Jay Kurowski f/n/f Christopher Kurowski v. Town of Chester

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 2016-0406

JAY KUROWSKI F/N/F CHRISTOPHER KUROWSKI

v.

TOWN OF CHESTER

Argued: April 11, 2017

Opinion Issued: September 21, 2017

Solomon Professional Association, of Londonderry (Peter M. Solomon on

the brief and orally), for the plaintiff.

Devine, Millimet & Branch, Professional Association, of Manchester

(Donald L. Smith on the brief and orally), for the defendant.

BASSETT, J. This case arises out of an accident occurring at a pond

owned by the defendant, the Town of Chester, where Christopher Kurowski

suffered injuries after being struck by a person using a rope swing attached to

a tree on the shore. The plaintiff, Jay Kurowski, as father and next friend of

his minor son, Christopher, appeals an order of the Superior Court (Anderson,

J.) dismissing his negligence and intentional tort claims against the Town, as

barred by the recreational use immunity statutes. See RSA 212:34 (Supp.

2016); RSA 508:14 (2010). Because we conclude that the Town is entitled to

immunity under RSA 212:34, we affirm.

The following facts are found either in the plaintiff’s allegations, which we

accept as true for the purposes of this appeal, or in the trial court order. The

Town owns and maintains the Wason Pond Conservation and Recreation Area,

which includes walking paths and Wason Pond, and is open to the public free

of charge. Since approximately 2012, a rope swing has been attached to a tree

overhanging the pond. Neither the plaintiff nor the Town constructed or

maintained the swing. People use the rope swing to fling themselves over and

into the pond. Sometimes an individual swings over the water on the rope and

a second person stands near the rope’s path and attempts to slap the feet of

the person holding the rope before that person splashes into the water.

In 2012, a Town resident told the Town Board of Selectman that he was

concerned about the safety of the rope swing. The resident asked the Board to

install “no swimming” signs near the swing area. During the meeting, one

Board member observed that the swing was a hazard. In response to a

question from the Board as to what the Town was doing with regard to the

swing, the police chief reported that the practice had been for the police to take

the names of individuals using the swing and list them in a report. The Board

heard similar safety concerns about the swing during meetings in 2013 and

2015. At no time between 2012 and 2015 did the Town remove the swing or

post signage.

On August 20, 2015, Christopher was at the pond, standing in the path

of a person using the swing. While Christopher was attempting to touch the

feet of the person swinging on the rope, the two collided, and Christopher was

seriously injured.

The plaintiff filed a complaint against the Town on Christopher’s behalf.

He claimed that the Town acted negligently and willfully or intentionally by

failing to remove the rope swing or post warning signs. The Town filed a

motion to dismiss, arguing that the plaintiff’s suit was barred by one or both of

the recreational use immunity statutes — RSA 212:34 and RSA 508:14.

The trial court granted the Town’s motion to dismiss. It ruled that RSA

212:34 barred both of the plaintiff’s claims, and that RSA 508:14 barred the

plaintiff’s negligence claim. It also rejected the plaintiff’s argument that it

should postpone ruling on the motion to dismiss to allow discovery to proceed.

The trial court denied the plaintiff’s motion to reconsider. This appeal followed.

In reviewing a trial court’s grant of a motion to dismiss, our task is to

determine whether the allegations in the complaint are reasonably susceptible

of a construction that would permit recovery. See Coan v. N.H. Dep’t of Env’t

Servs., 161 N.H. 1, 4 (2010). We assume all facts pleaded in the complaint to

be true and construe all reasonable inferences drawn from those facts in the

plaintiff’s favor. See id. We need not, however, assume the truth of statements

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in the pleadings that are merely conclusions of law. Lamb v. Shaker Reg’l Sch.

Dist., 168 N.H. 47, 49 (2015). We engage in a threshold inquiry that tests the

facts in the complaint against the applicable law, and if the allegations

constitute a basis for legal relief, we must hold that it was improper to grant

the motion to dismiss. See Coan, 161 N.H. at 4-5.

On appeal, the plaintiff argues that the trial court erred when it found

the Town immune from suit under both recreational use statutes. Because the

parties do not argue otherwise, we assume, without deciding, that both RSA

212:34 and RSA 508:14 apply to municipalities. See Dolbeare v. City of

Laconia, 168 N.H. 52, 54 (2015). In addition, because we conclude that the

trial court correctly ruled that, under RSA 212:34, the Town is immune from

liability on all of the plaintiff’s claims, we need not decide whether RSA 508:14

also immunizes the Town from liability on all or some of the plaintiff’s claims.

