Gill v. Armstrong ( 2023 )

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22-P-263 Appeals Court
EDWARD J. GILL, personal representative,1 vs. PETER ARMSTRONG2
& another.3
No. 22-P-263.
Plymouth. December 14, 2022. – June 22, 2023.
Present: Neyman, Shin, & Smyth, JJ.
Wrongful Death. Conscious Pain and Suffering. Negligence,
Gross negligence, Governmental immunity. Governmental
Immunity. Immunity from Suit. Massachusetts Tort Claims
Act. Real Property, Easement. Easement. Motor Vehicle,
All-terrain vehicle. Practice, Civil, Wrongful death,
Motion to dismiss.
Civil action commenced in the Superior Court Department on
September 29, 2020.
A motion to dismiss was heard by Brian S. Glenny, J., and
separate and final judgment was entered by him.
Matthew W. Perkins for the plaintiff.
Justin L. Amos for town of Marshfield.
1 Of the estate of Anthony J. Gill.
2 Individually and doing business as PA Construction.
3 Town of Marshfield.
2
NEYMAN, J. On April 29, 2020, Anthony J. Gill (decedent)
was operating his all-terrain vehicle (ATV) on an easement
benefiting codefendant Peter Armstrong and on property owned by
codefendant town of Marshfield (town), when he struck a wire
cable hanging between two trees and suffered severe head and
neck injuries that resulted in his tragic death. The decedent's
father, Edward J. Gill, as personal representative of the estate
of the decedent (plaintiff), sued the town and Armstrong for
wrongful death, conscious pain and suffering, and gross
negligence. A Superior Court judge concluded that the
Massachusetts Tort Claims Act, G. L. c. 258, § 10 (j), barred
the plaintiff from bringing claims against the town in relation
to this incident, and thus allowed the town's motion to dismiss
the plaintiff's claims against it.4 A separate and final
judgment entered in favor of the town. We affirm.
Background. According to the second amended complaint,
Armstrong owned undeveloped property in the town designated as
"Ferry Street Rear," which was also "informally known as
'Peter's Pit.'" Armstrong's property had "the benefit of a
[forty] foot easement over a [r]ight of [w]ay . . . that [was]
4 The judge also concluded that the town was entitled to
dismissal under the recreational use statute, G. L. c. 21,
§ 17C. In light of our resolution under G. L. c. 258, § 10 (j),
we need not decide whether the recreational use statute also
bars the plaintiff's claims.
3
located on the abutting property owned by the [t]own." The
right of way provided access and egress from Ferry Street,
through the town's property, to the Ferry Street Rear property
owned by Armstrong. Armstrong knew that ATV riders accessed
Ferry Street Rear and the right of way, and permitted riders to
use the right of way to access Ferry Street Rear. Approximately
ten years prior to April 29, 2020, Armstrong "expressly provided
authorization to Anthony J. Gill and fellow riders to use the
Ferry Street Rear/Peter's Pit property for ATV riding."
Armstrong "had directed an employee, agent, representative
or contractor to purchase, erect, place and maintain [a] wire
cable across the [r]ight of [w]ay." "In the past . . .
Armstrong's representatives, employees or agents had placed a
cable across the [r]ight of [w]ay, blocking ingress into the
Ferry Street Rear lot owned by . . . Armstrong." The town and
various town departments "had required . . . Armstrong to remove
the cable across the [r]ight of [w]ay in order to provide
emergency access" to town property and Armstrong's property.
However, the town also "permitted and allowed the wire cable to
be maintained on its property."5
5 Although we accept all of the allegations in the complaint
as true, see Harrington v. Costello, 467 Mass. 720, 724 (2014),
we note that it contains a variety of contradictory averments,
including the obvious inconsistency between the allegation that
the town required Armstrong to remove the cable, and the
4
On April 29, 2020, the decedent, while riding his ATV,
accessed Ferry Street Rear via Armstrong's right of way, struck
the cable that had been placed across the right of way, suffered
severe head and neck injuries, and "was transported to South
Shore Hospital where he was pronounced dead." The plaintiff
alleged that Armstrong's "placement and maintenance of the wire
cable across the [r]ight of [w]ay used by ATV riders
constitute[d] a failure to maintain the property in a reasonably
safe condition and warn against known dangers" and caused the
decedent's death. The plaintiff further alleged that the town
failed to maintain the right of way in a reasonably safe
condition, failed to "warn visitors of any unreasonable dangers
known or reasonably knowable," and "permitt[ed] a wire cable
across the right of way to be installed and maintained."
