Martinez v. Ross

Anthony Martinez v. Daniel Ross, et al., No. 2374, Sept. Term 2018. Opinion by Arthur, J. NEGLIGENCE—PREMISES LIABILITY—RECREATIONAL USE STATUTE To encourage private landowners to make land available to the public for recreational and educational purposes, the General Assembly has enacted the Maryland Recreational Use Statute, codified at Maryland Code (1974, 2018 Repl. Vol.), §§ 5-1101 to 1109 of the Natural Resources Article. This statute achieves its stated purpose by limiting the owner’s liability in tort toward persons who enter on land for recreational and educational purposes.

Id. § 5-1102(a). Where applicable, if a landowner allows other persons to enter onto land for recreational or education purposes and does not charge a fee, the landowner owes no duty of care to those persons to keep the premises safe or to warn of a dangerous condition (id. § 5-1103), except in cases of willful or malicious failure to guard or warn against a dangerous condition. Id. § 5-1106. In accordance with its express statutory purpose, the Recreational Use Statute shields a landowner from liability only if they make their land available to the general public.

When the operative sections of the statute discuss an owner’s liability to “persons” or to “others,” that language must be read to refer to members of the general public. The statute does not limit an owner’s liability to social guests. Circuit Court for Frederick County Case No. 10-C-17-001862 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2374 September Term, 2018 ANTHONY MARTINEZ v. DANIEL ROSS, ET AL. Kehoe, Nazarian, Arthur, JJ.

Opinion by Arthur, J. Filed: April 29, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-27 12:11-04:00 Suzanne C. Johnson, Clerk This case concerns the “Maryland Recreational Use Statute,” which is codified at Maryland Code (1974, 2018 Repl. Vol.), §§ 5-1101 to 1109 of the Natural Resources Article (“NR”). The statute, which is derived from a model act that has been adopted in various forms in dozens of states, states that its “purpose” is “to encourage” owners to make their land “available to the public” for “recreational and educational purpose[s].” NR § 5-1102(a).

The statute achieves its stated purpose by “limiting the owner’s liability” in tort “toward any person who enters on land” for recreational and educational purposes. Id. In what a number of courts have described as a “‘drafting problem,’”1 the operative portions of the statute can be read to limit the owner’s tort liability to anyone who enters the land for recreational or educational purposes, including the owner’s social guests, and not just members of the general public. In light of the stated purpose of the model act, however, courts elsewhere have held, almost uniformly, that the statute does not override an owner’s common-law duty of care to social guests.

In this case, the Circuit Court for Frederick County ruled that, under the Recreational Use Statute, a landowner owed no duty to a social guest who suffered catastrophic injuries at a social gathering on the property. Accordingly, the court entered summary judgment in favor of the owner, and against the guest. The guest appealed. We reverse. 1 See Estate of Gordon-Couture v. Brown, 876 A.2d 196, 200 (N.H. 2005) (quoting Conant v. Stroup, 51 P.3d 1263, 1267 (Or.

App. 2002)); see also Loyer v. Buchholz, 526 N.E.2d 300, 303 (Ohio 1988) (referring to the legislation as “inartfully drafted”). FACTUAL AND PROCEDURAL BACKGROUND2 Appellee Penn Shop Farms LLC owns a property in Mt. Airy that is known as “Penn Shop Farm.” Penn Shop Farms LLC is owned or controlled by appellee Daniel Ross. The LLC leases the property to Ross’s business, appellee Ross Contracting Inc. Ross’s companies use Penn Shop Farm primarily to store excavating equipment and to deposit dirt from construction sites.

Ross and others have constructed all-terrain vehicle (ATV) courses on the property. Penn Shop Farm is not open to the public. The sole entrance is controlled with fencing and a metal gate that is locked with a chain and padlock. There are multiple warning signs at the entrance that prohibit entry.

