The Massachusetts Recreational Use Statute – Another Bad Law That Effectively Promotes Injury to Children
By Attorney Eric J. Parker
PARKER | SCHEER LLP
In January, 2003, the Massachusetts Public Interest Research Group (MassPIRG) released the results of a study evaluating the condition of 760 playgrounds located in 24 states, including Massachusetts. The study found that many of Massachusetts’ playgrounds were either in serious disrepair, or lacked safety equipment long known to prevent or minimize injury to children. What the study unfortunately failed to recognize, was that Massachusetts, unlike many other states, offers little if no motivation to public playground owners to maintain its playgrounds, whether the disrepair results in serious injury or the death of a child.
According to Massachusetts General Laws c. 21 §17C:
§ 17C. Public use of land for recreational purposes; landowner’s liability limited; exception
An owner of land who permits the public to use such land for recreational purposes without imposing a charge or fee therefor, or who leases his land for said purposes to the commonwealth or any political subdivision thereof shall not be liable to any member of the public who uses said land for the aforesaid purposes for injuries to person or property sustained by him while on said land in the absence of willful, wanton or reckless conduct by such owner, nor shall such permission be deemed to confer upon any person so using said land the status of an invitee or licensee to whom any duty would be owed by said owner. The liability of an owner who imposes a charge or fee for the use of his land by the public for recreational purposes shall not be limited by any provision of this section. No contributions or other voluntary payments not required to be made to use such land shall be considered a charge or fee within the meaning of this section.
A review of the law’s legislative history reveals that the original intent of the statute was to provide the paper industry, which owned and controlled large amounts of undeveloped forest land, with insulation from liability for injuries sustained on its premises by hunters and others recreating thereon. According to the language of the statute, as long as the premises were being (1) used for recreational purposes; (2) were open to “public use”; and (3) no fee was charged for the use of said premises, the property owner can not be held liable for injuries sustained while on the premises, unless the injured party can show that the owner’s conduct was willful, wanton or reckless (commonly referred to as “gross negligence”).
The power of the Massachusetts Recreational Use statute to unjustly shield negligent property owners, towns and insurance companies from the liability they would otherwise face, has made the statute an increasingly popular and ever-broadening legal defense. In Anderson v. City of Springfield 406 Mass. 632 (1990), a man suffered serious injuries after sliding-into a defective “home plate” located on a Springfield public softball field. The plaintiff argued that City of Springfield was responsible for his injuries as the party responsible for maintaining the safe conditions of the field. The City invoked the protections of the Recreational Use Statute, arguing that regardless of the condition of the field, the park was (1) open to public use; (2) no fee was charged; and (3) the plaintiff was using the softball field for recreational purposes and for that reason alone, the plaintiff’s claim should be dismissed. The Massachusetts Supreme Judicial Court agreed. In another case, involving serious injuries suffered by a Newton high school student as a result of broken glass located in a high school shower, the Town of Newton argued that the act of showering qualified as “recreation” and should therefore serve to bar recovery for the plaintiff’s injuries. Fortunately, the Superior Court judge who ruled against the City’s motion to dismiss the case felt otherwise.
The Recreational Use Statute is only one of a number Massachusetts laws that effectively insulate wrongdoers from liability and deny innocent victims the compensation they would otherwise be legally entitled to recover. Massachusetts General Laws chapter 84 §15, for example, limits liability for injuries and death caused by a defect in a “public way”, including streets, sidewalks, and footpaths, to a maximum of five thousand dollars. Massachusetts General Laws Chapter 231 §85K, the so-called “Charitable Immunity” statute, limits recovery for personal injury and wrongful death to a maximum of twenty thousand dollars per claim, and was recently invoked to limit the liability of the Springfield Archdiocese to a maximum of $20,000 for acts of sexual abuse perpetrated by one of its priests. Under the existing “Massachusetts Tort Claims Act”, the Boston Police, whose officer accidentally shot and killed an Emerson College student celebrating the 2004 Red Sox Pennant victory, would not be required to pay more than one hundred thousand dollars to her surviving family, in a claim for negligence.
According to our premises liability lawyers, laws that limit or bar liability for injuries and death caused by negligence only increase the likelihood of future injury and death by eliminating the motivation to guard against it. Unless those responsible for maintaining our children’s playgrounds face real exposure for neglecting their duties, the impetus to keep playgrounds safe and in good repair will continue to erode.
For more information, speak to a premises liability attorney today.
About Attorney Eric J. Parker
Eric J. Parker is the Managing Partner and co-founder of the Boston-based trial firm Parker Scheer LLP, with offices in Massachusetts and Nevada. Mr. Parker has 20 years of active experience as one of Massachusetts’ leading civil trial lawyers, and holds the highest peer-review rating awarded to any attorney for professional skill and ethics. Mr. Parker is a member of the American Association for Justice (formerly the Association of Trial Lawyers of America), as well as the American, Massachusetts, and Boston Bar Associations. Mr. Parker is an elected member of the American Board of Trial Advocates (ABOTA; Elected Vice President, Massachusetts Chapter, January 2007), and is a certified member of the Million Dollar Advocates Forum. In 2007, Mr. Parker was appointed to the Editorial Board of Massachusetts Lawyer Weekly, the leading weekly legal newspaper serving the Commonwealth of Massachusetts. Mr. Parker has been named a Massachusetts Super Lawyer by the publishers of Boston Magazine, every year since the distinction was first created. Mr. Parker’s legal practice focuses on plaintiff-oriented tort litigation, including product liability, motor vehicle tort, medical and dental malpractice, premises liability claims, workplace sexual harassment and assault, aviation-related injuries, and wrongful death. Mr. Parker is a Graduate of Vassar College and received his Juris Doctor degree from Suffolk University Law School. In addition to his legal practice, Mr. Parker is also an FAA Certified Private Pilot, and was a founding member of the Board of Trustees of the Media And Technology Charter High School (MATCH) located in Boston (Chairman 2001-2005), the goal of which is to provide inner city high school students with a successful college education.