Scrapchansky v. Town of Plainfield

627 A.2d 1329, 226 Conn. 446, 1993 Conn. LEXIS 218
CourtSupreme Court of Connecticut
DecidedJuly 13, 1993
Docket14655
StatusPublished
Cited by132 cases

This text of 627 A.2d 1329 (Scrapchansky v. Town of Plainfield) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Scrapchansky v. Town of Plainfield, 627 A.2d 1329, 226 Conn. 446, 1993 Conn. LEXIS 218 (Colo. 1993).

Opinions

Callahan, J.

The plaintiff, Michael Scrapchansky, brought this action against the defendants, the town of Plainfield (town) and the Plainfield board of education (board), for personal injuries suffered while playing in an American Legion baseball game on a field owned by the town and controlled by the board. The trial court granted the defendants’ motion for summary judgment, ruling that, pursuant to the Connecticut Recreational Land Use Act (act); General Statutes §§ 52-557f through 52-557i;1 the defendants were [448]*448immune from liability for the plaintiffs injuries. The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). On appeal, the plaintiff claims that the trial court improperly granted the defendants’ [449]*449motion for summary judgment because: (1) the defendants had not made the field “available to the public” within the meaning of § 52-557g (a); and (2) an organized league baseball game is not a “recreational purpose” as that term is used in § 52-557Í (4). We affirm the judgment of the trial court.

The relevant facts are as follows. On June 22,1986, while chasing a batted ball, the plaintiff ran into a stone wall that bordered the baseball field. As a result, he suffered various personal injuries. At the time of the accident, the plaintiff was a member of the Daniel-son/Moosup American Legion baseball team, and was playing center field in a league game. The field on which he was injured is adjacent to the Plainfield High School. It is owned by the town and controlled by the board. Since 1973, the town had permitted the American Legion team to use the field without charge, fee, or rent, whenever school was not in session.

The plaintiffs complaint alleged that the defendants were liable for his injuries under theories of both negligence and nuisance. The defendants moved for summary judgment on the ground that they were immune from liability under the act. The trial court granted the defendants’ motion for summary judgment, concluding that the act rendered the defendants immune from suit because the field on which the plaintiff had been injured had been made “available to the public with[450]*450out charge, rent [or] fee” within the meaning of § 52-557g (a), and because a baseball game constituted a “recreational purpose” pursuant to § 52-557Í (4).

I

The plaintiff first claims that the defendants failed to make the field “available to the public” as contemplated by § 52-557g of the act because there were restrictions on its use. The plaintiff argues that because the defendants did not make the field “available to the public,” they were not entitled to the immunity afforded by the act and the trial court, therefore, had improperly granted the defendants’ motion for summary judgment. We disagree.

Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 908 (1991). “Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. ‘Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . .’ ” (Citations omitted.) Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). We recognize that “[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781.

[451]*451Section 52-557g (a) provides in relevant part: “[A]n owner of land who w,akes 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.” (Emphasis added.)

Before the trial court, it was undisputed that, in order to prevail on their motion for summary judgment, the defendants, the owners2 of the ball field, were required by § 52-557g (a) to have made the field “available to the public” for recreational purposes. Manning v. Barenz, 221 Conn. 256, 260, 603 A.2d 399 (1992). In support of their motion, the defendants presented the affidavit of Albert DePetrillo, superintendent of the board, who stated that the high school playing field was made available to the public for recreational purposes without fee, charge or rent. In response, the plaintiff presented evidence that restrictions applied to the public’s use of the field. In particular, the plaintiff presented excerpts from the transcript of the deposition taken of DePetrillo, wherein DePetrillo had stated that the field was available to the public only when school was not in session and that any team desiring to use the field was required to obtain permission to do so in order to avoid scheduling conflicts with another event.

The plaintiff argues on appeal that by limiting the use of the field to times when school was not in session and by requiring permission for its use, the defend[452]*452ants did not make the field “available to the public” in the manner contemplated by § 52-557g. The plaintiff further contends that by permitting scheduled league games to occupy the playing field at a given time, the defendants necessarily excluded the concurrent use of the field by others, thereby contravening the purpose of the act to make recreational land available to the public. In support of his argument, the plaintiff cites to the legislative history of the act, claiming that the legislature envisioned that immunity from liability under the act would only be afforded to landowners who “allow their property to be used for the entire citizenry.” 14 H.R. Proc., Pt. 4, 1971 Sess., p. 1806, remarks of Representative David Lavine.

Although the purpose of the act is to make land accessible for recreational use by the public, nothing in the language of § 52-557g (a) mandates that land, in order to be “available to the public” under the act, must be open in its entirety to everyone simultaneously. In Genco v. Connecticut Light & Power Co., 7 Conn. App. 164, 508 A.2d 58 (1986), it was held that signs posted by the owner of a lake that expressly restricted the use of the lake in certain locations did not make the land unavailable to the public. Stated differently, the word “public” in § 52-557g (a) does not require that recreational land be made available to all members of the public at all times in order to provide a landowner with immunity from liability. “For an area to be ‘open to public use’ it does not have to be open to ‘everybody all the time.’ State ex rel. Anderson v.

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Bluebook (online)
627 A.2d 1329, 226 Conn. 446, 1993 Conn. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scrapchansky-v-town-of-plainfield-conn-1993.