Gordon–Couture v. Brown

• Citation: 876 A.2d 196,152 N.H. 265
• Decision Date: 23 May 2005
• Docket Number: No. 2004–566.,2004–566.
• Court: Supreme Court of New Hampshire
• Parties: ESTATE OF Jaycob GORDON–COUTURE v. George BROWN and another.

152 N.H. 265

876 A.2d 196

ESTATE OF Jaycob GORDON–COUTURE

v.George BROWN and another.

No. 2004–566.

Supreme Court of New Hampshire.

Argued: Feb. 9, 2005.

Opinion Issued: May 23, 2005.

Rehearing Denied June 22, 2005.

Soltani/Mosca P.L.L.C., of Epsom (Edward C. Mosca on the brief and orally), for the plaintiff.

McDonough & O'Shaughnessy, P.A., of Manchester (Robert G. Whaland on the brief and orally), for the defendants.

DUGGAN, J.

This case arises out of the accidental drowning of two-year-old Jaycob Gordon–Couture while attending a birthday party at property owned by the defendants, George and Silvia Brown. The plaintiff, the estate of Jaycob Gordon–Couture, appeals an order of the Superior Court (Perkins , J.) granting the defendants' motion for summary judgment. On appeal, the plaintiff argues that the trial court erred in ruling that the defendants were immune from liability under two recreational use statutes, RSA 212:34 (Supp.2004) and RSA 508:14, I (1997). We reverse and remand.

The trial court found the following facts. On August 17, 2002, the defendants' daughter held a birthday party for her son at the defendants' property on Half Moon Pond in Kingston. Elizabeth McNeil attended the party and brought her boyfriend's son, Jaycob, with her. McNeil and Jaycob spent some time playing in the water and then returned to the beach. At some point after returning to the beach, McNeil realized that Jaycob was missing. After a search of the area, Jaycob's body was found in the pond. Later, at the hospital, he was pronounced dead due to drowning.

The plaintiff brought suit alleging that the defendants negligently failed "to keep the beach and dock area safe for their guests including providing the proper supervision or, alternatively, placing appropriate limitations upon the use of the beach and dock area." The trial court granted the defendants' motion for summary judgment, ruling that the defendants were not liable under the recreational use statutes, RSA 212:34 and RSA 508:14, I. This appeal followed.

When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Estate of Joshua T. v. State, 150 N.H. 405, 407, 840 A.2d 768 (2003). If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. Id.

On appeal, the plaintiff argues that the trial court erred in ruling that the defendants are immune from suit under two recreational use statutes, RSA 212:34 and RSA 508:14, I. Specifically, the plaintiff argues that the recreational use statutes do not apply to private land used for private activities. Rather, the plaintiff argues that the statutes only apply to private land that is open to the general public. We agree.

The question before us is one of statutory interpretation. We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515, 842 A.2d 77 (2004). We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When statutory language is ambiguous, we examine the statute's overall objective and presume that the legislature would not pass an act that would lead to an absurd or illogical result. Marceau v. Concord Heritage Life Ins. Co., 149 N.H. 216, 220, 818 A.2d 1264 (2003). Our goal is to apply statutes in light of the legislature's intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme. State v. Whittey, 149 N.H. 463, 467, 821 A.2d 1086 (2003). We review the trial court's interpretation of a statute de novo . Remington Invs. v. Howard, 150 N.H. 653, 654, 843 A.2d 334 (2004).

Statutes in derogation of the common law are to be interpreted strictly. Sweeney v. Ragged Mt. Ski Area, 151 N.H. 239, 241, 855 A.2d 427 (2004). While a statute may abolish a common law right, there is a presumption that the legislature has no such purpose. Id. If such a right is to be taken away, it must be expressed clearly by the legislature. Id. Accordingly, immunity provisions barring the common law right to recover are to be strictly construed. Id.

Both RSA 212:34 and RSA 508:14 were adopted at a time when many States were enacting recreational use statutes, i.e. , statutes that limit the liability of landowners who make their land available for recreational use. See Note, Liability of Landowners to Persons Entering for Recreational Purposes, 1964 Wis. L.Rev. 705, 705. New Hampshire was among the first ten States to enact a recreational use statute. Id. at 705 & n. 2 (noting that ten States had enacted similar statutes "aimed at encouraging public recreational use of privately-owned forest and farm lands" including Michigan in 1953, New York in 1956, Maine, Minnesota, New Hampshire and Pennsylvania in 1961, Ohio, Tennessee and Wisconsin in 1963 and Virginia in 1964). The primary impetus behind this trend was "the need for additional recreational areas to serve the general public." Committee of State Officials on Suggested State Legislation, XXIV Suggested State Legislation 150 (1965) (hereinafter Suggested State Legislation ).

Following this trend, the Committee of State Officials on Suggested State Legislation of the Council of State Governments drafted a model recreational use statute (model act), which was derived from Wisconsin's recreational use statute. Id.; Conant v. Stroup, 183 Or.App. 270, 51 P.3d 1263, 1266 (2002). The model act provided, in pertinent part:

Section 1 . The purpose of this act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

....

Section 3 . Except as specifically recognized by or provided in Section 6 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

Section 4 . Except as specifically recognized by or provided in Section 6 of this act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

(a) Extend any assurance that the premises are safe for any purpose.

(b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

(c) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

....

Section 6 . Nothing in this act limits in any way any liability which otherwise exists:

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

(b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.

Suggested State Legislation , supra at 150–51. The council explained the purpose behind the model act as follows:

Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreational resources available. Where the owners of private land suitable for recreational use make it available on a business basis, there may be little reason to treat such owners and the facilities they provide in any way different from that customary for operators of private enterprises. However, in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.

Id. at 150. Thus, to fulfill this purpose, the recreational use statutes and model act limited the liability of private landowners who make their land available for public recreational uses "on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return." Id.

The model act was subsequently adopted in various forms by more than three dozen States. See Conant, 51 P.3d at 1267. "Meanwhile, a number of states began to grapple with a basic drafting problem posed by the wording of the model act." Id. As the Oregon Court of Appeals aptly described the dilemma:

On the one hand, the model act expressed a basic quid pro quo in its declaration of policy, namely, permission to the general public to use private land for recreational purposes in exchange for immunity from liability for resulting injuries. On the other hand, the model act referred to the immunity as applying when a land owner granted permission to "any person," without a qualification that the person must be a member of the general public to whom permission had been granted.

Id. Accordingly, the Oregon court recognized that "if read literally and in isolation, the immunity provisions effectively would nullify the law of premises liability ... [.] Any time an individual is invited to use an owner's back yard for croquet, immunity would apply." Id. Nonetheless, "[t]he response of the state courts who addressed the problem has been uniform." Id. These courts have construed the model act to...