Cathy Kobler v. Commonwealth.

• Court: Massachusetts Appeals Court
• Decided: June 6, 2025
• Docket: 23-P-1276
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1276

CATHY KOBLER

vs.

COMMONWEALTH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Cathy Kobler, fractured her clavicle when

she tripped and fell down the steps of the Monsignor Timothy

Gleason Memorial Overpass (overpass), owned and maintained by

the Department of Conservation and Recreation (DCR). The

plaintiff sued the Commonwealth under the Mass Tort Claims Act,

G. L. c. 258, claiming that DCR failed to properly maintain the

overpass and that its negligence caused the plaintiff's fall and

subsequent injury. The Commonwealth filed a motion for summary

judgment, arguing that it was immune from liability under the

recreational use statute, G. L. c. 21, § 17C, because the

overpass was attached to the Charles River Reservation (CRR),

which is covered by the recreational use statute. A Superior Court judge granted the Commonwealth's motion for summary

judgment, finding that the overpass was attached to the CRR. We

reverse.

Background. Viewing the record in the light most favorable

to the plaintiff, see Nunez v. Carrabba's Italian Grill, Inc.,

448 Mass. 170, 174 (2007), we summarize the undisputed material

facts on the summary judgment record, reserving certain facts

for later discussion. DCR owns and maintains both the CRR and

the overpass. The Charles River runs along the CRR's northern

border; highways, including Soldiers Field Road and Storrow

Drive, make up much of the CRR's southern border. Soldiers

Field Road is a high traffic, multilane parkway with a median.

To cross Soldiers Field Road at Telford Street in the Brighton

neighborhood of Boston, a pedestrian must use the overpass

because there are no at-grade crosswalks. The overpass has both

stairways and handicap ramps at the north and south ends.

On May 19, 2018, the plaintiff and her husband participated

in a charity walk that took place in the CRR. Before the walk,

they parked their car near Telford Street and crossed the

overpass to enter the CRR at the bottom of the staircase. After

completing the charity walk in the CRR, the plaintiff and her

husband walked back across the overpass on their way back to

their car. As the plaintiff descended the stairway to ground

level on the southbound (i.e., city) side of the bridge, the

2 heel of her shoe caught on a metal tread that had sprung loose

from a degraded cement step, causing her to lose her balance,

fall down the remaining stairs, and break her clavicle.

Discussion. "Our review of a motion judge's decision on

summary judgment is de novo, because we examine the same record

and decide the same questions of law." Boston Globe Media

Partners, LLC v. Department of Criminal Justice Info. Servs.,

484 Mass. 279, 286 (2020), quoting Kiribati Seafood Co. v.

Dechert LLP, 478 Mass. 111, 116 (2017). We ask 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.

Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In deciding a

motion for summary judgment, a court may consider the pleadings,

depositions, answers to interrogatories, admissions on file, and

affidavits. Community Nat'l Bank v. Dawes, 369 Mass. 550, 553

(1976).

The plaintiff argues that the Commonwealth's motion for

summary judgment should have been denied because the overpass is

not attached to the CRR and, therefore, the recreational use

statute, G. L. c. 21, § 17C, does not bar her claim. The

recreational use statute "serves to protect owners of land from

negligence claims brought by people who were injured while using

that land, without charge, for recreational purposes." Gerante

3 v. 202 Sports Complex, LLC, 95 Mass. App. Ct. 455, 457 (2019).

See Anderson v. Springfield, 406 Mass. 632, 634 (1990) (holding

that recreational use statute applies to governmental entities).

The statute immunizes landowners from liability for injuries

related to all "structures, buildings, and equipment attached to

the land," barring "wilful, wanton, or reckless conduct" by the

landowner. G. L. c. 21, § 17C (a).

The parties agree that the CRR is recreational property as

defined under the statute and that the DCR does not charge a fee

to use the CRR or the overpass. The dispute centers on whether

the overpass was a structure that was "attached" to the CRR

within the meaning of the recreational use statute. The

plaintiff argues that the Commonwealth failed to prove as a

matter of law that the overpass was attached to the CRR and thus

failed to demonstrate that the recreational use statute barred

her claim.

The Commonwealth supported its claim of attachment with an

affidavit from Jason Santos, DCR's Director of Transportation,

Division of Design and Engineering. Santos asserted that the

overpass "is physically attached" to the CRR. Santos provided

no further insight into the definition of "attached" in the

context of the recreational use statute, and did not detail his

basis of knowledge.

4 In her opposition to the Commonwealth's motion for summary

judgment, the plaintiff asserted that the southern side of the

overpass emptied onto Telford Street, a public way in Boston,

and that the overpass was attached to a sidewalk on the northern

side of Soldiers Field Road. To support this argument, she

submitted photographs showing that the northern side of the

overpass emptied onto a sidewalk adjacent to Soldiers Field Road

and outside a fence located on the CRR. The plaintiff asserts

that the recreational use statute does not apply because

sidewalks are considered public ways and liability may arise for

injuries that occur on sidewalks not attached to recreational

property, assertions the Commonwealth does not dispute.

The plaintiff presented sufficient evidence to raise a

material dispute about whether the overpass was attached to the

CRR. There is nothing in the record that would allow the judge

to determine whether the sidewalk on the northern side of the

overpass was part of the CRR nor was there any evidence about

whether the fence served as a border to the CRR. Because "[a]ll

evidentiary inferences must be resolved in favor of the

plaintiff" where she is the nonmoving party, Nunez, 448 Mass. at

174, and because these questions remain on the factual record,

we conclude that the Commonwealth failed to show as a matter of

law that the overpass was attached to the CRR within the meaning

5 of the recreational use statute. Therefore, the Commonwealth's

motion for summary judgment should have been denied.

Conclusion. We reverse the summary judgment entered in

favor of the Commonwealth, and remand the matter for further

proceedings consistent with this memorandum and order.

So ordered.

By the Court (Massing, Hershfang & Tan, JJ.1),

Clerk

Entered: June 6, 2025.

1 The panelists are listed in order of seniority.