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SJC-11816

            JOHN W. MURRAY    vs.   TOWN OF HUDSON & others.1



            Worcester.       April 9, 2015. - August 3, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


Municipal Corporations, Liability for tort, Parks, Notice to
     municipality, Governmental immunity. Negligence,
     Municipality, One owning or controlling real estate,
     Athletics. Massachusetts Tort Claims Act. Parks and
     Parkways. Governmental Immunity. Notice, Claim under
     Massachusetts Tort Claims Act. Practice, Civil,
     Presentment of claim under Massachusetts Tort Claims Act.



     Civil action commenced in the Superior Court Department on
April 24, 2013.

     The case was heard by John S. McCann, J., on a motion for
summary judgment.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


    Brian W. Murray for the plaintiff.
    John J. Davis for town of Hudson.

    1
       Alteris Insurance Services, Inc. (Alteris), and Argonaut
Insurance Company (Argonaut). In June, 2014, a stipulation of
dismissal with prejudice was entered relative to the plaintiff's
claims against Alteris and Argonaut.
                                                                     2


     Charlotte E. Glinka, Thomas R. Murphy, Elizabeth S. Dillon,
& John A. Finbury, for Massachusetts Academy of Trial Attorneys,
amicus curiae, submitted a brief.


    GANTS, C.J.      During a varsity baseball game between two

high school teams at a public park in the town of Hudson (town),

the plaintiff, a ballplayer with the visiting team, seriously

injured his knee while warming up in the bullpen.    The plaintiff

filed suit in the Superior Court against the town under the

Massachusetts Tort Claims Act, G. L. c. 258 (act), alleging that

his injury was caused by the town's negligence and its wanton

and reckless conduct in allowing the visiting team to use a

dangerous bullpen.    The judge allowed the town's motion for

summary judgment, concluding that the evidence did not support a

finding of wanton or reckless conduct, and that the plaintiff's

negligence claim was barred by the recreational use statute,

G. L. c. 21, § 17C, where the injury occurred on a baseball

field owned by the town that it allowed the public to use

without a fee, and where the town had no "special relationship"

with the plaintiff because he was a student from a visiting high

school rather than the town's own high school.    We conclude that

the town could be found liable for negligence despite the

recreational use statute because, where a town's school invites

another town's school to play an athletic match on a town field,

the town owes the visiting student-athletes the same duty to
                                                                    3


provide a reasonably safe playing field that it owes to its own

students.   We also conclude that there was no failure of

presentment under § 4 of the act, and that it cannot be

determined until trial whether liability is barred by the

discretionary function exemption in § 10(b) of the act.     We

therefore reverse the allowance of the motion for summary

judgment and remand the case to the Superior Court for trial.2

     Background.    We recite the undisputed facts in the summary

judgment record.    Hudson High School (Hudson) hosted a varsity

baseball game against Milford High School (Milford) on the night

of May 15, 2010.3   The game was played at Riverside Park, a

public park in the town maintained by the town's department of

public works.4   The plaintiff, a member of the visiting Milford

team, alleges as follows:

     "During the game, [the plaintiff] was asked by his coach to
     warm up as a pitcher and he went to a designated 'bullpen'
     area located behind the third base dugout. The 'bullpen'
     area consisted of a[n] . . . area with wooden landscape
     timbers or berms enclosing the pitching rubber
     approximately [eighty-four] inches apart. During the

     2
       We acknowledge the amicus brief submitted by the
Massachusetts Academy of Trial Attorneys.
     3
       Hudson High School and Milford High School are both
members of the Massachusetts Interscholastic Athletic
Association (MIAA). The baseball game on May 15, 2010, was an
interscholastic event governed by the rules of the MIAA.
     4
       The town of Hudson (town) does not charge a fee for the
use of Riverside Park, and does not receive any portion of any
annual athletic fee that the plaintiff pays Milford High School.
                                                                   4


     course of his warm-ups, [the plaintiff]'s left foot on the
     follow through of a pitch struck the wooden landscape
     timber or berm located to his right. The uneven landing
     resulted in a twisting of [the plaintiff]'s left knee and
     caused him to fall to the ground and experience immediate
     pain. [The plaintiff] was caused to suffer a badly torn
     meniscus in his left knee which required two (2) surgical
     procedures as well as other medical and physical therapy
     treatments to repair and heal."5

The bullpen was designed and constructed by a former town

employee, and was maintained by the town and by student

athletes.

