Collins v. Martella

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-2002

                                    SEAN COLLINS,

                                Plaintiff, Appellant,

                                          v.

                               PETER MARTELLA, ET AL.,

                                Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
                                          _____________
                            Aldrich, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

Jeffrey  N. Roy  with whom Ravech,  Roy & Kaplan,  P.C., Arthur O.
            _______________            ____________________________  _________
        Gormley, III  and Gormley, Mayer  & Gormley,  P.C. were  on brief  for
        ____________      ________________________________
        appellant.
            Stephen  H.  Roberts  with  whom  Thomas  G.  Ferrini,  Ouellette,
            ____________________              ___________________   __________
        Hallisey, Dibble  & Tanguay,  Robert C.  Dewhirst, Devine,  Millimet &
        ___________________________   ___________________  ___________________
        Branch, Christine Friedman and Bouchard  & Mallory, P.A. were on brief
        ______  __________________     _________________________
        for appellees.
                                 ____________________
                                  February 22, 1994
                                 ____________________

Per  Curiam.  The judgment of the district court is
                      ___________

            affirmed.  The court, essentially, adopts the language of the

            district court's  order  dated August  11,  1993,  reproduced

            herein.

                                      O R D E R
                                      _________

                      Like  most   other  states,1   New  Hampshire   has

            "recreational  use" laws limiting the common law liability of

            certain  owners   and  occupants  who  make   their  property

            available for recreational  use by  others.   In the  present

            case,  Sean Collins  has sued  the owners  and managers  of a

            private beach to  recover for injuries suffered  when he dove

            into  shallow water  from  a  dock  installed at  the  beach.

            Several of  the defendants  have moved  for summary  judgment

            claiming the  protection of the  recreational use laws.   The

            success  of  these motions  depends  upon:   (i)  whether the

            recreational use statutes are inapplicable  because the beach

            was developed land  that was not open to  the general public;

            (ii)  whether any of  the defendants willfully  disregarded a

            dangerous condition that  resulted in Collins'  injuries; and

            (iii) whether either  "consideration" or a "charge"  was paid

            for access to the beach.

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            1.  See Klepper v. City of Milford, 825 F.2d 1440, 1444 (10th
                ___ _______    _______________
            Cir. 1987) ("Similar  legislation has been enacted  in nearly
            all  of the  fifty states");  see also  Robin  Cheryl Miller,
                                          ___ ____
            Effect of Statute Limiting Landowner's Liability for Personal
            _____________________________________________________________
            Injury to Recreational User, 47 A.L.R. 4th 262 (1986).
            ___________________________

                                         -2-

For  the reasons  that  follow,  I  hold  that  the

            recreational  use laws are  applicable here.   Accordingly, I

            grant defendants' motions for summary judgment.

I.  FACTS
                                      I.  FACTS
                                          _____

                      On  August  5,  1989, Collins  was  invited  by his

            cousin  to  swim at  the  Cobbett's  Pond  Park beach.    The

            injuries giving  rise to  this action  occurred when  Collins

            dove from a  dock at the  beach into shallow water  and broke

            his neck.

                      Title to  the beach is  held by the  Cobbett's Pond

            Community  Trust ("Trust").   The beneficiaries of  the Trust

            are the  residents of Cobbett's  Pond Park, all of  whom also

            have  a deeded  right of  access  to the  beach.   Defendants

            William  Donovan,  William  Benkoski, and  Oliver  Tarr  were

            appointed  trustees  of  the  Trust in  1958.    Although the

            trustees have  not been  involved in  the  management of  the

            beach  for  several years,  the Trust  has not  been formally

            dissolved.  Nor  have any of the defendants  been replaced as

            trustees.

                      When  Collins was injured, the beach was managed by

            an unincorporated association known as The Community Group of

            Cobbett's   Pond,  Inc.   ("Association").     Although   the

            Association  at one  time had  been an  active  New Hampshire

            corporation,  the corporation was  dissolved in 1977  and was

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not reinstated until 1992.  Membership in the Association was

            limited to residents  of Cobbett's Pond Park.   The Bylaws of

            the  Association  required  members to  pay  annual  dues and

            stated  that membership privileges  would be revoked  if dues

            were not paid.

                      The Association  was responsible for setting up and

            maintaining the dock Collins dove  from when he was  injured.

            The  Association was  also responsible  for establishing  and

            enforcing beach  rules.   The beach was  posted as  a private

            beach and  only residents  of Cobbett's Pond  Park and  their

            guests were allowed to use it.

II.  DISCUSSION
                                   II.  DISCUSSION
                                        __________

                      New  Hampshire has  two  recreational use  statutes

            that may limit the liability  of the defendants in this case.

