2004-815, TERRY W. KENISON & a. v. ANDRE DUBOIS & a.

I (2000) (amended 2003) and RSA 215 - A:34, II (2000). We reverse and remand. defendants are immune from liability under RSA 508:14, I (1997), RSA 212:34, appeal, the plaintiffs argue that the trial court erred in ruling that the Andre Dubois and the Waumbek Methna Snowmobile Club (Wau mbek). On Superior Court (Vaughan, J.) granting summary judgment to the defendants, administrators of the Estate of Brody J. Kenison, appeal a ruling of the DALIANIS, J. The p laintiffs, Terry W. Kenison and Diana L. Kenison, co -

for the defendants. (Robert C. Dewhirst and Donald L. Smith on the brief, and Mr. Smith orally), Devine, Millimet & Branch, Professional Association, of Manchester

Mark D. Morris sette on the brief, and Mr. Morrissette orally), for the plaintiffs. McDowell & Osburn, P.A., of Manchester (Joseph F. McDowell, III and

No. 2004 - 81 5 Coos

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

fuelwood, or to give any warning of h azardous conditions, uses of, OHRVs as defined in RSA p. 2 215 - A, hiking, sightseeing, or removal of hunting, fishing, trapping, camping, water sports, winter sports or care to keep such premises safe for entry or use by others for I. An owner, lessee or occupant of pre mises owes no duty of

RSA p. 2 212:34 provides, in pertinent part:

in the absence of intentionally caused injury or damage. activity, shall not be liable for personal injury or property damage use land for recreational pu rposes or as a spectator of recreational political subdivision, who without charge permits any person to An owner, occupant, or lessee of land, including the state or any

RSA 508:14, I, provides:

on appeal. land. Because we agree, w e need not address the plaintiffs’ other arguments from liability because they do not qualify as owners, lessees or occupants of On appeal, the plaintiffs first argue that the defendants are not immune

ju dgment as a matter of law, we will affirm the trial court’s decision. Id. any genuine issue of material fact, and if the moving party is entitled to State, 150 N.H. 405, 407 ( p. 2 2003). If our review of the evidence does not reveal in the light most favorable to the non - moving party. Estate of Joshua T. v. the affidavits and other evidence, and all inferences prop erly drawn from them, When reviewing a trial court’s grant of summary judgment, we consider

court granted the defendants’ motion. This appeal followed. use statutes, RSA 508:14, I, RSA p. 2 212:34, I, and RSA 215 - A:34, II. The trial judgment, arguing that they are immune from liability under the recreational After the plaintiffs brought suit, the defendants moved for summary

program sponsored by the State of New Hampshire. compensation to recover its t rail - grooming expenses through a grant - in - aid of the “Corridor 5” trail where the collision took place. Waumbek receives twenty years, has voluntarily maintained, groomed and developed the portion by Portland Pipeline. Waumbek is a nonprofit snowmobile club that, for over Portland, Maine, through New Hampshire, to Montreal, Quebec, and is owned the public for multiple uses, including use by snowmobiles. It runs from resulting in his death. “Corridor 5” is a recreational trail open year - round to machine (snow groomer) owned by Waumbe k and operated by Dubois, 5” snowmobile trail in Jefferson, when he collided with a snow - trail grooming p. 2 2001, the decedent, Brody Kenison, was riding his snowmobile on the “Corridor The record reflects the following facts. On the morning of February 26, p. 3 3

must have been occup ants of the land. be entitled to immunity under any of the three recreational use statutes, they defendants were not owners or lessees of the land. Thus, for the defendants to o ccupant of the land where the accident occurred. The parties agree that the immunity from liability is provided to a party who is an owner, lessee or 215 - A:1, VI (2000). Under RSA 508:14, I, RSA 212: p. 3 34, and RSA 215 - A:34, II, snowmobile qualifies as an off - highway recreational vehicle (OHRV), see RSA For the purposes of the above statut es, the parties agree that a

v. Howard, 150 N.H. 65 p. 3 3, 654 (2004). We review the trial court’s interpretation of a statute de novo. Remington Invs. possible, we ascribe the plain and ordinary meanings to the words used. Id. N.H. 513, 515 (2004). We first examine the language of the statute, and, where the statute considered as a whole. In the Matter of Jacobson & Tierney, 150 are the final arbiter of the intent of the legislature as expressed in the words of The issue before us presents questio ns of statutory interpretation. We

hazards. for any injuries which result from such inherent risks, dangers, or maintain an action against an owner, occupant, or lessee of land matter of law, the dangers inherent in the sport, and shall not Therefore, each person who drives or rides an OHRV acce pts, as a It is recognized that OHRV operation may be hazardous.