They read: “Keep Out”; “No Trespassing”; and “Posted. No Trespassing. Keep Out.” Ross planned a social event on the property for October 29, 2016. The event, which was called “Cookout, Bikes, and Music,” was an all-afternoon gathering of friends and family members.

Ross invited guests to bring and ride their ATVs and dirt bikes on the courses that he had constructed on the land. Of the persons who received invitations, approximately 90 attended, including appellant Anthony Martinez. Ross and Martinez had met through business contacts and had become close friends. Ross acted as a mentor to Martinez, frequently providing him with personal and business advice as well as religious guidance.

Ross invited Martinez to the cookout by Evite on October 17, 2016, and followed up the next day by text message to ensure his 2 We recount the pertinent facts in the light most favorable to the appellant, the party who opposed summary judgment. 2 attendance. Ross explained to Martinez that the event was primarily for persons who, like Martinez, attended his church. On the morning of October 29, 2016, Martinez helped Ross transport ATVs and other off-road vehicles from Ross’s home to Penn Shop Farm. Once at Penn Shop Farm, Ross gave Martinez an ATV to ride.

While traversing one of the courses on the ATV, Martinez was thrown over the handlebars. The ATV landed on top of him. He suffered a spinal injury that rendered him a quadriplegic. Martinez brought suit in the Circuit Court for Frederick County, alleging that his injuries were caused by Ross’s negligence.

Martinez’s experts appear to have opined that the accident occurred because of the defective design of the course. Ross and his companies moved for summary judgment, claiming statutory immunity under the Recreational Use Statute. Martinez opposed the motion. He argued that the Recreational Use Statute did not apply because Ross did not make his land “available to the public.” After some back and forth, the circuit court eventually granted summary judgment in favor of Ross and his companies.

The court determined that Ross made his property “‘available to the public’ for recreational purposes as contemplated by [the] words of the statute” when he invited “the large group over to Penn Shop Farm for a cookout, and to ride dirt bikes and ATVs.” Thus, the court concluded that Ross and his companies were “entitled to the protection the statute affords,” effectively immunizing them from liability for Martinez’s injuries. Martinez noted a timely appeal from the judgment. 3 QUESTION PRESENTED Martinez raises a single issue for review: “Whether the circuit court erred in concluding, as a matter of law, that the immunity conferred by [the Recreational Use Statute] applies to a landowner, whose land is not open to the public generally for recreational use, to a claim arising from use of the land during an invitation[-]only party?” DISCUSSION On review of the grant of summary judgment, this Court “must make the threshold determination as to whether a genuine dispute of material fact exists, and only where such dispute is absent will we proceed to review determinations of law.” Johnson v. Mayor & City Council of Baltimore, 430 Md. 368, 376 (2013). In this case, there is no genuine dispute of material fact; the dispute involves the purely legal question of the correct interpretation of a statutory provision. See Trim v. YMCA of Cent.

Maryland, 233 Md. App. 326, 332-33 (2017). Where the parties “‘agree on the facts, leaving the interpretation of [a statute] as the sole legal issue[,]’ the appropriate standard of review is de novo.” Richard Beavers Constr., Inc. v. Wagstaff, 236 Md. App. 1, 13 (2018) (citing Johnson v. Mayor & City Council of Baltimore, 430 Md. at 376 ). The stated purpose of the Recreational Use Statute is “to encourage any owner of land to make land . . . available to the public for any recreational and educational purpose.” NR § 5-1102(a). To achieve that purpose, the statute limits an owner’s 4 common-law liability “toward any person who enters” the land for any recreational or educational purpose.

Id.3 At common law, when persons are injured while on the property of another, their legal status dictates the scope of an owner’s duties to them. See, e.g., Macias v. Summit Mgmt., Inc., 243 Md. App. 294, 316-17 (2019). “[I]n general, the highest duty is owed to invitees; namely, the duty to ‘use reasonable and ordinary care to keep the premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for the invitee’s own safety will not discover.’” Id. at 317 (quoting Deboy v. City of Crisfield, 167 Md. App. 548, 555 (2006)). “At the bottom rung are trespassers and bare licensees, to whom is owed no more than to ‘abstain from willful or wanton misconduct or entrapment.’” Id. (quoting Deboy v. City of Crisfield, 167 Md. App. at 555 ). In the middle is the social guest, or “licensee by invitation.” Id. at 320.

