Moore v. Town of Billerica (Lawyers Weekly No. 11-073-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1294 Appeals Court CAROL MOORE[1] vs. TOWN OF BILLERICA. No. 12‑P‑1294. Middlesex. March 1, 2013. ‑ June 7, 2013. Present: Grasso, Trainor, & Carhart, JJ. Massachusetts Tort Claims Act. Governmental Immunity. Municipal Corporations, Governmental immunity. Negligence, Governmental immunity. Civil action commenced in the Superior Court Department on July 14, 2009. The case was heard by Garry V. Inge, J., on a motion for summary judgment. John J. Cloherty, III, for the defendant. Sean T. Goguen (George N. Panas with him) for the plaintiff. TRAINOR, J. The defendant, the town of Billerica (town), appeals from the denial of its motion for summary judgment on this suit brought under the Massachusetts Tort Claims Act (MTCA). In its motion for summary judgment, the defendant argued that it is immune from suit under G. L. c. 258, § 10(b) and (j), as appearing in St. 1978, c. 512, § 15, and immune from liability under the recreational use statute, G. L. c. 21, § 17C(a), as appearing in St. 1998, c. 268.[2] The judge denied the motion, citing “[g]enuine issues of material fact as to, inter alia, causation and . . . degree of discretion, if any, on the part of those in charge of maintaining the public property in question.” For the reasons that follow, we reverse the order. Background. We begin with a summary of the undisputed facts. The Kids Konnection playground in the town abuts the outfield fence of a little league baseball field. The playground is protected from flying baseballs by a high net supported by telephone poles. The net did not extend far enough toward right field to protect an area of the playground that contained a stage and picnic tables.[3] Both the playground and the baseball field were town property and were open to the public for use free of charge. On August 23, 2007, Carol Moore (Carol) brought her four year old daughter Shannon to the Kids Konnection playground.[4] There, Carol met her friends Vickie Stagliola and Angela Sargent, who brought their children to the playground as well. At the same time, several teenage boys were playing “home run derby” on the baseball field. The goal of the game was to hit baseballs over the fence, and Stagliola had seen a baseball hit the netting earlier that day. Shannon […]