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Appeals court upholds summary‑judgment grant? Parties dispute whether overpass is attached to Charles River Reservation
Summary
In Kobler v. Commonwealth the plaintiff says the Gleeson overpass dumps onto a public sidewalk and is not part of the Charles River Reservation; the Commonwealth argues the overpass and land at its landing are reservation property covered by the recreational‑use immunity statute.
In Kobler v. Commonwealth (23p1276) the court considered whether the recreational‑use statute bars a negligence claim after a plaintiff was injured descending the Gleeson Overpass, which connects Soldier’s Field Road to the Charles River Reservation. Plaintiff’s counsel Michael Toposky argued the overpass “dumps out onto a sidewalk” that is part of the roadway, not the recreational area, and that the Commonwealth had not produced deed or plot evidence tying the sidewalk at the overpass landing to reservation property.
Toposky told the panel that the only documentary support the Commonwealth produced was an affidavit stating the landing is “physically attached” to the reservation; he said that affidavit was conclusory and that the Google images and photographs in the record were at most sufficient to create a triable issue about attachment. He explained that longstanding authority treats sidewalks as part of the public street and that the Commonwealth’s summary‑judgment record failed to show the overpass was attached to reservation land as the statute requires.
Michael Schiposch, arguing for the Commonwealth, said the Department of Conservation and Recreation owns and maintains the overpass and the north‑side landing and that DCR’s order of taking and maintenance records were in the summary‑judgment record. He told the panel the recreational‑use statute covers “land and structures attached to it,” and he cited prior decisions treating walkways, stairways and bleachers as attached structures covered by the statute. Schiposch emphasized the record evidence that DCR owns the relevant land and said the plaintiff offered only a limited fence photograph that did not contradict the agency’s ownership evidence.
The panel questioned whether at‑grade crosswalks or other at‑grade sidewalks would be treated differently and pressed both sides on whether a fence line visible in the photographs could be treated as a property demarcation. The court submitted the case for decision after argument.