In the case of a social guest, an owner or occupier has a common-law duty 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. Id. at 321 (citing Bramble v. Thompson, 264 Md. 518, 521-22 (1972)). 3 NR section 5-1101(f) defines the term “owner” to mean “the owner of any estate or interest in real property, whether possessory or nonpossessory, including the grantee of an easement.” In this case, no one disputes that the definition of “owner” encompasses Penn Shop Farms LLC (the landowner), Ross Contracting Inc. (the lessee), and Ross himself (the owner of the landowner and the lessee). 5 Where the Recreational Use Statute applies, however, it alters an owner’s common-law liability in several respects. First, section 5-1103 significantly diminishes an owner’s duty of care: Except as specifically . . . provided in § 5-1106 of this subtitle, an owner of land owes no duty of care to keep the premises safe for entry or use by others for any recreational or educational purpose, or to give any warning of a dangerous condition . . . on the premises to any person who enters on the land for these purposes. The exception in NR section 5-1106 applies only in the case of a “willful or malicious failure to guard or warn against a dangerous condition . . . or for injury suffered where the owner of the land charges the person who enters or goes on the land.” Hence, under sections 5-1103 and 5-1106, if an owner allows “others” to come onto the land for recreational or educational purposes and does not charge a fee, the owner has the lowest duty in the law of owners and occupiers -- the duty owed to “trespassers and bare licensees, . . . to ‘abstain from willful or wanton misconduct or entrapment.’” Macias v. Summit Mgmt., Inc., 243 Md. App. at 317 (quoting Deboy v. City of Crisfield, 167 Md. App. at 555 ).

Section 5-1104 contains additional language concerning the limited liability of owners to “persons” who use the property for recreational or educational purposes: [A]n owner of land who either directly or indirectly invites or permits without charge persons to use the property for any recreational or educational purpose . . . does not by this action: (1) Extend any assurance that the premises are safe for any purpose; (2) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed; or 6 (3) Assume responsibility for or incur liability as a result of any injury to the person or property caused by an act of omission of the person. NR § 5-1104. Finally, section 5-1109(a) specifically addresses a landowner’s liability to “person[s]” who are allowed to use part of the property to ride an “off-highway vehicle” or “OHV”: If a landowner agrees to the use of a defined part of the landowner’s real property . . . for the use of an OHV, . . . any person who uses the part of the real property impliedly consents to adhere to every law, to observe every safety precaution and practice, . . . and to assume all responsibility and liability for the person’s safety and property while . . . using an OHV . . . on the landowner’s real property.4 An ATV is a type of OHV. See NR § 5-1101(e).

The dispute in the present case centers on the import of the term “available to the public,” which appears in the recitation of the statutory purpose in section 5-1102. Martinez contends that the statute applies only to owners who open their land to the general public. He argues that the operative provisions of the statute, which do not directly refer to the public, must be read in light of section 5-1102(a)’s stated purpose of encouraging owners to make their land available to the public in exchange for limited liability. Otherwise, he maintains, the legislative purpose would be rendered nugatory.

