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Mall Walk Like A Walk in the Park
by Ron Davis

A woman injured while recreational walking at a Massachusetts shopping center has failed in her attempt to blame the center’s management for the accident.

The shopping center is Square One Mall in the Boston suburb of Danvers, and the injury occurred early one Sunday morning before the individual stores and shops opened for business that day. As the woman’s walk took her near a music store located in the mall, a group of that store’s employees were just concluding an early-morning meeting. A few of the employees were standing just outside the store and began engaging in horseplay. As she passed the group, one of the employees jumped back and his boot hit the woman’s leg. She suffered a serious injury from the blow.

She sued the center’s management, claiming that even though she was at the center exclusively for recreational purposes, management there had a duty to protect her from injury and was therefore negligent.

Massachusetts law, however, specifically protects property owners in such situations. It states that a property owner who permits the public to use his land for recreational purposes without imposing a charge or fee “shall not be liable for personal injuries sustained by the such members of the public...in the absence of willful, wanton or reckless conduct” by the property owner.

The purpose of that law is to encourage landowners to allow the public free use of land for recreational purposes by limiting the landowners’ risk of lawsuit.

The injured woman argued, however, that the law doesn’t apply to a commercial shopping center setting. She added that such a setting is a “distant cry from typical recreational activities in parks and fields.”

But Massachusetts’ courts didn’t buy into that argument, pointing out that mall walking has become a common feature of modern life. Added the judges, “Even if walks in public parks are not a thing of the past, a parallel custom of walks in the nation’s malls appears to have developed.”

The courts therefore dismissed the woman’s lawsuit, explaining, “The fact here fit comfortably within the literal text of the law: At the time of the woman’s injury, she was engaged in recreation, she was doing so on private property, and the property was opened to the public with no fee being charged in order to permit the kind of recreational use being made of the property by her.” (Nitishin v. The Musicland Group, Inc., 2005 WL 3627262 [Mass. Super.])

Decision: December 2005
Published: January 2006



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