Grant et a l . V. Wakeda Campground CV-07-249-JM 06/29/09 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kevin Grant Paula Grant

v. Civil No. 07-cv-249-JM Opinion No.

Wakeda Campground. LLC

O R D E R

The parties have filed cross motions for summary judgment

contesting whether defendant breached any foreseeable duty.

1. Factual Background

The plaintiffs, Kevin and Paula Grant, checked into

defendant's family campground at approximately 8:00 p.m. on

August 20, 2004.1 They had camped at Wakeda Campground several

times before and were aware the campground was '■'camping in the

pines," as defendant's sign advertised. They proceeded to set up

their "pop-up" camper. As they were preparing for bed at 9:00

p.m., a severe thunderstorm with extremely high winds moved

through the campground without warning. The rain was a downpour

with hail and the high winds snapped trees, tree tops and

1The complaint erroneously alleges the date as August 21st. branches. A large portion of a pine tree crashed into

plaintiffs' camper, injuring plaintiffs and pinning them down.

Before leaving his Vermont home that day, Kevin Grant had

listened to weather reports at 12:00 noon on both WYKR radio

station out of Wells River, Vermont and Channel 3 television

station from Burlington, Vermont. He did not hear any forecast

for severe weather moving through Hampton Falls, New Hampshire

for later that day. Plaintiffs did not listen to any more

weather forecasts while they traveled, and the weather was good

when they arrived at the campground.

Defendant operates a 200-acre campground with 408 campsites.

It is owned and largely operated by one family, sisters Janet

Hambleton and Karen Bork, and their brother Terry Savage. No one

is specifically detailed to monitor the weather. There was no

radio or television in the camp office on August 20, 2004;

however, the family owners try to stay aware of the weather by

listening to WOKQ, a local radio station out of Dover, New

Hampshire, or watching WMUR, the local network station out of

Manchester, New Hampshire, while driving to work and eating their

meals, and by hearing from campers. None of them heard any

National Weather Advisory Warning on August 20, 2004. All were

2 as surprised by the storm as the plaintiffs. In fact, the

weather had been nice all that day.

On August 20, 2004, the National Weather Service Office in

Grey, Maine, issued the following warnings to WKYX in Portland,

Maine2:

Number Time Event Rockingham End and other Threat locales 1. 201710 1:50 pm severe weather Rockingham Co 7:00 pm storm 2. 201812 2:04 pm thunderstorm Rockingham Co 3:04 pm 3. 201902 2:47 pm another storm Rockingham Co 3:47 pm 4. 201934 3:23 pm scattered Rockingham Co 4:23 pm thunderstorms 5. 202005 4:04 pm severe Southern N.H. 7:00 pm thunderstorms 6. 202112 5:02 pm showers and Rockingham Co offshore thunderstorms by 5:30 pm 7. 20219 6:17 pm severe Me. Coastal 11:00 pm thunderstorms 8 .a 202222 6:19 pm severe Rockingham Co 11:00 pm thunderstorms b 202329 6:19 pm severe Rockingham Co 11:00 pm thunderstorms

2Neither side provided any information about any warnings to WOKQ or WMUR, the stations defendant's employees listened to and watched.

3 c 202331 6:19 pm severe Rockingham Co 11:00 pm thunderstorms 9. 210052 8:44 pm thunderstorms Rockingham Co 9:44 pm

10 . 210140 9:30 pm severe Rockingham Co 10:30 pm thunderstorms

There is no evidence that any employee of defendant listened to

WKYX on August 20, 2004 or on any other date. There also is no

evidence that defendant or any of its employees were made aware

of these National Weather Service reports by any other means.

2. Standard of Review

Summary judgment is appropriate when "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 a judgment as a matter of law." Fed. R. Civ. P.

