DocketNumber: No. 506767
Citation Numbers: 1992 Conn. Super. Ct. 8973
Judges: LEUBA, J.
Filed Date: 9/23/1992
Status: Non-Precedential
Modified Date: 4/17/2021
The defendants filed an answer and four special defenses on May 29, 1990. In their first special defense the defendants allege that they are immune from liability under General Statutes
The plaintiff filed a reply to the defendants' special defenses on June 4, 1990.
The defendants filed this motion for summary judgment on April 23, 1992 with an accompanying memorandum of law based upon their recreational land use immunity special defense. The defendant attached to its memorandum an affidavit sworn to by Albert A. DePetrillo, the Superintendent of the Plainfield Board of Education, and excerpt from the transcript of the depositions of Michael Scrapchansky and Albert A. DePetrillo.
The plaintiff filed a memorandum in opposition to the defendants' motion for summary judgment on May 26, 1992. In his memorandum, the plaintiff argues that the defendants are not immune under the statute because the field was not open to the public, softball is not within the purview of the statute, and the defendants' charged a fee for the use of its field. The plaintiff attached to his memorandum excerpts from the transcript of the deposition of Albert A. DePetrillo and notes from minutes of several of the Board's meetings.
As required by practice book 379, the pleadings are closed between the parties.
Summary judgment may be granted after the pleadings are closed between the parties if the moving party proves that there exists no material issue of fact and that he is entitled to judgment as a matter of law. Practice Book 384. Wilson v. New Haven,
The recreational land use statute, General Statutes
(a) Except as provided in section
52-557h , an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition use, structure or activity on the land to persons entering for recreational, purposes.
In order to come within the purview of the statute, the defendants must prove that they are "owners of the land, available to the public without charge for recreational purposes." Genco v. Connecticut Light Power Co.,
The immunity provided owners under General Statutes
It is undisputed that the Town owns the land in question and that the Board controls it.
The plaintiff asserts that the defendant is not entitled to summary judgment because the land was not made CT Page 8976 available to the public as contemplated by the statute, the defendant charged the plaintiff a fee to use the land, and softball is not a recreational use within the purview of the statutes.
Superintendent DePetrillo attests that the field was made available to the public, and to the American Legion Summer Baseball League on June 22, 1986, free of charge. (Affidavit of Albert A. DePetrillo, p. 2, attached to the defendants' memorandum.)
The plaintiff attached to his memorandum excerpts from the deposition testimony of Superintendent Depetrillo and copies of minutes from meetings of the Board, but since the deposition testimony is not certified, it is not sufficient to support the plaintiff's motion in opposition. Practice Book 380. Furthermore, the copies of the minutes of the Board's meetings, which are not certified, are likewise insufficient to support the plaintiff's motion in opposition.
Since the defendant provided testimony that the defendants made the field available "free of charge", and the plaintiff has failed to substantiate his assertion that the plaintiff was charged a fee, then there exists no genuine issue of material fact that the field was made available "free of charge."
The plaintiff argues next, in his memorandum, that the land was not "open to the public" because at the time of his injury he was "using a field for which permission to use had been sought." In other words, the plaintiff argues that since the American Legion had reserved the field, then it was not open to the public'.
The "clear purpose of
The Superintendent of the Board stated that the land in question is made available to the public during the period when school is not in session. (Affidavit of Albert A. DePetrillo, p. 2 attached to defendants' memorandum).
CT Page 8977 The defendant made the field "available to the public" as contemplated by General Statutes
The plaintiff's final contention is that softball is not a "recreational use" under the statutes.
The plaintiff argues, in his memorandum, that organized athletic events are not events enumerated in the statute and "one can readily see that a team sport is not included in the list of examples of recreational activities."
"Recreational purpose" includes but is not limited to any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping picknicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, I sport parachuting, hot air ballooning, and viewing or enjoying historical, archaeological, scenic or scientific sites.
The statute clearly states that recreational purposes are not limited to the enumerated list, and therefore "the enumerated activities set forth in the statute are not exclusive." Manning v. Barenz, supra, 264.
Softball is found to be a recreational use under the statute. See Voight v. Gazdik,
Based upon this analysis it is found that the defendants have established that they are immune from suit under General Statutes
LEUBA, J.