guide to the liability of Maine landowners providing public access

[From the U.S. Government Printing Office, www.gpo.gov]

Maine
Shore Access

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1989 , =-i of Economic and Commw,gy DevelLl@ia@4ti,
Office of Comprehensive Plann@

PUBLIC ACCESS SERIES

The coast is one of Maine's most precious recources. It has hosted
Indians and explorers and supported generations of fishermen,
clammers and wormers. It's scenic beauty and unhurried atmosphere
has traditionally attracted hosts of vacationers fronm far and
wide. Half of Maine's population lives in towns along tidal waters
where recreation and fishing have providedjobs over the years and
sizeable income to the State as a whole and to coastal communities
in particular.

About ninety four precent of the coast is privately owned. Yet,
growing numbers of boaters, residents, tourists, and recreationists
has meant a growing demand for quality public access sites to the
coast. This demandmay be increasingly difficult to satisfy, given
the rate of residential and commercial development along the
QQ coastline.

Public access is people reaching the shoreline - physically,
visually or psychologically. This may mean-different things to
different people; a boat launch ramp for a sailor, a pathway for a
clammer, aparking lot and a pier for a commercial fisherman, or a
coastal view for an artist. Because access nees differ, the means
of providing public access opportunities will necessarily vary from
one region to another and from town to town. Further, those
responsible for planning and providing public access will also
vary.

For example, providing regional parks to accomodate large numbers
of people generally falls upon state or regional governments.
However, access opportunities of a smaller scale may be best suited
to identify local needs and opportunities such as small public
easements, town roads, private ways or access arrangements with
private landowners or devcelopers.

These handbooks focus upon public access activities at the
community level. They provide background information, technical
instructions and discussions of legal issues to assist towns in
planning for, discovering and providing public access opportunities
to meet their needs.

A GUIDE TO THE LIABILITY OF MAINE LANDOWNERS
PROVIDING PUBLIC ACCESS

DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT
OFFICE OF COMPREHENSIVE PLANNING

Publication Date: December 1989
Manuscript completed: June 1988

Funds for the preparation of this document were
provided by Maine's Coastal Program through a grant
from the National Oceanic and Atmospheric
Administration, Office of Coastal Resource Management
under the Coastal Zone Management Act of 1972, as
amended.

Acknowledgements

This handbook was prepared by the Marine Law Institute at
the University of Maine, School of Law in Portland. The initial
ext was completed in June 1988. Todd R. Burrows, Esq and
Elizabeth Paine, Legal Intern researched and wrote the text.
tAlison Rieser, Director of the Marine Law Institute, served as
editor for the project.

Josie Qunitrell of the Department of Economic and Community
Development, Office of Comprehensive Planning was the contract
administrator for the project. Mary Boyd-Broemel, also of the
office of Comprehensive Planning, illustrated the handbook and
was responsible for final editing and production. Administrative
support was provided by Lana Clough of the office of
Comprehensive Planning and Beverly Bayley-Smith of the Marine Law
Institute.

Drafts of this report were reviewed by: David Keeley and
Mark Dawson of the State Planning Office, Maine Coastal Program;
Rebecca Warren Seel, Senior Staff Attorney with the Maine
Municipal Association; and Madge Baker, Executive Director of the
Southern Maine Regional Planning Commission.

TABLE OF CONTENTS,

Preface
Page

I, INTRODUCTION: THE PURPOSE AND SCOPE OF THIS GUIDE 1

II. GENERAL LANDOWNER LIABILITY STANDARDS IN MAINE LAW 2

A. The Landowner's Conduct: The Negligence Element 2

B. The Legal Status Element 2

1. Responsibility to Invites and Licensees: 2
The Reasonable Care Standard

2. Responsibility to Trespassers: The Wilful 3
or Malicious Standard

III. THE LIMITED LIABILITY OF LANDOWNERS WHO ALLOW THE 5
PUBLIC ACCESS TO THEIR LAND FOR RECREATION

A. Public Landowners: The State of Maine and Maine 5
Municipalities

1. The Scope of the Maine Tort Claims Act: A 5
Limited Waiver of Sovereign Immunity

a. Background: Common Law Principles 6

b. Instances in Which Maine Municipalities 7
May Now be.Liable

C. Entities Covered by the Maine Tort Claim 8
Act

(i) Governmental and Quasi-Governmental Bodies 8

(ii) Governmental Employees 9

2. Additional Elements Necessary for Imposition 11
of Liability Under the MTCA

B. Private Landowners 12

1. The Statutory Liability Limitation 12

a. Basic Provisions 12

b. Exceptions: When a Landowner May Owe 13
a Higher Responsibility to "Trespassers"

(i) The Chil d Trespasser 14

(ii) "Misled" Doctrine 15
2. The Statute's Scope 16

a. Definitional Limitations 16

(i) "Premises" 17

(ii) "Recreational or harvesting activities" 17

b. Elements of Landowner's Liability 18

(i) Willful or Malicious Standard 19

(ii) "Consideration" 19

(iii) Independent Duty 20

,IV. RISK MANAGEMENT TECHNIQUES 21

A. Susceptibility to Suit versus Susceptibility to 21
Liability
B. Liabil"ity Insurance 22

1. Public Landowners 22

2. Private Landowners 23

C. "Ounces of Prevention" 24

V. CONCLUSION 25

NOTES 26

PREFACE

Public access is people reaching the shoreline - physically,
visually, or even psychologically. Along Maine's 3500 miles of
coastline, public access takes on a particular meaning for
different types of people:

a wharf or pier for commercial fishermen;
a pathway to mud flats for clammers;
a sandy beach for swimmers and sunbathers;
a coastal view for sightseers; and
a boat ramp and parking area for recreation boaters

Traditionally, the Maine coast has been readily accessible to
those who want to use it, even though a majority of coastal
properties are privately owned (approximately six percent of the
coast is in public ownership).

In recent years, however, there is evidence of changing
attitudes about public access as rising property values have led
to shifts in coastal land uses and land owners. Moreover, an
influx of new residents and tourists to coastal communities,
especially in southern and mid-coast sections of the state, has
elevated the need for public access opportunities.

Deciding where and how to meet public access needs is a
responsibility that must be shared by both public and private
entities. State agencies, using a variety of funding sources and
programs, are in a position to acquire land and develop
facilities that meet statewide or regional needs. On the other
hand, municipalities may be best suited to provide smaller scale
facilities that meet local needs. Private organizations, such as
land trusts, can also play an important role in securing property
and funding improvements for public access.

To improve local public access opportunities, coastal
communities have undertaken a variety of projects. For example,
Islesboro, Stonington, and Vinalhaven have completed inventories
of existing and potential public access sites. South Portland is
implementing an ambitious Greenbelt Plan, and Yarmouth recently
approved a $1.5 million bond to support the purchase of land for
public access purposes. Other communities, including Machiasport
and Stockton Springs, have worked with federal, state, and
private groups to obtain funds for the acquisition of significant
beach areas.

State support for local action is evidenced by both the
Maine Coastal Policies, enacted by the Legislature in 1986, and
the Comprehensive Land Use Regulation Act of 1988. Both laws
contain strong policy statements promoting access to the shore
for both commercial and recreational purposes. Comprehensive
plans and implementation programs prepared by coastal cities and
towns under the 1988 Act must be consistent with these state
policies on public access.

To help coastal municipalities meet the public access
requirements contained in these laws, the Maine Coastal Program
has prepared a series of public access handbooks on.a variety of
topics. This handbook, A Guide to the Liability of Maine
Landowners Providing Public Access, is intended to explain legal
issues related to the liability of landowners who provide public
access ways for recreational uses. Other handbooks describe the
steps involved in preparing a public access plan, regulatory and
non-regulatory techniques for securing public access sites, and
discovering-rights-of-way that may already exist within a
community. Copies of these handbooks are available from the
Office of Comprehensive Planning in the Department of Economic
and Community Development, State House Station #130, Augusta,
Maine 04333.