56(c). "[A]n issue is ■'genuine'’ if the evidence presented is

such that a reasonable jury could resolve the issue in favor of

the nonmoving party and a ■'material'’ fact is one that might

affect the outcome of the suit under governing law." Faiardo

Shopping Ctr. v. Sun Alliance Ins. Co..

, 7 (1st Cir.

1999). The facts must be viewed in the light most favorable to

4 the non-moving party, construing all reasonable inferences and

all credibility issues in his favor. See Anderson v. Liberty

Lobby. Inc.,

(1986); see also Suarez v. Pueblo

Int ' 1. Inc..

(1st Cir. 2000). The burden of

showing an absence of any genuine issues of material fact lies

with the moving party. See Navarro v. Pfizer Corp..

(1st Cir. 2001). Summary judgment will not be granted as

long as a reasonable jury could return a verdict in favor of the

nonmoving party. See Anderson.

.

On cross motions for summary judgment, as are presently

before the court, the standard of review is applied to each

motion separately. See Am. Home Assur. Co. v. ACM Marine Contrs.

Inc..

(1st Cir. 2006); see also Mandel v.

Boston Phoenix. Inc..

(1st Cir. 2006) ("The

presence of cross-motions for summary judgment neither dilutes

nor distorts this standard of review."). Here both plaintiff and

defendants argue the record contains no genuine issue of material

fact and that judgment can be entered in their respective favor.

The matter, therefore, is appropriate for summary disposition.

See Quinn v. City of Boston.

(1st Cir. 2003)

(using summary judgment to promptly resolve cases).

5 3. Discussion

While there are some disputed facts in the case, the facts

related above are those that are material to deciding these

motions and are undisputed.

Plaintiff has alleged three theories for recovery:

a. Defendants failed to exercise due care in keeping its property in a reasonably safe and suitable condition so that its invitees and customers would not be exposed to unnecessary or unreasonable danger;

b. Defendants failed to exercise due care in following the weather reports and warning its invitees and customers of approaching weather which would create hazardous conditions within the campground and expose their invitees and customers to unnecessary or unreasonable danger; and

c. Defendants failed to exercise due care in failing to close their campground when severe weather would expose their invitees and customers to unnecessary and unreasonable danger.

Each of these theories asserts a duty of care that defendant

allegedly owed to plaintiffs and breached. It is well settled

that "owners and occupiers of land owe plaintiffs a duty of

reasonable care under all the circumstances in the maintenance

and operation of their property." Werne v. Executive Women's

Golf Ass'n,

,

(2009); see also

6 Kellner v. Lownev,

,

(2000).3

Defendant landowner has the duty to keep the property safe for

his invitees, but must only exercise the care of a person of

average prudence in maintaining the premises. See Cable v.

Donahue & Hamlin. Inc..

,

(1931) (discussing campground owner's duty to protect plaintiff

camper from falling over an embankment); see also W. Page Keeton,

et a l ., Prosser & Keeton on The Law of Torts (5th ed. 1984), § 61

at 425. Whether a duty exists in a particular case is always a

question of law. See Brown v. United States.

(1st

Cir. 2009) (explaining the legal question of whether a duty is

owed is "grist for the summary judgment mill"); see also

Belhumeur v. Zilm,

,

(2008)

(citing Walls v. Oxford M q m t . Co..

,

(1993)). "Under [New Hampshire] law, in order for a duty to

exist on the part of a landowner, it must be foreseeable that an

injury might occur as a result of thelandowner's actions or

inactions." Kellner,

,

. With

these standards in mind, I turn to plaintiffs' theories of

3Since this action was brought under the court's diversity jurisdiction. New Hampshire law governs. See Hernandez v. Philip Morris USA. Inc..

(1st Cir. 2007) (citing Erie R.R. v. Tompkins.

(1938)).

7 liability.

a. Duty to Keep Property Safe

As part of a landowner's general duty to keep his property

reasonably safe, having a campground with campsites among the

trees may well create a duty to keep the trees "limbed" of dead

limbs and to take down dead and diseased trees. See Lesser v.

