Massachusetts Town Not Liable for ATV Rider’s Death on Town Land

A Massachusetts town is immune from liability for the death of an ATV rider who was killed after striking a wire cable strung across a right of way on town land by the owner of the adjacent private property.

The Massachusetts Supreme Judicial Court (SJC) found the town of Marshfield is immune because it did not place the wire across the public path; rather the private property owner did. While the town knew of the wire strung between two trees, it cannot be held responsible for negligence for allowing it to remain or for not warning the public about it under state law.

The private property owner had been granted a 40-foot easement over a right of way that was located on the abutting property owned by the town. This allowed for access to his property by ATV riders and others.

When he struck the wire cable hanging between two trees, Anthony Gill suffered severe head and neck injuries that resulted in his death. His father, Edward J. Gill, sued the town and the private property owner for wrongful death, conscious pain and suffering, and gross negligence.

Gill argued that the town should be liable because municipal immunity does not apply to “any claim based on negligent maintenance of public property.” Thus, he maintained, Marshfield may be found liable for failing to maintain the right of way in a reasonably safe condition and failing to warn visitors of any unreasonable dangers.

However, a Superior Court judge concluded that the Massachusetts Tort Claims Act bars 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.

Gill appealed and the state’s high court has now affirmed.

While the state’s tort law recognizes a limited exception to municipal immunity for an “act or failure to act to prevent or diminish the harmful consequences of a condition or situation,” the high court stressed that this exception is only where the public entity “originally caused” the harmful condition.

Also, Massachusetts courts have previously rejected the negligent maintenance argument made by Gill because “maintenance” in this context means “to keep in an existing state (as of repair, efficiency, or validity): preserve from failure or decline.”

The town contended that it is immune from suit 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 the private property owner. The town also contended that it could not be held liable for its alleged failure to act or prevent harm to the decedent.

The high court noted that the complaint lacks any allegation that the town placed the cable across the right of way. In fact, the complaint alleges that it was the private property owner who “had directed an employee, agent, representative or contractor to purchase, erect, place and maintain the wire cable” across the right of way.

“In short,” the SJC concluded, “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 immunity exception.