Cf. Coan, 161 N.H. at 5 (declining to address parties’ arguments under RSA

212:34 because we concluded that defendant was entitled to immunity under

RSA 508:14).

The plaintiff argues that the trial court erred when it: (1) found that

Christopher’s conduct qualified as an “outdoor recreational activity” under RSA

212:34, I(c); (2) found that, because the Town did not act willfully or

intentionally, neither of the relevant exceptions to immunity under RSA

212:34, V applied; and (3) refused to postpone ruling on the motion to dismiss

to allow discovery to proceed.

The resolution of these issues requires statutory interpretation;

therefore, our review is de novo. Dolbeare, 168 N.H. at 54. We are the final

arbiter of the intent of the legislature as expressed in the words of the statute

considered as a whole. Id. We first examine the language of the statute, and,

when possible, ascribe the plain and ordinary meanings to the words used. Id.

Statutes such as RSA 212:34, which are in derogation of the common law right

to recover, are strictly construed. Id.

RSA 212:34 provides:

II. A landowner owes no duty of care to keep the premises safe for

entry or use by others for outdoor recreational activity 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 V.

....

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V. 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;

...

(d) When the injury suffered was caused by the intentional

act of the landowner.

RSA 212:34, II, V(a), (d). We have found the legislative intent underlying this

statute to be to “encourage private landowners to make their land available for

public recreational uses by limiting their liability.” Estate of Gordon-Couture v.

Brown, 152 N.H. 265, 273 (2005).

The plaintiff first argues that the trial court erred when it found that

Christopher was engaged in an “outdoor recreational activity,” as that term is

used in RSA 212:34, I(c). We disagree. RSA 212:34, I(c) defines “outdoor

recreational activity” as “outdoor recreational pursuits including, but not

limited to, hunting, fishing, trapping, camping, horseback riding, bicycling,

water sports, winter sports, snowmobiling . . . , operating an OHRV . . . ,

hiking, ice and rock climbing or bouldering, or sightseeing upon or removing

fuel wood from the premises.” RSA 212:34, I(c) (emphasis added). By its plain

terms, the statute’s list of outdoor recreational activities is not exhaustive.

Indeed, we have previously applied the principle of ejusdem generis to this

provision and concluded that an activity not specifically enumerated — but

similar in nature to the activities listed in the statute — may constitute an

“outdoor recreational activity.” See Dolbeare, 168 N.H. at 55-56. The principle

of ejusdem generis provides that, when specific words in a statute follow

general ones, the general words are construed to embrace only objects similar

in nature to those enumerated by the specific words. Id. at 55.

Applying this principle here, we conclude that the activity at issue is

similar in nature to the enumerated activity of “water sports.” RSA 212:34, I(c).

We have held that RSA 212:34 bars an action against a landowner for injuries

sustained by a plaintiff who dove into a lake, striking his head on a submerged

rock. See Fish v. Homestead Woolen Mills, 134 N.H. 361, 362, 366 (1991); see

also Collins v. Martella, 17 F.3d 1, 2-3 (1st Cir. 1994) (noting that diving into

shallow water from a dock is a “water sport” under RSA 212:34). Here, the

activity at issue involved a person launching herself over and into the water —

using a rope swing. Christopher was attempting to slap the feet of the person

using the swing before that person hit the water. We hold that Christopher

was actively engaged in an outdoor recreational pursuit sufficiently similar in

nature to the enumerated activity of “water sports” to constitute an “outdoor

recreational activity” under RSA 212:34, I(c).

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In arguing for a contrary conclusion, the plaintiff asserts that

Christopher’s conduct does not constitute an “outdoor recreational activity”

because it involved a man-made apparatus rather than a naturally occurring

feature of the land. However, we have held that “outdoor recreational activity”

includes not only the use of land in its natural state, but also the use of man-

made equipment or structures on the land. See Dolbeare, 168 N.H. at 55-56

(holding that the use of playground equipment constituted an “outdoor

recreational activity” under RSA 212:34, I(c)).

The plaintiff next argues that, because the Town did not supply or

maintain the rope swing, Christopher’s conduct does not constitute an

“outdoor recreational activity.” However, the identity of the person or entity

providing the equipment or structure used in an outdoor recreational activity is

immaterial. See id. at 56 (finding immaterial the fact that playground

equipment used in outdoor activity was provided by landowner rather than

user). Indeed, many of the enumerated outdoor recreational activities, for

example, hunting, camping, hiking, bicycling, and snowmobiling, see RSA

212:34, I(c), involve the use of equipment or structures that could be owned or

provided by anyone, including the landowner, a third party, or the injured

party.

