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                   THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Rockingham
No. 2016-0406


               JAY KUROWSKI F/N/F CHRISTOPHER KUROWSKI

                                            v.

                                 TOWN OF CHESTER

                             Argued: April 11, 2017
                       Opinion Issued: September 21, 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


                                         2
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 such as RSA 212:34, which are in derogation of the common law right
to recover, are strictly construed. Id.

      RSA 212:34 provides:

      II. 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 of, structures, or
      activities on such premises to persons entering for such purposes,
      except as provided in paragraph V.

      ....




                                        3
      V. This section does not limit the liability which otherwise exists:

            (a) For willful or malicious failure to guard or warn against a
            dangerous condition, use, structure or activity;

            ...

            (d) When the injury suffered was caused by the intentional
            act of the landowner.

RSA 212:34, II, V(a), (d). We have found the legislative intent underlying this
statute to be to “encourage private landowners to make their land available for
public recreational uses by limiting their liability.” Estate of Gordon-Couture v.
Brown, 152 N.H. 265, 273 (2005).

       The plaintiff first argues that the trial court erred when it found that
Christopher was engaged in an “outdoor recreational activity,” as that term is
used in RSA 212:34, I(c). We disagree. RSA 212:34, I(c) defines “outdoor
recreational activity” as “outdoor recreational pursuits including, but not
limited to, hunting, fishing, trapping, camping, horseback riding, bicycling,
water sports, winter sports, snowmobiling . . . , operating an OHRV . . . ,
hiking, ice and rock climbing or bouldering, or sightseeing upon or removing
fuel wood from the premises.” RSA 212:34, I(c) (emphasis added). By its plain
terms, the statute’s list of outdoor recreational activities is not exhaustive.
Indeed, we have previously applied the principle of ejusdem generis to this
provision and concluded that an activity not specifically enumerated — but
similar in nature to the activities listed in the statute — may constitute an
“outdoor recreational activity.” See Dolbeare, 168 N.H. at 55-56. The principle
of ejusdem generis provides that, when specific words in a statute follow
general ones, the general words are construed to embrace only objects similar
in nature to those enumerated by the specific words. Id. at 55.

       Applying this principle here, we conclude that the activity at issue is
similar in nature to the enumerated activity of “water sports.” RSA 212:34, I(c).
We have held that RSA 212:34 bars an action against a landowner for injuries
sustained by a plaintiff who dove into a lake, striking his head on a submerged
rock. See Fish v. Homestead Woolen Mills, 134 N.H. 361, 362, 366 (1991); see
also Collins v. Martella, 17 F.3d 1, 2-3 (1st Cir. 1994) (noting that diving into
shallow water from a dock is a “water sport” under RSA 212:34). Here, the
activity at issue involved a person launching herself over and into the water —
using a rope swing. Christopher was attempting to slap the feet of the person
using the swing before that person hit the water. We hold that Christopher
was actively engaged in an outdoor recreational pursuit sufficiently similar in
nature to the enumerated activity of “water sports” to constitute an “outdoor
recreational activity” under RSA 212:34, I(c).


                                        4
      In arguing for a contrary conclusion, the plaintiff asserts that
Christopher’s conduct does not constitute an “outdoor recreational activity”
because it involved a man-made apparatus rather than a naturally occurring
feature of the land. However, we have held that “outdoor recreational activity”
includes not only the use of land in its natural state, but also the use of man-
made equipment or structures on the land. See Dolbeare, 168 N.H. at 55-56
(holding that the use of playground equipment constituted an “outdoor
recreational activity” under RSA 212:34, I(c)).

       The plaintiff next argues that, because the Town did not supply or
maintain the rope swing, Christopher’s conduct does not constitute an
“outdoor recreational activity.” However, the identity of the person or entity
providing the equipment or structure used in an outdoor recreational activity is
immaterial. See id. at 56 (finding immaterial the fact that playground
equipment used in outdoor activity was provided by landowner rather than
user). Indeed, many of the enumerated outdoor recreational activities, for
example, hunting, camping, hiking, bicycling, and snowmobiling, see RSA
212:34, I(c), involve the use of equipment or structures that could be owned or
provided by anyone, including the landowner, a third party, or the injured
party.

