2004-566, ESTATE OF JAYCOB GORDON-COUTURE v. GEORGE BROWN & a.

defendants’ daughter held a birthday party for her son at the defendants’ The trial court found the following facts. On August 17, 2002, the

508:14, I (1997). We reverse and remand. liability under two recreational use statutes, RSA 212:34 (Supp. 2004) and RSA that the trial court erred in ruling that the d efendants were immune from the defendants’ motion for summary judgment. On appeal, the plaintiff argues Gordon - Couture, appeals an order of the Superior Court (Perkins, J.) granting by the defendants, George an d Silvia Brown. The plaintiff, the estate of Jaycob old Jaycob Gordon - Couture while attending a birthday party at property owned DUGGAN, J. This case arises out of the accidental drowning of two - year -

on the brief and orally), for the defendants. McDonough & O'Shaughnessy, P.A., of Manchester (Robert G. Whaland

orally), for the plaintiff. Soltani/Mosca P.L.L.C., of Epsom (Edward C. Mosca on the brief and

No. 2 004 - 566 Rockingham

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

Sweeney v. Ragged Mt. Ski Area, 151 N.H. p. 2 239, 241 (2004). While a statute S tatutes in derogation 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 t hem, and in light 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 that 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 Jacobso n & Tierney, 150 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

open to the general public. We agree. Rather, the plaintiff argues that the statutes only apply to private land t hat is recreational use statutes do not apply to private land used for private activities. p. 2 212:34 and RSA 508:14, I. Specifically, the plaintiff argues that the defendants are immune from suit under two recrea tional use statutes, RSA On appeal, the plaintiff argues that the trial court erred in ruling that the

judgment as a matter of law, we will affirm the trial court’s decision. Id. any genuine issue of materi al 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 affi davits and other evidence, and all inferences properly drawn from them, When reviewing a trial court’s grant of summary judgment, we consider

appeal followed. under the recreational use statutes, RSA p. 2 212:34 and RSA 508:14, I. This motion for summary judgment, ruling that the defendants were not liable use of the beach and dock area.” The trial court granted the defendants’ proper supervision or, alternatively, placing appropriate limitations upon the “to keep the beach and dock area safe for their guests including providing the The plaintiff brought suit alleging th at the defendants negligently failed

hospital, he was pronounced dead due to drowning. search of the area, Jaycob’s body was found in the pond. Later, at the after returning to the beach, McNeil realized that Jaycob was missing. After a some time playing in the water and then returned to the beach. At some point and brought her boyfriend’s son, Jaycob, with her. McNeil and Jaycob spent property on Half Moon Pond in Kingston. Elizabeth McNeil attended the party p. 3 3

property for recreational purposes does not thereby: indirectly invites or permits without charge any person to use such in Section 6 of this act, an owner of land who either directly or Section 4. Except as specifically recognized by or provided

such purposes. structure, or activity on such premises to persons entering for purposes, or to give any warning of a dangerous condition, use, keep the premises safe for entry or use by others for recreational in Section 6 of this act, an owner of land owes no duty of care to S ection p. 3 3. Except as specifically recognized by or provided

. . . .

entering thereon for such purposes. recreational purposes by limiting their liability toward persons land to make land and water areas available to the public for Section 1. The purpose of this act is to encourage owners of

model act provided, in pertinent part: statute. Id.; Conant v. Stroup, 51 P. p. 3 3d 1263, 1266 (Or. Ct. App. 2002). The use statute (model act), which was derived from Wisconsin’s recreational use Legislation of the Council of State Governments drafted a model recreational Following this trend, the Committee of State Officials on Suggested State

Legislation). XXIV Suggested State Legislation 150 (1965) (hereinafter Suggested State general public.” Committee of State Officials on Suggested State Legislation, behind this trend was “the need for additional recreational areas to serve the Tennessee and Wisconsin in 196 p. 3 3 and Virginia in 1964). The primary impetus in 1956, Maine, Minnesota, New Hampshire and Pennsylvania in 1961, Ohio, privately - owned forest and farm lands” including Michigan in 1953, New York enacted similar statutes “aimed at encouraging public recreational use of enact a recreational use statute. Id. at 705 & n.2 (noting that ten States had 1964 Wis. L. Rev. 705, 705. New Hampshire was among the first ten States to Note, Liability of Landowners to Persons Entering for Recreational Purposes, liability of landowners who make their land available for recreational use. See States were enacting recreational use statutes, i.e., statutes that limit the Both RSA 212:34 and RSA 508:14 were adopted at a time whe n many

