If a tree falls on you while standing on a Newton field will the court uphold your right to sue?
by Greg Reibman | May 7, 2012 | Newton | 22 comments
by Greg Reibman | May 7, 2012 | Newton | 22 comments
September 13, 2023
Men's Crib September 13, 2023 5:20 am
On the surface it seems SHOCKING that an entity charged with upkeep of parks and fields would try to block an individual’s rights to be heard (and compensated) — particularly when the entity is gov’t and the individual is a citizen. I guess if some friendly lawyer wants to reason that if you don’t try to block this one then the next one where someone doing something stupid wants to sue you have less leverage — that might have some small merit. But really, what’s up with attempting to block a trial when it’s your job (our job) to maintain trees?
and yes, as a related construct: should a city sanctioned/permitted dog running loose amongst some city permitted league children and should seriously attack and hurt a child or two – will the city be held accountable for malfeasance/liability? are the members of the P&R sanctioning body and any off-leash city functioning dog group also individually and severally accountable for suit? betchya they are – defense attorneys don’t come cheap, and all the time wasted for interogatories, depositions, lost sleep…
schlock, If the city owned the dog like they owned the tree; and in the city trained the dog, like they maintain trees — then it would be a better connection. In this matter the city seemed to recognize their responsibility but claimed the fee paid went to a general fund and not for the purpose of playing baseball on the day the tree fell. The argument to me was embarrassing to hear — we pay for field use but the city says it’s not baseball related? What lawyer woke up in the morning and still though that was the right approach?
Hoss, the Marcus case is a lot more involved than might first meet the eye. Issues of tree ownership, property rights, maintenance, negligence from lack of structural municipality department funding, etc. The fees go into a revolving account with specific earmarkings.
in my opinion another Donalyn faux pas –
But the more involved parts would be for trial — this seems to be a weak attempt to avoid the more involved parts.
Hoss and Schlock:
Before passing judgment on lawyers, judges or city solicitors, I urge you to read the opinion itself. There were two issues addressed by the court: (1) whether the city is entitled to interlocutory review of the lower court’s denial of its motion for summary judgment dismissing the case under the doctrine of present execution (that is, allowing an appeal before there is a final judgment on the grounds that the city is immune from being sued under the Recreational Use Statute, Mass. Gen. Laws ch. 21, sec. 17C); and (2) whether the city is exempt from liability under Section 17C. The court had to reach the first issue, but not the second issue. Since the parties had briefed the second issue, it raises a significant issue of interpretation regarding Section 17C, and is of public interest (all criteria for appellate review by the SJC), the court decided to take up both issues.
The Recreational Use Statute exempts the city from liability for negligence that results in injury, provided that the city does not impose a fee for using the property which the plaintiff was using when injured. The SJC decided against the city on the first issue, on the ground that Section 17C expressly immunizes a city from liability for negligence–and not from being sued.
On the second issue, the court found that the city was not exempt from liability for negligence since the plaintiff paid a fee to the league, which in turn paid a fee to the city to use the softball field. The SJC ruled that the city had in effect imposed a fee for the use for which the plaintiff was using the field when he was injured, so did not have the benefit of the Recreational Use Statute’s exemption of liability for ordinary negligence. The case was sent back to the trial court, where the issue of negligence can be litigated.
In my view, it was entirely prudent for the city to seek interlocutory review on the lower court’s ruling concerning exemption from suit, since it would be a waste of municipal and judicial resources, as well as those of the plaintiff, to litigate and try a case in which the city would eventually be found to have been exempt from being sued for in the first place. It also made sense to seek review of the issue of exemption from liability for negligence, since that appears to be the crux of the case involving a tree from a neighboring property that fell on the plaintiff while he was on city property waiting his turn at bat in a league softball game. If the city were found to be negligent in not inspecting the rotten tree–which was on Temple Shalom’s property adjacent to the city’s field–and trimming or removing the it, but was ultimately determined to be exempt from liability for such negligence under the Recreational Use Statute, it would, again, be a waste of time and resources for all concerned.
You may disagree with the policy underlying the creation of an exemption from liability for negligence under the Recreational Use Statute, but it is intended to protect municipalities from judgments based on conduct that was not wilful, wanton or reckless. It is easy to foresee that without such exemption, cities and towns would choose not to risk exposure to substantial liability and would not provide parks and playgrounds for people to use.
It should also be noted that the city does not concede that it was negligent in this case. Here, the plaintiff alleged that he was injured as the result of city maintaining its property poorly, by allowing an allegedly rotten tree and its branches to overhang its property without proper maintenance. The decision clearly states that the city denied liability and claimed that, even if it were negligent, it was exempt from liability under the Recreational Use Statute.
