2014-0703, Margaret Dolbeare v. City of Laconia

a duty, despite RSA 212:34, II? (1) Did the trial court err in finding that the City owed Plaintiff

review: plaintiff, Margaret Dolbeare. The trial court transferred two questions for our denying its motion to dismiss negligence and nuisance claims brought by t he City of Laconia (City), from a decision of the Superior Court (Smukler, J.) DALIANIS, C. J. This is an interlocutory appeal by the defendant, the

and orally), for the defendant. Maggiotto & Belobrow, PLLC, of Concord (Corey Belobrow on the brief

the brief and orally), for the plaintiff. Normandin, Cheney & O’Neil, PLLC, of Laconia (William D. Woodbury on

No. 2 014 - 703 Belknap

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, Concor d, 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 p. 2 22 as 2

as RSA p. 2 212:34 (2010) and RSA 508:14, I, which are in derogation of the ascribe the plain and ordinary meanings to the words used. Id. Statutes, such 5 (2010). We first examine the language of the statute, and, when possible, statute considered as a whole. Coan v. N.H. Dep’t of Env’t Servs., 161 N.H. 1, the final arbiter of the intent of the legislatu re as expressed in the words of the is de novo. Atwater v. Town of Plainfield, 160 N.H. 503, 507 (2010). We are Because the issues on appeal involve statutory interpretation, our review

unsuccessfully sought rec onsideration, and this interlocutory appeal followed. the plaintiff’s claims. The trial court denied the City ’s motion. The City use immunity statutes, RSA p. 2 212:34, II and RSA 508:14, I, immunized it from nuisance claims. The City moved to dismiss, arguing that the two recreational The plaintiff filed a complaint against the City, alleging negligence and

mat. She fell and suffer ed injuries. the plaintiff approached the park swings, her foot caught under the edge of a enjoying the play ground equipment at the park with her granddaughter. As City owns and maintains Opechee Park. In May p. 2 2012, the plaintiff was necessary. See Lawrence v. Philip Morris USA, 164 N.H. 93, 95 (2012). The interlocutory appeal statement and rely upon the record for additional facts as We accept the statement of the case and facts as pres ented in the

event that she stated such a claim. See id. would be entitled to immunity under RSA p. 2 212:34, II or RSA 508:14, I, in the claim for nuisance, we decline, at this juncture, to de termine whether the City Because the trial court has not yet d ecided whether the plaintiff has stated a court neither ruled upon that argument nor transfer red a question regarding it. City argues that the plaintiff has failed to state a claim for nuisance, the trial nuisance claim, we decline to answer them. See Sup. Ct. R. 8. Although the To the extent that the transferred questions refer to the plaintiff’s

the City’s motion to dismiss the plaintiff’s negligence claim. so in the first instance. Accordingly, we vacate the trial court’s order denying ( p. 2 2010). Because the trial court did not address this argument, we decline to do RSA 508:14, I, the City is liable for its alleged negligence under RSA 507 - B:2 claim. T he plaintiff als o argues that, notwithstanding either RSA 212:34, II or both questions in the affirmative as they relate to the plaintiff’s negligence (Supp. 2014) and RSA 508:14, I (2010) apply to municipalities. We answer the transferred questions, we assume, without deciding, that RSA 212:34, II Because the parties do not argue otherwise, and f or the purposes of answerin g

RSA 508:14” ? playground equipment is not . . . recreation within the meaning of immune from sui t under RSA 508:14, I, because “using ( p. 2 2) Did the tri al court err in holding that the City was not p. 3 3

the playground equ ipment here was supplied by the landowner, rather than snowmobiling, and operating an off - highway recreational veh icle). Although equipment. See RSA 212: p. 3 34, I (c) (referring to hunting, trapping, b icycling, the statute, the use of playground equipment involves the use of man - made activities enumerated in RSA 212:34, I(c). Like many of the activities listed in The use of playground equipment is an o utdoor activity, like all of the

equipment constitutes an “ou tdoor recreational activity” under RSA 212: p. 3 34. activities enumerated in RSA 212:34, I(c), and thus, hold that the use of such conclude that the use of playground equipment is similar in nature to the Matter of Hennessey - Martin & Whitney, 151 N.H. 207, 211 (2004). We objects similar in nature to those enumerated by the specific words. In the statute follow general ones, the general words are construed to embrace only The principle of ejusdem generis provides that, when specific words in a

