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13-P-1848                                              Appeals Court

            SUSAN M. AMARAL    vs.   SEEKONK GRAND PRIX CORP.


                              No. 13-P-1848.

         Bristol.       October 6, 2014. - January 14, 2016.

            Present:   Cypher, Grainger, & Maldonado, JJ.


         Negligence, One owning or controlling real estate.



     Civil action commenced in the Superior Court Department on
May 2, 2012.

     The case was heard by Richard T. Moses, J., on a motion for
summary judgment.


     Melody A. Alger for plaintiff.
     Jacqueline L. Allen for the defendant.


     MALDONADO, J.     The Massachusetts recreational use statute1

provides that those who make their land available to the public

for "recreational . . . purposes without imposing a charge or

fee therefor, . . . shall not be liable for personal injuries

. . . sustained by such members of the public . . . in the

     1
       The statute also has been referred to as the "public use
statute." Ali v. Boston, 441 Mass. 233, 235 (2004).
                                                                       2


absence of wilful, wanton, or reckless conduct by [the

landowner]."   G. L. c. 21, § 17C(a), as appearing in St. 1998,

c. 268.    In this case, we are asked whether the statute bars a

claim of negligence asserted by a mother (the plaintiff) who was

injured by an errant "go-cart" while watching her sons drive go-

carts at the defendant's recreational facility.    The facility

does not charge an admission onto the grounds but sells tickets

for its rides, and the plaintiff had purchased tickets for use

by her sons.   We conclude that the statute does not bar relief

for injuries caused by negligence in these circumstances.

     Background.   Seekonk Grand Prix Corp.2 (Grand Prix) is a

Massachusetts corporation that operates a commercial

recreational facility offering, among other activities, go-cart

races.    Grand Prix charges a fee for the go-carts, miniature

golf, bumper cars, and other similar activities.   It does not

charge a fee to watch these activities, nor does it charge a fee

to enter the facility.

     On May 25, 2009, the plaintiff took her two sons, ages

eleven and thirteen years of age, to Grand Prix's facility.      She

purchased six tickets for her sons' use.    At the time of the

injury, she was standing behind a chain link fence as she

     2
       As the case was decided on Grand Prix's motion for summary
judgment, we recite the undisputed facts in the summary judgment
record in the light most favorable to the plaintiff. See
Longval v. Commissioner of Correction, 404 Mass. 325, 327
(1989).
                                                                    3


watched her sons drive the go-carts.    After the other drivers

had returned to the station, a go-cart driven by a young girl

went through the fence and struck the plaintiff, causing a

number of injuries, including a pulmonary embolism that resulted

from a blood clot in her left leg.

    The plaintiff filed a negligence action against Grand Prix

in the Superior Court.    A judge of that court granted Grand

Prix's motion for summary judgment based on the recreational use

statute, citing case law indicating that the statute provides

immunity from liability when a landowner does not impose a

charge or fee for an injured plaintiff's recreational use of the

land.   See Seich v. Canton, 426 Mass. 84, 85-86 (1997); Whooley

v. Commonwealth, 57 Mass. App. Ct. 909, 910 (2003).      Contrast

Marcus v. Newton, 462 Mass. 148, 155 (2012);.     The judge

concluded that Grand Prix was entitled to immunity from

liability under the statute because the plaintiff was using the

facility in a recreational capacity as a spectator and the

facility did not charge the plaintiff or other members of the

public for this particular recreational use of the property.

    Discussion.   1.     Standard of review.   "The standard of

review of a grant of summary judgment is whether, viewing the

evidence in the light most favorable to the nonmoving party, all

material facts have been established and the moving party is

entitled to a judgment as a matter of law."      Augat, Inc. v.
                                                                       4


Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).    See

Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).

Although "[n]egligence cases are not frequently resolved by

summary judgment, . . . a judge may decide the issue as a matter

of law . . . where[, as here,] the defendant offers a statutory

exemption from liability as an affirmative defense."       Patterson

v. Christ Church in the City of Boston, 85 Mass. App. Ct. 157,

159 (2014) (quotation and citation omitted).    Our review is de

novo.     See American Intl. Ins. Co. v. Robert Seuffer GmbH & Co.

