Bertocci v. Indoor Sports Management, Inc.
| Decision Date | 31 October 2001 |
| Docket Number | 002399 |
| Citation | 2001 MBAR 291 |
| Parties | Debra M. Bertocci v. Indoor Sports Management, Inc.1 et al.2 |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 14 Mass. L. Rptr. 12
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): AGNES
The plaintiff, Debra M. Bertocci (hereinafter "Plaintiff"), brought suit against Indoor Sports Management, Inc. as General Partner of Acton Indoor Sports Limited Partnership, Acton Indoor Sports Limited Partnership and Kevin Hull (hereinafter "Defendants") alleging that their negligent operation of a batting cage facility resulted in serious injury to the Plaintiff. Specifically the Plaintiff alleges that the Defendants failed to provide safety equipment and instructions or warn the Plaintiff of the dangers associated with the activities on the premises. The Plaintiff alleges that this failure to provide safety equipment and warn the Plaintiff of hazards on the premises caused her to enter the batting cage where her son was practicing baseball where she was struck in the face by his bat. For the reasons set forth herein, the Defendants' motion for summary judgment is ALLOWED in part and DENIED in part.
The materials submitted on the motion for summary judgment are as follows.3 The Plaintiff is the mother of Adam Piantedosi who, at the time of the Plaintiff's injury on May 23, 1997, was ten years old. Adam played Little League baseball on a Triple A team during the Spring of 1997. This was the first season Adam participated in organized baseball. To the best of her knowledge, the Plaintiff attended all of Adam's Little League baseball games during the Spring of 1997 prior to her injury.
On May 23, 1997, the Plaintiff and Adam arranged to meet Adam's teammate, Brett Carpenter, and Brett's mother Jan Carpenter, at the Acton Indoor Sports facility in Acton, Massachusetts in order for the boys to participate in batting practice. Brett and Jan arrived first and were already inside the facility when the Plaintiff and Adam arrived. The group was greeted by an employee of the Defendants and escorted to a batting cage within the facility. The batting cage is rectangular in shape and the sides are made of metal chain link fence. The only entrance to the batting cage is a door located at the "batting end" of the batting cage.
When they reached the batting cages, the Plaintiff realized that Adam had forgotten his baseball bat in the car. The Plaintiff left to retrieve the bat and returned to the batting cage a few minutes later. Upon her return, the Plaintiff found Adam standing at the batting end of the batting cage while the rest of the group stood at the opposite end near the pitching machine. The Plaintiff stepped inside the door to the batting cage and handed the baseball bat to Adam. The Plaintiff then stepped out and watched her son stand near the home plate inside the batting cage. Several balls were pitched towards Adam to "set up" the pitching machine. The Defendants concede, for summary judgment purposes only, that they provided no written warnings around the batting cage concerning its safe use. Furthermore, the Defendants concede, for purposes of this motion, that they did not provide verbal warnings or protective batting helmets to any member of the group.
The machine stopped after pitching eight to twelve balls in Adam's direction. At that time, the Plaintiff overheard the Defendants' employee tell Jan Carpenter that Adam and Brett could share a single batting cage. At that point, the Plaintiff entered the batting cage where Adam was standing without alerting him that she was entering.4 The Plaintiff stepped into the batting cage just as Adam took a practice swing and inadvertently struck the Plaintiff in the right cheek with the bat. The Plaintiff suffered a fractured cheekbone in three places and a cut which required several months of followup care. She also has a visible scar below her right eye.
