Presently before the court is Defendant's Summary Judgment Motion ("the Motion") (Paper No. 9), in which the defendant, City of Gloucester ("Gloucester"), argues the Recreational Use Statute, G.L. c. 21, § 17C (the "RUS"), bars the plaintiff, Joseph M. Orlando, Jr. ("Orlando"), from recovery under his claim of negligence against Gloucester. Orlando opposes. After hearing and review of the written submissions including pleadings, exhibits, and statements of material facts, the Motion is ALLOWED.
BACKGROUND
Orlando has brought a one-count negligence claim against Gloucester. He alleges that he fractured his ankle as he stepped into a depression in a city-owned parking lot located adjacent to a baseball field. Orlando had finished coaching his son's little league baseball game and was walking towards his car when the incident occurred. Gloucester contends that the area where the incident occurred is open to the public free of charge for recreational purposes and therefore Orlando's claim is barred by the RUS. Orlando argues that genuine disputes of fact exist with respect to whether the baseball field and parking lot were free of charge for public use, and whether Orlando paid a fee for the use of the field such that the RUS does not apply.
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Before addressing the legal issues in this case, an overview of the lay of the land is helpful to an understanding of Orlando's negligence claim. The parking lot adjacent to the field where Orlando fell is not separated by any barrier to the field other than the backstop. It is used by the Gloucester Little League ("GLL") during baseball season when the league has exclusive use of the field and exists so people attending games do not park on nearby private property. The lot itself has a crushed stone/stone dust surface. It was created after the GLL approached Gloucester desiring to expand their operation and parking during baseball games.
DISCUSSION
1. Standard of Review
A motion for summary judgment must be allowed where the moving party "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law based on the undisputed facts." Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016) (citation omitted). To decide whether summary judgment is appropriate, the court "considers evidence presented in the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits." O'Connor v. Redstone, 452 Mass. 537,550 (2008), citing Mass. R. Civ. P. 56 (c). The court reviews the evidence in the light most favorable to the nonmoving party, but does not weigh evidence, assess credibility, or find facts. Psychemedics Corp. v. Boston, 486 Mass. 724, 731 (2021), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991); O'Connor, 452 Mass. at 550. Summary judgment nevertheless is appropriate when the summary judgment record shows "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). See Santiago v. Rich Prods. Corp., 92 Mass. App. Ct. 577, 584 (2017), citing
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Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991) (summary judgment is appropriate when no rational view of evidence permits finding of negligence).
2. The Recreational Use Statute
The RUS limits "landowners' liability to recreational users by precluding them from making claims for injuries in the absence of 'wilful, wanton or reckless conduct.'" Ali v. City of Boston, 441 Mass. 233,237 (2004) (citations omitted). Municipal landowners that provide free access to their land for public recreation are accorded the same protection. Id. at 237 n.7. See G.L. c. 258, § 2 (government entities "shall be liable ... in the same manner and to the same extent as a private individual under like circumstances") . "Recreation" under the statute includes participation in activities, such as sporting events, as well as attendance at such events as a spectator. Catanzarite v. Springfield, 32 Mass. App. Ct. 967, 967 (1992) (noting that the term "recreation" includes both active and passive pursuits). A plaintiff's subjective intent for using the property is irrelevant. "What matters is that they are engaging in recreational pursuits permitted in the park." Ali, 441 Mass. at 238.
In Seich v. Town of Canton, the Supreme Judicial Court ("SJC") upheld summary judgment in favor of the defendant-town where, it was alleged, the plaintiff slipped and fell on "an unnatural accumulation of ice and snow" on the town's property while attending her daughter's basketball game at a town-owned gymnasium. 426 Mass. 84, 84-85 (1997). The plaintiff's husband also sued for loss of consortium. In Seich, the plaintiffs argued that the RUS did not apply because they paid a "registration fee" to the town which enabled their daughter to participate in the basketball league. The registration fee in Seich was then used to defray the costs "of the players' T-shirts, the referees, necessary athletic equipment and the league's expenses for custodians to open school gymnasiums for weekday evening and weekend practices
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and games." Upholding summary judgment against the plaintiffs, the SJC concluded that whether or not the plaintiffs paid a registration fee for their daughter to play on the team was inconsequential since they, "along with any other member of the public, could have gone to the school and observed the basketball game without paying a fee." Id. at 86.
In Whooley v. Commonwealth, the Appeals Court upheld summary judgment in favor of the Commonwealth where, it was alleged, the plaintiff slipped on a thin layer of ice covering a metal plate on a walkway leading to the bleachers of a state-owned hockey rink while attending her grandson's hockey game, thereby sustaining injuries. 57 Mass. App. Ct. 909, 909 (2003). In that case, the plaintiff argued that even though she was not charged a fee by the facility to enter the premises, the RUS did not bar her claim because a rental charge was imposed for the hockey players' use of the rink, and she was there to watch them play. Rejecting the plaintiff's argument, the Appeals Court held, "even if the youth hockey group did pay a fee to play at the rink, the plaintiffs claims against the Commonwealth would still be barred under the statute because she was not charged admission to the facility." Id. The Court went on to explain, "[w]hether other 'recreational users' paid a fee for their own use of the rink at the time in question is not determinative of her claim. Rather, the issue is whether the plaintiff paid a fee to the owner of the facility in exchange for her use of the premises as a spectator." Id. at 910.
