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All 50 states have some version of a recreational use statute encouraging private landowners to open up private lands to recreational users. The laws often do this by reducing the liability that a landowner could face if a recreational user is injured. To qualify for the protection of the recreational use statute, a landowner typically needs to make his/her property available to the public free of charge (although some states may allow for charging a nominal fee). The Court of Special Appeals of Maryland recently interpreted the state’s recreational use statute to exclude social guests invited on personal property for a private party.
Recreational Use Statute
I have written about recreational use statutes (RUS) in the past; see here. In Maryland, the RUS generally applies when a landowner opens up property for recreational or educational uses for no charge. Typically, not included in the definition of charge is a share of game, fish, other products of the recreational use, benefits to the land arising from the recreational use, or contributions in kind or services to promote the management or conservation of resources on the land. A landowner who makes the property available for recreational use free of charge will have a lower duty of care owed to the user in warning of a dangerous condition, use, structure, or activity.
Background
This case here involves a property in Frederick County known as Penn Shop Farm and owned by Penn Shop Farms, LLC. Mr. Ross controls Penn Shop Farms, LLC, and the property was used to store equipment and included an all-terrain vehicle (ATV) course. Penn Shop Farm was not open to the public, had fencing around it with a gate which included a chain and locks to allow entry, and contained signage that read “Keep Out,” “No Trespassing,” and “Posted: No Trespassing Keep Out.”
Mr. Ross opened the property up in 2019 for a social event known as “Cookout, Bikes, and Music” for his family and friends from his church, and encouraged them to bring ATVs to use on the course. One of those invited was Mr. Martinez, who knew Mr. Ross through their church. At the party, Mr. Ross gave Mr. Martinez an ATV to ride on the course. While riding, Mr. Martinez went over the handlebars. The ATV landed on him, causing him to become a quadriplegic. Based on the injuries, Mr. Martinez sued Mr. Ross for negligence.
Before the circuit court, Mr. Ross moved to have the case dismissed based on the immunity provided by the state’s RUS. Mr. Martinez argued that because Mr. Ross had not made his property open to the public, the RUS did not apply. The circuit court ruled in favor of Mr. Ross, finding that he made his property available to the public by inviting the guests to it for the event and was entitled to the protection of the law. Mr. Martinez appealed.
Appeal
On appeal, the Court of Special Appeals interprets the RUS for the first time. The question before the court on appeal: does the RUS apply to a landowner who generally does not open land to the public for recreational or educational use, and claims its protection for a claim arising from the use of the land by an invitation-only party?
The court looked at the duties of care owed to a guest. If the RUS applies, then the owner would not need to warn a user of a dangerous condition, use, structure, or activity. If the law does not apply, then Mr. Ross would owe a duty of care to Mr. Martinez as a social guest or to “exercise reasonable care to make the premises safe for the guest or to warn the guest of known, dangerous conditions that the guest cannot reasonably discover” (Martinez, at 3).
Maryland based its RUS on a model law developed in the 1960s by the Council of State Governments to encourage landowners to make more land available to the public for recreational uses. In reviewing decisions from other states, the court points out that many different state courts have cited the social guest problem created by the model RUS. Which standard do the courts use when a landowner opens property up for a private party, the RUS standard, or the social guest standard?
Based on a review of these other states’ decisions involving the model RUS, the court determines that the majority of states have found that to get the RUS protections, the landowner must open the property up to all and not restrict access to a limited class of individuals. Courts in Utah, Kansas, Delaware, Ohio, Illinois, Louisiana, Minnesota, Wisconsin, and Rhode Island have all found that the landowner has to open the property up to the public to get the benefits of the RUS limited liability protections.
Looking at these prior decisions of other states, a landowner would not have to open the property up 24 hours a day, seven days a week, 365 days a year, to gain the limited liability protections. The court highlights that a landowner could increase the RUS protections by opening the land up to cross-country skiers in the winter or to the general public for a hunting season and still be covered by the law.
Looking at the facts in the case, the Penn Shop Farm property is not open to the public. The property includes a fence, a gate, and signs warning the public not to enter. The event hosted was not open to the general public but only a limited group. Martinez was not a stranger to Ross but a social guest invited to the property. The court reverses the circuit court’s decision.
Why Care?
As I often point out in some of these posts, this is a decision of the Court of Special Appeals and could be appealed to the Court of Appeals. This decision might not be the final word, but it is the first to interpret the state’s RUS. The ruling helps provide landowners clarity in what needs to happen to be covered by the RUS law. We might require additional clarity, however, to determine all the situations which could fall under the law.
Based on this decision, landowners would need to open their land up to the general public to gain the protections of the law. For example, a farmer opens a pasture up to FFA and 4-H programs to conduct pasture walks for students to learn pasture management practices. A landowner opens up property for the general public to access a public hiking trail.
The issue from this decision that will take time to determine is how a court would handle a property posted with no trespassing signs. For example, if a farmer had no trespassing signs posted but still opened the property up for county educators to use with classes and other educational opportunities, and someone gets hurt on the property, would the farmer be covered? The answer is not clear and will take additional rulings to provide further guidance.
Based on this court ruling, landowners should consider how they are allowing the general public to use their land as the courts determine if the RUS may apply. Landowners should also talk to insurance providers and possibly an attorney to determine if liability has changed based on this ruling.
References
Martinez v. Ross, No. 2374, 2020 WL 2070368 (Md. Ct. Spec. App. April 29, 2020).