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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