Hardy v. Loon Mountain Rec Corp

• Decision Date: 08 November 2001
• Docket Number: No. 01-1263,01-1263
• Citation: 276 F.3d 18
• Parties: (1st Cir. 2002) KATHLEEN HARDY, Plaintiff, Appellant, v. LOON MOUNTAIN RECREATION CORPORATION, Defendant, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

276 F.3d 18 (1st Cir. 2002)

KATHLEEN HARDY, Plaintiff, Appellant, v. LOON MOUNTAIN RECREATION CORPORATION, Defendant, Appellee.

No. 01-1263

United States Court of Appeals For the First Circuit

Heard Nov. 8, 2001

Decided January 8, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph A. DiClerico, Jr., U.S. District Judge

Robert G. Eaton, with whom Michelle LaCount, Christopher E. Ratte, and Kalil & LaCount, were on brief, for appellant.

Corey M. Belobrow, with whom Devine & Nyquist was on brief, for appellee.

Before Lipez, Circuit Judge, Coffin, Senior Circuit Judge, and Barbadoro,^* District Judge.

COFFIN, Senior Circuit Judge.

Appellant Kathleen Hardy fell on a path at the top of Loon Mountain, breaking her leg. She claims that appellee Loon Mountain Recreation Corporation ("Loon Mountain" or "Loon") was responsible for her injury. The district court concluded that a New Hampshire recreational use statute immunized appellee from liability and thus granted summary judgment for the company. We affirm.

I. Background

Loon Mountain operates a recreational area on United States Forest Service land in Lincoln, New Hampshire, under a special use permit that gives the company a nonexclusive right to offer recreational programs at the site. Loon's mainstay during the winter months is its operation of a ski area. In the summer, its activities include a gondola ride to the top of the mountain. The mountain peak houses sightseeing activities, a snack bar, and hiking paths. Under the terms of the Forest Service permit, visitors may hike and sightsee in the area without paying a fee.

On August 2, 1998, appellant visited Loon Mountain with several companions. After entering the gondola house at the bottom of the mountain and reading information about the varied activities at the top, each member of appellant's group paid five dollars to ride Loon's gondola to the top of the mountain. Once they arrived at their destination, they saw a sign directing visitors to various activities. Loon did not charge admission fees for any of the activities offered at the mountain's crest. Appellant visited the snack bar and the glacial caves, and saw a live presentation by "the Mountain Man" (who regaled the visitors with tales of "folklore, legend, and local history"). Appellant accessed Loon's various activities on paths, bridges and wooden stairways constructed and maintained by Loon. Appellant fell and suffered her injuries on the way back to the gondola.

Appellant brought this diversity tort claim, alleging that appellee negligently designed, constructed and maintained the path where she fell, failed to warn her of a hazardous condition, and provided her inadequate emergency service after her fall. The district court granted appellee's motion for summary judgment, holding that a New Hampshire recreational use statute rendered Loon immune from liability.

II. Standard of Review

We review a grant of summary judgment de novo, examining the record in the light most favorable to the non-moving party. See Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d 866, 869 (1st Cir. 1998). Summary judgment is appropriate if the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The facts here are largely undisputed, so we focus mainly on the legal question of the applicability of New Hampshire's recreational use statutes.

III. Discussion

New Hampshire, like most other states, has enacted statutes granting immunity to landowners who allow the public to access their land for recreational purposes. The statutes, however, are not limitless: although their precise wording differs, there is no immunity if the landowner charges the public for access to the land. Both the statutes and their exceptions are logical because they encourage free and open use of recreational space. When landowners directly profit from such access, however, it is only fair that they be subject to liability for their negligent actions.

In response to appellant's negligence allegations, appellee sought to invoke two of New Hampshire's recreational use statutes, N.H. Rev. Stat. Ann. §§ 508:14 and 212:34, contending they both were applicable because Loon did not charge for the activities at the top of the mountain. The district court found § 508:14 dispositive, and thus did not address § 212:34. We agree that § 508:14 confers immunity upon Loon, and we therefore also do not consider the second provision.

The statute pertinently provides that "[a]n owner, occupant, or lessor of land . . . who without charge permits any person to use land for recreational purposes . . . shall not be liable for personal injury or property damage. . . ." N.H. Rev. Stat. Ann. § 508:14 (emphasis added). "Charge" is not defined. Appellant argues that the word "charge" should be construed broadly to include her five-dollar gondola fee. She also contends that § 508:14's legislative history is inconsistent with a finding of immunity here, because the statute was intended to convey immunity only for gratuitous temporary use of land (for events such as horse shows) and for off-road vehicles.

The New Hampshire Supreme Court has not addressed the contours of the term "charge" as used in § 508.14; we must therefore divine its likely construction. See Stratford Sch. Dist., S.A.U. #58 v. Employers Reinsurance Corp., 162 F.3d 718, 720 (1st Cir. 1998) (a federal court sitting in diversity must predict how the state court would resolve a novel legal issue by looking to analogous decisions in other jurisdictions). We believe the district court correctly concluded that the New Hampshire court likely would adopt the majority view that "charge" means an actual admission fee paid for permission to enter the land for recreational purposes. See Howard v. United States, 181 F.3d 1064 (9th Cir. 1999) (payment of fee to private instructor for sailing lessons in restricted military harbor is not a charge by the government); Wilson v. United States, 989 F.2d 953 (8th Cir. 1993) (fee for use of facilities in campground not a charge to use the surrounding land); Flohr v. Penn Power & Light Co., 800 F. Supp. 1252 (E.D. Pa. 1992) (no charge to access recreational activities where only fee paid was to rent campsite); Livingston v. Penn. Power & Light Co., 609 F. Supp. 643, 648 (E.D. Pa. 1985) (easement and license fees to access a lake "cannot logically be considered . . . 'quid pro quo[s]'" and thus are not charges); Majeske v. Jekyll Island State Park Auth., 209 Ga. App. 118, 433 S.E.2d 304 (Ga. App. 1993) (parking fee does not constitute a charge where fee was per car, not per occupant, and any other means of accessing the park was free); City of Louisville v. Silcox, 977 S.W.2d 254 (Ky. Ct. App. 1998) (same).¹

Moreover, that construction is consistent with our holding in Collins v. Martella, ...