I* INTRODUCTION: THE PURPOSE AND SCOPE OF THIS GUIDE
A principa 1 concern of landownersi -who wish to allow members
of the public access to or through their land is their potential
exposure to liability in the event someone is injured while@on
their property. The purpose of this guide is to explain the law
regarding the liability of landowners who provide access ways to
the public for recreational opportunities. This guide does not,
however, purport to be the sole source on which individual
landowners or governmental entities should rely to gauge their
liabilities. The unique factual circumstances of landowners
will often determine whether or not, and how, the principles
outlined here apply. Assistance of legal counsel is needed to
assess a landowner's individual circumstances regarding
liability. The focus of this guide is on Maine law; the law of
other jurisdictions is referenced where appropriate to clarify
issues ambiguous or unresolved under Maine law.

The guide is divided into four major sections. It first
discusses the general rules of landowner liability. Although
Maine statutes have changed these rules for landowners who
provide public access in many instances, these general
principles continue to apply in certain situations. The guide
next discusses how the Maine Tort Claims Act (MTCA) limits the
liability of the State of Maine and Maine municipalities in
regard to public recreational facilities. The guide then
discusses how other statutes limit the liability of private
landowners who allow public access to and use of their property.
The guide concludes with some practical suggestions of steps
landowners may take to further limit their liability.

II. GENERAL LANDOWNER LIABILITY STANDARDS IN MAINE LAW

This section presents the basic legal principles under which
a landowner may be held liable for injuries sustained by persons
and property while on his land. In many instances, these rules
do not apply to landowners who have allowed the public access to
or through their land. For example, the Maine Tort Claims Act
governs the rights and duties of state governmental entities in
Maine. However, one must grasp these basic notions to
understand how Maine law limits the liability of such
landowners. Also, where statutes do not limit landowner
liability, these rules determine a landowner's liability.

The law focuses on two main factors for determining a
landowner's liability: (1) the nature of the landowner's action
or inaction which substantially contributed to the injured
party's harm; and (2) the legal relationship of the injured
party to the landowner.

A. The Landowner's Conduct: The Negligence Element

In theory, a landowner's legal responsibility to compensate
an injured party is based in part on culpable conduct. This
culpability may range from simple negligence, such as a failure
to warn another of a danger which reasonable inspection would
have disclosed, to maliciousness, such as setting booby traps
along a fence row. The typical case involves negligence. The
point along this spectrum at which the landowner becomes legally
liable for the resulting injuries depends on the legal status of
the injured party.

B. The Legal Status Element

Under common law, a landowner's duty of care to a person on
his or her land varied, depending upon whether the person was an
invitee, licensee, or trespasser.

1. Responsibility to invites and licensees: The
reasonable care standard

The Maine legislature has abolished the distinction between
"licensee" and "inviteell status. Therefore, a landowner
generally owes the same duty of care to all persons lawfully on
the landowner's land.2 For example, a social guest invited to
tea and a plumber hired to fix a sink would be owed the same
duty of care under Maine law. A landowner must take all
reasonable3steps under the circumstances to protect such-persons
from harm. Such reasonable steps include warnings of
potentially dangerous conditions. However, if the danger should
be obvious to the guest, a landowner is not liable unless the
landowner should anticipate an injurious accident despite the
obviousness.4

2. Responsibility to trespassers: The willful or
malicious standard

Trespassers are those who use the land of another without
consent, express or implied. In situations where measures to
exclude individuals would be difficult and likely futile, the
toleration of intruders is not consent.5 With limited
exceptions, a landowner has no legal obligation to make his
property safe for trespassers. Howeverf a landowner must
refrain from willful or reckless harm to trespassers.6

Willful, malicious, or wanton conduct is difficult to define
precisely. The best explanation of this concept in Maine law7
is-the following:

Wanton misconduct ... cannot be entirely separated from
negligence. The reckless act but not the infliction of
injury is intended and so the injury or damage is
accidentally suffered.8

Thus, such conduct tends to be an unreasonable and extreme
departure from due care where the risk of injury is apparent.9

A recent case helps illustrate what is meant by "wanton" or
"reckless" conduct in this context. Bonney v. Canadian Nat. Ry.
CO.10 involved the railroad's failure to take measures to
protect persons using its railroad bridge when it knew that the
bridge was very hazardous to pedestrians and that pedestrians
frequently used the bridge. The Federal District Court ruled
that this conduct, "failure to take anything beyond token
measures to prevent injury to pedestrians," was a "callous
indifference to a known condition of extreme danger to the
public" which violated the minimal duty of care owed to
trespassers." The First Circuit Court of Appeals reversed this
decision and held that, despite its awareness of the substantial
danger, the railroad's failure to act did not make it liable for
injuries to trespassers.12 This decision indicates that
liability will not attach even though the landowner fails to
take steps to keep the premises reasonably safe for trespasserst
particularly where the dangerous condition of the land is open
and obvious.13 Maine law categorizes the status of individuals
using private lands with the owner's permission for recreational
.purposes as that of a trespasser.

In sum, a landowner has a legal obligation to those lawfully
on his property to take all steps reasonable under the
circumstances to make his property safe. Failure to take such
precautions, i.e., failure to use "reasonable care," is a basis
for liability. on the other hand, a landowner has no obligation
to take any steps to make his land safe for trespassers. A
landowner is liable for harm to trespassers only if they are
harmed due to his deliberate and conscious disregard of known

serious risks. The distinction is roughly that between
carelessness and recklessness.

III. THE LIMITED LIABILITY OF LANDOWNERS WHO ALLOW THE PUBLIC
ACCESS TO THEIR LAND FOR RECREATION

A. Public Landowners: The State Of Maine And Maine
Municipalities

This section discusses the liability of Maine and its
municipalities regarding ownership, construction, maintenance,
and/or operation of outdoor public recreation areas, including
public access routes. The Maine Tort Claims Act (MTCA) 14
governs law suits against state governmental entities where
compensation for injuries is sought. Although the structure and
provisions of the MTCA are explained, detailed consideration of
all its intricacies exceeds the scope and purposes of this
guide. Primary attention is paid to those provisions which
address issues involving the potential for imposition of
liability in regard to public access.

XT,

L10

Figure 1: municipal pier and boat launch ramp

The MTCA substantially reduces the liability risks of
governmental entities. In other words, under most factual
circumstances, Maine courts are unlikely to require the State or
a municipality to pay money damages to a member of the public
who is hurt while recreating on that entity's land.

1. The scope of the Maine Tort Claims Act: A limited
waiver of sovereign immunity

a. Background: common law principles

Prior to the adoption of the MTCA, in Maine as in many other
states, municipalities and the State itself enjoyed "sovereign
immunity". Neither the State nor its municipalities were liable
for injuries suffered as a result of negligent acts of its
agents in connection with their "ministerial or governmental"
actions; on the other hand, liability could be imposed in regard
to the performance of "proprietary" functions. "Ministerial"
functions are those which involve performance of duties imposed
by law, such as operation of a fire department or police force.
"Proprietary" functions involve activities pursued for profit,
functions private business enterprises could and do provide,
such as operation of a parking 1ot.15

WRA-IZINA T S.

Figure 2: Marina or other proprietary facility

6
rt=== ====

b. Instances in which Maine municipalities may
now be liable

Under the Maine Tort Claims Act, 16 effective January 31,
1977, municipal liability is not determined on the basis of this
"proprietary"/"ministerial" distinction. 17 The rules of
liability established by the MTCA apply equally to the State and
its political subdivisions. Immunity from liability "on any and
all tort claims seeking recovery of damages... 11 is the general
rule.18 Instances in which the State or its towns may be held
liable are laid out in the statute as exceptions to the general
rule of immunity from suit. Under these statutory exceptions,
"a governmental entity shall be held liable for its negligent
acts or omissions causing property damage, bodily injury or
death.... 11 only in instances involving (1) operation of motor
vehicles; (2) public buildings; (3) accidental discharge of
environmental pollutants; and (4) construction, 1repair, and/or
maintenance of highways, sidewalks or the like.9 The Act
authorizes wrongful 20 death actions as well where one of the four
exceptions applies.

In keeping with the MTCA's structure and intent, the Law
Court has indicated that these exceptions, waivers of sovereign
21
immunity, will be narrowly construed .

