Gill v. Armstrong

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

22-P-263 Appeals Court

EDWARD J. GILL, personal representative,1 vs. PETER ARMSTRONG2
& another.3

No. 22-P-263.

Plymouth. December 14, 2022. – June 22, 2023.

Present: Neyman, Shin, & Smyth, JJ.

Wrongful Death. Conscious Pain and Suffering. Negligence,
Gross negligence, Governmental immunity. Governmental
Immunity. Immunity from Suit. Massachusetts Tort Claims
Act. Real Property, Easement. Easement. Motor Vehicle,
All-terrain vehicle. Practice, Civil, Wrongful death,
Motion to dismiss.

Civil action commenced in the Superior Court Department on
September 29, 2020.

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 town of Marshfield.

1 Of the estate of Anthony J. Gill.

2 Individually and doing business as PA Construction.

3 Town of Marshfield.
2

NEYMAN, J. 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.4 A separate and final

judgment entered in favor of the town. We affirm.

Background. According to the second amended complaint,

Armstrong owned undeveloped property in the town designated as

"Ferry Street Rear," which was also "informally known as

'Peter's Pit.'" Armstrong's property had "the benefit of a

[forty] foot easement over a [r]ight of [w]ay . . . that [was]

4 The judge also concluded that the town was entitled to
dismissal under the recreational use statute, G. L. c. 21,
§ 17C. In light of our resolution under G. L. c. 258, § 10 (j),
we need not decide whether the recreational use statute also
bars the plaintiff's claims.
3

located on the abutting property owned by the [t]own." The

right of way provided access and egress from Ferry Street,

through the town's property, to the Ferry Street Rear property

owned by Armstrong. Armstrong knew that ATV riders accessed

Ferry Street Rear and the right of way, and permitted riders to

use the right of way to access Ferry Street Rear. Approximately

ten years prior to April 29, 2020, Armstrong "expressly provided

authorization to Anthony J. Gill and fellow riders to use the

Ferry Street Rear/Peter's Pit property for ATV riding."

Armstrong "had directed an employee, agent, representative

or contractor to purchase, erect, place and maintain [a] wire

cable across the [r]ight of [w]ay." "In the past . . .

Armstrong's representatives, employees or agents had placed a

cable across the [r]ight of [w]ay, blocking ingress into the

Ferry Street Rear lot owned by . . . Armstrong." The town and

various town departments "had required . . . Armstrong to remove

the cable across the [r]ight of [w]ay in order to provide

emergency access" to town property and Armstrong's property.

However, the town also "permitted and allowed the wire cable to

be maintained on its property."5

5 Although we accept all of the allegations in the complaint
as true, see Harrington v. Costello, 467 Mass. 720, 724 (2014),
we note that it contains a variety of contradictory averments,
including the obvious inconsistency between the allegation that
the town required Armstrong to remove the cable, and the
4

On April 29, 2020, the decedent, while riding his ATV,

accessed Ferry Street Rear via Armstrong's right of way, struck

the cable that had been placed across the right of way, suffered

severe head and neck injuries, and "was transported to South

Shore Hospital where he was pronounced dead." The plaintiff

alleged that Armstrong's "placement and maintenance of the wire

cable across the [r]ight of [w]ay used by ATV riders

constitute[d] a failure to maintain the property in a reasonably

safe condition and warn against known dangers" and caused the

decedent's death. The plaintiff further alleged that the town

failed to maintain the right of way in a reasonably safe

condition, failed to "warn visitors of any unreasonable dangers

known or reasonably knowable," and "permitt[ed] a wire cable

across the right of way to be installed and maintained."

Contending that it was immune from suit under both G. L.

c. 258, § 10 (j), and the recreational use statute, G. L. c. 21,

§ 17C, the town moved to dismiss the complaint. See Mass. R.

Civ. P. 12 (b) (6), 365 Mass. 754 (1974). In a thorough

memorandum of decision and order, the judge determined that the

town was entitled to dismissal under both statutes and dismissed

the complaint. See note 4, supra. A separate and final

judgment entered, and the plaintiff appeals therefrom.

allegation that the town permitted and allowed the cable to be
maintained on its property.
5

Discussion. We review the allowance of a motion to dismiss

de novo, accepting the allegations in the complaint as true and

drawing all reasonable inferences in the plaintiff's favor. See

Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).

"[W]e look beyond the conclusory allegations in the complaint

and focus on whether the factual allegations plausibly suggest

an entitlement to relief." Id., citing Iannacchino v. Ford

Motor Co., 451 Mass. 623, 635-636 (2008).

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.

General Laws c. 258, § 10 (j), preserves governmental

immunity for a public employer's "act or failure to act to

prevent or diminish the harmful consequences of a condition or

situation," including the wrongful conduct of a third party,

unless the condition or situation was "originally caused" by the

public employer.6 G. L. c. 258, § 10 (j). See Brum v.

6 General Laws c. 258, § 10 (j), provides that the limited
waiver of sovereign immunity under the Massachusetts Tort Claims
Act shall not apply to the following:

"any claim based on an act or failure to act to prevent or
diminish the harmful consequences of a condition or
6

Dartmouth, 428 Mass. 684, 692 (1999). "By its plain language,

§ 10 (j) generally immunizes public employers from any claim

'based on an act or failure to act to prevent or diminish the

harmful consequences of a condition or situation.'" Klevan v.

