If a tree falls in a park and a softball player is under it, the city might have to pay damages, court rules

The Supreme Judicial Court ruled today the city of Newton will have to show a lower court why it shouldn't be made to pay a softball player for serious injuries caused by a tree falling on him while he was waiting his turn at bat.

Edward Marcus sued Newton for negligence for the two broken vertebrae and two broken shoulder blades he suffered in July 8, 2007, when a tree rooted on land owned by Temple Shalom fell on him as he sat at McGrath Field. Marcus says the city failed to protect people by not pruning back the part of the tree that reached over the park.

The city, however, asked the judge in the case to simply dismiss the case, because state law exempts owners of parkland from suits if they don't charge a fee to access the land, and Marcus had not paid a fee to use the park that day.

Not so fast, the state's highest court countered. Although Marcus did not make out a check to the city of Newton, he did pay Coed Jewish Sports $80 to participate in its softball league, and the organization in turn paid Newton $1,200 for the right to use the park - with the money helping to defray the $12,000 a year Newton spends to maintain the park.

That Marcus did not pay directly to the city its permit fee to reserve McGrath Field is not material. What matters is that the city imposed this fee or charge for the exclusive use of the field during the reserved blocks of time; Coed Jewish Sports paid the fee on behalf of its league players, including Marcus; and he was injured while playing a game on the field during one of the reserved blocks of time. In the circumstances, Marcus was not participating in a recreational use of the city's property free of charge.

• Complete ruling, Edward Marcus vs. City of Newton