## Facts

- A hydroelectric dam facility included a building, tower, and a metal catwalk near three energized 11,000-volt electrical lines above an area used for swimming.
- The property was secured by a perimeter chain-link fence topped with barbed wire, a locked gate, additional locked fencing restricting roof access, warning signs (including no-trespassing and high-voltage warnings), and security patrols.
- Trespassing at the dam sites was a known recurring problem, and a risk consultant had identified hazards to trespassers from high-voltage lines.
- Local children regularly swam near the dam and used parts of the facility as a jumping platform into the river.
- A 13-year-old child entered through a hole in the perimeter fence, climbed over the secondary fence to access the roof areas, moved to the tower and catwalk, contacted an energized 11,000-volt line, and died.
- The child’s parents (as estate representatives) brought a diversity negligence action, asserting an attractive-nuisance theory.
- The defendant moved for summary judgment, asserting immunity under Maine’s recreational-use statute, which covers swimming and limits landowner duties to recreational users, including trespassers.

## Issues

1. Whether Maine’s recreational-use statute (14 M.R.S.A. § 159-A) barred negligence liability for a child trespasser injured while engaging in recreational swimming/diving activity near a privately owned dam facility.
2. Whether evidence could support a finding that the landowner acted “intentional, willful or malicious,” triggering the statute’s exception.
3. Whether the common-law attractive-nuisance doctrine could limit or avoid statutory recreational-use immunity in these circumstances.

## Decision

- Summary judgment was granted for the defendant.
- The court held that the recreational-use statute applied because the decedent’s conduct was recreational swimming/diving activity within the statute’s scope, and the statute eliminates duties to keep premises safe or warn of hazards for recreational users, including trespassers.
- The court rejected creating a judicial exception for child trespassers exposed to severe dangers, declining to add limitations not enacted by the legislature.
- The court held the willful-or-malicious exception did not apply because the record showed, at most, knowledge of trespassing and dangerous conditions, not conduct approaching intent to injure or its equivalent under Maine law.
- Because statutory immunity resolved the case, the court did not reach the attractive-nuisance theory on its merits.

## Legal Principles

- Under Maine’s recreational-use statute, landowners generally owe no duty of care to keep premises safe or to warn of hazardous conditions for recreational activities (including swimming), regardless of whether entrants are invitees or trespassers.
- Courts will apply the statute according to its broad text and will not create extra-statutory carve-outs based on the magnitude of risk or the age of the recreational user.
- The statute’s immunity is displaced only if the landowner’s conduct is “intentional, willful or malicious,” which requires more than awareness of trespassing and dangerous conditions; precautions such as fencing, warnings, and security weigh against such a finding.
- When statutory recreational-use immunity applies, common-law doctrines that would reimpose duties inconsistent with the statute cannot be used to avoid the statutory bar.

## Conclusion

The court entered judgment for the landowner because Maine’s recreational-use statute immunized it from negligence liability for a child trespasser’s fatal electrocution during recreational swimming activity, and the evidence did not support the statute’s narrow exception for intentional, willful, or malicious conduct.


MacVane v. S.D. Warren Co., LLC, 641 F. Supp. 2d 54 (D. Me. 2009)