Contending that it was immune from suit under both G. L.
c. 258, § 10 (j), and the recreational use statute, G. L. c. 21,
§ 17C, the town moved to dismiss the complaint. See Mass. R.
Civ. P. 12 (b) (6), 365 Mass. 754 (1974). In a thorough
memorandum of decision and order, the judge determined that the
town was entitled to dismissal under both statutes and dismissed
the complaint. See note 4, supra. A separate and final
judgment entered, and the plaintiff appeals therefrom.
allegation that the town permitted and allowed the cable to be
maintained on its property.
5
Discussion. We review the allowance of a motion to dismiss
de novo, accepting the allegations in the complaint as true and
drawing all reasonable inferences in the plaintiff's favor. See
Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).
"[W]e look beyond the conclusory allegations in the complaint
and focus on whether the factual allegations plausibly suggest
an entitlement to relief." Id., citing Iannacchino v. Ford
Motor Co., 451 Mass. 623, 635-636 (2008).
The town contends that it is immune from suit under G. L.
c. 258, § 10 (j), because there is no dispute that the condition
at issue -- the placing of the wire cable between two trees on
the right of way -- was originally caused by Armstrong. The
town also contends that it cannot be held liable for its alleged
failure to act or prevent harm to the decedent. We agree.
General Laws c. 258, § 10 (j), preserves governmental
immunity for a public employer's "act or failure to act to
prevent or diminish the harmful consequences of a condition or
situation," including the wrongful conduct of a third party,
unless the condition or situation was "originally caused" by the
public employer.6 G. L. c. 258, § 10 (j). See Brum v.
6 General Laws c. 258, § 10 (j), provides that the limited
waiver of sovereign immunity under the Massachusetts Tort Claims
Act shall not apply to the following:
"any claim based on an act or failure to act to prevent or
diminish the harmful consequences of a condition or
6
Dartmouth, 428 Mass. 684, 692 (1999). "By its plain language,
§ 10 (j) generally immunizes public employers from any claim
'based on an act or failure to act to prevent or diminish the
harmful consequences of a condition or situation.'" Klevan v.
Newton, 97 Mass. App. Ct. 87, 90 (2020), quoting G. L. c. 258,
§ 10 (j). Absent from the complaint in the present case is any
allegation that the town placed the cable across the right of
way. In fact, the complaint alleges that it was the
codefendant, Armstrong, who "had directed an employee, agent,
representative or contractor to purchase, erect, place and
maintain the wire cable across the [r]ight of [w]ay." The
complaint further alleges that, "[i]n the past . . . Armstrong's
representatives, employees or agents had placed a cable across
the [r]ight of [w]ay, blocking ingress into the Ferry Street
Rear lot owned by . . . Armstrong." With respect to the town,
by contrast, the complaint alleges that it failed to "warn
visitors" of the cable or "permitt[ed]" the wire cable to be
installed and maintained across the right of way. Where the
unequivocal language of the complaint states that Armstrong --
and not the town -- originally caused the harmful situation or
condition, and where the plaintiff's claim amounts to an
situation, including the violent or tortious conduct of a
third person, which is not originally caused by the public
employer or any other person acting on behalf of the public
employer."
7
allegation that the town failed to prevent harm to the decedent,
§ 10 (j) immunity applies. See Cormier v. Lynn, 479 Mass. 35,
41 (2018).
The plaintiff responds that the town should not be
immunized because, under G. L. c. 258, § 10 (j) (3), immunity
does not apply to "any claim based on negligent maintenance of
public property." Thus, the plaintiff argues, the town may be
found liable for failing to maintain the right of way in a
reasonably safe condition and failing to warn visitors of any
unreasonable dangers. Massachusetts courts have previously
rejected this very argument because "maintenance" in this
context means "to keep in an existing state (as of repair,
efficiency, or validity): preserve from failure or decline."
Moore v. Billerica, 83 Mass. App. Ct. 729, 733 (2013), quoting
Merriam Webster's Collegiate Dictionary 749 (11th ed. 2005).
"The plain definition [of 'maintain'] assumes that what is to be
maintained has already been constructed." Moore, supra.
