2016-0406, Jay Kurowski f/n/f Christopher Kurowski v. Town of Chester

immunity under RSA 212:34, w e affirm. 2016); RSA 508:14 (2010). Because we conclude that the Town is entitled to barred by the recreational use immunity statutes. See RSA 212:34 (Supp. J.) dismissing his negligence and intentional tort clai ms against the Town, a s his minor son, Christopher, appeals an order of the Superior Court (Anderson, a tree on the shore. The plaintiff, Jay Kurowski, as father and next friend of suffered injuries after being struck by a person using a rope swing attached to owned by the defen dant, the Town of Chester, where Ch ris topher Kurowski BASSETT, J. This case arises out of an accident occurring at a pond

(Donald L. Smith on the brief and orally), for the defendant. Devine, Millimet & Branch, Professional Association, of Manchester

the brief and orally), for the plaintiff. Solomon Professional Association, of Londonderry (Peter M. Solomon on

No. 2016 - 0406 Rockingham

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

plaintiff’s favor. See i d. We need not, however, assume the truth of statements be true and construe all reasonable inferences drawn from those facts in the Servs., 161 N.H. 1, 4 ( p. 2 2010). We assu me all facts pleaded in the complaint to of a construction that would permit recovery. See Coan v. N.H. Dep’t of Env’t determine whe ther the allegations in the complaint are reasonably susceptible In re viewing a trial court’s grant of a motion to dismiss, our task is to

The trial court denied the plaintiff’s motion to reconsider. This appeal followed. should postpone ruling on the motion to dismiss to allow discovery to proceed. plaintiff’s negligence claim. It also rejected the plaintiff’s argument that it p. 2 212:34 barred both of the plaintiff’s claims, and that RSA 508:14 barred the The trial court granted the Town’s motion to dismiss. It ruled that RSA

the recreational use immunity statutes — RSA p. 2 212:34 and RSA 508:14. motion to dismiss, arguing that the plainti ff’s suit was barred by one or both of fail ing to remove the rope swing or post warning signs. The Town filed a He claimed that the Town acted negligently and willful ly or intentional ly by The plaintif f filed a complaint against the Town on Christopher’s behalf.

seriously injured. feet of the person swinging on the rope, the two collided, and Christopher was of a person using the swing. While Christopher was attempting to touch the On August p. 2 20, 201 5, Christopher was at the pond, standing in the path

post signage. p. 2 2015. At no time between 2012 and 2015 did t he Town remove the swing or heard s imilar safety concerns about the swing during meetings in 2013 and the names of individuals usi ng the swing and list them in a report. The Board swing, t he p olice chief reported that the practice had been for the police to take question from the Board as to what the Town was doing with regard to the Board member observed that the swing was a hazard. In response to a install “no swimming” signs near the swing area. During the meeting, one concerned about the safety of the rope swing. The resident asked the Board to In 2012, a Town resident told the Town Board of Selectman that he was

the person holding the rope before that person splashes in to the water. a second person stands near the rope’s path and attempts to slap the feet of into the p ond. Some times an individual swings over the water on the rope and maintained the swing. People use the rope swing to fling themselves over and overhanging the pond. Neither the plaintiff nor the Town cons tructed or of charge. Since approximately p. 2 2012, a rope swing has been attached to a tree which includes walking paths and Wason Pond, and is open to the public free Town owns and maintains the Wason Pond Conservation and Recreation Area, accept as true for the purposes of this appeal, or in the trial court order. The The following facts are found either in the plaintiff’s allegations, which we p. 3 3

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except as provided in paragraph V. activities on such premises to persons entering for such purposes, any warning of hazardous conditions, uses of, structures, or entry or use by others fo r outdoor recreational activity or to give II. A landowner owes no duty of care to keep the premises safe for