RSA 215 - A: p. 3 34, II provides, in pertinent part:

hereof. permission has been granted except as provided in paragraph III person or property caused by any act of such person to whom (c) Assume responsibility for or incur liability for an injury to

owed, or granted the legal status of an invitee to whom a duty of care is (b) Constitute the pe rson to whom permission has been

purpose, or (a) Extend any assurance that the premises are safe for such

such premises . . . does not thereby: as defined in RSA 215 - A, sightsee upon, or remove fuelwood from, permission to another to hunt, fish, trap, camp, hike, use OHRVs II. An owner, lessee or occupant of premises who gives

such purposes, except as provided in paragraph III hereof. structures, or activities on such premises to persons entering for p. 4 4

when interpreting any one of them. See Berksdale v. Town of Epsom, 136 N.H. statutes that deal with the same subject matter, we consider all of the statutes scheme. State v. Whittey, 1 p. 4 49 N.H. 463, 467 (2003). When we interpret t hem, and in light of the policy sought to be advanced by the entire statutory Our goal is to apply statutes in light of the legislature’s intent in enacting

liberally). Wisconsin courts construe recreational use statutes granting immunity Association, Inc., 695 N.W.2d 889, 893 n.6 (Wis. Ct. App. 2005) (noting that Wisconsin courts do not. See Leu v. Price County Sno wmobile Trails common law, Sweeney v. Ragged Mt. Ski Area, 151 N.H. 239, 2 p. 4 41 (2004); follow the policy of strictly interpreting statutes that are in derogation of the recreational use statute s and the policy employed by Wisconsin courts. We defendants overlook a key difference between our policy of interpreting using this definition of “occupant.” But, in arguing that we follow Smith, the argue that we should interpret the New Hampshire recreational use statutes exclude persons from land or grant persons access to land). The defend ants Circuit’s interpretation and concluding that “occupant” must have ability to see Ward v. State, 890 P.2d 1144, 1147 - 48 (Ariz. 1995) (rejecting Seventh because it made actual use of the property with a degree of permanence. But Wisconsin statute, determined that a snowmobile club qualified as an occupant (1988)), in which the Seventh Circuit Court of Appeals, interpreting a similar intermediate appellate court in Hall v. Turtle Lake Lions Club, 531 N.W.2d 636 823 F.2d 1193, 1197 - 98 (7th Cir. 1987) (construction approved by Wisconsin The defendants refer us to Smith v. Sno Eagles Snowmobile Club, Inc.,

interest in the premises, or someone who has title to the premises. someone who has control of the premises, someone who h as a possessory could be someone who is on the premises, someone who is using the premises, persons depending upon the context in which the term is used. An “occupant” “occupant” has the potential to encompass either a broad or a narrow class of 1106 (7th ed. 1999). These varying definitions demonstrate that the term premises” or “[o]ne who acquires title by occupancy.” Black’s Law Dictionary “[o]ne who has possessory rights in, or control over, certain property or unabridged ed. 2002). Black’s Law Dictionary defines “occupant” as either something.” Webster’s Third New International Dictionary 1 p. 5 560 (2d particular place or premises”; and ( p. 4 4) “one who has actual use or possession of possession under title, lease or tenancy at will”; (3) “one who occupies a no owner and thereby acquires title by occupancy”; (2) “one who takes ways, including: (1) “one who takes the first possession of something that has 226, 227 (200 3). Webster’s dictionary defines “occupant” in several different ordinary meaning. In the Matter of Blanchflower & Blanchflower, 150 N.H. When statutory terms are undefined, we ascribe to them their plain and None of the recreational use statutes provides a definition of “occupant.” 5

do not find Kantner persuasive. Smith. Kantner, 701 F. Supp. at 947. As we rejected that definition above, we importantly, Kantner relied upon the broad definition of “occupant” set forth in required element of the New Hampshire recreational use statutes. More to immunity, Kantner did not specifically address whether permission is a without the a pparent ability or authority to permit access to land were entitled F. Supp. 943 (D.N.H. 1988). While Kantner may have ruled that defendants The defendants also rely upon Kantner v. Combustion Engineering, 701

give persons permission to enter or use land. hold that an occupant of la nd must, at least, have the ability or authority to interpreting stat utes in derogation of the common law. For these reasons, we land, the defendants overlook the statutory language and our policy of strictly include s persons who do not have the ability or authority to permit access to By suggesting that we adopt an interpretation of “occupant” that

