UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Misha Kendall
v. Civil No. 16-cv-428-LM Opinion No. 2017 DNH 126 The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association
O R D E R
Misha Kendall brings suit against The Society for the
Protection of New Hampshire Forests and White Mountain
Recreation Association, Inc. alleging claims for negligence and
gross negligence arising from her injuries and property damage
sustained when she fell on a boardwalk at Lost River Gorge and
Boulder Caves in Woodstock, New Hampshire. Defendants move to
dismiss the complaint (doc. no. 13).
In response, Kendall objects and moves for leave to amend
her complaint (doc. no. 20) to add factual allegations, remove
her claim for negligence, and add a claim for negligent
misrepresentation based on defendants’ statement on their
website. Defendants object to the motion to amend.
The court first addresses Kendall’s motion for leave to
amend her complaint, and then turns to defendants’ motion to
dismiss. I. Motion to Amend
In her proposed amended complaint, Kendall alleges claims
for gross negligence and negligent misrepresentation.
Defendants argue that the proposed amendment would be futile
because they are immune from liability for both claims under
1917 New Hampshire Laws Chapter 19, § 1 (“1917 Law”) and because
the proposed amended complaint fails to state a plausible claim
for relief. Defendants also argue that the motion to amend is
untimely.
Under Federal Rule of Civil Procedure 15(a)(2), the court
will grant leave to amend a complaint “when justice so
requires.” Despite the broad standard, a “court may deny leave
to amend for a variety of reasons, including futility, bad
faith, undue delay, or a dilatory motive on the movant’s part.”
In re Curran, 855 F.3d 19, 27-28 (1st Cir. 2017) (internal
quotation marks and citation omitted).
A. Timeliness
Defendants argue that Kendall’s motion should be denied
because of undue delay, based on the time between when Kendall
filed the original complaint and when she filed the motion for
leave to amend.
2 Kendall brought suit as a pro se party, filing her
complaint in state court on August 8, 2016. After defendants
removed the case to this court, counsel entered an appearance on
Kendall’s behalf on November 4, 2016. On December 7, 2016,
defendant filed a motion to dismiss. Counsel responded to
defendants’ motion to dismiss and then moved to amend on January
19, 2017. As such, the timing does not show undue delay, and
defendants have not shown unfair prejudice that would result
from allowing the amended complaint.
B. Futility
In the proposed amended complaint, Kendall alleges claims
for gross negligence and negligent misrepresentation.1
Defendants contend that the proposed claims are futile.
1. Standard of Review
In assessing, before discovery, whether the claims in a
proposed amended complaint are futile, the court uses the same
standard that applies to motions to dismiss under Federal Rule
of Civil Procedure 12(b)(6). Curran, 855 F.3d at 28; Adorno v.
Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).
The court takes the factual allegations in the proposed amended
1 Kendall also substitutes White Mountains Recreation Association, Inc. as the correct legal name for White Mountains Attraction Association.
3 complaint as true and draws all reasonable inferences in favor
of the plaintiff. Morgan v. Town of Lexington, 823 F.3d 737,
742 (1st Cir. 2016). Then, based on that view of the proposed
amended complaint, the court determines whether the plaintiff
has stated a plausible claim for relief. Curran, 855 F.3d at
28.
2. Background
The Society for the Protection of New Hampshire Forests
(the “Society”) is a nonprofit corporation which owns the Lost
River Gorge and Boulder Caves (“Lost River”). White Mountain
Attractions Association (“White Mountain”) operates Lost River.
White Mountain manages Lost River’s website, and the Society
contributes to and approves the website’s content.
In her proposed amended complaint, Kendall alleges that she
was looking for an outdoor activity that would be safe for her
and her two six-year-old children. Kendall read about Lost
River on its website and noted the descriptions and information
provided. In particular, Kendall read that there were
boardwalks at Lost River that provided “a ‘safe way’ to view
rock formations.” Doc. no. 20-1 at ¶ 9.
On August 8, 2013, Kendall decided to go to Lost River with
her children. She was an experienced hiker and dressed
4 accordingly. When she and her children arrived, she paid the
entrance fee, and they entered Lost River.
After walking down a sandy path through the forest, Kendall
and the children came to a boardwalk and a bridge over a river.
