Sandler v. Com.

• Decision Date: 19 January 1995
• Citation: 419 Mass. 334,644 N.E.2d 641
• Parties: James E. SANDLER v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 641

644 N.E.2d 641

419 Mass. 334

James E. SANDLER v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 5, 1994.

Decided Jan. 19, 1995.

Catherine C. Ziehl, Asst. Atty. Gen., for Com.

Lawrence R. Opert, Boston, for plaintiff.

Before WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

In Molinaro v. Northbridge, 419 Mass. 278, 643 N.E.2d 1043 (1995), we reiterated our view that a governmental unit could be liable under G.L. c. 21, § 17C (1992 ed.), for its wanton or reckless conduct that caused harm to a member of the public who used government land that was available for recreational purposes without charge. In this case we deal with the question whether the evidence, viewed most favorably to the plaintiff, justified the submission of the plaintiff's case to the jury. The Commonwealth appeals from a judgment for the plaintiff, arguing that the evidence was insufficient to warrant submission of the case to the jury and that, therefore, its motion for a directed verdict and its motion for judgment notwithstanding the verdict should have been allowed. We transferred the appeal here. We reverse the judgment.

The plaintiff was injured, not long after 5 P.M. on October 29, 1987, when he fell off his bicycle while attempting to pass through a tunnel under the Eliot Bridge in Cambridge. The tunnel is part of the Dr. Paul Dudley White Bikeway, along the Charles River, which is controlled by the Commonwealth through the Metropolitan District Commission. ¹ The jury were warranted in concluding that the plaintiff's fall was caused by an uncovered, eight-inch wide, twelve-inch long drain in the unlit tunnel. The drain, which was about eight inches deep, had had a cover, and the tunnel was designed to be lit, but vandals had removed the drain cover and had made the lights inoperative. Before we discuss the evidence in detail, it is important that we define wanton or reckless conduct.

The judge used the words "wilful, wanton, or reckless" in instructing the jury but defined them by the standard this court has used for wanton or reckless conduct. This was appropriate because wilfulness in the sense of an intention to cause harm was not presented by the facts. "Indifferent or reckless wrongdoing is not deliberate or intentional wrongdoing." Andover Newton Theological Sch., Inc. v. Continental Casualty Co., 409 Mass. 350, 352, 566 N.E.2d 1117 (1991). See Sheehan v. Goriansky, 321 Mass. 200, 204, 72 N.E.2d 538 (1947), quoting Restatement of Torts § 500 comment f (1934). Wanton conduct may suggest arrogance, insolence, or heartlessness that reckless conduct lacks (see Commonwealth v. Welansky, 316 Mass. 383, 398, 55 N.E.2d 902 1944), but the difference is likely not to be significant in most cases. Our recent practice has been simply to refer to reckless conduct as constituting the conduct that produces liability for what the court has traditionally called wilful, wanton, or reckless conduct. See Manning v. Nobile, 411 Mass. 382, 387 n. 8, 582 N.E.2d 942 (1991).

Our long-standing custom has been to measure reckless conduct by the same test whether reckless conduct is alleged as the basis for liability in tort or as the basis for guilt of involuntary manslaughter. See Commonwealth v. Welansky, supra, 316 Mass. at 397, 55 N.E.2d 902; Banks v. Braman, 188 Mass. 367, 369, 74 N.E. 594 (1905). Reckless conduct may consist of a failure to act, if there is a duty to act, as well as affirmative conduct. Commonwealth v. Welansky, supra. We are concerned here with an alleged breach of a duty to remedy or guard against a known or reasonably knowable dangerous condition. ²

Reckless failure to act involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. See Manning v. Nobile, supra, 411 Mass. at 387-388, 582 N.E.2d 942, and cases cited. The risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defendant's election to run that risk or of his failure reasonably to recognize it. See Commonwealth v. Catalina, 407 Mass. 779, 789, 556 N.E.2d 973 (1990); Scaia's Case, 320 Mass. 432, 433-434, 69 N.E.2d 567 (1946); Commonwealth v. Welansky, supra, 316 Mass. at 398-399, 55 N.E.2d 902; Baines v. Collins, 310 Mass. 523, 526, 38 N.E.2d 626 (1942).

