United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
a slip and fall case arising out of a sporting event on the
campus of Boston University in Boston, Massachusetts. The
defendants have moved for partial summary judgment with
respect to the application of a Massachusetts statute that
imposes a cap on damages recoverable for torts committed by
February, 2016, Kenneth Mazzone (“Mazzone” or
“plaintiff”) attended a lacrosse game between
Providence College (on whose team his son played) and Boston
University at Nickerson Field. As Mazzone was leaving the
stadium, he slipped and fell on snow that was in the aisle of
the bleachers. He was apparently severely injured.
University (“the university” or
“defendant”) is responsible for maintaining
Nickerson Field. The day before the subject lacrosse game,
university staff performed snow-cleaning services in the
grandstand area of Nickerson Field in response to a major
snow storm. Plaintiff contends that the university's snow
removal operation (the alleged cause of the tort) falls
outside the scope of the university's charitable purpose
and that while he did not pay for his ticket, Boston
University received revenue from ticket sales for the game
which rendered it primarily commercial. The university
responds that it is a charitable organization under
Massachusetts law and that the mission of its Athletic
Department, including its Men's Lacrosse Program, aligns
with the charitable purpose of the university.
has brought suit in federal court against Boston University
and the Trustees of Boston University
(“defendants”). Pending before this Court is
defendants' motion for partial summary judgment.
role of summary judgment is to assess the proof in order to
see whether there is a genuine need for trial. Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The
burden is on the moving party to show, through the pleadings,
discovery and affidavits, that there is “no genuine
dispute as to any material fact and that the movant is
entitled to judgment as a matter of law”. Fed.R.Civ.P.
56(a). A fact is material if it “might affect the
outcome of the suit under the governing law”.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine issue of material fact exists where the
evidence with respect to the material fact in dispute
“is such that a reasonable jury could return a verdict
for the nonmoving party”. Id.
moving party has satisfied its burden, the burden shifts to
the nonmoving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The Court must view
the entire record in the light most favorable to the
nonmoving party and indulge all reasonable inferences in that
party's favor. O'Connor v. Steeves, 994 F.2d
905, 907 (1st Cir. 1993). Summary judgment is appropriate if,
after viewing the record in the nonmoving party's favor,
the Court determines that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a
matter of law. Celotex Corp., 477 U.S. at 322-23.
Defendants' Motion for Partial Summary Judgment
Massachusetts legislature has enacted a cap on damages
recoverable for torts committed in the course of activity
that furthers the purpose of a charitable organization.
M.G.L. c. 231 § 85K. To qualify for the damages cap, a
defendant must demonstrate that it is a charitable
organization and that the tort complained of fell within the
range of activities covered by the statute. Conners v.
Ne. Hosp. Corp., 789 N.E.2d 129 (2003).
parties concede that Boston University qualifies as a
charitable organization but plaintiff disputes whether that
status extends to the Athletic Department and, specifically,
to the lacrosse team. This Court agrees with defendants that
the charitable status of Boston University applies in equal
measure to the Athletic Department and to its lacrosse team.
Defendants have demonstrated that the university, consistent
with its mission as a charitable organization, diligently
endeavors to operate its school-sponsored sporting events as
part of that mission. Snow removal at Nickerson Field allows
the university to host outdoor athletic events for its
athletes and their spectators (which include students,
friends and families) during the wintertime. See
Conners, 789 N.E.2d at 135 (holding that snow removal in
a hospital's parking lot directly accomplished the
subject charitable purpose). Moreover, Mazzone has not shown
why his status as a spectator is distinguishable in this
analysis. Simply because Mazzone was a spectator rather than
a player in the lacrosse game does not alter the fact that
the sporting event was a component of the university's
submits that his payment for parking at Nickerson Field was
unrelated to the university's charitable purpose.
Massachusetts courts have held that if an organization's
revenue-generating activity is “primarily
commercial”, it cannot “accomplish
directly” its charitable work. Id. at 137. To
be clear, a revenue-generating activity does not make the
activity primarily commercial. Missett v. Cardinal
Cushing High Sch., 680 N.E.2d 563, 567 (1997). It may
still “accomplish directly” the