Kenison v. Dubois7/18/2005
Argued: April 20, 2005
The plaintiffs, Terry W. Kenison and Diana L. Kenison, co-administrators of the Estate of Brody J. Kenison, appeal a ruling of the Superior Court (Vaughan, J.) granting summary judgment to the defendants, Andre Dubois and the Waumbek Methna Snowmobile Club (Waumbek). On appeal, the plaintiffs argue that the trial court erred in ruling that the defendants are immune from liability under RSA 508:14, I (1997), RSA 212:34, I (2000) (amended 2003) and RSA 215-A:34, II (2000). We reverse and remand.
The record reflects the following facts. On the morning of February 26, 2001, the decedent, Brody Kenison, was riding his snowmobile on the "Corridor 5" snowmobile trail in Jefferson, when he collided with a snow-trail grooming machine (snow groomer) owned by Waumbek and operated by Dubois, resulting in his death. "Corridor 5" is a recreational trail open year-round to the public for multiple uses, including use by snowmobiles. It runs from Portland, Maine, through New Hampshire, to Montreal, Quebec, and is owned by Portland Pipeline. Waumbek is a nonprofit snowmobile club that, for over twenty years, has voluntarily maintained, groomed and developed the portion of the "Corridor 5" trail where the collision took place. Waumbek receives compensation to recover its trail-grooming expenses through a grant-in-aid program sponsored by the State of New Hampshire.
After the plaintiffs brought suit, the defendants moved for summary judgment, arguing that they are immune from liability under the recreational use statutes, RSA 508:14, I, RSA 212:34, I, and RSA 215-A:34, II. The trial court granted the defendants' motion. This appeal followed.
When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Estate of Joshua T. v. State, 150 N.H. 405, 407 (2003). If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. Id.
On appeal, the plaintiffs first argue that the defendants are not immune from liability because they do not qualify as owners, lessees or occupants of land. Because we agree, we need not address the plaintiffs' other arguments on appeal.
RSA 508:14, I, provides:
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.
RSA 212:34 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.
II. An owner, lessee or occupant of premises who gives permission to another to hunt, fish, trap, camp, hike, use OHRVs as defined in RSA 215-A, sightsee upon, or remove fuelwood from, such premises . . . does not thereby:
(a) Extend any assurance that the premises are safe for such purpose, or
(b) Constitute the person to whom permission has been granted the legal status of an invitee to whom a duty of ca
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