            N.H.  Rev. Stat.  Ann. ("RSA")    212:34  (1989) provides  in

            pertinent part:

                      I.    An  owner,  lessee  or  occupant of
                      premises  owes no  duty of  care to  keep
                      such  premises safe  for entry or  use by
                      others  for  hunting,  fishing, trapping,
                      camping, water  sports, winter  sports or
                      OHRVs  as defined  in RSA  215-A, hiking,
                      sightseeing, or  removal of  fuelwood, or
                      to   give   any  warning   of   hazardous
                      conditions,  uses   of,  structures,   or
                      activities  on such  premises to  persons
                      entering  for  such purposes,  except  as
                      provided in paragraph III hereof. . . .

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

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

                           (b)  For injury suffered in any case
                      where  permission  to hunt,  fish,  trap,
                      camp, hike, use for  water sports, winter
                      sports  or use of OHRVs as defined in RSA
                      215-A, sightsee,  or remove  fuelwood was
                      granted for consideration  other than the
                      consideration,  if  any,   paid  to  said
                      landowner by the state . . . .

                      RSA 508:14 (Supp. 1992) provides in pertinent part:

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

                      The  trustee defendants  have  been  sued in  their

            capacity   as  owners  of  the  beach,  and  the  Association

            defendants have been sued as occupants.   Because Collins was

            injured while engaged in  a "water sport" within the  meaning

            of RSA 212:34 and a  "recreational use" within the meaning of

            RSA  508:14, the defendants  claim that they  are entitled to

            invoke both recreational use statutes.2

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            2.  Plaintiff  half-heartedly  argues  that   RSA  580:14  is
            inapplicable here  because he was injured in the water rather
            than on  land.   Although the court  in Kanter  v. Combustion
                                                    ______     __________
            Engineering, 701 F. Supp. 943, 946  (D.N.H. 1988) declined on
            ___________
            this basis to apply RSA 508:14 to claims brought on behalf of
            two men who  drowned while swimming and canoeing  at the base
            of a dam,  that case is  distinguishable because Collins  was
            injured while diving  from a dock attached to  the land owned
            and operated  by the  defendants, whereas  the plaintiffs  in

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Collins  attacks   these  arguments   from  several

            perspectives.  First,  he contends that the  recreational use

            statutes  only protect owners of large, undeveloped tracts of

            land who make their property available to the general public.

            Since the  beach, in contrast,  is a developed tract  of land

            that is open only to members of Cobbett's Pond Park and their

            guests, Collins  argues that  the statutes  are inapplicable.

            Second, Collins  contends that a factual dispute exists as to

            whether  any of the defendants willfully caused his injuries.

            Accordingly,   he  argues  that   the  applicability  of  the

            recreational use laws  cannot be determined through  a motion

            for  summary judgment.   Finally,  Collins  argues that  both

            statutes  are inapplicable  because  the  dues  paid  by  the

            Association  members and  the  payments  Cobbett's Pond  Park

            landowners  made  to  purchase  their  lots  constitute  both

            "consideration" under  RSA 212:34  and a  "charge" under  RSA

            508:14.  I address each argument in turn.3

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            Kanter did not gain access  to the water from the defendant's
            ______
            property.

            3.  In  assessing the parties' motions, I apply the following
            principles.    Summary   judgment  is  appropriate  "if   the
            pleadings,  depositions,  answers   to  interrogatories,  and
            admissions on  file, together  with the  affidavits, if  any,
            show that there is no  genuine issue as to any  material fact
            and that the moving party is entitled to judgment as a matter
            of law."  Fed.  R. Civ. P. 56(c).   A "genuine" issue is  one
            "that  properly can  be resolved  only  by a  finder of  fact
            because  [it] may reasonably  be resolved in  favor of either
            party."  Anderson  v. Liberty Lobby, Inc., 477  U.S. 242, 250
                     ________     ___________________
            (1986); accord  Garside v. Osco  Drug, Inc., 895 F.2d  46, 48
                    ______  _______    ________________
            (1st Cir. 1990).   A "material" issue is  one that "affect[s]

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A.   Do the Recreational Use Statutes Apply Only to
                           ______________________________________________
                           Large,  Undeveloped  Tracts of  Land  That Are
                           ______________________________________________
                           Open to the General Public?
                           ___________________________

                      Collins cites various cases  in other jurisdictions

            for  the  proposition  that  recreational  use  statutes  are

            applicable only to large, undeveloped tracts of land that are

            open to the general public.  See Hallacker v. National Bank &
                                         ___ _________    _______________

            Trust Co. of  Gloucester, 806 F.2d 488, 491  (3rd Cir. 1986);
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            Miller v. United  States, 597 F.2d 614, 617  (7th Cir. 1979);
            ______    ______________

