Massachusetts Appeals Court Holds Town Immune for Child Struck by Baseball


Massachusetts Appeals Court Holds Town Immune for Child Struck by Baseball: Moore v. Town of Billerica, 83 Mass. App. Ct. 729 (2013).

PD&P succeeded on appeal from a denial of summary judgment when the Massachusetts Appeals Court reversed and ordered that summary judgment should enter in favor of the firm’s client, the Town of Billerica. The outcome of the case bolsters the strength of municipal immunity under the Massachusetts Tort Claims Act, G.L. c. 258, §§ 1, et seq., and confirms the protection afforded to landowners who allow the public to use their property for recreational purposes free of charge.

The case arises from an accident involving a four-year-old girl who was picking flowers in a public playground when she was struck in the head by a baseball hit by a teenager playing “home run derby” at an adjacent little league field. The Town had strung netting between telephone poles along the right field fence abutting the playground in an effort to prevent baseballs from entering the area. The netting, however, did not extend far enough to the right to safeguard a part of the playground that contained a stage and picnic area. Both the little league field and playground were owned by the Town and made available for use by the public free of charge. While the minor plaintiff and a playmate were picking flowers in the playground picnic area, a group of teen-aged boys were playing baseball at the field, without a permit or prior notice to the Town and in violation of posted signage which stated that the field was for “use by permit only” and for children “12 years and under.” One of the boys, aged 16, hit a home run over the right field fence that struck the child in the head after travelling a distance of over 150 feet. The child, as a result, suffered a brain injury that caused temporary right side paralysis and required extensive therapy. She still suffers a residual partial loss of use of her right hand and right foot.

The Town moved unsuccessfully for summary judgment, then filed an appeal, on the grounds that: (1) it was immune under G.L. c. 258, §10(j); (2) its decision not to erect more extensive netting around the ball field was protected as a discretionary function under G.L. c. 258, § 10(b); and (3) the Recreational Use Statute, G.L. c. 21, § 17C, precluded liability (absent willful, wanton or reckless conduct) because, at the time of her accident, the minor plaintiff was recreating on land open for use by the public free of charge.

Under the doctrine of present execution, the Appeals Court reversed the denial of summary judgment below, ruling that Section 10(j), as interpreted in Brum v. Town of Dartmouth, 428 Mass. 684 (1999), and Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 489 (2002), applied to protect the Town from suit and liability. Plaintiff’s claim was based on the Town’s alleged failure to protect her from the harmful consequences (i.e., a serious head injury) of a condition or situation (i.e., the “home run derby.”) Further, such harmful condition or situation was not “originally caused” by the Town’s alleged failure to erect more extensive netting or to warn playground visitors of the risk of errant baseballs. In reaching its decision, the Court reasoned:

There is potentially an infinite list of possible preventative actions that public employees could have taken in any situation. It is almost impossible to imagine an injury that could not have been prevented, so the failure to undertake such actions cannot be the basis of defeating the town’s immunity under § 10(j).

The Appeals Court rejected plaintiff’s argument that the failure to erect more netting constituted “negligent maintenance” of public property, an exception to immunity under Section 10(j)(3). Instead, the Court recognized that “maintenance” refers only to a facility or equipment that “has already been constructed.” “The maintenance of a playground envisions the general upkeep of the playground’s equipment and grounds, not preventing all risks of danger to its visitors.” 83 Mass. App. Ct. at 733.

Having found in the Town’s favor under Section 10(j), the Court declined to decide whether Section 10(b) also afforded immunity protection based on the Town’s discretionary decisions. Nonetheless, the Court exercised its discretion to interpret and apply the so-called Recreational Use Statute, G.L. c. 21, § 17C. It was undisputed that plaintiff was using land open to the public for recreational purposes without paying a fee. Therefore, the Town was entitled to statutory protection. Plaintiff argued, however, that because a question of fact remained as to whether the Town’s conduct was willful, wanton or reckless, summary judgment should be denied on this ground. But the Court (once again) agreed with the Town. “[A]s a matter of law, the town’s actions (or inactions) regarding the playground were not willful, wanton, or reckless. Therefore, the town enjoys immunity from liability under the recreational use statute.” The Court concluded that “the failure to extend the netting, erect a barrier, or post warning signs by the stage area does not rise to reckless conduct,” nor was the risk of grave bodily injury “known or reasonably apparent” to the Town.

For several reasons, the Moore decision should prove valuable in defending future negligence actions brought against municipalities. First, if the harmful “condition or situation” is viewed as the close proximity of the little league field to the playground, Moore represents a rather unique occasion in which the “condition or situation” was actually owned by, and under the control of, the municipality. Still, the Court ruled that the harmful consequences of such condition or situation were not “originally caused” by the municipality for purposes of applying the exception to Section 10(j) immunity. Second, by interpreting the term “maintenance” to mean the “general upkeep” of a facility or equipment already constructed, the Court effectively prevents plaintiffs from invoking the exception in Section 10(j)(3) to cases involving the layout, planning, construction or installation of a new (or better) facility. The Section 10(j)(3) exception applies only to the “upkeep” of existing facilities – i.e., the routine repair and preservation of places and things to address daily wear-and-tear.

The Court’s strong language also undercuts other recent decisions reported by PD&P that may have been read to narrow the scope of immunity protection afforded under Section 10(j). See, e.g., Devlin v. Commonwealth, 83 Mass. App. Ct. 530, 535-36 (2013) (affirmative decision by state hospital officials to allow convicted inmates to work in same area where civilly committed patients were housed held one of “original[ ] cause[s]” of assault upon plaintiff); Harrison v. Town of Mattapoisett, 78 Mass. App. Ct. 367, 371-72 (2010) (affirmative acts of police officers in continuing high-speed pursuit materially contributed to creation of specific condition or situation that resulted in harm to plaintiff struck by fleeing driver); Gennari v. Reading Pub. Schools, 77 Mass. App. Ct. 762, 765 (2010) (Section 10(j) held inapplicable to student injured in courtyard selected as recess site by school principal). Similarly, the protections of the Recreational Use Statute have been reinforced by the Moore decision.

Published in Developments in Municipal Law Fall 2013 Newsletter.