Collins v. Martella

Citation17 F.3d 1
Decision Date07 February 1994
Docket NumberNo. 93-2002,93-2002
PartiesSean COLLINS, Plaintiff, Appellant, v. Peter MARTELLA, et al., Defendants, Appellees. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Jeffrey N. Roy with whom Ravech, Roy & Kaplan, P.C., Boston, MA, Arthur O. Gormley, III and Gormley, Mayer & Gormley, P.C., Nashua, NH, were on brief for appellant.

Stephen H. Roberts with whom Thomas G. Ferrini, Ouellette, Hallisey, Dibble & Tanguay, Dover, NH, Robert C. Dewhirst, Devine, Millimet & Branch, Christine Friedman and Bouchard & Mallory, P.A., Manchester, NH, were on brief for appellees.

Before TORRUELLA, Circuit Judge, ALDRICH, Senior Circuit Judge, and CYR, Circuit Judge.

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.

ORDER

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.

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 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 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

New Hampshire has two recreational use statutes that may limit the liability of the defendants in this case. N.H.Rev.Stat.Ann. ("RSA") Sec. 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:

(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

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

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); Miller v. United States, 597 F.2d 614, 617 (7th Cir.1979); Wymer v. Holmes, 429 Mich. 66, 412 N.W.2d 213, 217 (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., Kantner v. Combustion Eng'g, 701 F.Supp. 943, 946 (D.N.H.1988); State v. Hermsdorf, 135 N.H. 360, 363, 605 A.2d 1045 (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 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. Sec. 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 275:44 IV, which provides for liquidated 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, 498 A.2d 297 (1985) (citation omitted); see also Appeal of New Hampshire Sweepstakes Comm'n, 130 N.H. 659, 664, 547 A.2d 241 (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) (...

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