Dickinson v. Clark
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 49
Docket:	Aro-00-328
Argued:	December 12, 2000
Decided:	March 15, 2001

Panel:WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

ANGELA DICKINSON

v.

CLARENCE CLARK

DANA, J.

	[¶1]  Angela Dickinson appeals from the entry of a summary judgment
in favor of Clarence Clark in the Superior Court (Aroostook County,
Pierson, J.) contending that Maine's Recreational Use Statute, 14 M.R.S.A.
§ 159-A (Supp. 2000), does not insulate Clarence from liability; that there
are questions of material fact as to whether Clarence may be found negligent
for supplying dangerous machinery for use by a minor pursuant to section
388 of the Restatement (Second) of Torts (1965); and that, pursuant to
section 343A of the Restatement (Second) of Torts (1965), there is a question
of fact as to whether Clarence should have anticipated that the wood
splitting activity on his land would result in harm to Angela.  Because we 
conclude that Maine's Recreational Use Statute and section 343A do not
apply to this negligent supervision claim and a question of material fact
exists pursuant to section 388, we vacate the judgment.
	[¶2]  The following facts are not in dispute.  In October of 1997, 
Angela, with her mother, Cindy Clark; her stepfather, David Clark; and her
brother, Nicholas Dickinson, visited her step-grandfather, Clarence Clark. 
The visitors came to split wood that David had cut from Clarence's wood lot
behind his house.  Early in the day, David had been loading Clarence's
splitter, but at the time of Angela's accident David was using a chain saw to
cut up large logs.  Clarence turned the splitter on while David was sawing,
then he began to move the cut wood toward the splitter.  Cindy ran the
controls of the splitter.  Angela had worked around the splitter before, and
had operated the lever in the past, but had never loaded the splitter, and
had never received instructions.  Clarence did not warn or instruct Angela
about the use of the splitter and he did not prevent her from loading it
despite his awareness of a label warning against allowing minors to use the
splitter.  In the process of splitting her first piece of wood, Angela's right
hand was severed.
	[¶3]  Angela filed a complaint alleging that Clarence "was negligent in
the supervision and instruction regarding the operation of [the] wood
splitter."  The court granted Clarence's motion for a summary judgment on
the ground that there was no genuine issue as to any material fact and
Clarence was entitled to a judgment as a matter of law.  Angela moved for
findings of fact and conclusions of law, but the court denied her request
pursuant to M.R. Civ. P. 52(a).
	[¶4]  We review a summary judgment "for errors of law, viewing the
evidence in the light most favorable to the party against whom the judgment
was entered."  Holland v. Sebunya, 2000 ME 160, ¶ 8, 759 A.2d 205, 209
(quoting Peterson v. State Tax Assessor, 1999 ME 23, ¶ 6, 724 A.2d 610,
612).  A summary judgment is proper "if the evidence demonstrates that
there is no genuine issue as to any material fact and that the moving party is
entitled to [a] judgment as a matter of law."  Id. (brackets in original)
(quoting Peterson, ¶ 6, 724 A.2d at 612).  We must "independently
determine whether the record supports a summary judgment."  Kezer v.
Mark Stimson Assocs., 1999 ME 184, ¶ 11, 742 A.2d 898, 902.

I.

	[¶5]  Angela contends that Maine's Recreational Use Statute is a
premises liability statute that does not apply to this negligent supervision of
machinery; the statute was intended to apply to wild lands, not residential
property; the statute was intended to protect landowners from suits by
members of the public, not individuals personally invited to the premises;
and Angela was not involved in "the harvesting or gathering of forest . . .
products," within the meaning of the statute.  Clarence agrees that the
complaint does not allege premises liability, but contends that, should the
court find otherwise, the statute applies because Angela and her family were
engaged in a harvesting activity on Clarence's land.  Clarence contends, as
well, that the statute applies when the injury occurred on residential
property and when the injured party was invited to the premises.
	[¶6]  The Recreational Use Statute provides, in relevant part:

	2.  Limited duty.  An owner . . . of premises does not have a
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.  This subsection applies
regardless of whether the owner . . . has given permission to
another to pursue recreational or harvesting activities on the
premises. 

	3.  Permissive use.  An owner . . . who gives permission to
another to pursue recreational or harvesting activities on the
premises does not thereby:

A.  Extend any assurance that the premises are safe for
those purposes;

B.  Make the person to whom permission is granted an
invitee or licensee to whom a duty of care is owed; or

C.  Assume responsibility or incur liability for any injury to
person or property caused by any act of persons to whom
the permission is granted.

