Kantner v. Combustion Engineering

• Decision Date: 27 December 1988
• Docket Number: No. C-87-354-L,C-87-367-L.,C-87-354-L
• Citation: 701 F. Supp. 943
• Court: U.S. District Court — District of New Hampshire
• Parties: Edward KANTNER, Administrator of the Estate of Paul Kantner and Paul J. Morin, Administrator of the Estate of Albert D. Morin v. COMBUSTION ENGINEERING, et al.

701 F. Supp. 943

Edward KANTNER, Administrator of the Estate of Paul Kantner and Paul J. Morin, Administrator of the Estate of Albert D. Morin v. COMBUSTION ENGINEERING, et al.

Nos. C-87-354-L, C-87-367-L.

United States District Court, D. New Hampshire.

December 27, 1988.

Phillips, Gerstein, Holber, LaFlamme, Migliori & Barron by Gerard R. LaFlamme, Jr., Daniel T. Chabot, Haverhill, Mass., for Kantner.

Gallagher, Callahan & Gartrell by Steven J. McAuliffe, Concord, N.H., for Shaw; Androscoggin Elec. Corp.; Pontook Hydro Partners, Ltd.

Stark & Peltonen by Rodney L. Stark, Manchester, N.H., for E.C. Jordan Co. Boynton, Waldron, Doleac, Woodman & Scott by Ralph R. Woodman, Jr., Portsmouth, N.H., for Pine Ridge School.

Devine, Millimet, Stahl & Branch by Bartram C. Branch, Manchester, N.H., for Combustion Engineering, Inc.; Yankee Const. Corp.; H.E. Sargent, Inc.

ORDERS ON MOTIONS FOR SUMMARY JUDGMENT

LOUGHLIN, District Judge.

The plaintiffs in these actions seek damages arising out of the drowning deaths of Paul Kantner and Albert D. Morin in separate incidents near the base of the Pontook Dam in Dummer, New Hampshire. Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332. Three of the defendants, Combustion Engineering, Inc. ("Combustion"), H.E. Sargent, Inc. ("Sargent"), and Yankee Construction Corp. ("Yankee"), have moved for summary judgment on all of the plaintiffs' claims except those alleging willful or intentional acts, contending that they are entitled to the limited immunity provided by the New Hampshire Recreational Use statutes, RSA 212:34 and RSA 508:14 I. The plaintiffs oppose the motions, contending that the Recreational Use statutes do not apply and that they violate the New Hampshire constitution.

The moving defendants were involved in the Pontook Hydroelectric Project ("the Project") including the reconstruction of the Pontook Dam, when the drownings occurred in May and June, 1986. The Federal Energy Regulatory commission ("FERC") initially licensed defendant Robert Shaw to construct the Project. Before the drownings, the license had been transferred to Pontook Hydro Partners, Ltd., which became Pontook Hydro Limited Partnership ("Pontook Hydro"), and the New Hampshire Water Resources Board ("NHWRB"). By the time of the drownings, the general partner of Pontook Hydro was Pontook Funding Corp., a wholly-owned subsidiary of Combustion. Combustion contracted to construct and operate the Project and as the Turnkey Contractor maintained overall responsibility for the construction of the Project. Combustion contracted with Sargent for construction of the Project. Sargent subcontracted with Yankee to perform construction work.

The plaintiffs claim that the moving defendants were negligent in their operations at the Project site and in failing to warn of the dangers at the Project site, thereby causing the injury and death of Paul Kantner and Albert Morin. The plaintiffs also contend that the moving defendants intentionally caused the injury and death of Paul Kantner and Albert Morin and that they willfully or maliciously failed to guard or warn against a dangerous condition, which caused the injury and death of Paul Kantner and Albert Morin.

The moving defendants contend that they are entitled to summary judgment on the negligence counts because of two New Hampshire Recreational Use statutes. RSA 212:34 provides:

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 ... water sports ..., 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.

II. An owner, lessee or occupant of premises who gives permission to another to ... use said premises for water sports ... does not thereby:

(a) Extend any assurance that the premises are safe for such purpose, or

(b) Constitute the person to whom permission has been granted the legal status of an invitee to whom a duty of care is owed....

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 ... use for water sports ... was granted for a consideration other than the consideration, if any, paid to said landowner by the state....

