Marcus v. City of Newton

• Decision Date: 07 May 2012
• Docket Number: SJC–10984.
• Citation: 462 Mass. 148,967 N.E.2d 140
• Parties: Edward MARCUS v. CITY OF NEWTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 148

967 N.E.2d 140

Edward MARCUS

v.CITY OF NEWTON.

SJC–10984.

Supreme Judicial Court of Massachusetts,

Middlesex.

Submitted Jan. 4, 2012.

Decided May 7, 2012.

Maura E. O'Keefe, Assistant City Solicitor, for the defendant.

Joan S. Amon, Belmont, for the plaintiff.

John J. Davis, Michael Leedberg, & Thomas J. Urbelis, Boston, for City Solicitors and Town Counsel Association, amicus curiae, submitted a brief.

Andrew M. Abraham, Boston, J. Michael Conley, Braintree, Thomas J. Carey, Jr., & Thomas R. Murphy, Salem, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

BOTSFORD, J.

Edward Marcus was injured during a softball game on a public field owned by the city of Newton (city). We consider the city's appeal, ¹ which we transferred from the Appeals Court on our own motion, from the denial of its motion for summary judgment, based on the ground that it was immune from suit pursuant to the recreational use statute, G.L. c. 21, § 17C. The city argues that the judge erred in denying its motion, and that it is entitled to immediate appellate review of the denial under the doctrine of present execution. Although we hold that the doctrine does not apply in the circumstances of this case, we nonetheless consider the merits of the city's appeal, and conclude the denial of its motion for summary judgment was appropriate.²

1. Background. a. Facts. In the summer of 2007, Marcus participated in a softball league organized by an organization called “Coed Jewish Sports.” Marcus joined the league after mailing an application and an eighty dollar registration fee to the organization. Payment of the registration fee entitled Marcus to participate in the league, receive a team T-shirt, and attend a cookout hosted by the league at the end of the season.

A payment of $1,200 by Coed Jewish Sports to the city's parks and recreation department secured the league a permit. The permit in turn reserved for the league the use of McGrath Field, a property owned and maintained by the city, for eight two-hour blocks between June and August, 2007. Marcus had no knowledge of or participation in the permit application process undertaken by Coed Jewish Sports, and never applied directly to the city for any such permit. According to the city, the $1,200 payment was used to defray approximately $12,000 in annual maintenanceand administrative costs that it incurred in operating McGrath Field in 2007, including grass cutting and trimming, fertilization, and aeration.

On July 8, 2007, while participating in a league game, Marcus was sitting in a grassy area watching the game and waiting for his turn at bat. The area was shaded by several nearby trees, which stood on adjacent property owned by Temple Shalom. Marcus heard a cracking sound and realized that a tree was falling in his direction. He was unable to avoid the falling tree, which struck him in the back. Marcus suffered two fractured vertebrae, shattered right and left shoulder blades, and various other injuries as a result of the tree's impact.

b. Procedural history. Marcus filed his complaint in the Superior Court against the city and the other defendants (see note 1, supra ) on July 2, 2009. With regard to the city, he alleged that it had a duty to maintain McGrath Field in a careful, safe, and prudent manner; it was negligent in poorly maintaining the property and, specifically, allowing the allegedly rotten tree and its branches to overhang its property without proper maintenance; and as a result of the city's negligence, he suffered serious physical injuries. In its answer, the city denied liability and asserted that, in any event, it was immune from liability under the recreational use statute, G.L. c. 21, § 17C. On June 15, 2010, the city filed its motion for summary judgment in which it presented, among other things, its claim of immunity from suit pursuant to G.L. c. 21, § 17C. After a hearing, a Superior Court judge denied the city's motion on the ground that there remained genuine issues of material fact. Its appeal followed.

c. Recreational use statute. The recreational use statute, G.L. c. 21, § 17C (§ 17C), provides that any person ³

“having an interest in land ... who lawfully permits the public to use such land for recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor ... shall not be liable for personal injuries or property damage sustained by such members of the public ... while on said land in the absence of wilful, wanton, or reckless conduct by such person. Such permission shall not confer upon any member of the public using said land, including without limitation a minor, the status of an invitee or licensee to whom any duty would be owed by said person.”