The plaintiff also argues that Christopher’s conduct did not constitute an

“outdoor recreational activity” because, in order to qualify as such an activity,

it must be authorized by the landowner, and not identified as hazardous. We

are not persuaded. The plain language of the statute provides no support for

the plaintiff’s position. In fact, the statute specifically contemplates that

immunity will apply even if the activity at issue involves a known hazardous

condition. See RSA 212:34, II (“A landowner owes no duty of care to keep the

premises safe for entry or use by others for outdoor recreational activity or to

give any warning of hazardous conditions, uses of, structures, or activities on

such premises . . . . (emphasis added)). Accordingly, we conclude that the trial

court did not err when it found that the activity that Christopher was engaged

in was an “outdoor recreational activity” under RSA 212:34.

The plaintiff next argues that the trial court erred when it found that his

allegations were insufficient to establish that either of two statutory exceptions

to recreational immunity applied to the Town. The first exception concerns a

landowner’s “willful” failure to guard or warn against a dangerous condition,

use, structure, or activity, see RSA 212:34, V(a); the second exception concerns

the landowner’s “intentional” conduct, see RSA 212:34, V(d). We address each

exception in turn.

The plaintiff argues that the trial court erred by finding that he had

alleged insufficient facts to show that the Town’s alleged conduct was willful.

He asserts that, because the Town knew of the hazard posed by the swing and

took no action to remove it or post warning signs, the Town “willful[ly] . . .

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fail[ed] to guard or warn against a dangerous condition, use, structure or

activity,” RSA 212:34, V(a). We disagree.

RSA 212:34 does not define the word “willful,” and we have never had

occasion to interpret “willful” in the context of this statute. At oral argument,

the plaintiff urged us to adopt the definition used by the Ninth Circuit Court of

Appeals in analyzing claims under California’s recreational use statute. See

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

definition, three elements must be present for the landowner’s actions to

constitute willful misconduct: “(1) actual or constructive knowledge of the peril

to be apprehended[;] (2) actual or constructive knowledge that injury is a

probable, as opposed to a possible, result of the danger[;] and (3) conscious

failure to act to avoid the peril.” Id. (quotation omitted). By contrast, the Town

argues that we should rely upon our previous interpretation of “willful” conduct

in the context of a claim for liquidated damages under RSA chapter 275,

concluding that willful means “a voluntary act committed with an intent to

cause its results.” Ives v. Manchester Subaru, Inc., 126 N.H. 796, 801 (1985).

Alternatively, the Town asserts that, even if we were to adopt the Ninth

Circuit’s more expansive definition of willful conduct, the Town would still

prevail. We need not resolve this question of statutory interpretation because

we agree with the Town that it prevails even under the Ninth Circuit’s

definition.

Here, even if we assume, without deciding, that the plaintiff’s pleadings

established elements one and three of the Ninth Circuit’s definition of willful

conduct, we agree with the trial court that the plaintiff did not allege sufficient

facts to establish the second element — that the Town had “actual or

constructive knowledge that injury [was] a probable, as opposed to a possible,

result of the danger.” Spires, 805 F.2d at 834 (quotation omitted; emphases

added). In his complaint, the plaintiff alleged that: the Town acknowledged

that the rope swing was a hazard; the hazardous nature of the rope swing was

brought to the Board’s attention on three separate occasions; and the Town did

not warn patrons of the hazard, or otherwise take any action to abate the

hazard. He claims that these allegations are sufficient to show that the Town

had actual or constructive knowledge that Christopher’s injuries were a

probable result of the rope swing. We are not persuaded.

An allegation that a landowner knew about a particular hazard and did

nothing is insufficient to establish that the landowner knew or should have

known that injury would probably result from that hazard. Cf. Collins, 17 F.3d

at 4-5 (holding that fact that dock was installed in shallow water was not

enough to infer that defendants “consciously disregarded a probability that

someone would be injured by diving from the dock”). At most, such allegations

sound in negligence. See id. at 5 (concluding that evidence that landowner

knew that dock was installed in shallow water, established, at most, a

negligence claim). Therefore, even assuming that the Spires definition applies,

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we conclude that the plaintiff’s allegations are insufficient as a matter of law to

establish that the Town acted “willfully.” We find no error in the trial court’s

ruling on this issue.

