Recreational Use

Why would anybody open-up their land for others to use if they could end-up getting sued for injuries? Let me save you some time; they wouldn’t. But this creates a problem. Towns, cities, and wealthy individuals own parks, sports fields, lakes, hiking trails, etc. We all benefit from being able to use these lands and facilities. If the landowners refuse to let us use their land because they’re afraid of being sued for injuries, then the land will be wasted and we all suffer.

With this dilema in mind, the Massachusetts Legislature enacted the Recreational Use Statute, G.L. c. 21, § 17C. The Recreational Use Statute states:

“Any person having an interest in land including the structures, buildings, and equipment attached to the land, including without limitation, railroad and utility corridors, easements and rights of way, wetlands, rivers, streams, ponds, lakes, and other bodies of water, who 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, … 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 wilful, wanton, or reckless conduct by such person.” G.L. c. 21, § 17C.

With the protection of the Recreation Use Statute, landowners can allow people to use their land as long as they don’t charge a fee and don’t act in a wilful, wanton, or reckless manner.

This statute is very straight forward and easy to understand…until you get lawyers involved. In the case of Edward Marcus v. City of Newton, SJC-10984, slip op. (Mass. May 7, 2012), The Massachusetts Supreme Judicial Court faced the question of “what is a fee?”

In the Summer of 2007, Edward Marcus was injured while playing softball on a field owned by the City of Newton. As a result of his injuries, he sued Newton for their alleged neglegence. Newton filed a Motion for Summary Judgment asking the Superior Court to dismiss the case because they claimed they were immune under the Recreational Use Statute. A Judge of the Superior Court denied Newton’s motion and Newton appealed. Id.

Edward Marcus argued that Newton wasn’t entitled to immunity by the Recreational Use Statute because he paid a fee and the Supreme Judicial Court agreed. Because Edward Marcus paid $80 to an independant organization, who in turn paid $1,200 to the City of Newton for a league permit and the right to use the sports field, the City of Newton had in fact collected a fee and thus, was not entitled to the protection of the Recreational Use Statute. It did not matter that Edward Marcus didn’t pay his fee directly to the City of Newton. Id.

So what did we learn from this case? If you charge a fee for people to use your land, you should be using those fees to make sure your land is safe. If you don’t charge a fee, you’ll most likely be entitled to the protection of the Recreational Use Statute.

A Case to Expand Social Host Liability?

In, “Hosting A Party? Make it BYOB!,” Tort Perform discussed the recent case decided by the Massachusetts Supreme Judicial Court where they faced the possibility of expanding social host liability. Of importance in Juliano et al. v. Simpson et al., SJC-10843, slip op. (Mass. February 21, 2012), was the fact that the social host in that case was underage and the individual who drove away from the party had supplied his own alcohol. Although the SJC declined to expand social host liability, the two concurring opinions expressed a desire or a possible interest to change their stance in the future.

Hon. Margot Botsford stated in her concurring opinion,

“… it is prudent to give the Legislature time to address the issue raised in this case. … At the same time, we should provide a message that if the Legislature does not act within a reasonable amount of time, when the appropriate cases arises we are inclined to change our common-law rule governing social host liability.” Id.

Judge Botsford also stated,

“The breadth of the legislative response to underage drinking and driving offers specific support for the position that we can and should be prepared to expand our common-law rule of social host liability to include a case where an adult knowingly makes available her home or other location under her control for underage drinking.” Id.

Hon. Ralph D. Gants, joined by Chief Justice Roderick L. Ireland, opined in his concurring opinion,

“I differ with the court in that I would limit our holding to an underage host, and would wait until we are presented with a case where a social host who has reached legal drinking age knowingly allows underage guests to use his or her home to drink alcohol before we decide whether to extend our holding to all social hosts.”

Fast-forward just one month and we’re presented with “Hingham Mother Arrested for Hosting Underage House Party.” The conduct alleged by this article seems to be exactly the scenario Judge Botsford, Judge Gants and Chief Justice Ireland foreshadowed.

