6 N.E.3d 1099
Mass. App. Ct.2014Background
- In October 2006, the Pattersons visited Old North Church in Boston on a Georgia senior center tour; no entry fee to tour the church was charged.
- Linda tripped on a red-painted pew riser at the entry to a raised pew box, sustaining serious injuries.
- The Old North Foundation runs tours at the church; an MOU with Christ Church and the Episcopal Diocese governs operations; the foundation paid Christ Church $93,780 in 2006 for the right to operate.
- The foundation derives revenue from the gift shop and special behind-the-scenes tours, but the entry to the church itself remained free for the Pattersons' visit.
- The trial judge applied the recreational use statute (G. L. c. 21, § 17C) to bar Linda’s negligence claims, and addressed 93A claims and related regulatory theories.
- The trial court held immunity under the recreational use statute and granted summary judgment; it also granted summary judgment on Kenneth’s loss of consortium claim, and the Pattersons appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the recreational use statute shield the defendants from Linda’s negligence claims? | Patterson contends the foundation’s revenue and payments create a charge or fee for use. | Friendship asserts no direct or indirect fee was charged to Linda for entering or touring the church. | Yes, immunity applies under § 17C |
| Are the 93A claims viable based on alleged AAB violations? | Linda’s fall due to noncompliance with accessibility regulations supports 93A claims. | No unfair or deceptive act; violations relate to building code, not consumer protection; no business relation. | 93A claims fail |
| Does the Attorney General Regulation (940 CMR 3.16(3)) support a 93A violation claim here? | Regulation places the AAB violations within 93A on the AG’s regulation. | Regulation requires consumer protection intent; here it does not apply to public safety building code issues. | Regulation does not create 93A liability |
Key Cases Cited
- Marcus v. Newton, 462 Mass. 148 (Mass. 2012) (fee-for-use analysis under the recreational use statute)
- Ali v. City of Boston, 441 Mass. 233 (Mass. 2004) (recreational user standard and immunity scope)
- Seich v. Canton, 426 Mass. 84 (Mass. 1997) (recreational use immunity analysis and charge/fee concept)
- Whooley v. Commonwealth, 57 Mass. App. Ct. 909 (Mass. App. Ct. 2003) (non-direct fees and recreational use context)
- Dunn v. Boston, 75 Mass. App. Ct. 556 (Mass. App. Ct. 2009) (wilful, wanton, or reckless conduct standard under recreational use)
- Squeri v. McCarrick, 32 Mass. App. Ct. 203 (Mass. App. Ct. 1992) (93A unfairness/ deception standard for negligent conduct)
- PMP Assocs. v. Globe Newspaper Co., 366 Mass. 593 (Mass. 1975) (unfair or deceptive act or practice under 93A requires more than negligence)
- Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165 (Mass. 2013) (scope of 93A for building code violations; consumer protection link required)
- Darviris v. Petros, 442 Mass. 274 (Mass. 2004) (consumer protection claim requires deceptiveness or unfairness; regulation scope)
- McGonagle v. Home Depot U.S.A., Inc., 75 Mass. App. Ct. 593 (Mass. App. Ct. 2009) (c. 93A claims require more than negligent conduct; no deception)
- Commissioner of Rev. v. Cargill, Inc., 429 Mass. 79 (Mass. 1999) (strict interpretation of statutory text; avoid reading in limits)