     As required under § 4 of the act, the plaintiff sent a

letter to the town board of selectmen on December 10, 2010,

reciting the above-quoted allegations, notifying them that he

was asserting a claim against the town, and making demand of

$100,000 for his "injuries, pain and suffering and medical

expenses."   The letter alleged that the town had "engaged in

willful, wanton or reckless conduct," and had committed a breach

of its "duty of reasonable care to visiting high school baseball

players and was negligent in allowing them to utilize the . . .

bullpen area."   The letter further alleged that the "bullpen

area" was "inherently dangerous" in three ways:

          "First, the width of approximately [eighty-four]
     inches between the wooden timbers that enclose the pitching

     5
       During his deposition testimony, the plaintiff stated that
the poor grading of the dirt forced him to start his pitching
motion on the far right side of the rubber. He also stated that
he had never warmed up in a bullpen with exposed wooden timbers
before.
                                                                   5


    mound is much too narrow an area, particularly when
    compared to the field's actual pitching mound which is
    approximately 140 inches across in the landing area and 203
    inches in diameter at the pitching rubber.

         "Secondly, the use of wooden timbers at all in this
    type of athletic setting, i.e. a pitching mound, is
    extremely dangerous. It invites exactly the kind of injury
    which occurred in this instance by creating an uneven
    landing spot for pitchers.

         "Third, the area itself is poorly lit. As stated,
    [the plaintiff] was injured during a night game. The poor
    lighting prevented him from viewing clearly, competently
    and thoroughly the condition of the warm up mound,
    particularly the type, size and locations of the wooden
    berms."

    After the town's insurer denied the plaintiff's claim, the

plaintiff brought this action, claiming that the town had

committed a breach of its "duty of reasonable care" and "engaged

in willful, wanton and reckless conduct" by "allowing a

'bullpen' area to be accessed by [the plaintiff] that was poorly

constructed, maintained and illuminated, all without any posted

warnings."   After the town's motion for summary judgment was

allowed by the judge, the plaintiff appealed, and we transferred

the case to this court on our own motion.

    Discussion.   1.   Recreational use statute.   Murray

challenges the judge's ruling that the recreational use statute

bars his negligence claim against the town.   The recreational

use statute, G. L. c. 21, § 17C, was enacted in 1972 "to

encourage landowners to permit broad, public, free use of land

for recreational purposes by limiting their obligations to
                                                                        6


lawful visitors under the common law."       Ali v. Boston, 441 Mass.

233, 238 (2004).       General Laws c. 21, § 17C (a), provides, in

relevant part:

       "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 . . . purposes without imposing a charge or
       fee therefor . . . shall not be liable for personal
       injuries . . . 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 makes recreational users a "discrete subgroup of

lawful visitors owed only the standard of care applicable to

trespassers:      that is, landowners must refrain from wilful,

wanton, or reckless conduct as to their safety."       Ali, supra at

237.       Because landowners do not owe recreational users the

reasonable duty of care owed to other lawful visitors, they may

not be found liable to them for ordinary negligence.       See id.

Government landowners that provide free access to their land for

public use are protected from liability by G. L. c. 21, § 17C,

to the same extent as private landowners.       See G. L. c. 21,

§ 17C (b) (including "any governmental body, agency or

instrumentality" within meaning of term "person").6      The town is

thus a proper party to invoke the recreational use statute.


       6
       The definition of "person" under the recreational use
statute was added in 1998 to G. L. c. 21, § 17C. St. 1998,
c. 268. But even before the statute made clear that "any person
having an interest in land" included a governmental body, we had
                                                                   7


