Jane Greenwood, as Mother and Next Friend of Denise Greenwood, Plaintiff-Appellee, v. Town of Easton, Defendant-Appellant.

Statement of the Issues Presented for Review............................................................................1

Statement of the Case and Facts.......................................................................................................2

1. The Town's Use Of Unsecured Telephone Poles As Parking Berms In The High School's Parking Lot Is Not A “Discretionary Function” Within The Meaning Of G.L.c. 258, Section 10(b), And The Town Is Therefore Not Entitled To A Ruling That It Is Immune From Liability For Greenwood's Claims.............................................................................................................16

2. The Town Is Not Immune From Liability By Reason Of G.L.c. 258, Section 10(j)...............................................................................................................................................34

Conclusion....................................................................................................................................38

Statutory and Rule Addendum.................................................................................................Post

Alter v. Newton , 35 Mass. App. Ct. 142, 145(1993).................................................................20

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252(1986).......................................................17

Barnett v. City of Lynn , 433 Mass. 662, 667(2001)..................................................................33

Brum v. Dartmouth , 428 Mass. 684, 696(1999)........................................................................35

Cady v. Plymouth-Carver Regional School District, 17 Mass. App. Ct. 211, 215(1983)................................................................................................................................24;29

Community National Bank v. Dawes , 369 Mass. 530, 556 (1975).........................................19

Delahite v. United States , 346 U.S. 15, 35-36(1953)................................................................21

Dillon v. Barnard , 328 Mass. 53, 55 (1951).............................................................................20

Doherty v. Belmont , 396 Mass. 271, 276 -277(1985)...............................................................24

Dullea v. Safety Insurance Company , 424 Mass. 37(1997).....................................................16

Ellis v. Safety Insurance Company, 41 Mass. App. Ct.630, 632(1996)....................................16

Flesner v. Technical Communications Corp., 410 Mass. 805, 809(1991)..........................17;19

Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham , 382 Mass. 283, 297(1981).....................................................................................................................................17

Harry Stoller & Co. v. Lowell , 412 Mass. 139(1992)....................................................20;22-23

Horta v. Sullivan , 418 Mass. 615, 620-622 (1994)..................................................................22

Irwin v. Ware , 392 Mass. 745, 756(1984)................................................................................20

Jacombe v. Commonwealth , 56 Mass. App. Ct. 486, 489(2002).............................................35

Jesionek v. Massachusetts Port Auth. , 376 Mass. 101(1978).................................................36

Kent v. Commonwealth , 437 Mass. 312, 319(2002)................................................................35

Kourouvacilis v. General Motors Corp. , 410 Mass. 706(1991)..............................................16

Mounsey v. Ellard, 363 Mass. 693, 707(1978).........................................................................20

Mullins v. Pine Manor College , 389 Mass. 47, 54(1983).......................................................20

Patrazza v. Commonwealth , 398 Mass. 464, 469-470(1986).............................................31-32

Paquin v. Board of Appeals of Barnstable, 27 Mass. App. Ct. 577, 578(1989).....................17

Sanker v. Orleans , 27 Mass. App. Ct. 410,412-413(1989).....................................................24

Serrell v. Franklin County , 47 Mass. App. Ct. 400(1999)................................................16;35

Tartarian v. Commercial Union Insurance Company, 42 Mass. App. Ct. 731, 732(1996)....................................................................................................................................19

Tryon v. Lowell , 29 Mass. App. Ct. 720, 724(1991)...........................................................24;29

United States v. Varig Airlines , 467 U.S. 797(1984)...............................................................22

Walenty v. Town of Mendon , 55 Mass. App. Ct. 914(2002).........................................16;17;19

Wallace v. Ludwig , 292 Mass. 251, 254(1935)........................................................................36

Whitney v. Worcester , 373 Mass. 208, 216-220(1977)..................................................21;22;23

Mass R. Civ P. 56......................................................................................................................17

G.L.c. 258, Section 10(a).................................................................................................... passim

G.L.c. 258, Section 10(b).................................................................................................... passim

G.L.c. 258, Section 10(j)..................................................................................................... passim

1. Can the Town of Easton claim immunity from lia-bility under the “discretionary function” language of G.L.c. 258, Section 10(b), where the record is unclear whether its tortious conduct in placing unsecured tele-phone poles on the ground at the High School as a boundary between motor vehicles and adjacent pedestrian traffic was done pursuant to a Town by-law, as a result of a decision by the Town's Executive Loss Committee or by an enterprising Town employee acting on his own?

