
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2002                                    SEAN COLLINS,                                Plaintiff, Appellant,                                          v.                               PETER MARTELLA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Jeffrey  N. Roy  with whom Ravech,  Roy & Kaplan,  P.C., Arthur O.            _______________            ____________________________  _________        Gormley, III  and Gormley, Mayer  & Gormley,  P.C. were  on brief  for        ____________      ________________________________        appellant.            Stephen  H.  Roberts  with  whom  Thomas  G.  Ferrini,  Ouellette,            ____________________              ___________________   __________        Hallisey, Dibble  & Tanguay,  Robert C.  Dewhirst, Devine,  Millimet &        ___________________________   ___________________  ___________________        Branch, Christine Friedman and Bouchard  & Mallory, P.A. were on brief        ______  __________________     _________________________        for appellees.                                 ____________________                                  February 22, 1994                                 ____________________                      Per  Curiam.  The judgment of the district court is                      ___________            affirmed.  The court, essentially, adopts the language of the            district court's  order  dated August  11,  1993,  reproduced            herein.                                      O R D E R                                      _________                      Like  most   other  states,1   New  Hampshire   has            "recreational  use" laws limiting the common law liability of            certain  owners   and  occupants  who  make   their  property            available for recreational  use by  others.   In the  present            case,  Sean Collins  has sued  the owners  and managers  of a            private beach to  recover for injuries suffered  when he dove            into  shallow water  from  a  dock  installed at  the  beach.            Several of  the defendants  have moved  for summary  judgment            claiming the  protection of the  recreational use laws.   The            success  of  these motions  depends  upon:   (i)  whether the            recreational use statutes are inapplicable  because the beach            was developed land  that was not open to  the general public;            (ii)  whether any of  the defendants willfully  disregarded a            dangerous condition that  resulted in Collins'  injuries; and            (iii) whether either  "consideration" or a "charge"  was paid            for access to the beach.                                            ____________________            1.  See Klepper v. City of Milford, 825 F.2d 1440, 1444 (10th                ___ _______    _______________            Cir. 1987) ("Similar  legislation has been enacted  in nearly            all  of the  fifty states");  see also  Robin  Cheryl Miller,                                          ___ ____            Effect of Statute Limiting Landowner's Liability for Personal            _____________________________________________________________            Injury to Recreational User, 47 A.L.R. 4th 262 (1986).            ___________________________                                         -2-                      For  the reasons  that  follow,  I  hold  that  the            recreational  use laws are  applicable here.   Accordingly, I            grant defendants' motions for summary judgment.                                      I.  FACTS                                      I.  FACTS                                          _____                      On  August  5,  1989, Collins  was  invited  by his            cousin  to  swim at  the  Cobbett's  Pond  Park beach.    The            injuries giving  rise to  this action  occurred when  Collins            dove from a  dock at the  beach into shallow water  and broke            his neck.                      Title to  the beach is  held by the  Cobbett's Pond            Community  Trust ("Trust").   The beneficiaries of  the Trust            are the  residents of Cobbett's  Pond Park, all of  whom also            have  a deeded  right of  access  to the  beach.   Defendants            William  Donovan,  William  Benkoski, and  Oliver  Tarr  were            appointed  trustees  of  the  Trust in  1958.    Although the            trustees have  not been  involved in  the  management of  the            beach  for  several years,  the Trust  has not  been formally            dissolved.  Nor  have any of the defendants  been replaced as            trustees.                      When  Collins was injured, the beach was managed by            an unincorporated association known as The Community Group of            Cobbett's   Pond,  Inc.   ("Association").     Although   the            Association  at one  time had  been an  active  New Hampshire            corporation,  the corporation was  dissolved in 1977  and was                                         -3-            not reinstated until 1992.  Membership in the Association was            limited to residents  of Cobbett's Pond Park.   The Bylaws of            the  Association  required  members to  pay  annual  dues and            stated  that membership privileges  would be revoked  if dues            were not paid.                      The Association  was responsible for setting up and            maintaining the dock Collins dove  from when he was  injured.            The  Association was  also responsible  for establishing  and            enforcing beach  rules.   The beach was  posted as  a private            beach and  only residents  of Cobbett's Pond  Park and  their            guests were allowed to use it.                                   II.  DISCUSSION                                   II.  DISCUSSION                                        __________                      New  Hampshire has  two  recreational use  statutes            that may limit the liability  of the defendants in this case.            N.H.  Rev. Stat.  