Robbins v. Great Northern Paper Co.

GLASSMAN, Justice,

with whom ROBERTS and HORNBY, JJ., join, dissenting.

I respectfully dissent. I agree with the court that no questions of fact exist as to whether Great Northern’s conduct was wilful or malicious or whether Robbins was engaged in a recreational activity at the time of his death. I cannot agree, however, that the $95 annual rental fee paid by Robbins to Great Northern for the lease of a lot and “the right to pass over other lands of the lessor in going to or from the leased land” does not constitute “consideration” within the meaning of section 159-A(4)(B).

The court’s reliance on Noel v. Town of Ogunquit, 555 A.2d 1054 (Me.1989), and Moffett v. City of Portland, 400 A.2d 340 (Me.1979), to support its narrow interpretation of the consideration exception is misplaced. In Noel we determined that the municipality’s immunity, if any, in its ownership and operation of a public beach was governed by the provisions of 14 M.R.S.A. §§ 8101-8118 (1980 & Supp.1988) and not by 14 M.R.S.A. § 159-A. We did not discuss whether the language in section 159-A should be given a “broad” or “narrow” interpretation. Our decision was based solely on the well-established rule that statutes must be construed in connection with all pertinent statutes in order to reach the harmonious result intended by the legislature. Noel v. Town of Ogunquit, 555 A.2d at 1056. In Moffett we held that the corollary to the statutory mandate that the Freedom of Access Act be liberally construed “is necessarily a strict construction of any exceptions” contained in the Act. Moffett v. City of Portland, 400 A.2d at 348. Here there is no such statutory mandate. Since the recreational land use statute limits the common law tort liability landowners have toward licensees, see Poulin v. Colby College, 402 A.2d 846, 851 (Me.1979) (court abolished distinction between licensees and invitees and held that “owner or occupier of land owes the same duty of reasonable care in all the circumstances to all persons lawfully on the land”), the statute should “be construed to alter the common law only to the extent that the Legislature has made that purpose clear." Emery Waterhouse Co. v. Lea, 467 A.2d 986, 996 (Me.1983); see also Ducey v. United States, 713 F.2d 504, 510 (9th Cir.1983) (Because the recreational use statute limits common law tort liability, the *618consideration exception “must be given the broadest reading that is within the fair intendment of the language used.”); Copeland v. Carson, 46 Wis.2d 337, 347, 174 N.W.2d 745, 749 (1970).

Section 159-A(4)(B) provides that the provisions of section 159-A shall not limit the liability that would otherwise exist “[f]or an injury suffered in any case where permission to pursue any recreational or harvesting activities was granted for a consideration....” 14 M.R.S.A. § 159-A(4)(B). The term “consideration” is not defined in the statute.1 It is a fundamental rule of statutory construction that, “Words which are not expressly defined in the applicable statute must be accorded their plain and common meaning and should be construed according to their natural import.” Brousseau v. Maine Employment Sec. Comm’n, 470 A.2d 327, 330 (Me.1984), cited in State v. Maine Cent. R.R., 517 A.2d 55, 57 (Me.1986). Although the court applies this rule in its interpretation of “recreational or harvesting activities,” the rule is ignored in its interpretation of the term “consideration.” See also Stanley v. Tilcon Maine, Inc., 541 A.2d 951, 953 (Me.1988) (court using plain meaning rule for interpretation of language in section 159-A).

The provision in the lease agreement between Robbins and Great Northern that granted permission to Robbins to pursue the recreational activity of traveling to his camp “over other lands of the lessor” was in partial exchange for the annual payments of $95.00 made by Robbins to Great Northern. Great Northern and Robbins determined the scope of their lease agreement and how much it was worth. They decided that the provision for entry over Great Northern’s lands was important enough to include as a specific entitlement under the lease even though Great Northern generally makes its land open to the public for recreational activities. We are in no position to say that Robbins would have leased the camp without the guaranteed right of access. They also decided that $95 was the appropriate annual payment for the lease, rather than $9.50 or $950. Clearly that payment was both a benefit to Great Northern 2 and a detriment to Robbins within the common and ordinary meaning of those words as used in the definition of “consideration.” See Kennebunk Sav. Bank v. West, 538 A.2d 303, 304 (Me.1988) (“Consideration can either be a benefit to the promisor or a detriment to or forbearance by the promisee.”); Black’s Law Dictionary 277 (5th ed. 1979) (consideration defined as “[s]ome right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other”).

I am further disturbed that the court relies on the fact that “Great Northern charges no fee to the general public to use its lands, streams, lakes and roads for recreational activities” for its determination of the applicability of the limited liability provided in section 159-A. The court’s statement that by virtue of the lease agreement Robbins had no greater right than the general public is patently contrary to the express terms of the lease. The lease granted to Robbins “the right to pass over other lands of [Great Northern] in going to or from the leased land” on which he had also been granted the right to construct and use a recreational residence. For the *619term of their lease Great Northern could not exclude Robbins from travelling over Great Northern’s land in going to and from his recreational residence. To the contrary, any use of Great Northern’s land by the general public is within the sole control of Great Northern and can be limited or prohibited by it at any time.

Because the use of the land by Robbins at the time of his death was directly within the terms of the lease for which he paid consideration, I would conclude that the trial court erred in its determination that the payments made by Robbins to Great Northern did not constitute consideration within the purview of 14 M.R.S.A. § 159-A(4)(B). Contrary to the court’s holding, the legislative goal of the statute is clearly articulated in the statute as it relates to the facts of this case: If Great Northern will open its land to recreational use by the public without any payment of consideration to it, it will not be liable in damages for injuries occurring to any member of the public while on the land; however, if Great Northern requires that any consideration be paid to it for such recreational use by any member of the public, as to that paying member, Great Northern will be liable under the common law principles governing landowner and licensee. The express provision in the statute distinguishing Great Northern’s liability to Robbins from that to the general public cannot be said to defeat the purposes of the statute. I would vacate the judgment of the Superior Court.

. The case law from other jurisdictions relied on by the court is inapplicable because these courts were interpreting statutes significantly different than the statute at issue here. See, e.g., Garreans v. City of Omaha, 216 Neb. 487, 491, 345 N.W.2d 309, 313 (1984) (Clear and unambiguous meaning of statute defining term "charge” as " ‘the amount of money asked in return for an invitation to enter or go upon the land’’’ is "that in order to constitute a charge, any moneys paid must be paid for the right to enter the facility.") (quoting Neb.Rev.Stat. § 37-1008 (1988)); Moss v. Department of Natural Resources, 62 Ohio St.2d 138, 142, 404 N.E.2d 742, 745 (1980) (plaintiffs’ payments of consideration in exchange for gas, food or canoe rental did not cause them to fall within definition of "recreational user” which is "one who has permission to enter upon ‘premises’ without the payment of a fee or consideration”) (emphasis in original).

. The land use manager for Great Northern stated by affidavit that the consideration was designed “to cover administrative costs and real estate taxes.” That is certainly an economic benefit to Great Northern.