2. Whether the Town is immune from liability under G.L.c. 258, Section 10(j), where the evidence showed that its affirmative act of placing unsecured telephone poles on the ground to separate motor vehicles from adjacent pedestrian traffic materially contributed to the danger-ous condition which proximately caused Denise Green-wood's injuries?

On May 9, 2000, the plaintiff-appellee Jane Green-wood, as mother and next friend of Denise Greenwood (“Greenwood”), brought this civil action against the Town of Easton (“the Town”) and Gregory Woodward (“Woodward”), seeking damages for the permanent and disabling injuries Denise Greenwood sustained on May 7, 1999, when Wood-ward's motor vehicle caused an unsecured telephone pole bounding its parking space at Oliver Ames High School to roll into the adjacent grassy area and then hit Greenwood who was lawfully there(A.1;4;57-61).

According to Greenwood's allegations, on May 7, 1999, Denise Greenwood was a minor and rightfully on the premises of the Over Ames High School in the Town of Easton, real estate owned, controlled and maintained by the Town(A.58). The Town had delineated or separated the high school's paved parking lot from the surrounding grassy area by use of telephone poles, barriers which were not secured or fastened to the ground to keep them from moving(A.59). Woodward's motor vehicle was parked in one of the high school's parking spaces and when he was attempting to leave that space, he negligently drove his vehicle into this barrier so that it rolled onto the grassy area where Denise Greenwood was standing(A.59). As a result, the telephone pole hit Denise and rolled upon her causing her severe, permanent and disabling injuries (A.59).

Greenwood therefore alleged that the Town was negli-gent in failing to secure these barriers to the ground in order to prevent them from moving, failing to warn her of this defective condition and thereby failing to maintain the parking area in a safe manner(A.60). In addition, Greenwood claimed that Woodward so negligently operated his motor vehicle that he caused his vehicle to come into contact with these barriers, causing them to roll into and upon Denise(A.60).

Upon these factual allegations, Greenwood according-ly alleged in Count I that the Town's aforesaid negli-gence directly and proximately caused Denise's injuries (A.60). In Count II, Greenwood claimed that Woodward's negligent operation of his motor vehicle on May 7, 1999, jointly and severally with the Town caused Denise's injuries(A.61). Alleging proper and timely presentment of her claims in writing to the Town under G.L.c.258, Sec-tion 4, together with the Town's denial of responsibility therefor, Greenwood sought a judgment against both the Town and Woodward in order to compensate her for her in-juries(A.58;60-61). Greenwood further demanded a trial by jury on all of her claims(A.61).

Following the filing of answers by both the Town and Woodward and discovery among the parties, the Town moved for summary judgment in its favor under Mass. R. Civ. P. 56(A.2;4;6-47). Its motion did not dispute the fundamen-tal facts of this litigation, i.e., at approximately 2:10 in the afternoon of May 7, 1999, Denise Greenwood was standing in a grassy area adjacent to the parking lot at Oliver Ames High School in Easton(A.7;17;58;68). In attempting to back his vehicle out of one of the parking spaces, Woodward inadvertently drove his car forward so that it came in contact with a telephone pole lying on the ground in front of his vehicle(A.7;17-18;28;31;59; 65;68).

As a result of this contact with Woodward's car, the telephone pole–-which was not secured to the ground to prevent it from moving–-was caused to roll forward hitting and then rolling upon Denise Greenwood(A.7;17; 18;59;64;70). She suffered a compound fracture of the tibia of her right leg, numerous bruises and scratches (A.7;20;59;71;109). Denise also sustained permanent scarring in the area of the laceration/fracture where the broken bone protruded through the skin(A.20;71). The pain, swelling, scarring and numbness associated with this injury may be permanent as Denise still has a rod in her leg which may require future surgery(A.21;70;72;109). Because of her injuries, Denise was unable to attend school for the balance of the school year and could not return to her part-time employment(A.22;73;109).

It was also undisputed for the purposes of the Town's summary judgment motion that Section 8-9(3) of the Town's Zoning By-Law provides that

(A.8;40). The purpose of the Town's use of the telephone poles at the High School was to keep motor vehicles from leaving the paved surface of the parking lot and going onto the adjacent grassy areas; to keep cars away from pedestrians who were in the grassy area; and generally to serve as barriers “to restrict vehicular traffic and pedestrians from coming together”(A.8;43).