RSA 508:14 provides:

An owner, occupant, or lessee of land, ... who without charge permits any person to use land for recreational purposes ... shall not be liable for personal injury or property damage in the absence of intentionally caused injury or damage.

Summary judgment is proper only if, viewing the record in the light most favorable to the nonmoving party, the documents on file disclose no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Early v. Eastern Transfer, 699 F.2d 552, 554-55 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983); see also Fed.R.Civ.P. 56(c). "Only disputes over facts that might affect the outcome of the suit ..." are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party initially must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party has made the required showing, the adverse party must "go beyond the pleadings" and designate specific facts to show that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553; Fed.R.Civ.P. 56(e). For the present motions, only facts relevant to the applicability of the Recreational Use statutes are material.

To prevail, the moving defendants must demonstrate that one or both of the Recreational Use statutes apply to them in these actions. RSA 508:14 provides immunity for an "owner, occupant, or lessee of land ... who ... permits any person to use land for recreational purposes...." RSA 508:14 I (emphasis added). RSA 508:14 II also provides immunity only for owners of land. RSA 212:34, however, specifically provides immunity for an "owner, lessee or occupant of premises" and specifically mentions water sports. See RSA 212:34 (emphasis added). Considering that Recreational Use statutes normally are construed narrowly since they are "in derogation of common law rules of tort liability," Ducey v. United States, 713 F.2d 504, 510 (9th Cir.1983); see also Hill v. Dobrowolski, 125 N.H. 572, 575, 484 A.2d 1123 (1984) (court will not construe a statute as abrogating the common law unless the statute does so clearly), this court interprets RSA 508:14 as not covering these actions. The decedents were swimming and canoeing in a river and were not using land for recreational purposes.

Under RSA 212:34, the moving defendants initially must be owners, lessees, or occupants of premises. They do not contend that they are owners of the premises. Nor have they established that they are lessees. Combustion is merely the parent corporation of the general partner of the lessee. Combustion has not demonstrated why it also should be treated as a lessee despite being a separate entity. Cf. McGeehan v. Bank of New Hampshire, 123 N.H. 83, 86, 455 A.2d 1054 (1983) ("It is well established that business organizations such as the Bank, and its holding company are separate entities."); Conway v. Jobin, 115 N.H. 496, 498, 345 A.2d 903 (1975) (the corporate veil "is not permitted to be cast aside for the convenience of those using it."). The other moving defendants have no claim to being lessees.

Nevertheless, the moving defendants are "occupants" under RSA 212:34. The plaintiffs do not dispute that the moving defendants "were actively engaged in construction that created an extremely dangerous condition." Plaintiffs' Memorandum (doc. # 31 in C-87-354-L) at 24. Admittedly, the test for whether an entity is an "occupant" is not necessarily whether that entity is "in control," as the defendants argue. The cases cited by the moving defendants using an "in control" standard involved statutes that included both occupants and those "in control" within their protection. See Sublett v. United States, 688 S.W.2d 328, 329 (Ky.1985); McCain v. Commercial Union Insurance Co., 592 F.Supp. 1, 2 (W.D.La. 1983).

Faced with a similar statute to RSA 212:34, the Seventh Circuit ruled that an occupant is "one who has the actual use of property without legal title, dominion or tenancy.... The term should be interpreted to encompass a resident of land who is more transient than either a lessee or an owner." Smith v. Sno Eagles Snowmobile Club, 823 F.2d 1193, 1197 (7th Cir. 1987) (defendants, who constructed and groomed snowmobile trails on land they did not own or lease, are occupants; granting of summary judgment affirmed). The court observed that both Black's Law Dictionary and Webster's Third New International Dictionary consider an occupant to have "actual use" and possession of the premises. Id. at 1197 n. 7; see also Hall v. Turtle Lake Lions Club, 431 N.W.2d 696 (Wisc.Ct.App.1988) (quoting Smith and its "actual use" language in affirming summary judgment for defendant who sponsored a fair on the park grounds where plaintiff was injured.)

The Smith court distinguished Labree v. Millville Mfg., 195 N.J.Super. 575, 481 A.2d 286 (App.Div.1984), where the court had ruled that a subcontractor who had excavated gravel from an area that became a man-made lake was not an occupant of the lake under a New Jersey Recreational Use Statute. The Labree court rules that an occupant was "an entity with a degree of permanence in the occupancy, not merely one who is using the property, as was the case with the...