RSA 212: p. 3 34 provides:

to recover, are strictly construed. Id. Statutes such as RSA 212: p. 3 34, which are in derogation of the common law right when possible, ascribe the plain and ordinary meanings to the words used. Id. considered as a whole. Id. We first examine the language of the statute, and, arbiter of the intent of the legislature as expressed in the words of the statute therefore, our review is de novo. Dolbeare, 168 N.H. at 54. We are the final The r esolut ion of these issues requires statutory interpretation;

to allow discovery to proceed. 212: p. 3 34, V applied; and (3) refused to postpone ruling on the motion to dismiss intentionally, neither of the relevant exceptions to immunity under RSA 212:34, I(c); (2) found that, because the Town did not act willfully or Christopher’s conduct qualified as an “o utdoor recreational activity” under RSA T he plaintiff argues that the trial court e rred when it: (1) found that

RSA 508:14). 212: p. 3 34 because we concluded that defendant was entitled to immunity under Cf. Coan, 161 N.H. at 5 (declining to address parties ’ arguments under RSA also immun izes the Town from liability on all or some of the plaintiff’s claims. liability on all of the plaintiff’s claims, we need not decide whether RSA 508:14 trial court correctly ruled that, under RSA 212:34, the Town is immune from Laconia, 168 N.H. 52, 54 (2015). In addition, because we conclude that the 212:34 and RSA 508:14 apply to municipalities. See Dolbeare v. City of parties do not argue otherwise, we assume, without deciding, that both RSA the Town immune from suit under both recreational use statutes. Because the On appeal, the plaintiff argues that the trial court erred when it found

the motion to dismiss. See Coan, 161 N.H. at p. 4 4 - 5. constitute a basis for legal relief, we must hold that it was improper to grant facts in the complaint against the applicable law, and if the allegations Dist., 168 N.H. 47, 49 (2015). We engage in a threshold inquiry that tests the in the pleadings that are merely conclusions of law. Lamb v. Shaker Reg’l Sch. 4

recreational activity” under RSA 212:3 p. 4 4, I(c). nature to the enumerated activity of “water sports” to constitute an “outdoor was actively engaged in an outdoor recreational pursuit sufficiently simil ar in using the swing before that person hit the water. W e hold that Christopher using a rope swing. Christopher was attempt ing to slap the feet of the person activity at issue involved a person launching herself over and into the water — shallow water from a dock is a “water sport” under RSA 212:34). Here, the also Collins v. Martella, 17 F.3d 1, 2 - 3 (1st Cir. 1994) (noting that diving into rock. See Fish v. Homestead Woolen Mills, 134 N.H. 361, 362, 366 (1991); see sustained by a plaintiff who dove into a lake, striking his head on a submerged We have held that RSA 212:34 bars an action against a landowner for injuries similar in nature to the enumerated activity of “water sports.” RSA 212:34, I(c). A pplying this principle here, we conclud e that the activity at issue is

in nature to those enumerated by the specific words. Id. at 55. general ones, the general words are construed to embrace only objects similar of ejusdem generis provides that, whe n specific words in a statute follow “outdoor recreational activity.” See Dolbeare, 168 N.H. at 55 - 56. The principle similar in nature to the activities listed in the statute — may constitute an provision and conclude d that an activity not specifically enumerated — but I ndeed, we have previously applied the principle of ejusdem generis to this terms, the statute’s list of outdoor recreational activities is not exhaustive. fuel wood from the pre mises.” RSA 212:3 p. 4 4, I(c) (emphasis added). By its plain hiking, ice and rock climbing or bouldering, or sightseeing upon or removing water sports, winter sports, snowmobiling..., operating an OHRV..., limited to, hunting, fishing, trapping, camping, horseback riding, bicycling, recreational activi ty” as “outdoor recreational pursuits including, but not used in RSA 212:34, I(c). We disagree. RSA 212:34, I(c) defines “outdoor Christopher was engaged in an “outdoor recreational activity,” as that term is The plaintiff first argues that the trial court erred when it found that

