DocketNumber: No. CV95 0049384S
Citation Numbers: 1998 Conn. Super. Ct. 583, 21 Conn. L. Rptr. 168
Judges: CORRADINO, J.
Filed Date: 1/6/1998
Status: Non-Precedential
Modified Date: 4/17/2021
The defendant church has filed a motion for summary judgment claiming that it is immune from liability pursuant to §
5. That the property known as 212 Elizabeth Street, Derby, Connecticut, was open and available to the public between July 15 and July 17, 1993, without charge, to attend the St. Mary's Immaculate Conception Church's Summer Festival and outdoor musical concern.
6. That between July 15 and July 17, 1993 many people would utilize the church property at 212 CT Page 584 Elizabeth Street, Derby, Connecticut, for the viewing and enjoyment of outdoor music concerts.
7. That there was no charge for admittance or to attend the outdoor music concern and church summer festival which were held at 212 Elizabeth Street, Derby, Connecticut."
The plaintiff of course opposes the motion and has submitted her own counter affidavit which, in relevant part, refers to the festival and states:
3. To my knowledge and belief, this festival is an annual fundraiser for the defendant and it is set up primarily in the defendant's parking lot.
4. On the day in question there were amusement rides, games of chance, food booths and music.
5. To my knowledge, I believe that the public was able to gain admission to the defendant's property without the payment of an admission fee, although it was necessary to purchase tickets which tickets were necessary in order to use the amusement rides, to purchase food and certain other activities. To my recollection, it was permissible to pay cash for the games of chance and one could listen to the music for free.
6. Other than the days of this festival and occasional other church-sponsored events, the defendant's property was used solely by members of its congregation and the public was not generally invited or permitted to use the property for amusement, games or music.
7. When I attended the festival on July 15, 1993, it was my intention to purchase tickets so that I could accompany my children to the amusement rides and otherwise entertain them. I did not intend the festival for the express CT Page 585 purpose of listening to the music which was being provided."
The standards for ruling on a motion for summary judgment are well-known. If the court determines there is a genuine issue of material fact it cannot decide it but must leave the determination of that issue to the trier of fact. However, a party filing such a motion is entitled to judgment if there is no material issue of fact precluding such judgment.
Our statute states that "where an owner of land makes it available to the public without charge, rent, fee or other commercial service for recreational purpose" the owner is in effect immunized from liability for negligence causing injury to users of the land. Sec.
(4) `Recreational purpose' includes but is not limited to any of the following or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure diving, nature study, waterskiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning and viewing or enjoying historical, archeological, scenic or scientific sights."
The "recreational purpose" language is quite broad and has been given a fairly expansive reading by the court inScrapchansky v. Plainfield,
Just looking at the activities referred to in this suit it would be difficult to conclude that, standing alone, they did not meet the definition of a "recreational purpose." There was an outdoor music concern, games and rides. The fact that some booths sold food would not defeat this characterization. Cf., Turcio v.Old Saybrook, supra. CT Page 586
What the court at least believes should be focused on is the question of fees and charges. In other words, the act and its purposes must be read as a whole. Certainly the legislature wanted to encourage landowners to open their property to the public for recreational uses. In order to do that, the liability of owners had to be limited. On the other hand, if the owner was in fact being compensated for letting people use the land, no good reason would exist for limiting liability. The history and purposes of the act have to be more closely examined.
Our statute is similar to and uses much of the same language as the Pennsylvania statute,
In keeping with this history and the purposes behind the act, courts here and in Pennsylvania have held, for example, that where land is opened for recreational use the owner would still receive immunity under the act if the owner merely charged an annual fee for upkeep and maintenance of the property. This would not be the type of "charge" which would bar application of the act under §§
On the other hand, even where the land is devoted to recreational use, the owner should not be protected from liability for negligence where the owner is compensated for letting people on the land. What the courts in our state and Pennsylvania say is that this means a practice, as distinguished from the annual fee cases, where the landowner lets people on the land on a quid pro quo basis — there is a charge for entering the land at the time and at each time a person enters the land. Gencov. Connecticut Light Power Co.,
On the basis of this record, it does not appear that §
Also, the fact that an admission fee was not charged to enter the festival area but a member of the public could enter that area but had to pay for each game or ride is a distinction without a difference. To say the act applies where no general admission fee is charged would mean that a completely for profit recreational or amusement park could seek the protection of the statute by charging for each recreational activity but just waiving any fee for entering the recreational amusement park area where all the games and amusements were contained. There is no justifiable reason to believe the legislature intended to protect such land owners and operators from negligence liability.
In fact this case is very much like Mills v. Commonwealth,
Penn's Landing asserts that it is entitled to the protection from liability afforded landowners under the RUA as it is a largely unimproved historic site, open to the general public for recreational purposes, free of charge. That description is not complete. Appellee Mills describes Penn's Landing as "a highly developed inner-city waterfront attraction. It contains restaurants, a museum, historic ships, a marina with slips and a stage with an amphitheater." These specifically enumerated attractions all require a fee for attendance. It is also clear from the record that although Penn's Landing hosts various concerts and festivals CT Page 589 free to the public, it is the site of numerous activities for which an admission fee is required.
Id. at p. 1118 "RUA" refers to Pennsylvania's Recreational Use Act, §§
For the foregoing reasons, the court will not grant the motion for summary judgment.
Corradino, J.