Anthony Venti v. Town of Newport

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0657, Anthony Venti v. Town of
Newport, the court on August 10, 2017, issued the following
order:

Having considered the briefs and oral arguments of the parties and the
record submitted on appeal, the court concludes that a formal written opinion
is unnecessary in this case. The plaintiff, Anthony Venti, appeals orders of the
Superior Court (Tucker, J.) dismissing his negligence and gross negligence
claims against the defendant, the Town of Newport (Town). We affirm.

The plaintiff sued the Town for injuries he sustained when he fell on a
Town-owned, outdoor tennis court. He attributed his fall to cracks in the
playing surface from which grass grew and sought damages based upon the
Town’s purported negligence and gross negligence in the upkeep of the tennis
court. The Town moved to dismiss the plaintiff’s complaint, arguing that,
under RSA 212:34, II (Supp. 2016), it did not owe him a duty of care for his
recreational use of the outdoor tennis court and that, even if such a duty
exists, RSA 508:14, I (2010) renders the Town immune from liability. The
Town also argued that the plaintiff failed to state a gross negligence claim
because he failed to allege “actual facts to support” it. The trial court granted
the Town’s motion.

The plaintiff subsequently filed a motion for leave to amend his
complaint so as to add factual allegations to his gross negligence claim. The
trial court granted him leave to do so. The trial court granted the Town’s
motion to dismiss the plaintiff’s amended complaint. This appeal followed.

In reviewing a trial court’s grant of a motion to dismiss, our task is to
determine whether the plaintiff’s allegations are reasonably susceptible of a
construction that would permit recovery. Coan v. N.H. Dep’t of Env’t Servs.,
161 N.H. 1, 4 (2010). We assume all facts pleaded in the complaint to be true
and construe all reasonable inferences from those facts in the plaintiff’s favor.
Id. Then, we engage in a threshold inquiry that tests the facts in the writ
against the applicable law, and if the allegations constitute a basis for relief, we
must hold that it was improper for the court to have granted the motion to
dismiss. Id. at 4-5.

The plaintiff first argues that the trial court erred when it determined
that, pursuant to RSA 212:34, II, the Town did not owe him a duty of care.
RSA 212:34, II provides, in pertinent part, that “[a] landowner owes no duty of
care to keep the premises safe for entry or use by others for outdoor
recreational activity or to give any warning of hazardous conditions, uses of,
structures, or activities on such premises to persons entering for such
purposes.” RSA 212:34, I(c) (Supp. 2016) defines an “outdoor recreational
activity” to mean “outdoor recreational pursuits including, but not limited to,
hunting, fishing, trapping, camping, horseback riding, bicycling, water sports,
winter sports, snowmobiling . . . , operating an OHRV . . . , hiking, ice and rock
climbing or bouldering, or sightseeing upon or removing fuel wood from the
premises.”

The plaintiff contends that RSA 212:34, II does not apply to this case
because playing tennis on an outdoor tennis court does not constitute an
“outdoor recreational activity” within the meaning of the statute. We decline to
address the merits of his argument because he has failed to demonstrate that
he preserved it for our review. It is a long-standing rule that parties may not
have judicial review of matters not raised in the forum of trial. Bean v. Red
Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). It is the burden of the appealing
party, here the plaintiff, to demonstrate that he raised all of his appellate
issues in the trial court. Id.

In its order dismissing the plaintiff’s original complaint, the trial court
stated that the plaintiff “does not dispute that tennis qualifies as an ‘outdoor
recreational activity.’” To the extent that the plaintiff disagreed with that
statement, it was incumbent upon him to file a motion to reconsider. The trial
court must have had the opportunity to consider any issues asserted by the
appellant on appeal; thus, to satisfy this preservation requirement, any issues
which could not have been presented to the trial court prior to its decision
must be presented to it in a motion for reconsideration. See LaMontagne
Builders v. Bowman Brook Purchase Group, 150 N.H. 270, 274 (2003); N.H.
Dep’t of Corrections v. Butland, 147 N.H. 676, 679 (2002). Because the record
fails to demonstrate that the trial court ever had the opportunity to consider
whether playing tennis on an outdoor tennis court constitutes an “outdoor
recreational activity” within the meaning of RSA 212:34, II, we consider the
issue unpreserved and decline to decide it in the first instance.

Even if the plaintiff had preserved his argument under RSA 212:34, II,
and even if we had resolved it in his favor, his remaining arguments fail. The
plaintiff next asserts that RSA 508:14, I, does not apply to this case. 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 . . . , shall not be liable for personal injury or
property damage in the absence of intentionally caused injury or damage.” The
plaintiff contends that RSA 508:14, I, does not apply because playing tennis on
an outdoor tennis court does not entail the “use” of “land for recreational
purposes.”

