A New Direction for Recreational Use Statute?

A recent Appeals Court decision suggests that the court may be taking a closer look at the Massachusetts Recreational Use State, G.L. c.21, section 17C.  The statute, which bars ordinary negligence claims against landowners who allow the public to use their property for recreational purposes “without imposing a charge or fee,” has in recent years been expanded far beyond what the legislature originally intended.

The court in Amaral v Seekonk Grand Prix Corp. rejected a claim by the operator of a go-kart facility that a mother who was injured while watching her sons ride could not recover after being struck by an errant go-kart.  The facility had raised the Recreational Use Statute as a defense, claiming that, since it permitted the mother to watch her sons without paying for the privilege, it was not liable for negligence.

At first blush, this defense seems patently absurd: how could a money-making operation possibly avoid liability to patrons injured through its negligence?  How could a statute which was intended to encourage landowners to allow the public to use open space for hiking, horseback riding and similar activities be used to protect a business? Yet, the go-kart operator was able to point to a line of decisions in which spectators at an event for which admission was not charged could not recover for negligence.  And the Superior Court judge who heard the motion for summary judgment agreed.

Fortunately, common sense prevailed in the Appeals Court.  The court reversed the grant of summary judgment, noting that the plaintiff had purchased admission tickets for her sons to ride the go-karts.  The court noted that “Grand Prix could fully anticipate that a parent accompanying minor children and paying a fee on their behalf would qualify as a paying customer under the statute.”  Because the plaintiff had paid a fee “for her particular use of the land,” her claim was not barred.

The decision still doesn’t go as far as many victims would hope–and there was a much easier way for the court to get there.  The statute does not require that the individual user pay a fee, but merely that the landowner allow recreational use by the public “without imposing a charge or fee.”  The plain language of the statute would seem to exempt commercial money-making endeavors from its scope.

It Had to Stop Somewhere

The relentless parade of defendants seeking to take advantage of the Massachusetts Recreational Use Statute, G.L. c.21 s.17C  (RUS), hit another road block last week, as the Supreme Judicial Court held in Wilkins v. Haverhill that the negligence claim of a parent who was injured at a public school while attending a parent-teacher conference was not barred by the immunity statute.

Mrs. Wilkins brought suit against the City of Haverhill after she  slipped on an icy walkway outside the school.   The school district moved for summary judgment, claiming immunity from liability for ordinary negligence under the RUS on the grounds that Mrs. Wilkins had entered the school building free of charge as a member of the public engaged in an educational activity.  The Superior Court agreed with the City, and the plaintiff appealed.

The SJC noted that the school was open only to parents who were there to attend scheduled conferences, and not to the general public.  In fact, the Court noted, the city admitted that the building was closed to other members of the public.  Relying on the language of the RUS, along with a dictionary definition or two, the Court held that, in order to take advantage of the protection of the RUS, a landowner must make the property available to the entire public, and not just a discrete group.  While the landowner may limit the use of the property, it may not exclude any portion of the public.

Interestingly, the Court seemed to suggest that the mother’s attendance at the conference was not truly for her own “educational” purpose, as required by the statute.  While there was some benefit to the mother, and her attendance was indirectly related to the education of her child, the SJC did not feel that this use was the type of “educational” use contemplated by the RUS.  The Court also noted that the stated purpose of the RUS–to encourage landowners to make private land available for public use–would not be furthered by a grant of immunity in this case, as there is ample public policy and statutory basis to “encourage” schools to involve parents in their children’s education.

While the language of the Wilkins decision still leave room for plenty of mischief in the application of the RUS, it does stand for the important point that, in order to entitle a landowner to immunity, the land must be open to all members of the public.  The theoretical right of the public–or even the right of a significant number of its members–to access a public building is not sufficient.  Further, the Court seems to be looking behind the precise language of the RUS to the legislative purpose–an analysis that has been missing from some other recent RUS decisions.

Read the decision in Wilkins v. Haverhill here.

Building Code Violations May Result in Strict Liability

The Supreme Judicial Court yesterday issued an important decision for victims who suffer personal injuries in public buildings, holding that building code violations that cause injury will automatically result in liability for the owner or controller of the property. The SJC’s decision in Sheehan v. Weaver (4/10/2014) overruled a 1999 case, McAllister v. Boston Housing Authority, 429 Mass. 300 (1999), which had limited the owner’s liability to violations relating to fire safety. The Court concluded that there was no statutory or logical basis for that restricted interpretation, which had been carried over from a previous version of the statute.