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 su ch a right is to be taken away, it must be may abolish a common law right, there is a presumption that the legislature p. 4 4

available for public r ecreational uses “on the theory that it is not reasonable to model act limited the liability of private landowners who make their land Id. at 150. Thus, to fulfill this purpose, the recreational use statutes and

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 enterprises. 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 a nd the facilities they provide recreational use make it available on a business basis, there may available. Where the owners of private land suitable for private land could add to the outdoor recreational resources governmental units is on the increa se. However, large acreages of acquisition and operation of outdoor recreational facilities by additional recreational areas to serve the general public. The Recent years have seen a growing awareness of the need for

purpose b ehind the model act as follows: Suggested State Legislation, supra at 150 - 51. The council explained the

meaning of this section. the owner for such lease shall not be deemed a charge within the the state or a subdivision thereof, any consideration received by recreational use thereof, except that in the case of land leased to charges the person or persons who enter or go on the land for the (b) For injury suffered in any case where the owner of land

dangerous condition, use, structure, or activity. (a) For willful or malicious failure to guard or warn against a

which otherwise exists: Section 6. Nothing in this act limits in any way any liability

. . . .

such persons. to person or property caused by an act of omission of (c) Assume respon sibility for or incur liability for any injury

licensee to whom a duty of care is owed. (b) Confer upon such person the legal status of an invitee or

purpose. (a) Extend any assurance that the premises are safe for any p. 5 5

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 p. 5 508:14, I, provides in pertinent part:

RSA p. 5 508:14. language of the two recreational use statutes at issue here, RSA 212:34 and With this history of recreational use statutes in mind, we now turn to the

(Wis. 1983). 1290, 1292 - 93 (Utah 1996); LePoidevin by Dye v. Wilson, 330 N.W.2d p. 5 555, 563 526 N.E.2d 300, 302 (Ohio 1988); Perrine v. Kennecott Mining Corp., 911 P.2d 761 (Ill. App. Ct.), rev. denied, 642 N.E.2d 1304 (Ill. 1994); Loyer v. Bucholz, v. Keith, 492 A.2d 241, 244 (Del. 1985); Snyder v. Olmstead, 634 N.E.2d 756, public to use private property for recreational purposes.” Id.; see also Gibson “permission to ‘any person’ refers to any person as a member of the general construed the model act to effectuate its purpose and therefore conclude that courts who addressed the problem has been uniform.” Id. These courts have croquet, immunity would apply.” Id. Nonetheless, “[t]he response of the state liability . . . [.] Any time an indi vidual is invited to use an owner’s back yard for isolation, the immunity provisions effectively would nullify the law of premises Id. Accordingly, the Oregon court recognized that “if read literally and in

permission had been granted. that the person must be a member of the general public to whom owner granted permission to “any person,” without a qualification the model act referred to the immunity as applying when a land immunity from liability for resulting injuries. On the other hand, to use private land for recreational purposes in exchange for its declaration of policy, namely, permission to the general public On the one hand, the model act expressed a basic quid pro quo in

dilemma: the model act.” Id. As the Oregon Court of Appeals aptly described the states began to grapple with a basic drafting problem posed by the wording of three dozen States. See Conant, p. 5 51 P.3d at 1267. “Meanwhile, a number of The model act was subsequently adopted in various forms by more than

accommodating owner receives no compensatio n or other favor in return.” Id. property attendant upon the use of their land by strangers from whom the expect such owners to undergo the risks of liability for injury to persons and p. 6 6

