Amaral v. Seekonk Grand Prix Corp. ( 2016 )

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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.