Sheehan arose out of an accident that occurred at a three-story, mixed-use building in Beverly, where the ground floor was occupied by a chiropractor’s office and the top two floors contained residential units. The plaintiff was injured when, en route to his third-floor apartment by way of an exterior staircase, he leaned against a railing which broke and sent him tumbling to the ground below. The evidence at trial established multiple building code violations involving the strength, height and condition of the railing, which the jury determined caused the plaintiff’s injuries.

In addition to ordinary negligence claims, the plaintiff also alleged that the building code violations imposed strict liability on the defendants under G.L. c.143 §51, the theory of statutory liability assuming great significance when the jury found the plaintiff 40% comparatively negligent—a reduction which presumably would not apply to the statutory claim. The defendants contended, based on McAllister, that because the violations did not involve fire safety, they were not liable under the statute.

After carefully analyzing the history of the statute and its various amendments, as well as the evolution of the decisional law, the SJC concluded that there was no basis to limit the application of c.143 §51 to fire safety violations. Thus, the Court ruled, ANY building code violation that causes injury will serve as a basis for imposition of strict liability on the owner.

Unfortunately, for the plaintiff, however, he won that battle but then lost the war. The Court went on to examine the precise language of the statute, and to hold that the statutory liability under §51 applies only to buildings in which large numbers of people could be expected to gather. This interpretation would have applied to the chiropractor’s office on the first floor of the building, but not to the landing from which the plaintiff fell, which served only the three apartments and was used only by the tenants and their guests. Even though the defendant landlord derived economic benefit from renting the residential units, that financial gain was insufficient to bring the property within the ambit of the statute, because of the mostly private use of the building.

Nevertheless, the decision has important consequences for owners and managers of commercial, educational, recreational or business properties which serve significant numbers of people. In those cases, the Court reasoned, members of the public would have little opportunity to inspect the property or become aware of code violations. Thus, it is reasonable to impose responsibility on the owner to maintain the property in compliance with the codes, and to be liable for injuries resulting from violations.

Read the SJC’s opinion in Sheehan v. Weaver here.

Recreational Use Statute Applied Even When Money’s Being Made

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.

What About All This Snow?

With the first snowstorm of the season just passed, many people are thinking about snow and ice removal.  Some are property owners wondering what potential liability they might have if a visitor is injured on their land, while others are victims of injuries suffered from a fall.   For both categories, it’s important to know what the law requires.

Until three year ago, the law in Massachusetts regarding snow and ice cases was as messy as the Expressway at rush hour in the middle of a snowstorm.  The law, so odd and distinct that it was tagged “the Massachusetts Rule,” was that landowners were liable only for injuries resulting from an “unnatural accumulation” of snow and ice.  If the injury was caused by a “natural accumulation,” the courts held that Mother Nature, and not the landowner, was to blame.

The two problems with this approach were: 1) that it was difficult to decide what was natural and what was unnatural, and 2) the distinction made no sense in relation to other laws relating to landowner liability.  And so it was a great relief when the Supreme Judicial Court decided the case of Papadopoulos v. Target Corp.,  457 Mass. 368 (2010).  In Papdopoulos, the Court recognized the lack of logic and inconsistency that plagued the existing natural/unnatural distinction, and abandoned the distinction in favor of the general rule that a landowner must use reasonable care to keep the property safe.  That’s true whether the danger comes from snow, loose railings, poor lighting, or any other common conditions.

But like many things, the devil is in the details.  It’s easy to state the rule of reasonable care, but more difficult to apply it in particular situations.  Must a property owner start shoveling as soon as the first flake falls?  While the storm is raging outside?  Are salt or sand required? There are no clear answers to questions like these.  That’s why we have juries.

In the vast majority of cases after Papadopoulos, the decision about whether measures taken–or not taken–by a property owner to remove or clear snow and ice from his land were reasonable will be made by a jury.  That means it will be important to gather information about when the snow started and stopped, how fast it fell, what the temperatures were between the time of the snow and the time of the injury, as well as any efforts at snow removal or treatment of pavement.  Obviously, photographs taken as near as possible to the time of the injury are also important.  This type of factual investigation should give both parties the information they need to assess the reasonableness of the owner’s efforts.

Read the decision in Papadopoulos v. Target here.

Shades of Hot Coffee in Tailgating Case

The recent widely publicized settlement in a wrongful death case brought against the Kraft Group by the family of Debra Davis has generated almost uniformly scathing criticism on public comment sites. Indeed, at this rate, the case could become the new darling of tort reformers, similar to the infamous “McDonalds hot coffee” case.  Most people were highly critical of the idea owners of Gillette Stadium should be responsible for the death of a young woman who was killed in a single-car accident while riding with her intoxicated friend after the girls had spent the day partying in one of the facility’s parking lots.