According to the Town's moving papers, these tele-phone poles were not placed in the High School's parking lot pursuant to the above quoted By-Law(A.8;44). Rather, relying upon a portion of the Town Administrator Kevin Paicos' deposition testimony which it had reproduced, it argued that the Town's Executive Loss Committee, the body responsible for safety guidelines for the Town, directed that these poles be placed in the school parking lot; and the poles were used because “they were readily available at no expense to the Town”(A.8;45-47).

Upon these facts, the Town argued that this decision by its Executive Loss Committee to use these telephone poles as parking barriers at the High School was a discretionary function resulting from the Committee's policy making role and therefore it was immune from liability pursuant to the provisions of G.L.c. 258, Section 10(b) (A.10-12). In addition, the Town contended that its actions did not cause the “condition or situation” which led to Denise Greenwood's injuries, that Woodward's negligent operation of his motor vehicle was the “effective, active cause” of those injuries and that it was therefore immune from liability within the terms of G.L.c.258, Section 10(j)(A.12-14).

Arguing in the alternative, the Town further claimed that the poles were placed at the High School pursuant to Section 8-9(3) of the Town's Zoning By-Law and that by reason of G.L.c. 258, Section 10(a), it could not be held liable for any claim arising from the act or omission of a public employee when exercising due care in the execution of an ordinance or by-law(A.14). Finally, it contended that Section 10(f) of Chapter 258 provides it with immunity from any claim based upon its failure to inspect the premises where the accident occurred or its negligent inspection of those same premises(A.14).

Greenwood opposed the motion with her own docu-ments(A.48-109). Her statement of facts reflected some of the Town's asserted facts but included the further fact that the Town owned and maintained the property where this accident occurred(A.49;79). In addition, relying upon a more complete recitation of Paicos' deposition testimony than the Town's as well as the Town's own further answers to interrogatories, Greenwood asserted as a fact that the Town placed the poles on the ground at the High School as wooden parking berms; and it decided to do so in order to provide barriers for pedestrian safety and to channel traffic(A.50;69;78;82-84;101).

Greenwood also asserted as a fact in this litigation that the telephone poles which the Town placed on the ground at the High School were not secured by any means to the ground in order to keep them from moving or rolling; and that the use of such unsecured telephone poles as a curb or parking berm in a parking facility created an unreasonable but foreseeable risk to persons in the position of Denise Greenwood(A.51;59-60;69;109).

In fact, during the course of Town Administrator Paico's deposition appended to Greenwood's opposition to the Town's summary judgment motion, he admitted that the Town owns and maintains the parking lot and the adjacent grassy area at the High School where the accident happened(A.78-79). Conceding that as Town Administrator, he was the most knowledgeable person about when and by whom these telephone poles were placed in the parking lot, Paicos testified that the Town's Department of Pub-lic Works decided to use these poles as parking berms to set off the parking lot from the grassy area and its employees probably placed the unsecured poles on the ground at the High School(A.79;90).

However, Paicos did not know who directed the DPW to perform this act; nor did he know who in the Town's DPW decided to use unsecured telephone poles as parking berms(A.79;89). In fact, Paicos testified that

(A.89). Paicos further believed that while as director of the Loss Control Committee, he could remember considering the question of placing these parking berms in the High School parking lot and elsewhere(A.85;86;90;95), it did

Moreover, Paicos didn't know for low long the barriers were in place prior to May 7, 1999, the date of the accident(A.90). In fact, he was unable to say with any assurance that the poles were actually placed at the High School at the direction of the Town's Executive Loss Control Committee (A.98). As he put it,

(A.98). However, he was sure that the telephone poles were not placed in the parking lot as berms for parking spaces in order to comply with any of the Town's By-Laws or regulations(A.86).

The sum and substance of Paicos' testimony as Town Administrator, then, was that while the Town's Executive Loss Control Committee at some undefined time did decide to use telephone poles as parking berms, he did not know whether the berms in the High School parking lot were placed there as a result of the Committee's decision; he did not know who placed them there, perhaps “an enter-prising employee” acting on his own; and he did not know if these poles were already in place at the High School by the time the Executive Loss Control Committee con-sidered the question of using them as parking berms. However, Paicos could say that these poles were not used to bound any parking spaces in the Town in order to comply with any of the Town's By-Laws or regulations.

With the summary judgment record in this state, the Town's motion was heard in the Superior Court Department, Moses, J., on April 17, 2003(A.2). On May 21, 2003, the motion judge issued his memorandum of decision denying the Town's motion(A.3;111-117). After describing the undisputed facts of the accident, Judge Moses construed the record in the light most favorable to Greenwood, the party opposing the motion, and concluded that it was unclear from Town Administrator's Paicos' deposition testimony whether the unsecured telephone poles were placed at the High School pursuant to the Zoning By-Law, as the result of a decision by the Town's Executive Loss Control Committee or simply by an “enterprising employee” of the school, the Town or the safety committee of the high school acting on his own(A.112-113).