The boardwalk was crowded and no more than four feet wide. The
boardwalk turned sharply after the bridge on the way to the “Sun
Altar” cave. Because of the turn, the crowd, a sign giving
information about the cave, and a large tree, Kendall could not
see ahead on the boardwalk after the bridge.
Just after the turn, a large boulder extended through the
middle of the boardwalk to a height of about a foot. The
boardwalk was constructed around this boulder. There were no
signs to warn of the boulder in the boardwalk. Kendall did not
see the boulder in her path, tripped over it, and fell,
shattering her elbow. Her digital camera was destroyed, and her
clothing had to be cut off of her at the hospital. She has
permanent damage to her elbow that has resulted in disability.
3. Discussion
Defendants contend that Kendall’s claims for gross
negligence and negligent misrepresentation are futile for the
following reasons: (a) defendants are immune from liability for
both claims under the 1917 Law; (b) no claim for gross
negligence exists under New Hampshire law; (c) the statement
5 about the boardwalks being safe is not a misrepresentation of
fact but merely an opinion; and (d) Kendall does not allege
damages that can be recovered for negligent misrepresentation.
Kendall responded to the futility arguments in her reply.
a. Immunity
There are two immunity statutes at issue in this case, and
the parties dispute which one applies to the claims in Kendall’s
proposed amended complaint.
In 1917, the New Hampshire legislature provided the Society
with immunity from liability for any negligence in constructing
or maintaining paths, trails, and bridges. The 1917 Law states:
Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River reserva- tions, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.
(emphasis added).
A more recent statute, RSA 508:14, II, provides immunity to
any nonprofit entity, such as the Society, “that constructs,
6 maintains, or improves trails for public recreational use,” from
liability “for personal injury or property damage.” This more
recent immunity statute, however, provides an exception for
“gross negligence or willful or wanton misconduct.” RSA 508:14,
II states:
Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.
Defendants contend that Kendall’s claims are futile because
the 1917 Law gives them immunity from any claim involving
negligence, which they contend includes claims for gross
negligence and negligent misrepresentation. Defendants argue
that because the 1917 Law is more specific, as it applies
directly to the Society rather than to all nonprofit entities,
it controls over the more general immunity provision in RSA
508:14, II. Not surprisingly, Kendall argues that RSA 508:14,
II, and not the 1917 Law, applies to the claims in her proposed
amended complaint. Because RSA 508:14, II provides an exception
for claims based on allegations of gross negligence, such as the
claims she alleges in her proposed amended complaint, Kendall
asserts that defendants are not entitled to immunity.
7 At first glance, one might conclude that in enacting RSA
508:14, II, the New Hampshire legislature repealed the 1917 Law
by implication. That is, the more recent immunity statute
applies to a far broader spectrum of landowners, which would
include the Society. The doctrine of “repeal by implication” is
generally disfavored, however, especially where, as here, the
more recent statute contains no expression of a legislative
intent to repeal the 1917 Law. See generally Branch v. Smith,
538 U.S. 254, 273 (2003) (holding that “repeals by implication
are not favored” unless there is “a clearly expressed
congressional intention” (internal quotation marks and citation
omitted)); Diaz-Ramos v. Hyundai Motor Co., 501 F.3d 12, 16-17
(1st Cir. 2007) (“A general law does not repeal a special law
unless such repeal is expressly stated or clearly arises from
the legislative intent.”) (internal quotation marks and citation
omitted).
Moreover, a court should avoid applying the disfavored
“repeal by implication” doctrine where it is possible to read
two laws as consistent with one another. Indeed, the New
Hampshire Supreme Court directs that where “reasonably possible,
statutes should be construed as consistent with each other.”
EnergyNorth Nat. Gas, Inc. v. City of Concord, 164 N.H. 14, 16
(2012) (quoting In re Union Tel. Co., 160 N.H. 309, 319 (2010))
8 (internal quotation marks omitted). Therefore, if possible, the
court should construe the 1917 Law and RSA 508:14, II “so that
they do not contradict each other, and so that they will lead to
reasonable results and effectuate the legislative purpose of the
statutes.” Soraghan v. Mt. Cranmore Ski Resort, Inc., 152 N.H.
399, 405 (2005) (internal citation omitted).