The plaintiff next argues that the trial court erred when it found that he

alleged insufficient facts to show that Christopher suffered injury as a result of

the Town’s intentional acts. See RSA 212:34, V(d) (providing that RSA 212:34

does not limit liability of landowners “[w]hen the injury suffered was caused by

the intentional act of the landowner”). Although RSA 212:34 does not define

“intentional act,” see RSA 212:34, I, V, both parties argue that we should

interpret “intentional act” under RSA 212:34 in the same fashion as we did

when construing the Workers’ Compensation Law: for a tort to be an

“intentional tort” the tortfeasor must act with the knowledge that “his conduct

[is] substantially certain to result in injury.” Thompson v. Forest, 136 N.H.

215, 220 (1992) (citing Restatement (Second) of Torts § 870, at 280 (1979)).

Because the parties agree on this definition, we assume, without deciding, that

it applies here.

The plaintiff argues that the Town’s conduct constituted an intentional

act for the same reasons he asserts the Town’s conduct was willful — because

the Town acknowledged that the rope swing was a hazard, was warned about

that hazard on three occasions between 2012 and 2015, did nothing to remove

it, and did not post warning signs. We disagree.

The plaintiff’s allegations are insufficient to demonstrate that the Town

had actual or constructive knowledge that its conduct was substantially certain

to result in injury. See id. (“The mere knowledge and appreciation of a risk —

something short of substantial certainty — is not intent.” (quotation and

brackets omitted)). At most, the plaintiff’s allegations — that the Town was

aware of a hazardous condition or activity and failed to act — sound in

negligence. See id. (concluding that allegations that defendant disregarded a

substantial risk and failed to act sound in negligence). Accordingly, we hold

that the trial court did not err when it found that the plaintiff alleged

insufficient facts to show that the Town’s conduct was willful or intentional.

Finally, the plaintiff argues that the trial court erred when it denied the

plaintiff’s request to postpone ruling on the Town’s motion to dismiss so that

discovery could proceed. Decisions concerning pretrial discovery are within the

sound discretion of the trial judge. N.H. Ball Bearings v. Jackson, 158 N.H.

421, 429 (2009). We review a trial court’s rulings on the management of

discovery under an unsustainable exercise of discretion standard. Id. To

establish that the trial court erred, the plaintiff must demonstrate that the trial

court’s ruling was clearly untenable or unreasonable to the prejudice of his

case. See id.

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The plaintiff asserts that the trial court erred when it denied his request

to postpone ruling on the motion to dismiss to allow discovery because

discovery on certain topics would allow him “to demonstrate that

[Christopher’s] injury was not just [a] possible, but [a] probable” result of the

rope swing hazard. Again, we are not persuaded.

“The underlying purpose of discovery . . . is to reach the truth and to

reach it as early in the process as possible by narrowing the issues pertaining

to the controversy between the parties.” Sawyer v. Boufford, 113 N.H. 627, 628

(1973) (emphasis added); see also Bursey v. Bursey, 145 N.H. 283, 286 (2000)

(observing that the purpose of interrogatories is to “narrow the issues of the

litigation and prevent unfair surprise by making evidence available in time for

both parties to evaluate it and adequately prepare for trial” (quotation

omitted)). Pretrial discovery is designed to enable the parties to develop

evidence supporting the facts and legal claims alleged in the complaint, not to

afford the plaintiff an opportunity to cure a complaint that fails, as a matter of

law, to survive a motion to dismiss. See 4 G. J. MacDonald, Wiebusch on New

Hampshire Civil Practice and Procedure § 22.03, at 22-6 to 22-7 (4th ed. 2014)

(listing purposes of discovery, including to: facilitate preparation for trial

through access to information, narrow the issues that must be tried, thereby

shortening trial, avoid surprise at trial, and improve chances of settlement); cf.

ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993) (stating that plaintiff must be

given leave to amend “to correct perceived deficiencies [in the complaint] before

an adverse judgment has preclusive effect”).

The trial court found, and we agree, that the plaintiff’s complaint fails, as

a matter of law, to allege sufficient facts to defeat the immunity provided by

RSA 212:34. Because discovery is not intended to provide the plaintiff with the

opportunity to obtain additional information that might cure deficiencies in the

complaint, the trial court did not err when it concluded that the plaintiff was

not entitled to discovery in this case.

To the extent that the plaintiff contends that the trial court erred when it

refused to allow discovery to proceed because this court “has not yet directly

addressed whether the issue of statutory immunity under RSA 212:34 . . . can

be determined prior to the commencement of discovery,” he has not sufficiently

briefed that issue to warrant our review. Accordingly, we deem that argument

waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).

Affirmed.

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

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