You might be thinking, one month isn’t enough time to allow the legislature to act. And I agree, one month isn’t enough time, but keep in mind that the house-party that gave rise to the recent SJC decision of Juliano v. Simpson happened all the way back in July of 2007. If somebody was injured as a result of the alleged recent conduct in Hingham, it could be five years before the case reaches the SJC; more than enough time for the legislature to act.

The concurring opinions of Judge Botsford, Judge Gants and Chief Justice Ireland were a clear call to the Massachusetts Legislature to address social host liability. The SJC may now have the case needed to expand the common law liability if the legislature does not act.

Another point of interest, whether it be coincidence or not, the Milton Patch’s article cited above, alleged,

“Officers met [the host of the party] at the door and she admitted she was having a party for her daughter, a student at Thayer Academy, police said”

The catalyst for the Massachusetts Legislature to amend the criminal statute in 1996 was a house party hosted by the father of a student who had just graduated from Thayer Academy.

What do you think? Should the Massachusetts Legislature expand social host liability? Voice your opinion in a comment below.

Hosting a Party? Make it BYOB!

On the same day in 1986, the Supreme Judicial Court decided two cases that changed the responsibility of social hosts. Prior to 1986, Massachusetts had operated under the common-law rule “…that an intoxicated person’s negligent operation of a motor vehicle while intoxicated is the sole proximate cause of subsequent injury, which in many jurisdictions had foreclosed claims against social hosts.” Juliano et al. v. Simpson et al., SJC-10843, slip op. (Mass. February 21, 2012).

After the SJC’s decisions in McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152 (1986) and Langemann v. Davis, 398 Mass. 166 (1986), Massachusetts began to recognize a new common-law cause of action against social hosts for injuries “to third parties caused by the drunk driving of a guest only in cases where the host had actually served alcohol or made it available.” Id.

On July 2, 2007, a teenager hosted a party at her father’s house while her father was away. The guests of the party, also teenagers, supplied their own alcohol. After consuming “…one or two mixed drinks and six or seven of the cans of beer that he had brought to the party,” one of the guests drove away from the party along with a passenger. See id. The driver subsequently crashed into a utility pole. “An accident reconstruction specialist estimated that the vehicle had been traveling ninety-six miles per hour on a street with a posted speed limit of thirty miles per hour.” Id. at Note 12.

The passenger, who was injured in the crash, sued the teenaged-host of the party, claiming she was “negligent for knowingly allowing [the driver] and other underage persons to possess alcohol on property under her control….” A judge in the Superior Court dismissed the claim and the plaintiff appealed to the SJC, asking the Court “…to enlarge the scope of social host liability under our common law by extending a duty of care to an underage host who does not supply alcohol to underage guests, but provides a location where they are permitted to consume it.”

After a careful consideration of case history, legislative history, public policy, and existing social values and customs, the SJC “decline[d] to expand the common-law duty of social hosts.” Id.

Although the SJC declined to expand the common-law duty, a few very interesting points were raised in two separate concurring decisions. The first was authored by Hon. Margot Botsford, where she essentially dismissed the public policy and existing social values and customs arguments. Instead, Judge Botsford found that the Legislature has heavily regulated alcohol consumption and the alcohol industry and “it is prudent to give the Legislature time to address the issue raised in this case.” Id. However, Judge Botsford goes on to state,

“At the same time, we should provide a message that if the Legislature does not act within a reasonable amount of time, when the appropriate cases arises we are inclined to change our common-law rule governing social host liability.” Id.

The second concurring opinion was authored by Hon. Ralph D. Gants and joined by Chief Justice Roderick L. Ireland. As with Judge Botsford, Judge Gants and Chief Justice Roderick agree with the Court’s declining to expand the common-law duty, however, they disagreed with the Court’s broad holding. Judge Gants wrote,

“I differ with the court in that I would limit our holding to an underage host, and would wait until we are presented with a case where a social host who has reached legal drinking age knowingly allows underage guests to use his or her home to drink alcohol before we decide whether to extend our holding to all social hosts.”

Based upon a reading of these concurring decisions, if the Legislature fails to act in a reasonable amount of time and instead of a teenager hosting the party, a person over the age of 21 hosts a party where teenagers are allowed to consume alcohol and subsequently injure a third-party, the SJC may eventually expand the social host liability.

