Scrapchansky v. Town of Plainfield

• Citation: 627 A.2d 1329,226 Conn. 446
• Decision Date: 13 July 1993
• Docket Number: No. 14655,14655
• Parties: , 84 Ed. Law Rep. 352 Michael SCRAPCHANSKY v. TOWN OF PLAINFIELD, et al.
• Court: Supreme Court of Connecticut

Page 1329

627 A.2d 1329

226 Conn. 446, 84 Ed. Law Rep. 352

Michael SCRAPCHANSKY v. TOWN OF PLAINFIELD, et al.

No. 14655.

Supreme Court of Connecticut.

Argued March 24, 1993.

Decided July 13, 1993.

Christopher M. Licari, with whom was Steven J. Errante, New Haven, for appellant (plaintiff).

Andrew J. O'Keefe, with whom were Denise Rodosevich and, on the brief, Maureen Sullivan Dinnan, Hartford, for appellees (defendants).

Before CALLAHAN, BORDEN, NORCOTT, KATZ and PALMER, JJ.

CALLAHAN, Justice.

The plaintiff, Michael Scrapchansky, brought this action against the defendants, the town of Plainfield (town) and the Plainfield board of education (board), for personal injuries suffered while playing in an American Legion baseball game on a field owned by the town and controlled by the board. The trial court granted the defendants' motion for summary judgment, ruling that, pursuant to the Connecticut Recreational Land Use Act (act); General Statutes §§ 52-557f through 52-557i; ¹ the defendants were immune from liability for the plaintiff's injuries. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). On appeal, the plaintiff claims that the trial court improperly granted the defendants' motion for summary judgment because: (1) the defendants had not made the field "available to the public" within the meaning of § 52-557g(a); and (2) an organized league baseball game is not a "recreational purpose" as that term is used in § 52-557f(4). We affirm the judgment of the trial court.

The relevant facts are as follows. On June 22, 1986, while chasing a batted ball, the plaintiff ran into a stone wall that bordered the baseball field. As a result, he suffered various personal injuries. At the time of the accident, the plaintiff was a member of the Danielson/Moosup American Legion baseball team, and was playing center field in a league game. The field on which he was injured is adjacent to the Plainfield High School. It is owned by the town and controlled by the board. Since 1973, the town had permitted the American Legion team to use the field without charge, fee, or rent, whenever school was not in session.

The plaintiff's complaint alleged that the defendants were liable for his injuries under theories of both negligence and nuisance. The defendants moved for summary judgment on the ground that they were immune from liability under the act. The trial court granted the defendants' motion for summary judgment, concluding that the act rendered the defendants immune from suit because the field on which the plaintiff had been injured had been made "available to the public without charge, rent [or] fee" within the meaning of § 52-557g(a), and because a baseball game constituted a "recreational purpose" pursuant to § 52-557f(4).

I

The plaintiff first claims that the defendants failed to make the field "available to the public" as contemplated by § 52-557g of the act because there were restrictions on its use. The plaintiff argues that because the defendants did not make the field "available to the public," they were not entitled to the immunity afforded by the act and the trial court, therefore, had improperly granted the defendants' motion for summary judgment. We disagree.

Practice Book § 384 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1980). "Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 'Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court....' " (Citations omitted.) Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). We recognize that "[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 219 Conn. at 781, 595 A.2d 334.

Section 52-557g(a) provides in relevant part: "[A]n owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes." (Emphasis added.)

Before the trial court, it was undisputed that, in order to prevail on their motion for summary judgment, the defendants, the owners ² of the ball field, were required by § 42-557g(a) to have made the field "available to the public" for recreational purposes. Manning v. Barenz, 221 Conn. 256, 260, 603 A.2d 399 (1992). In support of their motion, the defendants presented the affidavit of Albert DePetrillo, superintendent of the board, who stated that the high school playing field was made available to the public for recreational purposes without fee, charge or rent. In response, the plaintiff presented evidence that restrictions applied to the public's use of the field. In particular, the plaintiff presented excerpts from the transcript of the deposition taken of DePetrillo, wherein DePetrillo had stated that the field was available to the public only when school was not in session and that any team desiring to use the field was required to obtain permission to do so in order to avoid scheduling conflicts with another event.

The plaintiff argues on appeal that by limiting the use of the field to times when school was not in session and by requiring permission for its use, the defendants did not make the field "available to the public" in the manner contemplated by § 52-557g. The plaintiff further contends that by permitting scheduled league games to occupy the playing field at a given time, the defendants necessarily excluded the concurrent use of the field by others, thereby contravening the purpose of the act to make recreational land available to the public. In support of his argument, the plaintiff cites to the legislative history of the act, claiming that the legislature envisioned that immunity from liability under the act would only be afforded to landowners who "allow their property to be used for the entire citizenry." 14 H.R. Proc., Pt. 4, 1971 Sess., p. 1806, remarks of Representative David Lavine.

Although the purpose of the act is to make land accessible for recreational use by the public, nothing in the language of § 52-557g(a) mandates that land, in order to be "available to the public" under the act, must be open in its entirety to everyone simultaneously. In Genco v. Connecticut Light & Power Co., 7 Conn.App. 164, 508 A.2d 58 (1986), it was held that signs posted by the owner of a lake that expressly restricted the use of the lake in certain locations did not make the land unavailable to the public. Stated differently, the word "public" in § 52-557g(a) does not require that recreational land be made available to all members of the public at all times in order to provide a landowner with immunity from liability. "For an area to be 'open to public use' it does not have to be open to 'everybody all the time.' State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 1011, 102 S.W.2d 99 (1937); see also Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga.App. 403, 410, 170 S.E.2d 709 (1969); Commissioner v. Baughman, 357 Pa.Super. 535, 538, 516 A.2d 390 (1986), appeal denied, 515 Pa. 572, 527 A.2d 534 (1987)." State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1988). The evidence presented by the defendants in support of their motion for summary judgment clearly demonstrated that, given certain reasonable restrictions, any group or member of the public was entitled to use the baseball field. The fact that the public's use of the field was limited to the times when school was not in session, or by the obvious fact that only two teams could play baseball on the same field at the same time, does not mean the field was not "available to the public" under § 52-557g(a). See id. The imposed restrictions merely served to permit the orderly use of the field. Without restrictions, as the trial court noted, the defendants would have had to sanction a "free for all" in order to be entitled to immunity under the statute, a result clearly not contemplated by § 52-557g(a).

The plaintiff's suggested interpretation of § 52-557g, that there must be no restrictions on the public's use of land in order for land to be covered by the act, albeit ideal, is impractical given the realities of recreational land use planning. "[P]rinciples of statutory construction ... require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results." Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). "We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985)." Id., 219 Conn. at 713, 595 A.2d 297. Not all land made available to the public for recreational use consists of limitless expanses which the entire public can enjoy at the same time. The owners of public and private land, lakes, ponds, parks, playgrounds, and playing...