The MTCA lists a number of examples of situations where
governmental entities will not be liable. one such example
clearly demonstrates the legislature's intent to protect towns
owning or maintaining public accessways or recreation areas from
liability. The statute specifies that 11(n]otwithstanding this
section [8104-A], a governmental entity is liable for any claim
which results from ... (t)he construction, ownership,
maintenance or use of:

(1) Unimproved land;
(2) Historic sites, including but not limited to,
memorials... ; or
(3) Land, buildings, structures, facilities or equipment
designed for use primarily by the public in connection
with public outdoor recreation.... 1122

Moreover, municipalities' liability for negligent acts involving
public buildings and their appurtenances acquired forreasons 23 of
the tax delinquency by eminent domain is statutorily limited .

Several factual scenarios may help illustrate the immunity
afforded state governmental entities by these provisions.
Should a town choose to acquire a parcel of unimproved land, or
an easement to improve access to the shore, 14 M.R.S.A.
� 8104-A(2)(A)(1) indicates that the town "shall not be liable
for any claim" resulting from "the construction, ownership,
maintenance or use" of the easement. For example, if a member

of the public walking along the easement is injured by a falling
tree branch negligently trimmed by a municipal employee, the
town could not be held liable. Imagine that a town chooses to
build and operate a bathhouse on a municipally owned beach. If
a beachgoer using the bathhouse (a structure "designed for use
primarily by the public in connection with public outdoor
recreation") slips on a slick floor and is hurt, 14 M.R.S.A.
� 8104-A(2)(A)(3) forbids imposition of liability on the town.
Obviously, situations could arise which present close factual
.issues as to the applicability of these immunity provisions.
For example, if the "bathhouse" in the illustration above were
in reality a storage building used by public works employees who
had long shared it with beachgoers, one could reasonably
question the town's assertion of immunity under the Act, since
the building was not designed primarily for public recreational
use.

Another limitation on the immunity intended under 14
M.R.S.A. � 8104-A(2)(A)(3) points out a potentially troubling
anomaly. The immunity extends only to activities "in connection
with public outdoor recreation." For example, suits to
recompense injuries suffered in an indoor ice arena maintained
by a school district are not barred; whereas, a similar outdoor
skating rink is within the statute's scope.24

c. Entities covered by the Maine Tort Claims Act

The MTCA extends qualified immunity to certain state
government units. In addition, government employees are
shielded from personal liability to a certain extent.

(i) Governmental and quasi-governmental bodies

The sovereign immunity of Section 8103 of the MTCA, as
qualified by Section 8104, applies to "all governmental
entities" in the state. This term includes among others:
(1) the State of Maine and all its instrumentalities, such as
departments, agencies, boards, hospitals and other
institutions; 25 and (2) political subdivisions of the State,
including towns, cities, plantations, and special purpose
26
districts. Therefore, an entity specifically created by the
State or a local government to purchase or manage municipally
maintained recreational areas or public access routes would be
likely to come under the MTCA protection. 27

(ii) Governmental employees

Persons "acting on behalf of" the governmental units covered
by the MTCA are "employees" who themselves en3oy a limited
degree of immunity from SUit.28 Thus, to a large extent, towns
can purchase and maintain recreational access routes without
unduly exposing their employees to liability.

Whereas the MTCA establishes a general rule of immunity for
governmental entities,29 it generally holds employees liable for
30
negligent acts committed in the scope of their employment.
Employees are subject to all claims arising out of a single
occurrence; recovery is limited to $10,000 per claim.31
Exceptions to this rule of liability are those "expressly
provided by section 8111 or by any other law.,,32

Under Section 8111 of the MTCA, two factors are critical to
determining an employee's liability: (1) the functional nature
of her act; and (2) that act's relationship to the nature of her
employment, Employees enjoy "absolute immunity" from civil
liability for the following:.

(1) "legislative or quasi-legislative acts," such as
failure to enact an ordinance;

(2) "judicial or quasi-judicial acts," such as refusal to
grant a permit;

(3) "discretionary functions or duties," such as
performance of an act required by statute; and

(4) intentional action or omissions "within the course or
scope of their employment," when the government unit is
not subject to suit - unless the employee's acts were
in "bad faith.03

Thus, a government employee may be held liable for her negligent
actions that fall outside one of the above categories. However,
under most circumstances when an employee is subject to
liability for actions within the scope of her employment, 34 a town
will be required to assume the cost of her legal defense.
Moreover, in situations where the government entity may also be
held liable, the town must indemnify the employee.35 In other
words, a town may be required to fully reimburse its employees
for money spent in payment of a judgment and to retain, or pay
for, a lawyer to represent its employee. In cases where the
town itself may not be held liable, the decision to legally
defend the employee is left to the town's discretion.36

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11,1,11,0
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-----------

Figure-3: Municipal Building

Several Law Court decisions help illustrate the types of
professional acts regarding which employees enjoy immunity from
liability. In one example, school union superintendent's
response to a request for an evaluation of a former employee, a
public school teacher, was held not to be a discretionary
function or duty; thus, the superintendent was subject to
plaintiff's allegations of slander. 37 Execution of an arrest
warrant involves a "ministerial" rather than a "discretionary"
function; thus the MTCA's 38 immunity was not available to
defendant police officer. In another example a police officer
who told a criminal defendant that he would put in a good word
for him only if he refrained from hiring a lawyer could not
resort to the "discretionary" function immunity in defense of
the lawyer's lawsuit for interference with an economic
relationship. 39

Finally, towns and their employees are potentially subject
to suit under federal law notwithstanding the MTCA's provisions.
40
The federal Civil Rights Act , could allow recovery of damages,
and attorneys' fees 41 where plaintiff's injuries stemmed from
gross negligence or recklessness. It is very unlikely that
plaintiffs suing 42 under the Act could recover for injuries due to
mere negligence. 10

In sum, even under the MTCA, an employee's liability is
determined on the basis of principles similar to those under
common law, such as the "ministerial/ discretionary" distinction
and whether given conduct was "within the scope of employment."
Under Section 8104-D of the MTCA, negligent employees appear to
face more risk of liability than their government employers. An
employee's right in many instances to indemnification and costs
of defending a lawsuit from his employer partially shifts the
burden of this risk. The $10,000 limit on any single claim
against an employee indicates that municipalities potential
liability under these circumstances is far less than when the
town itself may be held liable.

2. Additional elements necessary for imposition of
liability under the Maine Tort Claims Act

Even if one of the narrow exceptions to municipal immunity
applies, other provisions of the MTCA may, as a practical matter
limit or reduce exposure to liability.

NO CLAIM
Phuntiff PROCEEDINGS IN MAINE COURT IS ALLOVVED
1required All actions must be ffied
to notify AT TTHS
ACCIDENT government withIn two-year statute
entity of 11mitations

180 DAYS

TWO YEAR STATUTE
OF LIMrrATIONS

Figure 4: Window of Liability

First, in order to facilitate early settlement of claims,
the MTCA requires that plaintiffs notify governmental entities
of the nature of their claim within 180 days of the day their
action accrued (typically the date of injury) .43 Plaintiffs who
do not "substantially comply" with this prerequisite cannot
maintain a lawsuit; however, the Act does allow for waiver of
this deadline for "good cause" shown. 44 Maine courts have been
strict in holding claimants to.this deadline. 45 All actions
must be filed within the two year statute of limitations.46 The
6 month notice requirement and the two year statute of
limitations create a comparatively narrow window during which
towns face liability. 47

Secondly, towns face a maximum liability risk of $300-000,
including court costs (not attorneys' fees) per occurrence.8
In other words, in a school bus accident injuring 40 school
children, the children collectively could recover only $300,000.
Although a far from negligible sum for most Maine towns, the
number of situations involvin@ public access in which towns risk
such liability is negligible.9 The statute also allows
uninsured towns who must pay a liability judgment to spread that
cost over as many as five years. 50 Liability insurance
(discussed in section IV(B) below), is one method of managing
the risk towns do face.

B. Private Landowners

By statute enacted in 1978, the Maine legislature has
greatly limited the liability of private landowners who provide
the public with access to their land .51 In those situations
where the statute does not apply, landowners must turn to the
general liability principles discussed above to evaluate the
risks they face.

Maine's statute limiting landowner liability is apparently
based on model legislation recommended by the Council.of State
Governments. 52 Forty-one other states have adopted similar
legislation limiting the liabilities of landowners who 53 allow the
public access to their land for recreational purposes.
Although in some respects these statutes differ significantly
from Maine law, cases construing them offer some guidance on
issues as yet unaddressed by Maine courts.

