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 ...