Gage v. City of Westfield

• Decision Date: 23 December 1988
• Docket Number: No. 88-P-51,88-P-51
• Citation: 532 N.E.2d 62,26 Mass.App.Ct. 681
• Parties: Pauline A. GAGE, administratrix, 1 v. CITY OF WESTFIELD (and three companion cases 2 ).
• Court: Appeals Court of Massachusetts

Page 62

532 N.E.2d 62

26 Mass.App.Ct. 681

Pauline A. GAGE, administratrix, ¹ v. CITY OF WESTFIELD (and three companion cases ²) No. 88-P-51.

Appeals Court of Massachusetts Hampden.

Argued Oct. 19, 1988.

Decided Dec. 23, 1988.

Evan T. Lawson, Boston, for Joseph A. Lajeunesse & another.

Paul B. Kleinman, Exeter, N.H., for Pauline A. Gage.

Mark E. Draper, Springfield, for the city of Westfield.

Leonard F. Zandrow (Robert L. Farrell & Richard L. Neumeier, Boston, with him), for Consol. Rail Corp. & another.

Before PERRETTA, KAPLAN and FINE, JJ.

FINE, Justice.

On August 25, 1981, Theresa M. Lajeunesse, almost sixteen, and Peter Gage, eighteen, were struck and killed by a Consolidated Rail Corporation (Conrail) freight train. A diagram indicating the area within the city of Westfield (Westfield) where the accident happened appears at the end of this opinion. Actions for wrongful death and conscious pain and suffering were brought by the administrators of the decedents' estates against Westfield, Conrail, and George Munger, ³ the engineer of the Conrail train that struck the youths. ⁴ All of the actions were consolidated for discovery and trial. The defendants filed motions for summary judgment as to all the claims. From the allowance of those motions, both plaintiffs appeal.

1. The Cases Against the City of Westfield Under G.L. c. 258, § 1, the Massachusetts Tort Claims Act.

The uncontroverted facts before the motion judge relevant to the cases against Westfield were the following. On the afternoon of the day of the accident, the two decedents were among a group of teenagers drinking at the Whitney Playground, a city-owned facility that was a popular location for teenagers to congregate. The playground is located along the south side of the Westfield River. On its south, the playground is bounded by a city-owned dike; on its west by other city property; and on its east by property owned by Westfield and used by its gas and electric department. Public ways were located at both the easterly and westerly ends of the playground. No fences or barriers separated the playground from the other city property or separated the city property being used by the gas and electric department from Conrail's property just to its east.

Approximately 400 feet east of the playground, a relatively unused spur track owned by Conrail runs from Conrail's property on the south side of the river across a trestle bridge to other railroad property on the river's northerly bank where two actively-used railroad tracks run along the river in an east-west direction. The spur tracks intersect with the east-west tracks on an area of railroad property known, because of its shape, as the "diamond." An old unused railroad station, no longer owned by Conrail, is located north of the east-west tracks and east of the spur tracks. Pochassic Street, a public way, lies just north of the railroad property which borders the river's northerly side. A public bridge, containing a pedestrian walkway, crosses the river about 500 feet east of the trestle bridge along Elm Street. When it reaches the north side of the river, Elm Street leads through an underpass beneath the east-west tracks to Pochassic Street.

For many years, teenagers, and sometimes adults, used the trestle bridge as a shortcut from the south side of the river to Pochassic Street. A path was beaten into the ground along this route from such use. No barriers prevented pedestrian use of the trestle bridge, and no signs on or about it warned of any danger. A person using the shortcut to reach Pochassic Street would have to cross the east-west railroad tracks at the "diamond". No planking or other device facilitated travel across the tracks, and there was no public or private crossing nearby.

The two youths left the playground mid-afternoon, crossed the trestle bridge, entered the diamond, and then walked onto the tracks, where they were struck by an eastbound Conrail freight train.

The complaints, seeking recovery under G.L. c. 258, the Massachusetts Tort Claims Act, allege that the city, as owner of the playground and adjacent property, acted negligently by failing to erect fences or barriers preventing access to the railroad trestle, to place warning signs on its property, or to provide more effective police patrol of the area. The judge ruled that, even assuming the city had a duty to take one or more of these steps, it was not liable because the duty was one owed to the public at large. Alternatively, the judge ruled that the decision whether to take any of the various safety measures urged was discretionary in nature and fell, therefore, within the discretionary function exception (G.L. c. 258, § 10 [b ] ) to liability under the Massachusetts Tort Claims Act. The plaintiffs contend on appeal that their claims relate to the city's failure, as a landowner, to maintain its property in a reasonably safe condition and warn of known dangers and, for that reason, under Doherty v. Belmont, 396 Mass. 271, 273-274, 485 N.E.2d 183 (1985), neither the public duty nor the discretionary function exception had any applicability to the claims.

