Grant v. Wakeda Campground, LLC, Civil No. 07-cv-249-JM.
| Decision Date | 29 June 2009 |
| Docket Number | Civil No. 07-cv-249-JM. |
| Citation | 2009 DNH 096,631 F.Supp.2d 120 |
| Parties | Kevin GRANT, Paula Grant v. WAKEDA CAMPGROUND, LLC. |
| Court | U.S. District Court — District of New Hampshire |
David P. Cullenberg, Cullenberg & Tensen, Lebanon, NH, for Kevin Grant, Paula Grant.
Christie Burnett, Scott R. Behman, Gibson & Behman PC, Burlington, MA, for Wakeda Campground, LLC.
The parties have filed cross motions for summary judgment contesting whether defendant breached any foreseeable duty.
The plaintiffs, Kevin and Paula Grant, checked into defendant's family campground at approximately 8:00 p.m. on August 20, 2004.1 They had camped at Wakeda Campground several times before and were aware the campground was "camping in the pines," as defendant's sign advertised. They proceeded to set up their "pop-up" camper. As they were preparing for bed at 9:00 p.m., a severe thunderstorm with extremely high winds moved through the campground without warning. The rain was a downpour with hail and the high winds snapped trees, tree tops and branches. A large portion of a pine tree crashed into plaintiffs' camper, injuring plaintiffs and pinning them down.
Before leaving his Vermont home that day, Kevin Grant had listened to weather reports at 12:00 noon on both WYKR radio station out of Wells River, Vermont and Channel 3 television station from Burlington, Vermont. He did not hear any forecast for severe weather moving through Hampton Falls, New Hampshire for later that day. Plaintiffs did not listen to any more weather forecasts while they traveled, and the weather was good when they arrived at the campground.
Defendant operates a 200-acre campground with 408 campsites. It is owned and largely operated by one family, sisters Janet Hambleton and Karen Bork, and their brother Terry Savage. No one is specifically detailed to monitor the weather. There was no radio or television in the camp office on August 20, 2004; however, the family owners try to stay aware of the weather by listening to WOKQ, a local radio station out of Dover, New Hampshire, or watching WMUR, the local network station out of Manchester, New Hampshire, while driving to work and eating their meals, and by hearing from campers. None of them heard any National Weather Advisory Warning on August 20, 2004. All were as surprised by the storm as the plaintiffs. In fact, the weather had been nice all that day.
On August 20, 2004, the National Weather Service Office in Grey, Maine, issued the following warnings to WKYX in Portland, Maine2:
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Rockingham and
Number Time Event other locales End Threat
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1. 201710 1:50 pm severe weather storm Rockingham Co 7:00 pm
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2. 201812 2:04 pm thunderstorm Rockingham Co 3:04 pm
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3. 201902 2:47 pm another storm Rockingham Co 3:47 pm
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4. 201934 3:23 pm scattered thunderstorms Rockingham Co 4:23 pm
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5. 202005 4:04 pm severe thunderstorms Southern N.H. 7:00 pm
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6. 202112 5:02 pm showers and thunderstorms Rockingham Co offshore by
5:30 pm
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7. 20219 6:17 pm severe thunderstorms Me. Coastal 11:00 pm
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8.a 202222 6:19 pm severe thunderstorms Rockingham Co 11:00 pm
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b 202329 6:19 pm severe thunderstorms Rockingham Co 11:00 pm
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c 202331 6:19 pm severe thunderstorms Rockingham Co 11:00 pm
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9. 210052 8:44 pm thunderstorms Rockingham Co 9:44 pm
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10. 210140 9:30 pm severe thunderstorms Rockingham Co 10:30 pm
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There is no evidence that any employee of defendant listened to WKYX on August 20, 2004 or on any other date. There also is no evidence that defendant or any of its employees were made aware of these National Weather Service reports by any other means.
Summary judgment is appropriate when "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[A]n issue is `genuine' if the evidence presented is such that a reasonable jury could resolve the issue in favor of the nonmoving party and a `material' fact is one that might affect the outcome of the suit under governing law." Fajardo Shopping Ctr. v. Sun Alliance Ins. Co., 167 F.3d 1, 7 (1st Cir.1999). The facts must be viewed in the light most favorable to the non-moving party, construing all reasonable inferences and all credibility issues in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000). The burden of showing an absence of any genuine issues of material fact lies with the moving party. See Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001). Summary judgment will not be granted as long as a reasonable jury could return a verdict in favor of the nonmoving party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
On cross motions for summary judgment, as are presently before the court, the standard of review is applied to each motion separately. See Am. Home Assur. Co. v. AGM Marine Contrs. Inc., 467 F.3d 810, 812 (1st Cir.2006); see also Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir.2006) (). Here both plaintiff and defendants argue the record contains no genuine issue of material fact and that judgment can be entered in their respective favor. The matter, therefore, is appropriate for summary disposition. See Quinn v. City of Boston, 325 F.3d 18, 28 (1st Cir.2003) ().
While there are some disputed facts in the case, the facts related above are those that are material to deciding these motions and are undisputed.
Plaintiff has alleged three theories for recovery:
a. Defendants failed to exercise due care in keeping its property in a reasonably safe and suitable condition so that its invitees and customers would not be exposed to unnecessary or unreasonable danger;
b. Defendants failed to exercise due care in following the weather reports and warning its invitees and customers of approaching weather which would create hazardous conditions within the campground and expose their invitees and customers to unnecessary or unreasonable danger; and
c. Defendants failed to exercise due care in failing to close their campground when severe weather would expose their invitees and customers to unnecessary and unreasonable danger.
Each of these theories asserts a duty of care that defendant allegedly owed to plaintiffs and breached. It is well settled that "owners and occupiers of land owe plaintiffs a duty of reasonable care under all the circumstances in the maintenance and operation of their property." Werne v. Executive Women's Golf Ass'n, 158 N.H. 373, 376, 969 A.2d 346, 348 (2009); see also Kellner v. Lowney, 145 N.H. 195, 197, 761 A.2d 421, 423 (2000).3 Defendant landowner has the duty to keep the property safe for his invitees, but must only exercise the care of a person of average prudence in maintaining the premises. See Cable v. Donahue & Hamlin, 85 N.H. 258, 259-60, 161 A. 383, 384 (1931) (); see also W. Page Keeton, et al., Prosser & Keeton on The Law of Torts (5th ed.1984), § 61 at 425. Whether a duty exists in a particular case is always a question of law. See Brown v. United States, 557 F.3d 1, 3 (1st Cir.2009) (); see also Belhumeur v. Zilm, 157 N.H. 233, 236, 949 A.2d 162, 165 (2008) (citing Walls v. Oxford Mgmt. Co., 137 N.H. 653, 656, 633 A.2d 103 (1993)). "Under [New Hampshire] law, in order for a duty to exist on the part of a landowner, it must be foreseeable that an injury might occur as a result of the landowner's actions or inactions." Kellner, 145 N.H. at 198, 761 A.2d at 424. With these standards in mind, I turn to plaintiffs' theories of liability.
As part of a landowner's general duty to keep his property reasonably safe, having a campground with campsites among the trees may well create a duty to keep the trees "limbed" of dead limbs and to...
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