Ann. ("RSA")    212:34  (1989) provides  in            pertinent part:                      I.    An  owner,  lessee  or  occupant of                      premises  owes no  duty of  care to  keep                      such  premises safe  for entry or  use by                      others  for  hunting,  fishing, trapping,                      camping, water  sports, winter  sports or                      OHRVs  as defined  in RSA  215-A, hiking,                      sightseeing, or  removal of  fuelwood, 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 III hereof. . . .                      III.   This  section does  not limit  the                      liability which otherwise exists:                                         -4-                           (a)    For   willful,  or  malicious                      failure  to  guard  or   warn  against  a                      dangerous condition,  use, structure,  or                      activity; or                           (b)  For injury suffered in any case                      where  permission  to hunt,  fish,  trap,                      camp, hike, use for  water sports, winter                      sports  or use of OHRVs as defined in RSA                      215-A, sightsee,  or remove  fuelwood was                      granted for consideration  other than the                      consideration,  if  any,   paid  to  said                      landowner by the state . . . .                      RSA 508:14 (Supp. 1992) provides in pertinent part:                      I.    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.                      The  trustee defendants  have  been  sued in  their            capacity   as  owners  of  the  beach,  and  the  Association            defendants have been sued as occupants.   Because Collins was            injured while engaged in  a "water sport" within the  meaning            of RSA 212:34 and a  "recreational use" within the meaning of            RSA  508:14, the defendants  claim that they  are entitled to            invoke both recreational use statutes.2                                            ____________________            2.  Plaintiff  half-heartedly  argues  that   RSA  580:14  is            inapplicable here  because he was injured in the water rather            than on  land.   Although the court  in Kanter  v. Combustion                                                    ______     __________            Engineering, 701 F. Supp. 943, 946  (D.N.H. 1988) declined on            ___________            this basis to apply RSA 508:14 to claims brought on behalf of            two men who  drowned while swimming and canoeing  at the base            of a dam,  that case is  distinguishable because Collins  was            injured while diving  from a dock attached to  the land owned            and operated  by the  defendants, whereas  the plaintiffs  in                                         -5-                      Collins  attacks   these  arguments   from  several            perspectives.  First,  he contends that the  recreational use            statutes  only protect owners of large, undeveloped tracts of            land who make their property available to the general public.            Since the  beach, in contrast,  is a developed tract  of land            that is open only to members of Cobbett's Pond Park and their            guests, Collins  argues that  the statutes  are inapplicable.            Second, Collins  contends that a factual dispute exists as to            whether  any of the defendants willfully caused his injuries.            Accordingly,   he  argues  that   the  applicability  of  the            recreational use laws  cannot be determined through  a motion            for  summary judgment.   Finally,  Collins  argues that  both            statutes  are inapplicable  because  the  dues  paid  by  the            Association  members and  the  payments  Cobbett's Pond  Park            landowners  made  to  purchase  their  lots  constitute  both            "consideration" under  RSA 212:34  and a  "charge" under  RSA            508:14.  I address each argument in turn.3                                            ____________________            Kanter did not gain access  to the water from the defendant's            ______            property.            3.  In  assessing the parties' motions, I apply the following            principles.    Summary   judgment  is  appropriate  "if   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 judgment as a matter            of law."  Fed.  R. Civ. P. 56(c).   A "genuine" issue is  one            "that  properly can  be resolved  only  by a  finder of  fact            because  [it] may reasonably  be resolved in  favor of either            party."  Anderson  v. Liberty Lobby, Inc., 477  U.S. 242, 250                     ________     ___________________            (1986); accord  Garside v. Osco  Drug, Inc., 895 F.2d  46, 48                    ______  _______    ________________            (1st Cir. 1990).   A "material" issue is  one that "affect[s]                                         -6-                      A.   Do the Recreational Use Statutes Apply Only to                           ______________________________________________                           Large,  Undeveloped  Tracts of  Land  That Are                           ______________________________________________                           Open to the General Public?                           ___________________________                      Collins cites various cases  in other jurisdictions            for  the  proposition  that  recreational  use  statutes  are            applicable only to large, undeveloped tracts of land that are            open to the general public.  See Hallacker v. National Bank &                                         ___ _________    _______________            Trust Co. of  Gloucester, 806 F.2d 488, 491  (3rd Cir. 1986);            ________________________            Miller v. United  States, 597 F.2d 614, 617  (7th Cir. 1979);            ______    ______________            Wyner v. Holmes, 412 N.W. 2d 216, 217 (Mich. 1987).  