The Massachusetts recreational use statute, G.L. c. 21, § 17C, makes individuals, nonprofit corporations, commercial enterprises and public entities, that (1) allow public access, (2) “without imposing a charge or fee,” (3) to any real property in which they have, (4) an “interest,” not liable for personal injuries or property damage sustained by members of the public including minors, while on their land.
Although commonly referred to as the ‘recreational use statute’, the statute applies not only to the recreational use of land or buildings, but also to land or building uses for “conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes.”
Since this statute passage in 1972, Massachusetts courts have continually expanded the application of the liability exemption created by the recreational use statute. In a recent decision, Patterson v. Christ Church in The City of Boston, 85 Mass. App. Ct. 157 (2014), the Appeals Court extended this statute’s exemption to a private entity operating in a private building that earns income from the public’s free access.
The Old North Church Case and the recreational use statute
Christ Church in The City of Boston, more commonly known as the “Old North Church”, receives over 500,000 visitors per year. A nonprofit organization, “The Old North Foundation of Boston, Inc. to organize tours and historical programs at the church. The foundation employs persons as guides and educators, called ‘docents,’ to answer questions and give free presentations to the public. The foundation’s operating agreement with the church required an annual payment in excess of $93,000 for the right to operate. The foundation raised its revenue from its gift shop, from fees for specialized tours to exclusive areas of the church, and from other development efforts.
Mr. and Mrs. Patterson were part of a senior tour originating in Georgia. The tour took them eventually to the Old North Church in Boston’s North End. They were not charged a fee to enter or the tour of the church. When they entered the church as part of their group a docent ushered the group to sit in the church pew boxes.
The Old North Church pew boxes have a hinged door and a single step riser that has the same color red shade as the red carpet on the floor. There was no warning to the Pattersons to use caution or to watch their step.
As Mrs. Patterson attempted to enter the pew box she tripped on the riser and fell on the pew bench and sustained very serious injuries that required surgery and rehabilitation along with significant medical expenses that were not covered by her health insurance.
The Patterson sued the foundation, the church the installer of the carpet, the church sexton and the church vicar and senior pastor for negligence.
The Patterson’s claim was that the church was poorly lit and that, as a result, Mrs. Patterson was unable to discern the red colored riser from the red carpet. The Pattersons’ suit alleged that the church, the foundation, and their agents, by maintaining the property in this defective condition, were negligent and legally liable for Mr. Patterson’s serious personal injuries and Mr. Patterson’s loss of consortium.
The Superior Court and Appeals Court apply the recreational use statute to exempt the Old North Church from liability
Mrs. Patterson’s case never got to a trial because the Superior Court ruled that a special statute, the Massachusetts recreational use statute, G.L. c. 21, § 17C, barred their claim because the Pattersons had been allowed on the premises for a “recreational use” for which neither the church nor the foundation imposed a charge or fee.
On appeal, the Pattersons claimed the Superior Court judge erred in determining that the recreational use statute, G.L. c. 21, § 17C, barred liability on their personal injury claims. The Appeals Court, however, denied the Pattersons appeal on April 3, 2014, and the Supreme Judicial Court denied the Pattersons application for further appellate review on May 5, 2014.
The Appeals Court in ruling that the recreational use statute applied stated: “the fact that the church anticipates and accommodates a high volume of tourism activity does not disqualify the Pattersons’ visit from being considered a ‘recreational use.’ … The act of visiting a tourist destination while on vacation passes the test of ‘whether the plaintiff is … engaged in an objectively recreational activity.”
The Pattersons also argued that the tour was not actually free, both because the Old North Foundation of Boston, Inc. pays Old North Church an annual fee to run the tours – which it tries to recoup through sales in an attached gift shop – and because she and her husband paid $1,738 to their local senior center for a tour that also included sites in Virginia, Connecticut and New York, as well as the Old North Church.
The Appeals Court ruled against the Pattersons on this argument stating: “… [H]ere, it is undisputed that the Pattersons paid neither a direct nor an indirect fee to enter or tour the church. … The fact that the foundation operates a gift shop and charges for behind-the-scenes, specialized tours of the church does not equate to a ‘charge or fee’ imposed on the Pattersons. …
“… [T]he Pattersons made no contribution, direct or indirect, to the $93,780 payment the foundation made to Christ Church in 2006. … Even if we were to accept the Pattersons’ characterization that, absent the annual payment, the church doors would not have been open to the public free of charge, it would not change the fact that no charge or fee was imposed on them in this case. …
Appeals Court extends the statute’s reach to public access that generates revenue
The recreational use statute applies with equal force to governmental and private landowners. However, until the decision in Patterson v. Christ Church of Boston, the recreational use statute had been primarily applied by Massachusetts courts to public entities providing parks, playgrounds and sports fields to the public without charge.
For private entities that might avail themselves of the recreational use statute, the Patterson case answered an important open question. Does the statute apply if the entity’s purpose in allowing public access was to generate revenue from the increased traffic resulting from the free access to the property?
The Pattersons argued this point asserting that the defendants they were suing should not have any exemption under the recreational use statute, “because nothing in the recreational use statute or its legislative history indicates the Legislature’s intent to immunize defendants who generate revenue on private property.”
In answering this question the Appeals Court affirmatively stated, “The plain text of the statute does not require that the defendants be excluded from protection against liability because they generate revenue on [private] property…”
Agent, underwriter and risk manager takeaways
Agents, underwriters and risk managers who assess the insurance needs of persons or entities that may allow their real property for a single use or continual uses that encompass public access for “recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes may wish to consider the following:
- Under the recreational use statute, “The liability of any person who imposes a charge or fee for the use of his land by the public for [recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes]” are not limited by any provision of the statute. The charging of a fee for access makes the landowner subject to suit for any personal injury or property damage claims without regard to the statute.
- If the recreational use statute may apply, one may wish to consider whether the benefit of any fee or charge collected is worth the loss of the liability exemption the statute provides.
- A landowner may impose a charge intended solely to reimburse it for marginal costs directly attributable to a specific user’s recreational use of the property. Under Massachusetts law, the landowner still remains exempt from ordinary negligence claims.
- The liability exemption under the recreational use statute is extremely broad. Not only is the individual or entity allowing access to the land protected but so is “any director, officer, trustee, member, employee, authorized volunteer or agent …” also exempted.