     The original legislative purpose of the recreational use

statute was to encourage landowners to give the public free

access to their land for recreational purposes by protecting

them from negligence claims if a member of the public were to be

injured on the land.7   It was not intended to diminish the duty

of care that a school owes its students to provide reasonably

safe school premises for school-related activities, including

interscholastic sports.   "Personal injury from defective

premises . . . is not a risk that schoolchildren should, as

matter of public policy, be required to run in return for the


held that government landowners were protected from negligence
liability by the recreational use statute, relying on the
Massachusetts Tort Claims Act, G. L. c. 258, § 2, which
expressly provides that government entities "shall be liable
. . . in the same manner and to the same extent as a private
individual under like circumstances." See Anderson v.
Springfield, 406 Mass. 632, 634 (1990).
     7
       The recreational use statute, which also is called the
public use statute, was enacted following the commission of a
report by the Legislature, published in 1967, which found that
"the general public was increasingly pursuing 'participant
forms' of outdoor recreation (e.g., boating, camping, and
hiking), creating a need for more land than was then available
for public recreational use," and which also found that "the
need for additional space would not be met unless private
landowners were persuaded to open their land to the recreating
public" despite their "fear[s] that they would incur liability
for injured recreationalists." Ali v. Boston, 441 Mass. 233,
235-236 (2004), citing 1967 Senate Doc. No. 1136, at 15-16. As
originally enacted, the recreational use statute only extended
immunity to landowners who open their land to the public for
recreational purposes. See St. 1972, c. 575. It has been
amended to encompass landowners who open their land to the
public for other enumerated public purposes, including
educational purposes. See St. 1998, c. 268.
                                                                    8

benefit of a public education."   Whitney v. Worcester, 373 Mass.

208, 223 (1977).   See Alter v. Newton, 35 Mass. App. Ct. 142,

145 (1993) ("Because of the relationship between a school and

its students, the city had a duty of care to the plaintiff to

provide her with reasonably safe school premises").8   Therefore,

the recreational use statute does not alter the standard of care

that a school owes its own students arising from its special

relationship with its students, and would not protect the town

from liability for negligence claims brought against it by

students enrolled in its own public schools for injuries

sustained while the students were engaged in school-related

activities.   See id. at 149, quoting Bauer v. Minidoka Sch.

Dist. No. 331, 116 Idaho 586, 588-589 (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").9   Cf. Wilkins v. Haverhill, 468 Mass.


     8
       See also Driscoll v. Trustees of Milton Academy, 70 Mass.
App. Ct. 285, 304 (2007) (Mills, J., concurring in part and
dissenting in part) ("The existence of a duty that secondary
schools owe to minor children is further supported by the
special protections that both the courts and the Legislature
have long accorded to minors, and by the doctrine of in loco
parentis" [footnote omitted]).
     9
       See also McIntosh v. Omaha Pub. Sch., 249 Neb. 529, 538
(1996), appeal after remand, 254 Neb. 641 (1998), overruled on
other grounds by Bronsen v. Dawes County, 272 Neb. 320 (2006)
("Clearly, a student participating in a clinic sponsored by his
                                                                   9


86, 91 n.9 (2014), quoting Ali, 441 Mass. at 236 (because

municipalities need no "encouragement to open their schools for

parent-teacher conferences," applying recreational use statute

to parent's slip and fall on ice in school walkway on parent-

teacher night "would upend the balance that the Legislature

intended to strike 'between encouraging public access to private

land and protecting landowners from liability for injuries'").

    If the baseball game between the Hudson and Milford teams

had been played on a field on the Hudson grounds, it would be

plain that the town owed a duty to its students to maintain the

field in a reasonably safe condition.   That duty remains where,

as here, Hudson chooses to play its home interscholastic

baseball games in a town park off the high school grounds.




school's athletic program does not fall under the category of
recreational use of land open to members of the public without
charge"); M.M. v. Fargo Pub. Sch. Dist. No. 1, 783 N.W.2d 806,
815 (N.D. 2010), appeal after remand, 815 N.W.2d 273 (N.D. 2012)
("we do not believe the Legislature intended to relieve school
districts of duties of care owed their students, who are
mandated by law to attend their schools, based on a statutory
scheme designed to encourage landowners to make available to the
public land and water areas for recreational purposes"); Auman
v. School Dist. of Stanley-Boyd, 248 Wis. 2d 548, 554, 563-564
(2001) (where plaintiff was injured sliding down snow pile on
school playground during recess, "[h]er participation in what is
a 'recreational activity' in common parlance . . . does not
convert the educational purpose of school attendance into a
recreational activity under the [recreational immunity]
statute," and "[n]o reason exists to immunize school districts
from liability for not exercising reasonable care in the
maintenance of school facilities or supervision of
schoolchildren during regular school hours").
                                                                  10


    The town does not dispute that, if a Hudson pitcher had

been injured warming up in the home team bullpen, the

recreational use statute would not shield the town from

liability for negligence because of the special relationship the

town has with its own students.   But the town argues, and the

judge concluded, that because the plaintiff was a pitcher on the

visiting team and not a student at Hudson, there was no "special

relationship" between the plaintiff and the town "that stands in

the way of the normal operation of the recreational use

statute."   The consequence of such a ruling would be that the

town owes a duty of care to maintain a reasonably safe bullpen

for the home team, but need only avoid wilful, wanton, or

reckless conduct in maintaining the visiting team's bullpen.