By contrast, in Marcus v. City of Newton, the SJC held that the defendant-city was not shielded from liability under the RUS where the plaintiff paid $80 to join a private softball league, and the league in turn paid the defendant-city $1,200 for a permit to use a playing field. 462 Mass. 148, 149 (2012). The Court concluded that in these circumstances, the plaintiff "was not participating in a recreational use of the city's property free of charge." Id. at 155. In determining a defendant's exemption from negligence liability under the RUS, the SJC held, "the
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issue is whether the landowner charges a fee for the particular use to which the plaintiff puts the land." Id. at 154-155. The court in Marcus distinguished Seich and Whooley on the grounds that the injured parties in those cases did not pay a fee for their recreational use of the defendants' property, that is, to watch a child participate in youth athletics. Id. at 155.
After Marcus was decided, the Appeals Court in Patterson v. Christ Church in the City of Boston, upheld summary judgment in favor of defendants affiliated with Boston's Old North Church where, it was alleged, one of the plaintiffs fell inside the church and sustained serious injuries. 85 Mass. App. Ct. 157, 163 (2014). The plaintiffs in Patterson entered and toured the church, a historic landmark and tourist destination, free of charge. Id. at 161. They nevertheless argued that the defendants imposed a charge or fee because, under the terms of a memorandum of understanding, the Old North Foundation of Boston, Inc., a nonprofit organization responsible for organizing tours and historical programs at the church, generated revenue and paid the Christ Church an annual fee. Id. The Appeals Court disagreed, concluding that, "[t]he fact that the foundation operates a gift shop and charges for behind-the-scenes, specialized tours of the church does not equate to a 'charge or fee' imposed on the Pattersons." Id. at 162. The Court noted, "[e]ven if we were to a accept the Pattersons' characterization that, absent the annual payment, the church doors would not have been open to the public free of charge, it would not change the fact that no charge or fee was imposed on them in this case." [1] Id.
3. Orlando's Claim
Orlando claims that Gloucester was negligent for, among other things, failing to inspect and keep the parking lot free of dangerous conditions. Gloucester argues Orlando's negligence
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[1] In reaching its conclusion, the Appeals Court observed that the fact that the children in Seich and Whooley had paid to participate in sports, "had no bearing on each injured plaintiffs own recreational use of the property in question, for which there was no charge." Patterson, 85 Mass. App. Ct. at 161.
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claim is barred by the RUS. Orlando contests Gloucester's assertion that the city made the parking lot available for recreational use. He argues that genuine disputes of fact exist with respect to whether the baseball field and parking lot were free for the public to use on the date of Orlando's injury, and whether Orlando paid a fee for the use of the field such that the RUS does not apply. Orlando points to an agreement between the GLL and Gloucester under which the field and parking lot were for the exclusive use of the league during baseball games,[2] and that he paid a fee to the GLL for his son to participate in the league. The GLL uses the fees paid by parents to meet the costs of maintaining the fields, electricity, landscaping, insurance, uniforms, equipment, and incidental expenses.
This court concludes, even viewing all factual allegations and drawing all reasonable inferences therefrom in Orlando's favor, that summary judgment nevertheless is appropriate in this case. This case tacks more closely to Seich and Whooley than Marcus. The event and parking lot were open to the public free of charge. Orlando paid a fee for his son, not himself, to participate in the GLL.[3] The fee in this case was not an entrance or admission fee to gain access
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[2] Curiously, the agreement between the GLL and Gloucester is not part of the summary judgment record. The GLL does not have an office as the designee for Gloucester uses his home to address league matters.
[3]Thepapers mention that Orlando was a coach and that the games were "coach-pitched." Neither party addresses whether this has any impact on the court's analysis and therefore any argument along this vein is deemed waived. See Halstrom v. Dube, 481 Mass. 480,483 n.8 (2019) (argument raised "in a cursory fashion without citation to supporting legal authority" is waived); Commonwealth v. Johnson, 470 Mass. 300,319 (2014) (noting that trial court acted "well within" its discretion in declining to consider unsupported and undeveloped argument). In any event, the court concludes that the RUS bars Orlando's negligence claim because he was "engaging in recreational pursuits permitted in the park," Ali, 441 Mass. at 238, at the time his injury occurred after paying a fee that permitted his son to participate in GLL baseball games. One who undertakes to volunteer to participate at a recreational event, in this court's view, is a "member of the public" within the meaning of the RUS, who enjoys the benefit of the premises having not paid a fee to participate in the recreational event and therefore fares no better under the RUS than a spectator who has not paid an entrance fee and opts to take a passive approach to enjoying the event. See G.L. c. 21, § 17C(a); Catanzarite, 32 Mass. App. Ct. at 967 (construing the term "recreation" to include not only "active pursuits (playing baseball and the like) ... but also passive pursuits, such as watching baseball"). The plain language of the RUS and cases addressing that statute do not compel a conclusion to the contrary.