The lower court further found from Paicos' testimony that there were no preconditions or specifications issued by the Town's Executive Loss Control Committee or its By-Laws or regulations for the use of these telephone poles as parking berms(A.113). Thus it concluded on this sum-mary judgment record that the Town's use of telephone poles which were not secured to the ground as parking barriers in its parking lots “could be determined to create an unreasonable and foreseeable risk of injury to persons in the position of Denise Greenwood”(A.113). In addition, viewing the summary judgment record in the light most favorable to Greenwood, Judge Moses concluded that “a jury could find that the Town was negligent in its failure to properly secure the aforesaid poles and also [for] its failure to maintain the subject parking lot and that such negligence was a proximate cause of [Denise Greenwood's] injuries”(A.113).

Addressing the Town's legal arguments, the motion judge first rejected its claim of immunity as a matter of law based upon the “discretionary function” language contained within G.L.c.258, Section 10(b)(A.114-116). As the lower court observed, the record was unclear as to whether or not the telephone poles were used as parking berms in the High School parking lot as the result of the Town's Loss Control Committee's determination, the Town's By-Law or simply through the efforts of an “enterprising employee” of the Town acting on his own(A.114).

Nor was there any proof adduced concerning the standards for the use of such poles as parking barriers (A.114-115). Indeed, the By-Law's language suggests that such wooden parking berms be anchored so that they become immovable(A.115). In any event, the summary judgment record did not support any contention by the Town now that its use of these unsecured poles as parking berms in the High School parking lot was pursuant to any “discre-tionary act” on its part; and these same materials permitted the inference that its placement of the poles without securing them was negligent(A.115).

Nor did Judge Moses believe the Town could claim immunity as a matter of law by virtue of the provisions of G.L.c.258, Section 10(j), as its alleged negligence in connection with the installation of these poles at the High School “could be construed to be the ‘original cause' which was the affirmative act or condition resulting in harmful consequences to” Denise Greenwood (A.116). In any event, the lower court ruled on this record that the Town's conduct comes within Section 10(j)(3)'s exclusion based upon its negligent maintenance of public property(A.116).

Finally, the motion judge determined that immunity under G.L.c. 258, Section 10(a), could not be established as a matter of law since there are genuine issues of material fact for trial whether the subject telephone poles were installed at the High School pursuant to the Town's Zoning By-Law and whether such placement was performed negligently(A.116-117). The provisions of G.L.c. 258, Section 10(f), relied upon by the Town, were ruled to be inapplicable to this case(A.117).

On May 22, 2003, Judge Moses' ruling was docketed (A.3;110). The Town thereafter noticed its appeal and this interlocutory appeal by the Town ensued(A.3;118-120).

1. The Town's Use Of Unsecured Telephone Poles As Parking Berms In The High School's Parking Lot Is Not A “ Discretionary Function ” Within The Meaning Of G.L.c. 258, Section 10(b) , And The Town Is Therefore Not Entitled To A Ruling That It Is Immune From Liability For Greenwood's Claims.

The entry of summary judgment is appropriate where the materials adduced below show that there are no genuine issues of material fact for trial and the moving party is entitled to a judgment in its favor as a matter of law. Dullea v. Safety Insurance Company , 424 Mass. 37,38-39(1997). Ellis v. Safety Insurance Company , 41 Mass. App. Ct.630, 632(1996). In addition, where the opposing party such as Greenwood will have the burden of proof at trial, summary judgment should be entered for the Town “if [it] demonstrates...that [Greenwood] has no reasonable expectation of proving an essential element of [her] case.” Walenty v. Town of Mendon , 55 Mass. App. Ct. 914, 916(2002) quoting Kourouvacilis v. General Motors Corp. , 410 Mass. 706, 716(1991). Serrell v. Franklin County , 47 Mass. App. Ct. 400, 405(1999).

Furthermore, if the Town showed that no “fair-minded jury could return a verdict for [Greenwood] on the evi-dence presented,” Walenty, supra , quoting Flesner v. Technical Communications Corp. , 410 Mass. 805, 809(1991) and citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252(1986), it was entitled to the entry of summary judgment in its favor. Id . Rule 56 ' s summary judgment procedure therefore was the proper vehicle with which to resolve the Town's serial claims of immunity below because all of the material facts essential for the disposition of this motion was established and the only question before Judge Moses was the legal effect of these undisputed facts in light of the language of G.L.c.258, Sections 10(a)-(j). See Framingham Clinic, Inc. v. Zoning Board of Appeals of Framingham , 382 Mass. 283, 297(1981). Paquin v. Board of Appeals of Barnstable , 27 Mass. App. Ct. 577, 578(1989).

