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"Recreational immunity" may not Protect a Landowner or a Contractor from Lawsuit

In many states, landowners and their agents cannot be sued for deaths or injuries that occur on property they have opened up to the public for recreational activities like swimming, hiking, fishing, camping or horseback riding. "Recreational immunity," as it is called, only applies if the landowners open up the property to the public for free of charge and does not apply to gross negligence claims. In Massachusetts, "recreational immunity" is governed by G.L. c. 21 ยง17C.

The three most important factors analyzed by a court when determining if the statute applies to bar liability are: (1) the payment of any fees; (2) any limitations on public access; and (3) the nature of the public's use of the land. The charging of a fee for public recreational use will prevent application of the statute to bar liability. However, recently Massachusetts courts have distinguished fees from donations or reimbursements for marginal costs. Likewise, in order to receive the protection of the statute, access must be "free and equal" access for recreational use to all members of the general public. There will not be immunity if the property is only open to a small portion of the general public. Finally, what constitutes a "recreational activity" is fairly broad and has been held to include activities such as walking or bike riding as "inherently" recreational regardless of the reasons the individual engaged in the activity.

A landowner who fails to meet the requirements for application of "recreational immunity", he or she may be liable for injuries that occur on their property. Likewise, a third party, such as a contractor, who is on the land and is not subject to the control and direction of the landowner, may not be considered an agent of the landowner and, as such, may be held liable for any injuries they cause.

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