GRETA ALTER & others [Note 1] vs. CITY OF NEWTON.

DREBEN, J. On May 12, 1988, while sitting in an area of the schoolyard known as "the mall," Greta Alter, a freshman at Newton North High School, was hit in the eye by a lacrosse ball. The accident occurred at 4:00 P.M., during practice by the lacrosse team. Greta had just finished her track practice and was waiting with a classmate for her father to take her home. After the accident, the city erected a fence between "the mall" and the goal end of the lacrosse field.

Alleging negligence on the part of the city in failing to take reasonable precautions to protect her from the hazard of lacrosse balls, Greta brought this action. Her parents joined as plaintiffs seeking damages for loss of consortium. At trial there was evidence that the mall was a gathering place for students and that lacrosse balls were thrown into the walkway or the mall "fairly often," at least once every practice. An expert called by the plaintiff described the risk to students in the mall as a definite hazard. A Superior Court jury found the city negligent and awarded the plaintiff damages of $22,465 but found no damages for her parents for loss of consortium.

The city appeals from the judgment entered upon the verdict claiming that: (1) the judge erred in denying its motion

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for summary judgment because the city's failure to erect a fence or issue warnings was within the "discretionary function" exception of G. L. c. 258, Section 10(b), as inserted by St. 1978, c. 512, Section 15, and, therefore, the city is immune from liability [Note 2]; (2) the judge also erred in refusing to permit the jury to decide whether the city's decisions not to erect a fence or place warnings were discretionary functions; and (3) in any event, G. L. c. 21, Section 17C, the recreational use statute, also provides the city with immunity. We affirm the judgment.

1. Discretionary function, G. L. c. 258, Section 10(b).

a. Prior to trial, the city filed a motion for summary judgment urging that it was immune from suit under G. L. c. 258, Section 10(b), [Note 3] because the "alleged negligence consisted of a failure to erect a fence, a decision which clearly constitutes discretionary decision making on the part of public officials." In support of its motion, the city filed an affidavit of Martin J. Ford, the director of support services for the city, portions of Ford's deposition, and portions of the deposition of Robert A. Hunt, a design engineer for the city. Hunt's deposition testimony recounted that the athletic complex was designed in 1976 and that, at that time, at least one member of the design review committee did not want any fences at all. "We specifically did not consider a fence there because the fire department at the time requested that the end of that field be left open as a fire lane." [Note 4] Ford's deposition indicated that a fence costing $10,000 or more would be a capital expenditure requiring approval of the board of aldermen. [Note 5]

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In opposition to the city's motion, the plaintiff filed answers to interrogatories and other documents. In response to an interrogatory seeking the facts supporting the claims of negligence, the plaintiff listed a number of failures in addition to the failure to erect a fence: a failure to reposition the net on the lacrosse field so that the goal would not face the walkway and the mall; a failure to post warnings; and a failure to bar persons from the area during lacrosse games or practice.

Because of the relationship between a school and its students, the city had a duty of care to the plaintiff to provide her with reasonably safe school premises. See Whitney v. Worcester, 373 Mass. 208, 223 (1977); Mullins v. Pine Manor College, 389 Mass. 47, 54 (1983); Irwin v. Ware, 392 Mass. 745, 756 (1984); Prosser and Keeton, Torts Section 56, at 383 (5th ed. 1984). Accordingly, unless each of the failures alleged by the plaintiff fell within the discretionary function exception, or, unless the city showed a policy reason for not choosing any means to protect its students, the city would not have been entitled to summary judgment. Cf. Dillon v. Barnard, 328 Mass. 53, 55 (1951).

The most recent discussion by the Supreme Judicial Court of the discretionary function is Harry Stoller & Co. v. Lowell, 412 Mass. 139 (1992), a case involving a decision of fire fighters in fighting a fire. While recognizing that fire fighters had a choice whether to pour water on the buildings through hoses or through a sprinkler system, the court held that this type of choice did not fall within the discretionary function exception. Since "[a]lmost all conduct involves some discretion, . . . [i]f allegedly tortious conduct were to be immunized from causing liability simply because there was some element of discretion in that conduct, the discretionary function exception would go a long way toward restoring the governmental immunity that G. L. c. 258 was designed to eliminate." Id. at 141. The discretionary function exception is

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"far narrower, providing immunity only for discretionary conduct that involves policy making or planning." Ibid.

Citing Whitney v. Worcester, 373 Mass. at 216-220, as establishing guiding principles for determining the scope of the discretionary function exception, subsequently enacted in Section 10(b), the Stoller court reiterated some of the considerations (set forth in the margin [Note 6]) to be taken into account in determining whether the exception is applicable. The court also analyzed the facts in a number of previous Massachusetts cases and concluded that, even where discretionary actions were involved, unless policy considerations were implicated, the governmental unit was held liable for the negligence of its agents. Turning to specific aspects of firefighting, the court suggested some decisions that would have "an obvious planning or policy basis" (emphasis supplied). 412 Mass. at 145. These would include "[t]he number and location of fire stations, the amount of equipment to purchase, the size of the fire department, the number and location of hydrants, and the quantity of the water supply . . . [and] especially the allocation of financial resources." Ibid. Contrasted with those decisions, or, for example, contrasted with a determination of what property to attempt to save in situations where fire fighting resources seem insufficient to save all threatened property, the court considered the conduct at issue in Stoller not to involve a policy or planning decision.