1. The statutory liability limitation
a. Basic provisions

14 M.R.S.A. � 159-A provides that:
An owner, lessee or occupant of premises shall owe
no duty of care to keep the premises safe for
entry or use by others for recreational or
harvesting activities or to give warning of any
hazardous condition, use, structure or activity on

these premises to persons entering for those
purposes.

In effect, the law treats those on another's land for
"recreational or harvesting activities" as "trespassers" to whom
no affirmative duty of care is owed. Accordingly, the private
landowner who chooses to allow the public on his land is under
no legal obligation to maintain his property in a safe condition
or to warn about potential dangers, e.g., rotting tree limbs,
wire strand fences, or rotting bridges.

The statute also extends similar protection to "an owner,
lessee or occupant who gives permission to another to pursue
recreational or harvesting activities on the premises.... 11 54
Whereas Maine law would otherwise treat such a person as an
55
"inviteell to whom an affirmative duty of due care is owed,
this section declares that the landowner's permission does not
11[m]ake the person to whom permission is granted an invitee or
licensee.... 11 56 Moreover, the landowner is ordinarily not
liable for any injuries to persons or propert @7 caused by another
to whom permission to enter was also granted.

Figure 5: Pathway to water

"trespasser": (1) the case of the child trespasser; and (2) the
case of the "misled" trespasser. These potential exceptions to
the general 'no duty to trespassers' rule also present liability
risks to abutters, landowners whose property adjoins or is
nearby public accessways. However, under 14 M.R.S.A. � 159-A,
neither of these theories appears to increase landowners'
liability risks significantly.

(i) The child trespasser

certain jurisdictions impose liability on landowners for
injuries to child trespassers under the "attractive nuisance
doctrine." The doctrine's theoretical justification is
questionable; liability is based on the notion that an enticing
danger lured the child to harm on the landowner's property.
Moreover, if the one Maine Superior Court decision on this point
is generally followed, child recreational users present no
additional risk of liability.

Maine does not recognize attractive nuisance per se as a
basis for liability. Yet Maine law does have a different
standard of liability in regard to trespassing children. A
landowner is subject to liability for injuries to a child caused
by an "artificial condition" on her land if:

(1) the condition is in a place onto which the landowner
knows or should reasonably know that children will
trespass;

(2) the landowner knows, or should, that the condition
poses an unreasonable risk of serious bodily injury;

(3) the children, due to their age and inexperience, fails
to perceive the danger;

(4) the utility and burden of maintaining the condition as
it is are slight compared with the magnitude of the
risk it threatens to children; and

(5) the landowner fails to take reasonable steps to
eliminate the danger or protect children from it.58

The duty,of care owed to child trespassers, though greater than
that owed to other trespassers, is less than that owed to those
lawfully on one's land. A landowner is in effect responsible
only for attention to "artificial conditions," for example, a
well as opposed to a pond, involving unreasonable risks of
serious bodily injury to minors.59
In a recent decision, Stanley v. Tilcon Industries, Inc.,60
a Maine court faced this issue for the first time and held that
Maine landowners do not owe children trespassing on their land

for recreational purposes this heightened duty of care in regard
61
to "artificial conditions". In Stanley, Superior Court
Justice Lipez ruled that "the plain language of 14 M.R.S.A.
� 159-A declares that [the 'attractive nuisance' doctrine
announced in Jones, supra] no longer apply(s) when individuals,
young or old, enter the premises of another for recreational or
harvesting activities." The court reasoned that if the
legislature had intended to exclude children from 14 M.R.S.A.
� 159-Als liability limitation it would have done so in 14
M.R.S.A. � 159-A(4), the section describing the limited
instances where landowners remain liable. 62 In other words, the
rules of landowner's liability in regard to recreational uses
are governed by 14 M.R.S.A. � 159-A; no affirmative duty of care
is owed to recreational users, whether children or adults.
Although the court noted that courts in other jurisdictions have
construed recreational use statutes to allow claims based on an
"attractive nuisance" theory, the court rejected those cases as
based on different statutory provisions and unpersuasive. 63
Until this issue is resolved by the Law Court, child trespassers
pose a potential liability problem, or at least risk of
litigation, to landowners. However, the reasoning in Stanley
appears sound.

(ii) "Misled" doctrine

There is another legal doctrine by which courts sometimes
hold landowners liable for injuries to those who stray onto
their land. The "misled" doctrine provides that if a person,
misled into thinking that private land is actually part of a
public way, enters and is injured, the possessor of that land
may be held liable. The underlying policy notion appears to be
that by maintaining his property in a misleading character
(e.g., A's driveway looks like a public road), a landowner
implicitly invites others onto his land. Under this legal
doctrine, those who stray are not trespassers but invites.

Maine law appears to recognize the misled doctrine. In
Beckwith v. Somerset Theatres, Inc..64 the Law Court held that a
landowner whose land abutting a public road had been surfaced
just as the road could be held liable for injuries to a woman
who mistakenly drove onto his land and was injured when she
struck an unmarked lot marker. The Court reasoned that the
plaintiff driver was a misled invitee.

In the context of public outdoor recreation, this doctrine,
like the attractive nuisance doctrine, does not appear to
enhance liability risks significantly, as the following example
analogous to the situation in 'Beckwith explains. Relying on the
misled doctrine, one might argue that a landowner abutting a
public recreational easement, the boundaries of which are

ill-defined and which closely resembles the abutting lands, is
liable for injuries to those who, believing they are on the
easement, wander off onto the private land and are injured.
However, 14 M.R.S.A. � 159-A limits landowners' liability as to
those who are invited onto one's land as well as trespassers.
Moreover, a landowner has no duty to keep his property in a safe
condition for such persons. Thus, acquisition of invitee status
through the "misled" doctrine is not helpful to the recreational
user under 14 M.R.S.A. � 159-A.

2. The statute's scope

14 M.R.S.A. � 159-A does not remove liability for injuries
to all persons on one's land for all purposes. The limits on
the Act's applicability are expressly declared in 14 M.R.S.A.
� 159-A(4)(A)-(C). In addition, definitions of key terms in the
Act indicate other limitations.

LoT

WA@TC K_
MA
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tNr111!A1SMF- 6WZvey-LoT 41
Figure 6: Site plan showing public access easement

a. Definitional limitations

(i) "Premises"

The statute by its terms applies only where an injury is
incurred on an owner, lessee, or occupant's "premises". This
locational limitation appears broad. "Premises" are defined in
the statute as "improved and unimproved lands, private ways, any
buildings or structures and those lands and waters standing on,
flowing through or adjacent to those lands.,,65 Although similar
statutory protections have been held applicable only in
semi-rural or rural settings,66 Maine's statutory language does
not appear to support this distinction; 14'M.R.S.A. � 159-A by
its terms applies to both improved and unimproved land. Also,
even though the statute covers activities on any buildings or
structures on the property, the statute's definition of
recreational or harvesting activities" makes it plain that
situations where a landowner invites another into his home are
not covered.

(ii) "Recreational or harvesting activities"

A landowner's liability is limited only when another has
entered her land to pursue "recreational or harvesting
activities," a non-exclusive list of which is contafned in the
statute.67 The liability limit applies only to "out-of-doors"
activities such as "hunting", "fishing", "sight-seeing", and
"rafting", and "activities that involve harvesting or gathering
forest products." The term also includes "entry, use of and
passage over premises in order to pursue these activities.iv68
Thus, for example, a landowner who grants an easement over his
land to allow the public access to a lakefront is entitled to
the statute's protection; users need not actually recreate on
his land.