KG, 468 Mass. 109, 113, cert. denied, 135 S. Ct. 871 (2014).

     2.    Recreational use statute.   The statute states, in

relevant part:

          "(a) Any person having an interest in land . . . who
     lawfully permits the public to use such land for
     recreational . . . purposes without imposing a charge or
     fee therefor . . . shall not be liable for personal
     injuries . . . sustained by such members of the public
     . . . in the absence of wilful, wanton, or reckless
     conduct[3] by such person. . . .

          "(b) The liability of any person who imposes a charge
     or fee for the use of his land by the public for the
     purposes described in subsection (a) shall not be limited
     by any provision of this section. For the purposes of this
     section, 'person' . . . shall include, without limitation,
     . . . [a] corporation, company or other business
     organization . . . ."

G. L. c. 21, § 17C, as appearing in St. 2008, c. 513.      The

statute "grants an exemption from liability for ordinary


     3
       The plaintiff does not claim that Grand Prix's conduct was
wilful, wanton, or reckless.
                                                                    5


negligence where [1] a defendant has an interest in land, [2]

the plaintiff was injured when engaged in a recreational

activity on that land, and [3] the defendant did not 'impos[e] a

charge or fee' for the injured plaintiff's use of the land."

Patterson, supra at 160 (citation omitted).   As the plaintiff

only challenges the second and third factors, we focus our

discussion on them.

     3.   Recreational activity and imposing a fee.   We begin by

noting that the statute does not define the term "recreation"

and that our cases have not definitively addressed the extent to

which it may include watching others engaged in a recreational

activity.4   We further note that although the Supreme Judicial

Court commented in Seich, 426 Mass. at 85 n.4, that "the Appeals

Court [in Catanzarite v. Springfield, 32 Mass. App. Ct. 967, 967

(1992),] has construed the term 'recreation' to include . . .

'passive pursuits, such as watching baseball,'" the Supreme

Judicial Court prefaced this remark by stating that it had

"never defined the term."   Thus, even though the Supreme

Judicial Court has cited the dicta in Catanzarite, it has done

so "in a manner that leaves in some doubt its own views of the



     4
       See, e.g., Catanzarite v. Springfield, 32 Mass. App. Ct.
967, 967 (1992) (reference in dictum to "watching baseball").
See also Seich, 426 Mass. at 85 n.4 (defendant conceded
plaintiffs were engaged in recreation); Whooley, 57 Mass. App.
Ct. at 910 (same).
                                                                       6


principle."    Nantasket Beachfront Condominiums, LLC v. Hull

Redev. Authy., 87 Mass. App. Ct. 455, 464 n.13 (2015).

     We need not decide, however, whether entering land for the

sole purpose of watching others engaged in a recreational

activity itself qualifies as recreation under the statute.       The

circumstances of this case involve a parent who accompanied

minor children, purchased their tickets, and remained to

supervise them.   As a parent, the plaintiff was using the

facility for the recreation of her children, and she paid for

that use by purchasing tickets.   Grand Prix could fully

anticipate that a parent accompanying minor children and paying

a fee on their behalf would qualify as a paying customer under

the statute.   Otherwise stated, Grand Prix collected, and the

plaintiff paid, a fee for her particular use of the land.     See

G. L. c. 21, § 17C(b).5   In these circumstances, application of

the statute's immunity provision "would undermine the very

purpose of the statute:   to encourage landowners to permit

broad, public, free use of land for recreational purposes by

limiting their obligations to lawful visitors under the common

law" (emphasis supplied).    Ali v. Boston, 441 Mass. 233, 238

(2004).




     5
       Notably, nothing in the summary judgment record suggests
that the plaintiff could not have used the tickets herself.
                                                                   7


     Conclusion.   Because the plaintiff was charged a fee for

her particular use of the land, summary judgment was not

appropriate.6   The judgment is vacated and the case is remanded

to the Superior Court for further proceedings consistent with

this opinion.

                                    So ordered.




     6
       In view of our conclusion, we need not address the
plaintiff's remaining arguments.