Although            _____    ______            I   accept   Collins'   contention   that   New   Hampshire's            recreational  use  statutes  should  be  narrowly   construed            because they are in derogation  of the common law, see, e.g.,                                                               ___  ____            Kanter v.  Combustion Eng'g,  701 F.  Supp. 943,  946 (D.N.H.            ______     ________________            1988); State  v. Hemsdorf, 135  N.H. 360, 363 (1992),  I will                   _____     ________            not   read  into  these   statutes  a  limitation   that  the            legislature  left  out.   Unlike  similar  statutes  in other            jurisdictions and the model recreational use statute proposed            by  the Council  of  State  Governments,  the  New  Hampshire            recreational   use  statutes  do  not  contain  any  language                                            ____________________            the outcome of the suit . . . ."   Anderson, 477 U.S. at 248.                                               ________            The  burden is upon  the moving party  to aver the  lack of a            genuine,  material factual issue,  Finn v.  Consolidated Rail                                               ____     _________________            Corp., 782  F.2d 13, 15 (1st  Cir. 1986), and  the court must            _____            view  the record  in the  light  most favorable  to the  non-            movant, according  the non-movant  all beneficial  inferences            discernable  from the  evidence.   Oliver  v. Digital  Equip.                                               ______     _______________            Corp., 846 F.2d  103, 105 (1st Cir.  1988).  If a  motion for            _____            summary  judgment is properly supported, the burden shifts to            the non-movant to show that  a genuine issue exists.  Donovan                                                                  _______            v. Agnew, 712 F.2d 1509, 1516 (1st Cir. 1983).               _____                                         -7-            suggesting a  requirement  that the  land  at issue  must  be            either undeveloped  or open to  the general public.   Compare                                                                  _______            RSA  508:14 and 212:34  with Conn. Gen.  Stat.   52-557(g)(a)                        ___         ____            ("an owner  of land  who makes all  or any  part of  the land            available to the public . . .  owes no duty of care . . . .")            and  The Council of  State Governments, Public  Recreation on            ___            Private  Lands:   Limitations on  Liability, Suggested  State            Legislation, Volume  XXIV (1965) ("the purpose of this act is            to  encourage owners  of land  to make  land and  water areas            available to the public for recreational  purposes . . . .").            Accordingly,  Collins cannot rely  on this argument  to avoid            summary judgment.                      B.   Did  Any  of  Defendants  Wilfully  Cause  the                           ______________________________________________                           Plaintiff's Injuries?                           _____________________                      An owner or  occupant may not invoke RSA  212:34 if            plaintiff's injury was  caused by a "willful"  or "malicious"            failure to  warn or guard against the  activity that resulted            in the injury.  Collins  argues that a factual dispute exists            as to  whether the defendants  in this  case acted  wilfully.            Accordingly, he contends that the applicability of RSA 212:34            cannot be determined through a motion for summary judgment.                      RSA 212:34 does not define "willfully," and the New            Hampshire Supreme Court has not yet  determined what the word            means  in  the  context  of  this  statute.    However,  when            interpreting  RSA 275:42  IV, which  provides for  liquidated            damages against an  employer who "willfully and  without good                                         -8-            cause" failed to pay wages  within 72 hours of discharging an            employee, the Court  defined "willfully" as "a  voluntary act            committed  with an  intent to  cause its  results."   Ives v.                                                                  ____            Manchester Subaru, Inc.,  126 N.H. 796, 801  (1985) (citation            _______________________            omitted);  see  also  Appeal  of  New  Hampshire  Sweepstakes                       ___  ____  _______________________________________            Comm'n, 130 N.H. 659, 664 (1988) (declaring that "willful" is            ______            synonymous with intentional or deliberate).                      Collins  argues  for  a  somewhat  more   expansive            definition of willfully.  Specifically, he urges the adoption            of the definition used by  the Ninth Circuit Court of Appeals            when it  construed  California's  recreational  use  statute.            Under  the California  statute, the Ninth  Circuit determined            that landowners will be found to have acted willfully if they            acted with "(1) actual or constructive knowledge of the peril            to  be apprehended; (2) actual or constructive knowledge that            injury was is  a probable, as opposed to  possible, result of            the danger;  and (3) conscious  failure to avoid  the peril."            Spires v.  United States, 805  F.2d 832, 834 (9th  Cir. 1986)            ______     _____________            (citing Cal. Civ. Code   846 (West 1985)).                      Even using the Ninth Circuit's definition,  Collins            has presented  insufficient evidence of willfulness  to allow            this issue  to be decided by a jury.   Collins notes that the            dock was installed in shallow  water and from this fact alone            asks the court  to infer  that one or  more of the  defendant            consciously disregarded  a probability that  someone would be                                         -9-            injured by diving from  the dock.   