Appeals Court Rules Harvard Not Liable For 1972 Accident

Citing a 100-year-old legal agreement, the Massachusetts Court of Appeals yesterday refused to award damages to a woman who had suffered a serious accident on the grounds of Harvard's Arnold Arboretum.

The local woman received a fractured skull that permanently impaired her hearing in a collision with an unknown bicyclist in the Arboretum in 1972.

The Appeals Court held yesterday in an unsigned opinion that Harvard is not liable for damages because of a 1882 lease with the city of Boston that made Harvard responsible for the upkeep of botannical gardens in the arboretum, but left accountability for security and public access issues with the city.

The 265 acres of land in the arboretum, located in the Jamaica Plain section of Boston, was originally owned by the University, but was taken away by Boston authorities through erinent domain in 1882. The city subsequently leased all of the arboretum property--except walkways--to Harvard for $1 per year renewable for 1000 years.

An attorney for Jamaica Plain resident Karen Andruskevics, 16-years-old at the time of the collision, said he would immediately ask the State Supreme Court to hear the case.

A Superior Court jury had awarded Andruskevics damages totalling $25,000 for the accident, but the trial judge nullified the award by issuing a "judgment notwithstanding verdict"--in effect overturning his own jury.

Superior Court Judge Paul Connolly agreed with attorneys for Harvard who contended that the city should be responsible for the accident. Yesterday's Appeals Court decision upheld Connolly's finding.

Daniel Steiner '54, general counsel for the University, yesterday refused comment on the ruling. Andruskevics was unavailable for comment.

Andrew C. Meyer, attorney for Andruskevics, said he had chosen not to sue the city of Boston because at the time of the accident, it was illegal to take the municipality to court. That law has since been changed to allow for suit against Boston, but the new statute does not apply retroactively.

Meyer said that because of the city's longterm lease with the University, Harvard should be held accountable for the accident. The University, after paying damages to Andruskevics, could then sue the city to recover the award, Meyer said.

He noted that attorneys for Harvard had initiated such a suit against the city as a precautionary measure. But because of yesterday's ruling, it will be dropped unless the Supreme Court enters the case.