Premises liability is an important concern for property owners who allow public use of their land. This is especially true for owners of large, undeveloped parcels of land. The Massachusetts Legislature enacted the Recreational Use Statute, G.L. ch. 21, § 17C, in 1972 ("Statute") to address this concern and encourage landowners to provide public access to property for recreational purposes. While the range of liability protection under the Statute has expanded over time, recent decisions have refined its application. Subject to specific requirements, the Statute can provide liability protection to landowners who permit public recreational activities such as hiking, biking, swimming hunting, fishing, and snowmobiling.
Regarding scope, the Statute affords immunity from liability to a person who allows the public to use land for specific purposes without imposing a charge or fee. Under the Statute, "person" includes: landowners, agents, managers, licensees, non-profits, trusts, business organizations, officers, directors and trustees. The purposes include the following activities: recreational, conservation, scientific, educational, environmental, ecological, research, religious or charitable. While the Statute provides protection from negligence claims, it does not shield landowners from what amounts to gross negligence: willful, wanton or reckless conduct. Additionally, the Statute applies to both public and private landowners.
As reflected in the latest decisions, courts focus on the following when analyzing the Statute in the context of public recreational use: payment of fees, limitations on public access and the nature of the public use of land. Correspondingly, landowners seeking the Statute’s liability protection should consider each of these factors when formulating a protocol for public use of their land.
Payment of Fees and Charges
Charging a fee for public recreational use of property may bar liability protection under the Statute. As noted in Marcus v. City of Newton, 462 Mass. 148 (2012), a court’s inquiry is focused on whether a landowner charges a fee for a plaintiff’s particular use of land. In Marcus, the plaintiff was injured on a public field during a softball game. Prior to the injury, the plaintiff paid a registration fee to a softball league; the league in turn made a payment to the city's parks and recreation department in order to receive a permit for use of the field. Rejecting the city's claim of immunity under the Statute, the court held that the city charged the fee for the exclusive use of the field during specific times. The court noted the deleterious effect of this type of fee, and distinguished it from donations and reimbursements for marginal costs related to specific recreational use.
The decision in Marcus was a departure from the holding in Seich v. Canton, 426 Mass. 84 (1997). In Seich, the plaintiff suffered a personal injury while attending a basketball game at a town gymnasium. Although the plaintiff paid her daughter’s league registration fee, the court granted immunity to the town under the Statute. The court concluded that the registration fee was a charge for participation in the league and not an entrance fee to the public for use of the building.
Recently, the court in Patterson v. Christ Church in the City of Boston, 85 Mass. App. Ct. 157 (2014), reached a similar conclusion. In Patterson, the court analyzed personal injury claims stemming from a fall during a tour of Boston's Old North Church. A nonprofit organization was responsible for organizing tours and programs at the church. The organization paid the church a fee for this right to operate. Distinguishing Marcus, the court held that the plaintiffs made no payments to this nonprofit organization for recreational use. Additionally, the court placed no determinative value on the plaintiffs’ payments to a senior center for the trip to Boston. Affording the church protection under the Statute, the court noted that the nonprofit organization’s operation of a gift shop and charges for specialized tours were not fees imposed for recreational use.
Limitations on Public Access
With respect to the second factor, courts have scrutinized the degree of "public" access to property in applying the Statute. The plaintiff in Wilkins v. City of Haverhill, 468 Mass. 86 (2014), brought suit against the city of Haverhill after falling while attending a parent-teacher conference at a city school. Focusing on the nature of the access, the court held that in order to be afforded protection under the Statute, landowners must allow "free and equal" access for recreational use to all members of general public. The court denied the city immunity under the Statute after determining that the school was only open to a small portion of the general public (i.e. parents with students).
Another recent decision underscores the importance of unrestricted public access as a prerequisite for use of the Statute. The plaintiff in Cohen v. Elephant Rock Beach, 2014 WL 6792106 (D. Mass. 2014),filed suit against a private beach club for injuries suffered while jumping off an offshore rock. Refuting claims that it breached a duty of care to maintain the premises and to warn of danger, the club filed for summary judgment and asserted the application of the Statute. The court, however, rejected the use of the Statute and concluded the following: the club did not have any interest in the land (i.e., the rock), and that even if it owned the rock, the club restricted access to members and their guests. It is important to note that the court also held that the club exercised enough control over the rock to require a duty to warn - despite the fact that the Commonwealth of Massachusetts owned the rock.
The Nature of Public Use of Land
Courts have focused the use inquiry away from subjective intent and towards whether plaintiffs are granted access for a recreational activity. InAli v. City of Boston, 441 Mass. 223 (2004), the plaintiff filed suit against the city after colliding with a park gate while riding a bike through Franklin Park. The plaintiff alleged he was returning to his home after shopping at the time of the accident, and that his subjective intent should factor into the application of the Statute. Disagreeing, the court held that subjective intent was irrelevant, and determined that the plaintiff was engaged in recreational activity (riding a bike). As a result, the court afforded the city the protection of the Statute.
In Dunn v. City of Boston, 75 Mass. App. Ct. 556 (2009), a court evaluated whether a plaintiff, injured on stairs at Boston's City Hall Plaza, was engaged in recreational use. The plaintiff claimed she visited the plaza to plan for a future work event. The court, however, examined the “objective circumstances” of the visit and determined that walking around the plaza was itself recreational use, regardless of the plaintiff’s subjective intent. Granting the city the protection of the Statute, the court noted that the plaintiff did not have a business arrangement or special permission or circumstances which created a higher duty of care.
The Statute thus can provide landowners who open their property to public recreational use with a shield from liability. As noted above, however, the Statute’s protection is not without limitations. Accordingly, landowners should scrutinize their use of charges and fees for public access and ask whether they are worth the potential loss of protection under the Statute. They should question whether the fees are access fees, or rather merely donations or reimbursements for marginal costs. They should evaluate whether their land use policy complies with the Statute’s requirements for access to all members of the general public. Additionally, they should monitor changes in the law given the dynamic nature of premises liability.