With this law in mind, Greenwood submits that the lower court was correct as a matter of law in denying the Town's motion for summary judgment. The Town's incomplete presentation of Paicos' deposition testimony, supple-mented by Greenwood's more extensive reflection of that same testimony, shows that the Town had failed to affirm-atively demonstrate that Greenwood could not prove every element of her claims at trial. Specifically, Paicos' testimony failed to show how or when the Town decided to put wooden parking berms in the High School's parking lot; and there was no persuasive proof that it was the result of a discretionary, judgmental decision by the Town's Executive Loss Control Committee.

Instead, all of the relevant proof adduced incident to this motion showed that the Town's use of unsecured telephone poles on the ground at the High School as a boundary between motor vehicles and adjacent pedestrian traffic might have been done pursuant to a Town By-Law, possibly as a result of some “initiation” by the Town's Executive Loss Control Committee, or perhaps simply through the efforts of an “enterprising [Town] employee,” acting on his own. In fact, Paicos and the Town could not even show that its placement of these poles at the High School had not already occurred by the time that the Executive Loss Control Committee determined that wooden parking berms should be located there.

Furthermore, the record below shows that the Town's negligent placement of these unanchored telephone poles as parking berms created a dangerous condition for nearby pedestrians in the position of persons like Denise Greenwood. Thus it was reasonable for the lower court to rule that a “fair-minded jury could return a verdict for [Greenwood] on the evidence presented,” Walenty, supra , quoting Flesner v. Technical Communications Corp. , supra .

On this record, then, the Town's claim of immunity under G.L.c.258, Section 10(b)'s discretionary function language was unsupported by a sufficient factual record to rule as a matter of law that such immunity applied here and Judge Moses was accordingly correct as a matter of law in denying the Town's motion. See Tartarian v. Commercial Union Insurance Company , 42 Mass. App. Ct. 731, 732(1996) quoting Community National Bank v. Dawes , 369 Mass. 530, 556 (1975). This Court should therefore affirm the ruling below in all respects.

The relationship between the Town and Denise Greenwood, a lawful visitor on Town property at the Oli-ver Ames High School, imposed a duty of care upon the Town to provide her with reasonably safe school premises. Mounsey v. Ellard, 363 Mass. 693, 707(1978). Alter v. Newton , 35 Mass. App. Ct. 142, 145(1993) citing Mullins v. Pine Manor College , 389 Mass. 47, 54(1983); Irwin v. Ware , 392 Mass. 745, 756(1984). Thus unless the alleged failure by the Town as a landowner to provide Greenwood with safe school property fell within the discretionary function exception to liability delineated by G.L.c. 258, Section 10(b), or one of the other correlative sections of Section 10, the Town will not be immune from liability and would not be entitled to summary judgment. Alter, supra , citing Dillon v. Barnard , 328 Mass. 53, 55 (1951).

The discretionary function exception to governmental liability is far narrower than its name implies. As the High Court observed in Harry Stoller & Co. v. Lowell , 412 Mass. 139, 141(1992),

Id . The analysis of this exception begins with Whitney v. Worcester , 373 Mass. 208, 216-220(1977), a case which preceded the enactment of G.L.c. 258, Sections 1 et seq ., in 1978. Id . at 141-142.

Reflecting some of the considerations enunciated in Delahite v. United States , 346 U.S. 15, 35-36(1953)(in-terpreting the Federal Tort Claims Act), for determining when governmental conduct is properly characterized as discretionary for the purposes of this exception, the Whitney Court stated that the dividing line should be between those functions that “rest on the exercise of judgment and discretion and represent planning and policymaking [for which immunity would apply] and those functions which involve the implementation and execution of such governmental policy or planning [for which there would be no governmental immunity].” 373 Mass. at 217.

Thus when conduct which caused the injury invokes a high degree of discretion and judgment, involving the weighing of alternatives and the making of choices with respect to public policy and planning, governmental entities “should remain immune from liability.” Id . at 218. However, when that conduct involves the carrying out or implementation of previously established policies or plans, “such acts should be governed by the established standards of tort liability applicable to private indiv-iduals or entities and the governmental entity in ques-tion held liable for the injury resulting from such acts.” Id . at 218-219. Accord , United States v. Varig Airlines , 467 U.S. 797, 811-814(1984)(nature of conduct, not status of actor, governs test; regulatory conduct included in discretionary exception). In Whitney , it was held that the city's school department was not engaged in discretionary functions when it failed to superintend a handicapped child and maintained defective school pre-mises. Id . at 221-223.

