Opinion
10-P-2001
08-02-2011
EMILEE KAHLER & another v. TOWN OF MIDDLEBORO.
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
The plaintiffs appeal from a grant of summary judgment by a judge of the Superior Court in favor of the defendant town of Middleboro (town). Plaintiff Emilee Kahler was injured after falling from the base of light pole she climbed while attending an after-school program administered by the privately-run YMCA, located at but not affiliated with the Henry B. Burkland School, a public school. Both parties moved for summary judgment; the plaintiffs' complaint for negligence and loss of consortium was dismissed on the ground that the town was immune from suit pursuant to G. L. c. 21, § 17C, the recreational use statute. The plaintiffs argue on appeal that Kahler was owed a higher duty of care as a student present on school premises and that there remained genuine issues of material fact regarding the applicability of the statute. We affirm.
Kahler was a student at the Mary K. Goode school, adjacent to the Henry B. Burkland School.
We review a grant of summary judgment de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007). '[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.' Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
General Laws c. 21, § 17C(a), as amended by St. 1998, c. 268, abrogates the duty of care of landowners who make their property available for public use, providing in relevant part,
Section 17C was subsequently amended, in respects not relevant here, by St. 2008, c. 513, §§ 1, 2, effective April 4, 2009.
'Any person having an interest in land including the structures, buildings, and equipment attached to the land . . . who lawfully permits the public to use such land for recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor . . . shall not be liable for personal injuries or property damage sustained by such members of the public, including without limitation a minor, while on said land in the absence of wilful, wanton, or reckless conduct by such person.'
The statute applies to both private and public landowners, like the defendant town. Anderson v. Springfield, 406 Mass. 632, 634 (1990). It is undisputed that the town owns and maintains the Henry B. Burkland School, including the area in which the light pole was located, as well as the pole itself. The town also established that the property was open and available for public recreational use free of charge. See Ali v. Boston, 441 Mass. 233, 238 (2004) ('The fact finder, therefore, need only determine whether the plaintiff is permitted to be in the park because he is engaged in an objectively recreational activity'). The YMCA after-school program held a license to operate on town property and did not pay the town a fee for such use.
Participants, including the plaintiff, in the after-school program paid a fee to the YMCA, no part of which was paid or transferred to the town. These fees have no effect on the application of the recreational use statute. See Seich v. Canton, 426 Mass. 84, 86 (1997) (registration fee 'is not the equivalent of the town imposing a fee for the use of its land for recreational purposes').
Turning to the question of Kahler's activities on the property, we conclude that she was engaging in recreational activities within the meaning of the statute. At the time of her injury, Kahler was engaged in play with other children, 'an objectively recreational activity, and is therefore a recreational user limited by the provisions of the statute'. Ibid. See Catanzarite v. Springfield, 32 Mass. App. Ct. 967, 967 (1992) (recreation 'would include not only the active pursuits . . . but also passive pursuits').
The plaintiffs rely on Alter v. Newton, 35 Mass. App. Ct. 142 (1993), for the proposition that, the recreational use statute notwithstanding, schools owe a higher duty of care to students on their premises for an educational activity. Id. at 149, quoting from Minidoka Sch. Dist. No. 331, 116 Idaho, 586, 588 (1989) (''if the recreational use statute were applied to injuries children suffered while on school premises as students,' the special relationship of the school to its students would be substantially impaired'). Although Alter v. Newton, supra, imposes a heightened duty of care on municipalities with respect to students at public schools, it is inapposite to the case at hand. Unlike the plaintiff in that case, Kahler was not a student at the school where she was injured and was not participating in an activity approved of or sponsored by the school. The school had no supervisory role over her and, indeed, no role at all in the YMCA program. There was no inherent link between her presence on town property and her status as a student that would implicate the 'special relationship of the school to its students,' ibid., and trigger the heightened duty of care. For the purposes of the statute, Kahler was thus situated as a member of the general public. Any inequity in the result is an unfortunate consequence of the statute as written by the Legislature, beyond the scope of our authority to alter. See Leopoldstadt, Inc. v. Commissioner of Div. of Health Care Fin. and Policy, 436 Mass. 80, 87 (court declines to adopt statutory interpretation that 'does not assure that the purpose of the statute will be fulfilled'); Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct. for the County of Worcester, 446 Mass. 123, 126 (2006) ('We do not read into [a] statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had an option to, but chose not to include').
For the reasons stated above, we conclude that the recreational use statute applies and affirm the Superior Court judge's grant of summary judgment for the defendant.
The plaintiffs do not advance a claim that the town was guilty of willful, wanton, or reckless conduct.
Judgment affirmed.
By the Court (Graham, Brown & Sikora, JJ.),