omitted; emphasis added). Gordon - Couture v. Brown, 1 p. 5 52 N.H. ___, ___ (decided May 23, 2005) (quotation in exchange for immunity from liability for resulting injuries.” Estate of permission to the general public to use private land for recreational purposes statutes, “expressed a basic quid pro quo in its declaration of policy, namely, which shares much in common with the New Hampshire recreational use Officials on Suggested State Legislation of the C ouncil of State Governments), Brown, the model recreational use statute (drafted by the Committee of State OHRVs. As we noted in a different context in Estate of Gordon - Couture v. detail about an owner’ s, occupant’s, or lessee’s potential immunity regarding different purpose is apparent from the statute; rather, it simply gives more 212:34 or RSA 508:14; i.e., owner, occupant or lessee of land. Further, no no language specifically referencing permission, it uses the same terms as RSA authority to grant permission to use land. Though RSA 215 - A:34, II contain s implication, an owner, occupant or lessee is one who has the ability or circumstances, create a duty of care under RSA 212:34, I. Thus, by permission to another to use the land, that permission shall not, under certain while RSA 212:34, II makes it clear that if that owner, lessee or occupant gives provides that an owner, lessee or occupant of premises owes no duty of care, land for recreat ional purposes . . . .” (Emphasis added.) RSA 212:34, I, occupant, or lessee of land . . . who without charge permits any person to use RSA 508:14, I, expressly states that immunity shall apply to “[an] owner,

Franklin v. Town of Newport, 1 p. 5 51 N.H. 508, 509 (2004). phrases in isolation; we read them in the conte xt of the entire statute. statutory language to determine legislative intent, we will not read words or 511, 515 - 1 p. 6 6 (1992). Although we look to the plain and ordinary meaning of the 6

only purpose clearly expressed in the statutes is the purpose to encourage As state d above, these immunity provisions are strictly construed. Id. The right is to be taken away, it must be expressed clearly by the legislature. Id. that the legislature has no such purpose. Sweeney, 151 N.H. at 241. If such a While a statute may abolish a common law right, there is a presumption

interpretation is inconsistent with the purpose of the statute. usable by snowmobiles. We disagree with the defendants’ argument that our public use” because, presumably, such land, though accessible, would not be that without snow groome rs, the “snowmobile trails would not be available for — to make more land available for recreational uses. The defendants argue include snow groomers would be inconsistent with the purpose of the statute The defendants also argue that interpreting the statute so as not to

Thus, we do not find the defendants’ argument pe rsuasive. 1148, or a spouse who resides on land but does not hold title to that land. and has the ability to permit or deny access to the land, see Ward, 890 P.2d at of a project site or an or ganization that manages a city - owned swimming pool include a contractor who has responsibility for access to land and maintenance the ability or authority to permit persons onto land. Such occupants might co ntemplated at least some occupants, other than owners or lessees, who have recreational purposes.” (Emphasis added.) The legislature must have subdivision, who without charge permits any person to use land for owner, occupant, or lessee of land, including the state or any political permit persons onto land. As discu ssed above, RSA 508:14, I, applies to: “An contemplated that there will be occupants who have the ability or authority to The language of RSA 508:14, I, demonstrates that the legislature

the legislature’s use of the term ‘occupant’ meaningless.” We disagree. “occupant” “virtually indistinguishable from the term ‘owner,’ and, thus, render require the ability or authority to permit access to land would make the term The defendants further argue that interpreting the term “occupant” to

permission to enter or use land, i t is hereby overruled. that an “occupant” need not have the ability or authority to give persons do not find Fanny helpful to this case. To the extent that it can be read to hold factor to be considered when interpreting the term “occupant.” Id. Thus, we ability or authority, or lack thereof, to permit persons access to the land was a neither party in Fanny appears to have argued that the general contractor’s permit a person’s entry onto the land. Fanny, 119 N.H. at 108 - 09. Further, and includes no discussion of the general contractor’s ability or autho rity to defendants point out that our opinion in Fanny contains little factual detail immunity to a general contractor who was an occupant of land. The Industries, Inc., 119 N.H. 108 (19 p. 7 79), in which we upheld the grant of The defendants also refer to our memorandum decision in Fanny v. Pike 7

concurred. BRODERICK, C.J., and NADEAU, DUGGAN and GALWAY, JJ.,

for recreational purposes. and authority to make that land more easily usable than it might otherwise be manner contemplated by the legislature; rather, they merely had the ability ability nor the authority to make land available for recreational purposes in the the purposes of the recreational use statutes. The defendants had neither the permit persons to use or enter the land, the defendants are not occupants for recreational use statutes, one must at least have the ability or authority to Because we conclude that, in order to qualify for immunity under the

permission has been granted. those who permit access to land, not those who simply facilita te its use after snowmobiling, but the statutes, strictly construed, are intended to immunize groomers may facilitate the use of land for certain recreational uses such as purpose is fully served by our holding in this case. The activities of snow persons to permit people to enter their land for recreational uses. That