Massachusetts Appeals Court, No. 13-P-354, April 3, 2014: Recreational use law from liability even when defendant gets economic benefit; no consumer protection liability either.
Linda Patterson brought suit after she was injured from a fall inside a historic church while she toured it. The Pattersons claimed the recreational use statute, M.G.L. c. 21, § 17C (current version at https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter21/Section17C), did not bar liability on her negligence claims, and that she was entitled to remedies for unfair and deceptive trade practices under the consumer protection act, M.G.L. c. 93A. The trial judge found against the Pattersons and they appealed. The appeals court upheld the trial court judgment.
The injury happened during a tour of the church offered by a nonprofit foundation (foundation), organized to put on tours and historical programs at the church. The foundation has a memorandum of understanding (MOU) with the church. Under the MOU the foundation pays the church for the right to operate at the church. The foundation raises revenue from its gift shop, from fees for specialized tours to exclusive areas of the church, and from other fundraising efforts. Neither the Pattersons nor anyone in their sightseeing group were charged a fee to enter or tour the church. Mrs. Patterson attributed her fall to the difference in height between the floor of an aisle and the floor of a pew and the painting of the step the same color as the aisle carpet.
The only recreational use statute issue on appeal was whether the foundation lost the protections of the statute because it “impose[d] a charge or fee” under the statute. The Pattersons asserted that the foundation lost that protection because it generates revenue and pays the church an annual fee, arguing that a defendant who reaps an economic benefit from property utilized by the public free of charge is barred from relief under the statute.
The court found that the foundation’s other income and financial relationship with the church did not create an indirect fee for the Pattersons’ to enter or tour the church. This distinguished the facts in this case from precedents in other cases in which an indirect fee was found to exist, thereby depriving the defendants in those cases from the statute’s protection. The court found that the Pattersons made no contribution, direct or indirect, to the payments the foundation made to the church, and that would be so even if it were true that the church would not have been open to the public free of charge in the absence of the foundation’s annual payment to it.
(The recreational use statute applies under certain conditions to property used for recreational, educational, religious, or charitable purposes. The court said the undisputed facts showed that the situation met those conditions because the foundation has an interest in the land, Mrs. Patterson was injured when engaged in a recreational activity on that land, and the foundation did not “impos[e] a charge or fee” for the injured plaintiff’s use of the land. Under the statute a person engaged in a recreational activity is owed “only the standard of care applicable to trespassers: that is, landowners must refrain from willful, wanton, or reckless conduct as to their safety,” and not the duty of reasonable care owed other lawful visitors. On appeal the Pattersons did not dispute that the high volume of tourism activity does not disqualify the Pattersons’ visit from being considered a “recreational use” or that visiting a tourist destination while on vacation is a “recreational activity,” or that the foundation’s actions or omissions rose to the level of wilful, wanton, or reckless conduct.)
The Pattersons asked the court to interpret the legislative history of the recreational use statute to exclude the foundation and church from the statute’s protection the foundation they generate revenue on the church property. The court held that the purposes and requirements of the recreational use statute are sufficiently clear on its face that it would be inappropriate for the court to delve into the legislative history.
The court also rejected the Pattersons’ claim that because the church was not in compliance with certain accessibility requirements when Mrs. Patterson was injured, the church and the foundation are liable under the Massachusetts Consumer Protection Act, M.G.L. c. 93A. The court said there was nothing in the record to support the contention that, whatever negligence there might have been, it was or resulted in an unfair or deceptive act or practice. The implication was that in order for noncompliance with the accessibility requirements to be or result in an unfair or deceptive act or practice, the result had to be intentional, or there had to be fraud or deceit. The court found the foundation and church had not been fraudulent or deceitful by encouraging church visitors to sit in the pew boxes.
Lastly the court held that the accessibility regulations are not directed at the protection of consumers in the marketplace, but instead regulate building accessibility, and therefore the failure to comply with them did not violate the Attorney General’s Chapter 93A Regulations (940 CMR § 3.16(3)).
The decision is available at http://www.universalhub.com/2014/linda-patterson-and-another-vs-christ-church-city and until April 17 at http://weblinks.westlaw.com/result/default.aspx?action=Search&cnt=DOC&db=MA-ORSLIP&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=1&origin=Search&query=TO%28ALLAPP+ALLAPPRS%29&rlt=CLID_QRYRLT6275833401374&rltdb=CLID_DB6149333401374&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=MAOR1.0&service=Search&sp=MassOF-1001&srch=TRUE&ss=CNT&sskey=CLID_SSSA2449333401374&sv=Split&vr=1.0. It may eventually be available at http://masscases.com/name.html by searching for “Patterson”.