§ 17C ( a ). The statute further provides that “[t]he liability of any person who imposes a charge or fee for the use of his land by the public for [any of the above enumerated] purposes ... shall not be limited by any provision of this section.” § 17C ( b ). Section 17C applies with equal force to governmental and private landowners. See Ali v. Boston, 441 Mass. 233, 237 n. 7, 804 N.E.2d 927 (2004); Anderson v. Springfield, 406 Mass. 632, 634, 549 N.E.2d 1127 (1990).

2. Discussion. The city contends that the doctrine of present execution entitles it to immediate review of the interlocutory order denying its motion for summary judgment.⁴ The premise underlying its claim is that § 17C provides a landowner in its position with immunity from suit. We disagree.

a. Doctrine of present execution. As a general matter, “there is no right to appeal from an interlocutory order unless a statute or rule authorizes it.” Maddocks v. Ricker, 403 Mass. 592, 597, 531 N.E.2d 583 (1988). “The policy underlying this rule is that ‘a party ought not to have the power to interrupt the progress of the litigation by piecemeal appeals that cause delay and often waste judicial effort in deciding questions that will turn out to be unimportant.’ ” Fabre v. Walton, 436 Mass. 517, 521, 781 N.E.2d 780 (2002), S.C.,441 Mass. 9, 802 N.E.2d 1030 (2004), quoting Borman v. Borman, 378 Mass. 775, 779, 393 N.E.2d 847 (1979). However, a “narrow exception” to this general rule lies in the doctrine of present execution, under which an immediate appeal is appropriate “[1] where the interlocutory ruling ‘will interfere with rights in a way that cannot be remedied on appeal’ from the final judgment, and [2] where the matter is ‘collateral’ to the merits of the controversy.” Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 674, 881 N.E.2d 129 (2008), quoting Maddocks v. Ricker, supra at 597–600, 531 N.E.2d 583. See, e.g., Fabre v. Walton, supra at 520–522, 781 N.E.2d 780 (interlocutory appellate review appropriate to consider denial of motion to dismiss filed pursuant to “anti-SLAPP” statute, G.L. c. 231, § 59H); Brum v. Dartmouth, 428 Mass. 684, 688, 704 N.E.2d 1147 (1999) (interlocutory appellate review appropriate to consider Commonwealth's motion to dismiss based on claim of immunity from suit pursuant to Massachusetts Tort Claims Act, G.L. c. 258, § 10).

Under this rule, litigants claiming immunity may only avail themselves of the doctrine of present execution if § 17C provides immunity from suit, rather than merely an exemption from liability for ordinary negligence.⁵ See Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, 401 Mass. 26, 31, 513 N.E.2d 1277 (1987), cert. denied sub nom. Forastiere v. Breault, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). This result obtains because, “[i]f ... the asserted right is one of freedom from suit, the defendant's right will be lost forever unless that right is determined now,” whereas “if the asserted right to immunity is but a right to freedom from liability ... [the defendant's] right could be vindicated fully on appeal after trial.” Id. See Brum v. Dartmouth, 428 Mass. at 688, 704 N.E.2d 1147 (only orders denying immunity from suit enjoy benefit of present execution doctrine, because “[t]he right to immunity from suit would be ‘lost forever’ if an order denying it were not appealable until the close of litigation ...”).

The city's motion for summary judgment asserted a claim of immunity from suit, but in other pleadings, the city claimed immunity from liability. The city has a right to interlocutory appeal only if § 17C provides immunity from suit, rather than merely an exemption from liability for ordinary negligence. In evaluating whether § 17C provides immunity from suit or merely an exemption from liability, we first examine the plain language of the statute. See Commissioner of Revenue v. Cargill, Inc., 429 Mass. 79, 82, 706 N.E.2d 625 (1999). Section 17C provides that a landowner making land open to the public for recreational uses free of charge “shall not be liable for personal injuries or property damage sustained by such members of the public [unless there is wilful, wanton, or reckless conduct]” (emphasis added). In other words, where the landowner does not impose a fee or charge, § 17C merely provides an exemption from liability for ordinary negligence claims; it does not provide immunity from suit. Even if a landowner can claim the full scope of immunity available under the statute, that landowner will still be liable for “wilful, wanton, or reckless conduct,” and thus is not immune from suit. See G.L. c. 21, § 17C ( a ). We need go no further than the plain text of § 17C to conclude that the statute provides only immunity from liability. Thus, the city is not entitled to an interlocutory appeal from the denial of its motion for summary judgment under the doctrine of present execution.

b. Exemption from liability for negligence under § 17C. Nevertheless, we address the city's claim that in the circumstances of this case, it qualified for § 17C...