Argued: April 11, 2017
Solomon Professional Association, of Londonderry (Peter M.
Solomon on the brief and orally), for the plaintiff.
Devine, Millimet & Branch, Professional Association, of
Manchester (Donald L. Smith on the brief and orally), for the
case arises out of an accident occurring at a pond owned by
the defendant, the Town of Chester, where Christopher
Kurowski suffered injuries after being struck by a person
using a rope swing attached to a tree on the shore. The
plaintiff, Jay Kurowski, as father and next friend of his
minor son, Christopher, appeals an order of the Superior
Court (Anderson, J.) dismissing his negligence and
intentional tort claims against the Town, as barred by the
recreational use immunity statutes. See RSA 212:34
(Supp. 2016); RSA 508:14 (2010). Because we conclude that the
Town is entitled to immunity under RSA 212:34, we affirm.
following facts are found either in the plaintiff's
allegations, which we accept as true for the purposes of this
appeal, or in the trial court order. The Town owns and
maintains the Wason Pond Conservation and Recreation Area,
which includes walking paths and Wason Pond, and is open to
the public free of charge. Since approximately 2012, a rope
swing has been attached to a tree overhanging the pond.
Neither the plaintiff nor the Town constructed or maintained
the swing. People use the rope swing to fling themselves over
and into the pond. Sometimes an individual swings over the
water on the rope and a second person stands near the
rope's path and attempts to slap the feet of the person
holding the rope before that person splashes into the water.
2012, a Town resident told the Town Board of Selectman that
he was concerned about the safety of the rope swing. The
resident asked the Board to install "no swimming"
signs near the swing area. During the meeting, one Board
member observed that the swing was a hazard. In response to a
question from the Board as to what the Town was doing with
regard to the swing, the police chief reported that the
practice had been for the police to take the names of
individuals using the swing and list them in a report. The
Board heard similar safety concerns about the swing during
meetings in 2013 and 2015. At no time between 2012 and 2015
did the Town remove the swing or post signage.
August 20, 2015, Christopher was at the pond, standing in the
path of a person using the swing. While Christopher was
attempting to touch the feet of the person swinging on the
rope, the two collided, and Christopher was seriously
plaintiff filed a complaint against the Town on
Christopher's behalf. He claimed that the Town acted
negligently and willfully or intentionally by failing to
remove the rope swing or post warning signs. The Town filed a
motion to dismiss, arguing that the plaintiff's suit was
barred by one or both of the recreational use immunity
statutes - RSA 212:34 and RSA 508:14.
trial court granted the Town's motion to dismiss. It
ruled that RSA 212:34 barred both of the plaintiff's
claims, and that RSA 508:14 barred the plaintiff's
negligence claim. It also rejected the plaintiff's
argument that it should postpone ruling on the motion to
dismiss to allow discovery to proceed. The trial court denied
the plaintiff's motion to reconsider. This appeal
reviewing a trial court's grant of a motion to dismiss,
our task is to determine whether the allegations in the
complaint are reasonably susceptible of a construction that
would permit recovery. See Coan v. N.H. Dep't of
Env't Servs., 161 N.H. 1, 4 (2010). We assume all
facts pleaded in the complaint to be true and construe all
reasonable inferences drawn from those facts in the
plaintiff's favor. See id. We need not, however,
assume the truth of statements in the pleadings that are
merely conclusions of law. Lamb v. Shaker Reg'l Sch.
Dist., 168 N.H. 47, 49 (2015). We engage in a threshold
inquiry that tests the facts in the complaint against the
applicable law, and if the allegations constitute a basis for
legal relief, we must hold that it was improper to grant the
motion to dismiss. See Coan, 161 N.H. at 4-5.
appeal, the plaintiff argues that the trial court erred when
it found the Town immune from suit under both recreational
use statutes. Because the parties do not argue otherwise, we
assume, without deciding, that both RSA 212:34 and RSA 508:14
apply to municipalities. See Dolbeare v. City of
Laconia, 168 N.H. 52, 54 (2015). In addition, because we
conclude that the trial court correctly ruled that, under RSA
212:34, the Town is immune from liability on all of the
plaintiff's claims, we need not decide whether RSA 508:14
also immunizes the Town from liability on all or some of the
plaintiff's claims. Cf. Coan, 161 N.H.
at 5 (declining to address parties' arguments under RSA
212:34 because we concluded that defendant was entitled to
immunity under RSA 508:14).
plaintiff argues that the trial court erred when it: (1)
found that Christopher's conduct qualified as an
"outdoor recreational activity" under RSA 212:34,
I(c); (2) found that, because the Town did not act willfully
or intentionally, neither of the relevant exceptions to
immunity under RSA 212:34, V applied; and (3) refused to
postpone ruling on the motion to dismiss to allow discovery
resolution of these issues requires statutory interpretation;
therefore, our review is de novo. Dolbeare,
168 N.H. at 54. We are the final arbiter of the intent of the
legislature as expressed in the words of the statute
considered as a whole. Id. We first examine the
language of the statute, and, when possible, ascribe the
plain and ordinary meanings to the words used. Id.