14 M.R.S.A. § 159-A.  For the purposes of the statute, "recreational or
harvesting activities" means "recreational activities conducted
out-of-doors," which includes "the harvesting or gathering of forest, field or
marine products."  Id. § 159-A(1)(B).
	[¶7]  "We construe the immunity provision of section 159-A broadly." 
Hafford v. Great Northern Nekoosa Corp., 687 A.2d 967, 969 (Me. 1996)
(citing Robbins v. Great Northern Paper Co., 557 A.2d 614, 616 (Me. 1989));
see Stanley v. Tilcon Maine, Inc., 541 A.2d 951, 953 (Me. 1988) (holding
that the statute applies even if the injured party is a minor).  Nonetheless,
the Recreational Use Statute only limits claims that allege premises liability. 
The statute limits the duty of the owner to "give warning of any hazardous
. . . activity on these premises . . . ."  14 M.R.S.A. § 159-A(2).  Angela's
complaint alleges negligent supervision and instruction on the use of the
splitter, not a failure to disclose a hazardous activity on the land.  The statute
does not prevent Angela from bringing this claim against Clarence for failing
to supervise and instruct her about the proper use of the splitter.{1}

II.

	[¶8]  Angela contends that there are questions of material fact as to
whether, pursuant to section 388 of the Restatement (Second) of Torts,
Clarence used reasonable care to inform her of the facts that would make
the operation of the splitter likely to be dangerous.  According to Angela,
Clarence knew that a label on the splitter warned against allowing minors to
operate the equipment, but he failed to respond when Angela took over
loading the splitter.  Clarence contends that he did not owe a duty to Angela
pursuant to section 388 because subsection (b) indicates that there is no
duty to warn when a danger is obvious and would be disclosed by a casual
inspection.
	[¶9]  Section 388 of the Restatement (Second) of Torts provides:

One who supplies directly or through a third person a chattel for
another to use is subject to liability to those whom the supplier
should expect to use the chattel with the consent of the other or
to be endangered by its probable use, for physical harm caused
by the use of the chattel in the manner for which and by a
person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is
likely to be dangerous for the use for which it is supplied,
and

(b) has no reason to believe that those for whose use the
chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its
dangerous condition or of the facts which make it likely to
be dangerous.

Restatement (Second) of Torts § 388.  Although the danger associated with
the operation of a wood splitter may be obvious to an adult within the
meaning of the Restatement, just like the dangers associated with using a
pocket knife, an axe, a planer, a gun, or an industrial potato grinder, see
Plante v. Hobart Corp., 771 F.2d 617, 619-20 (1st Cir. 1985); see also
Laaperi v. Sears, Roebuck & Co., Inc., 787 F.2d 726, 730-31 (1st Cir. 1986)
(stating that the risks of cutting oneself with a knife, burning oneself on a
stove, or injuring or killing a person by firing a BB gun at close range are
obvious); Estate of Schilling v. Blount, Inc., 449 N.W.2d 56, 61 (Wis. Ct. App.
1989) (holding, pursuant to section 388, that a bullet manufacturer had no
duty to warn of the dangerousness of bullets because the danger involved
with handling loaded weapons is obvious), we cannot say as a matter of law
that the dangers involved with loading the splitter would be obvious to a 
sixteen year old.  Whether Clarence had "no reason to believe" that Angela
would realize the splitter's dangerousness is a question of fact.  See
Restatement (Second) of Torts § 388(b).  It may be established that Clarence
breached a duty he owed to Angela.

III.

	[¶10]  Angela contends that there is a genuine issue of fact regarding
whether, even if the danger is obvious, Clarence failed properly to react to
the risk of harm that existed.  See Restatement (Second) of Torts § 343A. 
According to Clarence, section 343A does not apply because Angela's
complaint does not allege premises liability and because a landowner has no
duty to a person whose injury resulted from her voluntary participation in an
activity on his land that he did not supervise, and over which he exercised
no control.
	[¶11]  We have applied section 343A(1) of the Restatement (Second) of
Torts in premises liability cases.  Colvin v. A R Cable Servs.-ME, Inc., 1997
ME 163, ¶ 8, 697 A.2d 1289, 1291; see, e.g., Coffin v. Lariat, 2001 ME 33,
--- A.2d --- (affirming summary judgment because instability of mobile home
that dropped on plaintiff's foot was obvious).  Section 343A provides, in
pertinent part:  "A possessor of land is not liable to his invitees for physical
harm caused to them by any activity or condition on the land whose danger
is known or obvious to them, unless the possessor would anticipate the
harm despite such knowledge or obviousness."  Restatement (Second) of
Torts § 343A(1); Williams v. Boise Cascade Corp., 507 A.2d 576, 577 (Me.
1986).
	[¶12]  Angela's complaint alleges negligent supervision and instruction
on the use of a piece of equipment, which is not a claim based on premises
liability.  Section 343A, therefore, does not apply.

	The entry is:
Judgment vacated.  Remanded to the Superior
Court for further proceedings consistent with
this opinion.

Attorneys for plaintiff:

Benjamin A. Lowry, Esq.
Humphrey Johnson, Esq., (orally)
Lowry & Associates
P O Box 9715-346
Portland, ME 04103

Attorneys for defendant:

David C. King, Esq.
Edith A. Richardson, Esq., (orally)
Rudman & Winchell, LLC
P O Box 1401
Bangor, ME 04402-1401