Charging Fee at Transfer Station Precludes Application of the Recreational Use Statute, While Not Paying the Fee Makes Injured Plaintiff a Trespasser


Charging Fee at Transfer Station Precludes Application of the Recreational Use Statute, While Not Paying the Fee Makes Injured Plaintiff a Trespasser: Gill v. Town of Winchester, MICV2009-01625 (Mass.Super.Ct., Oct. 29, 2010)

PD&P recently obtained summary judgment for the Town of Winchester in the case of Gill v. Winchester. Gill claimed injury as a result of the Town’s negligence after slipping and falling on a piece of Plexiglas, while unloading her recyclables at the Town’s Transfer Station on March 4, 2008. Although the Town charged an annual fee for use of the station, Gill, who had always paid the fee in past years, had “forgotten” to pay the fee for 2008. Discovery revealed that the Town took several measures to enforce the fee requirement, such as a by-law imposing fines, lockable gates, a permit check point, random police details, surveillance cameras and conspicuous signage. It was undisputed that there was no police detail and no one manning the check point at the time of plaintiff’s fall.

The Town moved for summary judgment, arguing that plaintiff’s negligence claims were unavailable under two alternative theories: 1) the Recreational Use Statute (M.G.L. c. 21, § 17C) barred the claims because recycling is an environmental, conservational and/or ecological pursuit and plaintiff had not paid a fee to use the Transfer Station; and 2) plaintiff’s permission to use the Transfer Station was conditioned upon payment of a fee and, because she had not paid the fee, she was a trespasser. Under either theory, plaintiff was not owed a duty of reasonable care; rather, the Town’s only duty was to refrain from engaging in willful, wanton or reckless conduct. With respect to its Recreational Use argument, the Town contended that the focus must be on whether the injured party actually paid a fee to use the property. Alternatively, a plaintiff must be equitably estopped from arguing that she enjoys a greater duty of care after side-stepping the requisite fee. Plaintiff countered that the Recreational Use Statute did not apply because the Town charged a fee. Actual payment, she insisted, was not the determinative factor. In opposition to the Town’s second argument that a non-paying user is entitled to no more protection than a trespasser, plaintiff demurred, claiming the Town passively acquiesced to her use of the property without a permit by not manning the check point or providing a police detail.

The Superior Court rejected the Town’s defense under the Recreational Use Statute, holding that application of the statute depends on whether the landowner charges a fee for the use of its property, not whether the fee is actually paid. The Court agreed with the Town, however, that the undisputed facts rendered the plaintiff a trespasser. Plaintiff’s “passive acquiescence” argument failed, reasoned the Court, because the Town took considerable measures to deter illegal dumping and because plaintiff did not claim an objectively reasonable belief that she could use the Transfer Station without a permit. Her testimony was that she knew she needed a permit, but simply forgot to obtain one.

We disagree with the Superior Court that application of the Recreational Use Statute turns on the “charge” of a fee rather than the “payment.” This construction effectively increases the duty of care owed to a person who side-steps a lawful entrance fee in order to use the landowner’s property for recreational, environmental, conservation, etc. purposes. The Court’s endorsement of the trespass argument, however, provides an alternative layer of protection for landowners under such circumstances. And, in the end, the legal effect may well be the same.

Published in Developments in Municipal Law Fall 2011 Newsletter.