Newton, 97 Mass. App. Ct. 87, 90 (2020), quoting G. L. c. 258,

§ 10 (j). Absent from the complaint in the present case is any

allegation that the town placed the cable across the right of

way. In fact, the complaint alleges that it was the

codefendant, Armstrong, who "had directed an employee, agent,

representative or contractor to purchase, erect, place and

maintain the wire cable across the [r]ight of [w]ay." The

complaint further alleges that, "[i]n the past . . . Armstrong's

representatives, employees or agents had placed a cable across

the [r]ight of [w]ay, blocking ingress into the Ferry Street

Rear lot owned by . . . Armstrong." With respect to the town,

by contrast, the complaint alleges that it failed to "warn

visitors" of the cable or "permitt[ed]" the wire cable to be

installed and maintained across the right of way. Where the

unequivocal language of the complaint states that Armstrong --

and not the town -- originally caused the harmful situation or

condition, and where the plaintiff's claim amounts to an

situation, including the violent or tortious conduct of a
third person, which is not originally caused by the public
employer or any other person acting on behalf of the public
employer."
7

allegation that the town failed to prevent harm to the decedent,

§ 10 (j) immunity applies. See Cormier v. Lynn, 479 Mass. 35,

41 (2018).

The plaintiff responds that the town should not be

immunized because, under G. L. c. 258, § 10 (j) (3), immunity

does not apply to "any claim based on negligent maintenance of

public property." Thus, the plaintiff argues, the town 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. Massachusetts courts have previously

rejected this very argument because "maintenance" in this

context means "to keep in an existing state (as of repair,

efficiency, or validity): preserve from failure or decline."

Moore v. Billerica, 83 Mass. App. Ct. 729, 733 (2013), quoting

Merriam Webster's Collegiate Dictionary 749 (11th ed. 2005).

"The plain definition [of 'maintain'] assumes that what is to be

maintained has already been constructed." Moore, supra.

As evidence that the town "maintained" the wire cable

across the right of way, the plaintiff points to an affidavit by

Armstrong in which he averred, inter alia, that when he

"purchased the Ferry Street property, there was already a cable

attached to the two trees within the right of way."7 The

7 At the outset of the present litigation, the plaintiff
filed a motion for a real estate attachment. Armstrong filed an
8

plaintiff asserts that Armstrong's affidavit "raises questions

of fact as to how long the cable was maintained on the property,

[and] the [t]own's knowledge of the cable." This claim is

unavailing for several reasons. First, we typically assess a

motion to dismiss against the well-pleaded allegations

delineated in the four corners of the complaint and reasonable

inferences drawn therefrom. See Navarro v. Burgess, 99 Mass.

App. Ct. 466, 467 n.4 (2021). The Armstrong affidavit and the

content therein were not referenced in or appended to the

complaint. Indeed, the complaint's allegation that Armstrong

installed the wire cable contradicts the averment in the

Armstrong affidavit. Second, although a judge must treat the

motion "as one for summary judgment" if "matters outside the

pleading are presented to and not excluded by the court," see

Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974), both parties

acknowledged at oral argument that the judge did not convert the

motion to dismiss to a motion for summary judgment. Finally,

even assuming, arguendo, that the judge did consider the

opposition with his affidavit appended thereto. The plaintiff
attached the Armstrong affidavit as an exhibit to his opposition
to the town's motion to dismiss. The town moved to strike the
affidavit. The judge, after allowing the motion to dismiss,
endorsed the motion to strike, "NO ACTION TAKEN, given the
[c]ourt's decision" allowing the town's motion to dismiss and
entering separate and final judgment under Mass. R. Civ.
P. 54 (b), 365 Mass. 820 (1974), which "renders this request
moot."
9

Armstrong affidavit in deciding the motion to dismiss, there is

no allegation in the affidavit that the town installed the

cable. Thus, the plaintiff's reliance on the affidavit is

unavailing.

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.8 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. Compare Moore, 83 Mass. App. Ct. at 733 (rejecting

plaintiff's claim that § 10 (j) (3) precluded application of

immunity because "maintenance of a playground envisions the

general upkeep of the playground's equipment and grounds, not

preventing all risks of danger to its visitors"), with Greenwood

v. Easton, 444 Mass. 467, 475 (2005) (town's placement of

telephone poles in parking lot without properly securing them in

safe manner created unreasonable risk of harmful consequences to

foreseeable persons like plaintiff). "Stretching the definition

8 Of note, the only nonconclusory allegation in the
complaint regarding the town's knowledge of the cable wire
states that the town and various town departments "had
required . . . Armstrong to remove the cable across the [r]ight
of [w]ay in order to provide emergency access" to town property
and Armstrong's property.
10

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." Moore, supra at 733-734. As the

Supreme Judicial Court stated in Brum, 428 Mass. at 696, the

"principal purpose of § 10 (j) is to preclude liability for

failures to prevent or diminish harm, including harm brought

about by the wrongful act of a third party . . . [a]nd to

interpret . . . the subordinate clause referring to 'originally

caused' conditions, to include conditions that are, in effect,

failures to prevent harm, would undermine that principal

purpose." See Cormier, 479 Mass. at 41 (claims originating from

failure to act rather than affirmative act barred by § 10 [j]);

Jane J. v. Commonwealth, 91 Mass. App. Ct. 325, 328 (2017) ("The

requirement of an 'affirmative act' is strict; it is also quite

distinct from a failure to prevent the harm"); Jacome v.

Commonwealth, 56 Mass. App. Ct. 486, 489-490 (2002)

(distinguishing affirmative act requirement from "failure to

act" and from "examples of ways in which . . . public employees

might have prevented the harm"). Accordingly, § 10 (j) immunity

applies, and the judge did not err in allowing the town's motion

to dismiss.

Separate and final judgment
affirmed.