2009-672, Rebecca L. Coan & a. v. New Hampshire Department of Environmental Services & a.

No. 2009-672

Belknap

co-administrators of the estate of Nicholas M. Lorette and parents of Jeffrey BRODERICK, C.J. The plaintiffs, Rebecca L. Coan and Micah Ciampi,

Michael A. Delaney McLane, Graf, Raulerson & Middleton, P.A.

a

Douglas, Leonard & Garvey, P.C.

defendant Algonquin Power Systems, Inc. Rouvalis and Michael J. Kenison on the brief, and Mr. Rouvalis orally), for

Department of Environmental Services. attorney general, on the brief and orally), for defendant New Hampshire

brief and orally), for the plaintiffs.

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. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as construction that would permit recovery. Berry v. Watchtower Bible & Tract p. 2 determine whether the allegations in the writ are reasonably susceptible of a In reviewing a trial court’s grant of a motion to dismiss, our task is to

followed. writ again, the trial court denied their motion to amend, and this appeal which the trial court granted. Although the plaintiffs sought to amend their 2009, filed their first amended writ. The defendants filed motions to dismiss, The plaintiffs sued the defendants in October 2007, and, in February

drowned. resident was able to save Jeffrey in his kayak, but Nicholas and Michael Michael raced to his aid, but were also caught in the currents. A nearby currents near the mouth of the river and screamed for help. Nicholas and While swimming in the lake, Jeffrey became caught in the deadly

either defendant place any safety devices on the lakeshore. swimming in the north end of the lake, downstream from the dam. Nor did from the dam was increased, neither posted any warnings about the dangers of from the dam and that swimming there could become dangerous when flow lake deadly. Although the defendants knew that people swam downstream Lochmere dam into the lake, which made the currents in the north end of the defendant DES added 375 cubic feet per second to the flow coming out of the lake, the boys did not know that on the afternoon of June 11, 2005, in the lake and had just done so the day before. Despite their familiarity with Local residents use Silver Lake for swimming. The boys frequently swam

true and construe all reasonable inferences drawn from those facts in the Soc., 152 N.H. 407, 410 (2005). We assume all facts pleaded in the writ to be

hydroelectric generating facility to Algonquin. owned by HDI I Associates Partnership (HDI). HDI leases operation of the watershed. The dam also is part of a hydroelectric generating facility, which is owns the dam and uses it to control water resources in the Winnipesaukee Lake in Belmont. Silver Lake is located downstream from Lochmere Dam; DES twenty, and Nicholas’s nine-year-old brother, Jeffrey, went swimming in Silver On June 12, 2005, the decedents, Nicholas, age sixteen, and Michael, age accept as true for the purposes of this appeal, or from the trial court’s orders. The following facts derive either from the plaintiffs’ allegations, which we

and denying their motion to amend their writ. We affirm. Environmental Services (DES) and Algonquin Power Systems, Inc. (Algonquin), brought against the defendants, the New Hampshire Department of wrongful death, negligence and negligent infliction of emotional distress, appeal orders of the Superior Court (McGuire, J.) dismissing their lawsuit for Lorette, and Sharon Ciampi, administratrix of the estate of Michael T. Squeglia, not to those occurring in water. See p. 3 it extends to injuries and recreational activity that occur on the ground, but The plaintiffs first argue that RSA 508:14, I, does not apply here because

Accordingly, we assume, without deciding, that RSA 508:14, I, so applies. The plaintiffs do not dispute that RSA 508:14, I, applies to State-owned land.

damage. property damage in the absence of 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 lessee of land, including the state or

the words of the statute considered as a whole. Estate of Gordon-Couture v. We are the final arbiters of the intent of the legislature as expressed in International Dictionary 1268 (unabridged ed. 2002) (first definition of “land” is recreational purposes.” Kantner, 701 F. Supp. at 946; see Webster’s Third New were swimming and canoeing in a river and were not using land for court explained that RSA 508:14, I, did not apply because “[t]he decedents other grounds by Estate of Gordon-Couture, 152 N.H. at 274-75. The Kantner dam.” Collins v. Martella, 17 F.3d 1, 3 n.2 (1st Cir. 1994), disagreed with on behalf of two men who drowned while swimming and canoeing at the base of a Hampshire “declined on this basis to apply RSA 508:14, I, to claims brought on plaintiffs rely upon Kantner, in which the Federal District Court of New F. Supp. 943, 946 (D.N.H. 1988). As primary support for this argument, the

