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Man hurt by falling branch can sue city of Newton, SJC rules

Posted by Evan Allen  May 7, 2012 05:22 PM

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A man injured by a falling tree branch on a municipally owned playing field will be allowed to sue the city of Newton, the state's highest court ruled Monday.

Edward Marcus, 52, was sitting in the shade under the trees at McGrath Field on July 8, 2007, waiting for his turn to bat in a softball game organized by Coed Jewish Sports, when a tree branch fell on his back, fracturing two of his vertebrae and shattering both of his shoulder blades.

Marcus intends to sue the city for damages for his medical injuries, lost wages, pain and suffering and loss of enjoyment of life, according to his lawyer, Joan S. Amon, who declined to name a dollar figure.

“At the time, he was very young and athletic, and he used to play baseball and sail,” said Amon. “He went from being a pretty good athlete to confined to his bed.”

He has since gone back to work and is doing well, she said, but he was disabled and out of work for a period of time.

Marcus declined to comment.

Monday’s ruling by the Massachusetts Supreme Judicial Court denies an appeal by the city that argued that Newton could not be sued for Marcus’s injuries under a recreational use statute of state law, which says that a property owner who allows the public to use land for recreation without charging a fee is not liable for personal injury or property damage unless there is “willful, wanton, or reckless conduct.”

The court's ruling does not address the question of whether the city can be held liable for Marcus' injuries: it simply addresses whether the city can be sued for them in the first place.

“I’m very pleased,” said Amon. “It’s obviously a victory for an injured person against cities, towns, corporations that were trying to minimize his losses by looking for loopholes in laws that would support their position.”

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.

The Supreme Judicial Court's ruling hinged on the question of whether the registration fee that Marcus paid to play softball on the field was technically a fee collected by the city of Newton. The recreational use statute only protects property owners who have not charged a fee for the use of their land.

According to the ruling, Marcus paid an $80 registration fee to Coed Jewish Sports to join the league. Coed Jewish Sports paid $1,200 to the city’s parks and recreation department to get a permit that allowed the league to reserve the field.

The city argued that “Marcus himself paid no admission fee or other charge to the city in exchange for playing softball on McGrath Field,” according to the ruling.

But the Supreme Judicial Court ruled that while Marcus did not directly pay the city, the registration fee he paid to Coed Jewish Sports purchased a permit on his behalf from the city, and he was injured on city land during a block of time reserved by the purchase of that permit.

“In the circumstances,” according to the ruling, “Marcus was not participating in a recreational use of the city’s property free of charge.”

The city also argued that the cost of the permit covered “administrative and operational costs” associated with the league’s use of the field, and so was not technically a “fee,” according to the ruling.

The court ruled that while the city may have put the $1,200 toward field upkeep, it was not upkeep exclusively necessitated by the league’s activities.

Newton City Solicitor Donnalyn Kahn said that while Monday’s ruling meant the city of Newton was not immune to a lawsuit under the recreational statute, it did not settle the question of whether Newton is immune from liability.

“If you’re immune from suit, it means you don’t need to do anything, you can’t be sued in these kinds of cases,” she said. “What the court came back and said was, ‘You can, but what you may end up showing down the road is you are relieved of liability in this case.’”

There are three major issues that could let the city off the hook, she said. The question of whether the fee issues could relieve the city of liability, as opposed to rendering them immune from suit, has not yet been answered, she said. The question of whether there was willful or reckless conduct by the city has not been settled, she said.

And, importantly, she said that the city maintains that the tree is not theirs. The court's ruling says that the tree shaded city land but was rooted on Temple Shalom land.

A spokesman from Temple Shalom declined to comment.

Amon said that the fact that the tree was hanging over public land made it an issue that the city should have dealt with.

“The fact is that it was hanging onto their property and endangering members of the public using their property,” she said.

Monday's ruling allows Marcus to pursue his suit in Middlesex County Superior Court. Amon said that in the Superior Court suit, she will argue that the city was “negligent in allowing dangerous conditions” at the field.

UPDATE: In an email, Marcus wrote that, "After reading the article and some of the article's follow up responses , I believe it important to be aware that the entire length of the tree fell on to me that day - Your article mistakenly suggests only one branch of the tree fell away from its trunk , which is not the case.

"The tree was uprooted at its base, and fell as one intact piece- striking me across the back and neck with its approximate 1 foot diameter trunk - at a distance approximately 40 feet from its base."

Evan Allen can be reached at evan.allen@globe.com

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