Calculating 93A Damages

Consumers in Massachusetts have long been protected by the strength and force of M.G.L. c. 93A, the Massachusetts Consumer Protection Statute. The statute makes “unfair methods of competition and unfair or deceptive acts or practices” in Massachusetts unlawful. Companies that are found to be in violation of the statute can face penalties in the amount of triple the consumers’ damages and, my favorite part, responsible for the consumers’ attorney’s fees.

Sending a company a 93A letter can be a very effective way of resolving a consumer dispute because the company is far better-off settling the dispute, rather than forcing litigation and face paying triple the damages; plus attorneys’ fees. A few years ago, a friend of mine did not realize the airline on which he was planning to travel required him to bring paper tickets with him to the airport. Even though the airline had a record of his ticket and clearly knew he was the correct passenger, they forced him to buy a second ticket and refused to refund the value of the first ticket. After receiving a 93A letter, the airline quickly refunded his money.

The Supreme Judicial Court in Marcia Rhodes et al. v. AIG Domestic Claims, Inc., et al., SJC-10911, slip op. (Mass. February 10, 2012), was faced with the question of how to calculate damages for a 93A violation in the handling of a tort case.

In January of 2002, Marcia Rhodes was catastrophically injured when an eighteen-wheel tractor-trailer crashed into the rear of her vehicle. The impact fractured Ms. Rhodes’ spinal cord, fractured a number of ribs, and left her with permanent paraplegia. More than two and a half years later, Ms. Rhodes (along with loss of consortium claims by her husband and daughter) obtained a jury verdict in the amount of $11.3 million. See id.

Ms. Rhodes, her husband and daughter, all brought 93A claims against the insurance companies for “failing to effect a prompt, fair, and equitable settlement…” of a claim in which liability became reasonably clear as required by M.G.L. c. 176D, §3(9)(f). The case went to trial in the Massachusetts Superior Court and the judge found the primary insurer was not liable for unfair settlement practices, but found the excess insurer to have engaged in wilful and knowing violations of 93A and 176D. The judge found the plaintiffs’ damages to be the “loss of use” (more commonly known as interest) of the money they received after trial. Due to the fact that the insurer’s violation was wilful and knowing, the judge awarded double damages. See id.

The plaintiffs appealed to the Appeals Court and then sought further appellate review to the Supreme Judicial Court (hereinafter “SJC”). The SJC’s holding focused completely on a straight interpretation of the statute and more particularly, a section of the statute added by amendment in 1989. The SJC noted, “There is general consensus among courts and commentators that the 1989 amendment was intended to increase the potential penalties for insurers who engaged in unfair claim settlement practices….” The significant portion of the 1989 amendment is contained in M.G.L. c. 93A, § 9(3), which states the following:

“‘[I]f the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the court finds that the use of employment of the act or practice was a willful or knowing violation of [c. 93A, § 2]…. For the purposes of this chapter, the amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence, regardless of the existence or nonexistence of insurance coverage available in payment of the claim’ (emphasis added).”

Based upon the language of the statute emphasized above, the SJC held that rather than doubling the plaintiffs’ “loss of use,” the Superior Court should have doubled the entire value of the $11.3 million judgment. In a world where insurance companies are being bailed out by the government and being allowed to steam-roll consumers, I see this case as a dramatic victory for the underdog. Unfortunately, in the conclusion, the SJC went on to suggest the Legislature provide an amendment in the future to lessen the compensable damages under 93A or to develop “a special measure of punitive damages to be applied in unfair claim settlement practice cases brought under c. 176D, § 3(9)…” See id.

M.G.L. c. 93A, M.G.L. c. 176D, and the 1989 Amendment were created, combined and fine-tuned to impose heavy penalties on insurance companies who engage in unfair settlement practices and in turn, to encourage prompt settlement practices. Despite the plain language of the statutes and amendment, an insurance company still chose to knowingly and wilfully violate 93A and 176D against a woman who was rendered a paraplegic and her devastated family. I see absolutely no reason why the Legislature should waste a second of its already overloaded time to help companies that would knowingly and wilfully commit such acts. A far better solution is for insurance companies to simply act in a lawful manner.