Applying these principles, the police officer's decision in Horta v. Sullivan , 418 Mass. 615, 620-622 (1994), to begin and continue a high speed pursuit of a motor vehicle then being operated in violation of the law was held not to implicate a discretionary governmental function because it did not involve any social, political or economic policy consideration and had “no close nexus to policy making or planning and [does] not ‘involve' it.” Id . at 622 quoting Harry Stoller & Co. v. Lowell , 412 Mass. at 141. In reaching this result, the Horta Court wrote that

418 Mass. at 620 citing Whitney , 373 Mass. at 219 and Harry Stoller & Co. , 412 Mass. at 142.

In Harry Stoller & Co. , supra , it was held that the firefighters' negligent decision not to use a building's sprinkler system to fight a fire was not a discretionary function immunizing the City of Lowell from liability because the decision “was not founded on planning or policy considerations.” 412 Mass. at 145-146. That is, the question whether to put higher water pressure in the sprinkler systems of the burning building involved no policy choice or planning decision. Id . at 146. The City's liability for the firefighters' failure to conform to generally accepted firefighting practices was accord-ingly affirmed. Id .

Similarly, in Doherty v. Belmont , 396 Mass. 271, 276 -277(1985), the town's failure to pound down protruding metal parking meter stubs incident to the meters' removal in a town parking lot was a “ministerial task of main-tenance” not rising to a level of “public policy and planning” warranting protection under Section 10(b). Id . Likewise in Tryon v. Lowell , 29 Mass. App. Ct. 720, 724(1991), while the City's decision whether or not to erect a fence along railroad tracks was discretionary, its failure to maintain the fence after its erection, the operative cause of the accident, was a ministerial func-tion not protected under the rubric of “a discretionary function.” Id .

As this Court made clear in Sanker v. Orleans , 27 Mass. App. Ct. 410,412-413(1989), “[t]he day to day care and maintenance of a public road seems at the opposite end from policy and planning...and municipal negligence in such a respect is not sheltered as a discretionary function.” Judge Kass also observed in Cady v. Plymouth-Carver Regional School District , 17 Mass. App. Ct. 211, 215(1983), that when there is a readily ascertainable standard, in writing or through experience, to measure a government employee's action, it is not within the dis-cretionary function exception. Id . As he wrote, “[i]t re-quires no manual, for example, to instruct an installer of street lights in Boston that the wind may blow might-ily and that lightposts had better be anchored accord-ingly.” Id .

Emerging from this line of decisions is the principle that where a municipality's alleged tortious conduct involves no public policy or planning considera-tions, implicates no exercise of judgment or discretion by the government employee, entails only the implemen-tation or carrying out of previously established policies or plans and can be characterized as only ministerial and measured through easily ascertainable standards, that conduct will not be found to be within the discretionary function exception of Section 10(b).

With specific application to this case, the Doherty-Tryon-Sanker-Cady decisional law supports the further principle that where a municipality creates a condition on land which if not properly maintained will present an unreasonable risk of harm to those lawfully there, it cannot avoid liability under Section 10(b) for its negligent failure to maintain the premises safely for lawful visitors because such maintenance is a ministerial function, involves at most the implementation or carrying out of previously established policies or plans, and is not protected under the rubric of “a discretionary func-tion.”

This is precisely what the parties' proof upon summary judgment showed. Denise Greenwood, while lawfully standing in a grassy area adjacent to the High School parking lot, land owned by the Town, was hit by a rolling telephone pole when Woodward, attempting to back his vehicle out of one of the parking spaces, inadvertently drove his car forward so that it came in contact with the unsecured pole lying on the ground in front of his vehicle.

While Town Administrator Paicos testified that the Town's DPW probably placed these telephone poles on the ground as parking berms to set off the parking lot from the grassy area(A.79;90), he did not know who directed the DPW to perform this act; nor did he know who in the Town's DPW decided to use unsecured telephone poles as parking berms(A.79;89). In fact, it was possible that

(A.90). Paicos also didn't know for low long the barriers were in place prior to May 7, 1999, the date of the accident(A.90). In fact, he was unable to say with any assurance that the poles were actually placed at the High School at the direction of the Town's Executive Loss Control Committee (A.98).

