The Massachusetts Appeals Court yesterday issued yet another decision applying G.L. c.21 s.17C, the Recreational Use Statute (RUS), to a situation that, while technically within the law’s purview, seems to be far beyond what the legislature intended when it enacted the RUS. Like other decisions before it, the court’s opinion in Patterson v. Christ Church is likely to encourage more landowners–even commercial enterprises–to seek the protection of the RUS.
The RUS was originally intended to encourage landowners to allow the public to use land for recreational purposes. When a landowner allows the public on his land without charging a fee for the use, the owner is relieved of liability for injuries resulting from simple negligence. Only if the owner is grossly negligent can the injured visit recover. As the legislative history makes clear, the aim of this statute was to give landowners an incident, in the form of limited liability, to allow the use of land for outdoor activities such as hunting, fishing, riding, snowmobiling, and the like. Especially with large, unoccupied tracts of land, the reasoning goes, it would be difficult and expensive for a landowner to maintain and inspect the property on a regular basis. While fear of liability might ordinarily cause landowners to forbid the use of such land, the RUS sought to alleviate that fear as long as the landowner received no financial benefit from the use.
Yet creative defense lawyers have begun to seek expanded applications of the RUS far beyond what the legislature could ever have imagined. Yesterday’s opinion in Patterson involved a tourist who tripped on a poorly marked and poorly illuminated step in Christ Church. Admittedly, she had not been required to pay an admission fee to enter the church, nor had any fee been paid on her behalf.
At first blush, this might seem an appropriate application for the RUS. After all, it could be argued that the church, a structure with historic and architectural interest, was doing a public service by allowing tourists free entry to its building. Yet, while its motives may have been at least in part altruistic and admirable, the church also derives a significant financial benefit from its stream of visitors, operating a popular and profitable gift shop, and offering “behind-the-scenes” tours for a fee.
As I’ve noted before, recent interpretations of the RUS are leading in a concerning direction. Other states have been quicker than Massachusetts to find that recreational use statutes do not apply where the landowner derives an economic benefit from the land or uses it for commercial purposes–even if a direct admission fee is not charge. The defendant in the Patterson case, Christ Church, is a sympathetic and charitable defendant. Yet the reasoning of the Appeals Court’s decision would apply equally to a commercial enterprise like McDonald’s, which could use this interpretation of the RUS to avoid liability for a child injured at one of its play areas. \
It’s good policy to relieve landowners of some liability when they’re acting for the public benefit. But once they use their land for money-making purposes, it’s equally good policy to impose liability when people are injured as a result. Patterson undermines the longstanding theory that business owners should be responsible to make reasonable efforts for their patrons’ safety.
Read the Patterson decision here.