Thus, the court held that the immunity granted by the recreational use statute public generally to use private property for recreational purposes. Id. at 12 p. 6 66. by other jurisdictions to apply only when landowners permit members of the language was taken from the model act, which has been interpreted uniformly quotation omitted). The court further noted that the disputed statutory owners of land to make their land available to the public.” Id. (emphasis and The court noted that the stated purpose of the statute was “to encourage a member of a limited universe of persons to which the statute applies.” Id. person’ in [the statute] to refer literally to any single person or to any person as question in this case is whether the legislature intended the reference to ‘any limitations implicit from its context.” Id. Thus, the court stated that “[t]he 1265. But, the court reasoned that “the term ‘any’ often carries with it the phrase ‘any person’ certainly is broad and unqualified.” Conant, 51 P.3d at In Conant, the Oregon Court of Appe als acknowledged that “[i]n isolation,

wrongful death of child who drowned in backyard swimming pool). recreational use statute does not immunize homeowner from liability for Parsons, 852 F. Supp. 925, 932 (D. Kan. 1994) (holding that Kansas for recreational purposes.” Perrine, 911 P.2d at 1293; see al so Mozier v. immunize even homeowners from the negligence claims of social guests invited purposes”). These courts have recognized that to hold otherwise “would the land, including social gue sts invited to the premises for recreational in the entire law relating to the obligations of all landowners to all entrants to does not “presume that the legislature intended . . . to work a wholesale change 5 p. 6 63 (holding tha t immunity is limited to the general public because the court picnic.”); Perrine, 911 P.2d at 1293 (same); LePoidevin by Dye, 330 N.W.2d at open his property to the public, but simply invites a few private persons to a not be advanced by applying the Act to a situation where an owner does not N.E.2d at 761 (“We believe that the purpose of the Recreational Use Ac t would member of the general public.” Conant, 51 P.3d at 1267; see also Snyder, 634 have construed the phrase “any person” as referring to “any person as a Other jurisdictions that have inter preted similar statutory provisions

Sweeney, 151 N.H. at 241. above, statutes in derogation of the common law are to be interpreted strictly. defendants suggest would be in derogation of the common law. As set forth for negligent acts. The plaintiff argues that to construe RSA 508:14, I, as the legislative intent “to broadly immunize landowners in this state” from liability The defendants argue that the phrase, “any person,” evidences a

(Emphasis added.)

damage. property damage in the absence o f intentionally caused injury or recreational activity, shall not be liable for personal injury or p. 7 7

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 gives

paragraph III hereof. persons entering for such purposes, except as provided in conditions, uses of, structures, or activities on such premises to removal of fuelwood, or to give any warning of hazardous sports, winter sports or OHRVs . . . , hiking, sightseeing, or hunting, fishing, trapping, camping, horseback riding, wate r 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

We next turn to RSA 212:34, which provides:

under RSA 508: 14, I. summary judgment and ruling that the defendants were entitled to immunity a private birthday party. Accordingly, the trial court erred in granting defendants’ land was not opened to the general public but rather was used for the general public to use their land for recreational purpo ses. Here, the RSA 508:14, I, to grant immunity, private landowners must permit members of as a member of the general public.” See Conant, 51 P.3d at 126 p. 7 7. Thus, for Accordingly, we hold that th e phrase “any person” refers to “any person

common law unless the statute clearly expresses that intent. See, e.g., id. consistent with our holdings that we will not interpret a statute to abrogate the 151 N.H. at 241. Therefore, our strict interpretation of RSA 508:14, I, is accomplish such a result, it must do so clearly and explicitly. See Sweeney, duties of landowners toward all entrants on land. If the legislature wishes to Moreover, RSA 508:14, I, does not clearly eliminate all common law

Id. (emphasis omitted). evisceration of common - law doctrines concerning the duties of landowners.” for recreational purposes while, at the same time, [avoiding] the inadvertent was consistent with the “purpose of making private land available to the public the court recognized that only this construction of the recreat ional use statute private land for recreational purposes.” Id. at 126 p. 8 8. In reaching this holding, “is limited to cases in which permission is given to the general public to use 8

When interpreting two st atutes that deal with a similar subject matter, we the overall statutory scheme. Nilsson v. Bierman, 150 N.H. 393, 395 (2003). construe statutes in isolation; instead, we attempt to do so in harmony with 151 N.H. at 241; Jacobson, 150 N.H. at 515. We further note that we do not duties owed to all entrants on land for recreational purposes. See Sweeney, statute to determine whether it clearly abrogates all landowners’ common law would be in derogation of the common law. We look to the language of the The plaintiff argues that to construe the statu te as the defendants suggest “to broadly immunize landowners in this state” from liability for negligent acts. The defendants argue that under RSA 212:34, the legislature intended

(Emphasis added).