This not only would be poor sportsmanship; it would be bad law.

    Hudson has chosen to offer interscholastic baseball as a

school-related activity for its students, but it can do so only

if other schools agree to compete against it; otherwise, Hudson

high school could offer only intramural baseball.   Where the

town, as it did here, invites a school like Milford to play a

baseball game on the town's home field, thereby enabling Hudson

students to play interscholastic baseball, the town owes the

students on the visiting team the same duty of care to provide a

reasonably safe playing field that it owes its own students.

Where the recreational use statute does not shield the town from
                                                                    11


liability for negligence resulting in injuries to its own public

school students, the statute also does not shield the town from

liability for negligence resulting in injuries to visiting

student-athletes.   See Morales v. Johnston, 895 A.2d 721, 724,

731 (R.I. 2006) (despite recreational use statute, town owed

visiting student-athlete "a special duty of care to protect her

from a dangerous condition on the athletic field").     Cf. Avila

v. Citrus Community College Dist., 38 Cal. 4th 148, 161-162

(2006) (despite doctrine of assumption of risk, "the host school

and its agents owe a duty to home and visiting players alike to

. . . not increase the risks inherent in the sport").

    The judge rested his ruling in part on Kavanagh v. Trustees

of Boston Univ., 440 Mass. 195, 196 (2003), where a Boston

University basketball player during an intercollegiate

basketball game punched and broke the nose of an opposing

player.   In that case, we affirmed the grant of summary judgment

in favor of Boston University, noting that the university owed

no duty to protect the plaintiff from third-party conduct absent

a "special relationship" between the plaintiff and Boston

University, and concluding that a college's "special

relationship" with its own students does not extend to student-

athletes from a different college.   Id. at 201-203.    We need not

consider here whether to revisit that precedent, which did not

involve the recreational use statute, because the issue in that
                                                                   12


case was whether the university was negligent in failing to

protect the plaintiff from third-party conduct, not whether the

university was negligent in failing reasonably to provide a safe

basketball court.   Had the plaintiff in that case been injured

by falling on an unreasonably unsafe basketball floor, our

analysis might have been quite different.

     For these reasons, we conclude that, despite the

recreational use statute, the town may be found liable for

negligence in providing the pitchers from the opposing team with

a bullpen that was not reasonably safe.10

     2.   Massachusetts Tort Claims Act.    The town also argues

that the plaintiff did not comply with the act's presentment

requirement, G. L. c. 258, § 4, because the plaintiff's

presentment letter to the town raised only a "negligent design"

theory, and did not also raise the "negligent maintenance"


     10
       The plaintiff also argues that the recreational use
statute does not bar his claim because, when the game was being
played, the ballfield was open only to the two high school
baseball teams and not to the general public. We reject this
argument. Where a landowner makes available its land for use by
the general public, the recreational use statute will not cease
to protect the landowner simply because the landowner, without
charging a fee, allows members of the public to reserve a
particular field at a particular date and time to avoid
conflicts over who may use that field. Contrast Marcus v.
Newton, 462 Mass. 148, 156-157 (2012) (recreational use statute
did not apply where softball league paid fee to town to reserve
field, and where there was no evidence in summary judgment
record that fee was used to reimburse town for marginal costs
directly attributable to league's use of field).
                                                                     13


theory alleged in his complaint.    Further, the town argues that

it is not liable for "negligent design," because the design of

the bullpen was a "discretionary function" falling within the

act's discretionary function exception, G. L. c. 258, § 10 (b).

The motion judge did not reach either of these arguments.

Because our review of a motion for summary judgment is de novo,

see Roman v. Trustees of Tufts College, 461 Mass. 707, 711

(2012), and because we may affirm an allowance of summary

judgment on grounds other than those reached by the judge, see

id., we address these arguments here.

    Under the act, G. L. c. 258, § 4, "[a] civil action shall

not be instituted against a public employer on a claim for

damages [under the act] unless the claimant shall have first

presented his claim in writing to the executive officer of such

public employer . . . ."   "This strict presentment requirement

is a statutory prerequisite for recovery under the [a]ct."