The issue of what constitutes "recreation" for the purposes
of 14 M.R.S.A. 69 � 159-A has been litigated. In Schneider v.
United States, the U.S. Court of Appeals for the First 70
Circuit, applying Maine law under the Federal Tort Claims Act,
upheld the district court's summary judgment ruling that the
U.S. Government was not liable for plaintiff's injuries,
sustained when she was making her way down some steps to Sand
Beach at Acadia National Park. The court rejected out of hand
plaintiff's argument that going to the Park to drink a cup of
coffee was not a "recreational ... activity.,,71 The court noted
that the list of activities contained in the Maine statute72 itis
only illustrative"; other recreational activities such as
"birdwatching", "sun bathing", and "playing ball" are also
covered.73 The court's refusal to read the statute
restrictively was based in part on its determination of the

statute's purpose: "to allow a landowner to permit broad uses
of his land without incurring the obligations of a common law
licensor. ,74 Finally, the court noted that even if a plaintiff
demonstrates her presence was not tied to a recreational
purpose, she must."prove some other authorization"; otherwise,
as a trespasser she is owed no affirmative duty. 75

Courts in other jurisdictions have also considered the scope
of "recreational" activities under statutes similar to 14
M.R.S.A. � 159-A.76

Figure 7: Beach goers

Although they have not squarely faced this issue, Maine
courts applying 14 M.R.S.A. � 159-A have been 77 and are likely
to continue to be protective of landowners. The statute's
history supports the courts' efforts to realize this public
policy. The Legislature has repeatedly widened 78 the scope of
activities for which landowners are not liable. A 1985
amendment allows landowners who are sued and are found not
legally liable to recover their costs and expenses, including
attorneys' fees, from the person bringing suit. 79 Quite
plainly, the Legislature intends, in the interest of promoting
public access and recreation opportunities, that the protections
of 14 M.R.S.A. � 159-A be liberally construed to protect
landowners.

b. Elements of landowner's li ability

14 M.R.S6A. � 159-A(4) spells out three situations in which,

owner receives compensation for the use of his land; or where
the injured party, an invitee of the landowner, is injured by a
recreational user.

(i) Willful or malicious standard

Even though a landowner has no duty to inspect and maintain
his property in a safe condition for recreational users, the
courts may hold a landowner liable for "willful or malicious"
failure to guard or warn such users against dangerous conditions
on his land.80 This standard is similar to Maine's rule
regarding civil liability for injuries to trespassers. A
decision by the Law Court indicates that in order to satisfy the
"willful or malicious" standard of 14 M.R.S.A. � 159-A(4)(A)
plaintiffs must prove a high degree of malfeasance on the part
of the landowner to avoid an adverse decision on summary
judgment.81 Decisions construing similar recreational use
statutes in other states may provide some guidance on the 82 level
of malfeasance required for willful or malicious conduct.

(ii) "Consideration"

Landowners who charge a fee or exact other "consideration"
in exchange for allowing others onto their land remain subject
to Maine's law regarding liability to invites.83 For example, a
ski resort which charges skiers for the use of its slopes and
facilities is liable for its customers' injuries stemming from
the negligence of resort employees. A landowner who charges a
fee for people to enter his land and harvest standing timber
also faces potential liability under this section.

The one Maine decision on this issue, Spencer v. Condon, 84
narrowly construed the "consideration" exception.85 Spencer
involved the following facts. Plaintiff had paid a $3 entry fee
to watch a "mud run" on defendant's property. While at the
event, plaintiff got on an ATV, drove off defendant's land, and
onto another parcel, a gravel pit, owned by the defendant.
Heedless of where he was going, plaintiff drove the ATV over a
steep embankment and suffered permanent injuries. Superior
Court Justice Alexander ruled that, since the $3 was paid to
watch the "mud run," not to ride an ATV, and since the injury
occurred on another property than that to which plaintiff had
been admitted 86 for a fee, 14 M.R.S.A. � 159-A(4)(B) was
inapplicable. Thus, the court ruled in favor of the defendant
landowner.

In addition, under the facts of this casel the court ruled
that Maine's comparative negligence statute, 87 which bars
recovery where a plaintiff's contribution to his own harm was
greater than or equal to that of the defendant, posed an

independent basis for finding for the defendant. In other
words, if a person is injured while lawfully on one's land due
largely to her own negligent or reckless acts, the law does not
hold the landowner responsible.

(iii) Independent duty

Under circumstances where a landowner owes a duty of care to
one on his land, and that person is injured by another to whom
the landowner has given permission to enter for recreation 88 or
harvesting Activities, the landowner could be held liable.
The following example, derived from the facts of Spencer, supra,
illustrates this principle of vicarious liability. Imagine that
Spencer, who had paid to enter Condon's land, was struck while
watching the "mud run" by a dirt biker to whom Condon had given
permission to use his land. Condon owes Spencer a duty of
reasonable care, since he has paid for admission to Condon's
land .89 14 M.R.S.A. � 159-A(4)(C) makes it clear that Condon is
potentially responsible for the actions of a recreational user
permitted on his land when that user harms one to whom Condon
has a legal obligation." Likewise, Condon would be potentially
liable for injuries to a backhoe operator hired to repair
culverts on his land (an 11invitee") if he were struck by the
dirt biker.

Figure 8: Landowners warning

IV. RISK MANAGEMENT TECHNIQUES

Maine law substantially reduces but does not completely
eliminate the risk that landowners who provide or facilitate
public recreational access will be held liable for injuries to
those who are injured on their land. However, the situations in
which such landowners may be held liable are few and have been
narrowly construed by Maine courts. Maine municipalities should
be aware that purchase of liability insurance may actually
increase the cases in which they can be successfully sued.
Nevertheless, landowners may wish to take steps to minimize the
risks they do face. Some of these protective measures may
involve little or no expense. Others, such as the purchase of
liability insurance, may require a more substantial expenditure.

A. Susceptibility To Suit Versus Susceptibility To
Liability

Provisions in Maine law limiting landowners' liability do
not guarantee that the landowner will not be forced to assert
his rights in defending against a lawsuit. Plaintiffs' lawyers
can be counted on to devise novel theories aimed at securing
compensation for their clients. However, several factors may
limit the number of such lawsuits filed, 91 especially under the
limitation on landowners' liability act. First, Maine courts
have restrictively interpreted 14 M.R.S.A. � 159-A and
recognized it as a device which facilitates public recreational
access by shielding landowners from liability for simple
negligence. This fact may discourage attempts to recover from
such landowners. Notably, there are only four reported cases
construing 14 M.R.S.A. � 159-A and none dealing with the
recreational provisions of the MTCA. Also, in each of the four
reported cases concerning 14 M.R.S.A. � 159-A, the landowners,
motions for summary judgment have been granted. Thus, even
though the costs associated with bringing a case to that stage
may be far from negligible, landowners did not incur the expense
of a trial.

Secondly, certain landowners may be able to recover legal
costs from the unsuccessful plaintiffs. The Legislature,
recognizing that landowners may still be forced to defend these
statutory rights, amended the landowners' liability act to allow
landowners' who are "found not to be liable for injuries to a
person or property pursuant to this section" to recover "any
direct legal costs," including attorneys' fees, from the
plaintiff.92 This provision may substantially reduce the final
cost of defending against law suits.93 The MTCA, however,
contains no similar provision.

Finally, in the case of frivolous or malicious lawsuits
filed with no good faith belief that there are grounds for the
suit, any landowner may be able to recover "the amount of the

reasona ble expenses incurred because of the filing," including
attorney's fees, pursuant to Maine's civil procedure rules. 94

B. Liability Insurance

Liability insurance is one method of managing risk.
Municipalities should be aware that under the MTCA, purchase of
liability insurance may affect not only the extent of their
liability but the types of situations in which they may be held
liable. Private landowners may also wish to insure against
liability for accidents. Before purchasing additional coverage,
however, such landowners should determine the scope of limits of
any existing insurance policies they hold.

1. Public landowners

The Maine Tort Claims Act provides for the purchase of
liability insurance by governmental entities, including 95
municipalities through the Maine Insurance Advisory Board.
The MTCA permits municipalities and others to purchase insurance
against any potential claim under the Act; thus, conceivably,
towns could insure themselves against liability associated with
public recreational access areas. Before towns make this
decision, they should carefully consider how the purchase of
insurance will alter the nature of their liability under the
MTCA. In many instances, the immunity provisions of the MTCA
are inappropriate because a town has purchased insurance
coverage.

First, the liability limits in an insurance policy purchased
by a town affects the dollar limit of a town's liability. 96 For
example, if a town buy's a $5,000,000 policy covering a municipal
beach accessway, the aggregate limit of its liability becomes
$5,000,000. On the other hand, if the town purchased a $200,000
policy, its liability limit remains $300,000, the amount
established by the MTCA.

