The facts of the case are tragic. A nine-year-old boy and a 20-year-old man were killed after becoming caught in deadly water currents in Silver Lake in Belmont. The lake is adjacent to State-owned land and is downstream from a dam operated by the Department of Environmental Services (DES). The dam is also part of a hydroelectric generating facility leased to Algonquin Power Systems, Inc. DES had increased the flow through the dam into the lake that day, knowing that people swam in Silver Lake and that swimming there could become dangerous when the flow from the dam was increased. No warning signs were posted, nor were any barriers placed to prevent people from swimming. The plaintiffs’ estates sued both Algonquin and the State.
One issue was whether Algonquin could be held liable for negligence. The plaintiffs needed to prove, among other things, that Algonquin owed the boys a duty to protect them. As a general matter, a person who does an affirmative act has a duty to exercise reasonable care to protect others against an unreasonable risk of harm arising out of that act. On the other hand, a party who simply fails to act only has a duty when there is a special relationship between the actor and the other person. Algonquin had failed to act in this case, the plaintiffs claimed, by not warning swimmers or placing safety devices on the shore. However, the plaintiffs had not demonstrated any special relationship between Algonquin and the boys. “The mere fact that an actor realizes or should realize that action … is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” As a result, Algonquin could not be held liable for negligence, “irrespective of the gravity of the danger.”
In the other major issue in the case, the State claimed it was entitled to recreational immunity under RSA 508:14, I, because the accident occurred on recreation land used free of charge. RSA 508:14, I provides that 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, is not liable for personal injury or property damage in the absence of intentionally caused injury or damage. The plaintiffs claimed that immunity did not apply because the statute provides immunity for the use of “land” but not water, where the injuries here occurred. The Court did not find it necessary to answer that question. Instead, noting that the statute does not require the injury itself to have occurred on land, the Court decided that it was sufficient for the boys to have crossed over State land to reach the water. Access to the water for swimming is a recreational activity within the meaning of the statute.