General Laws c. 258, § 2, as appearing in St.1978, c. 512, § 15, provides in relevant part that "[p]ublic employers shall be liable for injury or loss of property or personal injury or death ... in the same manner and to the same extent as a private individual under like circumstances ..." We agree with the plaintiffs that in some situations a landowner's duty to exercise reasonable care does not terminate abruptly at the borders of his property but may extend to include a duty to take safety measures related to known dangers on adjacent property. See Polak v. Whitney, 21 Mass.App.Ct. 349, 351-352, 487 N.E.2d 213 (1985), and cases cited. Given the obviousness of the danger here, however, we doubt that a private landowner in the position of the city would be liable to one in the position of either of the plaintiffs' decedents. Certainly not every landowner with property abutting railroad tracks ought to be required to erect fences or barriers, to post warning signs, or to provide other protection, such as police patrols, with the goal of keeping people away from those tracks. Compare Scurti v. New York, 40 N.Y.2d 433, 441-442, 387 N.Y.S.2d 55, 354 N.E.2d 794 (1976); Lukasiewicz v. Buffalo, 55 A.D.2d 848, 848-849, 390 N.Y.S.2d341 (1976); Leone v. Utica, 66 A.D.2d 463, 466-467, 414 N.Y.S.2d 412 (1979), aff'd, 49 N.Y.2d 811, 426 N.Y.S.2d 980, 403 N.E.2d 964 (1980); Contrast Mostert v. CBL & Associates, 741 P.2d 1090, 1094 (Wyo.1987).

We agree with the motion judge that one or more of the recognized Massachusetts Tort Claims Act exceptions applies and exempts the city from liability. It is certainly true, as the appellants contend, that if the plaintiffs' claims had to do with the physical condition of the city-owned premises, the city's reliance on the public duty exception, if not also the discretionary function exception, would be misplaced. See Doherty v. Belmont, 396 Mass. at 273-274, 485 N.E.2d 183. The plaintiffs' claims, however, differ significantly from the claim made in the Doherty case, which related to a defect in a municipal parking lot. In the present case, the potential danger, located on property owned by a different entity, across a river, and a considerable distance away from any city property, particularly the playground, is too remote to justify the imposition of liability on the city based upon the condition of the premises. Furthermore, there is a broad range of alternative protective actions (for example, erection of a fence around the playground or around other city property bordering railroad tracks, erection of some other type of barrier, posting of some type of warning sign at one of a number of possible locations, or providing increased police patrol) the city allegedly could have taken. Whether or not the city ought to have done something more than it did to protect its citizens against the danger involved in the use of the shortcut, there is no reason why the case should not be governed by the general principles underlying the Massachusetts Tort Claims Act, including both the public duty and discretionary function exceptions. The recognition of these exceptions reflects the Legislature's intention to strike a balance between providing rights to individual claimants and protecting public employers against the potentially oppressive cost and inconvenience of defending broad generalized claims based upon allegations of failure to take some remedial action.

General Laws c. 258, § 10(b ), as appearing in St.1978, c. 512, § 15, provides that a municipality is not liable for "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused." Given the judgment involved in weighing alternatives and making policy choices as to what safety measures to take, even if there was a duty on the part of the city to take some safety measures, we think the discretionary function exception was applicable. See Patrazza v. Commonwealth, 398 Mass. 464, 467-468, 497 N.E.2d 271 (1986). See also Whitney v. Worcester, 373 Mass. 208, 217-218, 366 N.E.2d 1210 (1977); Cady v. Plymouth-Carver Regional School Dist., 17 Mass.App.Ct. 211, 213-215, 457 N.E.2d 294 (1983); Wightman v. Methuen, 26 Mass.App.Ct. 279, 280-281, 526 N.E.2d 1079 (1988). Compare Smith v. United States, 546 F.2d 872, 876-877 (10th Cir.1976); Ducey v. United States, 713 F.2d 504, 515 (9th Cir.1983).

Further, in order to bring their claims within the Tort Claims Act, the plaintiffs must show that the city owed their decedents a special duty of care beyond that owed to the public at large. See Dinsky v. Framingham, 386 Mass. 801, 810, 438 N.E.2d 51 (1982); Ribeiro v Gran...