Another rule of statutory construction at play here calls
for the court to narrowly construe immunity statutes. See,
e.g., Estate of Gordon-Couture v. Brown, 152 N.H. 265, 267
(2005). Specifically, the rule requires the court to give a
narrow construction to the term “negligent” in the 1917 Law
because the Law restricts the common law right to recover for
injuries caused by another’s negligence. Id. As the New
Hampshire Supreme Court explained, a court must:
strictly interpret statutes that are in derogation of the common law. While a statute may abolish a common law right, there is a presumption that the legislature has no such purpose. If such a right is to be taken away, it must be expressed clearly by the legislature. Accordingly, immunity provisions barring the common law right to recover are strictly construed.
Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 291
(2007) (internal citations omitted); see also Dolbeare v. City
of Laconia, 168 N.H. 52, 54 (2015) (immunity statutes “in
derogation of the common law right to recover, are strictly
construed”).
9 In short, there are two rules of statutory construction
that govern this dispute: courts should strictly construe
immunity statutes and, where reasonably possible, courts should
construe statutes as consistent with one another. Applying
these principles, the court narrowly interprets the 1917 Law’s
use of the term “negligent” to exclude gross negligence and
wanton or willful conduct. Such a construction renders the
scope of the immunity provided in 1917 Law consistent with the
scope of immunity provided in RSA 508:14, II.
Defendants contend that New Hampshire law does not
recognize a cause of action for gross negligence and, therefore,
the term “negligent” in the 1917 Law necessarily includes gross
negligence. In support of that assertion, they rely on Barnes
v. N.H. Karting Ass’n, Inc., 128 N.H. 102 (1986), and the New
Hampshire Supreme Court’s statement that “New Hampshire law does
not distinguish causes of action based on ordinary and gross
negligence.” Id. at 108.
By way of RSA 508:14, II, however, the New Hampshire
legislature has included just such a distinction. In the
context of nonprofit entities that maintain public trails for
recreational use, the legislature has defined the scope of
immunity by distinguishing between derivative degrees of
negligence. Although the 1917 Law predates RSA 508:14, II, the
10 court is not inclined to ignore the legislature’s unmistakably
clear language exempting gross negligence from the scope of
immunity in its more recent statute. Cf. Lee v. Chamberlin, 84
N.H. 182, 188 (1929) (“[W]here such doctrine is made the basis
of a legislative rule, enforceable here, it cannot be treated as
meaningless.”). Thus, the court finds that in the specific
context at issue here, New Hampshire law does distinguish
between ordinary and gross negligence.
For the reasons explained above, the court can—and
therefore must—reasonably construe the 1917 Law and RSA 508:14,
II as consistent with one another. As a practical matter, such
a construction means that while both statutes provide immunity
to defendants for claims based on allegations of negligence,
neither provides immunity for claims based on allegations of
gross negligence. The court therefore concludes that defendants
are not entitled to immunity from Kendall’s claims to the extent
they are based on allegations of gross negligence.
b. Merits of the Claims
Defendants contend that even if they are not immune from
claims based on allegations of gross negligence or wanton or
willful misconduct, the proposed amended complaint does not
contain allegations that rise to that level. They also assert
11 that the proposed amended complaint does not adequately allege a
claim for negligent misrepresentation.
i. Gross Negligence
Gross negligence has been interpreted to mean “very great
negligence, or the absence of slight diligence, or the want of
even scant care” and willful misconduct has been interpreted as
intentional conduct or recklessness that “carries a great chance
of causing harm to another.” Beane v. Beane, 856 F. Supp. 2d
280, 307 (D.N.H. 2012) (internal quotation marks and citation
omitted); see also Colston v. Boston & Me. R.R., 78 N.H. 284, 99
A. 649, 649 (1916) (noting “gross” in gross negligence means
great and “willful” means with conscious knowledge).
In the proposed amended complaint, Kendall alleges that
defendants built the boardwalk around an obstruction, a boulder
that protrudes into the boardwalk approximately one foot higher
than the boardwalk. She also alleges that the boulder is in a
dangerous location, just around a turn, and is obscured by a
sign, a tree, and crowds of people using the boardwalk. She
alleges that defendants placed no warnings about the boulder for
the tourists to see before walking on the boardwalk. The
proposed amended complaint alleges that the obstructed boardwalk
constitutes an obvious danger, and that defendants acted with
gross negligence in failing to remove or warn of the boulder.