The sum and substance of Paicos' testimony as Town Administrator was that while the Town's Executive Loss Control Committee at some undefined time did decide to use telephone poles as parking berms at the High School, he did not know whether they were placed there as a result of the Committee's decision; he did not know who placed them there, perhaps “an enterprising employee” acting on his own; and he did not know if these poles were already in place at the High School by the time the Executive Loss Control Committee considered the question of using them as parking berms.

None of this proof reasonably supports the inference that the Town's use of these unsecured telephone poles as parking berms at the High School, the negligent conduct which Greenwood alleged caused the injuries, was the result of the exercise by the Executive Loss Control Committee of any degree of discretion and judgment or the weighing of alternatives or the making of choices with respect to public policy and planning. It is not even clear from this record which municipal entity decided to install these poles; when it was accomplished; or whether they were placed at the High School before the Loss Control Committee even took up the question. Accordingly, there was no basis on this record for concluding that the Town's conduct could possibly come within the discre-tionary function exception of Section 10(b).

Moreover, Greenwood submits that even if this record could support the inference that the Town's Executive Loss Control Committee had decided to place these unsecured poles at the High School as parking berms in the exercise of its judgment and discretion, the Doherty-Tryon-Sanker-Cady decisional law provides that where a municipality creates a condition on land which if not properly maintained will present an unreasonable risk of harm to those lawfully there, it cannot avoid liability under Section 10(b) for its negligent failure to maintain the premises safely for lawful visitors because such maintenance is a ministerial function, involves at most the implementation or carrying out of previously established policies or plans, and is not protected under the rubric of “a discretionary function.”

Stated another way, regardless of whether the placement and use of these poles as parking berms is a discretionary function, where the Town has decided to put these poles on the ground at the High School in order to channel traffic, as a boundary for motor vehicles and to protect nearby pedestrians, it has a duty to maintain them in a safe manner so that they did not present an unreasonable risk of harm to foreseeable persons like Denise Greenwood. Common sense dictated and Section 8-9(3) of the Town's Zoning By-Law suggested that such maintenance include securing them to the ground so that they would not roll. See Cady v. Plymouth-Carver Regional School District , 17 Mass. App. Ct. at 215. See also Tryon v. Lowell , 29 Mass. App. Ct. at 724. The Town's failure to carry through in this regard is a failure to perform the ministerial function of maintenance, involving at most the implementation or carrying out of previously es-tablished policies or plans. It therefore is not immune from the claims of Greenwood here and the lower court was correct as a matter of law in denying the Town's summary judgment motion.

On appeal, the Town fundamentally misstates the record by contending that its Executive Loss Control Committee directed that the telephone poles be placed at the High School(Town Brief at 9-16). The record below shows no such thing. It is not even clear from the record which municipal entity or person decided to install these poles; when it was accomplished; or whether they were placed at the High School before the Loss Control Committee even took up the question. Accordingly, there is no basis on this record for arguing that the placement of the poles was the result of the exercise of a dis-cretionary function by the Town's Executive Loss Control Committee.

Secondly, Greenwood is not foreclosed from arguing this point below or here because she controverted the Town's Statement of Facts below in this regard with her own Statement of Facts which included the proposition that “ the Town of Easton ,” not the Executive Loss Control Committee , decided to place a barrier in the parking lot for safety and to channel traffic(A.50). Moreover, she appended extensive excerpts from Paicos' deposition to her opposition in order to counteract the Town's selec-tive reproduction of that deposition testimony and to identify for the motion judge the confusion of evidence on the issue of how and when these poles were placed at the High School; and Judge Moses relied upon those ex-cerpts in making his decision. Greenwood accordingly admitted nothing below concerning what role, if any , the Executive Loss Control Committee may have played in the decision to place these poles in the High School parking lot.

The Town also mistakenly relies on Patrazza v. Com-monwealth , 398 Mass. 464, 469-470(1986). There the De-partment of Public Works deliberately chose as a policy the practice of not burying guardrail ends on unlimited access highways but burying such guardrail ends on limited access highways. Id. at 466-467. The plaintiff's intestate died when she collided with an unburied guardrail end on an unlimited access highway and it penetrated her vehicle. Id . at 465. The plaintiff alleged that this very policy itself of leaving such guardrail ends unburied on unlimited access highways negligently caused the intestate's death. Id . at 466.

The Patrazza Court rejected the claim on the grounds of governmental immunity under Section 10(b):

Id . at 469-470(emphasis supplied). Thus even if this discretionary decision was exercised improperly, it could not be the basis of liability against the government because of that choice. Id . at 470.

