2004-726, MAUREEN SORAGHAN V. MT. CRANMORE SKI RESORT, INC.

buildings on the way to her car to retrieve her ski equipment, she fell in a the ski race and did not pay a fee to attend. While walking between two paid $55 to participate. The plaintiff was both a spectator and a volunteer at paid $2,071.58 to reserve the property for the special meet and her daughter Ski Resort in which her daughter was participating. Her daughter’s ski club In January 2000, the plaintiff attended a youth ski meet at Mt. Cranmore

Cranmore Ski Resort, Inc. We reverse and remand. Superior Court (O’Neill, J.) granting sum mary judgment to the defendant, Mt. DUGGAN, J. The plaintiff, Maureen Soraghan, appeals an order of the

defendant. and Shelagh C.N. Michaud on the brief, and Mr. Quarles orally), for the Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr.

Rockefeller on the brief and orally), for the plaintiff. Burns, Bryant, Cox, Rockefeller & Durkin, P.A., of Dover (Christine M.

No. 2004 - 726 Carroll

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

barring the common law right to recover are to be strictly construed. Id. expressed clearly by the legislature. Id. Accordingly, immunity provisions has no such purpose. Id. If such a right is t o be taken away, it must be may abolish a common law right, there is a presumption that the legislature Sweeney v. Ragged Mt. Ski Area, 151 N.H. p. 2 239, 241 (2004). While a statute Statutes in dero gation of the common law are to be interpreted strictly.

Remington Invs. v. Howard, 150 N.H. 653, 654 ( p. 2 2004). (2003). We review the trial court’s interpretation of a statute de novo. advanced by the entire statutory scheme. State v. Whittey, 149 N.H. 463, 467 legislature’s intent in enacting them, and in lig ht of the policy sought to be 149 N.H. 216, 220 (2003). Our goal is to apply statutes in light of the lead to an absurd or illogical result. Marceau v. Concord Heritage Life Ins. Co., objective and presume tha t the legislature would not pass an act that would When statutory language is ambiguous, we examine the statute’s overall possible, we ascribe the plain and ordinary meanings to the words used. Id. 513, 515 (2004). We first examine the language of the statute, and, where statute considered as a whole. In the Matter of Jacobson & Tierney, 15 0 N.H. final arbiter of the intent of the legislature as expressed in the words of the The question before us is one of statutory interpretation. We are the

address each argument in turn. it is entitled to summary judgment under RSA p. 2 212:34 (Supp. 2004). We argues in the alternative that, even if we hold that RSA 508:14 does not apply, commercial properties and, thus, RSA 508:14 does apply. The defendant statute and case law does not dist inguish between commercial and non and customarily charge for access to their land. The defendant argues that the landowners who are engaged in the business of recreational activities for profit On appeal, th e plaintiff argues that RSA 508:14 does not apply to private

judgment 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 properly drawn from them, When reviewing a trial court’s grant of summary judgment, we consider

that ac tivity.” This appeal followed. spectator for her daughter’s ski race” and “did not pay any consideration for plaintiff was on the defendant’s property on the day of her injury to be a not liable under the recreational use statute, RSA 508:14 (1997), because “the the defendant’s motion for summary judgment, ruling that t he defendant was the defendants failed to properly maintain the property. The trial court granted crevasse and severely injured her knee. The plaintiff brought suit alleging that p. 3 3

landowner customarily charges for access to its recreational facilities, the requires that the landowner do so “without charge.” RSA 508:14, I. Where the m ember of the general public to use their land. See id. The statute also apply, the statute requires that private landowners allow any person as a We construe RSA 508:14, I, to effectuate its purpose. For immunity to

owned land. Id. recreational use statutes: to encourage public recreational use of privately interpreted statutes similar to RSA 508:14 to effectuate the purpose of 152 N.H. at ___. In doing so, we joined numerous other States that have public to use their land for recreational purposes. Estate of Gordon - Couture, I, to provide immunity when priva te landowners permit members of the general State Legislation). In light of this purpose, we narrowly construed RSA 508:14, Legislation, XXIV Suggested State Legislation 150 (1965) (hereinafter Suggested Id. at ___ (quotat ion omitted); Committee of State Officials on Suggested State

encouragement should be given to them. public without charge, it is possible to argue that every reasonable willing to make their land available to members of the general ent erprises. However, in those instances where private owners are in any way different from that customary for operators of private be little reason to treat such owners and the facilities they provide recreational use make it available on a business basis, there may availab le. Where the owners of private land suitable for private land could add to the outdoor recreational resources governmental units is on the increase. However, large acreages of acquisition and operation of outdoor recreational facilities by additio nal recreational areas to serve the general public. The Recent years have seen a growing awareness of the need for

act as follows: of the Council of State Governments explained the purpose behind the model recognized that the Committee of State Officials on Suggested State Legislation Gordon - Couture, 152 N.H. ___ (decided May 2 p. 3 3, 2005). In Gor don - Couture, we landowners who permit the private recreational use of their land. Estate of We have recently addressed the applicability of RSA 508:14, I, to private