Debra Davis and two friends, all underage, were tailgating in the parking lot of Gillette on the day of the New England Country Music Festival in July 2008.  None of the girls had tickets to the event–they were simply there to join the party–which apparently, they did.  Several hours later, with Davis’s friend, 19-year-old Alexa Latteo at the wheel, their car crashed on Route 1, killing Davis and injuring the third girl, Nina Houlihan.

If the only legal question were whether Davis and her friend made bad–and even illegal–choices, the case would be over before it began.  Obviously, they did, from entering the parking lot to party, to bringing alcohol they were too young to drink legally, to consuming apparently large quantities of that alcohol, and then attempting to drive home.  But legally, the fact that the girls were in the wrong doesn’t relieve the Gillette ownership of all responsibility.

According to court documents and published reports, the Gillette management had been ordered by the Town of Foxboro to be more careful about underage drinking on its property after a near-riot at the same event the previous year, involving large numbers of underage drinkers.  Gillette had instituted a “no ticket, no entry” policy to discourage non-concert goers from showing up just to party.  Yet, the policy was allegedly poorly enforced, with inadequate efforts being made to patrol the parking lots and curb underage drinking.

The key to the management’s responsibility is that the Kraft Group is running a business at Gillette–a big business, as anyone who’s paid stadium parking fees can attest.  This isn’t a situation where, unknown to a homeowner, the girls parked in the woods behind someone’s house with a six-pack of beer.  Gillette charges handsomely for the right to enter its parking lots, and with that charge comes responsibility–specifically the responsibility to monitor the activity going on there.  There was nothing unexpected or unforeseeable about what happened to Debra Davis–the only surprise is that something similar hadn’t happened before.  Like the McDonald’s case, where many facts were lost in the barrage of tort reform publicity, many significant facts contained in court papers were omitted from news reports.

Another aspect is that the case involved minors, who are entitled to special protection under the laws related to alcohol.  We all know that “kids do dumb things” and make poor choices, especially where alcohol is involved.  As a society, our laws reflect our concern with excessive alcohol use, and the need to protect young people from themselves, as well as protect the public from the young people who may make poor choices.

The case is obviously less sympathetic because of the conduct of the victim and her friends.  Perhaps public opinion would be very different if the allegedly intoxicated driver had killed a young family out for a weekend drive.  But the identity of the victim should not remove the focus from the principles that require business owners to take steps to see that dangerous conduct is not taking place on their property.

Injuries on Commercial Properties

snowy parking lotA recent Appeals Court decision serves as a reminder of the many factual issues that may become important for lawyers to consider when bringing a claim for injuries suffered on a commercial or business property.  Navarro v. Bond involved the intersection of two legal principles: the application of the worker’s compensation statutes to injuries suffered by an employee while at work, and the limited  responsibility of a commercial landlord for injuries suffered on its property.

The plaintiff in Navarro was injured when she fell in the icy parking lot of her workplace.  The premises were leased to her employer, Bond Brothers, Inc., and owned by a related family trust, Spring Realty.  The plaintiff’s employer, Bond Brothers, had always been responsible for general maintenance and snow removal at the property.  It received no payment from the nominal landlord, Spring Realty, for these services.  There was no evidence that Spring Realty retained any control over the leased property.

The worker’s compensation statute compensates employees for injuries suffered at work, regardless of whether the employer was negligent, but provides very limited recovery of damages compared to normal tort law.  When an employee receives worker’s comp, she cannot sue the employer for tort damages.  This law limited Ms. Navarro’s recovery unless she could show that some other person or entity was responsible.

The logical entity would be the owner of the property–but the liability of a commercial landlord is rather limited.  As the Navarro case reminds us, a commercial landlord is liable for injury on the leased property only if 1) it has a contractual obligation to repair or maintain the property, or 2) the injury occurs in a common area over which the landlord retains some measure of control.  Since Spring Realty had nothing to do with the maintenance or operation of the business property, it had no liability for injuries.

The question of the landlord’s liability in Navarro became important because the plaintiff could not recover tort damages from her employer, but it may also arise in other contexts.  When the tenant business is uninsured or poorly insured, it may be important to look for other responsible parties.  When the injury occurs in a common area such as a hallway or parking lot, it may be difficult to figure out whether the landlord, the tenant, or both, were responsible for taking care of that area.  The issue is more complicated where there are multiple business tenants.

These issues can make a relatively simple “slip and fall” case more complicated, as it may require investigation to learn about the relationships of the parties and their relative responsibilities.  The situation can become even more difficult where management companies, maintenance or cleaning contractors, and other third parties are involved.