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 OHRVs . . . , to hunt, fish, trap, camp, ri de 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 granted for a consideration other sports, winter s ports 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 against a

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

paragraph III hereof. whom permission has been granted except as provided in person or property caused by any act of such person to (c) Ass ume 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 the premises are safe for p. 9 9

(licensees); True v. Creamery, 72 N.H. 154 (1 p. 9 903) (invitees); Clark v. to the occupier. Id.; see generally Locke v. Payne, 81 N.H. 266 (1924) occupier and as to h im or her the ordinary rules of negligence were applicable was an entrant on the property for the transaction of business with the licensee and entitled only to a warning of hidden dangers; and (3) an invitee land with the permission of the owner but for the entrant’s purposes was a the landowner’s liability was limited to intentional injuries; (2) an entrant on without the consent of the landowner was a trespasser as a matter of law and intent at the time RSA 212:34 was enacted. They provided that: (1) an entrant used in our duty of care analysis, but are useful i n determining the legislative Blanchard, 116 N.H. 552, 553 - 54 (1976). These classifications are no longer on land in determining the obligations of landowners. See Ouellette v. At that time, we followed t he traditional three - pronged classification of entrants relation to the common law as it existed when the statute was adopted in 1961. This conclusion is buttressed by an analysis of RSA 212:34, II and its

listed recreational purposes. must permit members of the gene ral public to use their land for one of the general public. Thus, for RSA 212:34 to grant immunity, private landowners we hold that the terms “others” and “another” in RSA 212:34 refer to the must do so clearly and explicitly. See Sweeney, 151 N.H. at 241. Accordingly, all entrants on land. If the legislature wishes to accomplish such a result, it 212:34 does not clearly eliminate all common law duties of landowners toward their liability. Suggested State Legislation, supra at 150. Moreover, RSA landowners to make their land available for public recreational uses by limiting As set forth above, the purpose of the model act is to encourage private

guidance in interpreting RSA 212:34. we look to similar statutes from other jurisdictions and the model act for provide immunity to landowners through recreational use statutes. Theref ore, the model act was proposed and there was a movement among many States to secs. 3 & 4. In addition, RSA 212:34 was adopted during the period in which Compare RSA 212:34, I & II with Suggested State Legislation, supra at 151, The language of RSA 212:34 is virtually identical to the model act.

landowners who open their land to the general public. Therefore, RSA 212:34 likewise should be construed to grant immunity only to statutes should be construed so that they do not contradict each o ther. Id. Because RSA 212:34 deals with a similar subject matter as RSA 508:14, I, the toward entrants on land in circumstances that involve recreational activities. Both RSA 212:34 and RSA 508:14, I, l imit the liability of landowners

Id. lead to reasonable results and effectuate the legislative purpose of the statutes. construe them so that they do not contradict each other, and so that they will p. 10 10

F.3d 1, 4 (1st Cir. 1994), that RSA 212:34 and RSA 508:14 do not require that The defendants urge us to adopt the holding in Collins v. Martella, 17

under RSA 212:34. summary judgment and ruling that the defendants were entitled to immunity for a private birthday party. Accordingly, the trial court erred in granting Rather, McNeil a nd Jaycob were allowed to use their land and swimming area Here, the defendants did not make their land available to the public.

landowners who open their land to the general public. Therefore, the statute contemplates that immunity would only be extended to with regard to entrants on land that are social guests or other licensees. See RSA 212:34, II (a). The statute does not extend immunity to landowners recreational activities and, but for the statute, would be considered invitees. to landowners who pe rmit the general public to use the premises for the listed classified as invitees. As a result, the scope of the immunity statute is limited entrants on land for certain recreational activities who otherwise would be RSA 212:34, II only grants immunity to landowners with regard to

but rather a li censee. private social guest permitted on the landowner’s premises was not an invitee, members of the general public permitted on the landowner’s premises. A Accordingly, the common law in 1961 defined invitees as including