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

RSA 508:1 p. 4 4, I, provides in pertinent part: 4

Hardy, 276 F.3d at 19. The First Circuit held that, even though the plaintiff the plaintiff was injured while walking on a path at the top of Loon Mountain. 276 F.3d 18 (1st Cir. 2002), to argue that RSA 508:1 p. 4 4 should apply. In Hardy, The defendant also points to Hardy v. Loon Mountain Recreation Corp.,

public to swim in the lake without charge. Id. at 366. unrelated to the defendants’ business and the landowner permitted the gener al recreational use statutes was appropriate because the plaintiff’s use was property from which the plaintiff dove. Id. Again, immunity under the owners of the Swanzey Lake dam, and on e defendant individually owned the dove into Swanzey Lake. Fish, 13 p. 4 4 N.H. at 362. The defendants were co at 949 (emphasis added). Likewise, in Fish, the plaintiff was injured when he business, and the [ ] defendants received no consideration from the users.” Id. was available for recreational use, the use was unrelated to the [ ] defendants’ entitled to immunity under the recreational use statutes because “[t]he river and operate the Pontook dam. Id. The court held that the defendants were The defendants were occupants of the land and had contracted to co nstruct the base of a dam that was being reconstructed. Kantner, 701 F. Supp. at 945. use of their land. In Kantner, two individuals drowned while swimming near landowners’ business and the landowners di d not charge for the recreational present case because the recreational use of the property was not related to the Mills, 134 N.H. 361, 362 (1991). These cases are distinguishable from the properties. See, e.g., Kantner, 701 F. Supp. at 945; Fish v. Homestead Woolen to argue that RSA 508:14 applies equally to commercial and non - commercial statutes, RSA 508:14 and RSA 212:34, have applied to private commercial land The defendant points to several cases where both recreational use

purposes. person, i.e., the plaintiff, was not charged to use the land for recreat ional Accordingly, the trial court erred in basing its decision upon whether any single for which the landowner customarily charges. See Smith, 7 p. 4 42 P.2d at 349. entrant was on the property for a purpose related t o the landowner’s business P.2d 347, 349 (Colo. Ct. App. 1987). Rather, the inquiry is whether the injured someone so as to create access to the premises”); Smith v. Cutty’s Inc., 742 consideration need not come from the ultimate user but it must be paid by ‘consideration’ issue in interpreting similar statutes have held that the 943, 948 (D.N.H. 1988) (recognizing that “[c]ourts that have considered the recreational purposes. See Kantner v. Combustion Engineering, 701 F. Supp. inquiry is not whether any single person was not charged to use the land f or customarily charges. See Suggested State Legislation, supra at 1 p. 5 50. Thus, the purpose related to the landowner’s business for which the landowner liability of a private landowner where an in dividual is on the premises for a App. 2002). Indeed, it would not further the purpose of the statute to limit the public for recreational use. Cf. Conant v. Stroup, 51 P.3d 1263, 1265 (Or. Ct. property is not being held open without charge to any member of the general 5

sports does not thereby: such premises, or use said premises for water sports, or winter hike, use OHRVs . . . , sightsee upon, or remove fuelwood from, permission to another to hunt, fish, trap, camp, ride horseback, II. An owner, lessee or occupant of premises who give s

paragraph III hereof. persons entering for such purposes, except as provided in conditions, uses of, structures, or activities on such premises to remo val of fuelwood, or to give any warning of hazardous sports, winter sports or OHRVs . . . , hiking, sightseeing, or hunting, fishing, trapping, camping, horseback riding, water care to keep such premises safe for entry or use by others for I. An owner, lessee or occupant of premises owes no duty of

