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By Evan Allen
Globe Correspondent / May 13, 2012
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A man injured by a falling tree on a Newton-owned playing field will be allowed to sue the city, according to a Massachusetts Supreme Judicial Court ruling handed down Monday.

Edward Marcus was sitting in the shade under the trees at McGrath Field on July 8, 2007, waiting for his turn to bat in a softball game organized by Coed Jewish Sports, when a tree fell on his back, fracturing two vertebrae and shattering both of his shoulder blades.

Marcus, who turns 53 this week, intends to sue the city for damages for his medical injuries, lost wages, pain and suffering, and loss of enjoyment of life, according to his lawyer, Joan S. Amon, who declined to name a dollar figure for the damages sought by her client.

“At the time, he was very young and athletic, and he used to play baseball and sail,” said Amon. “He went from being a pretty good athlete to confined to his bed.”

Marcus has gone back to work and is doing well, she said, but he was disabled and out of work for a period of time.

Marcus declined to comment on his lawsuit.

Monday’s ruling denies an appeal by the city contending it could not be sued for his injuries, based on a state lawthat says a property’s owner who allows the public to use it for recreation without charging a fee is not liable for personal injury or property damage unless there is “willful, wanton, or reckless conduct.”

“I’m very pleased” by the high court’s ruling, said Amon. “It’s obviously a victory for an injured person against cities, towns, corporations that were trying to minimize his losses by looking for loopholes in laws that would support their position.”

Amon said the lawsuit also names five other defendants with ties to land near the field. They were not part of the city’s appeal.

The Supreme Judicial Court ruling hinged on the question of whether the registration fee that Marcus paid to play softball on the field was technically a fee collected by the city.

The recreational-use statute only protects property owners who have not charged a fee for the use of their land.

According to the ruling, Marcus paid $80 to Coed Jewish Sports to join the league.

In turn, Coed Jewish Sports paid $1,200 to the city’s Parks and Recreation Department to get a permit that allowed the league to reserve the field.

The city’s appeal stated that “Marcus himself paid no admission fee or other charge to the city in exchange for playing softball on McGrath Field,” according to the ruling.

But the high court found that while Marcus did not directly pay the city, his registration fee was used by Coed Jewish Sports to purchase the permit on his behalf, and he was injured on city land during a block of time reserved through the parks department permit.

“In the circumstances,” according to the ruling, “Marcus was not participating in a recreational use of the city’s property free of charge.”

Newton’s appeal also stated that the cost of the permit covered “administrative and operational costs” associated with the league’s use of the field, and so it was not technically a “fee,” according to the ruling.

The Supreme Judicial Court ruled that while the city may have put the $1,200 toward field upkeep, it was not upkeep exclusively necessitated by the league’s activities.

City Solicitor Donnalyn Kahn said that while Monday’s ruling means Newton is not immune to a lawsuit under the recreational-use statute, it did not settle the question of whether Newton is immune from liability for the injuries suffered by Edward Marcus.

“If you’re immune from suit, it means you don’t need to do anything, you can’t be sued in these kinds of cases,” she said.

“What the court came back and said was, ‘You can, but what you may end up showing down the road is you are relieved of liability in this case.’”

There are three major issues that could let the city off the hook, she said.

The question of whether the fee issues could relieve the city of liability, as opposed to rendering it immune from being sued, has not been answered, she said.

Whether there was willful or reckless conduct by the city also has not been settled, she said.

And, she said, the city maintains that the tree is not on its land. its responsibility.

The Supreme Judicial Court ruling says that the tree shaded city land but was rooted on adjacent property owned by Temple Shalom.

Temple Shalom is also named as a defendant in the lawsuit, according to the Middlesex Superior Court clerk’s office. A spokesman for the temple declined to comment.

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