Opinion
11-P-141
02-14-2012
LINDA CONNORS v. TOWN OF PEMBROKE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In November, 2005, the plaintiff, a spectator standing about ten feet from the sidelines at a Thanksgiving high school football game on a town-owned field in Pembroke, was struck and seriously injured when the helmet of a player who was forced out of bounds struck her in the knee. She brought a complaint in negligence against the town, alleging that the town 'negligently and carelessly directed or permitted spectators, including [p]laintiff, to observe the aforesaid football game from a place [d]efendant knew or reasonably should have known to be dangerous without giving any warning as to the danger' and 'negligently and carelessly organized, supervised, directed, promoted and otherwise permitted a dangerous condition on the aforesaid [p]remises and failed to provide [p]laintiff with a safe environment to observe the said football game.' A Superior Court judge allowed the town's motion for summary judgment and the plaintiff has appealed.
The plaintiff apparently paid for a ticket for entry to the game. Thus the recreational use statute, G. L. c. 21, § 17C, does not apply to limit the town's liability, if any. See Seich v. Canton, 426 Mass. 84, 86 (1997); Whooley v. Commonwealth, 57 Mass. App. Ct. 909, 910 (2003).
The judge also denied the plaintiff's motion for reconsideration. The plaintiff filed a separate notice of appeal thereafter, but does not argue the issue on appeal.
The judge allowed the town's motion, predicated on the open and obvious danger doctrine, see and compare Costa v. Boston Red Sox Baseball Club, 61 Mass. App. Ct. 299, 302-303 (2004), and the public duty rule of G. L. c. 258, § 10(j). See Pallazola v. Foxborough, 418 Mass. 639, 641 (1994). To the extent that the plaintiff was asserting a claim of negligent crowd control, the judge also raised, sua sponte, the applicability of G. L. c. 258, § 10(h). Ibid.
Making the waiver of sovereign immunity inapplicable to 'any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer . . . .'
Barring '(h) any claim based upon the failure to establish . . . a particular police protection service, or . . . failure to provide adequate police protection . . . , or enforce any law . . . .'
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Upon review of the briefs, record and transcript, nothing has been made to appear that would cause us to reverse the judgment.
Judgment affirmed.
By the Court (Graham, Brown & Meade, JJ.),