What is Recreational Use Immunity?

Both Massachusetts and New Hampshire offer residents and visitors a wide range of outdoor activities and beautiful scenery. You can go from a morning wilderness hike to an afternoon at the beach. But, what happens if you’re injured on a nature trail or sandy shore? The answer may surprise you.

You probably know that landowners generally have an obligation to maintain their property in reasonably safe condition for visitors to the land or structures, though the exact extent of that duty may depend on the reason the person is on the property. However, both Massachusetts and New Hampshire have statutes granting immunity to landowners who allow the public to use their land for recreational purposes without charge.

The two statutes and the way they have been interpreted by state courts are slightly different.

Recreational Use Immunity Does Not Apply When You Pay for Access

If you pay admission to enter a private beach or to hike on someone’s land, recreational use immunity doesn’t apply. The same is true if the land is accessible to you only because you are doing other business with the landowner, such as a lake or hiking trail on resort property. In these situations, regular premises liability law applies.

In fact, a governmental unit charging for use of the land isn’t covered by recreational use immunity. However, it’s important to note that state laws place limitations on the liability of governmental entities. Where the governmental unit does have potential liability, the time to pursue that claim may be shorter than it would for another type of injury claim. And, there may be additional processes required. If you have been injured on public land or have another possible claim against a city, county, or the state government, it is especially important to talk with an experienced personal injury attorney as soon as possible.

Landowners May Be Protected Even if They Engage in For-Profit Activities

While a landowner that charges for access to the land for recreational use is not protected by recreational use immunity, a landowner may engage in other for-profit activities on the land and still be protected as to certain types of visitors. For example, a landowner who made beachfront property available for free to the general public to swim and sunbathe but charged a fee to dock a boat could still be immune from liability to those using the beach to swim. Or, a public park that offered an ice cream stand on the property but did not charge admission to the park would likely be protected despite the fact that it offered guests the option of purchasing ice cream.

Limits on Recreational Use Immunity

“Immunity” suggests that a landowner making the property available for recreational use without charge is never liable for any injury that occurs on the land. That’s nearly true, but there are some exceptions.

New Hampshire Recreational Use Immunity

Two New Hampshire statutes provide recreational use immunity.

RSA 212:34 provides that:

A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except as provided in paragraph V.

Since a negligence claim requires establishing that the defendant had a duty of care to the plaintiff, this statute removes an essential element. The paragraph V exceptions include injuries to a person who paid a fee to use the land, wanton or malicious failure to warn against a danger, and intentional acts by the landowner.

RSA 508:14 says:

An owner, occupant, or lessee of land, including the state or any political subdivision, who without charge permits any person to use land for recreational purposes or as a spectator of recreational activity, shall not be liable for personal injury or property damage in the absence of intentionally caused injury or damage.

Massachusetts Recreational Use Immunity

The Massachusetts recreational use immunity statute provides that a property owner shall not be liable for personal injuries or property damage sustained by members of the public, including minors, if the landowner:

• Lawfully permits the public to use such land for recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes
• Without imposing a charge or fee therefor, or who leases such land for said purposes to the commonwealth or any political subdivision thereof or to any nonprofit corporation, trust or association

Like New Hampshire law, the Massachusetts statute includes an exception for wilful, wanton, or reckless conduct.

Massachusetts courts have also interpreted the statute to apply only when the use is open to the general public, and does not extend to private events.

Immunity Issues Can Be Complicated

Though landowners who make their premises publicly available for recreational use enjoy immunity from many lawsuits, you shouldn’t automatically assume you don’t have a claim if you were injured on freely accessible property for recreational purposes. It would be impossible to anticipate and spell out all of the possible exceptions in advance. For example, courts have held that:

• A landowner hosting a paid event was not immune from a personal injury suit, even though the injured person was among a group (spectators) allowed to enter the property without charge, and
• A property owner that opened land to the general public for free recreational use was not immune from suit by a woman who was injured by rock falling from a wall on the property onto adjoining property

The best way to determine whether you may have a premises liability claim is to consult an experienced injury lawyer. Attorney Kevin P. Broderick offers free consultations to injury victims in Massachusetts and New Hampshire. To learn more, call 978-459-3085.