Graney v. Massachusetts District Commission (MDC)

Commonwealth of Massachusetts
Suffolk, SS.
Superior Court
Civil Action No. 1998-2397B

Michael Graney,

Plantiff

v.

Metropolitan District Commission and Executive Office Of Environmental Affairs,

Defendants

Defendants’ Memorandum in Support of its Motion for Summary Judgment

The defendants, the Metropolitan District Commission (MDC) and the Executive Office of Environmental Affairs (EOEA), two agencies of the Commonwealth of Massachusetts (hereinafter referred to collectively as the Commonwealth), request that the Court enter summary judgment in their favor. The Recreational Use Statute bars, as a matter of law, plaintiff Michael Graney’s (Graney) claim that the Commonwealth was negligent in its maintenance of a bikepath in the Southwest Corridor Park. Moreover, the facts as alleged by Graney do not as a matter of law rise to the level of wilful, wanton or reckless conduct, which is the standard which Graney must meet in order to hold the Commonwealth liable under the Recreational Use Statute. Therefore, the Commonwealth is entitled to summary judgment.

I. STATEMENT OF THE CASE

Graney’s Complaint alleges the Commonwealth was negligent and/or negligent in its maintenance of a bikepath in the Southwest Corridor Park. Complaint, ~1 3, 7; Second Amended Complaint, 3, 7. Graney initially sought damages for personal injuries which he claimed to have suffered. Complaint, ~ 7. Graney subsequently amended his Complaint to add a claim for injunctive relief and sought a preliminary injunction to enjoin the MDC from blocking or obstructing any path which the MDC maintains. Second Amended Complaint. The Court denied Graney's request for injunctive relief. The Commonwealth now seeks Summary Judgment on Graney’s negligence and reckless conduct claims.

II. STATEMENT OF FACTS

The Southwest Corridor Park is a 5 mile, 60 acre park which extends from Forest Hills in Jamaica Plain through the South End to Copley Square. It is an active and passive recreation park, consisting of open green space with shrubs, Ilowers and plants, as well as basketball courts, tennis courts, spray pools, a public skating rink, a street hockey rink, two amphitheaters. a bikepath. a pedestrian walkway and 180 community garden plots. There is no fec charged for use of the Park. Ex. A, Affidavit of Thomas Yovicisn, >~ 2)

The MDC is responsible for all maintenance and repair of the Park. There is a staff of 5 persons who perform all the maintenance work for the Park. The MDC’s responsibilities include maintaining and repairing the various recreational facilities mentioned supra, as well as maintaining and repairing the Park’s grass, shrubs, plant and flower beds, benches. lighting, trash receptacles, irrigation system and plowing or shoveling snow. The Park has an extensive

A copy of Yovicisn's Affidavit is attached. The original was previously submitted to the Court as an attachment to the Commonwealth's Opposition to Graney’s Motion for Preliminary Injunction.

irrigation system which consists of numerous miles underground piping which run the length of the Park as well as sprinkler heads at or near the surface of the ground. Yovicisn Aff., ~j 3.

While the MDC makes every effort not to block the bikepath or pedestrian walkway, circumstances occasionally require that vehicles or other items be in the bike path or walkway for a short period of time in order to allow the MDC to carry out its maintenance and repair responsibilities. The MDC’s trucks often cannot drive over the grass because they would break the sprinkler heads of the Park’s irrigation system. The MDC uses mulch on the Park’s shrubs, plant and flower beds on a regular basis. Although the mulch is often initially dumped onto grassy areas before placement when feasible, there are occasionally times when it is not feasible to do so because of the location. On those rare occasions, the mulch may be placed on the bike path for a short period of time and is attended to by the maintenance staff as soon as possible. Yovicisn Aff, ~j 4.

Any items such as vehicles or, on occasion, mulch, in the bike path are visible to users of the bike path. The bikepath does not have any hills or hidden areas. The posted speed limit for the bike path is 15 m.p.h., and bicyclists who stay within the speed limit can easily avoid any obstructions. However, bicyclists often exceed the posted speed limit when using the bikepath. The bikepath is lit at night. Yovicisn Aff., ~j 5.

Most of the Park is immediately adjacent to or over the tracks used by the MBTA’s Orange Line and Amtrack and to various city streets. During 1999, Amtrack was engaged in a major project to electrify the train tracks adjacent to the Park. This was part of Amtrak’s project to provide high-speed rail service between Boston and New York. As part of its work on that project. Anitrack vehicles and equipment sometimes blocked portions of the bike path. The Park’s fence ad to the tracks also had to be repaired following Amtrack's work. The contractor repairing the fence sometimes blocked the bike path in order to complete its work. Amtrak’s electrification project was completed in the late fall of 1999. Yovicisn Aff., ~I 7.

