Appeals Court Expands Recreational Use Defense

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Appeals Court Expands Recreational Use Defense: Dunn v. City of Boston, 75 Mass.App.Ct. 556 (2009) & Dami-Hearl v. City of North Adams, 75 Mass.App.Ct. 1113 (2009)

In Dunn v. City of Boston, plaintiff fell and suffered injuries while walking on the stairs located at Boston’s City Hall Plaza. At the time, plaintiff was visiting the Plaza in preparation for an upcoming event sponsored by her employer, Gateway Christian Fellowship. Prior to the accident, the City of Boston had issued Gateway a one-time entertainment license for an event to be held at the Plaza. While the City did not charge a fee in exchange for the license, Gateway made a $10,000 donation to the Boston Neighborhood Fund in connection with the event. Gateway also reimbursed Boston for the security and janitorial services necessary for the event.

Plaintiff brought suit against the City of Boston in Suffolk Superior Court, claiming that the City was negligent in failing to repair the stairs upon which she fell. The City admitted that the stairs were crumbling and in need of repair, but argued that the Recreational Use Statute, M.G.L. c. 21, § 17C, barred plaintiff’s lawsuit. The Superior Court allowed summary judgment in the City’s favor, agreeing that the Recreational Use Statute applied because the City had opened the Plaza to the public for recreational purposes, free of charge. Plaintiff appealed the summary judgment decision to the Massachusetts Appeals Court, arguing that the Recreational Use Statute did not apply because: (1) she was not using the Plaza for a recreational purpose at the time of the accident; and (2) Gateway had, in fact, been charged a fee for the event. The Appeals Court (Lenk, J.) affirmed.

The Appeals Court rejected plaintiff’s argument that, because she was visiting the Plaza as part of her job, she was a “business visitor” to whom the city owed a higher duty of care than it would to a recreational user. Citing to Ali v. Boston, 441 Mass. 233 (2004), the Appeals Court held that the proper analysis under the Recreational Use Statute entails disregarding the user’s subjective intent for visiting a public area. Instead, courts should decide whether the plaintiff was engaged in an objectively recreational activity at the time of an accident. Here, Gateway had permission from the City to use the Plaza free of charge. As part of that use, plaintiff entered the Plaza and walked there for the purpose of planning Gateway’s event. Plaintiff had no special permission or authorization from the City to be on the Plaza that day. Instead, she was able to use the Plaza just as any attendee of a free event would be. Under such circumstances, the Appeals Court held that plaintiff was using the Plaza for the objectively recreational activity of planning the Gateway event. Thus, the Recreational Use Statute applied.

Plaintiff also argued that Gateway’s donation and payment for security and janitorial services constituted a “fee” within the meaning of the Statute. Again, the Appeals Court disagreed, noting that there was no evidence that Gateway’s donation was a condition of receiving the license. Second, Gateway reimbursed the City for services necessary to conduct the event. The reimbursement, held the Appeals Court, cannot be characterized as a fee within the meaning of the Recreational Use Statute.

On the same day as the Appeals Court issued its decision in Dunn, it also decided a similar matter in a Rule 1:28 decision, Dami-Hearl v. City of North Adams. This appeal concerned a plaintiff who fell into a pothole and injured herself while visiting gravesites at North Adams’ historic Southview Cemetery. At the Superior Court level, a judge allowed North Adam’s motion for summary judgment, based on the applicability of the Recreational Use Statute. Plaintiff appealed. Just as in its decision in Dunn, the Appeals Court refused to consider plaintiff’s subjective belief as to why she was at the cemetery at the time of her accident. Instead, focusing on the objective circumstances surrounding her activities on the property, the Appeals Court held that, because there was no evidence that plaintiff was at the cemetery to conduct any type of business, she was lawfully in the cemetery as a recreational user.

The Dunnand Dami-Hearl decisions are indications that the Appeals Court intends to expand the scope of the Recreational Use Statute. In doing so, the Court is, among other things, giving credence to the Statute’s laudable purpose, i.e., opening space to the public for recreational and other statutory uses. Both decisions should encourage practitioners to be more aggressive in raising defenses under the Recreational Use Statute.