172 A.3d 522
N.H.2017Background
- Town of Chester owns Wason Pond Conservation and Recreation Area, open to public free, where since ~2012 a rope swing was attached to a shore tree; Town did not install or maintain the swing.
- Town officials and residents raised safety concerns about the swing to the Board of Selectmen in 2012, 2013, and 2015; the Town took no action to remove the swing or post warning signs.
- On August 20, 2015, minor Christopher Kurowski was injured when he collided with a person using the rope swing while attempting to slap that person’s feet before they hit the water.
- Plaintiff (father, next friend) sued Town for negligence and intentional/willful tort for failing to remove the swing or post warnings; Town moved to dismiss based on recreational-use immunity (RSA 212:34 and RSA 508:14).
- Superior Court granted dismissal, finding RSA 212:34 barred all claims and RSA 508:14 barred negligence; plaintiff appealed. The Supreme Court affirmed, addressing RSA 212:34 issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Christopher’s conduct was an “outdoor recreational activity” under RSA 212:34 | Activity (rope-swinging/slapping feet) is not covered because it used a man-made apparatus and was unauthorized/hazardous | Rope-swinging is similar to enumerated “water sports” and RSA 212:34 is not limited to natural features or owner-provided equipment | Held: Yes — the conduct is an outdoor recreational activity (similar to water sports) |
| Whether Town’s conduct was “willful” under RSA 212:34 V(a) so immunity is lost | Town knew of hazard and did nothing, so its failure to guard or warn was willful | Even with knowledge, allegations at most show negligence; plaintiff did not plead that injury was a probable (as opposed to possible) result | Held: No — pleadings insufficient to show willful conduct |
| Whether Town’s conduct was an “intentional act” under RSA 212:34 V(d) so immunity is lost | Repeated warnings and inaction show Town acted intentionally (substantially certain injury would occur) | Allegations reflect risk appreciation and inaction, which amount to negligence, not conduct substantially certain to cause injury | Held: No — pleadings insufficient to show intentional act |
| Whether trial court abused discretion by denying request to delay ruling for discovery | Discovery could show Town knew injury was probable and cure pleading defects | Complaint fails as matter of law; discovery cannot cure legal insufficiency; denial not an abuse | Held: No — denial proper because complaint fails to plead required facts |
Key Cases Cited
- Coan v. N.H. Dep’t of Env’t Servs., 161 N.H. 1 (standards for review of motion to dismiss)
- Dolbeare v. City of Laconia, 168 N.H. 52 (construing RSA 212:34 and ejusdem generis application)
- Estate of Gordon-Couture v. Brown, 152 N.H. 265 (legislative intent of RSA 212:34 to encourage landowner access by limiting liability)
- Fish v. Homestead Woolen Mills, 134 N.H. 361 (diving into lake held within protection of recreational-use immunity)
- Collins v. Martella, 17 F.3d 1 (1st Cir.) (diving from dock as a water-sport example; knowledge of hazard may support negligence but not necessarily willful misconduct)
- Ives v. Manchester Subaru, Inc., 126 N.H. 796 (definition of “willful” in other statutory context)
- Thompson v. Forest, 136 N.H. 215 (definition of intentional tort: conduct substantially certain to cause injury)
- Spires v. United States, 805 F.2d 832 (9th Cir.) (three-part test for willful misconduct under recreational-use statutes)