Personal Injury on Boston Public School Stairway Ruled “Recreational”

In a case handed down by a Superior Court judge, it was ruled that the use of a Boston public school stairway to pass from the street to the MBTA was recreational, and therefore any negligence in maintaining the stairway was, by law, not the fault of the City of Boston.

What is the Recreational Use Statute?

The Recreational Use Statute is a Massachusetts law that provides a defense to liability to landlords who allow people to come upon their land, without charge, for “recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes.”   (There is an exception for willful, wanton, or reckless conduct.)  Usually, the cases in which this is a valid defense are those in which the plaintiff had been recreating – in a park, at a ball field, etc.

Why is a School Stairway Utilized by Pedestrians in Route to the Subway, Recreation Use?

In the case decided by Superior Court Judge Curran on March 24, 2015, the plaintiff, Aguinalda Fernandes was not recreating, as best we can devise.  She was commuting.  She had parked her vehicle in front of her mother’s home on Corwin Street in Dorchester.  She then proceeded to walk her usual route to take the Red Line MBTA at Fields Corner to work in Cambridge.  At the Harbor Pilot Middle School, Ms. Fernandes would use the City-owned stairs as a shortcut to the T.  Unfortunately, the stairs were “cracked and chipped” and she was caused to fall and break her ankle.

Normally, in such a personal injury case, the jury would get to decide, based on the testimony and photos, whether the owner of the property, the City of Boston in this case, was negligent in maintaining the premises as they were on the day Ms. Fernandes fell.  However, in this case, while Ms. Fernandes was clearly not recreating, or even attempting to recreate, as she was on her way to work and commuting, the Court determined that “the subjective for the plaintiff for entering and walking around the school grounds is irrelevant…” The judge determined that the intent of the statute was for landowners to be encouraged to allow free access and seems to have determined that walking to work encompasses that.   We wonder if this case will be appealed because the results could be disastrous for victims of personal injury.

Was the City Responsible for Willful, Wanton, or Reckless Conduct?

Another strategy utilized by plaintiffs is to say that the action by the landowner was, in fact, willful, wanton, or reckless.  A finding as such removes the protection of the Recreation Use Statute.  In this case, the judge found that “a cracked and crumbling stair does not present a reasonably apparent risk of death or grave bodily injury.”  From the few facts outlined in the decision, the judge is correct.

Suppose that discovery determines that the school City received numerous complaints, budgeted for repairs, and the money went to a contractor that was the brother in law of the principal and no repair was complete.  That might rise to the level of willful, wanton, or reckless.  We don’t see anything like that here.

Retain An Experienced Personal Injury Attorney

Attorney Neil Burns is experienced in personal injury having won, and lost, cases regarding the Recreational Use Statute.  Call 617-227-7423 for a free consultation.