RSA 212:34 provides:

disagree. RSA 212:34 provides an alternative basis for granting summary judgment. We Finally, the defendant argues that, even if RSA p. 5 508:14 does not apply,

charge. its business o f operating a ski area and are open to the general public without the summer recreational activities offered at Loon Mountain are not related to visitors to hike and sightsee in the area without paying a fee. Id. Accordingly, right to offer recreational activities, Loon Mountain was required to allow provisions of the special use permit that gives the company the nonexclus ive Mountain is located on United States Forest Service land and, under the held open to the general public without charge. Id. at 19. Indeed, Loon its operation of a ski area,” Loon Mountain’ s summer recreational activities are actions.” Id. Although Loon Mountain’s “mainstay during the winter months is however, it is only fair that they be subject to liability for their negligent recreational spac e. When landowners directly profit from such access, their exceptions are logical because they encourage free and open use of access to the land.” Id. at 20. The court reasoned that, “Both the statutes and recreational use statutes do not apply “if the landowner charges the public for Hardy is also distinguishable. The First Circuit recognized that the

free”). 21 (noting that the plaintiff “could have hiked to the mountain’s summit for property or to participate in the activities at the top of the mountain. Id. at 19 use statutes applied because Loon Mountain did not charge for access to the paid five dollars to ride the gondola to the top of the mountain, the recreational p. 6 6

do not contradict each other. Id. Therefore, RSA 212:34 likewise sh ould be subject matter as RSA 508:14, I, the statutes should be construed so that they which the landowner did not charge. Because RSA 212:34 deals with a similar toward entrants on land in circumstances that invol ve recreational activities for Both RSA 212:34 and RSA 508:14, I, limit the liability of landowners

legislative purpose of the statutes. Id. each other, and so that they will lead to reasonable results and effectuate the with a similar subject matter, we construe them so that they do not contradict Bierman, 150 N.H. 393, 395 (2003). When interpreting two statutes that deal attempt to do so in harmony with the overall statutory scheme. Nilsson v. We note that we do not constru e statutes in isolation; instead, we

duty to keep the premises safe or to warn of danger. the owner, lessee or occupant of the premises, owed a persons as to whom the person granting permission, or sightsee, or remove fuelwood was granted, to third water sports, winter sports or use of OH RVs . . . , to hunt, fish, trap, camp, ride horseback, hike, use for (c) The injury caused by acts of persons to whom permission

the state; or than the consideration, if any, paid to said landowner by remove fuelwood was grant ed for a consideration other sports, winter sports or use of OHRVs . . . , sightsee, or fish, trap, camp, ride horseback, hike, use for water (b) For injury suffered in any case where permission to hunt,

dangerous condition, use, structure or activity; or (a) For willful or malicious failure to guard or warn agai nst a

exists: III. This section does not limit the liability which otherwise

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

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

such purpose, or (a) Extend any assurance that th e premises are safe for p. 7 7

concurred. BRODERICK, C.J., an d NADEAU, DALIANIS and GALWAY, JJ.,

Hampshire v. New Hampshire, 488 U.S. 1035 (1989). earlier - enacted statute), appeal denied sub nom. Public Service Co. of New (noting that specific, more recently - enacted statute controls over general, statutes. Cf. Petition of Public Serv. Co. of N.H., 130 N.H. 265, 283 (1988) activities related to their business, and not the general recreational use operator statute, RSA ch. 225 - A, governs the immunity of ski operators for Nilsson, 150 N.H. at 395, leads us to the conclusion that the more specific ski RSA 508:14 in the context of the overall statutory scheme and not in isolation, granted to ski operators in RSA chapter 225 - A. Interpreting RSA 212:34 and lifts. RSA 225 - A:24, II. The leg islature clearly defined the extent of immunity immunity to ski operators “for failure to instruct persons on the use” of ski sport of skiing. RSA 225 - A:24, I (2000). The legislature also extended injuri es which result from [the] inherent risks, dangers, or hazards” of the this chapter, the legislature extended immunity to ski operators “for any comprehensive statute governing skiers and the operation of ski areas. Under We note that RSA chapter 225 - A (2000 & Supp. 2004) is a

landowner customarily charges. the property for a purpose related to the landowner’s business for whi ch the Thus, RSA 212:34 does not extend immunity when the injured entrant was on landowner’s own business.” Laws 1961, ch. 201 (1961) (emphasis added). sporting or recreational purpos es and not for purposes connected with care owed by landowners towards others who may be on their premises for preamble that stated that the purpose of the statute was to clarify the “duty of addi tion, when the legislature originally enacted RSA 212:34, it included a uses by limiting their liability. Suggested State Legislation, supra at 150. In landowners to make their land available without charge for public recreational above, the purpose of recreational use statutes is to encourage private This conclusion is supported by the purpose of the statute. As noted

open to the general public without charge. recreational activities that are not related to the landowner’s business and are construed to grant immunity for entrants who use the land for certain