1. Summary Judgment Standard
The court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Corrections, 390 Mass 419, 422 (1983); Community Nat'l. Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). "Summary judgment is a 'device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved.' " Cassesso, 390 Mass. at 422 (1983) (citations omitted). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Once this is satisfied, the burden shifts to the party opposing summary judgment to allege specific facts establishing the existence of a genuine issue or issues of material fact. Id. In assessing whether each party has met its burden, the court is not permitted to weigh the evidence, to determine the credibility of any witnesses or make any findings of fact. Kelly v. Rossi, 395 Mass. 659, 663 (1985). Moreover, "[t]he evidence is 'considered with an indulgence in the [opposing party's] favor.' " Anthony's Pier Four v. Crandall Dry Dock Eng'g, Inc., 396 Mass. 818, 822 (1986), quoting National Ass'n of Gov't Employees v. Central Broad. Corp., 379 Mass. 220, 231 (1979), cert. denied, 446 U.S. 935 (1980). However, "[a] complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In determining whether there are genuine issues of material fact, the court may consider the pleadings, depositions, answers to interrogatories, admissions on file and affidavits. Community Nat'l Bank, 369 Mass. at 553; Mass.R.Civ.P. 56(c). The party opposing summary judgment cannot defeat the motion simply by resting on the pleadings and mere assertions that there are disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). If the moving party does not bear the burden of proof at trial, it may demonstrate the absence of a genuine issue of material fact by submitting evidence that negates an essential element of the other party's claim, or by showing that the other party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).
"Summary judgment is seldom sought or granted in negligence actions." Manning v. Nobile, 411 Mass. 382, 388 (1991), quoting Inferrera v. Sudbury, 31 Mass.App.Ct. 96, 103 (1991). This is because negligence claims so often involve disputed questions of fact. Roderick v. Brandy Hill Co., 36 Mass.App.Ct. 948, 949 (1994), citing Mullins v. Pine Manor Coll., 389 Mass. 47, 65 (1983); Solimene v. B. Gravel & Co., KG, 399 Mass. 790, 794 (1987). However, even in negligence actions, summary judgment is appropriate if no rational view of the evidence permits a finding of negligence. Roderick, 36 Mass.App.Ct. at 949, discussing Mullins, 389 Mass. at 56.
2. The danger of entering an occupied
batting cage is open and obvious.
The Plaintiff contends that the Defendants had a duty to provide her with warnings and instructions on the safe use of batting cages by parents and their children. The existence of a duty of care is a question of law properly decided by the court. Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989). Bergendahl v. Massachusetts Elec. Co., 45 Mass.App.Ct. 715, 724 (1998). Generally, an owner or possessor of land owes a "duty of reasonable care to all persons lawfully on the premises." O'Sullivan v. Shaw, 431 Mass. 201, 204 (2000); Davis v. Westwood Group, 410 Mass. 706, 716 (1991). "This duty includes an obligation to 'maintain[] his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.' " Id., quoting Mounsey v. Ellard, 363 Mass. 693, 708 (1973). A landowner's duty of reasonable care also includes a duty to warn lawful visitors of hazards which he knows or should know exist on the premises. Id., citing Davis, 410 Mass. at 716. However, a landowner generally owes lawful visitors no duty to warn of "dangers that would be obvious to persons of average intelligence." Id., and cases cited. Restatement (Second) of Torts 343A(1) (1979); J.R. Nolan & L.J. Sartorio, Tort Law 336, at 89-90 (2d ed. 1989). Whether a risk of harm is open and obvious requires objective analysis of what would be obvious to a person of average intelligence without reference to "dangers subjectively 'known' to the plaintiff." Id. at 210 n.3. See also LeBlanc v. Atlantic Bldg. & Supply Co., 323 Mass. 702, 705 (1949).
In this case, the Plaintiff sustained her injury when she entered a batting cage without alerting the batter and was struck by the bat as he took a practice swing. Whether or not the sport of baseball remains our national pass time, a person of average intelligence understands, at the very least, that baseball involves a batter swinging at a ball with a bat when the ball is thrown in his direction. One need understand no more about baseball than this to appreciate the fact that certain dangers inhere to both baseball spectators and participants.5 In any case, whether in the context of a live game or batting practice in a batting cage, the dangers created by the swinging of bats and hurling baseballs are readily apparent. See Thorson v. Mandell, 402 Mass 744, 748 (1989) (...
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