Property and casualty insurers should be aware that a landowner cannot be held liable for personal injuries sustained on recreational land unless the landowner imposes a fee or engages in willful, wanton or reckless conduct.

Massachusetts General Laws Chapter 21, §17C provides in pertinent part:
Any person having an interest in land…, who lawfully permits the public to use such land for recreational, conservation, scientific, educational, environmental, or charit-able purposes without imposing a fee therefor, … shall not be liable for personal injuries or property damage sustained by such members of the public, … while on said land in the absence of willful, wanton, or reckless conduct by such person..

The Supreme Judicial Court has clarified that this section applies equally to publicly and privately owned land. Seich v. Town of Canton, 426 Mass, 84,96, (1997).

In determining whether to apply § 17C, the primary issue is whether the defendant imposed "a charge or fee therefor." The purpose of the statute "is to encourage free access to the public for recreational purposes … ." DiMella v. Gray Lines of Boston, Inc., 836 F 718 (1988). "Recreation" includes "not only active pursuits (playing basketball and the like … but also passive pursuits, such as watching baseball, strolling in the park to see animals, flowers, the landscape architecture, or other sights, picnicking, and so forth." Catanzarite v. Springfield, 32 Mass. App. Ct. 967 (1992).

If a landowner qualifies for the recreation use protection, the landowner may not be held liable unless his conduct is determined to be willful wanton or reckless.

There are two characteristics that distinguish willful, wanton or reckless conduct from mere negligence. The defendant must knowingly or intention-ally disregard an unreasonable risk and the risk, viewed prospectively, must entail a "high degree of probability that substantial harm would result" to the plaintiff. Desmond v. Boston Elev. Ry..,319 Mass. 383 (1994).

Massachusetts Courts have established a high threshold for establishing willful, wanton or reckless conduct. The question of whether conduct was reckless is based on the same test whether the alleged conduct is the basis for liability in tort or as the basis for guilt of the crime of involuntary manslaughter. See Commonwealth v. Welansky, 316 Mass. 383, 398 55 N.E. 2d 902 (1944).

Reckless failure to act involves an intentional or unreasonable disregard of a risk that presents a high degree of probability that substantial harm will result to another. The risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable and reasonably foreseeable conse-quence of the defendant’s election to run that risk. Reckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind. See Commonwealth v Catalina 407 Mass. 779, 789, 556 N.E.2d 973 (1990).

The recreational use statute allows landowners, and their insurers, to prevail in claims brought by participants, referees and spectators who are injured while engaging in recreational activities. The statute applies to any member of the public who is injured while attending a recreational event where no admission is charged.

For example, in Pierce v. Diocese of Worcester, the court allowed a defendant’s motion for summary judgment where a referee at a girls’ high school soccer game sued the school that hosted the game after he tripped and fell in a large hole on the soccer field.

In Seich v. Town of Canton, the court upheld a judgment for the defendant where a spectator slipped on an unnatural accumulation of snow and ice while attending his daughter’s basketball game.

The recreational use statute is a complete defense to a variety of tort claims and should not be overlooked when investigating claims.