Secondly under the MTCA, purchase of liability insurance may
actually reduce the immunity of the purchasing town. 14
M.R.S.A. � 8116 (emphasis added) provides that 11[i]f the
insurance provides coverage in areas where the governmental
entity is immune, the government shall be liable in those
substantive areas but only to the limits of the insurance
coverage." This provision is especially relevant to public
access. The MTCA indicates that towns are immune from liability
resulting from injuries on "unimproved land," "historic sites,"
or "land, buildings, structures, facilities or equipment
designed for use primarily in connection with public outdoor
recreation. ,97 For example, an easement purchased and
maintained by a town to create lakefront access for the public
is quite clearly "land ... designed for use primarily in
connection with outdoor recreation." By the terms of section

8116 of the MTCA, if a town purchased insurance against injuries
in connection with this easement it would have waived its
immunity to the extent of the liability coverage. Towns
considering public access options should carefully weigh the
economic risk of forgoing purchase of insurance (by evaluating
the likelihood of accident, resulting law suits, and associated
expenses in light of their limited liability under the MTCA and
existing insurance coverage) against the cost of additional
liability insurance. A recent decision 98 demonstrates how this
provision operates to remove municipal immunity under the MTCA.

Finally, towns should recognize that under the MTCA,
purchasing liability insurance in relation to public ac 'cess
amounts to a significant public policy decision, In some
instances where a town may be found liable, the $300,000
recovery limit set by the MTCA may be inadequate to compensate
the injured party. Towns may wish to shoulder the additional -
expense of insurance in the interest of protecting its residents
and the general public. For the same reason, a town may wish to
purchase insurance to waive its immunity and allow injured
recreational users readier access to compensation through the
town's liability coverage. Also, liability insurance contracts
very often require the insurer to assume the legal expense of
defending the insured. Thus, insurance coverage may be a cost-
effective means of defraying legal expenses. Finally, a town
may wish to consider having an endorsement placed on its
insurance policy excluding coverage for claims for which the
town is immune under the MTCA. Such an endorsement should
specifically state the factual circumstances, derived from 14
M.R.S.A. � 8104-A(2)(A), for which coverage is excluded.99

2. Private landowners

Private landowners' motivations for seeking insurance
against injuries to public recreational users are akin to those
of public landowners. These landowners are also faced with a
small chance of being found liable; however, in the unusual
circumstances that they are found liable, the magnitude of their
liability may be great and is unlimited by statute. Before
considering buying additional liability insurance, a landowner
who allows the public access to his land should determine
whether or not his homeowner's policy would cover injuries to
such users. An insurance agent and a lawyer can help with this
decision. If coverage is non-existent, too limited, or
ambiguous, purchase of additional insurance may be advisable.
Although insurance is typically a seller's market, the limited
risk of liability could make the cost of sufficient coverage
reasonable.

In some instances, a landowner may wish to establish a
public access easement across her property in exchange for a
town's agreement to indemnify her in the event of a lawsuit,

notwithstanding the immunity afforded by 14 M.R.S.A. � 159-A.
obviously, a town should discuss assumption of any additional
liability with legal counsel. However, it appears that by
agreeing to such an arrangement, a town assumes only a small
risk of liability. The town's duty to pay would be triggered
only if the landowner is found liable under 14 M.R.S.A.� 159-A
an highly unlikely event in the case of simple negligence. The
indemnification agreement could exclude municipal responsibility
where an injury resulted from the landowner's wanton or
malicious acts, as well as where the landowner exacted a fee, or
where the injured party was one to whom the landowner owed an
independent duty. The agreement should be drafted to allow a
town which defends a landowner to take advantage of the Act's
fee recovery provision.100 On the other hand, if the agreement
indicates that the town has assumed responsibility for
"construction, ownership, maintenance or use of" the easement,
the MTCA'O' provides municipal immunity from negligence claims.
Towns must recognize that purchase of liability insurance
covering the easement will negate any immunities provided by the
MTCA. 102

C. "Ounces Of Prevention"

Virtually no landowner wants people to be hurt on his land.
Even though the law may not require them, some simple and
perhaps obvious steps may help reduce the odds of injury.
Landowners who are aware of dangers on their land may wish to
post signs to warn the public. However, the legal effect and
practical effectiveness of posting may be questionable. In
Gibson v. Keith, 103 the Delaware Supreme Court ruled that "a
landowner who undertakes affirmatively either to warn or bar the
public from entry cannot assert the statute as a bar to a tort
claim brought by a person who has entered the premises either
with knowledge or in disregard of the owner's efforts to keep
the public out." Note, however, that Delaware statute at issue,
unlike 14 M.R.S.A. � 159-A, was identical to the Model Act. 104
Moreover, the Delaware court, dividing the existing recreational
use statutes into four groups, reasoned that landowners who took
affirmative steps to bar trespassers could raise a statute such
as 14 M.R.S.A. � 159-A as a bar.105

Landowners might want to inspect the areas in which they
allow the public to roam, and remove accidents waiting to
happen. Municipal landowners should make a habit of regular
maintenance and attention to public facilities. Common sense
and conscientious precautionary measures may well be the best
antidote to risks of liability.

V. CONCLUSION
The Maine Legislature has significantly altered traditional,
common law rules regarding landowners' liability. In general,
landowners owe a duty of reasonable care to all persons lawfully
on their land. Although they owe no affirmative duty to
trespassers, the law requires that they refrain from willfully
or maliciously setting "traps" to harm trespassers.

The Legislature has also acted to limit the liability of
landowners who allow the public to use their property for
outdoor recreation. The liability of governmental entities
providing public access is governed by the Maine Tort Claims
Act. 14 M.R.S.A. � 159-A, based on a model act adopted in 41
jurisdictions, covers the liability of private landowners. Both
statutes narrowly limit the instances in which the landowner may
be held liable.

Private landowners are generally not liable for injuries to
recreational users on their land whether those users were given
permission or were trespassers. Private landowners remain
liable for willful or malicious harm to recreational users; harm
to users who have paid a fee for use of the property; and harm,
caused by a recreational user, to one to whom a landowner owes a
duty of care.

The Maine Tort Claims Act makes governmental entities immune
from suit resulting from construction, maintenance or use of
outdoor public recreational facilities; activities on unimproved
lands; and use of historic monuments. Thus, municipalities and
other government units should be immune from suit in most
situations involving injury to outdoor recreational users.
Government employees are also partially immune from suit. In
those instances where an employee may be sued, the governmental
entity may often be required to pick up the cost of defending
that lawsuit and, less often, to indemnify the employee. The
MTCA contains stringent notice requirements and an overall
liability limit of $300,000.

Maine law does not entirely eliminate the liability risks of
landowners in regard to public outdoor recreation. Landowners
may wish to take practical steps such as policing their property
to limit their liability further. Purchase of liability
insurance is another option. Private landowners, prior to
purchasing additional insurance, should determine the scope of
existing coverage under any homeowner policies they hold.
Public landowners should be aware that purchase of liability
insurance may alter the scope of the immunity granted by the
MTCA and affect the monetary limit on their liability.

In short, towns and private landowners should not consider
the risk of liability prohibitive of creative and expanded
efforts to furnish much needed recreational access in Maine.

NOTES

1. The term "landowner" is used for convenience. The Act
.Limiting Landowners Liability, 14 M.R.S.A. � 159-A(2), makes it
clear that the rights of "owners, lessees, and occupants" are
governed by its provisions.

2. 14 M.R.S.A. � 159; see Poulin v. Colby College, 402 A.2d
846, 850-51 (Me. 1979); Erickson v. Brennan, 513 A.2d 288,
289-90 (Me. 1986).

3. Poulin, supra.

4. Isaacson v. Husson College, 297 A.2d 98, 105 (Me. 1972); see
also Ferguson v. Britten, 375 A.2d 225, 227 (Me. 1977) (actual
notice of danger by plaintiff not determinative of liability
issue).

5. See Prosser, Law of Torts, 378 (4th ed. 1971).

6. U.S. v. Shultz, 282 F.2d 628, 631 (1st Cir. 1960); Bonney v.
Canadian National Railway Co., 613 F.Supp 997, 1002 (D. Me.
1985), rev1d 800 F.2d 274 (1st Cir. 1986).

