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A paralyzed former mountain biker, who watched Connecticut Supreme Court arguments in his case from a wheelchair, has lost his bid to recover for injuries from his fall into a ravine owned by the Metropolitan District Commission. Defense lawyers, however, say Douglas Martel’s unfortunate loss is a victory for public access to forested land, such as the MDC’s 24,000 acres, which serve as central Connecticut’s water supply. “If it had lost this case, the MDC could not open its lands for recreational use. That’s the bottom line,” said John B. Farley, of Hartford, Conn.’s Halloran & Sage. Farley represented MDC’s insurance carrier, along with Jack G. Steigelfest, of Hartford’s Howard, Kohn, Sprague & FitzGerald. Steigelfest argued the appeal. Bourke G. Spellacy, of Hartford’s Updike, Kelly & Spellacy, represented MDC and its employee defendants. He said an adverse decision would have driven up insurance costs, increased water bills and broadly limited public access to MDC lands. “This also applies to every town in the state,” Spellacy said of the ruling, officially released Aug. 16. “I think they will be pleased.” APPARENT DANGER? Martel’s lawyer, Gerald S. Sack of West Hartford, contended the MDC should have realized a trail near a 15-to-20-foot ravine on its 400-acre Greenwoods preserve in Barkhamsted, Conn., was dangerous and should have maintained it better. He claimed the MDC was not entitled to governmental immunity because there was no evidence in the record that it made judgments and exercised discretion when it decided not to maintain its trails. The state Supreme Court dismissed that novel argument in a footnote. It found the pivotal issue of whether a governmental act is “ministerial” or “discretionary” can be inferred from the nature of the act. It doesn’t require record evidence that someone actually did or did not make judgments or exercise discretion, Chief Justice William J. Sullivan wrote. Sack said his client had a statutorily created direct cause of action arising from the language of the governmental immunity statute. It says a governmental body shall not be liable for damage caused by “the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe.” That means the reverse is true, Sack argued; if the governmental body had received notice and failed to make conditions safe within a reasonable time, it must be liable, he said. The Supreme Court disagreed. It has never ruled on the question of whether the narrowly defined immunity in �52-557n(b)(4) is reversible, said Steigelfest. If Sack’s argument prevailed, it would have provided new grounds for overcoming governmental immunity for such trails and, by implication, other conditionally qualified areas of municipal immunity in �52-557n(b). Sack also challenged MDC’s governmental immunity on the “pecuniary gain” exception. But because his client was charged nothing for his use of the property, it was a losing battle. “Our argument,” Sack said, “was that it’s held in reserve as part of their water utility business, and therefore it should have been considered part of their business activity — they do charge for water.” Steigelfest, in his Supreme Court brief, persuasively argued that mountain biking is an inherently dangerous activity in which participants intentionally seek out rough terrain. It is more like contact sports, where participants can’t sue for ordinary negligence, and less like more genteel activities like skiing, where they can.

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