RSA 508:14, I, provides:

concerning RSA 212:34. from liability under RSA 508:14, I, we do not address the parties’ arguments Because we conclude that the trial court did not err by finding DES immune law right to recover, are to be strictly construed. See use immunity under RSA 212:34 (Supp. 2009) and RSA 508:14, I, (2010). id. at 266-67. claims against DES. The trial court ruled that DES was entitled to recreational Id. Statutes, such as RSA 508:14, I, which are in derogation of the common words used. Id We first address whether the trial court erred by dismissing the plaintiffs’. We review the trial court’s statutory interpretation de novo. statute, and, where possible, ascribe the plain and ordinary meanings to the Brown, 152 N.H. 265, 266 (2005). We first examine the language of the

dismiss. In the Matter of Lemieux & Lemieux, 157 N.H. 370, 373 (2008). for legal relief, we must hold that it was improper to grant the motion to in the writ against the applicable law, and if the allegations constitute a basis plaintiffs’ favor. Id. We then engage in a threshold inquiry that tests the facts enter the lake.” See p. 4 On this point, we find Collins through its land, even if the State in fact does own the land the boys crossed to State did not ‘permit’ Nicholas, Michael and Jeffrey to access Silver Lake The plaintiffs next assert that RSA 508:14, I, does not apply “because the

authority to permit persons to use or enter the land). The plaintiffs contend an “occupant” under RSA 508:14, I, one must at least have the ability or

for watching recreational activities, free of charge. See or her land available to the general public to use for recreational activities or Immunity under RSA 508:14, I, is available whenever a landowner makes his the ground or in a structure on the ground, as opposed to in the water. strictly construed, does not require that the injury at issue actually occur on access water for swimming, we hold that RSA 508:14, I, applies to this case. Contrary to the plaintiffs’ assertions, the plain language of RSA 508:14, I, because the boys used State-owned land for recreational activities, i.e., to RSA 212:34). Thus, even if the word “land” pertains only to the ground, recreational activity for which recreational use immunity is available under swimming was a recreational activity. Cf. RSA 212:34, I (“water sports” is accessing Silver Lake was to swim; no one disputes that, in this case, the boys’ access to the water by using land owned by the State. The boys’ purpose for

17 F.3d at 3 n.2. “property,” which includes both ground and water. See The State counters that the plain meaning of the word “land” is to the defendants’ shallow pond from a dock installed on their beach. Collins, Appeals concluded that RSA 508:14, I, applied because Collins gained access use). See id. at 402-03. In Collins, for instance, the First Circuit Court of open to the general public and the landowner does not charge for access or available, provided the other conditions of RSA 508:14, I, are met (the land is land for recreational activities or to watch such activities, immunity is refers only to the ground, as long as the injured party used the landowner’s Cranmore Ski Resort, 152 N.H. 399, 402-03 (2005). Even if the word “land”

conclude that RSA 508:14, I, applies to this case. only to ground or includes water because even if it refers only to ground, we We need not resolve whether the word “land” as used in RSA 508:14, I, refers solids, but may encompass within its bounds . . . liquids.” (quotation omitted)). earth’s surface, but extends below and above the surface. Nor is it confined to 955 (9th ed. 2009) (“In its legal significance, ‘land’ is not restricted to the

defendant). Collins, unlike decedents in Kantner, accessed water from land owned by seas”). But see Collins, 17 F.3d at 3 n.2 (distinguishing Kantner because “the solid part of the surface of the earth in contrast to the water of oceans and deaths of Michael and Nicholas and the injuries to Jeffrey. See p. 5 (2) Algonquin breached this duty; and (3) the breach proximately caused the Algonquin, the plaintiffs had to show that: (1) Algonquin owed the boys a duty; place safety devices on shore. To prevail upon their negligence claims against Algonquin could not be liable to the plaintiffs because it had no duty to warn or claims against DES, we next address whether it erred when it ruled that Having concluded that the trial court did not err by dismissing the

208, 211 (1998). in a particular case is a question of law. See Hungerford v. Jones, 143 N.H. Aavid Thermal Technologies, 147 N.H. 706, 709 (2002). Whether a duty exists

interest in protecting those waters and has the jurisdiction to control the use of of 10 acres or more”) are state-owned. RSA 271:20 (2010). The State “has an “[a]ll natural bodies of fresh water situated entirely in the state having an area Lake, from public land. To the contrary, by statute, public waters (defined as the State lacks authority to control access to public waters, such as Silver The plaintiffs’ argument is based upon their mistaken assumption that 2009). the Bellamy Reservoir and its watershed); see also RSA ch. 485 (2001 & Supp. N.H. Admin. Rules, Env-Ws 386.58(g) (regulations for protecting the purity of at all within a certain distance from a water supply intake structure. See, e.g., public waters altogether and preclude the public from engaging in any activity protect the drinking water supply, the State may prohibit swimming in certain elected representatives cannot alter for the public good). For instance, to 25 (1983) (rejecting argument that use of public lands is a “right” that lawfully owner rights); Appeal of Comm. to Save the Upper Androscoggin, 124 N.H. 17, Lodge v. Town of New London, 158 N.H. 164, 170 (2008) (referring to littoral storage and classification, health and other public purposes. See Lakeside the State to control them reasonably in the interests of navigation, water public waters, the public’s rights are always subject to the paramount right of common law rights, such as the common law right to boat recreationally on RSA 483-B:1, II (2001) (emphasis added). While the public has certain