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to the parking lot or baseball field. The fact that the field and parking lot were for the exclusive use of the GLL during baseball games does not change the result. See Murray v. Town of Hudson, 472 Mass. 376, 383 n.10 (2015) ("[w]here a landowner makes available its land of 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"). Indeed, Orlando acknowledged during argument that any member of the public could enter the parking lot for free to observe a GLL baseball game.
That part of the fees paid by parents to the GLL are used by the GLL[4] to maintain the field and other related expenses, in this court's view, is inconsequential. The fee here, like in Seich, was a charge for Orlando's son to participate in the GLL, and "not an entrance fee for members of the public to use the property."[5] See Seich, 426 Mass. at 86 (ruling that registration fee for child to participate in league is not the equivalent of town imposing fee for use of land for recreational purposes); Whooley, 53 Mass. App. Ct. at 910 ("[w]hether other 'recreational users' paid a fee for use of the [premises] at the time is question is not determinative of [the plaintiff's] claim the issue is whether the plaintiff paid a fee to the owner of the facility in exchange for
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[4] Orlando does not point to any evidence to show that Gloucester received any portion of the collected fees. Instead, Orlando's evidence shows that exclusive use of the fields was provided by Gloucester in exchange for services, not fees. See Joint Statement of Material Facts (Paper No. 9.4), para. 6, Pl.'s Resp. ("The [GLL] pays the city a fee in the form of maintenance of the.fields in exchange for the exclusive use of the little league fields during the spring season" (emphasis added)); Joint Ex. 3 (Orlando described a "handshake deal" between the GLL and Gloucester as "[y]ou can use our fields so long as you maintain everything within the fences and the dugouts."); Joint Ex. 5, p. 30 (the GLL treasurer testified that none of the registration fees are paid to Gloucester for use of the fields); Joint Ex. 8 ("GLL maintains Rogers Field in lieu of payment to the city for the use of that field").
[5] That Orlando paid a fee to the GLL for his son to participate in the league is not determinative. "[T]he issue is whether the plaintiff paid a fee to the owner of the [property] in exchange for [his] use of the premises as a spectator." Whooley, 57 Mass. App. Ct. at 910 (emphasis added).
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her use of the premises as a spectator"). To conclude otherwise would contravene the purposes of the RUS and discourage landowners like Gloucester from allowing free public access to their land for recreational purposes.
The court also rejects Orlando's argument that walking through the lot adjacent to the baseball field to get to his car following his son's baseball game is an activity that falls outside the RUS. Orlando's subjective purpose for using the premises is not relevant. Instead, what matters is whether the type of use is an objectively recreational activity. See Constantine v. City of Cambridge, 67 Mass. App. Ct. 1102, 2006 WL 2240503 at *1 (2006) (Unpublished Rule 1:28 Decision) (ruling that RUS barred plaintiff's claim for injuries suffered while taking a shortcut through city parking lot because walking was an objectively recreational activity permitted on the premises). See, e.g., Seich, 426 Mass. at 84-85 (affirming summary judgment in favor of town where plaintiff slipped and fell on ice while walking to daughter's basketball game at gymnasium); Silva v. Town of Falmouth, 2009 WL 2230940 at *3 (Mass. Super. 2009) (allowing summary judgment in favor of town where plaintiff fractured ankle stepping off sidewalk onto driveway on school property after attending awards ceremony); Hoffman v. Town of Burlington, 2008 WL 2688762at *2 (Mass. Super. 2008) (allowing summary judgment in favor of town where plaintiff stepped into defect in parking lot surface after attending Pop Warner football game to watch his son play).
Orlando does not argue, nor do the facts on the summary judgment record support, that Gloucester's conduct in maintaining the area of the parking lot where Orlando fell was willful, wanton or reckless. See Whooley, 57 Mass. App. Ct. at 910 ("Reckless conduct involves risk so pronounced that 'compared to negligence, there is not just a difference in degree but also a
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difference in kind.'") (citation omitted). In short, judgment as a matter of law is appropriate in this case. Gloucester is immune from Orlando's negligence claim under the RUS.
ORDER
For the reasons set forth above, the Defendant's Summary Judgment Motion (Paper No. 9) is ALLOWED.
So Ordered,
/s/William F. Bloomer
Justice of the Superior Court
Date:
August 12, 2026