Please note that this is an abstract of a decision of the U.S. District Court for the District of New Hampshire. It is subject to appeal within the federal court system, and is not binding upon the New Hampshire Supreme Court. It is offered solely for guidance as to how the federal court in our state has viewed the issues presented.
The plaintiff was walking along a public street in Portsmouth, and noticed a statue with a plaque in a public park. She entered the park to get closer to the statue, and was injured when she fell into a hole in the lawn that was obscured by grass. She sued the city for negligence, and the city sought summary judgment alleging it was immune from suit as a result of the “recreational use statutes”, RSA 508:14 and RSA 212:34. The plaintiff countered, arguing that these statutes do not protect municipalities, that her walking across a lawn did not constitute a “recreational activity”, and that even if the statutes did apply, the City had voluntarily assumed a higher standard of care for maintenance of the park and should be held liable.
In an extended discussion, the Court determined that municipalities were indeed intended to be beneficiaries of the statutory immunity protection based upon a plain reading of the text of the law. Further, pedestrian use of a park was found to be a form of “recreational activity”, and thus a form of activity covered by the statute. Finally, the Court summarily dismissed the argument of a higher assumed duty, since there was no allegation that the presence of the hole in the lawn was in any way an intentional act of the city.