Liability for injuries stemming from hazards on a property are a source of worry for property owners and their architects alike. This area of law has been evolving over the last several years in Massachusetts, notably in 2010 when the Supreme Judicial Court ruled that common negligence principles - more on what that means in a bit - would be applied to snow and ice injuries.
Recently I’ve seen two more court rulings on an exemption for property owner negligence. A state statute (G.L. c. 21, § 17C) exempts property owners from negligence liability when they permit the public to use the land for “recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor” and a member of the public who is there fore those purposes is injured. The exemption does not apply to injuries caused by “wilful, wanton, or reckless conduct.”
The Recent Cases
The two recent cases address two of the “elements” of the exemption. To satisfy the wording of the exemption statute, several requirements are needed, which are all referred to as elements:
- The property is open to the public for the listed uses mentioned above.
- The injured person is a member of the public who is there for one of the listed uses.
- The injured person was not asked to pay a fee or charge to be there.
- The injury was not caused by willful, wanton or reckless conduct.
Also, don’t confuse negligence with strict liability! While a careless design decision might be merely negligent, a design decision that causes risks by violating the building code could result in “strict liability.” That’s a different type of case that has different rules.
“Charge or Fee”: The first case is is Patterson v. Christ Church (Mass. App. Ct. 2014). It clarifies point number 3. In that case, the plaintiff, Ms. Patterson, is a woman in her '60s who visited Boston as part of a seniors' tour group. When the group visited Old North Church, a docent ushered the group to the church’s pew boxes. When Patterson attempted to step into the box, she tripped on the step up and was severely injured, and required surgery and rehabilitation.
Patterson accused the church of negligence for not making the step more visible, and not giving any warning that the step was there. The church countered that it was not liable to her for negligence, because the church is open to the public for sightseeing (a recreational use), she was there for sightseeing, and there was no entry fee. But Patterson argued that because she paid a fee to her tour company, and the church received payments from a nonprofit that organizes tours and guides, that’s the same as the church charging fees.
That argument isn’t entirely without foundation. There have been other cases where indirect payments were considered fees - for example, the owner of a field charging a baseball league for its use, and the league collecting money from the players - so that the recreational use exemption did not apply. But what’s lacking here is a connection between the money that Patterson paid and the money the church received. The tour company did not pay the nonprofit. Under those circumstances the court would not rule that she was charged a fee, which meant that the church’s exemption argument would succeed.
“Open to the Public”: The second case is Wilkins v. City of Haverhill (Mass. 2014). It clarifies point number 1. In this case, Ms. Wilkins, a parent of a Haverhill public school student, went to the school during off hours for a parent-teacher conference and was injured when she slipped and fell on ice that had been allowed to accumulate on a school walkway. The school countered that it was exempt from negligence liability because she was there for an educational purpose.
Wilkins successfully argued that the exemption did not apply because at the time she was injured the school was not open to the public.
A property owner - and by connection those hired by the owner to do construction and maintenance - has a responsibility to act reasonably to remove - or at least give warnings of - hazards on the property. In case things do go wrong and somebody gets hurt, there are some protections in place, but it’s incorrect to make broad assumptions. For example, a school might think that because its uses are educational it will be protected from negligence lawsuits, but there’s more to it.