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Kurowski v. Town of Chester

Supreme Court of New Hampshire

September 21, 2017

JAY KUROWSKI F/N/F CHRISTOPHER KUROWSKI
v.
TOWN OF CHESTER

          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 defendant.

          BASSETT, J.

         This 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.

         The 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.

         In 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.

         On 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 injured.

         The 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.

         The 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 followed.

         In 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.

         On 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).

         The 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 to proceed.

         The 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. Statutes ...


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