Graney v. Massachusetts District Commission (MDC)

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.