The devil is always in the details, folks, which is why we need lawyers and judges to instill justice in society.* 😉
*Anyone who cites Shakespeare’s Henry VI and the line “the first thing we do, let’s kill all the lawyers,” should know that “Dick the Butcher,” who utters the line, was planning to overthrow the government in order to put his co-conspirator, Jack Cade, on the throne. Dick recognized that the lawyers could thwart their nefarious plot, ergo, he suggested killing all the lawyers in order to get them out of the way of his planned coup d’etat. Shakespeare intended the line to serve as comic irony, not as a maxim to live by.
@Ted. There are so many quotes that have been taken out of context that a whole website could be devoted to this subject. One that’s always irked me the most is Carl Shurz’s admonition “My country, right or wrong.” Too many political figures have used this to imply blind obedience to government policies, particularly those with a militaristic or right wing slant. Shurz actually hoped the quote would encourage people to criticize harmful or dangerous government policies and programs.
Ald Hess Mahan — I think we need a subscription to see the link you provided (the Opinion). You seem to be saying that the matter got review based on merits for appeal. If that is correct, is there free site that has the original case?
Thank you
Bob Burke, true statement.
Hoss, the link I gave should work. It is the Supreme Judicial Court website, where the public can review slip opinions from today for free, by going to http://www.massreports.com/CourtDecisions/Default.aspx, click on Opinions, and then click on the decision called “Marcus v City of Newton>” If you cannot get to it today, go to http://www.massreports.com/CourtDecisions/Default.aspx, click on “Opinions Archive” and enter 5/7/2012 as the Release Date.
@Ted Hess-Mahan: “… it was entirely prudent for the city to seek interlocutory review on the lower court’s ruling…”
I disagree, I think it was not prudent for the Law Department for the City of Newton to seek interlocutory review, because it was fishing disgraceful (and thus harmful) to the City’s reputation. The Law Department had to pursue the justice and advise a settlement.
@Ted Hess-Mahan: “… we need lawyers and judges to instill justice in society.” I agree completely and would add that we do not need mockery lawyers and mockery judges to instill mockery justice in society – if Newton District Court would work in the manner you attributed to SJC, then Newton were much better and safer place to live in.
Is the plaintiff also suing Temple Shalom, given that it was their tree that fell? Knowing that the tree did not belong to the city definitely puts the suit in a different light.
Just found the answer to my question in an article in the Glob:
The suit also names five other defendants with ties to land near the field: Temple Shalom, Newton Community Development Foundation III Inc., Warren House Associates Limited Partnership, Hamlet Associates, and Maltby & Co. They were not part of the city’s appeal.
http://www.boston.com/yourtown/news/newton/2012/05/supreme_court_ruling_allows_in.html?p1=Well_Local_Links
mgwa beat me to it. The Globe has a much more comprehensive article. The WickedLocal article does not even mention that this was not a city tree.
I have no idea of the condition the tree in question was in, or how often or how recently it had been pruned. I’m guessing Maltby & Co. must have been Temple Shalom’s tree maintenance company, since they are named as a defendant. They are a very reputable company, and I can’t imagine they or the Temple would knowingly leave a limb they considered hazardous. If you prune to industry standards for the health of the tree, that’s really all you can do.
My tree pruning guy once told me “branches protect each other.” Imagine a large tree with only one limb — that’s going to get stressed pretty good in a strong wind. Whereas with a tree with all its limbs, the wind is buffered by surrounding limbs. If you started pruning all the limbs on one side of the tree, even if they didn’t look hazardous, just because they overhung a park, it could actually make the remaining limbs more vulnerable to breaking.
And if you eliminated the trees from parks on the chance even a healthy limb might break, it sort of defeats one of the benefits of park trees, and the reason the guy was probably sitting under the tree. It was July. When it’s hot, people want a shady place to sit.
It would be a major change if municipalities to become obligated to police private trees, which they are not now. And I’m not sure how happy homeowners would be to have cities and towns telling them they have to prune their tree or get a ticket, or having the city or town prune the tree for them and add it to their tax bill.
This will be a very interesting trial to follow.
I see Ald Hess Mahan’s point that going to trial is a waste of resources if there is an open avenue for ultimate appeal that has nothing to do with the merits of liability. But as a basic, the entity involved is not a corporation or a neighbor — it’s mother government, our own family of sorts. It feels like the city should protect its people’s rights to be heard, even if the hearing is adverse to the city. The city could have gone this route (of appeal) if they lost the civil matter, correct?
Does the city have the right to inspect trees on private property to make sure they are not a danger to the public?
I’m not sure whether they have the right. They definitely don’t have the manpower.
I wish all City Reps would adopt Ted’s system of being completely transparent and thorough in their explanation of positions. I don’t always agree with Ted but he is my favorite alderman. I know what I’m getting with Ted and he often changes my opinion on a situation because he gets me all the facts.
@Hoss, first of all, I feel nothing but sympathy for Mr. Marcus. By all accounts, he was blameless in all of this. A tree sitting on private property fell on him while he was sitting on a public playing field waiting his turn at bat, and broke two vertebrae and his shoulder blades. He was incapacitated for a prolonged period of time and I am sure he suffered a lot of pain before, during and after his rehabilitation. I wish him only the best.