Ross counters that the “plain language” of the Recreational Use Statute does not require that owners make their land available to the general public as a condition of 4 In 2017, after Martinez’s injury, the General Assembly amended NR section 5- 1109(a) to extend it to hunters. It had already included cross-country skiers as well as OHV riders. 7 receiving limited liability. He asserts that Martinez “reads far too much into” the purpose section of the statute, while ignoring the limitations of liability conferred by section 5- 1103 (landowners owe no duty of care to “any person” to keep their premises safe or to warn of dangerous conditions); section 5-1104 (by inviting or permitting “persons” to use the property for recreational or education purposes, landowners do not extend any assurance that the property is safe, do not confer the status of invitee or licensee upon any “person,” and do not assume responsibility for any injury to the “person”); and section 5- 1109(a) (“person[s]” who use an OHV on the property assume all responsibility and liability for their own safety). Focusing on the language that limits a landowner’s liability “toward any person who enters on land” in section 5-1102(a) (the “purpose” section), Ross argues that the statute unambiguously confers immunity from liability to owners who make their land available for recreational use. “When we are called upon to interpret any statute, we first examine the ordinary meaning of the enacted language, reading the statute as a whole to avoid an interpretation that might nullify another part of the statute.” Richard Beavers Constr., Inc. v. Wagstaff, 236 Md. App. at 14 (citing Reger v. Washington Cty.

Bd. of Educ., 455 Md. 68, 96 (2017)). “[T]o understand the meaning of statutory language, we must look beyond individual words and clauses to the larger context, including other surrounding provisions and the apparent purpose of the enactment.” Trim v. YMCA of Cent. Maryland, 233 Md. App. at 334 -35 (citing Williams v. Peninsula Reg’l Med. Ctr., 440 Md. 573, 580-81 (2014)). We do “not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone.” See, e.g., 8 Lockshin v. Semsker, 412 Md. 257, 275 (2010). “Even in instances ‘when the language is unambiguous, it is useful to review legislative history of the statute to confirm that interpretation and to eliminate another version of legislative intent alleged to be latent in the language.’” Blackstone v. Sharma, 461 Md. 87, 113 (2018) (quoting State v. Roshchin, 446 Md. 128, 140 (2016)).

The Recreational Use Statute became a part of Maryland law in 1966, but in the ensuing 54 years, it has been interpreted in only one reported decision: Fagerhus v. Host Marriott Corp., 143 Md. App. 525 (2002). In that case a runner slipped and fell on black ice on a fitness trail that ran across several properties in an office park. Id. at 529-30 . He asserted claims against the owner of the portion of the trail where his fall occurred.

Id. at 530 . Applying the Recreational Use Statute, this Court held that the owner had no duty to make the trail safe for the runner. Id. at 540 . That decision is of limited utility in this case, however, because there was no question that the fitness trail was open to the general public.

Fagerhus does remind us, however, that, in interpreting a statute, we may look beyond the words of the enactment itself to “‘external manifestations of intent or general purpose available through other evidence,’ including ‘a bill’s title and function[,] paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal.’” Id. at 536 (quoting Williams v. City of Baltimore, 359 Md. 101, 116 (2000) (internal quotation marks and citation omitted)). In 9 the words of the Fagerhus Court, “[t]here is a relative wealth of legislative material to aid in our interpretation of the” Recreational Use Statute. Id. at 536 n.3. The Recreational Use Statute is derived from a model act that was drafted by the Council of State Governments in 1965.5 See 1966 Md. Laws, Chap. 292; 24 Council of State Governments, Suggested State Legislation, Public Recreation on Private Lands: Limitations on Liability 150 (1965).

The Council drafted the model act in response to a growing trend among states to limit the common-law liability of owners who made their land available to the public for recreational purposes. Noting an increasing “awareness of the need for additional recreational areas to serve the general public,” the Council explained the purpose of the act as follows: [I]n those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them. . . . [L]egislation has been enacted limiting the liability of private owners who make their land available to the public for one or more public recreational purposes. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to . . . strangers from whom the accommodating owner receives no compensation or other favor in return. 24 Council of State Governments, Suggested State Legislation, Public Recreation on Private Lands: Limitations on Liability, supra, 150, preamble. (Emphasis added.) 5 Maryland, along with 15 other states, adopted the model act with essentially no change.

