Town Held Immune from Recklessness Claim Due to Plaintiffs’ Failure to Make Presentment Under Massachusetts Tort Claims Act: Herman v. Town of Needham, NOCV2009-00684 (Mass. Super. Ct., July 14, 2011)
PD&P recently obtained summary judgment for the Town of Needham in a personal injury action involving a child who fell from a statue she was climbing on the Town Common. In Herman v. Town of Needham, the plaintiff, then six years old, fractured her arm in a fall from a life-sized statue of adolescent children playing “ring around the rosie” known as the “Circle of Peace.” The plaintiff was climbing on the statue in the presence of her father while her family attended an annual outdoor arts festival held on the Common. The festival was comprised of performing and visual artists showcasing their various works and wares. The Town did not charge visitors an admission fee, nor did it collect money from festival sponsors or participants, although attendees could purchase artwork from the vendors. There was evidence the Town knew that children routinely climbed on the statue, but did nothing about it.
The plaintiff presented her claim to the Town as required by the Massachusetts Tort Claims Act (“MTCA”), providing significant details as to how the injury occurred and the various acts or omissions of Town employees that allegedly caused the accident. She claimed the Town negligently designed, maintained and/or placed the statue in a manner that invited children to climb upon it, without taking appropriate precautions to prevent such “hazardous” activity. In her presentment letter, the plaintiff specifically identified negligence as her legal theory of recovery. The Town denied the claim based on the so-called Recreational Use Statute, G.L. c. 21, § 17C, which protects a property owner from liability if such owner makes its property available to the public for recreational (and other) purposes free of charge, and the plaintiff suffers injury while engaged in recreational activity, absent proof of willful, wanton or reckless conduct. After initially bringing suit for negligence only, the plaintiff amended her Complaint to add a count for recklessness. At the close of discovery, the Town moved for summary judgment on the grounds that: 1) plaintiff’s negligence claim was barred by the Recreational Use Statute; 2) the Town’s alleged misconduct did not rise to the level of recklessness as a matter of law; and 3) plaintiff failed to present her recklessness claim in writing as required under G.L. c. 258, § 4. The Superior Court agreed with the Town on all scores and granted the motion.
The Superior Court’s holding that any negligence claim was barred under the Recreational Use Statute was unsurprising, as was its ruling that the Town’s alleged misconduct did not rise to the level of recklessness as a matter of law. But the Court’s decision regarding plaintiff’s failure to make adequate presentment of her recklessness claim was significant, since she admittedly provided substantial detail in her presentment letter regarding both how she was injured and what the Town did or failed to do to cause the accident. In opposition to summary judgment, the plaintiff argued the presentment requirement was satisfied because the Town was able to fully investigate its role in the fall before taking a position on whether to accept, reject or otherwise resolve the claim. The Court, however, agreed with the Town that, in order to satisfy the purposes behind the presentment requirement, the Town must be able to investigate not only the facts of the claim, but also the Town’s liability under the legal theory proposed. The Court held that, by presenting a claim for negligence only, the plaintiff did nothing more that present a claim for which the Town had no liability. A reasonably educated official reading this letter would not have realized that the plaintiff was accusing the Town of recklessness.
Plaintiffs often allege recklessness at the eleventh hour purely in an artful attempt to plead around a defense raised under the Recreational Use Statute. The Herman ruling provides a useful tool to municipal defendants in combating such last-minute maneuvers of form over substance. Presentment letters rarely contain adequate detail to place a municipality on notice of a claim for willful, wanton or reckless conduct; they ordinarily present claims of only negligence. According to Judge Thomas Connors (author of the Herman decision), such an omission will prove fatal to a claim asserted under the Recreational Use Statute.
Published in Developments in Municipal Law Winter 2012 Newsletter.