All that said, every party, including the City of Newton, deserves its day in court. For centuries, governments have enjoyed the protection of sovereign immunity and are only liable to the extent the laws provide. In Massachusetts, liability is limited to $100,000 for torts (i.e., wrongs) committed by public servants in the course of their employment. The Recreational Use Statute further limits their liability exposure in certain circumstances, such as here, where someone is injured using a public park or playground. Newton had every right to assert its defenses and immunities in court, which it did. While local government is there to serve and protect people, if there were no restrictions on the liability of governments they would go out of business and not be able to serve anyone. I suspect that if the City failed to protect itself from liability to the full extent of the law, taxpayers would be (rightly) outraged. As far as I can tell, that is all the City has done in this case.
Under common law, charitable organizations, like churches and various non-profits, also enjoyed immunity from liability. Massachusetts’ charitable immunity statute limits or restricts charitable immunity from tort liability to $20,000, unless the charitable organization is found to have been engaged primarily in “commercial” as opposed to “charitable” activities. Courts generally construe the “primarily commercial” exception to charitable immunity very narrowly, in favor of charitable organizations.
The policies underlying both sovereign and charitable immunity are to protect them from or limit their liability in certain circumstances so that they are able to fulfill their purposes without risk of exposure to liability that could put them out of business. Imagine a lawsuit against a small town that has limited revenue arising out of a terrible car accident caused by a town employee. It could bankrupt the town, leaving children without a school to go to, no police or firefighters to protect people and property, and no water or sewer service for residents. Or a medical malpractice suit against a hospital; as you can imagine, without some restriction on liability hospitals would quickly go out of business.
Plaintiffs may therefore seek a “deep pocket” in cases where some of the defendants have immunities from liability, such as a for profit company that does not enjoy such immunities. Even there, however, liability of the owners of the company may be limited by its form, whether it is a “limited liability company,” “corporation” or other entity that insulates or limits the liability of owners and shareholders for torts committed by the company’s employees.
In this case, the city is one of a number of defendants, some or all of whom may have both some form of exposure as well as immunity from liability. Without knowing all the facts, there is no way to know at this juncture whether anyone was negligent or whether this was just a terrible event (i.e. act of God) for which no person or entity is responsible. The job of the courts is to allocate such liability among those parties who are legally responsible for Mr. Marcus’s personal injuries. It is the job of the attorneys for the parties to pursue and protect the rights of their respective clients to the fullest extent allowed under the law. That is how our civil and criminal justice system works.
Sorry for the lecture, but I think this is an important concept.
@Kim, thanks. I actually enjoy conversations with people who disagree with me, unless of course they are being disagreeable.
Ald Hess Mahan — I know you’re responding as someone that loves law, and not as an Alderman hired to represent people (not the City necessarily) nor as a lawyer that is not involved. I respect your thoughts and agree with Kim’s sentiment here (although there are too many alderman to have a favorite!). I also know you’ve represented people in both a gov’t capacity and as a lawyer — you no doubt know what happens when a mere resident butts heads with gov’t and how helpful one can feel. This one is done with in terms of this level of appeal, I assume. So we move on.
helpful = helpless!
@Ted Hess-Mahan: “Imagine a lawsuit against a small town that has limited revenue arising out of a terrible car accident caused by a town employee. It could bankrupt the town, leaving children without a school to go to, no police or firefighters to protect people and property, and no water or sewer service for residents. Or a medical malpractice suit against a hospital; as you can imagine, without some restriction on liability hospitals would quickly go out of business.”
It is a fantasy.
Chapter 9 of title 11 of the Bankruptcy Code provides relief for municipal entities, defined as a “political subdivision or instrumentality of a state.” So far, Chapter 9 was rarely used – on average, only about a dozen per year Chapter 9 cases was being filed since 1980ties. But now the situation is changing. For example see the following:
http://business-bankruptcies.com/cases/atlantic-municipal-corporation
http://www.huffingtonpost.com/2012/02/23/stockton-bankruptcy-biggest-in-american-history_n_1298055.html
And pay attention to: “One pitfall Stockton is hoping to avoid is having to shell out millions of dollars in legal fees for itself and its creditors. Vallejo spent $11 million on legal fees during its protracted, high-profile bankruptcy;…”
Unfortunately, the City of Newton, a municipal corporation of the Commonwealth of Massachusetts, may get into bankruptcy much faster than anyone can imagine, because of the possible second wave of foreclosures and because deriving about 2/3 of its revenue from the real estate taxes, which depend on the real estate prices, which depend on the city’s reputation as the place of safe living, having family and raising children, this municipal corporation does not even trying to prevent the damage to its reputation, which is caused by the incidents like Hoffman’s, Ettlinger’s and others.
Very interesting and relevant to the discussion article in the New York Times, Tuesday, May 15:
http://www.nytimes.com/2012/05/14/nyregion/in-new-york-neglected-trees-prove-deadly.html?src=recg