The Massachusetts Recreational Use Statute, G.L. c. 21, § 17C, provides, in part, that “any person having an interest in land . . . who lawfully permits the public to use such land for recreational . . . purposes without imposing a charge of fee therefor . . . shall not be liable for personal injuries . . . sustained by such members of the public . . . while on said land in the absence of wilful, wanton, or reckless conduct by such person.” Some Courts have focused on whether the injured party actually handed over money in exchange for access the land when determining whether a landowner/occupier is entitled to immunity for negligence. As a result, the Recreational Use statute has been interpreted by some courts to lead to absurd results where one visitor may be entitled to common law duty of care, but another visiting on an admission-free day, may be without remedy when injured. Moreover, some premises liability victims have been left without remedy despite the fact that the landowner/occupier is making substantial sums from activities at the location at issue, either through direct payments from user groups or due to the sale of goods and services on the premises. Such interpretations have improperly expanded the scope of immunity under the Recreational Use statute.
In May of 2012, the Massachusetts Supreme Judicial Court released its decision in Marcus v. City of Newton, 462 Mass. 148 (2012). In Marcus, the SJC began to shift the focus of the immunity analysis to the landowner/occupier. Specifically, the Court noted that the statute itself, focuses on whether the landowner “lawfully permits the public to use such land for recreational . . . purposes without imposing a charge or fee therefor.” Accordingly, the Court noted that “the issue is whether the landowner charges a fee for the particular use to which the plaintiff puts the land.” The SJC then flatly stated that §17C provides no “exemption from liability for ordinary negligence if the landowner imposes a charge or fee for a particular use of recreational land,” even where the user does not personally or directly pay the charge to the landowner.
This ruling is an important step in rolling back the scope of the Recreational Use statute to the circumstances that the legislature intended: situations in which a landowner/occupier makes land available for recreational, conservation, scientific, educational, environmental, ecological, research, religious or charitable use by the public for free. The Court’s focus on whether the landowner/occupier is making money, from whatever source, in connection with making the land available will also minimize some of the absurd situations created by other Courts’ misguided and outcome-determinative focus on whether the Plaintiff paid an admission fee.
If you have been injured in Massachusetts while visiting a tourist attraction or other recreational site, call Heinlein Beeler Mingace & Heineman, P.C. to discuss your options.