Reed, et a l . v . City of Portsmouth 12-CV-164-JD 04/03/13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Linda Reed and Richard Reed

v. Civil N o . 12-cv-164-JD Opinion N o .

City of Portsmouth

O R D E R

Mary Linda and Richard Reed brought a negligence claim and a

claim for loss of consortium against the City of Portsmouth, New

Hampshire, after Mary Linda tripped in a Portsmouth park and

injured her right foot and ankle. Portsmouth moves for summary

judgment, arguing that it is immune from liability under New

Hampshire’s recreational use statutes. The plaintiffs object to

the motion.

Background

On June 1 5 , 2011, Mary Linda Reed (“Reed”), her husband

Richard, and two friends were walking along a public street near

Haven Park in Portsmouth, New Hampshire. Reed noticed a statue

in the middle of the park with a plaque on i t , which Reed could

not read from the street. Reed entered the park to take a closer

look at the statue and read the plaque. As Reed approached the statue, she stepped in a hole in the

grass that was approximately eighteen inches in diameter and

eighteen inches deep. According to Reed’s affidavit, “[t]he hole

was covered with or full of grass, and was essentially invisible

because it had been mowed over, and appeared to be the same as

and a continuation of the rest of the grass/lawn.” Reed injured

her foot and ankle when she stepped in the hole.

Standard of Review

Summary judgment is appropriate if the moving party “shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A party opposing summary judgment “must set forth

specific facts showing that there is a genuine issue for trial.”

Anderson v . Liberty Lobby, Inc.,

4 2 , 256 (1986).

Material facts are “facts that might affect the outcome of the

suit under the governing law.” Id. at 248. The court considers

the undisputed material facts and all reasonable inferences from

those facts in the light most favorable to the nonmoving party.

Avery v . Hughes,

9 0 , 693 (1st Cir. 2011).

2 Discussion

The plaintiffs brought a negligence claim and a claim for

loss of consortium against Portsmouth. Portsmouth argues that it

is entitled to summary judgment because it is immune from

liability for Reed’s injury under RSA 508:14 and RSA 212:34, New

Hampshire’s recreational use statutes.

RSA 508:14 provides: 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.

RSA 508:14, I .

RSA 212:34 provides:

A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses o f , structures, or activities on such premises to persons entering for such purposes . . . .

RSA 212:34, I I .

Portsmouth argues that the statutes give it immunity from

the plaintiffs’ claims. The plaintiffs argue that the statutes

do not apply because (i) the statutes do not apply to municipal

owners of public property; (ii) Haven Park is not the type of

land covered by the statutes; (iii) Reed was not engaged in

3 “recreational activity”; and (iv) even if the statutes applied to the facts of this case, Portsmouth voluntarily assumed and breached the duty of maintaining the park, and can therefore be held liable. A. Municipal Owners

The plaintiffs argue that the legislative history of the recreational use statutes suggests that they were intended to apply only to privately-owned land that was open to the public, and not to land owned by municipalities. They also argue that the phrase “including the state or any political subdivision” in RSA 508:14 was intended to give immunity to a municipality only when the municipality is a lessee of the land, not an owner.

Under New Hampshire principles of statutory interpretation, a court “first look[s] to the language of the statute itself, and, if possible, construe[s] that language according to its plain and ordinary meaning.” State v . Matton,

1 1 , 412 (2012) (citing State v . Beauchemin,

5 4 , 658 (2011)). Therefore, the court “will not examine legislative history unless the statutory language is ambiguous, consider what the legislature might have said, or add words not included in the statute.” Weare Land Use Ass’n v . Town of Weare,

1 0 , 511 (2006); see also Hynes v . Hale,

(2001) (where the language of a statute is unambiguous, a court “need

4 not look beyond the statute for further indications of

legislative intent”) (internal citation and quotation marks

omitted). In other words, a court cannot “read into [a]

statute[] a limitation that the legislature left out.” Collins

v . Martella,

, 4 (1st Cir. 1994).

The recreational use statutes give landowners who make their

land available for public recreational activities immunity from

liability. In addition, RSA 508:14 specifically provides that

the statute applies to states and political subdivisions.

Although the plaintiffs argue that RSA 508:14 applies to state

and political subdivisions only when they are the lessee of the

land, they offer no support for that interpretation other than

their own reading of the statute and their contention that such

an interpretation “makes sense.”1

The court will not read into a statute a limitation that

conflicts with the plain language the legislature chose to use.

Accordingly, RSA 508:14 applies to publicly-owned land. As a

1 The plaintiffs also point to Coan v . N.H. Dep’t of Envt’l Servs.,

(2010), and argue that in that case the New Hampshire Supreme Court acknowledged that whether RSA 508:14, I applied to State-owned land was an issue yet to be decided. In Coan, however, the New Hampshire Supreme Court merely noted that the plaintiffs did not dispute that RSA 508:14, I applied to State-owned land and so the court assumed, without deciding, that it did.

at 5 . Regardless, Coan does not stand for the proposition that RSA 508:14 applies only to privately-owned land and, therefore, does not bear on this court’s decision.