Here, however, Greenwood's claim is not that the use of telephone poles as parking berms was negligent but that the Town breached its duty of care as a landowner when it failed to maintain them in a safe condition, i.e., using round, unsecured poles as parking berms created the foreseeable risk of harm to persons in the position of Denise Greenwood.

Nor are the facts here similar to the case of Barn-ett v. City of Lynn , 433 Mass. 662, 667(2001). There the City decided not to erect a fence or to remove snow in an area near a street where children sled, decisions which provided the backdrop for two children being hit by a passing automobile. Id . at 662-663. In refusing to impose liability, the Barnett Court observed that it would have ruled differently “had the City decided to erect a fence and then negligently maintained it, or decided to remove the snow but acted negligently in its shoveling, salting and sanding,...The relevant issue here is the decision not to erect a fence or to remove snow, a decision protected under the discretionary function exception.” Id . at 666.

Yet here the Town decided to use telephone poles as parking berms at the High School and it was therefore bound to perform the ministerial duty of maintaining those poles in a manner which rendered them reasonably safe for lawful visitors such as Denise Greenwood. Its failure to do so creates a jury issue whether the Town was negligent in this regard and the lower court therefore rightly denied the Town's summary judgment motion on this record.

2. The Town Is Not Immune From Liability By Reason Of G.L.c. 258 , Section 10(j) .

Judge Moses ruled that the Town could not claim im-munity as a matter of law by virtue of the provisions of G.L.c.258, Section 10(j), as its alleged negligence in placing these unsecured poles at the High School “could be construed to be the ‘original cause' which was the affirmative act or condition resulting in harmful consequences to” Denise Greenwood(A.116). In any event, the lower court ruled on this record that the Town's conduct comes within Section 10(j)(3)'s exclusion based upon its negligent maintenance of public property(A.116).

Greenwood submits that the motion judge was correct as a matter of law in making this ruling. Section 10(j) bars “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condi-tion or situation, including the violent or tortious con-duct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.” The reference in Section 10(j) to “original cause” means “an affirmative act (not a failure to act) by a public employer that creates the ‘condition or situation' that results in harm inflicted by a third party....” Jacombe v. Commonwealth , 56 Mass. App. Ct. 486, 489(2002) citing Kent v. Commonwealth , 437 Mass. 312, 318(2002).

The principal purpose of Section 10(j) is to “preclude liability for failures to prevent or diminish harm” caused by third parties. Brum v. Dartmouth , 428 Mass. 684, 696(1999). Serrell v. Franklin County, 47 Mass. App. Ct. at 405. For there to be liability despite the protection of Section 10(j), the act of the government's employee “must have materially contributed to creating the specific ‘condition or situation' that resulted in the harm.” Jacombe, supra , quoting Kent v. Commonwealth , 437 Mass. 312, 319(2002).

The summary judgment materials adduced below made this exact showing. That is, it demonstrated that the Town's affirmative act of placing unsecured telephone poles on the ground to separate motor vehicles from adjacent pedestrian traffic at the High School materially contributed to the dangerous condition which directly resulted in Denise Greenwood's injuries. In this sense, it was reasonably foreseeable that if unanchored, these round poles would roll across the ground into the adjacent grassy area if pushed by a motor vehicle it was intended to bound and cause harm to those pedestrians nearby. Jesionek v. Massachusetts Port Auth. , 376 Mass. 101, 105(1978). See Wallace v. Ludwig , 292 Mass. 251, 254 (1935).

This nexus of cause and harm, obvious to the eye of reasonable vigilance, establishes that the Town's place-ment of these unsecured poles next to a pedestrian area materially contributed to creating the specific “condi-tion or situation” which resulted in Denise Greenwood's injuries. Section 10(j)'s provisions accordingly afford no immunity to the Town on these facts.

Moreover, even if Section 10(f)'s terms were initially applicable here, for the reasons already adverted to herein, Section 10(j)(3)'s exclusion based upon the Town's negligent maintenance of public property would operate to make the Town liable on this ground.

Finally, because the Town's unrebutted evidence below through its Town Administrator Paicos established that the telephone poles were not placed in the parking lot as berms for parking spaces in order to comply with any of the Town's By-Laws or regulations(A.86), Greenwood has no reason to respond to the Town's last argument.

For all the reasons identified herein, this Court should affirm summarily the ruling below, remand the matter to the Superior Court Department for trial or provide Greenwood with such other relief as is fair and just in the circumstances.