      The plaintiff also argues that Christopher’s conduct did not constitute an
“outdoor recreational activity” because, in order to qualify as such an activity,
it must be authorized by the landowner, and not identified as hazardous. We
are not persuaded. The plain language of the statute provides no support for
the plaintiff’s position. In fact, the statute specifically contemplates that
immunity will apply even if the activity at issue involves a known hazardous
condition. See RSA 212:34, II (“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 of, structures, or activities on
such premises . . . . (emphasis added)). Accordingly, we conclude that the trial
court did not err when it found that the activity that Christopher was engaged
in was an “outdoor recreational activity” under RSA 212:34.

       The plaintiff next argues that the trial court erred when it found that his
allegations were insufficient to establish that either of two statutory exceptions
to recreational immunity applied to the Town. The first exception concerns a
landowner’s “willful” failure to guard or warn against a dangerous condition,
use, structure, or activity, see RSA 212:34, V(a); the second exception concerns
the landowner’s “intentional” conduct, see RSA 212:34, V(d). We address each
exception in turn.

      The plaintiff argues that the trial court erred by finding that he had
alleged insufficient facts to show that the Town’s alleged conduct was willful.
He asserts that, because the Town knew of the hazard posed by the swing and
took no action to remove it or post warning signs, the Town “willful[ly] . . .
                                        5
fail[ed] to guard or warn against a dangerous condition, use, structure or
activity,” RSA 212:34, V(a). We disagree.

       RSA 212:34 does not define the word “willful,” and we have never had
occasion to interpret “willful” in the context of this statute. At oral argument,
the plaintiff urged us to adopt the definition used by the Ninth Circuit Court of
Appeals in analyzing claims under California’s recreational use statute. See
Spires v. United States, 805 F.2d 832, 834 (9th Cir. 1986). Under that
definition, three elements must be present for the landowner’s actions to
constitute willful misconduct: “(1) actual or constructive knowledge of the peril
to be apprehended[;] (2) actual or constructive knowledge that injury is a
probable, as opposed to a possible, result of the danger[;] and (3) conscious
failure to act to avoid the peril.” Id. (quotation omitted). By contrast, the Town
argues that we should rely upon our previous interpretation of “willful” conduct
in the context of a claim for liquidated damages under RSA chapter 275,
concluding that willful means “a voluntary act committed with an intent to
cause its results.” Ives v. Manchester Subaru, Inc., 126 N.H. 796, 801 (1985).
Alternatively, the Town asserts that, even if we were to adopt the Ninth
Circuit’s more expansive definition of willful conduct, the Town would still
prevail. We need not resolve this question of statutory interpretation because
we agree with the Town that it prevails even under the Ninth Circuit’s
definition.

       Here, even if we assume, without deciding, that the plaintiff’s pleadings
established elements one and three of the Ninth Circuit’s definition of willful
conduct, we agree with the trial court that the plaintiff did not allege sufficient
facts to establish the second element — that the Town had “actual or
constructive knowledge that injury [was] a probable, as opposed to a possible,
result of the danger.” Spires, 805 F.2d at 834 (quotation omitted; emphases
added). In his complaint, the plaintiff alleged that: the Town acknowledged
that the rope swing was a hazard; the hazardous nature of the rope swing was
brought to the Board’s attention on three separate occasions; and the Town did
not warn patrons of the hazard, or otherwise take any action to abate the
hazard. He claims that these allegations are sufficient to show that the Town
had actual or constructive knowledge that Christopher’s injuries were a
probable result of the rope swing. We are not persuaded.

      An allegation that a landowner knew about a particular hazard and did
nothing is insufficient to establish that the landowner knew or should have
known that injury would probably result from that hazard. Cf. Collins, 17 F.3d
at 4-5 (holding that fact that dock was installed in shallow water was not
enough to infer that defendants “consciously disregarded a probability that
someone would be injured by diving from the dock”). At most, such allegations
sound in negligence. See id. at 5 (concluding that evidence that landowner
knew that dock was installed in shallow water, established, at most, a
negligence claim). Therefore, even assuming that the Spires definition applies,
                                         6
we conclude that the plaintiff’s allegations are insufficient as a matter of law to
establish that the Town acted “willfully.” We find no error in the trial court’s
ruling on this issue.