landowner, is a licensee and n ot an invitee. Id. Notably, a social guest, although expressly invited onto the premises by the status has changed after entering the premises.” Id. § 1.05[3], at 1 - 86. persons seeking shelter or assistance, and trespassers and invitees whose permitted by acquiescence to use short cuts across the premises, sightseers, guests, members of the landowner’s household, “solicitors, loiterers, persons In contrast, licensees include the following types of entrants: social

landowner. Id. requirement that they pay admission or confer an economic benef it upon the is held open to the public.” Id. With regard to public invitees, there is no or remain on land as a member of the public for a purpose for which the land the possessor of land.” Id. “A public invitee is a person who is invited to enter land for a purpose directly or indirectly connected with business dealings with (2000). “A business visitor is a person who is invited to enter or remain on Landau & a., Premises Liabi lity Law and Practice § 1.05[4], at 1 - 116 to 1 - 117 two separate groups of entrants: business visitors and public invitees. 1 N. The third category of entrants, invitees, was further broken down into

557 (eliminating use of classifications of entrants). Manchester, 62 N.H. 577 (1883) (trespassers). But see Ouellette, p. 11 116 N.H. at 11

508:14, I. from other jurisdictions for guidance in interpreting RSA 212:34 and RSA Stat. § 105.682 (2003). Therefore, it is appropriate to look to similar statutes State Legisl ation, supra at 151 secs. 3 & 4 and RSA 508:14, I with Or. Rev. other States and the model act. Compare RSA 212:34, I & II with Suggested language of RSA 212:34 and RSA 508:14, I, is similar to that of numerous immunity to landowners through recreational use statutes. In addition, the period in which there was a movement among man y States to provide enacted around the same time that the model act was proposed and during the Nonetheless, as noted above, both RSA 212:34 and RSA 508:14, I, were

emphasis omitted). public for recreational purposes.” Conant, 51 P.3d at 1265 (quotation and generally indicate that the statute’s goal is “to make [ ] land available to the part rely upon the purpose section of the statute or legislative history, which at 1265; Perrine, 9 p. 11 11 P.2d at 1292 - 93. We acknowledge that these decisions in they have been interpreted to include such a limitation. See Conant, 51 P.3d jurisdictions do not contain any specific reference to the general public, but statutes in other jurisdictions similar to our own. The statutes of numerous language, however, does not foreclose our reliance upon the interpretatio n of duty of care.” Conn. Gen. Stat. § 52 - 557g (a) (1991). The difference in available to the public without charge . . . for recreational purposes owes no specifically states that “an owner of land who mak es all or any part of the land 508:14, I. In Collins, the First Circuit pointed to Connecticut’s statute, which other jurisdictions and the model act when interpreting RSA 212:34 and RSA In addition, we find i t appropriate to rely upon similar statutes from

Collins could be viewed as inconsistent with these cases. diving in defendant’s backyard swimming pool). Thus, to adopt the holding in pond); Lemay v. Burnett, 139 N.H. 633 (1995) (plaintiff was injured while year - old developmentally disabled child drowned in neighbor’s man - made recreational purposes. See, e.g., Morse v. Goduti, 146 N.H. 697 (2001) (ten that a landowner owes a duty to certain entrants on land who are present for We decline to adopt the holding in Collins. We have implicitly recognized

that the land at issue must be . . . open to the general public.” Id. 2 p. 12 12:34 and RSA 508:14] do not contain any language suggesting a requirement recreational use statute proposed by the Council of State Governments, [RSA reasoned that, “[u]nlike similar statutes in other jurisdictions and the model these statutes a limitation that the legislature left out.” Id. The court further because they are in derogation of the common law,” but declined to “read into First Circuit recognized that the statutes “should be narrowly construed the land at issue be open to the general public. In reaching this decision, the 12

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

do not apply. was no t open to the general public. Therefore, RSA 2 p. 12 12:34 and RSA 508:14, I, Here, the defendants’ land was used for a private birthday party, which

to the general public. Accordingly, we decline to adopt the holding in Collins. RSA 508:14, I, as providing immunity only to landowners who open their land landowners toward all entrants on land, we narrowly construe RSA 2 p. 12 12:34 and Because the legislature did not clearly abrogate the common law duties of common law should be narrowly construed. See Collins, 17 F.3d at 4. Finally, as the First C ircuit aptly noted, statutes in derogation of the