Camp Wildwood.

(S.D.N.Y. 2003) ("In

cases involving fallen trees or branches, landowner will only be

held liable if he or she knew or should have known about a

defective condition of the tree."). While there clearly is no

duty to clear cut defendant's land, defendant reasonably may be

charged with the duty of regularly inspecting trees and removing

those which potentially could create a danger or hazard. See

i d .; see also DeAmiches v. Popczun.

,

(1973) (creating duty if landowner has knowledge

of and control over a perilous condition unknown to plaintiff);

Prosser & Keeton. § 61 at 425-26 (requiring landowner to inspect

premises to discover possible dangers).

The evidence with respect to the condition of the trees was

primarily provided in the deposition of Terry Savage, one of the

owners of Wakeda Campground. He testified that he and his father

8 are "always looking at the trees", checking "to see what the

condition of the trees are." Pis.' Cross Mot. Summ. J. (document

no. 16), Exh. 9, D e p . of Terry M. Savage (document no. 16.10) at

29. They remove dead trees. See i d . Another owner, Janet

Hambleton, testified that until August 20, 2004, the camp "never

had serious storm damage." See Pl.'s Mem. in Supp. of O b j . to

Def.'s Mot. for Summ. J. (document no. 15)4, Exh. 1, Dep. of

Janet S. Hambleton (document no. 15.2) at 59. In fact, there is

no evidence that the tree which injured plaintiffs was dead or

unhealthy. Plaintiffs even provided hearsay evidence that an

arborist inspected the downed trees after the event and said the

trees were healthy.

The burden of proof is on the plaintiffs to show defendants

breached their duty to keep the property safe. The only hint in

support of this claim is that trees lost branches and/or tops

and/or were toppled by the storm. The complaint does not set

forth any facts in support of the alleged breach of the duty to

keep the property safe; and the plaintiffs have proffered little

in support of their summary judgment motion to substantiate the

4The memoranda of law in support of plaintiffs' Cross Motion for Summary and their Objection to Defendant's Motion for Summary Judgment are identical and will be referred to hereinafter as "Pis.' Mem. in Support." C f . Document nos. 15.1 and 16.1.

9 complaint's allegation. "[A]n absence of evidence on a critical

issue weighs against the party . . . who would bear the burden of

proof on that issue at trial." Perez v. Volvo Car Corp.. 247

F .3d 303, 310 (1st Cir. 2001).

Plaintiffs have not carried their burden of proof on this

issue. Defendant is granted summary judgment on its duty to keep

the property safe.

b. "Weather" Duties

Plaintiffs allege that defendant owed them a duty to monitor

weather reports, warn them of approaching weather which could

create hazardous conditions and close the campground when severe

weather would expose them to unreasonable danger. The parties

agree that none of defendant's owners or employees knew of the

weather advisories and, obviously therefore, did not provide any

warning nor evacuate the campground. Since a landowner like

defendant must exercise reasonable care for the protection of

people invited onto its property as plaintiffs were, the question

raised by these alleged duties is whether defendant's duty to

keep the premises reasonably safe includes a duty to monitor the

weather and make corresponding adjustments to the campground.

Defendant could only be held responsible for not warning and

10 evacuating if it knew or should have known of the approaching

severe thunderstorm. Since it is undisputed that defendant did

not know, the only issue is whether it should have known to

monitor weather reports and warn about ominous storms.

