In recognizing that vast woodlands in Maine are in private hands, the State created a law that provides legal protection to those landowners who allow free access to those lands for recreational purposes. The law known as the “recreational use statute” (14 M.S.R.A. § 159-A) protects a landowner from liability if a person is injured while recreating on the landowner’s property. Allowing access to large areas of timber lands in the northern part of the State may have been the impetus of the law, but it is not limited to those areas. Overall the law protects landowners in the way it was written and amended, and also how it has been applied in the courts.
Provisions of the Statute
The law provides that as long as the landowner is not charging for the use of their land when used for recreational purposes they will generally not be liable to anyone who might be injured while on the property. The intent of the law is to limit the duty that a landowner may have to those using their land to keep those users safe.
With most laws, the terms and definitions are crucial in determining the scope of the protections it provides. The two key definitions in this statute are first the types of real property that are covered, and second what activities are covered.
The law applies to land and water on private property, specifically:
“improved and unimproved lands, private ways, roads, any buildings or structures on those lands and waters standing on, flowing through or adjacent to those lands. … [including] railroad property, railroad rights-of-way and utility corridors to which public access is permitted.”
The Statute also extends the protection to not only the specific owner of the land, but also to a “lessee, manager, holder of an easement or occupant” of the land.
The next definition provides the types of activities are included under the law. The statute broadly covers recreational and harvesting activities,
“including, but not limited to, hunting, fishing, trapping, camping, environmental education and research, hiking, recreational caving, sight-seeing, operating snow-traveling and all-terrain vehicles, skiing, hang-gliding, dog sledding, equine activities, boating, sailing, canoeing, rafting, biking, picnicking, swimming or activities involving the harvesting or gathering of forest, field or marine products”
However the harvesting activities may not include “commercial agriculture or timber harvesting,” which would not be considered recreational.
A key component of the law provides that the owner of the land cannot be protected by the statute if the landowner charges money for the use of the land. However, this provision was limited in 1995 when the statue was amended to add that even with payment, if the land is not used “primarily for commercial recreational purposes, and … the user has not been granted has not been granted the exclusive right” to use the land for recreational purposes, the landowner can evoke the statute as a defense even if there was payment involved. The cases discussed below show how the change in the law greatly broadened the protection for landowners.
Another crucial provision in the statute provides that in the event of litigation, the successful party may recover not only the costs of litigation, but also attorney’s fees from the other side. This means that anyone injured on private land needs to be very careful in deciding to bring a lawsuit. The statute provides a high barrier to success, and it may end up costing a significant amount of money the landowner is successfully able to evocke the defense the statute provides.
The courts have consistently ruled in favor of landowners in lawsuits as this statute provides a broad defense in instances when someone is injured while on private land. When the statute can be used as a defense, the plaintiff must show that the landowner showed a “a willful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity.” In situations where, for example a timber company owns hundreds or thousands of acres of land, the company cannot be expected to know of all the possible dangers on their land.
The few cases where the injured party has tried to get past the defense the statute provides have been when there was some payment made related to the use of the land. The two cases discussed below are examples of how the law protects landowners, even when payment was made for use of the land.
In the first case from 1989 (Robbins v. Great Northern Paper Co.) George Robbins had leased a portion of Great Northern’s land to have a temporary camp. While driving to the camp on Great Northern’s land Robbins drowned while crossing a stream that was flooded (as a result of Great Northern’s release of water from their dam). The key issue before the court was whether or not the lease payment for the camp was considered payment under the statute. In a split decision the court found that the lease payment only entitled Robbins the right to build the camp, but no other benefits beyond what the general public was entitled.
A second case from 1996 (Hafford v. Great Northern Nekoosa Corp.) demonstrates how the 1995 changes to the law protected Great Northen Nekoosa from liability. In that case there was fee paid for access to Great Northern Nekoosa’s land. While travelling on a road on the company’s land, the plaintiff was involved in an auto accident caused in part by the fact that part of the road had been washed away. The court ruled that despite there being a payment to use the road pursuant to recreational activities, because Great Northern Nekoosa’s land was not used primarily for recreational uses and the injured party did not have exclusive rights to use the land, the company was able to rely on the defense the statute provides.
It is evident that the 1995 changes in the law were meant to address the concerns the court had based on the split decision in the 1989 case (where three of the justices would not have allowed the statute’s defense). While the 1995 changes in the law has not ended lawsuits based on injuries suffered on private land, they are uncommon and typically not on undeveloped land.
Overall the law serves its purpose well in that lets landowners allow people onto their land without being concerned with lawsuits. Because of the protections it provides thousands of acres of private land continue to be open for use by the general public.
Landowners do not have to worry about lawsuits when they let people on their land, and the public benefits because it keeps vast areas of land in Maine open for recreational use.
Revised July 2015
Download Free Article here: Recreational-Use-Statute-July-2015.pdf