Commonwealth of Massachusetts
Civil Action No. 1998-2397B
Metropolitan District Commission and Executive Office Of Environmental Affairs,
Now comes the plaintiffs and stated the following in opposition to defendants’ Motion for Summary Judgment.
Plaintiff does not dispute the facts set forth by the defendants but asserts additional facts, undisputable, which the defendants fail to note.
Plaintiff contends that the three numbered statements of facts enumerated by the defendants are incomplete and consequently misleading, as follows:
The total cost of the relocation of the Orange line subway line and related accessory uses was originally funded at $671,900,000, according to the 1978 Memorandum of Approval of the United States Department of Transportation [Exhibit B, hereto], and cost some $772,224,687 by the project’s completion in 1995. [See Exhibit C, August 4, 1995 letter of Project Closeout numbers]
The grant funding and project included, in addition to the relocation of the railroad bed, with new signal systems, new power systems, construction of embankments and some sixteen (16) bridges and the construction of six Amajor rapid transit/commuter rail stations@. [Exhibit B, pages 9-10] As part of the intermodal transportation connections, the stations were to be complemented by Aconstruction of bicycle and pedestrian access to the transit stations@ [Exhibit B, p. 10] and a Agreenbelt, which is part of this project...consisting of bike-paths, landscaping, lighting, and trails.@ [Exhibit B, p. 10]
This is significant in light of the defendants' contention that the bicycle path is part of a recreational facility. It is not. Rather the facility is a major transportation facility, including intermodal bicycle access to the transit stations and any recreational component must be small enough that it did not impair the project’s funding with Federal transportation money.
More significantly, according to the 1/25/90 agreement, the MBTA grant to the MDC for parkland use is a license subject to Aan easement for a bicycle path as shown on said plan, or as said bicycle path may be relocated in accordance with development plans for the area@ [Exhibit D, '4.3] Finally, the agreement states that AMDC will also be responsible for maintenance and repair of the bicycle path which shall include snow removal@. [Exhibit D, '4.3]
I. THE STANDARD FOR SUMMARY JUDGMENT
Summary Judgment is appropriate when there are no material issues of fact in dispute. Mass.R.Civ.P., Rule 56 (c) A motion for summary judgment must necessarily fail if the defendants, as the moving party, does not establish the absence of any genuine issue of material fact or if the plaintiff, as the opposing party, establishes that there is a genuine triable issue. Lyons v. New Mass Media, Inc., 390 Mass. 51, 453 N.E.2d 451 (1983). In other words, if any material fact is disputed, summary judgment must be denied.
The party moving for summary judgment has the burden of showing that there is no genuine issue of material fact. John B. Deary, Inc., v. Crane, 4 Mass. App. Ct. 719 (1976) In addition, the moving party has the burden of showing that the law favors its position. Dollof v. School Committee of Methuen, 9 Mass. App. Ct. 502, 402 N.E.2d 1067 (1980).
Moreover, in ruling on summary judgment, the Court must view facts in the light most favorable to the plaintiff, as the opposing party, and thus must draw all inferences in favor of the plaintiff. Coveney v. President and Trustees of Holy Cross College, 388 Mass. 16, 445 N.E.2d 136 (1983).
Thus, for purposes of this motion, Plaintiff is entitled to the presumption that everything pleaded in the complaint is true and to every inference that may be drawn therefrom.
A. The Recreational Use Statute does not apply because the MDC is not the owner of land, the land was not offered to the public for Arecreational use@, but was a transportation corridor, and the plaintiff was not using the land for recreational purposes.
The defendants erroneously argue that it can only be held liable for Awillful, wanton or reckless conduct@, pursuant to M.G.L., c. 21 '17C. However, as the defendants note, that statute only applies to Aan owner of land who permits the public to use such land for recreational purposes@.
It is undisputed fact that the Southwest Corridor Bicycle Path is part of the Southwest Corridor, a transportation corridor owned by the MBTA, which licenses parts of the surface of the corridor to the defendant MDC in return for the defendant MDC maintaining the bicycle path. It is equally undisputed that the plaintiff was not using the bike path for recreational purposes but was commuting home from work.
Thus neither the recreational use statute nor the case cited by the defendants interpreting that statute, Sandler v Commonwealth, 419 Mass 334 (1995) is applicable, as the defendants were not the owners of the land and the plaintiff was not using the land for recreational purposes. Accordingly, the defendants should be held to the usual standards of reasonable care and not the higher standard of Awillful, wanton or reckless conduct@.
B. The bike path is part of a transportation corridor which is not recreational land, and thus M.G.L., c. 21, ' 17C, the Recreational Use Statute, does not apply.
The Recreational Use Statute does not apply to the Southwest Corridor because the Southwest Corridor, funded by Federal transportation funds is not a recreational facility. It is a transportation facility and the bicycle path is a part of the intermodal transportation coordination, designed for Apedestrian and bicycle access to the transit stations@. [See Memorandum of Approval, Exhibit B, p. 10] The greenbelt park is incidental to this primary use B so much so that EX A B concern about losing funding if deed land for park
C. Even if M.G.L., c. 21, ' 17C, the Recreational Use Statute, did apply, the defendants' conduct was willful and so reckless that summary judgment should still be denied.