rights to swim in Silver Lake.” held a public easement to traverse such land to exercise their common law condition that killed Nicholas and Michael and injured Jeffrey, where the boys water does not immunize the State from liability for creating the lethal Lake.” As the plaintiffs explain: “Owning the land where the boys entered the from crossing the land to exercise their common law rights to enjoy Silver the lake. The plaintiffs assert: “The State had no power to prevent the boys Jeffrey “enjoyed a public easement to cross public non-fenced land” to enter that, because Silver Lake is a public body of water, Nicholas, Michael and p. 6 Restatement (Second) of Torts the boys is unnecessary. To support this contention, they rely upon The plaintiffs contend that a special relationship between Algonquin and

conduct of the other or a third person.” Their reliance upon Restatement unreasonable risk of harm to another through the negligent or reckless may be negligent if the actor realizes or should realize that it involves an itself impose upon him a duty to take such action.” Restatement (Second) of that action on his part is necessary for another’s aid or protection does not of § 302 A, which provides: “An act or an omission upon Algonquin to act. The mere “fact that [an] actor realizes or should realize about the dangers of swimming in Silver Lake is insufficient to impose a duty that would give rise to a duty to act. Moreover, Algonquin’s alleged knowledge 116. alleged that there is any special relationship between Algonquin and the boys aid or protection.” p. 6 Restatement (Second) of Torts knowledge that swimming there could be dangerous. The plaintiffs have not, supra § 314 comment c at subjected and the insignificance of the trouble, effort, or expense of giving him Restatement (Second) of Torts the power plant and failed to place safety devices on shore, despite its This rule applies “irrespective of the gravity of the danger to which the other is warn the boys and the public about the dangers of swimming downstream from them against an unreasonable risk of harm to them arising out of the act.” Here, the plaintiffs have alleged that Algonquin failed to act -- it failed to a general rule, a person has no affirmative duty to aid or protect another.”). under a duty to others to exercise the care of a reasonable [person] to protect Torts the public and/or the boys. “In general, anyone who does an affirmative act is, supra § 314, at 116; see Marquay v. Eno, 139 N.H. 708, 716 (1995) (“As We first address whether Algonquin owed a common law duty to protect

comment a at 82. which gives rise to the duty.” p. 6 Restatement (Second) of Torts, supra § 302 situations where there is a special relation between the actor and the other merely omits to act are more restricted, and in general are confined to been held to a duty of reasonable care in acting.”). “The duties of one who otherwise have a duty, but who voluntarily renders services for another, has Oxford Management Co., 137 N.H. 653, 656 (1993) (“A party who does not

the Lochmere dam generating station. and place safety devices on shore that arose from its operating agreement for Additionally, the plaintiffs allege that Algonquin had a contractual duty to warn vicinity of the dam and in the area adjacent to the [power] station.” popular swimming area and that swimming conditions could be perilous in the on the lakeshore because it “knew or should have known that the area was a public to warn of the allegedly dangerous currents and to place safety devices The plaintiffs allege that Algonquin owed a duty to the boys and to the p. 7 “[s]ervices” to which this provision refers, are those that are specifically the agreement, the “Site” is the site of the hydroelectric generating facility. The public and post danger signs warning against any hazards on the Site.” Under “[m]aintain guards and barriers as needed for the protection of workers and the This part of the agreement obliges Algonquin to, among other things,

from the performance of the Services. eliminate or abate safety hazards created by or otherwise resulting

control via limited access. Operator shall use its best efforts to about or adjacent to the Site and on which the Operator maintains accidents or injury to persons or damage to that property on,

applicable safety Laws and other safety requirements to prevent

safety of personnel performing the Services and shall comply with SAFETY SERVICES: Operator shall take precautions for the

shore. The operating agreement between HDI and Algonquin provides: duty upon it to warn the boys and/or the public or to place safety devices on

The plaintiffs’ writ, however, does not allege any We next address whether Algonquin’s operating agreement conferred a