Brown, 152 N.H. 265, 273 (2005). public recreational uses by limiting their liability.” Estate of Gordon - Couture v. statute to be to “encourage private landowners to ma ke their land available for RSA 212:3 p. 4 4, II, V (a), (d). We have found the legislative intent underlying this

act of the landowner. (d) When the injury suffered was caused by the intentional

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

V. This section does not limit the liability which otherwise exists: p. 5 5 took no action to remove it or post warning signs, the Town “willful[ly]... He asserts that, because the Town knew of the hazard posed by the swing and alleged insufficient facts to show that the Town’s alleged conduct was willful. T he plaintiff argues that the trial court erred by finding that he had

exception in turn. the landowner’s “intentional” conduct, see RSA 212:34, V(d). We address each use, structure, or activity, see RSA 212:34, V(a); the second exception concern s landowner’s “willful” failure to guard or warn against a dangerous condition, to recreational immunity applied to the Town. The first exception concerns a allegations were insufficient to establish that either of two statutory exceptions T he plaintiff next argues that the trial court erred when it found that his

in was an “outdoor recreational activity” under RSA 212:34. court did not err when it found t hat the activity that Christopher was engaged such premises.... (emphasis added)). Accordingly, w e conclude that the trial give any warning of hazardous conditions, uses of, structures, or activities on premises safe for entry or use by others for outdoor recreational activity or to condition. See RS A 212:34, II (“A landowner owes no duty of care to keep the immunity will apply even i f the activity at issue involves a known hazardous the plaintiff’s position. In fact, the statute specifically contemplates that are not persuaded. T he plain language of the statute provides no support for it must be authorized by the landowner, and not identified as hazardous. We “outdoor recreational activity” because, in order to qualify as such an activity, The plaintiff also argues that Christopher’s conduct did not constitute an

party. provided by anyone, including the landowner, a third party, or the injured 212:34, I(c), involve the use of equipment or structures that could be owned or example, hunting, camping, hiking, bicycling, and snowmobiling, see RSA user). Indeed, many of the enumerated outdoor recreational activities, for equipment used in outdoor activity was provided by landowner rather than immaterial. See id. at p. 5 56 (finding immaterial the fact that playground providing the equipment or structure used in an outdoor recreational activity is “outdoor recreational activity.” However, the identity of the person or entity maintain the rope swing, Christopher’s conduct does not constitute an The plaintiff next a rgues that, because the Town did not supply or

recreational activity” under RS A 212:34, I(c)). (holding that the use of playground equipment constituted an “outdoor made equipment or structures on the land. See Dolbeare, 1 p. 6 68 N.H. at p. 5 55 - 56 includes not only the use of land in its natural state, but also the use of man feature of the land. However, w e have held that “outdoor recreational activity” because it involved a man - made apparatus rather than a naturally occurring Christopher’s conduct does not constitute an “outdoor recreational activity” In arguing for a contrary conclusion, the plaint iff asserts that 6 negligence claim). Therefore, even a ssuming that the Spires definition applies, knew that dock was installed in sha llow water, established, at most, a sound in negligence. See id. at 5 (concluding that evidence that landowner someone would be injured by diving from the dock”). At most, s uch allegations enough to infer that defendants “consciously disregarded a probability that at 4 - 5 (holding that fact that dock was installed in shallow water was not known that injury would probably result from that hazard. Cf. Collins, 17 F.3d nothing is i nsufficient to establish that the landowner knew or should have An allegation that a landowner knew about a particular hazard and did

probable result of the rope swing. We are not persuaded. had actual or constructive knowledge that Christopher’s injuries were a hazard. He claims that these allegations are sufficient to show that the Town not warn patrons of the hazard, or otherwise take any action to abate the brought to the Board’s attention on three separate occasions; and the Town did that the rope swing was a hazard; the hazardous nature of the rope swing was adde d). In his complaint, the plaintiff alleged that: the Town acknowledged result of the danger.” Spires, 805 F.2d at 834 (quotation omitted; emphase s constructive knowledge that injury [was] a probable, as opposed to a possible, facts to establish the second element — that the Town had “actual or conduct, we agree with the trial court that the plaintiff did not allege sufficient established elements one and three of the Ninth Circuit’s definition of willful Here, even if we assume, without deciding, that the plaintiff’s pl eadings