            Wyner v. Holmes, 412 N.W. 2d 216, 217 (Mich. 1987).  Although
            _____    ______

            I   accept   Collins'   contention   that   New   Hampshire's

            recreational  use  statutes  should  be  narrowly   construed

            because they are in derogation  of the common law, see, e.g.,
                                                               ___  ____

            Kanter v.  Combustion Eng'g,  701 F.  Supp. 943,  946 (D.N.H.
            ______     ________________

            1988); State  v. Hemsdorf, 135  N.H. 360, 363 (1992),  I will
                   _____     ________

            not   read  into  these   statutes  a  limitation   that  the

            legislature  left  out.   Unlike  similar  statutes  in other

            jurisdictions and the model recreational use statute proposed

            by  the Council  of  State  Governments,  the  New  Hampshire

            recreational   use  statutes  do  not  contain  any  language

____________________

            the outcome of the suit . . . ."   Anderson, 477 U.S. at 248.
                                               ________
            The  burden is upon  the moving party  to aver the  lack of a
            genuine,  material factual issue,  Finn v.  Consolidated Rail
                                               ____     _________________
            Corp., 782  F.2d 13, 15 (1st  Cir. 1986), and  the court must
            _____
            view  the record  in the  light  most favorable  to the  non-
            movant, according  the non-movant  all beneficial  inferences
            discernable  from the  evidence.   Oliver  v. Digital  Equip.
                                               ______     _______________
            Corp., 846 F.2d  103, 105 (1st Cir.  1988).  If a  motion for
            _____
            summary  judgment is properly supported, the burden shifts to
            the non-movant to show that  a genuine issue exists.  Donovan
                                                                  _______
            v. Agnew, 712 F.2d 1509, 1516 (1st Cir. 1983).
               _____

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suggesting a  requirement  that the  land  at issue  must  be

            either undeveloped  or open to  the general public.   Compare
                                                                  _______

            RSA  508:14 and 212:34  with Conn. Gen.  Stat.   52-557(g)(a)
                        ___         ____

            ("an owner  of land  who makes all  or any  part of  the land

            available to the public . . .  owes no duty of care . . . .")

            and  The Council of  State Governments, Public  Recreation on
            ___

            Private  Lands:   Limitations on  Liability, Suggested  State

            Legislation, Volume  XXIV (1965) ("the purpose of this act is

            to  encourage owners  of land  to make  land and  water areas

            available to the public for recreational  purposes . . . .").

            Accordingly,  Collins cannot rely  on this argument  to avoid

            summary judgment.

                      B.   Did  Any  of  Defendants  Wilfully  Cause  the
                           ______________________________________________
                           Plaintiff's Injuries?
                           _____________________

                      An owner or  occupant may not invoke RSA  212:34 if

            plaintiff's injury was  caused by a "willful"  or "malicious"

            failure to  warn or guard against the  activity that resulted

            in the injury.  Collins  argues that a factual dispute exists

            as to  whether the defendants  in this  case acted  wilfully.

            Accordingly, he contends that the applicability of RSA 212:34

            cannot be determined through a motion for summary judgment.

                      RSA 212:34 does not define "willfully," and the New

            Hampshire Supreme Court has not yet  determined what the word

            means  in  the  context  of  this  statute.    However,  when

            interpreting  RSA 275:42  IV, which  provides for  liquidated

            damages against an  employer who "willfully and  without good

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cause" failed to pay wages  within 72 hours of discharging an

            employee, the Court  defined "willfully" as "a  voluntary act

            committed  with an  intent to  cause its  results."   Ives v.
                                                                  ____

            Manchester Subaru, Inc.,  126 N.H. 796, 801  (1985) (citation
            _______________________

            omitted);  see  also  Appeal  of  New  Hampshire  Sweepstakes
                       ___  ____  _______________________________________

            Comm'n, 130 N.H. 659, 664 (1988) (declaring that "willful" is
            ______

            synonymous with intentional or deliberate).

                      Collins  argues  for  a  somewhat  more   expansive

            definition of willfully.  Specifically, he urges the adoption

            of the definition used by  the Ninth Circuit Court of Appeals

            when it  construed  California's  recreational  use  statute.

            Under  the California  statute, the Ninth  Circuit determined

            that landowners will be found to have acted willfully if they

            acted with "(1) actual or constructive knowledge of the peril

            to  be apprehended; (2) actual or constructive knowledge that

            injury was is  a probable, as opposed to  possible, result of

            the danger;  and (3) conscious  failure to avoid  the peril."

            Spires v.  United States, 805  F.2d 832, 834 (9th  Cir. 1986)
            ______     _____________

            (citing Cal. Civ. Code   846 (West 1985)).