I decline to accept  this            argument.   At best,  such evidence  establishes a  basis for            Collins'  claim that  the defendants were  negligent.   It is            simply  insufficient,   standing  alone,  to   establish  the            existence  of a genuine dispute as  to whether defendants had            actual  knowledge  that an  injury  such as  the  one Collins            suffered was a probable result of the installation and use of            the dock.                      C.   Was Either "Consideration" or  a "Charge" Paid                           ______________________________________________                           for Access to the Beach?                           ________________________                      Collins argues  that dues  paid by  members of  the            Association  and the payments  made by residents  of the Park            when  they purchased  their  lots constitute  "consideration"            under RSA  212:34 and a  "charge" under  RSA 508:14.   I find            neither argument persuasive.                      Although  Collins contends  that  residents of  the            Park were required to pay dues to the Association in order to            use the  beach, he  has failed to  point to  any evidence  to            support  this claim.   The  deed conveying  the beach  to the            Trust provides that the beach "is to be kept open forever for            the benefit  of lot owners  and their guests."   None of  the            documents produced  by either side suggest that access to the            beach may be denied to lot owners who fail to pay dues to the            Association.   Although the Bylaws of the Association provide            that a failure  to pay dues will result in  the suspension of            membership privileges,  access to the beach is  a right which                                         -10-            residents  of Cobbett's Pond  Park enjoy whether  or not they            are members of the Association.   Accordingly, the payment of            Association dues cannot  be either consideration or  a charge            paid in  exchange for access  to the beach.   Cf. Simchuk  v.                                                          __  _______            Angel Island  Community Ass'n, 253  Mont. 221, 226,  833 P.2d            _____________________________            158, 161 (1992)  (dues charged by Homeowners  Association for            access  to  recreational  areas managed  by  the  Association            constitutes consideration barring application of recreational            use statute to claim brought by an injured guest of  a member            of the association).                      While it is undisputed that  access to the beach is            limited to  residents of  the Park and  their guests,  I also            cannot  accept Collins'  argument  that  the  price  paid  to            purchase a lot  in the Park constitutes  either consideration            or a charge  for access to the  beach.  If the  price paid to            become an owner of property  devoted in part to  recreational            uses  also  constitutes  consideration  for  access   to  the            property   that  prevents   the   owner  from   invoking  the            recreational use  statutes, the  statutes  would be  rendered            meaningless because every owner would  be deemed to have paid            consideration for access to the property by virtue of  having            paid to  purchase the  property.   The New  Hampshire Supreme            Court  would not interpret these exceptions  so broadly as to            render  the statutes meaningless.   New  England Brickmaster,                                                _________________________            Inc. v. Salem, 133 N.H. 655, 663 (1990).  Moreover, I  see no            ____    _____                                         -11-            reason why a different result would apply here simply because            the landowners paid for a  deeded right of access rather than            an ownership interest in the beach.                      Finally,  even if payments  made to purchase  a lot            with deeded access rights to the beach could in some sense be            deemed consideration  or a  charge for  access to the  beach,            such payments  do not  render the  recreational use  statutes            inapplicable because  none of the defendants  benefitted from            the payments.  The  obvious purpose of the  consideration and            charge  exceptions  is  to prevent  owners  and  occupants of            property  from avoiding liability for their own negligence if            they receive a benefit in exchange for making their  property            available for recreational  uses by others.   This purpose is            not served by denying owners and occupants the  protection of            the recreational  use statutes  simply because  a benefit  is            paid to  an unconnected  third party.   Accordingly,  Collins            cannot  rely on  the consideration  and  charge exception  to            avoid the application of the recreational use statutes.                                    I.  CONCLUSION                                    I.  CONCLUSION                                        __________                      Defendants have demonstrated both  that no material            facts are  in genuine dispute  and that they are  entitled to            judgment  as a  matter  of  law.    Accordingly,  Defendants'            Motions for Summary  Judgment (document nos.  17 and 20)  are                                         -12-            granted.  The Clerk's Office is directed to enter judgment in            accordance with this Order.                      SO ORDERED.                                           Paul Barbadoro                                           United States District Judge            August 11, 1993                                         -13-
