Personal Injury Trial Report - Premises Liability

NATURE OF CASE:

Premises liability; unsafe playground built by volunteers

INJURIES ALLEGED:

Paralysis.

NAME OF CASE:

Davis, et al. v. Town of Stow, et al.

AMOUNT OF SETTLEMENT

$950,000.00

ATTORNEYS FOR PLAINTIFFS:

Eric J. Parker

ATTORNEY FOR DEFENDANTS:

Withheld.

OTHER USEFUL INFORMATION:

In February 1989, the plaintiff was playing with his children at the Pompositticut Elementary School playground in Stow when he struck his head on an exposed angle-iron used to brace a firemen's pole.

As a result of falling on a hard wooden surface, the father of three suffered a spinal injury causing permanent quadraparesis.

The plaintiff sued six individual volunteers who had promoted, designed and supervised the construction of the playground structure between late 1984 and 1986. The plaintiff's wife and children asserted claims for loss of consortium.

Rather than building a playground set using a prefabricated kit from a reputable manufacturer, the volunteers used their own materials, the plaintiffs said, adding that the cost of constructing the Stow playground was around $3,800. Pre-made kits go for around $40,000, according to the plaintiffs' lawyers.

In addition to no blueprint, there was no uniformity among the materials used in constructing the playground set, noted the attorneys.

The town was aware of the playground construction, but provided no supervision or subsequent audit of the structure, the plaintiffs alleged.

Claims against the town were filed for negligence and wanton and reckless conduct in failing to supervise and/or inspect the design and construction of playground for safety purposes.

The Massachusetts Torts Claims Act imposes a $100,000 cap per plaintiff on damages recoverable against a municipality for negligence.

The Recreational Use Statute bars claims in negligence against a landowner, including a municipality, which allows the public to use its land for free for recreational purposes.

By asserting claims against the individuals as "volunteer" independent contractors, the plaintiff was able to get around the $100,000 MTCA cap and the Recreational Use Statute immunity provision. The plaintiff was also able to bring the claims within coverage of the individual homeowners' insurance policies, as well the town's liability policy, which provided coverage to volunteers.

The plaintiff successfully opposed motions for summary judgment based upon the alleged immunity of the town under the Recreational Use Statute and of the individuals volunteers under the MTCA.

A week before the trial, the parties agreed to submit the case to mediation, which resulted in a combined settlement of $950,000.  

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