Case Law Update: Chapter 93A and the Building Code

basement stairsThe Supreme Judicial Court held last week that violations of the Massachusetts building  code may form the basis for liability under the Consumer Protection Statute, General Laws Chapter 93A.  In Klairmont v. Gainsboro Restaurant, Inc., the SJC affirmed a judge’s finding of liability, holding that the defendant bar could be liable for the death of a college student who tumbled down a set of cellar stairs that violated multiple sections of the building code.

The stairs in question led from a back hall down to a cellar used for storage, and had been constructed in the early 1980s without obtaining required building permits.  The plaintiffs produced evidence that the stairs did not comply with several applicable sections of the building code, including the lack of a self-closing door, a landing at the top of the stairs, specific riser and tread dimensions, and a hand rail.   A kitchen manager at the restaurant had complained to the owner that the stairs were dangerous, and that both she and a sales representative had fallen on the stairs.

The plaintiffs’ son, a student at Northeastern, had apparently entered the back hallway to find a quiet place to take a phone call.  An employee found him a short time later at the bottom of the stairs with a fractured skull and a brain bleed, which proved to be fatal.  A jury found the bar negligent, but that the negligence did not cause the young man’s death; the judge, as permitted by G.L. c.93A, decided the causation question in favor of the plaintiffs.

While finding that not every building code violation would serve as a basis for liability under G.L. c.93A, the Court held that code violations that were “unfair or deceptive acts” that occurred in the course of trade or commerce might warrant recovery.   The Court noted that the defendants had knowingly violated the building code for more than 20 years, thereby creating a hazard in a place where alcohol is served.

The application of 93A, with its potential for multiple damages and attorney’s fees, is a powerful weapon for plaintiffs in premises liability cases.   While the SJC was careful to note that only a limited class of building code violations would rise to the level of 93A violations, in appropriate cases, a 93A claim will give the plaintiff important options to a traditional negligence action.   This remedy has long been available to plaintiffs in other types of personal injury claims, such as defective products.

An interesting feature of Klairmont is that the judge found in favor of the plaintiff after a jury had rejected their negligence claim.   This is permitted because the judge, who is the factfinder in the 93A claim, is not bound by the jury’s decision, and is free to make her own, in this case contrary, factual findings.  This result underscores what many experienced plaintiff’s lawyers have known for years–that jury-waived trials are not always to be feared, as many judges have not fallen prey to the tort reform propaganda that has infected many jury pools.

Klairmont also contains an extensive discussion of what damages may be recovered on the 93A claim, which will be the subject of a post later this week.

The Supreme Judicial Court’s decisions are available on its public website.

Case Law Update: Trampolines and Swimming Pools

pool_warning_signsReversing a lower court decision, the Supreme Judicial Court yesterday held that a homeowner who created a dangerous condition on his property may be liable to a visitor injured by the danger, even if the risk of harm was obvious to the visitor.  The case, Dos Santos v. Coleta, marks the second time this week that the SJC has ruled that the potential liability of a tort defendant turns on whether the defendant’s negligence was a factor in creating the danger–as opposed to simply failing to warn of the danger–the first case was discussed in a previous post.

Dos Santos involved a man who suffered a serious spinal cord injury when he attempted a flip off a trampoline into an adjacent wading pool.  Despite acknowledging that he knew it might be dangerous, the defendant homeowner had deliberately placed the two-foot-deep pool next to the trampoline–and even positioned the trampoline’s ladder in the pool–because he thought it would be “fun.”  In fact, a warning against jumping and diving (in the plaintiff’s and defendant’s native Portuguese) and an accompanying pictograph were clearly printed on the side of the pool.

The homeowner in Dos Santos raised the “open and obvious danger” defense–a legal principle that states that a landowner has no duty to warn about dangers on his property that would be “obvious to a person of average intelligence.”  The Court agreed that the property owner had no duty to warn visitors, but ruled that he could still be responsible for his negligence in failing to remedy an open and obvious danger that he himself had created and maintained.  The Court noted that the homeowner admitted that he had seen visitors jumping from the trampoline into the pool–not surprising given his testimony that he had chosen the location for the trampoline specifically to permit this activity.

The Court took pains to distinguish Dos Santos, where an affirmative, deliberate action of the landowner created the danger, from other cases such as O’Sullivan v. Shaw, where the only negligence alleged was a failure to warn about the danger.  This distinction is important for lawyers considering similar cases, in the need to focus on actions, rather than inactions of the defendant.  Where the potential defendant had a hand in creating the dangerous condition, the principle of Dos Santos would impose liability, even if the danger was apparent.

The plaintiff’s case isn’t out of the woods yet, however.  The SJC’s decision focuses only on the defendant’s conduct, and  at a second trial, the jury will be told to consider whether the man was negligent in attempting the flip into the pool, and to compare that negligence to the homeowner’s conduct.

The Supreme Judicial Court’s decisions are available on its public website.