In the case before us, the initial decision at the time of the field's construction was, according to Hunt's deposition testimony, not to erect a fence because of the fire department's request. That 1977 decision was "an integral part of governmental policymaking or planning." Stoller, supra at 142. See Patrazza v. Commonwealth, 398 Mass. 464, 466-467, 469-470

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(1986) (unburied guardrails shown to be policy decision shielded by Section 10[b]); Sanker v. Orleans, 27 Mass. App. Ct. 410, 412 (1989) (location of utility poles held to be decision within Section 10[b]). See also the discussion of fences in Gage v. Westfield, 26 Mass. App. Ct. 681, 686 (1988), and in Tryon v. Lowell, 29 Mass. App. Ct. 720, 724 (1991), indicating that in some circumstances the failure to erect a fence is a policy decision.

The alleged negligence by the city in failing to warn of the danger does not, however, come within the exception of Section 10(b). There was no "obvious planning or policy basis" for that failure, Stoller, supra at 145, nor has the city presented anything to suggest that the failure "was an integral part of governmental policymaking or planning," or any other consideration discussed in Stoller (see note 6, supra). See Whitney v. Worcester, 373 Mass. at 223. It is difficult to imagine the city justifying a decision not to place warning signs to high school students on economic or other policy grounds. In the absence of evidence that the city made such a decision based on policy, it may not here invoke the exception of Section 10(b). See Dube v. Pittsburgh Corning, 870 F.2d 790, 799-800 (1st Cir. 1989).

Other Federal cases [Note 7] also hold that in the absence of a showing that a failure to warn is a policy decision or that such a policy is obvious, the discretionary function exception does not apply. See, e.g., Caplan v. United States, 877 F.2d 1314, 1316 (6th Cir. 1989); Boyd v. United States, 881 F.2d 895, 897-898 (10th Cir. 1989); Andrulonis v. United States, 924 F.2d 1210, 1219 (2d Cir. 1991), cert. denied, 112 S.Ct. 2992 (1992); Summers v. United States, 905 F.2d 1212, 1215 (9th Cir. 1990). Contrast Myslakowski v. United States, 806 F.2d 94, 97 (6th Cir. 1986), cert. denied, 480 U.S. 948 (1987), and Zumwalt v. United States, 928 F.2d 951, 955 (10th Cir. 1991), both cases where policy decisions

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supported the application of the discretionary function exception.

The reasons that the city may not rely on Section 10(b) with respect to its failure to warn apply equally to its failure to reposition the net or to take other precautions during lacrosse practice. Since at least some of the claims of negligence were not entitled to protection under Section 10(b), the judge did not err in denying the city's motion for summary judgment. [Note 8]

b. Because of his ruling on the city's motion for summary judgment, the judge, at the commencement of trial, stated that he would not permit the jury to consider whether the decisions of the city were within the discretionary function. Although the city claims this was error, both Federal and State cases hold that the application of the discretionary function exception is a question of law for the court. Hart v. United States, 894 F.2d 1539, 1544 (11th Cir.), cert. denied, 498 U.S. 980 (1990). Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987). Peavler v. Commissioners of Monroe County, 528 N.E.2d 40, 46 (Ind. 1988). Gillam v. Lloyd, 172 Mich. App. 563, 576 (1988). Accordingly, the judge did not err in precluding the city from introducing evidence for jury consideration on the discretionary function issue. [Note 9]

c. After the city had rested its case, it again urged that it was entitled to judgment and moved for a directed verdict on the basis of Section 10(b), as well as on other grounds. The city at no time requested that the issue of the fence be treated differently from the other claims of negligence.

The reasoning in our discussion of the city's motion for summary judgment disposes of the claim that the motion for a directed verdict should have been allowed. Since there was evidence that the city was negligent in failing to warn and in failing to reposition the lacrosse net, and no policy grounds for these failures were apparent or presented, the city was not entitled to a directed verdict based on Section 10(b).

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2. Recreational use statute, G. L. c. 21, Section 17C. The city also urges that it is immune from liability because of G. L. c. 21, Section 17C, [Note 10] which, as inserted by St. 1972, c. 575, provides that an owner of land, [Note 11] "who permits the public to use such land for recreational purposes without imposing a . . . fee . . . shall not be liable to any member of the public" who uses the land for such purposes for injuries sustained while on that land.

The difficulty with the city's argument is that the plaintiff was not just a member of the public, but was, as discussed earlier, a student to whom it owed a duty of care. See Whitney v. Worcester, 373 Mass. at 223; Mullins v. Pine Manor College, 389 Mass. at 54; Irwin v. Ware, 392 Mass. at 756; Bauer v. Minidoka Sch. Dist. No. 331, 116 Idaho 586, 588 (1989); Prosser and Keeton, Torts Section 56, at 383. As stated in Bauer v. Minidoka Sch. Dist. No. 331, supra at 588-589, "if the recreational use statute were applied to injuries children suffered while on school premises as students," the special relationship of the school to its students would be substantially impaired.

That the accident occurred at the end of the school day while the plaintiff was waiting for her father does not absolve the city from liability. Hers was a legitimate use of the

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premises within the scope of a student's traditional relationship with her school.

Judgment affirmed.