As evidence that the town "maintained" the wire cable
across the right of way, the plaintiff points to an affidavit by
Armstrong in which he averred, inter alia, that when he
"purchased the Ferry Street property, there was already a cable
attached to the two trees within the right of way."7 The
7 At the outset of the present litigation, the plaintiff
filed a motion for a real estate attachment. Armstrong filed an
8
plaintiff asserts that Armstrong's affidavit "raises questions
of fact as to how long the cable was maintained on the property,
[and] the [t]own's knowledge of the cable." This claim is
unavailing for several reasons. First, we typically assess a
motion to dismiss against the well-pleaded allegations
delineated in the four corners of the complaint and reasonable
inferences drawn therefrom. See Navarro v. Burgess, 99 Mass.
App. Ct. 466, 467 n.4 (2021). The Armstrong affidavit and the
content therein were not referenced in or appended to the
complaint. Indeed, the complaint's allegation that Armstrong
installed the wire cable contradicts the averment in the
Armstrong affidavit. Second, although a judge must treat the
motion "as one for summary judgment" if "matters outside the
pleading are presented to and not excluded by the court," see
Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974), both parties
acknowledged at oral argument that the judge did not convert the
motion to dismiss to a motion for summary judgment. Finally,
even assuming, arguendo, that the judge did consider the
opposition with his affidavit appended thereto. The plaintiff
attached the Armstrong affidavit as an exhibit to his opposition
to the town's motion to dismiss. The town moved to strike the
affidavit. The judge, after allowing the motion to dismiss,
endorsed the motion to strike, "NO ACTION TAKEN, given the
[c]ourt's decision" allowing the town's motion to dismiss and
entering separate and final judgment under Mass. R. Civ.
P. 54 (b), 365 Mass. 820 (1974), which "renders this request
moot."
9
Armstrong affidavit in deciding the motion to dismiss, there is
no allegation in the affidavit that the town installed the
cable. Thus, the plaintiff's reliance on the affidavit is
unavailing.
In short, the plaintiff's claim rests at bottom on the
allegation that the town allowed the wire cable to be maintained
on its property.8 Where the complaint does not allege that the
town created the condition at issue, and where the complaint
alleges only that the town failed to warn visitors and failed to
prevent all risks by "permitting" the cable to be maintained on
its property, the claims do not fall within the § 10 (j) (3)
exception. Compare Moore, 83 Mass. App. Ct. at 733 (rejecting
plaintiff's claim that § 10 (j) (3) precluded application of
immunity because "maintenance of a playground envisions the
general upkeep of the playground's equipment and grounds, not
preventing all risks of danger to its visitors"), with Greenwood
v. Easton, 444 Mass. 467, 475 (2005) (town's placement of
telephone poles in parking lot without properly securing them in
safe manner created unreasonable risk of harmful consequences to
foreseeable persons like plaintiff). "Stretching the definition
8 Of note, the only nonconclusory allegation in the
complaint regarding the town's knowledge of the cable wire
states that the town and various town departments "had
required . . . Armstrong to remove the cable across the [r]ight
of [w]ay in order to provide emergency access" to town property
and Armstrong's property.
10
of 'maintenance of public property' to require the town to . . .
erect a barrier, or post warning signs would effectively swallow
the immunities provided by § 10 (j), rendering them entirely
barren and ineffective." Moore, supra at 733-734. As the
Supreme Judicial Court stated in Brum, 428 Mass. at 696, the
"principal purpose of § 10 (j) is to preclude liability for
failures to prevent or diminish harm, including harm brought
about by the wrongful act of a third party . . . [a]nd to
interpret . . . the subordinate clause referring to 'originally
caused' conditions, to include conditions that are, in effect,
failures to prevent harm, would undermine that principal
purpose." See Cormier, 479 Mass. at 41 (claims originating from
failure to act rather than affirmative act barred by § 10 [j]);
Jane J. v. Commonwealth, 91 Mass. App. Ct. 325, 328 (2017) ("The
requirement of an 'affirmative act' is strict; it is also quite
distinct from a failure to prevent the harm"); Jacome v.
Commonwealth, 56 Mass. App. Ct. 486, 489-490 (2002)
(distinguishing affirmative act requirement from "failure to
act" and from "examples of ways in which . . . public employees
might have prevented the harm"). Accordingly, § 10 (j) immunity
applies, and the judge did not err in allowing the town's motion
to dismiss.
Separate and final judgment
affirmed.