Argued April 9, 2015
Normandin, Cheney & O'Neil, PLLC, of Laconia ( William D. Woodbury on the brief and orally), for the plaintiff.
Maggiotto & Belobrow, PLLC, of Concord ( Corey Belobrow on the brief and orally), for the defendant.
DALIANIS, C.J. HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.
This is an interlocutory appeal by the defendant, the City of Laconia (City), from a decision of the Superior Court ( Smukler, J.) denying its motion to dismiss negligence and nuisance claims brought by the plaintiff, Margaret Dolbeare. The trial court transferred two questions for our review:
(1) Did the trial court err in finding that the City owed Plaintiff a duty, despite RSA 212:34, II?
(2) Did the trial court err in holding that the City was not immune from suit under RSA 508:14, I, because " using playground equipment is not ... recreation within the meaning of RSA 508:14" ?
Because the parties do not argue otherwise, and for the purposes of answering the transferred questions, we assume, without deciding, that RSA 212:34, II (Supp. 2014) and RSA 508:14, I (2010) apply to municipalities. We answer both questions in the affirmative as they relate to the plaintiff's negligence claim. The plaintiff also argues that, notwithstanding either RSA 212:34, II or RSA 508:14, I, the City is liable for its alleged negligence under RSA 507-B:2 (2010). Because the trial court did not address this argument, we decline to do so in the first instance. Accordingly, we vacate the trial court's order denying the City's motion to dismiss the plaintiff's negligence claim.
To the extent that the transferred questions refer to the plaintiff's nuisance claim, we decline to answer them. See S.Ct. R. 8. Although the City argues that the plaintiff has failed to state a claim for nuisance, the trial court neither ruled upon that argument nor transferred a question regarding it. Because the trial court has not yet decided whether the plaintiff has stated a claim for nuisance, we decline, at this juncture, to determine whether the City would be entitled to immunity under RSA 212:34, II or RSA 508:14, I, in the event that she stated such a claim. See id.
We accept the statement of the case and facts as presented in the interlocutory appeal statement and rely upon the record for additional facts as necessary. See Lawrence v. Philip Morris USA, 164 N.H. 93, 95, 53 A.3d 525 (2012). The City owns and maintains Opechee Park. In May 2012, the plaintiff was enjoying the playground equipment at the park with her granddaughter. As the plaintiff approached the park swings, her foot caught under the edge of a mat. She fell and suffered injuries.
The plaintiff filed a complaint against the City, alleging negligence and nuisance claims. The City moved to dismiss, arguing that the two recreational use immunity statutes, RSA 212:34, II and RSA 508:14, I, immunized it from the plaintiff's claims. The trial court ...