Forbush v. City of Lynn

• Decision Date: 04 January 1994
• Docket Number: No. 92-P-739,92-P-739
• Citation: 35 Mass.App.Ct. 696,625 N.E.2d 1370
• Parties: Thomas FORBUSH 1 & another 2 v. CITY OF LYNN.
• Court: Appeals Court of Massachusetts

Page 1370

625 N.E.2d 1370

35 Mass.App.Ct. 696

Thomas FORBUSH ¹ & another ² v. CITY OF LYNN.

No. 92-P-739.

Appeals Court of Massachusetts,

Essex.

Argued May 14, 1993.

Decided Jan. 4, 1994.

Sharon D. Meyers, Salem, for plaintiffs.

George S. Markopoulos, Asst. City Solicitor, for defendant.

Before BROWN, KASS and LAURENCE, JJ.

LAURENCE, Justice.

Should a municipality be immune from tort liability to a child who was seriously injured while playing on a public playground as a result of the municipality's wilful, wanton or reckless conduct? A Superior Court judge construed our statutes to require an affirmative answer to this question and granted summary judgment to the defendant municipality. We disagree with that conclusion and reverse.

Seven year old Thomas Forbush was playing on a broken swing at the Keaney Playground, a facility owned and operated by the city of Lynn, on July 19, 1989. The playground was open to the public for recreational use without charge. While sliding down the broken swing chain, Thomas was impaled on a large hook at the end of the chain, which became embedded in his groin. His ten year old sister, Jennifer, responded to his screams as he dangled on the hook and helped him off the chain to medical assistance. In November, 1990, Thomas and Jennifer, by their mother and next friend, commenced suit against the city, after proper presentment. They alleged that the city's negligence in various respects relating to the operation of the playground had caused Thomas's physical injuries and both plaintiffs' emotional distress.

The city answered and, on March, 2, 1991, moved for summary judgment. The bases of the motion were the so-called recreational use statute, G.L. c. 21, § 17C, ³ and the Supreme Judicial Court's decision in Anderson v. Springfield, 406 Mass. 632, 549 N.E.2d 1127 (1990). Anderson had held that § 17C applied to municipalities and other governmental entities to the same extent as to private landowners. Id. at 634, 549 N.E.2d 1127. While acknowledging its responsibility for maintaining and operating the playground, the city nonetheless contended that it was entitled to summary judgment under § 17C because the plaintiffs had not alleged any wilful, wanton or reckless conduct (the § 17C liability standard) on the city's part.

Hurriedly filing a motion to amend their complaint to add such an allegation, the plaintiffs also opposed the city's motion with extracts from depositions of two city employees involved in operation of the playground. The depositions indicated that sometime in June, 1989, a playground "instructor" had, as part of his duties, inspected and assessed the condition of the playground. At that time the instructor had filed a report of his findings with his superiors in the appropriate city department charged with repairing or replacing damaged playground equipment. His report had specifically included, among other unsafe conditions, the defective swing on which Thomas subsequently was injured. No effort was thereafter undertaken by any city employee to repair or replace the swing or post any warning.

After hearing, the judge allowed the city's summary judgment motion, superscribing thereon the handwritten notation: "[I]t appearing that [G.L. c. 21, § 17C] applies and there can be no recovery for wilful, wanton and reckless conduct under [c.] 258." Implicit in the judge's determination appear to be (a) a ruling that the plaintiffs had sufficiently alleged, or could properly allege on the evidence presented, that the city acted wilfully, wantonly or recklessly with respect to the faulty swing ⁴ and (b) a legal conclusion that the city was nonetheless immune because its actions as alleged were the equivalent of an "intentional tort," for which there is no liability under the Massachusetts Tort Claims Act, G.L. c. 258, § 10(c ). ⁵ The plaintiffs appeal from the judge's implicit conclusion that a municipality's "wilful, wanton or reckless" conduct is excluded from liability under G.L. c. 258, § 10(c ).

