New Hampshire High Court Limits Landowners’ Recreational Use Immunity

By Andrew G. Simpson | April 5, 2022

New Hampshire landowners who make their properties available to the public for recreation at no charge do not enjoy complete immunity under the state’s recreational use statute. Landowners have immunity from negligence only where the victim of negligence is actually using their property.

In an opinion issued last Friday, New Hampshire’s Supreme Court overturned a lower court that granted immunity to the landowner—in this case, the state — in a case where a woman standing on federal land was injured by the collapse of a wall of an adjacent fort that was owned and maintained by the state.

The justices said the statute granting immunity should be interpreted strictly. The law’s plain language states that immunity from liability from personal injury is limited to injuries incurred by those who “use” land for recreational purposes free of charge.

According to the facts relayed by the court, in June 2018, the plaintiff, Janet Bisceglia, and her family visited a historic lighthouse situated on land in New Castle, which is owned by the federal government. That federal land is adjacent to Fort Constitution, which is owned and operated by the state. While the plaintiff was standing on the federal land next to the outer wall of Fort Constitution, a portion of the wall fell on top of her, causing her substantial injuries.

Bisceglia sued the state for negligence.

The trial court granted summary judgment for the state. The court determined that, because the state held Fort Constitution out to the public at no charge and the wall “was maintained as part of the historic site for the use and enjoyment of the public,” the law shields the state from liability, regardless of whether the plaintiff was physically on the state’s property at the time of the injury.

On appeal, the plaintiff argued that the trial court erred in ruling that the statute bars her suit when it is undisputed that she never entered upon or used the state’s property in any way.

The state argued that “recreational use immunity does not turn on whether a particular individual was using the subject property for recreational purposes at the time he or she was injured,” but, rather, “the operative question is whether the landowner has permitted members of the general public to use the land for recreational purposes

But the high court rejected the state’s argument.

The recreational use statute at issue (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.

The high court noted that the purpose of the law is to “encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability towards persons entering thereon for such purposes.”

The statute limits the liability of landowners who make their land available for public recreational uses “on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return,” according to the court.

However, citing legislative intent and previous court rulings, the high court found that the language of the statute limits its applicability to on-premises injuries and does not eliminate all common law duties of landowners toward all entrants on land.

“To interpret the statute in the manner suggested by the State would require that we add language that the legislature did not see fit to include,” the judges wrote.

Because it is undisputed that the plaintiff did not use the state’s land, the trial court erred in granting the state’s motion for summary judgment based on the recreational use statute, the stat’s high court concluded.

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