June 16, 2009
MUNICIPALITIES & RECREATIONAL USE STATUTES
By: Meghan Reilly, Legislative Analyst
You asked whether a town would lose its protection under the Recreational Land Use Act if the town charges a fee for use of public baseball fields. Our office is not authorized to give legal opinions and this should not be considered one.
The Recreational Land Use Act gives partial immunity to landowners who make all or a portion of their land available to the public without charge (CGS §§ 52-557f, et seq.). In Conway v. Wilton, the state Supreme Court held that municipalities and their employees are not “owners” under the Recreational Land Use Act (CGS §§ 52-557f) and are not entitled to immunity from liability provided by that act for injuries sustained on land they make available to the public without charge for recreational purposes. As a result, a town's decision to charge a fee for the use of the fields would not change the town's liability under this law.
RECREATIONAL LAND USE ACT
Under CGS § 52-557g, landowners who make all or part of their land available to the public without charge, rent or fee or other commercial service for recreational purposes owe no duty of care to keep the land safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on the land to those entering for recreational purposes. Further, any landowner who invites or permits any person to use his land for recreational purposes without charge, rent, or fee or for other commercial service, does not thereby: (1) make any representation that the land is safe for any purpose, (2) confer upon the person using the land for recreational purposes a legal status entitling him to a duty of care by the owner, or (3) assume responsibility for or incur liability for any injury caused by the owner's act or omission.
The statutory immunity from common law liability does not apply to (1) willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity or (2) injuries suffered in any case where the landowner charges people who use the land for recreational purposes (CGS § 52-557h).
The term “owner” is defined by statute as the possessor of a fee interest, a tenant, lessee, occupant, or person in control of premises (CGS § 52-557f).
CONWAY V. WILTON
In Conway v. Wilton, 238 Conn. 653 (1996), the Supreme Court held that municipalities are not “owners” within the meaning of the recreational use statute. Thus, the town and its employees cannot claim immunity under it. The Court sent the case back to the Appellate Court with direction to send it to the trial court for further proceedings.
The plaintiff, Amy Jeane Conway, sued the town of Wilton, the parks and recreation director (Dixon), and the Connecticut Association of Secondary Schools for injuries she sustained while playing in a state high school tennis tournament sponsored by the association on the Wilton High School tennis courts, which are owned by the town. No fees were charged for the use of the courts.
She alleged that while competing in the tournament, she fell as a result of a defect in the courts and seriously injured her knee and ankle. She also alleged that the cause of her injuries was the negligence of Dixon and his staff in maintaining the courts, and the negligence of the association in failing to inspect the courts to ensure that the town repaired any unsafe conditions and in failing to supervise the tournament.
The defendants asked the trial court to dismiss the case claiming immunity under the recreational use law. In opposing this, the plaintiff claimed that the association had the duty to select a safe place to play and to properly run a safe event and it breached this when it brought her to the defective courts. The trial court agreed with the defendants and decided they were all immune from liability pursuant to the recreational use law.
The plaintiff appealed to the Appellate Court claiming the trial court was wrong because:
1. CGS § 52-557f, as applied to her, was unconstitutional;
2. the association owed her a duty of care other than as a land owner and thus the immunity does not protect it; and
3. Dixon and the town did not make the courts “available to the public” within the meaning of recreational use statute and thus are not entitled to immunity. The Appellate Court rejected all three claims.
They also claimed that an earlier Supreme Court decision, Manning v. Barenz, 221 Conn. 256 (1992), should be overruled. In Manning, the Supreme Court unanimously held that CGS § 52-557g applies to municipalities. The court noted that a municipality clearly comes within the definition of owner contained in CGS § 52-557f and it rejected the arguments of the town of Bloomfield that the court should construe this statute in such a way as to exclude municipalities. The statutory language construed by the court in Manning has not been amended since that decision was handed down. Because the Appellate Court could not overrule a Supreme Court decision, it declined to review that claim.
