A recent client posed the question whether he faces potential liability for allowing members of the public to fish at his pond in the summer and skate on his pond in the winter.  Most of the recreational users are children from the neighborhood.   Apparently, the use of the pond by neighborhood children has been a long standing tradition.  The landowner has neither encouraged nor prohibited the children from entering his property for recreational purposes.

The landowner was concerned whether liability could be imposed if a child was injured or drowned in the pond due to slipping down the embankment while fishing or breaking through the ice while skating.   The answer is definitely not.

In 1966, Maryland enacted a law that specifically encouraged private landowners to allow members of the public to enter their land (including water) without charge for recreational or educational purposes in exchange for liability protection.  Under Maryland Natural Resources section 5-1104, a Maryland landowner owes no duty of care to members of the public to protect them from unsafe conditions on his property or to warn of any known dangers on his property.

This limitation of liability applies to all recreational and educational users of the property (such as joggers, hikers, skiers, hunters, birders, etc.) as long as members of the general public are not charged to enter the property.  See Fagerhus v. Host Marriott Corp. 143 Md.App. 525 (2002).

However, this liability protection does not apply when a landowner expressly invites guests over to participate in a recreational event.  In Martinez v. Ross, 245. Md.App. 581 (2020), a landowner held a social event at his farm called “Cookout, Bikes, and Music”; and about 90 people attended the event.  One guest was severely injured when his all terrain vehicle (ATV) flipped over, because the landowner had defectively designed the ATV course.  The court held that the statutory immunity of Natural Resources section 5-1104 did not apply, because the landowner had not made his property available to the general public.   Instead, the landowner owed a common law duty to his social guests to make the premises safe and to warn his social guests of any known dangerous condition that cannot reasonably be discovered.

Stewart Sutton advised his client to continue to allow neighbor children to use his pond for fishing and skating.  There was no need to install “no trespassing” signs or to build a fence around his pond.