Graney claims that he was injured when he rode his bike into a pile of mulch which he claims was on the bikepath and he could not see because it was dark. Second Amended Complaint, ~I 3. Graney Affidavit to Plaintiffs Motion for Summary Judgement, & 4.

III. ARGUMENT

Summary judgment is appropriate where there are no genuine issues of material fact and the record demonstrates that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56; Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). On matters for which the moving party does not bear the burden of proof at trial, the moving party may demonstrate the absence of a triable issue by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. See, Kourouvacilis v. General Motors Corp. supra, 410 Mass. at 714. Here, the Commonwealth is entitled to summary judgement as a matter of law on Graney’s negligence claim because that claim is barred as a matter of law by the recreational Use Statute. The Commonwealth is entitled to judgment as a matter of law on Graney's reckless conduct claim because Graney has no reasonable expectation of proving that the Commonwealth acted in a reckless manner here.

A. The Recreational Use Statute Bars Granev’s Negligence Claim.

The Recreational Use Statute, G. L. c. 21, ' 17C, excludes the owner of land from liability except for gross negligence if the owner allows the public onto such land for recreational purposes without charging a fee. G.L. c. 21, ' 17C provides2, in pertinent part:

An owner of land who permits the public to use such land for recreational purposes without imposing a charge or fee therefor ... shall not be liable to any member of the public who uses such land for the aforesaid purposes for injuries to person or property sustained by him while on said land in absence of wilful, wanton or reckless conduct by such owner

The bikepath on which Graney claims to have been injured is part of an extensive Park which the MDC permits the public to use for recreational purposes. Yovicisn Aff., ~J 2. The MDC does not charge a fee for use of the Park. Id. Under the terms of G.L. c. 21, ' 17C, the MDC can only be held liable for wilful, wanton or reckless conduct. Consequently, Graney's negligence claim is barred by G.L. c. 21, ' 1 7C.

B. The Commonwealth's Conduct Does Not Rise to the Level of Wilful, Wanton or Reckless Conduct.

Graney also has no reasonable expectation of proving that the Commonwealth's conduct was reckless. In order to be liable for reckless conduct, the defendant must knowingly or intentionally disregard an unreasonable risk, and the risk, viewed prospectively, must entail a high degree of probability that substantial harm would result to the plaintiff. Manning ~ Nohile, 411 Mass. 382, 388 (1991). The standard is high – even a persistent failure to remedy defects on a traveled bikeway has been found not to present a level of dangerousness that warrants liability under G.L. c. 21, ' 17C. Sandier v. Commonwealth, 419 Mass. 334 (1995). In that case, the plaintiff was injured when he fell off his bicycle while riding on a bikepath which had an uncovered, eight-inch wide, twelve-inch long drain in an unlit section of the hikepath. The public employees were aware of the missing drain cover and were aware that section of the bikepath was unlit. Nevertheless, the Supreme Judicial Court held that even though the public employees were aware of the risk of harm of an uncovered drain in an unlit section of the bikepath and may not have responded reasonably. the degree of risk of injury did not arise to recklessness. The Court analogized the failure to alleviate the risk of injury in the bikepath in Sandier to those cases in which the Court failed to finding reckless behavior in the failure to repair a drain which resulted in an accumulation of ice, Mounsey v. Eiiard, 363 Mass. 693, 694 (1973); the failure to fulfil a statutory duty to maintain a fence along a railroad right of way, thus permitting a child to cross railroad tracks, Saw/er v. Boston & Albany R.R., 339 Mass. 34, 36 (1959); or the lack of repair of an unguarded and unlit elevator, Carroll v. Heinenwav, 315 Mass. 45, 46-47 (1943).

Here, the allegations concerning the Commonwealth’s conduct fall within that determined not to constitute recklessness in Sandier. Just as in Sandier, the claim here is that there was a risk of harm in the bikepath. In Sandier, the Court found that the public employees were aware of the risk and their failure to alleviate the risk may have been unreasonable hut not reckless. Similarly, the claim here is that there was a risk of harm, the presence of mulch, in the bikepath which the public employees failed to alleviate. Since the Court in Sandier has determined that such a failure does not constitute reckless conduct, Graney has no reasonable expectation of proving recklessness. Since Graney has no reasonable expectation of proving recklessness, an essential element of its case, the Commonwealth is entitled to summary judgment.

IV. CONCLUSION

For the reasons stated herein, the Commonwealth respectfully requests that this honorable Court enter Summary Judgment in its favor.

2G.L. c. 21, ' l7C was amended effective November 8, 1998, after the date Graney claims he was injured, June 17, 1996. See, Second Amended Complaint, ~j 3.