The plaintiff then petitioned the Supreme Court for certification to appeal. The Supreme Court granted certification but limited it to the following two questions:
1. should it reconsider its holding in Manning v. Barenz; and
2. if it does not reconsider it, did the Appellate Court improperly conclude that the association is entitled to immunity under the statute even though it did not own the tennis courts?
The Supreme Court held that municipalities are not “owners” within the meaning of the recreational use statute. Thus, the town and its employees cannot claim immunity under it. The Court sent the case back to the Appellate Court with direction to send it to the trial court for further proceedings.
The court did not decide the issue of the association's liability. Rather, it remanded that portion of the case to the Appellate Court to consider whether the association is an “owner” under CGS § 52-557f in order to define the scope of its liability.
Justice Katz wrote the majority opinion overruling Manning. She was joined by Justices Borden and Palmer. Chief Justice Peters wrote a dissenting opinion and was joined by Justice Callahan. It is interesting to note that Manning v. Barenz was a unanimous decision written by Justice Covello and joined by Justices Callahan, Glass, Borden, and by Chief Justice Peters. Justices Covello and Glass are no longer on the Supreme Court. The Conway majority, which overruled Manning, consists of two new Justices, Katz and Palmer, and Justice Borden, who changed his mind. Chief Justice Peters and Justice Callahan decided the same way in both cases.
The court reasoned as follows in reaching its decision.
1. The rule of the stare decisis (abiding by or adhering to decided cases) is very important and should be followed whenever possible; thus, overruling an earlier decision, especially a recent one, is a difficult thing for the court to do.
2. Stare decisis should not be honored when a prior decision is seen so clearly as erroneous that its continued enforcement would be unjust. Once a court is convinced of its error it should no longer feel compelled to follow precedent.
3. In Manning v. Barenz, the court held that the clear language of the recreational use statute covered all land owners and thus, if a municipality owned the park or other land in question, it was covered.
4. Although the statute seems clear on its face, the Manning court erred by not looking beyond the statutory language because it is ambiguous and the legislative history and public policy considerations behind the act indicate that it was only meant to affect private land owners.
5. The prior statute to CGS § 52-557f was clearly directed at private land owners (CGS §§ 23-27a - 23-27k).
6. The legislative history of CGS § 52-557f indicates that the purpose was to open privately owned land for public recreational use. (The court cites the remarks of various legislators during the floor debates on the legislation to support its conclusions. See pages 668-672 of the decision. ) There is nothing in the legislative history to suggest that the legislature intended or even contemplated that the act would provide immunity for municipalities.
7. Municipalities already enjoyed some immunity from liability under the common law and other statutes; thus there was less reason to provide the protection of the recreational use law to municipalities then there was to apply it to private landowners who had no such immunity.
8. Municipalities were already providing recreation to the public free of charge; thus there was less reason to encourage them to do so than there was to encourage private landowners to do so.
9. Municipalities make land available to the public through taxes, which in effect, constitutes an implicit charge to use the land. If taxes do constitute a “charge” the municipality would be stripped of immunity anyway since the law only applies to those owners who offer their land to the public free of charge.
10. The protection granted by the act was an incentive for private owners to open up new lands for public use. It was not an attempt to provide an immunity shield for existing state or municipal recreational areas.
11. The fact that the legislature did not amend the recreational use statute after Manning does not necessarily mean the legislature approved or acquiesced in the decision because in most cases, the reasons for lack of action remain unexpressed and thus obscured in the midst of legislative inactivity.
Chief Justice Peters wrote a strong dissenting opinion and was joined by Justice Callahan. She stressed that courts should be especially cautious about overturning a case involving statutory construction. She concluded that the Conway case does not present sufficiently compelling reasons for overruling Manning. She pointed out that municipalities, like private landowners, make choices about charging user fees for recreational facilities, and must insure, or take the risk as self insurers, if they face exposure for injuries suffered by recreational users.