Collins v. Martella CV-92-529-B 08/11/93
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sean Collins
v. Civil No. 92-529-B
Peter Martella, et al.
_________________________________ 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: (1) whether the
recreational use statutes are inapplicable because the beach was
1See Kleooer v. Citv 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). developed land that was not open to the general public; (11)
whether any of the defendants willfully disregarded a dangerous
condition that resulted in Collins' injuries; and (ill) whether
either "consideration" or a "charge" was paid for access to the
beach.
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
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
2 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 not reinstated until
1992. Membership in the Association was limited to residents of
Cobbett's Pond Park. The Bylaws of the Association reguired
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
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:
3 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:
(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
4 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
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
2Plaintiff 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 Ranter 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 Ranter did not gain access to the water from the defendant's property.
5 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
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
3In assessing the parties' motions, I apply the following principles.
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Collins v. Martella CV-92-529-B 08/11/93
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sean Collins
v. Civil No. 92-529-B
Peter Martella, et al.
_________________________________ 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: (1) whether the
recreational use statutes are inapplicable because the beach was
1See Kleooer v. Citv 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). developed land that was not open to the general public; (11)
whether any of the defendants willfully disregarded a dangerous
condition that resulted in Collins' injuries; and (ill) whether
either "consideration" or a "charge" was paid for access to the
beach.
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
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
2 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 not reinstated until
1992. Membership in the Association was limited to residents of
Cobbett's Pond Park. The Bylaws of the Association reguired
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
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:
3 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:
(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
4 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
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
2Plaintiff 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 Ranter 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 Ranter did not gain access to the water from the defendant's property.
5 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
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
3In 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., 8 95 F.2d 46, 48 (1st Cir. 1990). A "material" issue is one that "affect[s] 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. Aqnew, 712 F.2d 1509, 1516 (1st Cir. 1983) .
6 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); Miller v. United
States, 597 F.2d 614, 617 (7th Cir. 1979); Wvner 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.. Ranter v. Combustion Enq'q, 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 suggesting a reguirement
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
7 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 liguidated damages against an
employer who "willfully and without good 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 defendants consciously
disregarded a probability that someone would be 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
reguired 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 residents of Cobbett's Pond Park enjoy
10 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. C f . 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.
11 v. Salem, 133 N.H. 655, 663 (1990). Moreover, I see no 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
Defendants have demonstrated both that no material facts are
in genuine dispute and that they are entitled to judgment as a
12 matter of law. Accordingly, Defendants' Motions for Summary
Judgment (document nos. 17 and 20) are 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
cc: Arthur 0. Gormley, III, Esg. Jeffrey N. Roy, Esg. Christine Friedman, Esg. Thomas G. Ferrini, Esg. Robert C. Dewhirst, Esg. Dort S. Bigg, Esg.