According to our cases, the degree of risk that will warrant a finding of reckless conduct can involve an imputation of intentional conduct to a person who in fact did not realize the gravity of the danger. Commonwealth v. Welansky, supra, 316 Mass. at 398-399, 55 N.E.2d 902; Baines v. Collins, supra, 310 Mass. at 526, 38 N.E.2d 626 (imputing a constructive intention as to the consequences of a reckless disregard of probable consequences). We have also said that reckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind. Commonwealth v. Welansky, supra, 316 Mass. at 399, 55 N.E.2d 902. This court's recognition of a fictional or constructive intention and this court's representation that wanton or reckless conduct is different in kind from negligence do not much help in differentiating neatly between negligent conduct (including grossly negligent conduct) and reckless conduct. These concepts emphasize, however, the requirement that reckless conduct must be based on a high degree of risk that death or serious bodily injury will result from a defendant's action or inaction when under a duty to act.

There is no doubt that the MDC through its employees was aware that a risk of harm was created by a chronically unlit tunnel with missing drain covers. An MDC employee testified that he did not know when the lights last worked. Another witness testified that he had not seen them illuminated in at least thirteen years. There was evidence that the lights were frequently broken, that they once had had protective devices which were now broken, and that they were broken and not working on the day of the accident. The MDC used only unattached drain covers, held in place only by gravity. The covers loosened over the years, did not fit the drains, and were frequently stolen by vandals. The MDC knew that at least one drain in the tunnel was often without a cover from January 1 to October 30, 1987. The cover of the particular drain that caused the plaintiff's injury was frequently stolen and was not in place following the accident. The MDC knew that the lack of a drain cover posed a danger to individuals. The MDC also knew that the regularly used tunnel was often flooded with water because of inadequate drainage.

There was evidence that the MDC, knowing of the danger posed by absent drain covers in the dark tunnel, did not respond reasonably. It had no policy for bikeway inspection, had no record of the existence or replacement of drain covers from January 1 to October 30, 1987, and did not have drain cover replacements on hand, although they were frequently stolen and there was room to store replacement covers in the tunnel closet. There was expert testimony that the design of the lighting and drainage in the tunnel was deficient and that feasible alternatives were available at reasonable costs, including vandal-resistant lighting and drains capable of being fastened. ³

Nevertheless, the degree of the risk of injury in this case does not meet the standard that we have established for recklessness. While it is true that each case depends on its facts and that some cases are close to the line, this case, which involves a persistent failure to remedy defects in a tunnel on a traveled bikeway, simply does not present a level of dangerousness that warrants liability under G.L. c. 21, § 17C, for the MDC's inaction. In the margin, we summarize several of our civil cases in which the degree of risk of injury was so great that a finding of recklessness justifying tort liability was warranted. ⁴ Similarly, our opinions in which wanton or reckless conduct has been accepted as a proper basis for a finding of guilt of involuntary manslaughter have involved a far greater degree of risk of serious injury (dangerousness) than that created by the failure to remedy the known, chronic absence of an eight-inch by twelve-inch cover on an eight-inch deep drain on a dark traveled path. ⁵

The level of fault in this case, measured by the degree of risk of serious injury, is more consistent with our cases in which we have held that the evidence did not warrant a finding of wanton or reckless conduct. See, e.g., Manning v. Nobile, supra, 411 Mass. at 388-389, 582 N.E.2d 942 (claim of recklessness based on hotel's failure to provide bartender for private party rejected); Hawco v. Massachusetts Bay Transp. Auth., 398 Mass. 1006, 1007, 499 N.E.2d 295 (1986) (defendant not reckless in leaving bus passenger at station where it appeared to bus driver that burglary was in progress); Mounsey v. Ellard, 363 Mass. 693, 694, 297 N.E.2d 43 (1973) (failure to repair drain resulting in accumulation of ice on defendant's premises, not wilful, wanton, or reckless conduct); Sawler v. Boston & Albany R.R., 339 Mass. 34, 36, 157 N.E.2d 516 (1959) (long-standing failure to fulfil statutory duty to maintain fence along right of way, thus permitting child to cross railroad tracks, not wilful, wanton, or reckless misconduct); Siver v. Atlantic Union College, 338 Mass. 212, 216-217, 154 N.E.2d 360 (1958) (where young child fell into pit and died because some third party removed pit's cover, landowner not liable for wilful, wanton, or reckless conduct); Carroll v. Hemenway, 315 Mass. 45, 46-47, 51 N.E.2d 952 (1943) (where police officer investigating building fell into unguarded and unlit elevator well, lack of repair not wilful, wanton, or reckless conduct).

...