Collins v. Martella

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2002

SEAN COLLINS,

Plaintiff, Appellant,

v.

PETER MARTELLA, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Torruella, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Cyr, Circuit Judge.

Jeffrey N. Roy with whom Ravech, Roy & Kaplan, P.C., Arthur O.

Gormley, III and Gormley, Mayer & Gormley, P.C. were on brief for

appellant.
Stephen H. Roberts with whom Thomas G. Ferrini, Ouellette,

Hallisey, Dibble & Tanguay, Robert C. Dewhirst, Devine, Millimet &

Branch, Christine Friedman and Bouchard & Mallory, P.A. were on brief

for appellees.

February 22, 1994

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.

O R D E R

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.

1. See Klepper v. City of Milford, 825 F.2d 1440, 1444 (10th

Cir. 1987) ("Similar legislation has been enacted in nearly
all of the fifty states"); see also Robin Cheryl Miller,

Effect of Statute Limiting Landowner's Liability for Personal

Injury to Recreational User, 47 A.L.R. 4th 262 (1986).

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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

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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") 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:

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(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

2. Plaintiff half-heartedly argues that RSA 580:14 is
inapplicable here because he was injured in the water rather
than on land. Although the court in Kanter v. Combustion

Engineering, 701 F. Supp. 943, 946 (D.N.H. 1988) declined on

this basis to apply RSA 508:14 to claims brought on behalf of
two men who drowned while swimming and canoeing at the base
of a dam, that case is distinguishable because Collins was
injured while diving from a dock attached to the land owned
and operated by the defendants, whereas the plaintiffs in

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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

Kanter did not gain access to the water from the defendant's

property.

3. In assessing the parties' motions, I apply the following
principles. Summary judgment is appropriate "if 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 judgment as a matter
of law." Fed. R. Civ. P. 56(c). A "genuine" issue is one
"that properly can be resolved only by a finder of fact
because [it] may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986); accord Garside v. Osco Drug, Inc., 895 F.2d 46, 48

(1st Cir. 1990). A "material" issue is one that "affect[s]

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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);

Wyner v. Holmes, 412 N.W. 2d 216, 217 (Mich. 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.,

Kanter v. Combustion Eng'g, 701 F. Supp. 943, 946 (D.N.H.

1988); State v. Hemsdorf, 135 N.H. 360, 363 (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

the outcome of the suit . . . ." Anderson, 477 U.S. at 248.

The burden is upon the moving party to aver the lack of a
genuine, material factual issue, Finn v. Consolidated Rail

Corp., 782 F.2d 13, 15 (1st Cir. 1986), and the court must

view the record in the light most favorable to the non-
movant, according the non-movant all beneficial inferences
discernable from the evidence. Oliver v. Digital Equip.

Corp., 846 F.2d 103, 105 (1st Cir. 1988). If a motion for

summary judgment is properly supported, the burden shifts to
the non-movant to show that a genuine issue exists. Donovan

v. Agnew, 712 F.2d 1509, 1516 (1st Cir. 1983).

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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. 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 275:42 IV, which provides for liquidated

damages against an employer who "willfully and without good

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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 (1985) (citation

omitted); see also Appeal of New Hampshire Sweepstakes

Comm'n, 130 N.H. 659, 664 (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)

(citing Cal. Civ. Code 846 (West 1985)).

Even using the Ninth Circuit's definition, Collins

has presented insufficient evidence of willfulness to allow

this issue to be decided by a jury. Collins notes that the

dock was installed in shallow water and from this fact alone

asks the court to infer that one or more of the defendant

consciously disregarded a probability that someone would be

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injured by diving from the dock. I decline to accept this

argument. At best, such evidence establishes a basis for

Collins' claim that the defendants were negligent. It is

simply insufficient, standing alone, to establish the

existence of a genuine dispute as to whether defendants had

actual knowledge that an injury such as the one Collins

suffered was a probable result of the installation and use of

the dock.

C. Was Either "Consideration" or a "Charge" Paid

for Access to the Beach?

Collins argues that dues paid by members of the

Association and the payments made by residents of the Park

when they purchased their lots constitute "consideration"

under RSA 212:34 and a "charge" under RSA 508:14. I find

neither argument persuasive.

Although Collins contends that residents of the

Park were required to pay dues to the Association in order to

use the beach, he has failed to point to any evidence to

support this claim. The deed conveying the beach to the

Trust provides that the beach "is to be kept open forever for

the benefit of lot owners and their guests." None of the

documents produced by either side suggest that access to the

beach may be denied to lot owners who fail to pay dues to the

Association. Although the Bylaws of the Association provide

that a failure to pay dues will result in the suspension of

membership privileges, access to the beach is a right which

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residents of Cobbett's Pond Park enjoy whether or not they

are members of the Association. Accordingly, the payment of

Association dues cannot be either consideration or a charge

paid in exchange for access to the beach. Cf. Simchuk v.

Angel Island Community Ass'n, 253 Mont. 221, 226, 833 P.2d

158, 161 (1992) (dues charged by Homeowners Association for

access to recreational areas managed by the Association

constitutes consideration barring application of recreational

use statute to claim brought by an injured guest of a member

of the association).

While it is undisputed that access to the beach is

limited to residents of the Park and their guests, I also

cannot accept Collins' argument that the price paid to

purchase a lot in the Park constitutes either consideration

or a charge for access to the beach. If the price paid to

become an owner of property devoted in part to recreational

uses also constitutes consideration for access to the

property that prevents the owner from invoking the

recreational use statutes, the statutes would be rendered

meaningless because every owner would be deemed to have paid

consideration for access to the property by virtue of having

paid to purchase the property. The New Hampshire Supreme

Court would not interpret these exceptions so broadly as to

render the statutes meaningless. New England Brickmaster,

Inc. v. Salem, 133 N.H. 655, 663 (1990). Moreover, I see no

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reason why a different result would apply here simply because

the landowners paid for a deeded right of access rather than

an ownership interest in the beach.

Finally, even if payments made to purchase a lot

with deeded access rights to the beach could in some sense be

deemed consideration or a charge for access to the beach,

such payments do not render the recreational use statutes

inapplicable because none of the defendants benefitted from

the payments. The obvious purpose of the consideration and

charge exceptions is to prevent owners and occupants of

property from avoiding liability for their own negligence if

they receive a benefit in exchange for making their property

available for recreational uses by others. This purpose is

not served by denying owners and occupants the protection of

the recreational use statutes simply because a benefit is

paid to an unconnected third party. Accordingly, Collins

cannot rely on the consideration and charge exception to

avoid the application of the recreational use statutes.

I. CONCLUSION

Defendants have demonstrated both that no material

facts are in genuine dispute and that they are entitled to

judgment as a matter of law. Accordingly, Defendants'

Motions for Summary Judgment (document nos. 17 and 20) are

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granted. The Clerk's Office is directed to enter judgment in

accordance with this Order.

SO ORDERED.

Paul Barbadoro
United States District Judge

August 11, 1993

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