Daily Development for Thursday, April 4, 2002
By: Patrick A.
Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
LANDOWNER LIABILITY; RECREATION USE IMMUNITY STATUTES;
JOGGING TRAILS: Owner and operator of business park are both protected by
recreational use immunity statute from liability for failure to maintain in
safe condition an outdoor jogging trail made available to hotel guests.
Fagerhus v. Host Marriott Corp.,. No. 0726 (Md. 4/2/02)
A hotel guest was running on an asphalt 1.4 mile jogging
trail, clearly marked as a jogging trail, that circumvented a business park
where the guest's hotel was located.
Some of the trail was on private land, some on public land, including
city streets. The guest was injured
when he slipped on some black ice that had accumulated from runoff from an
adjacent slope during windy and wet conditions the night before. The accident occurred on a portion of the
trail owned by the business park. Guest sued the business park owner, its
property manager and the hotel operator.
This discussion deals only with the first two defendants - the property
owner and the manager.
The Maryland Appeals court held here that both the owner and
the manager fell within the letter and intent of the Maryland recreational use
immunity statute, which provides that an "owner of land owes no duty of
care to keep the premises safe for entry or use by others for any recreational
or education purposes, or to give any warning of a dangerous condition . . on
the premises to any person who enters the land for these purposes." The court noted that the statute provides
this protection even if a land owner "invites the use of its property for
recreational purposes, as long as it does so without charge. . ."
Plaintiff argued that the real purpose of the statute was to
encourage public owners of undeveloped land to permit recreational usage. The court noted, however, that legislative
history made it plain that private owners were protected as well. Although clearly in this case the land
developer had deliberately conformed its property for a recreational use,
rather than simply made wild land available for such usage, the court noted
that the statute described the "land" covered by its terms to include
"paths [and] trails] and does not otherwise qualify the type of land
covered to limit it to wild or undeveloped property.
With respect to the property manager, the court had an
additional difficulty because the statutory definition of "owner"
applies only to "the owner of any estate or interest in real property,
whether possessory or nonpossessory."
The trial court had found that any entity "in control" of
premises is covered by the statute. The
appeals court found this interpretation overbroad, but ultimately concluded
that the term "interest" includes a "contractual right to manage
and maintain real property." The
court noted that an earlier draft of the statutory language had included the
"occupant or person in control of the property," and that the
legislature had amended the language to substitute "any other interest in
real property" for the "in control" language. But the court concluded that this change was
made to broaden the statute and to make clear that easement interests were
included, not to take away the protection for "persons in control."
(Note: the court held that Marriott, the manager of the
hotel adjacent to the trail, had no duty to inspect the trail prior to
directing guests to it, or to warn of trail conditions, unless the hotel
represented to its guests that it "inspected, maintained, or otherwise had
accurate information about the current condition" of the trail.")
Comment: Couldn't the court have said that the maintenance
and control responsibilities of the management company clearly amounted to an
easement right in the property? Perhaps
the court really wanted to give the statutory language as broad an
interpretation as possible, and to avoid further arguments in other cases that
management rights amounted to a "mere license" that was not
technically an interest in the property itself.
WORDS AND PHRASES; "INTEREST IN PROPERTY:" Within the meaning of Maryland's recreational use immunity statute, a part entrusted with management and maintenance responsibilities of a business park has "an interest in property" sufficient to be protected as an "owner" within the statutory definition. Owner and operator of business park are both protected by recreational use immunity statute from liability for failure to maintain in safe condition an outdoor jogging trail made available to hotel guests. Fagerhus v. Host Marriott Corp.,. No. 0726 (Md. 4/2/02), discussed under the heading: "Landowner Liability; Recreation Use Immunity Statutes; Jogging Trails."
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