Municipal – Immunity – MTCA

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Where the town of Marshfield moved to dismiss a wrongful death complaint over a fatal all-terrain vehicle accident that occurred on town land, a judge’s decision to allow that motion should be upheld under the Massachusetts Tort Claims Act.

“On April 29, 2020, Anthony J. Gill (decedent) was operating his all-terrain vehicle (ATV) on an easement benefiting codefendant Peter Armstrong and on property owned by codefendant town of Marshfield (town), when he struck a wire cable hanging between two trees and suffered severe head and neck injuries that resulted in his tragic death. The decedent’s father, Edward J. Gill, as personal representative of the estate of the decedent (plaintiff), sued the town and Armstrong for wrongful death, conscious pain and suffering, and gross negligence. A Superior Court judge concluded that the Massachusetts Tort Claims Act, G.L.c. 258, §10(j), barred the plaintiff from bringing claims against the town in relation to this incident, and thus allowed the town’s motion to dismiss the plaintiff’s claims against it. A separate and final judgment entered in favor of the town. We affirm. …

“The town contends that it is immune from suit under G.L.c. 258, §10(j), because there is no dispute that the condition at issue — the placing of the wire cable between two trees on the right of way — was originally caused by Armstrong. The town also contends that it cannot be held liable for its alleged failure to act or prevent harm to the decedent. We agree. …

“In short, the plaintiff’s claim rests at bottom on the allegation that the town allowed the wire cable to be maintained on its property. Where the complaint does not allege that the town created the condition at issue, and where the complaint alleges only that the town failed to warn visitors and failed to prevent all risks by ‘permitting’ the cable to be maintained on its property, the claims do not fall within the §10(j)(3) exception. … ‘Stretching the definition of ‘maintenance of public property’ to require the town to … erect a barrier, or post warning signs would effectively swallow the immunities provided by §10(j), rendering them entirely barren and ineffective.’ …

“Accordingly, §10(j) immunity applies, and the judge did not err in allowing the town’s motion to dismiss. Separate and final judgment affirmed.”

Gill v. Armstrong, et al. (Lawyers Weekly No. 11-063-23) (10 pages) (Neyman, J.) A motion to dismiss was heard by Brian S. Glenny, J., and separate and final judgment was entered by him. Matthew W. Perkins for the plaintiff; Justin L. Amos for the town of Marshfield (Docket No. 22-P-263) (June 22, 2023).

Click here to read the full text of the opinion.