                      Even using the Ninth Circuit's definition,  Collins

            has presented  insufficient evidence of willfulness  to allow

            this issue  to be decided by a jury.   Collins notes that the

            dock was installed in shallow  water and from this fact alone

            asks the court  to infer  that one or  more of the  defendant

            consciously disregarded  a probability that  someone would be

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injured by diving from  the dock.   I decline to accept  this

            argument.   At best,  such evidence  establishes a  basis for

            Collins'  claim that  the defendants were  negligent.   It is

            simply  insufficient,   standing  alone,  to   establish  the

            existence  of a genuine dispute as  to whether defendants had

            actual  knowledge  that an  injury  such as  the  one Collins

            suffered was a probable result of the installation and use of

            the dock.

                      C.   Was Either "Consideration" or  a "Charge" Paid
                           ______________________________________________
                           for Access to the Beach?
                           ________________________

                      Collins argues  that dues  paid by  members of  the

            Association  and the payments  made by residents  of the Park

            when  they purchased  their  lots constitute  "consideration"

            under RSA  212:34 and a  "charge" under  RSA 508:14.   I find

            neither argument persuasive.

                      Although  Collins contends  that  residents of  the

            Park were required to pay dues to the Association in order to

            use the  beach, he  has failed to  point to  any evidence  to

            support  this claim.   The  deed conveying  the beach  to the

            Trust provides that the beach "is to be kept open forever for

            the benefit  of lot owners  and their guests."   None of  the

            documents produced  by either side suggest that access to the

            beach may be denied to lot owners who fail to pay dues to the

            Association.   Although the Bylaws of the Association provide

            that a failure  to pay dues will result in  the suspension of

            membership privileges,  access to the beach is  a right which

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residents  of Cobbett's Pond  Park enjoy whether  or not they

            are members of the Association.   Accordingly, the payment of

            Association dues cannot  be either consideration or  a charge

            paid in  exchange for access  to the beach.   Cf. Simchuk  v.
                                                          __  _______

            Angel Island  Community Ass'n, 253  Mont. 221, 226,  833 P.2d
            _____________________________

            158, 161 (1992)  (dues charged by Homeowners  Association for

            access  to  recreational  areas managed  by  the  Association

            constitutes consideration barring application of recreational

            use statute to claim brought by an injured guest of  a member

            of the association).

                      While it is undisputed that  access to the beach is

            limited to  residents of  the Park and  their guests,  I also

            cannot  accept Collins'  argument  that  the  price  paid  to

            purchase a lot  in the Park constitutes  either consideration

            or a charge  for access to the  beach.  If the  price paid to

            become an owner of property  devoted in part to  recreational

            uses  also  constitutes  consideration  for  access   to  the

            property   that  prevents   the   owner  from   invoking  the

            recreational use  statutes, the  statutes  would be  rendered

            meaningless because every owner would  be deemed to have paid

            consideration for access to the property by virtue of  having

            paid to  purchase the  property.   The New  Hampshire Supreme

            Court  would not interpret these exceptions  so broadly as to

            render  the statutes meaningless.   New  England Brickmaster,
                                                _________________________

            Inc. v. Salem, 133 N.H. 655, 663 (1990).  Moreover, I  see no
            ____    _____

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reason why a different result would apply here simply because

            the landowners paid for a  deeded right of access rather than

            an ownership interest in the beach.

                      Finally,  even if payments  made to purchase  a lot

            with deeded access rights to the beach could in some sense be

            deemed consideration  or a  charge for  access to the  beach,

            such payments  do not  render the  recreational use  statutes

            inapplicable because  none of the defendants  benefitted from

            the payments.  The  obvious purpose of the  consideration and

            charge  exceptions  is  to prevent  owners  and  occupants of

            property  from avoiding liability for their own negligence if

            they receive a benefit in exchange for making their  property

            available for recreational  uses by others.   This purpose is

            not served by denying owners and occupants the  protection of

            the recreational  use statutes  simply because  a benefit  is

            paid to  an unconnected  third party.   Accordingly,  Collins

            cannot  rely on  the consideration  and  charge exception  to

            avoid the application of the recreational use statutes.

I.  CONCLUSION
                                    I.  CONCLUSION
                                        __________

                      Defendants have demonstrated both  that no material

            facts are  in genuine dispute  and that they are  entitled to

            judgment  as a  matter  of  law.    Accordingly,  Defendants'

            Motions for Summary  Judgment (document nos.  17 and 20)  are

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granted.  The Clerk's Office is directed to enter judgment in

            accordance with this Order.

                      SO ORDERED.

Paul Barbadoro
                                           United States District Judge

            August 11, 1993

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