Lemieux, 157 N.H. at 372-73. Algonquin had any control over DES’s actions. See In the Matter of Lemieux & plaintiffs’ favor, we conclude that they are insufficient to establish that writ to be true, and drawing all reasonable inferences from them in the Lochmere dam into Silver Lake.” Even assuming all of the facts pleaded in the to add another 375 cubic feet per second to the flow coming out of the the decision to release the dam water. The writ alleges only that DES “decided Algonquin and DES. Nor does the writ allege that Algonquin had any role in The plaintiffs also rely upon the comments to Restatement (Second) of relationship between

placing safety devices on shore. duty to protect the boys and the public from danger by posting warnings and they contend, they have alleged sufficient facts to show that Algonquin had a over DES’s decision to increase the water flow through the dam. Accordingly, alleged sufficient facts to support an inference that Algonquin had some control of Torts, supra § 314 comment a at 116. The plaintiffs argue that they have be imposed when the actor has control of a third person. Restatement (Second) duty to take affirmative precautions to aid or protect another, such a duty may Torts § 314, which explain that although an actor does not generally have the

Restatement (Second) of Torts, supra § 302 B comment a at 89. 82; see Restatement (Second) of Torts, supra § 302 A comment a at 86; unreasonable risk.” Restatement (Second) of Torts, supra § 302 comment a at negligent character of the actor’s conduct, and not with his duty to avoid the (Second) of Torts § 302 A is misplaced because it “is concerned only with the substantially different evidence. Dent v. Exeter Hosp. p. 8 the opposing party, introduce an entirely new cause of action, or call for liberal amendment of pleadings is permitted unless the changes would surprise that it is necessary for the prevention of injustice . . . .” Under RSA 514:9, the court shall deem just and reasonable, when it shall appear to the court amendment to pleadings “in any stage of the proceedings, upon such terms as RSA 514:9 (2007) allows the trial court to permit a substantive

unfairly prejudice the defendants. allow the plaintiffs to amend at such a late stage in the proceedings would it viewed the allegation as a new cause of action and because it found that to Michael. The trial court denied the plaintiffs’ motion to amend in part because that DES intentionally caused Jeffrey’s injuries and the deaths of Nicholas and dismissed their first amended writ, the plaintiffs moved to add an allegation plaintiffs’ motion to amend their first amended writ. After the trial court Finally, we address whether the trial court erred when it denied the

issue. over which Algonquin had control did not cause or contribute to the accident at This is particularly true in light of the plaintiffs’ stipulation that the only water the release of water from the dam, such as by placing safety devices on shore. Algonquin to eliminate or abate the allegedly dangerous currents resulting from from the dam, the second sentence of this provision is insufficient to require alleged that any of these services relate in any way to managing the water flow the services it specifically contracted to perform. As the plaintiffs have not or abate safety hazards created or otherwise resulting from the performance of 8 The provision also requires Algonquin to use its best efforts to eliminate

court’s decision absent an unsustainable exercise of discretion. Id. at 797. sound discretion of the trial court. Id. at 796-97. We will not disturb the trial (2007). Whether to allow a party to amend his or her pleadings rests in the

shore. general public about dangerous lake conditions or place safety devices on alleged any safety law or requirement that would oblige Algonquin to warn the be deemed to be “adjacent to” the hydroelectric facility, the plaintiffs have not the hydroelectric facility. Even if the area where the boys were swimming could requirements to prevent accidents or injury to people “on, about or adjacent to” personnel and to comply with applicable safety laws and other safety devices on the lakeshore. This provision obligates Algonquin to protect warn the public about dangerous downstream conditions or to place safety Nothing in the plain language of this provision requires Algonquin to

water flow from the dam. described in three separate schedules. None of them pertains to managing the p. 9 9

Affirmed

DALIANIS, DUGGAN and HICKS, JJ., concurred.

Citing ERG, Inc. v. Barnes

absolute right to plead an entirely new cause of action. deficiencies in his or her original claims; it does not grant the plaintiff an N.H. at 18 p. 9 9. ERG gives the plaintiff an opportunity to correct perceived opportunity to amend the writ to correct perceived deficiencies. ERG, Inc., 137 failure to state a cause of action, the court must give the plaintiff an misplaced. In ERG, we held that before a trial court may dismiss a writ for they had an absolute right to amend their writ. Their reliance upon ERG is

that the trial court’s decision was an unsustainable exercise of discretion. extensive pre-trial discovery. Under these circumstances, we cannot conclude amendment only three months before trial, after the parties had conducted tort claim. This is a new cause of action. The plaintiffs sought this amending the writ, which sounded entirely in negligence, to add an intentional its discretion by denying the plaintiffs leave to amend. The plaintiffs proposed In this case, we cannot find that the trial court unsustainably exercised