Shapiro v. Worcester, 464 Mass. 261, 267 (2013).    Its purpose is

to "ensure[] that the responsible public official receives

notice of the claim so that the official can investigate to

determine whether or not a claim is valid, preclude payment of

inflated or nonmeritorious claims, settle valid claims

expeditiously, and take steps to ensure that similar claims will

not be brought in the future."     Richardson v. Dailey, 424 Mass.

258, 261 (1997), quoting Lodge v. District Attorney for the
                                                                  14


Suffolk Dist., 21 Mass. App. Ct. 277, 283 (1985).   See Shapiro,

supra at 268.   See also Estate of Gavin v. Tewksbury State

Hosp., 468 Mass. 123, 131-135 (2014).

    A presentment letter should be precise in identifying the

legal basis of a plaintiff's claim, but it is adequate if it

sets forth sufficient facts from which public officials

reasonably can discern the legal basis of the claim, and

determine whether it states a claim for which damages may be

recovered under the act.   See Gilmore v. Commonwealth, 417 Mass.

718, 723 (1994) ("While a presentment letter should be precise

in identifying the legal basis of a plaintiff's claim, [the

plaintiff's] letters . . . were not so obscure that educated

public officials should find themselves baffled or misled with

respect to" claim being asserted).   Here, the presentment letter

identified the legal basis of the plaintiff's claims as

negligence and wilful, wanton, or reckless conduct; it did not

characterize the specific theory of negligence, and did not use

the terms "negligent design" or "negligent maintenance."   The

letter claimed that the town was negligent in allowing the

visiting players to use a bullpen that was "inherently

dangerous," and described what made the bullpen dangerous,

noting specifically the width of the pitching mound in the

visiting team's bullpen, the use of wooden "timbers" to enclose
                                                                  15


the pitching mound, and the poor quality of lighting.11   It is

not apparent from these allegations in the presentment letter

that liability in this case would rest solely on the "design" of

the bullpen.   We conclude that the presentment letter provided

the town with adequate notice of the circumstances of the

plaintiff's negligence claim -- without limitation to any

specific theory of negligence -- and that the town reasonably

could investigate those circumstances and determine whether the

town might be liable on the claim under the act.   See McAllister

v. Boston Hous. Auth., 429 Mass. 300, 305 n.7 (1999), overruled

on other grounds by Sheehan v. Weaver, 467 Mass. 734 (2014)

(where presentment letter only explicitly raised one of

plaintiff's theories of liability, presentment requirement was

satisfied with respect to all theories because "executive

officer had the opportunity to investigate the circumstances of

each claim, as all theories of liability argued by the plaintiff

were based on the same facts").

     Having concluded that the plaintiff's presentment letter

does not limit the plaintiff to a "negligent design" theory, we

also conclude that the town is not entitled to summary judgment

based on its claim that the town is immune from liability on a

"negligent design" theory under the act's discretionary function


     11
       The letter noted that there were "perhaps more" reasons
why the bullpen was dangerous.
                                                                     16


exception.12   It is not apparent from the summary judgment record

that the plaintiff intends to rest solely on that theory.      Nor

is it apparent from the summary judgment record that the width

of the mound and the enclosure of the mound by wooden "timbers"

are the type of design decisions that fall within the

discretionary function exception.   See Barnett v. Lynn, 433

Mass. 662, 664 (2001), quoting Patrazza v. Commonwealth, 398

Mass. 464, 467 (1986) ("Generally, such discretionary conduct is

'characterized by the high degree of discretion and judgment

involved in weighing alternatives and making choices with

respect to public policy and planning'").    The issue whether

some or all of the plaintiff's claims come within the

discretionary function exception cannot be resolved until the

judge can determine whether the plaintiff rests liability on a

negligent design theory and, if so, whether the decisions

concerning the design of the bullpen constitute the type of

discretionary policy-making and planning by government officials

that is protected by sovereign immunity.    See Greenwood v.

Easton, 444 Mass. 467, 470 (2005) ("Deciding whether particular

discretionary acts involve policy making or planning depends on

     12
       The discretionary function exception, G. L. c. 258, § 10
(b), provides that a public employer shall not be liable for
"any claim based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty on the
part of a public employer or public employee, acting within the
scope of his office or employment, whether or not the discretion
involved is abused."
                                                                  17


the specific facts of each case"); Alter, 35 Mass. App. Ct. at

148 ("the application of the discretionary function exception is

a question of law for the court").

    Conclusion.    We reverse the order granting summary judgment

in favor of the defendants, and remand the case to the Superior

Court for trial.

                                     So ordered.