       The plaintiff next argues that the trial court erred when it found that he
alleged insufficient facts to show that Christopher suffered injury as a result of
the Town’s intentional acts. See RSA 212:34, V(d) (providing that RSA 212:34
does not limit liability of landowners “[w]hen the injury suffered was caused by
the intentional act of the landowner”). Although RSA 212:34 does not define
“intentional act,” see RSA 212:34, I, V, both parties argue that we should
interpret “intentional act” under RSA 212:34 in the same fashion as we did
when construing the Workers’ Compensation Law: for a tort to be an
“intentional tort” the tortfeasor must act with the knowledge that “his conduct
[is] substantially certain to result in injury.” Thompson v. Forest, 136 N.H.
215, 220 (1992) (citing Restatement (Second) of Torts § 870, at 280 (1979)).
Because the parties agree on this definition, we assume, without deciding, that
it applies here.

       The plaintiff argues that the Town’s conduct constituted an intentional
act for the same reasons he asserts the Town’s conduct was willful — because
the Town acknowledged that the rope swing was a hazard, was warned about
that hazard on three occasions between 2012 and 2015, did nothing to remove
it, and did not post warning signs. We disagree.

       The plaintiff’s allegations are insufficient to demonstrate that the Town
had actual or constructive knowledge that its conduct was substantially certain
to result in injury. See id. (“The mere knowledge and appreciation of a risk —
something short of substantial certainty — is not intent.” (quotation and
brackets omitted)). At most, the plaintiff’s allegations — that the Town was
aware of a hazardous condition or activity and failed to act — sound in
negligence. See id. (concluding that allegations that defendant disregarded a
substantial risk and failed to act sound in negligence). Accordingly, we hold
that the trial court did not err when it found that the plaintiff alleged
insufficient facts to show that the Town’s conduct was willful or intentional.

       Finally, the plaintiff argues that the trial court erred when it denied the
plaintiff’s request to postpone ruling on the Town’s motion to dismiss so that
discovery could proceed. Decisions concerning pretrial discovery are within the
sound discretion of the trial judge. N.H. Ball Bearings v. Jackson, 158 N.H.
421, 429 (2009). We review a trial court’s rulings on the management of
discovery under an unsustainable exercise of discretion standard. Id. To
establish that the trial court erred, the plaintiff must demonstrate that the trial
court’s ruling was clearly untenable or unreasonable to the prejudice of his
case. See id.



                                         7
      The plaintiff asserts that the trial court erred when it denied his request
to postpone ruling on the motion to dismiss to allow discovery because
discovery on certain topics would allow him “to demonstrate that
[Christopher’s] injury was not just [a] possible, but [a] probable” result of the
rope swing hazard. Again, we are not persuaded.

        “The underlying purpose of discovery . . . is to reach the truth and to
reach it as early in the process as possible by narrowing the issues pertaining
to the controversy between the parties.” Sawyer v. Boufford, 113 N.H. 627, 628
(1973) (emphasis added); see also Bursey v. Bursey, 145 N.H. 283, 286 (2000)
(observing that the purpose of interrogatories is to “narrow the issues of the
litigation and prevent unfair surprise by making evidence available in time for
both parties to evaluate it and adequately prepare for trial” (quotation
omitted)). Pretrial discovery is designed to enable the parties to develop
evidence supporting the facts and legal claims alleged in the complaint, not to
afford the plaintiff an opportunity to cure a complaint that fails, as a matter of
law, to survive a motion to dismiss. See 4 G. J. MacDonald, Wiebusch on New
Hampshire Civil Practice and Procedure § 22.03, at 22-6 to 22-7 (4th ed. 2014)
(listing purposes of discovery, including to: facilitate preparation for trial
through access to information, narrow the issues that must be tried, thereby
shortening trial, avoid surprise at trial, and improve chances of settlement); cf.
ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993) (stating that plaintiff must be
given leave to amend “to correct perceived deficiencies [in the complaint] before
an adverse judgment has preclusive effect”).

      The trial court found, and we agree, that the plaintiff’s complaint fails, as
a matter of law, to allege sufficient facts to defeat the immunity provided by
RSA 212:34. Because discovery is not intended to provide the plaintiff with the
opportunity to obtain additional information that might cure deficiencies in the
complaint, the trial court did not err when it concluded that the plaintiff was
not entitled to discovery in this case.

      To the extent that the plaintiff contends that the trial court erred when it
refused to allow discovery to proceed because this court “has not yet directly
addressed whether the issue of statutory immunity under RSA 212:34 . . . can
be determined prior to the commencement of discovery,” he has not sufficiently
briefed that issue to warrant our review. Accordingly, we deem that argument
waived. See State v. Blackmer, 149 N.H. 47, 49 (2003).

                                                   Affirmed.

      DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.




                                         8
