Parker Scheer

MALL WALKERS BEWARE

As many of you know from personal experience or from friends and family, the mall is not only a place to shop, it is also a place to exercise during the extreme cold of winter and the extreme heat of summer. Malls regularly open their doors to the public long before the individual stores are open for business so that the public can freely use its interior structure for the purpose of walking. So what duty does the mall owe to you if you are on its premises for the sole purpose of walking for exercise and are injured as a result of the mall’s negligence? I am certain you will be surprised to learn that the short answer to that question is none.

In Massachusetts there is a Recreational Use Statute (G .L. c. 21, sec. 21C), which affords protection to persons having interest in land including an interest in the structure and building attached to the land who lawfully permits the public to use such land for recreational purposes without imposing a charge or fee. The recreational use statute says that in these types of circumstances, i.e. when someone is using the land for recreational purposes and the owner does not charge a fee, the owner does not have exercise due care to keep its premises in a reasonably safe condition but instead will only be liable for personal injures caused by willful, wanton or reckless conduct. For those of you who may not have a legal background essentially that means that the mall owes walkers the same duty it owes to trespassers, essentially none.

Recently a Middlesex Superior Court Judge allowed Simon Property’s Motion for Summary Judgment on this exact issue and in turn largely expanded the scope of the statute to protect commercial malls and its managing agents. In that case, an elderly woman was walking in a Simon Property mall for purposes of exercise and was not charged a fee to do so. While walking inside the mall before stores were open for business the elderly woman was seriously injured. The Court held that the Recreational Use Statute applied to Simon Property, the managing agent and further held that Simon was afforded the protection of the statute. The Court went on to explain that the purpose of the Recreational Use Statute is to permit broad, public, free use of land for recreational purposes by limiting their obligations to lawful visitors and in this case to the elderly woman walking on its property.

The plaintiff argued that the intent of the statute was not to protect commercial mall owners who clearly have an underlying motive (business) in allowing people to walk on its premises. Furthermore the plaintiff argued the mall is not a place where typical recreational activities are engaged in by the general public. Most of the case law in Massachusetts dealing with the protections afforded to landowners by the Recreational Use Statute focuses on traditional places where recreational activities typically occur including parks and fields. The Court surprisingly opined that “malls have transformed the American landscape and that the mall walking engaged in by the plaintiff has become a feature of modern life.” The Court ultimately held that because the plaintiff was engaged in recreational activity; the plaintiff was doing so on private property; the property was opened to the public with no fee being charged to permit the plaintiff to walk; then Simon Property was not liable for any her injuries.

This recent expansion on the scope of the Recreational Use Statute should make all who currently use the mall as an indoor track want to join a gym. At least then you can ensure that the gym owner will have to maintain its property in a reasonably safe condition. If you know anyone who uses the mall for walking please inform them they do so at their own risk.

If You Want to Make God Laugh – Tell Him Your Plans.