We agree with the plaintiffs' contention that "reckless" conduct ⁶ should not be equated with the intentional torts which § 10(c ) exempts from the coverage of the Massachusetts Tort Claims Act. It is true that Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944), relied upon by the city, contains the frequently quoted observations that "[t]he essence of wanton or reckless conduct is intentional conduct" and "[w]anton or reckless conduct is the legal equivalent of intentional conduct." Id. at 399, 401, 55 N.E.2d 902. See, e.g., Tilton v. Franklin, 24 Mass.App.Ct. 110, 112, 506 N.E.2d 897 (1987). No Massachusetts appellate decision, however, has expressly declared that reckless tortious conduct causing harm to another constitutes, per se, an intentional tort falling within the § 10(c ) exclusion. ⁷

Such an equation would be inappropriate in this case for several reasons. First, we have been enjoined to read the intentional tort exception of the Massachusetts Tort Claims Act narrowly against public entities asserting it. See Doe v. Blandford, 402 Mass. 831, 837-838, 525 N.E.2d 403 (1988); Ortiz v. Hampden, 16 Mass.App.Ct. 138, 138-140, 449 N.E.2d 1227 (1983). This principle of restricting the scope of exclusions from the Act flows from the Legislature's original instruction that the provisions of the Act be "construed liberally." St.1978, c. 512, § 18. Liberal construction of the Act was mandated in order to achieve its overriding dual purposes: eradicating the logically indefensible doctrine of sovereign immunity and replacing it with a statutory mechanism that facilitated recovery by plaintiffs with valid causes of action against government tortfeasors. See Irwin v. Ware, 392 Mass. 745, 768-769, 467 N.E.2d 1292 (1984).

Revealed through the lens of liberal construction would be Massachusetts law's recognition of the difference between the intention to commit an act which involves a high degree of likelihood that substantial harm may result to another (reckless misconduct) and the intention to cause that harm (intentional misconduct). The Restatement of Torts has usefully delineated that distinction:

"Intentional misconduct and recklessness contrasted. Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results."

Restatement (Second) of Torts § 500 comment f (1964). See Commonwealth v. Welansky, 316 Mass. at 399, 55 N.E.2d 902; Sheehan v. Goriansky, 321 Mass. 200, 204, 72 N.E.2d 538 (1947). See also Restatement (Second) of Torts § 8A comment b; Prosser & Keeton, Torts § 8, at 36, & § 34, at 212 (5th ed.1984). ⁸

Most pertinently, the distinction between an "intentional tort" and "willful" wrongdoing is reflected in the Massachusetts Tort Claims Act itself. See G.L. c. 258, § 9. It is a discrimination that is consistent with legislative practice. In creating and modifying liabilities and immunities, the Legislature has been differentially precise in specifying when it wanted standards of liability to be based on "intentional" conduct, see G.L. c. 231, §§ 85S(c ), 85V, & 85W, rather than on "wilful, wanton or reckless" conduct, as in §§ 85K, 85R, & 85T; or on "gross negligence" (§§ 85V & 85W); or on "ordinary negligence" (§ 85L).

Under our principles of statutory interpretation, we must, therefore, be deferentially precise in according discrete, and not identical, meanings to the several standards in construing our statutes as a consistent, harmonious body of law. See Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514, 333 N.E.2d 450 (1976); Catlin v. Board of Registration of Architects, 414 Mass. 1, 4-5, 604 N.E.2d 1301 (1992); Healey v. Commissioner of Pub. Welfare, 414 Mass. 18, 24-25, 605 N.E.2d 279 (1993); Marco v. Green, 415 Mass. 732, 735-736, 615 N.E.2d 928 (1993). Such precise differentiation is particularly appropriate in order to implement the beneficial and remedial purposes intended by the Legislature in enacting c. 258. See Simon v. Solomon, 385 Mass. 91, 100, 431 N.E.2d 556 (1982); Dover v. Massachusetts Water Resources Authy., 414 Mass. 274, 278-280, 607 N.E.2d 1001 (1993). ⁹

The previously unexamined consequences of the judge's ruling dramatically highlight the unacceptability of treating reckless municipal conduct as falling within the intentional tort exclusion. It is paradoxical enough that the applicability of § 17C to public landowners creates an anomalous distinction between child users of public land--a municipality enjoys a substantially lesser degree of responsibility (refraining from reckless conduct) for the protection of a child lawfully playing on public recreational land which he has been affirmatively encouraged to use than it does for the protection of trespassing children who illegally invade "nonrecreational" property owned by the municipality, the essential characteristics of which land may be substantially similar if not identical. ¹⁰ , ¹¹ The judge's overlay of the intentional tort exclusion of § 10(c ) onto his application of § 17C to these circumstances, however, aggravates that unfortunate dichotomy. It renders public landowners who gratuitously allow, or even invite, the use of public lands wholly immune from the liability to such users--however youthful, inexperienced and trusting--to which all other landowners are exposed. Such a drastic, sweeping and (we would warrant) unanticipated consequence to the public of exercising their privilege of using public property for its...