Recreational Use Immunity Statute, RSA 212:34, Protects Town from Personal Injury Claim

Jay Kurowski f/n/f Christopher Kurowski v. Town of Chester
New Hampshire Supreme Court No. 2016-0406
Thursday, September 21, 2017

The New Hampshire Supreme Court ruled that RSA 212:34 protected the Town of Chester from a personal injury claim arising out of injuries suffered by a minor (named Christopher) while he was participating in the use of a rope swing at a Town pond and conservation area. 

The Town owns and maintains the Wason Pond Conservation and Recreation Area, which includes walking paths and Wason Pond, which is open to the public free of charge. In 2012 the select board was told at a meeting by a resident about safety concerns about a rope swing at Wason Pond.  No specific action was taken by the Board at that time.  Similar safety concerns were raised at select board meetings in 2013 and 2015.  The Town never removed the swing or posted warning signs at the pond.  Christopher was injured in 2015 arising out of the use of the rope swing. 

After the lawsuit was dismissed by the Superior Court, Christopher’s father argued to the Supreme Court that the claim should not have been dismissed under RSA 212:34 because: (1) Christopher’s conduct was not an “outdoor recreational activity” under RSA 212:34, I(c), and, (2) that two exceptions to immunity under RSA 212:34, V(a) and RSA 212:34, V (d) applied to the Town.

In ruling the activity related to the rope swing was an outdoor recreational activity the Court found that the use of equipment not supplied by the Town was not a relevant factor as many of the enumerated outdoor recreational activities in 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.  In ruling that the Town could not be found to have willfully failed to guard or warn against a dangerous condition, use, structure or activity, RSA 212:34, V(a), the Court stated that it was necessary to demonstrate that the Town had actual or constructive knowledge that an injury was probable, as opposed to a possible, result of the danger posed by the rope swing.  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.

The Court also rejected the argument that the Town was guilty of an intentional act that caused the injury to Christopher.  The Court defined an intentionally caused injury as one where the person who causes the harm acts with the knowledge that his conduct is substantially certain to result in injury. The fact that 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, did not amount to causing harm in an intentional fashion.  

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