Essentially, plaintiffs claim that any campground with

healthy trees in New Hampshire has a duty to constantly monitor

weather forecasts and to warn campers and evacuate the campsites

every time the weather service issues a severe thunderstorm

warning for the area. No New Hampshire case or statute currently

imposes such a duty. The facts are uncontradicted that defendant

did not voluntarily undertake a policy of monitoring the weather

and providing warnings. Had defendant done so, plaintiffs could

have reasonably relied on defendant for weather information,

because New Hampshire law recognizes that one "who voluntarily

renders services for another . . . [may be] held to a duty of

reasonable care in acting." Walls,

, 633 at 105

(1993) (citing Restatement (Second) of Torts (1965), §§ 323,

324). Likewise, for example, courts have held that golf courses

that employ a procedure for monitoring weather to protect patrons

from lightning owe a duty of care to ensure the procedure is

reasonably safe. See Sail v . T 's , Inc.,

, 136

, 476 (2006); Maussner v. Atlantic City Country Club,

Inc.,

,

(App. Div.

1997). Absent an industry standard or a voluntary undertaking to

do so, neither of which exists here however, "no case has ever

imposed a duty on property owners to constantly monitor weather

forecasts." Bowman v. State.

(Tenn. C t . App.

2006) .

Under the circumstances, it is necessary to "provide our

■'best guess' as to open questions of state law," although the

court should "tread lightly in offering interpretations of state

law where controlling precedent is scarce." Noonan v. Staples.

Inc.,

(1st Cir. 2009). The New Hampshire Supreme

Court has stated that:

persons owe a duty of care only to those who are foreseeably endangered by their conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous . . . . Not every risk that might be foreseen gives rise to a duty to avoid a course of conduct; a duty arises because the likelihood and magnitude of the risk perceived is such that the conduct is unreasonably dangerous.

Manchenton v. Auto Leasing Corp..

,

(1992) (citing authority). Since the duty

owed is a question of law, courts are to examine: (1) the

12 societal interest involved; (2) the severity of the risk, (3) the

likelihood of occurrence, (4) the relationship between the

parties, and (5) the burden upon the defendant. See Hungerford

v. Jones.

,

(1998) (citing

Restatement (Second) of Torts. § 291 (1965)). "[T]he scope of

the duty imposed is limited by what risks, if any, are reasonably

foreseeable." Walls,

,

.

New Hampshire courts have applied these principles in the

context of landowners of recreational sports facilities that,

though not directly applicable, provide guidance on what to

consider in determining the scope of defendant campground's duty

to protect plaintiff campers from severe storms. In the context

of recreational sports activities, the duty owed depends on: the

nature of the sport involved; the type of contest; the ages,

physical characteristics and skills of the participants; the type

of equipment involved; and the rules, customs and practices of

the sport. See Allen v. Dover Co-Recreational Softball League.

,

(2002). These factors are

intended to limn the defendant's duty to a standard of care that

recognizes the inherent risks of the sport and protects defendant

from liability for injuries that are reasonably caused by "the

13 range of ordinary activity involved in the sport."

Allen

instructs that defendant can only be held liable for plaintiff's

injuries if defendant's conduct unreasonably created a risk that

was not typical of or inherent in camping.

As experienced campers, plaintiffs certainly understood that

an inherent risk of camping in the woods, arguably an attractive

reason for going camping, was subjecting themselves to the forces

of nature, including specifically the smell, sound and feeling of

wind and rain in the trees. Accordingly, for their negligence

claim to survive, defendant's conduct must be found to have

unreasonably created a risk that was "totally outside" what

plaintiffs would have expected when they chose to go camping.

See i d .; see also Werne,

,

("[A]

land owner operating a sports facility who creates only [the]

risks that are normal or ordinary to the sport [at issue] acts as

a reasonable person of ordinary prudence under the circumstances"

(internal quotation omitted)). To ascribe to defendant

responsibility for plaintiffs' injuries caused by the storm,

defendant must be found to have breached a standard of care that

required taking precautionary steps in the form of constant

monitoring of the weather and then adequate warning about it.

14 including closing the campground, to protect campers from

forecasted storms. After substantial research has failed to

discover a single case imposing such a duty on campgrounds, I

find that New Hampshire law would not expand the duty of care

defendant owed to keep its campground reasonably safe to include

constant monitoring of and warning about the weather, for the

following reasons.