7. See Bonney, supra at 1006.

8. Blanchard v. Bass, 153 Me. 354, 361-62 139 A.2d 359 (1958).

9. See Prosser, The Law of Torts, � 34 at 184-85 (4th ed.
1971), cited in Bonney, supra at 1006.

10. See supra note 6

11. Id. at 276 (citing and quoting from district court
decision). .

12. Id. at 277.

13. Id. Jordon v. H.C. Haynes, Inc., infra note 77.

14. 14 M.R.S.A. �� 8101-8818. The MTCA was recently amended.
See P.L. 1988, ch. 740, 113th Legislature, Second Regular
Session. References to the MTCA in this memo give the section
numbers as revised by P.L. ch. 740.

15. See Martin, Common Law, Sovereign Immunity and the Maine
Tort Claims Act, 35 Me. Law Rev. 266, 266-81 (1983) for a cogent
analysis of the relevant common law principles. (Martin
suggests that the MTCA may actually provide broader immunity to
Maine municipalities than under common law.)

16. Supra note 14.

17. Note, however, that this distinction may ha ve some
continued relevance in interpreting some of the MTCA's
provisions. See infra Section III.A.l.c.ii.

18.. 14 M.R.S.A. � 8103(l).

19. See 14 M.R.S.A. � 8104-A. The precise language of the
statute should be consulted.

20. 14 M.R.S.A. � 8104-C.

21. Goodwin v. State, 468 A.2d 1002, 1004 (Me. 1983);
Clockedile v. State Dep't of Trans., 437 A.2d 187, 189 (Me.
1981); see McNally v. Town of Freeport, 414 A.2d 904, 906 (Me.
1980) (hypodermic needle not "other ... equipment" under 14
M.R.S.A. � 8104(l)(b); thus, town immune from suit).

22. 14 M.R.S.A. � 8104-A(2)(A)(1)-(3).

23. 14 M.R.S.A. � 8104-A(2)(B).

24. See Martin, supra at 288 for use of this example in
illustrating the potential policy problems posed by this
indoor/outdoor distinction.

25.. See 14 M.R.S.A. � 8102(2), (3).

26. See 14 M.R.S.A. � 14 M.R.S.A. � 8102(2), (4).

27. See Fitzpatrick v. Greater Portland Development CommIn, 495
A.2d 791, 793 (Me. 1985) (Development Commission made a "State
Agency" by legislative act, covered by MTCA).

28. See 14 M.R.S.A. � 8102(l) (definition of employee).

29. 14 M.R.S.A. � 8103(l).

30. 14 M.R.S.A. � 8104-D.

31. Id.

32. Id.

33. See 14 M.R.S.A. � 8111(l)(A)-(D), as amended by P.L. 1988,
ch. 740 (according employees "absolute immunity" in regard to
the listed actions.)

34. See 14 M.R.S.A. � 8112.

35. See 14 M.R.S.A. � 8112(2).

36. 14 M.R.S.A. � 8112(l).

37. True v. Ladner, 513 A.2d 257 (Me. 1986).

38. Kane v. Anderson, 509 A.2d 656, 656-57 (Me. 1986).

39. MacKerron v. Madura, 474 A.2d 166, 167 (Me. 1984).

40. See 42 U.S.C. � 1983.

41. See 42 U.S.C. � 1988.

42. See Daniels v. Williams, 474 U.S. 327 (1986).

43. 14 M.R.S.A. � 8107(1); See Faucher v. City of Auburn, 465
A.2d 1120, 1123 (Me. 1983). Correspondingly, governmental
employees must comply with statutory notice provisions to
benefit from the MTCA indemnity and defense provsions. See 14
M.R.S.A. � 8112; 8112-A.

44. 14 M.R.S.A. � 8107(l), (4).

45. See, gg., Faucher, supra at 1123 (mother's discussion of
child1s injury and accident with school's employee's
insufficient "notice" under MTCA) but; cf. Nadeau v. City of
South Portland. 424 A.2d 71-5, 716 (Me. 1981) (discharging the
Superior Court's report for interlocutory ruling, the Law Court
reasoned that the "good cause" exception involves determination
of questions of fact reviewable on cearly erroneous standard;
thus, where Superior Court failed to explain basis for "good
cause" determination, Court could not review the finding. The
case does suggest that in certain situations the notice
provision of section 8107 will be contrued liberally to allow
recovery. Here, a claim was filed against the City 22 months
after the injury on behalf of a retarded minor.)

46. 14 M.R.S.A. � 8110.

47. In Maine, the general statute of limitations for civil
actions is 6 years.

48. This amount may be increased by legislative act in a given
case. 14 M.R.S.A. � 8105(3).

49. See section III A(1)(b) supra..-

50. 14 M.R.S.A. � 8115(2).

51. 14 M.R.S.A. � 159-A.

52. See Council of State Governments, Suggested State
Legislation, Vol. XXIV, 150-152 (1965).

53. Ala. Code �� 35-15-1 to 35-15-20 (Supp. 1982); Ark. Stat.
Ann. �� 50-1101 to -1107 (1971); Cal. Civ. Code � 846 (West
1982); Colo. Rev. Stat. �� 33-41-101 to -105 (1973); Conn. Gen.
Stat.-Ann. �� 52-447(f) to -557(k) (West Supp. 1982); Del. Code
Ann. tit. 7 �� 5901-5907 (Supp. 1970); Fla. Stat. Ann � 375..251
(West 1974 & Supp. 1982); Ga. Code Ann. � 51-3-20 to -23
(changed from � 105); Ill. Ann. Stat. ch. 70, �� 31-37 (Smith
Hurd Supp. 19,82-1983); Ind. Code Ann. �� 14-2 to -6-3 (Burns
1982); Iowa Code Ann. �� 111C.1 -.7 (West Supp. 1982-1983); Kan.
Stat. Ann. �� 58-3201 to -3207 (1976); Ky Rev. Stat. Ann.
� 150.645 (Baldwin 1981); La. Rev. Stat. Ann. �� 9:2791 (West
1965); Me. Rev. Stat. Ann. tit. 14 � 159-A (19aO &
Supp.1982-1983); Md. Nat. Res. Code Ann. �� 5-1101 to -1108
(1974 & Supp. 1982; Mass. Gen. Laws Ann. ch. 21 � 17-C (West
1981); Mich. Comp. Laws Ann. � 300.201 (West Supp. 1982-1983);
Minn. Stat. Ann. � 87.01-0.3 (West 1977); Mont. Code Ann.
� 70-16-301 to -302 (1981); Neb. Rev. Stat. �� 37-1001 to -1008
(1978); N.H. Rev. Stat. Ann. � 212:34 (Supp. 1979); N.J. Stat.
Ann. �� 2A:42 A-2 to -5 (West Supp. 1982-1983); N.M. Stat. Ann.
�� 17-4-7 (197-8); N.Y. Gen. Oblig. Law � 9-103 (McKinney 1978 &
Supp. 1981-1982); N.D. Cent. Code �� 53-08-01 to -06 (1982);
Ohio Rev. Code Ann. �� 1533.18-.181 (Page 1978 & Supp. 1982);
Okla. Stat. Ann. tit. 76 �� 10-16 (West 1976); Ore. Rev. Stat.
�� 105.655 -.680 (1981); Pa. Stat. Ann. tit. 68, �� 477.1-.8
(Purden Supp. 1982-1983); S.C. Code Ann. �� 27-3-10 to -70 (Law
Co-op, 1976); Tenn. Code Ann. �� 11-10-102 -103 (1982); Vt.
Stat.-Ann. tit. 10 � 5212 (1973); Va. Code � 29-130.2 (Supp.
1982); Wash. Rev. Code Ann. �� 4.24.200-.210 (Supp. 1982); W.
Va. Code �� 19-25-1 to -5 (1977); Wis. Stat. � 895.52 (1983);
Wyo. Stat. �� 34-389.1-6 (Supp. 1975); Utah � 57-14-1. Three
states enacted recreational use statutes but later appealed
them. See N.C. Sess. Laws 830, � 11 (repealed 1980); S.D.
Codified Laws Ann. � 20-9-5 (repealed 1987); Tex. Rev. Stat.
Ann. art 1B (repealed 1985).

54. 14 M.R.S.A. � 159-A(3)

55. See 14 M.R.S.A.� 159.

56. 14 M.R.S.A.� 159-A(3)(B).

57. 14 M.R.S.A. � 159-A(3)(B).

58. Jones v. Billings '289 A .2d 39, 41-43 (Me. 1972) (adopting
the standard of the Restatement 2nd of Torts � 339). Note that
this case was decided prior to the enactment of the 14 M.R.S.A.
� 159-A.