The defendants contend that it is acceptable for them to be negligent, as long as their conduct was not Awillful, wanton or reckless conduct@, citing Sandler v Commonwealth, 419 Mass 334 (1995). In Sandler, the MDC was excused for its negligence in inadequately maintaining a portion of the bike path along the Charles River that went through a tunnel that was Achronically unlit@. The plaintiff’s injury was caused when his bike ran into an uncovered 8 x 12 inch drain in the unlit tunnel. The Court, while suggesting that Aeach case depends on the facts and that some cases are close to the line@, found that the MDC’s conduct Adoes not present a level of dangerousness that warrants liability under G.L. c. 21 ' 17C for [its] inaction@, in failing to keep the tunnel lit and in failing to replace the chronically missing drain.
However, Plaintiff Graney was injured not as a result of the defendant MDC’s inaction, but by the willful placing of obstructions in the middle of the travel lane of the bicycle path roadway on an unlit portion of that roadway. This is much more than mere inaction. If the ongoing neglect shown in Sandler was what the Supreme Judicial Court suggested was Aclose to the line@, then a willful act, the placing of piling mulch in the middle of an unlit portion of the roadway where it is likely to cause a bicyclist injury certainly rises to the level of willful, wanton or reckless conduct that would impose liability upon the defendant MDC even if the Recreational Use Statute, M.G.L., c. 21, ' 17C, did apply.
Here, the MDC concedes that not only did it place the pile of mulch in the middle of the roadway but that it has done so repeatedly, as a matter of practice, although only on what its deputy superintendent, Thomas Yovicisn claims are Arare occasions@. [Yovicisn affidavit, & 5]
However, the mulch may sit in the middle of the roadway, blocking the lane of travel, for as a long as a week on each of these Arare occasions. [Affidavit of David Wean, &s 11 and 12]
Moreover, not only, as the defendant MDC admits, is this willful conduct ongoing: the defendant also instructs MBTA employees to park their cars in the bicycle path lane of travel Ato keep the truck’s tires “off the grass”. [Supplemental Affidavit of David Wean, &4, Supplemental Affidavit of Tom Revay, &s 4-12] A trier of fact could well find that placing bicyclists in danger in order that the grass not be trampled shows a willful, wanton reckless disregard for the safety of bicyclists, such as the plaintiff, using the bicycle path. Certainly there are other alternatives, less dangerous to the bicyclists using the path, such as parking in the legal parking spaces on Columbus Avenue or the other streets that parallel the transportation corridor. But it doubtful that the defendant MDC would ever tell the MBTA workers to park in the middle of Columbus Avenue, or that anyone would tolerate such reckless disregard for the safety of motorists.
Similarly, the defendant MDC places the possibility of damage to its sprinkler heads ahead of the likely injury to bicyclists. This again shows not just passive neglect, which should not be accepted but is excusable under Sandler, but affirmatively placing bicyclists in danger in order to avoid potential damage to the park sprinkler system. The very fact that the defendant MDC could suggest that this is an acceptable excuse represents the extent to which the defendant shows reckless and utter disregard for the safety of bicyclists using the bike path.
The most elementary tort analysis, weighing the high likelihood of potential harm to bicyclists — who are human beings B compared to the minimal cost of finding other ways to protect the sprinkler heads — such as marking them with flags so that MBTA will see them, or letting the MBTA workers park on the street B is a measure of the utter disregard for the safety of bicyclists using the path the defendant is obliged to maintain safely.
What is worse, the agreement by which the defendant maintains the park and the bikepath [Exhibit D] expressly states that AThe MDC's easement for open space is subject to the MBTA’s right to maintain the...transit corridor@, [Exhibit D, ' 3.2 H] which includes the bicycle path. In other words, not only does common sense and the duty to maintain the physical safety of human beings come before the danger of trampling the grass or driving over the sprinkler heads that water the grass, the agreement by which the defendant MDC was given the park requires it to do so.
In light of this, it is hard to see how the defendants can attempt to justify conduct that so obviously places bicyclists at risk. In fact, their attempts to justify their conduct, suggesting that the grass is more important than bicyclists’ safety, demonstrates the defendants’ reckless disregard for the safety of bicyclists. Thus even if the Recreational Use statute did apply and permit the defendants the much lower standard of care, a trier of fact could still find the defendants liable for wanton and reckless disregard for the safety of bicyclists using the Southwest Corridor bike path.
Accordingly, the defendants are not entitled to summary judgment.
Plaintiff by counsel
Andrew M. Fischer / JASON & FISCHER
47 Winter Street, 4th Fl., Boston, MA 02108
1 This and other documents relating to the construction of the Southwest Corridor were obtained from the United States Department of Transportation by the plaintiff through a Freedom of Information Act request. This letter was produced in two versions, with the date on one and the underlining and side marks on the other. Both copies are provided herewith.
2 Although the bike path was unlit and dark, in violation of the defendant MDC’s contract to maintain the bike path, including Aparkland style lights. See amended complaint, & 5 and Plaintiff’s Answers to Interrogatories, Answer 2.