Massachusetts Recreation Use Statute and Personal Injury Cases

Victims of personal injuries in outdoor recreational activities often find themselves excluded from premises liability protection even when the owner of the land is clearly negligent.  How can this be?  The Recreation Use Statute, which has long been a part of Massachusetts law, is the answer.

That law says that anyone who allows people to come upon their land, without charge, for “recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes” is except from liability.  Except for willful, wanton or reckless action.

An interesting case was recently handed down involving the City of Newton, Marcus v. The City of Newton. In that case, the plaintiff was playing baseball on a publically owned field in Newton.  A tree fell striking him and causing serious injury to his back and shoulders.  When he sued, the City of Newton filed for summary judgment. The City of Newton argued that they were not obligated to protect the plaintiff because the Recreational Use Statute protected them.  The Supreme Judicial Court held that the Recreation Use Statute did not protect the City here because the plaintiff had paid a fee to play in a softball league, which had paid a fee to the city to use the field.  The next step in the Newton case is to bring the case to trial.

How Do You Know If Your Case is Subject to the Recreational Use Statute

We have resolved numerous Recreational Use  cases.  Each case is different, however, there are any number of strategies that exclude an injury case from that law.  Paying a fee seems like an easy answer; however, the City of Newton argued that the fee was not really for using the land, it was “administrative” and a slightly different fact pattern may have convinced the Court.  Another plaintiff strategy is to show that the injuries were not sustained on the land, but on a structure built upon the land, which was built or maintained by a third party. Still another is that there was no clear “welcoming” of folks to the land – it was simply being used, not with permission.

Another strategy utilized by plaintiffs, is to say that the action by the landowner was, in fact, willful, wanton or reckless.  Suppose that discovery in the Newton case under covers that a City employee recommended taking down the tree because it was dangerous.  Not cutting it down immediately, or putting up a fence to keep folks away, could be determined by a jury to be willful, wanton or reckless.

Recreational Use and Children

Many injury cases on land involve children. The law does not exclude them. But other laws protect them. And, more importantly, an experienced attorney will look for multiple defendants. In the Newton case, the attorney filed suit against other defendants. If a child is injured on a swing set in a park, there is the company that manufactured the unit, the company that installed the unit, and perhaps even a contractor that maintains the unit.

Children are often in the supervision of a third party: any private program that was supervising a child may be responsible for the child’s health. If you know of someone injured on land that seems to be open to the public, contact Attorney Neil Burns, an experienced personal injury attorney, at 617-227-7423 for a free consultation and discussion regarding if you, or your child, has a viable case.

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