Maryland Continues to Define Contours of Recreational Use Statute in Premises Liability
Since its enactment, the Recreational Use Statute, Md. Code Ann., Nat. Res. § 5-1101 et. seq., a statutory enactment limiting the liability of owners who hold out their land “for use by others for any recreational or educational purpose” has seen little judicial focus until recently. However, in the past few years there have been a flurry of cases analyzing the applicability of the Statute and land owners should be apprised of these developments.
Last year in 2025, in Mayor and City Council of Baltimore v. Wallace, 492 Md. 349 (2025) the Supreme Court of Maryland affirmed the Appellate Court of Maryland and found that the Recreational Use Statute did not protect the City against claims brought by a cyclist on the Harbor Promenade, because the Promenade was not merely a recreational park but also part of the city’s “transportation infrastructure” and the plaintiff’s use was consistent with transportation, even if cycling can also be a recreational activity.
The recently published Appellate Court opinion DeVaughn v. StoneMor Partners, L.P. No. 578 September Term, 2025, has provided further guidance as to how courts below are to analyze whether a landowner is immunized by the Recreational Use Statute.
The court applied the Recreational Use Statute to a claim of negligence against a cemetery owner after a visitor tripped in a ditch on the cemetery grounds while visiting her son’s gravesite. In dicta, the Court found that “subjective purpose aside” . . . the Plaintiff’s act of “walking through a publicly accessible . . . cemetery” could fall within recreational use, despite the fact that the plaintiff herself argued that she was a business invitee. However, since the purpose of the Cemetery was not purely recreational, but also commercial and arguably historic, the Court articulated the holding of Wallace as a sort of multi-part test, requiring the judge to:
- look at the area where a plaintiff was injured;
- determine whether the landowner intended that area to be used for recreation and education or for some other purpose;
- and, if it finds that the landowner did intend the area where the injury occurred to be used for some other purpose,
- to determine whether the plaintiff’s use was consistent with that purpose even if it could “also constitute[ ] a recreational activity.”
The Appellate Court instructed the Circuit Court that it must determine if the specific area – including whether the plaintiff was on a path or near a gravesite – where the plaintiff fell was one the landowner intended to be used primarily for commercial purposes (i.e., the sale of burial plots and related activities, like funerals or the visitation of loved ones’ gravesites) or if she sustained her injury in an area intended for recreation (e.g., a walking or biking path) or educational uses (e.g., an area of the Cemetery devoted to the observation of historically significant gravesites).
Owners of open space and public recreational facilities, ranging from sports fields, paths outside apartment complexes, green space, tennis courts, et cetera, should all be aware of this holding, as it is not only the objective activity performed by the party coming onto land, but also the apparent subjective intent of the landholder in holding out the property to the public. A walking path in a condominium complex that takes residents through a green space might be recreational, but if it is also a main through-route for pedestrians, it may lose any protection under the Statute. Similarly, it is important to understand that it does not matter what a user’s intent is – a purely recreational activity that could also constitute some other purpose, such as cycling, may entitle visitors on otherwise recreational property to be able to recover where previously they could not.
Written by Dillon A. Swensen, Esq.