maintained man - made attractions, such as playground equipment.” injuries incurred as a result of [the] use of negligently constructed or “clearly relieves landowners of a duty of care for the use of land onl y, not for the doctrine of ejusdem generis. According to the plaintiff, RSA 212: p. 3 34, II thus, is excluded from the definition of an “ou tdoor recreational activity” under same class as those activities specifically enumer ated in the statute,” and, 212:34, I(c) is not exhaustive, s he asserts that “using a swing is not of the under RSA 212:34, I(c). Although she agrees that the list of activities in RSA playground equipment,” does not constitute “ou tdoor recreational activity” The plaintiff argues that “the use of man - made attractions, such as

fuel wood from the premises.” hiking, ice and rock climbing or bouldering, or sightseeing upon or removing water sports, winter spo rts, snowmobiling . . . , operating an OHRV . . . , limited to, hunting, fishing, trapping, camping, horseback riding, bicycling, recreational activity” as “outdoor recreational pursuits including, but not landowner.” RSA 212: p. 3 34, V(b), (d). RSA 212:34, I(c) defines “[o]utdoor charge or “[w]hen the injury suffered was caused by the intentional act of the has given permission to use the premises for outdoor recreational activity for a the immunity granted by RSA 212:34, II does not apply when the landowner entering for such purposes.” (Emphasis added.) RSA 212:34, V provides that conditions, uses of, structures, or activities on such pr emises to persons by others for outdoor recreational activity or to give any warning of hazardous V, a “landowner owes no duty of care to keep the premises safe for entry or use RSA 212:34, II. RSA 212:34, II, states t hat, except as provided in RSA 212:34, equipment constitutes a n “o utdoor recreational activity” within the meaning of negligence claim. The parties dispute whether the use of playground We first address whether RSA 212:34, II applies to the plaintiff’s

Couture v. Brown, 152 N.H. 265, 266 - 67 (2005). common law right to recover, are strictly construed. See Estate of Gordon - p. 4 4

con struction of RSA 508:1 p. 4 4, I, she makes her argument in the wrong forum, as the extent that the plaintiff relies upon public policy to support her warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). To construction of RSA 508:14, I, we conclude that her argument does not equipment). Although the plaintiff relies upo n RSA 508:14, III to support her park) to access the playground for a recreational activity (using playground a recreational activity (swimming), here, the plaintiff used the City’s land (the Like the boys in Coan who used State - owned land to access the water for

Id. at 6. recreational activity, RSA 508:1 p. 4 4, I, applied and DES was entitled to immunity. because their purpose was to go swimming, which the parties agreed was a because the boys gaine d access to the water by using State - owned land and held that, even if the word “land” pertains only to the ground and not to water, whether DES was immune from liability under RSA 508:14, I. Id. at 5. We Environmental Services (DES). Coan, 161 N.H. at 3 - 4. One appeal issue was was downstream from a dam owned by the New Hampshire Department of In that case, two boys drowned while swimming in Silver Lake, which

recreational purposes.” We agree with the City that Coan is dispositive. used “land” to acces s playground equipment, she was using “land for decision in Coan, 161 N.H. at 5 - 6, the City argues that, because the plaintiff 508:1 p. 4 4, I, because it does not constitute the “use [of] land.” Relying upon our “r ecreational,” it is not a “recreational activity” within the meaning of RSA The plaintiff argues that, even if the use of playground equipment is

that the park was open to the general public. have stipulated that the plaintiff was not charged for the use of the park and in the absence of in tentionally caused injury or damage.” Here, the parties recreational activity, shall not be liable for personal injury or property damage permits any person to use land for recreational purposes or as a spectator of of land, including the state or any political subdivision, who without charge negligence claim. R SA 508:1 p. 4 4, I, provides that an “owner, occupant, or lessee We next address whether RSA 508:14, I, applies to the plaintiff’s

RSA 212:3 p. 4 4, II. equipment constitutes an “ou tdoor recreational activity” within the meaning of purposes. RSA 212:34, II. Thus, we conclude that the use of playground on such premises to persons entering” the land for outdoor recreational a landowner from liability for failing to warn “of hazardous . . . structures . . . state, we observe that the statute specifically applies to “structures.” It relieves constitutes a “structure” that is on land, as opposed to land in its natural To the extent that the plaintiff argues that playground equipment

outside rec reational activit i es involving equipment provided by the user. the user, this distinction is immaterial. On its face, the sta t ute is not limited to p. 5 5

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.

remand for further proceedings consistent with this opinion. order denying the Ci ty’s motion to dismiss t he plaintiff’s negligence claim and “use [of] land” within the meaning of RSA p. 5 508:14, I. Accordingly, we vacate its “ou tdoor recreational activity” within the meaning of RSA 212:34, II, nor the erred when it determined that the use of playground equipment was neither an For all of the above reasons, therefore, we conclude that the trial court

N.H. 632, 64 p. 5 5 (2007). matters of public policy are reserved for the legislature. Petition of Kilton, 156