12 Drawing all reasonable inferences in Kendall’s favor, the
proposed amended complaint sufficiently alleges gross
negligence. Accordingly, the doctrine of futility does not bar
Kendall’s request for leave to amend her complaint to allege a
claim based on gross negligence.
ii. Negligent Misrepresentation
Defendants also contend that the proposed amended complaint
does not adequately allege a claim for negligent
misrepresentation. Kendall’s negligent misrepresentation claim
is based on defendants’ statement on their website that there
were boardwalks at Lost River that provided a “safe way” to view
rock formations.
To state a claim for negligent misrepresentation, a
plaintiff must allege facts that show “a negligent
misrepresentation of a material fact by the defendant and
justifiable reliance by the plaintiff.” Wyle v. Lees, 162 N.H.
406, 413 (2011). Defendants contend that the alleged
misrepresentation identified in the proposed amended complaint
is merely an opinion, not a statement of fact, and, therefore,
cannot be the basis of a negligent misrepresentation claim.
Although statements of opinion do not generally provide a
proper basis for a claim for misrepresentation, under “certain
circumstances, an opinion may constitute the basis of fraud or
13 misrepresentation.” DePalantino v. DePalantino, 139 N.H. 522,
524 (1995) (citing cases); see also Isaacs v. Dartmouth-
Hitchcock Med. Ctr., No. 12-cv-040-LM, 2014 WL 1572559, at *16
(D.N.H. Apr. 18, 2014). At this early stage, the court cannot
determine whether defendants’ alleged statement that there were
boardwalks at Lost River that provided a “safe way” to view rock
formations is an actionable misrepresentation. See, e.g.,
Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir.
2001) (“Whether a statement is an actionable statement of ‘fact’
or mere ‘puffing’ depends upon a number of factors, including
the statement’s specificity, the speaker’s knowledge, the
comparative levels of the speaker’s and the hearer’s knowledge,
and whether the statement relates to the present or the
future.”).2
Defendants also contend that Kendall has not alleged
damages that may be recovered for negligent misrepresentation.
A plaintiff is entitled to her economic losses caused by a
2 Defendants also assert that the negligent misrepresentation claim is not based on allegations of gross negligence or willful or wanton misconduct and, therefore, they are immune from liability under both the 1917 Law and RSA 508:14, II. Viewed generously, however, the proposed amended complaint alleges that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers. Whether defendants made the alleged misrepresentation with gross negligence requires factual development and cannot be determined at this stage of the litigation.
14 defendant’s negligent misrepresentation but is not entitled to
damages for emotional distress. Crowley v. Global Realty, Inc.,
124 N.H. 814, 817-18 (1984).
Kendall makes no demand for damages in her proposed amended
complaint that is specific to her negligent misrepresentation
claim. Instead, at the conclusion of the proposed amended
complaint, Kendall requests damages for medical expenses, lost
wages and employment benefits, destroyed property, emotional
distress and inconvenience, and loss of the enjoyment of life.
Although she cannot recover for emotional distress and loss of
the enjoyment of life under her claim for negligent misrepre-
sentation, Kendall alleges other damages that are recoverable.
Therefore, Kendall’s proposed negligent misrepresentation claim
is not futile.
C. Result
The circumstances support allowing Kendall to amend her
complaint. Defendants have not shown, at this stage of the
case, that Kendall’s claims would be futile. Therefore, Kendall
is granted leave to file her amended complaint.
II. Motion to Dismiss
Defendants moved to dismiss Kendall’s original complaint.
When the amended complaint is filed, it will supersede the
original complaint, making the motion to dismiss moot. Brait
15 Builders Corp. v. Mass. Div. of Capital Asset Mgmt., 644 F.3d 5,
9 (1st Cir. 2011). For that reason, the motion to dismiss is
denied as moot.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for leave to
amend (doc. no. 20) is granted. Plaintiff shall file the
proposed amended complaint attached to document no. 20 as the
amended complaint on or before June 23, 2017. Defendants’
motion to dismiss (doc. no. 13) is denied as moot.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
June 21, 2017
cc: Megan E. Douglass, Esq. Benjamin T. King, Esq. Robert E. Murphy, Jr., Esq.