Recreational Use Exception

The Massachusetts “recreational use statute” provides that owners, both public and private, who make their land available to the public for “recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor” are not liable for personal injuries sustained by such members of the public in the absence of willful, wanton or reckless conduct. The purpose of the statute is to encourage landowners to permit broad, public, free use of land for recreational purposes by limiting their obligations to lawful visitors under the common law. In applying the statute, Massachusetts courts have construed the term “recreation” to include not only active pursuits, such as playing baseball, but also passive pursuits such as picnicking, and watching baseball and other sports. Even so, the distinction between a paying customer and a mere spectator can be extremely fact dependent as two recent cases illustrate.

 Supervising Parent

 In the first case a mother took her two sons, ages eleven and thirteen, to a commercial recreational facility and purchased tickets for her sons’ use. While she was standing behind a chain link fence, watching her sons drive go-carts, a go-cart driven by a young girl went through the fence and struck the mother causing serious injuries. After the mother sued the facility for negligence, the facility moved for summary judgment relying on the recreational use statute, arguing that the mother was using the facility in a recreational capacity as a spectator for which the facility did not charge. However, the Appeals Court reversed the trial court’s grant of summary judgment to the facility finding that the circumstances of the case involved “a parent who accompanied minor children, purchased their tickets, and remained to supervise them.” The Appeals Court continued that as a parent, the mother was using the facility for the recreation of her children, and she paid for that use by purchasing tickets, and the facility 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.

 Mere Spectator

 In contrast, in the second case, a mother brought her thirteen year old son to an indoor sports facility to watch him play “dekhockey,” an organized form of street hockey. The mother had paid a fee so that her son could participate in the tournament. Following the game, the mother fell from the top level of the bleachers where she had been seated sustaining injuries. As in the earlier case, after the mother filed a lawsuuit against the sports facility for negligence, the facility moved for summary judgment based on the recreational use statute. This time the Appeals Court affirmed the trial court’s grant of summary judgment to the facility distinguishing the facts from the prior case. The Appeals Court noted that the mother was “injured while – without paying a fee – watching her child play in an organized activity in which the players were under the charge of third-party coaches and referees.” The Appeals Court added that “we do not view the parent’s mere invocation of the term supervision as sufficient to stave off summary judgment.”

 Conclusion

People should be aware that property available for “recreational use” may exempt the property owner from liability even though the property owner is responsible for someone’s injury. This exemption does NOT apply if the property owner engages in wanton, willful or reckless conduct.

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