September 25, 2014
Michael McMahon, Jr.
City of Somerville No. 128681
MEMORANDUM OF DECISION AND ORDER ON THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
DENNIS J. CURRAN, Associate Justice.
In July of 1999, Ms. Clare McAllister, parent and next friend of the minor, Michael McMahon, filed a complaint, asserting liability against the defendant City of Somerville, on the same set of facts upon which this case will proceed. That 1999 action was dismissed for lack of prosecution.
In February of 2014, Michael McMahon, now an adult, independently filed this action seeking damages for personal injuries from the City of Somerville arising out of an incident that occurred at Lincoln Park, a Somerville public park. He alleges that the City's conduct was willful, wanton or reckless; the City denied that the conduct complained of amounted to any of these qualifications, and thus, has moved for summary judgment.
For the following reasons, the City's motion must be ALLOWED.
The following facts are taken from the summary judgment record and from the City's Statement of Material Facts, which has been adopted, for present purposes, by McMahon. These facts are recited in the light most favorable to McMahon, the non-moving party. Attorney Gen. v. Bailey, 386 Mass. 367, 370-71, 436 N.E.2d 139 (1982).
On August 2, 1996, McMahon was three years old. He was injured in an incident which occurred in Lincoln Park, a Somerville public park, obviously created for the use and enjoyment of members of the public. The City neither requires users to pay a fee for access to the park, nor does it charge for the use of its land.
On August 2, 1996, a metal storage box with a lid was in Lincoln Park. The metal storage box contained toys and playthings for children. Customarily, the box lid was held in its open position by a chain attached to the wire fence behind it with a lock. During the period of time on and before August 2, 1996, the City employed Ronald J. Sanborn and Heidi Haver, who worked at the park.
On August 2, 1996, Ms. Haver arrived at Lincoln Park before Mr. Sanborn and opened the box. Having trouble with the lock, Ms. Haver propped the lid open, using the attached chain, which was then affixed to the fence behind it with the lock left in an open position. At approximately 10:00 that morning, McMahon, then three years old, went to the box to retrieve toys. While doing so, the chain became loose and caused the lid to fall from its open position onto McMahon's head. The boy suffered injuries from the incident.
As the " worker in charge, " Ronald Sanborn authored and signed a reproduction of the event in a two-page handwritten form titled " City of Somerville, Recreation Commission--Report of Accident, " dated August 2, 1996.
I. Summary Judgment Standard
The court shall grant a motion for summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422, 456 N.E.2d 1123 (1983). The moving party bears the burden of showing the absence of a genuine issue of material fact on every issue. Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). A moving party may satisfy this burden by either submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Commc'ns Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991).
The non-moving party cannot defeat a motion for summary judgment by merely asserting that facts are in dispute. Mass.R.Civ.P. 56(e); LaLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989). Rather, to defeat summary judgment, the non-moving party must introduce evidence to prove the existence of a genuine issue for trial. Wooster v. Abdow Corp., 46 Mass.App.Ct. 665, 673, 709 N.E.2d 71 (1999). " Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient." Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass'n, 399 Mass. 886, 890, 507 N.E.2d 717 (1987), quoting Madsen v. Erwin, 395 Mass. 715, 721, 481 N.E.2d 1160 (1985) . All facts and inferences must be viewed in the light most favorable to the non-moving party. Attorney General v. Bailey, 386 Mass. 367, 370, 436 N.E.2d 139 (1982).
II. The Breach of Duty
Both McMahon and the City agree that the Commonwealth's recreational use statute, G.L.c. 21, § 17C (2009), controls. The statute provides in relevant part:
Any person having an interest in land . . . who permits the public to use such land for recreational purposes without imposing a charge or fee therefore . . . 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 willful, wanton or reckless conduct by such person.
The recreational use statute immunizes landowners from liability unless the breach of duty was willful, wanton or reckless, and not merely negligent. Ali v. City of Boston, 441 Mass. 233, 804 N.E.2d 927 (2004). Plaintiff's counsel has conceded at oral argument that his alleged facts qualify as neither " willful" or " wanton" acts, and thus, we turn our attention as to whether the City's conduct was reckless.
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. Sandler v. Commonwealth, 419 Mass. 334, 336, 644 N.E.2d 641 (1995). 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. Id. Recklessness requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable person. Boyd v. National Railroad Passenger Corp., 446 Mass. 540, 547, 845 N.E.2d 356 (2006).
McMahon claims that the City was reckless in deliberately re-affixing the chain attached to the metal lid of the box to the fence with a lock left in the open position without further action. However, there is no evidence that the City engaged in conduct rising to the requisite level of recklessness. See Sandler v. Commonwealth, 419 Mass. 334, 335, 644 N.E.2d 641 (1995). As a matter of law, McMahon had no reasonable expectation of showing that the risk posed by the City's propping open of the metal box with a chain and a lock left in the open position would amount to a high degree of probability that substantial harm to another would result Id. at 336. Furthermore, McMahon had no reasonable expectation of showing that the risk posed by this act would result in death or grave bodily injury. Id. at 336.
McMahon has no reasonable expectation of proving the essential element of willful, wanton or reckless conduct at trial and thus, as a matter of law, McMahon's claim must be barred.
For these reasons, the City's motion for summary judgment is ALLOWED
as to McMahon's claim of willful, wanton or reckless conduct by the City of
Somerville and therefore, judgment must enter in its behalf.