First, the landowner's duty of care is premised on the idea

that as the owner and occupier of the property, he is in a

position of superior knowledge about its condition. See Prosser

& Keeton. § 61 at 425-26 (requiring the landowner to know of

hidden dangers and take reasonable precautions to protect the

invitee from dangers that are foreseeable from the use of the

property); see also Cable,

, 161 A. 2d at 384

(requiring defendant to properly warn of dangerous pitfall on his

property); DeAmiches.

,

(imputing liability to landlord who knows of perilous conditions

that the injured person does not know). When, however, the

landowner is not in a position to know of a risk better than an

invitee on his property, then the landowner does not have a duty

to protect the invitee from that risk. See Sun v. Gov'tl Aut h s .

15 of Taiwain, No. C 94-2769 SI,

, *10 (N.D. C a l . Jan.

24, 2001) (exercise of ordinary care does not include a duty to

warn another of a danger equally obvious to both); see also

DeAmiches.

,

(citing 2

Harper & James, The Law of Torts § 1491 for the rule that "the

obvious character of the condition is incompatible with

negligence in maintaining it").

[I]n the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself.

I d . (quoting Prosser & Keeton. (3rd ed.) § 403). While the

actual storm which caused the plaintiffs'’ injuries was not

obvious to either defendant or plaintiffs here because of its

sudden emergence, the likelihood of being caught in a summer

thunderstorm while camping was a danger as apparent and obvious

to plaintiffs as it was to defendant.

Second, unless voluntarily assumed as in the golf course

cases cited above, there is no duty to monitor weather because

"[fjorecasts ... do not, by themselves, constitute actual or

constructive notice of dangerous conditions requiring a property

16 owner to begin taking steps either to prevent or to remove [the

hazards that might f o l l o w ] Bowman,

(finding

no negligence in state's failure to clear parking lot of snow and

ice that had just accumulated). The unreliability of forecasts

has been recognized by other courts and has excused a defendant's

failure to prevent hazardous conditions that were caused by

weather. See e.g. McGaskev v. Nat'l Auto. Ins. Co.,

(La.App. 3 Cir. 2008) (holding "the ■'possibility' of icy

conditions does not equate to constructive notice thereof" to

have required the state to salt a bridge that froze); see also

Croce v. Hall,

(D.C. 1995) (finding landlord

does not have a duty to constantly monitor the weather). Because

weather forecasts are often wrong, they cannot be the basis of

imputing superior knowledge on a landowner defendant that gives

rise to the duty to protect a plaintiff invitee from weather

conditions that actually occur.

Both the inherent unreliability of weather forecasts and the

fact that weather changes constantly justify not imposing on

defendant a greater duty to monitor the weather than can be

expected of plaintiffs. See i d . (citing cases).

In general, changes in the weather are a part of everyday life, and citizens can

17 be expected to adjust to them without demanding extraordinary efforts on the part of others. Furthermore, as appellee points out, weather predictions are often wrong, and may vary depending on the identity of the forecaster. . .. [Weather] reports are competent to prove weather conditions in the locality but, standing alone, they cannot establish the required notice to the [defendant] of the existence of a particular obstruction . . . its duration, or its dangerous character.

I d . (quotations omitted). Defendant's duty of care is limited to

keeping his property reasonably safe from known risks of danger.

Because monitoring the weather would not necessarily provide

defendant with either constructive or actual notice of a

dangerous condition on his property, there is no basis to impose

a duty to monitor the weather as part of the duty to keep the

property safe. The injury that occurred here is simply too

attenuated to be a foreseeable risk of defendant's failing to

monitor the weather.

