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Abstract

Since 1961, when the Legislature enacted the original version of Maine's "recreational use statute," the Maine Supreme Judicial Court has had little opportunity to construe the statute's several components. The recent case of Robbins v. Great Northern Paper Co., however, allowed the court to interpret the "consideration" exception of the statute for the first time. In a 4-3 decision, the Maine Supreme Judicial Court, sitting as the Law Court, ruled that a $95.00 annual rental fee for noncommercial, recreational use of a lot on the defendant's property did not constitute "consideration" so as to fall within the exception to landowner immunity. The crux of the debate between the majority and dissenting opinions was a dichotomy between two methods of statutory interpretation. Justice Collins, writing for the majority, reasoned that since the immunity provision as a whole is construed broadly, the logical corollary to this position is to construe any exceptions to immunity narrowly. Justice Glassman, joined by Justices Roberts and Hornby, saw "no such statutory mandate," either by way of prior case law or by legislative intent. Rather, the dissent reasoned that since the statute limits common law tort liability, it should "'be construed to alter the common law only to the extent that the Legislature has made that purpose clear.'" Then, by applying the plain meaning rule of construction, the dissent concluded that a $95.00 rental fee is "consideration" within the common and ordinary meaning of the word."The present question is whether the majority's method of narrow interpretation should prevail when the court faces future cases that challenge this exception provision. Although the majority reached a viable conclusion, no verbal definition of consideration was provided for the benefit of future litigants. Furthermore, since analogous case law from other jurisdictions with similar statutes is decidedly split, the majority's reliance on some cases, and failure to distinguish others, remains unexplained. In general, consideration exceptions in recreational use statutes have spawned a body of seemingly confusing and contradictory decisions within American premises liability law. These exception provisions also raise broader questions of the role of the judiciary as "interpreter" of statutes and what constitutes a "proper" method of statutory interpretation. The objective of this Note is to offer a working definition of "consideration" which is congruent with existing case law and based on sound standards of statutory construction.

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