definitio n. we agree with the Town that it prevails even under the Ninth Circuit’s prevail. We need not resolve this question of statutory interpretation b ecause Circuit’s more expansive definition of willful conduct, the Town would still Alternatively, the Town asserts that, even if we were to adopt the Ninth cause its results.” Ives v. Manchester Subaru, Inc., 12 p. 6 6 N.H. 796, 801 (1985). concluding that willful mean s “a voluntary act committed with an intent to in the context of a claim for liquidated damages under RSA chapter 275, argues that we should rely upon our previous interpretation of “willful” conduct failure to act to avoid the peril.” Id. (quotation omitted). By contrast, the Town probable, as opposed to a possible, result of the danger[;] and (3) conscious to be apprehended[;] (2) actual or constructive knowledge that injury is a constitute willful mis conduct: “(1) actual or constructive knowledge of the peril definition, three elements must be present for the landowner’s actions to Spires v. United States, 805 F.2d 832, 834 (9th Cir. 1986). Under that Appeals in analyzing claims under California’s recreational use statute. See the plaintiff urged us to adopt the definition used by the Ninth Circuit Court of occasion to interpret “willful” in the context of this statute. At oral argument, RSA 212:34 does not define the word “willful,” a nd we have never had

activity,” RSA 212:34, V(a). We disagree. fail[ed] to guard or warn against a dangerous condition, use, structure or p. 7 7

case. See i d. court’ s ruling was clearly untenable or unre asonable to the prejudice of his establish that the trial court erred, the plaintiff must d emonstrate that the trial discovery under an unsustainable exercise of discretion standard. Id. To 421, 429 (2009). We review a trial court’ s rulings on the management of sound discretion of the trial judge. N.H. Ball Bearings v. Jackson, 158 N.H. discovery could proceed. Decisions concerning pretrial discovery are within the plaintiff’s request to postpone ruling on the Town’s motion to dismiss so that Finally, the plaintiff argues that the trial court erred when it denied the

insufficient facts to show that the Town’s conduct was w illful or intentional. that the trial court did not err when it found that the plaintiff alleged substantial risk and failed to act sound in negligence). Accordingly, we hold negligence. See id. (concluding that allegations that defendant disregarded a aware of a hazardous conditio n or activity and failed to act — sound in brackets omitted)). At most, the plaintiff’s allegations — that the Town was something short of substantial certainty — is not intent.” (quotation and to result in injury. See id. (“The mere knowledge and appreciation of a risk — had actual or constructive knowledge that its conduct was substantially certain T he plaintiff’s allegations are insufficient to demonstrate that the Town

it, and did not post warning signs. We disagree. that hazard on three occasions between 2012 and 2015, did nothing to remove the Tow n acknowledged that the rope swing was a hazard, was warned about act for the same reasons he asserts the Town’s conduct was willful — because The plaintiff argues that the Town’s conduct constituted an intentional

it applies here. Because the parties agree on this definition, we assume, without deciding, that 215, 2 20 (1992) (citing Restatement (Second) of Torts § 8 p. 7 70, at 280 (1979)). [is] substantially certain to result in injury.” Thompson v. Forest, 136 N.H. “intentional tort” the tortfeasor must act with the knowledge that “his conduct when construing the Worker s ’ Compensation Law: for a tort to be an interpret “in tentional act” under RSA 212:34 in the same fashion as we did “intentional act,” s ee RSA 212:34, I, V, both pa rties argue that we should the intentional act of the landowner”). Although RSA 212:34 d oes not define does not limit liability of landowners “[w]hen the injury suffered was caused by the Town’s intentional act s. See RSA 212:34, V(d) (providing that RSA 212:34 alleged insufficient facts to show that Christopher suffered injury as a result of T he plaintiff next argues that the trial court erred when it found that he

ruling on this issue. establish that the Town acted “willfully.” W e find no error in the trial court’s we conclude that the plaintiff’s allegations are insufficient as a matter of law to p. 8 8

DALIANIS, C.J.