In fact here, the weather forecasts plaintiffs cite as those

defendant had a duty to monitor would not have provided the

information needed in enough time for defendant to have taken

precautionary steps to protect plaintiffs. The weather alerts

numbered 1-6 in the fact statement could not give rise to any

duty to warn plaintiffs at their 8:00 p.m. check-in, because the

18 time at which the alert indicated that the threat would end had

already passed. Alert number 7 was a warning for the Maine

coast, not for southern New Hampshire. Alert 10 was issued after

the storm had passed over the campground. The only possible

relevant alerts, then, are alert numbers 8 and 9, at 6:19 p.m.

and at 8:44 p.m. respectively, which warned of severe

thunderstorms. Those alerts were the same as three similar storm

warnings issued by the National Weather Service earlier in the

day that had not materialized. At best they provided

constructive notice that strong rain and wind were predicted.

They cannot be understood as having provided constructive notice

or actual knowledge that the August 20, 2004 storm that occurred

would happen or would cause the damage that it did.

Finally, the factors to be considered when determining

whether a duty should be imposed weigh against creating the duty

plaintiffs request here. See Hungerford.

,

(listing factors); see also Leach v. Mountain Lake.

(8th Cir. 1997) (finding bailor of boats had no

duty to warn bailee of storm during which plaintiff drowned).

Any societal interest that may exist to impose this burden on

defendant is better left for the legislature to determine, as it

19 has in the context of weather-related injuries that occur in ski

areas. See g e n . N.H. Rev. Stat. Ann. Ch. 225-A (dealing with

skiers, ski area and passenger tramway safety) and RSA 225-A:24

(listing responsibilities of skiers and passengers). Without

minimizing the severity of the actual injuries plaintiffs

sustained, the evidence showed that both the risk and the

likelihood of that injury occurring are extremely small.

Defendant's agents testified that in the forty-three years they

have operated the camp, they never had a freak storm like the one

in this case and never had storm damage like that which occurred.

Plaintiffs' meteorologist avers that New Hampshire can experience

severe thunderstorms which can damage trees, but that New

Hampshire averages only two tornadoes per year. Based on this

evidence, I cannot conclude as a matter of law that a severe

thunderstorm would cause a healthy tree branch to fall on

plaintiffs with such regularity that it would be deemed

foreseeable for purposes of creating a duty to monitor the

weather.

"To impose a constant monitoring duty on [defendant] would

be unreasonable and unrealistic." McGaskev.

.

Weighing the additional burden on defendant to impose such a

20 duty, including the fact that those costs would be passed along

to campers, along with the fact that campers at this campground

are adults, not children or some other group for which the law

affords a higher duty of care, the factors all point to not

creating the duties plaintiffs ask to have imposed. The ability

of plaintiffs to have monitored the weather and have taken those

precautionary measures they deemed appropriate was not in any way

dependent on what defendant campground did or did not tell them.

See Leach.

(excusing marina from warning boaters

of severe storm). Given the scarcity of New Hampshire tornados,

the number of warned severe thunderstorms that do not

materialize, a camper's own awareness of weather and conditions,

the lack of prior damage and the non-existence of industry

standards, the foreseeable risk is not sufficiently likely to

make a failure to monitor the weather, particularly

continuously,5 unreasonably dangerous.

Without a duty to monitor, the derivative duties of warning

and evacuating the campground do not follow. "Absent a duty,

there is no negligence." Walls. 137 N.H at 656,

.

5Assuming, as plaintiffs apparently do, that the two advisories actually aired on radio and television receivable at the campground, there is no evidence of how long after the alert they were on the air.

21 Because there was no duty that defendant breached, defendant's

failure to monitor the weather, warn plaintiffs about the storm

and evacuate the campground was not negligent. Defendant is

granted summary judgment on the weather-related duties.

Conclusion

Defendant's motion for summary judgment (document no. 10) is

granted. Plaintiffs' cross-motion (document no. 12) is denied.

SO ORDERED.

Muirhead V tates Magistrate Judge

Date: June 29, 2009

cc: David P. Cullenberg, Esq, Christie Burnett, Esq. Scott R. Behman, Esq.

22