See Gibson v. Keith, 492 A.2d 241, 248 (Del. 1985). The General Assembly has amended the statute from time to time to introduce variations from the model act. One such variation is NR section 5-1109, which generally states that if an owner agrees to the use of a defined part of the property for the use of OHVs, the persons who use that part of the property assume all responsibility and liability for their safety while using an OHV. 10 In view of the express purpose of the model act, courts have recognized that the legislation contains a statutory quid pro quo: in exchange for “opening lands for recreational use by the public,” owners receive “a special statutory grant of qualified immunity from suit by such recreational users.” Gibson v. Keith, 492 A.2d 241, 246 (Del. 1985); accord Conant v. Stroup, 51 P.3d 1263, 1267 (Or. Ct. App. 2002) (“the model act expressed a basic quid pro quo in its declaration of policy, namely, permission to the general public to use private land for recreational purposes in exchange for immunity from liability for resulting injuries”) (emphasis in original); Bucki v. Hawkins, 914 A.2d 491, 497 (R.I. 2007) (stating that “statutory immunity cannot attach when property is not held open to the public for recreational activity”); McMillan v. Parker, 910 S.W.2d 616, 618 (Tex.

App. 1995) (stating that “the statutory limitation on liability was meant as an inducement for owners of certain types of private land to allow members of the general public to use such lands for recreational pursuits”); see also Estate of Gordon-Couture v. Brown, 876 A.2d 196, 200 (N.H. 2005). “[A]n invitation or permission (direct or indirect) extended by a landowner to the public to enter without charge for recreational purposes is a sine qua non for invoking the statute’s protective benefits.” Gibson v. Keith, 492 A.2d at 244 . “If private landowners will make their lands available to the general public for recreational purposes, the state will ‘trade’ that public access for immunity from liability that might result from the use of the property.” Conant v. Stroup, 51 P.3d at 1266 (emphasis in original).6 6 Delaware and Oregon are among the 16 states that, like Maryland, adopted the model act with essentially no changes. See Gibson v. Keith, 492 A.2d at 248 . 11 But despite the clear expression of a statutory purpose to limit owners’ liability only if they open their land to “the public,” the operative provisions of the statute -- the provisions that announce and describe the specific limitations on an owner’s liability -- can be read more broadly, to limit an owner’s liability to anyone who uses the property for recreational or educational purposes. In Maryland, for example, NR section 5-1103 limits an owner’s liability to “others” who enter or use the land for recreational or educational purposes; NR section 5-1104 limits the owner’s liability to “persons” whom the owner invites or permits to use the property, without charge, for recreational or educational purposes; and NR section 5-1109 limits the owner’s liability to any “person” who uses a defined part of the property to ride an OHV. Read literally and in isolation from the expression of the statutory purpose, the operative portions of the statute could be understood to limit an owner’s common-law liability to anyone, including social guests, who came onto the property for educational or recreational purposes.

Many courts have recognized the “‘basic drafting problem’” (Estate of Gordon- Couture v. Brown, 876 A.2d at 200 (quoting Conant v. Stroup, 51 P.3d at 1267 )) in the tension between the expressed statutory purpose, which is to encourage owners to open their land to the general public, and the operative provisions, which can be read to grant limited liability against the claims of ordinary invitees and licensees. “The problem, of course, was that, if read literally and in isolation, the immunity provisions effectively would nullify the law of premises liability as it pertains to invitees: Any time an individual is invited to use an owner’s back yard for croquet, immunity would apply.” Conant v. Stroup, 51 P.3d at 1267 . Because the model act was “inartfully drafted” (Loyer 12 v. Buchholz, 526 N.E.2d 300, 303 (Ohio 1988)), “[a] cursory reading . . . might lead one to conclude that, with the exception of willful and wanton conduct, the [a]ct immunizes all land owners who invite or permit without charge any person to use such property for recreational . . . purposes.” Snyder v. Olmstead, 634 N.E.2d 756, 760 (Ill. App. Ct. 1994). “The response of the state courts who addressed the problem has been uniform.” Conant v. Stroup, 51 P.3d at 1267 . These courts have interpreted the model act “to effectuate its purpose