town is thus a proper party to invoke the recreational use statute.

The original legislative purpose of the recreational use statute was to encourage landowners to give the public free access to their land for recreational purposes by protecting them from negligence claims if a member of the public were to be injured on the land.⁷ It was not intended to diminish the duty of care that a

school owes its students to provide reasonably safe school premises for school-related activities, including interscholastic sports. “Personal injury from defective premises ... is not a risk that schoolchildren should, as matter of public policy, be required to run in return for the benefit of a public education.” Whitney v. Worcester, 373 Mass. 208, 223, 366 N.E.2d 1210 (1977). See Alter v. Newton, 35 Mass.App.Ct. 142, 145, 617 N.E.2d 656 (1993) (“Because of the relationship between a school and its students, the city had a duty of care to the plaintiff to provide her with reasonably safe school premises”).⁸ Therefore, the recreational use statute does not alter the standard of care that a school owes its own students arising from its special relationship with its students, and would not protect the town from liability for negligence claims brought against it by students enrolled in its own public schools for injuries sustained while the students were engaged in school-related activities. See id. at 149, 617 N.E.2d 656, quoting Bauer v. Minidoka Sch. Dist. No. 331, 116 Idaho 586, 588–589, 778 P.2d 336 (1989) (“ ‘if the recreational use statute were applied to injuries children suffered while on school premises as students,’ the special relationship of the school to its students would be substantially impaired”).⁹ Cf. Wilkins v. Haverhill, 468 Mass. 86, 91 n. 9 (2014), quoting Ali, 441 Mass. at 236, 804 N.E.2d 927 (because

municipalities need no “encouragement to open their schools for parent-teacher conferences,” applying recreational use statute to parent's slip and fall on ice in school walkway on parent-teacher night “would upend the balance that the Legislature intended to strike ‘between encouraging public access to private land and protecting landowners from liability for injuries' ”).

If the baseball game between the Hudson and Milford teams had been played on a field on the Hudson grounds, it would be plain that the town owed a duty to its students to maintain the field in a reasonably safe condition. That duty remains where, as here, Hudson chooses to play its home interscholastic baseball games in a town park off the high school grounds.

The town does not dispute that, if a Hudson pitcher had been injured warming up in the home team...