5 result, it is not necessary to consider whether RSA 212:34 is

limited to privately-owned land.

B. Application to Haven Park

The plaintiffs argue that Haven Park is not the type of

property to which the recreational use statutes apply or were

intended to apply. They contend that the property was opened as

a public park decades before the recreational use statutes were

enacted and, therefore, it could not have been an intended

beneficiary of the statutes. The plaintiffs further argue that

city ordinances ban various recreational activities in the park,

including bicycling, football, baseball, and roller skating.

They contend that these restrictions, as well as the city’s

maintenance and upkeep of the park, demonstrate that the city

takes it upon itself to protect the park and persons in the park

from damage or injury.

The plaintiffs’ arguments are contrary to the plain language

of RSA 508:14. RSA 508:14 does not distinguish land opened to

the public prior to the enactment of the statutes, land subject

to city ordinances, or land which the city maintains.

Accordingly, RSA 508:14 applies to Haven Park.

6 C. Recreational Activity

The plaintiffs also argue that RSA 508:14 does not apply

because Reed was not engaged in “recreational” activity. They

contend that walking through a park to see a statue does not

constitute recreational activity and was not the type of activity

contemplated by the recreational use statutes. They further

argue that the question of whether Reed was engaged in

recreational activity is an issue of material fact that must be

determined by a jury.

In support of their arguments, the plaintiffs cite RSA

212:34, I ( c ) , which defines outdoor recreational activity a s : outdoor recreational pursuits including, but not limited t o , hunting, fishing, trapping, camping, horseback riding, bicycling, water sports, winter sports, snowmobiling as defined in RSA 215-C:1, XV, operating an OHRV as defined in RSA 215-A:1, V , hiking, ice and rock climbing or bouldering, or sightseeing upon or removing fuel wood from the premises.2

The plaintiffs argue that Reed’s “very brief detour from walking

to her intended destination (Strawberry Banke) to look at and

read the plaque describing the statue in Haven Park which was

admittedly illegible from the public sidewalk is not

‘sightseeing’ or ‘recreational’ activity.”

2 RSA 508:14 does not contain a definition of “recreational activity.”

7 Although walking through a public park is not specifically delineated in RSA 212:34, the plaintiffs fail to explain why such activity is not recreational.3 See, e.g., Schneider v . U.S.A., Acadia Nat. Park,

(1st Cir. 1985) (noting that although drinking coffee in a park was not expressly listed as a recreational activity in Maine’s recreational use statute, “[a]ny number of clearly recreational activities suggest themselves”). The plaintiffs also fail to provide any support for their contention that walking through a park for the purpose of getting a closer look at a statue does not constitute “sightseeing”.4 Accordingly, Reed’s actions in the park constituted recreational activity for purposes of the recreational use statutes.5

3 RSA 212:34(c) provides examples of recreational activities but, by its own language, does not provide an exhaustive list. 4 Moreover, “the consequences of plaintiff[s’] approach would be absurd. The manifest purpose of the Park is recreational. Plaintiff[s] would have it that a greater duty is owed to those for whom the Park is not maintained than to those for whom it is.” Schneider,

. 5 The parties agree on the facts as they pertain to Reed’s activity in Haven Park. Therefore, the question of whether Reed’s activity constituted “recreational activity” is one of statutory interpretation and is a question of law, not fact. See Rhode Island v . Narragansett Indian Tribe,

(1st Cir. 1994).

8 D. Assumed Duty

Finally, the plaintiffs argue that even if RSA 508:14

applies, Portsmouth can still be liable for Reed’s injury because

it assumed a duty to maintain the park “through its extensive and

regular maintenance, landscaping, regulation and patrolling of”

the park. The plaintiffs contend that Portsmouth breached its

duty of care because it was “negligent in its performance of this

duty.”

RSA 508:14 provides that an owner of land who permits any

person to use the land for recreational purposes “shall not be

liable for personal injury or property damage in the absence of

intentionally caused injury or damage.” RSA 508:14, I . The

plaintiffs do not allege that Portsmouth intentionally caused

Reed’s injury. Accordingly, Portsmouth’s maintenance and

landscaping of Haven Park does not change the applicability of the 508:14.6

6 RSA 212:34, VI similarly provides that no cause of action shall exist for a person injured using the land in a manner other than provided in the statute. The statute does not provide for liability for an assumed duty of care.

9 Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document n o . 8 ) is granted. The clerk of court

shall enter judgment accordingly and close the case.

SO ORDERED.

) Jos'eph A. VJJos'eph A. DiClerico, DiClerico, Jr. Jr. United States District Judge

April 3, 2013

cc: Peter E. Hutchins, Esquire William G. Scott, Esquire

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