BOTSFORD, J.
Edward Marcus was injured during a softball game on a public field owned by the city of Newton (city). We consider the city's appeal,
1. Background. a. Facts. In the summer of 2007, Marcus participated in a softball league organized by an organization called "Coed Jewish Sports." Marcus joined the league after mailing an application and an eighty dollar registration fee to the organization. Payment of the registration fee entitled Marcus to participate in the league, receive a team T-shirt, and attend a cookout hosted by the league at the end of the season.
A payment of $1,200 by Coed Jewish Sports to the city's parks and recreation department secured the league a permit. The permit in turn reserved for the league the use of McGrath Field, a property owned and maintained by the city, for eight two-hour blocks between June and August, 2007. Marcus had no knowledge of or participation in the permit application process undertaken by Coed Jewish Sports, and never applied directly to the city for any such permit. According to the city, the $1,200 payment was used to defray approximately $12,000 in annual maintenance and administrative costs that it incurred
On July 8, 2007, while participating in a league game, Marcus was sitting in a grassy area watching the game and waiting for his turn at bat. The area was shaded by several nearby trees, which stood on adjacent property owned by Temple Shalom. Marcus heard a cracking sound and realized that a tree was falling in his direction. He was unable to avoid the falling tree, which struck him in the back. Marcus suffered two fractured vertebrae, shattered right and left shoulder blades, and various other injuries as a result of the tree's impact.
b. Procedural history. Marcus filed his complaint in the Superior Court against the city and the other defendants (see note 1, supra) on July 2, 2009. With regard to the city, he alleged that it had a duty to maintain McGrath Field in a careful, safe, and prudent manner; it was negligent in poorly maintaining the property and, specifically, allowing the allegedly rotten tree and its branches to overhang its property without proper maintenance; and as a result of the city's negligence, he suffered serious physical injuries. In its answer, the city denied liability and asserted that, in any event, it was immune from liability under the recreational use statute, G. L. c. 21, § 17C. On June 15, 2010, the city filed its motion for summary judgment in which it presented, among other things, its claim of immunity from suit pursuant to G. L. c. 21, § 17C. After a hearing, a Superior Court judge denied the city's motion on the ground that there remained genuine issues of material fact. Its appeal followed.
c. Recreational use statute. The recreational use statute, G. L. c. 21, § 17C (§ 17C), provides that any person
§ 17C (a). The statute further provides that "[t]he liability of any person who imposes a charge or fee for the use of his land by the public for [any of the above enumerated] purposes ... shall not be limited by any provision of this section." § 17C (b). Section 17C applies with equal force to governmental and private landowners. See Ali v. Boston, 441 Mass. 233, 237 n.7 (2004); Anderson v. Springfield, 406 Mass. 632, 634 (1990).
2. Discussion. The city contends that the doctrine of present execution entitles it to immediate review of the interlocutory order denying its motion for summary judgment.
a. Doctrine of present execution. As a general matter, "there is no right to appeal from an interlocutory order unless a statute or rule authorizes it." Maddocks v. Ricker, 403 Mass. 592, 597 (1988). "The policy underlying this rule is that `a party ought not to have the power to interrupt the progress of the litigation by piecemeal appeals that cause delay and often waste judicial effort in deciding questions that will turn out to be unimportant.'" Fabre v. Walton, 436 Mass. 517, 521 (2002), S.C., 441 Mass. 9 (2004), quoting Borman v. Borman, 378 Mass. 775, 779 (1979). However, a "narrow exception" to this general rule lies in the
Under this rule, litigants claiming immunity may only avail themselves of the doctrine of present execution if § 17C provides immunity from suit, rather than merely an exemption from liability for ordinary negligence.
The city's motion for summary judgment asserted a claim of immunity from suit, but in other pleadings, the city claimed immunity from liability. The city has a right to interlocutory
b. Exemption from liability for negligence under § 17C. Nevertheless, we address the city's claim that in the circumstances of this case, it qualified for § 17C's exemption from liability for ordinary negligence as a matter of law, and that, therefore, its motion for summary judgment should have been granted. We choose to do so because the claim has been briefed fully by the parties, it raises a significant issue concerning the proper interpretation of the recreational use statute, and addressing it would be in the public interest. See, e.g., Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 601 n.13 (2010), citing Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943).
i. Payment of fee. The city asserts it must be exempt from negligence liability because Marcus himself paid no admission fee or other charge to the city in exchange for playing softball on McGrath Field.
The statute, by its terms, focuses on whether the landowner "lawfully permits the public to use such land for recreational... purposes without imposing a charge or fee therefor." § 17C (a).
For present purposes, the salient point in Seich, supra,
We disagree. The Seich and Dunn cases signify that when a landowner imposes a charge intended solely to reimburse it for marginal costs directly attributable to a specific user's recreational use of the property, the landowner remains exempt from ordinary negligence claims under § 17C. See Seich, supra (concluding that portion of town's youth basketball league registration fee that was used to pay custodians to keep gymnasium open for league games after regular hours "is not the equivalent of the town imposing a fee for the use of its land for recreational purposes"); Dunn, supra (where organization holding event on City Hall Plaza under one-time entertainment license paid city for security and janitorial services associated with event, payment "properly categorized as a reimbursement, rather than a `charge or fee' within the meaning of [§ 17C]"; city therefore retained exemption from negligence liability).
On the record before us, the city has not established that the payment at issue is the type of reimbursement contemplated by Seich, supra, and Dunn, supra. We take as undisputed that the city dedicated the $1,200 received from Coed Jewish Sports to the upkeep of McGrath Field — that is, the payment became part of the $12,105.85 the city spent in 2007 for the various purposes listed in note 11, supra. But the fact that the city used
3. Conclusion. For the reasons stated, the city's appeal from the denial of its motion for summary judgment is dismissed.
So ordered.
In Whooley v. Commonwealth, 57 Mass.App.Ct. 909 (2003), the plaintiff went to an ice hockey rink owned by the Commonwealth to watch her grandson play ice hockey, and was injured in a fall on her way to the bleachers. Id. at 909. She claimed that the youth hockey league in which her grandson participated had paid a fee to use the rink, id. at 910, but she did not pay any fee to be a spectator. Following Seich, the Appeals Court concluded that the plaintiff was a spectator who, like any other member of the public, could enter the rink facility free of charge and watch any hockey game being played, and that in those circumstances, the town could claim exemption from negligence liability under G. L. c. 21, § 17C. Whooley v. Commonwealth, supra.