59. See id.

60. Docket No. CV-86-1213, Cumberland County Superior Court
(decision and order, September 3, 1987).

61. Compare Preston v. Pierce County, 741 P.2d 71, 73, 48 Wash.
App. 887 (1987) (Genuine issue of fact whether municipal
landowner liable under Washington's recreational use statute
where municipal employees 'knew of merry-go-round's dangerous
condition as did injured child's mother, and planned to repair.
Note that Washington's statute on its face imposes liability for
dangerous conditions which injure minors.)

62. See supra note 60.

63. Id.

64. 27 A.2d 596), 598 (Me. 1942).

65. 14 M.R.S.A. � 159-A(l)(A).

66. New Jersey in particular has adhered to this distinction.
See, e.g., Harrison v. Middlesex Water Co., 80 N.J. 391, 403
A.2d 910, 913-14 (1979) (recreational use statute not applicable
in rural or suburban areas). Other states have adopted a
similar rule. See e.g., Kucher v. Pierce County, 600 P.2d 683,
687-688 (1979) (immunity from liability inappropriate "where the
land is improved and frequently policed).

67. 14 M.R.S.A. � 159-A(l)(b).

68. Id.

69. 760 F.2d 366 (1st Cir. 1985).

70. See 28 U.S.C.A. � 2671 et seq. Note that under the FTCA
the federal government's liability is that if a similarly
situated individual rather than a state governmental unit. 28
U.S.C.A. � 2674; Ravonier v. United States, 325 U.S. 315, 319
(1957). Thus, in instances where recreational users were
injured on federal public land in Maine, e.g., White Mountain
National Forest or the Appalachian Trail, 14 M.R.S.A. � 159-A
applies.

71. Schneider, 760 F.2d at 368.

72. 14 M.R.S.A. � 159-A(l)(B).

73. Id.

74. Id.

75. Id.

76. See, e.g., Guillet v. City of New York, 500 N.Y. 2d 946
(1986) (jury found that student and teacher, walking through
nature park to photograph, were "hiking" within meaning of New

York's recreational use statute); Fetterolf v. Ohio, 454 N.C.2d
564, 566 (sitting on beach watching others swim is a
recreational use); Smith v. Scrap Disposal Corp., 158 Cal. Rptr.
134, 137 96 Cal. 3d 525 (genuine factual issues existed under
California's recreational use statute where plaintiff, who had
entered on defendant's land to fish, was injured on another
parcel in defendant's possession); Gerkin v. Santa Clara Valley
Water Dist., (1979) 157 Cal. Rptr. 612, 95 Cal. 3d 1022 (genuine
issue of fact whether plaintiff, who was injured while walking
bike across defendant's bridge, was "hiking" within meaning of
statute); Johnson v. Sunshine Mining Co., Inc., 684 P.2d 268,
270, 106 Idaho 866 (1984) (motorcycling for pleasure a
"recreational" use); Charpentier v. Geldern, 236 Cal. Rptr. 233,
239, 191 Cal. App. 3d 101 (1987) (diving into a river to "cool
off" rather than "swim" clearly a recreational use). -

77. See note 60 and accompanying text; infra notes 81 and 84.

78. L.D. 953, enacted by the 104th Legislature in 1969, P.L.
ch. 196, was the precursor of L.D. 15889. L.D. 953 contained
many of the basic provisions of L.D. 1588, which removed
landowners' liability for recreational activities on water, for
harvesting and gathering of forest products, and expanded the
statutory list of recreational activities. subsequent
amendments follow the same pattern. A 1979 amendment, L.D. 870,
P.L. ch. 519, added hang-gliding to the list of recreational
activities. The Act was again amended in 1983 to specify that
landowners were not liable for injuries suffered by all-terrain
vehicle users. See L.D. 1549 �2, P.L. ch. 297 *�2. 1

79. 14 M.R.S.A. � 159-A(6), L.D. 2229 � 23, P.L. ch. 762 � 25
of the 112th Legislature.

80. 14 M.R.S.A. � 159-A(4)(A).

81. See Jordan v. H.C. Haynes, Inc., 504 A.2d 618, 619 (Me.
1986) (the plaintiff's demonstration that defendant knew that
the private way over a railroad crossing, altered by defendant's
removal of the ties, was used by others raised no genuine issue
of material fact that defendant had willfully or maliciously
failed to keep his property safe or warn of a danger; therefore
the trial court's entry of summary judgment, holding defendant
not liable, was upheld).

82. See, e.g., Wright v. Dudley, 404 NW 2d 217, 219, 158 Mich.
App. 154 (1987) (construction of a dock in shallow water and
failure to warn those permitted to use dock for swimming not
willful misconduct); Thomason v. Olive Branch Masonic Temple,
401 NW 2d 911, 913-14, 56 Mich. app. 736 (1987) (failure to cut
grass and weeds where child killed while playing not willful or
malicious); Cutway v. State, 456 N.Y.S. 2d 539, 541 (1982)
(plaintiff, ATV rider, injured by a thin cable stretched across

dirt road cause of action based on defendant's willful
misconduct where land was open to the public, the cable was
difficult to see, and the State knew motorized vehicles used the
road).

83. See 14 M.R.S.A. � 159-A(4)(B).

84. Kennebec Cty. Sup. Ct., No. CV-85-137 (decided August 7,
1986).

85. See also Moss v. Dep't of Nat. Resources, 62 Ohio St. 2d
138, 142 (1980) (no "consideration" under recreational use
statute unless charge necessary to utilize overall benefits of
recreation area; rent paid which enabled tenant to obtain beach
pass for beach abutting apartment complex was "consideration");
Midwestern, Inc. v. No. Kentucky Community Center, 736 SW.2d
348, 351 (Ky 19) (recreational use statute applied on a day
plaintiff did not have to pay for use of outdoor swimming pool
even though a fee was usually charged).

86. A colloquy in the legislative record regarding the terms of
L.D. 953, P.L. ch. 196, 104th Legislature, indicates that the
Legislature may have intended such a result. See Maine
Legislative Record, at 1093 (April 10, 1969), 1132 (April 11,
1969).

87. 14 M.R.S.A. � 156.

88. 14 M.R.S.A. � 159-A(4)(C).

89. 14 M.R.S.A. � 159-A(4)(B).

90. Cf. 14 M.R.S.A. � 159-A(4)(C). Under this provision, a
landowner is not responsible for actions. of a recreational users
given permission to enter his land which harms another such
user. Note however, the Condon would be liable only if he
broached the duty of reasonable care owed one lawfully on his
land. See Section II (B)(1), supra.

91. see supra note 47.

92. 14 M.R.S.A. � 159-A(6) (West Supp. 1986).

93. Note that since the fee shifting provision is only
triggered when landowners are "found not to be liable,"
landowners may be forced to absorb expenses associated with
suits that are initiated and dropped prior to a determination of
liability.

94. See Maine Rules of Civil Procedure, Rule 11 (West 1986).

95. See 14 M.R.S.A. � 8116.

96. See id.

97. 14 M.R.S.A. � 8103(2)(F); see section III A(l)(b).

98. Noel v. Town of Oguncruit, Docket No. CV-84-351, York County
Superior Court. Plaintiff Noel was injured while recreating on
4 public beach owned by the Town of Ogunquit. She was able to
cover $300,000 (the extent of the town's insurance coverage)
since the Town had purchased liability coverage for the beach
area. The case is now on appeal.

99. Cf. Swallow v. City of Lewiston, 534 A.2d 975, 977 (Me.
1987).

100. See 14 M.R.S.A. � 159-A(6).

101. 14 M.R.S.A. � 8104-A(2)(A)(1), (3).

102. 14 M.R.S.A. � 8116.

103. 492 A.2d 241, 244 (Del. 1985).

104. See supra note 48 (the Maine statute did not contain, for
example, the Model Act's preamble on which the co urt relied
heavily in reaching its decision).

105. See id. at 248, 250. A related issue is whether a
landowner would be liable for a partial, or ineffective warning;
or for negligently executed precautionary steps. Although there
is no definitive answer in Maine, the general "no-duty for
negligence" principle of 14 M.R.S.A. � 159-A, enhancement of
public access, and does not discourage good faith efforts to
improve public safety.

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