Elizabeth Marino v. City of Newton.

• Court: Massachusetts Appeals Court
• Decided: June 28, 2024
• Docket: 23-P-1044
• Status: Unpublished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-1044

ELIZABETH MARINO

vs.

CITY OF NEWTON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is a negligence action brought by the plaintiff,

Elizabeth Marino, against the defendant, the city of Newton, for

injuries she allegedly sustained when she slipped and fell in a

municipal parking lot. The city filed a motion for summary

judgment on the basis that it is immune from this suit in its

entirety, pursuant to the discretionary function exception to

the Massachusetts Tort Claims Act, G. L. c. 258, § 10 (b). A

judge of the Superior Court denied the motion and the city

brought this interlocutory appeal under the doctrine of present

execution. See Brum v. Dartmouth, 428 Mass. 684, 688 (1999).

The plaintiff alleges she was injured when she slipped on

an accumulation of snow and ice in the Cherry Street parking lot, a public parking lot owned by the city, at approximately

8:37 A.M. on February 14, 2019. Having made the decision to

keep the parking lot open to the public in the winter, the

plaintiff alleges, the city acted negligently in its salting of,

and snow removal from, the lot. She alleges that the parking

lot should have been salted more than once each day, it should

have been salted earlier in the day on the day in question, and

that the city failed to remove snow that accumulated on the

sidewalk in the parking lot.

The dispute here is relatively straightforward. Under

G. L. c. 258, § 10 (b), municipalities are immune from suit for

tort claims "based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty

on the part of a public employer." Section 10 (b) covers only

the type of discretion involved in governmental planning and

policymaking. Ku v. Framingham, 62 Mass. App. Ct. 271, 277

(2004). It does not provide immunity for functions involving

the implementation and execution of such governmental policy or

planning. See Harry Stoller & Co. v. Lowell, 412 Mass. 139, 142

(1992). Similarly, there is no immunity under § 10 (b) from

suit for nondiscretionary actions -- those mandated by statute,

regulation, established agency practice, and so on. Ku, supra

at 276. But there are no such actions here.

2 The plaintiff argues that the decision about precisely how

to deal with the snow and ice in the Cherry Street lot is not a

planning and policymaking decision; the city argues that it is.

Fortunately, two prior decisions with respect to § 10 (b)

provide excellent guidance on the question before us. First, in

Doherty v. Belmont, 396 Mass. 271, 272-273 (1985), after the

defendant town made a policy decision to switch from an

individual parking meter system in a municipal parking lot to a

single parking ticket dispenser at the entrance, town workers

were instructed to remove the meters by cutting their posts

close to the ground by welding the posts, and then to pound the

remaining stumps into the cement while the metal was still hot.

Nonetheless, some parking meter post stumps remained protruding

from the ground, and the plaintiff subsequently tripped over a

cement mound of less than an inch with a metal stump protruding

slightly above it where a parking meter had once stood. Id.

The Supreme Judicial Court concluded that the plaintiff's

negligence suit was not barred by § 10 (b) because the

maintenance of the parking lot, in furtherance of the town's

decision to remove the parking meters, did not rise to the level

of "'public policy or planning' decisions" warranting such

protection. Id. at 276.

3 The second case is Barnett v. Lynn, 433 Mass. 662 (2001).

In this case, one child was killed and another seriously injured

when they sledded on snow-covered stairs at High Rock Tower in

Lynn. Id. at 662-663. The court concluded that both the

decision not to erect a fence or other barrier at the site and

the decision not to remove snow from the property were

discretionary ones for which the city was immune from suit under

the statute. Id. at 664-665. The court held, "A determination

concerning whether to incur the cost of constructing a barrier

at the top or bottom of the stairs is 'an integral part of

government policymaking or planning.'" Id. at 664, quoting

Harry Stoller & Co., 412 Mass. at 142. Likewise, the decision

of which public property would have snow removed by the city of

Lynn, based on limited resources available to that city, was one

that involved a high degree of discretion and judgment and for

which the city was immune from suit under § 10 (b). See id. at

665.

Although there is no bright line rule for distinguishing

between discretionary and nondiscretionary decisions, the

Barnett court held that "[d]iscretionary acts . . . do not

include those involving the 'carrying out of previously

established policies or plans.'" Barnett, 433 Mass. at 664,

quoting Whitney v. Worcester, 373 Mass. 208, 218 (1977).

4 Helpfully, in rejecting Barnett's argument that for purposes of

§ 10 (b) the municipality's decisions in her case were analogous

to those in Doherty, 396 Mass. at 276, the court said, "[t]he

present case would be similar to the Doherty case had the city

decided to erect a fence and then negligently maintained it, or

decided to remove the snow but acted negligently in its

shoveling, salting, or sanding." Barnett, supra at 666. This

latter language describes precisely the allegations in this

case. While the language in the Barnett decision is dictum, we

think it accurately explains why, in this case, the city is not

immune from suit under § 10 (b) for torts arising out of its

challenged decisions.

In addition to its argument regarding § 10 (b), the city

also argues that the motion judge erred in rejecting the

contention "that there is no duty to warn the public of open and

obvious snow and ice on the ground following inclement winter

weather." An interlocutory appeal brought under the doctrine of

present execution brings before us only that issue to which the

doctrine applies. See Shapiro v. Worcester, 464 Mass. 261, 265

(2013). In this case, that is only the question of immunity,

5 and we are without jurisdiction to address in this interlocutory

appeal the city's alternative argument for summary judgment.

Order denying motion for summary judgment affirmed.

By the Court (Vuono, Rubin & Walsh, JJ.1),

Clerk

Entered: June 28, 2024.

1 The panelists are listed in order of seniority.