It is unusual for the New Hampshire Supreme Court to consider the meaning of the same statute, or related set of statutes, three times in a single year, but they have done so by considering the meaning of the “recreational use” statutes, RSA 508:14 and RSA 212:34, in the cases of Estate of Jaycob Gordon-Couture v. Brown, decided May 23, 2005; Soraghan v. Mt. Cranmore Ski Resort, Inc., decided June 24, 2005; and Estate of Brody J. Kenison v. Andre Dubois, et al., decided July 18, 2005. In each of these cases, the plaintiff was either injured or killed while involved in a recreational activity occurring on land owned by some other person. In each case, the plaintiff had permission to be on the land, and claimed that the injury was the result of negligent maintenance of the property, or a failure to properly supervise those using the property. In each case, the defendants argued that the “recreational use” statutes provided them with immunity from liability, but in all three cases the argument failed to persuade the Court.
In reading the three cases together, the Court has now held that before the statutory immunity will apply, landowners must permit members of the general public to use the land for recreational purposes without charge.
Specifically, in the Estate of Jaycob Gordon-Couture case, the private landowner was not protected, because the general public was not invited to a private birthday party. In the Soraghan case, the private landowner was not protected, because the landowner was compensated for the use of the property. In the Kenison case, the landowner was immunized because it permitted the general public to use the land without charge, but a nonprofit snowmobile club whose member operated a snow-grooming machine that was struck by the plaintiff was not protected, because the club did not have the ability to allow or deny access to the land.
While none of these cases directly involves a municipality, the holdings of the cases are important because the “recreational use” statutes provide protection to political subdivisions that own recreational use property. In order for the immunity provisions to apply, the recreational property must be open to members of the general public, and there must be no charge for use of the property.
Governing bodies and recreation committees should read these cases carefully, and obtain advice from the municipal attorney before imposing rules that might serve to exclude the general public from a property, or which impose user fees. Either of these actions might serve to jeopardize immunity under these statutes. If the rules or the fees are required at a location, local officials should consider obtaining liability insurance coverage for the location.