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 For the purposes of this appeal, we assume without deciding that an
outdoor tennis court does not constitute “land” within the meaning of RSA
508:14, I. Nonetheless, we conclude that, because the plaintiff used municipal
land to gain access to the tennis court in order to engage in an outdoor
recreational activity (tennis) provided by the municipality, RSA 508:14, I,
applies. See Dolbeare v. City of Laconia, 168 N.H. 52, 56-57 (2015) (holding
that RSA 508:14, I, renders the municipality immune from liability because the
plaintiff had used municipal land to access the playground for a recreational
activity); Coan, 161 N.H. at 6 (concluding that even if the word “land” pertains
only to the ground and not to water, because the injured parties gained access
to the water by using State-owned land and because their purpose was to
swim, which the parties agreed was a recreational activity, the State is immune
from liability under RSA 508:14, I).

The plaintiff next contends that “[i]f RSA 212:34 or RSA 508:14, I[,] are
held to apply to [him], those statutes are unconstitutional as applied . . . as
they deny him equal protection.” (Capitalization and bolding omitted.) We
decline to address the merits of this argument because the plaintiff has failed
to develop it sufficiently for our review. “[I]n the realm of appellate review, a
mere laundry list of complaints regarding adverse rulings by the trial court,
without developed legal argument, is insufficient to warrant judicial review.”
Douglas v. Douglas, 143 N.H. 419, 429 (1999) (citation omitted); see Keenan v.
Fearon, 130 N.H. 494, 499 (1988) (“off-hand invocations” of constitutional
rights supported by neither argument nor authority warrant no extended
consideration).

The plaintiff next asserts that RSA 507-B:2 (2010) applies. Under RSA
507-B:2:

A governmental unit may be held liable for damages in an
action to recover for bodily injury, personal injury or property
damage caused by its fault or by fault attributable to it, arising out
of ownership, occupation, maintenance or operation of all motor
vehicles, and all premises; provided, however, that the liability of
any governmental unit with respect to its sidewalks, streets, and
highways shall be limited as provided in RSA 231 and the liability
of any governmental unit with respect to publicly owned airport
runways and taxiways shall be limited as set forth in RSA 422.

The plaintiff contends that RSA 507-B:2 applies because: (1) the outdoor
tennis court constitutes “premises” within the statute’s meaning; and (2) he
has alleged a sufficient nexus between his negligence claim and the Town’s
ownership, occupation, or operation of the court. See Lamb v. Shaker Reg’l
Sch. Dist., 168 N.H. 47, 51 (2015) (concluding “that the RSA 507-B:2 exception
to municipal immunity requires a nexus between the claim and the

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governmental unit’s ownership, occupation, or operation of its physical
premises”).

However, the plaintiff does not discuss the interplay between RSA 507-
B:2, on the one hand, and the recreational use immunity statutes, RSA 212:34,
II and RSA 508:14, I, on the other hand. In other words, he does not argue, in
the alternative, that even if, as we have concluded, the recreational use
statutes apply, RSA 507-B:2 controls.

The trial court determined that the recreational use immunity statutes
“control over” RSA 507-B:2 because “they require a higher threshold for
liability” and because their provisions are “more specific” than “the general
municipal liability law.” On appeal, the plaintiff neither argues nor
demonstrates that the trial court’s analysis constitutes reversible error. See
Gallo v. Traina, 166 N.H. 737, 740 (2014). Although he raised this as a
question in his notice of appeal, he has not argued in his brief that the trial
court’s analysis constitutes reversible error; we, therefore, deem that argument
waived. See In re Estate of King, 149 N.H. 226, 230 (2003).

The plaintiff next argues that the trial court erred when it concluded
that, even after he amended his complaint, his allegations were insufficient to
state a claim for “gross negligence.” In fact, the trial court did not so rule.
Rather, after the plaintiff amended his complaint, the trial court assumed
without deciding “that he now has a properly supported claim for gross
negligence.” In any event, New Hampshire does not recognize a common law
action for “gross negligence.” Barnes v. N.H. Karting Assoc., 128 N.H. 102,
108-09 (1986); see Lee v. Chamberlin, 84 N.H. 182, 188 (1929) (explaining
that, in New Hampshire, “the doctrine of definitive degrees of negligence is not
recognized as part of our common law”). Thus, to the extent that the plaintiff
seeks to assert such a common law claim, and assuming without deciding that
the recreational use immunity statutes do not apply to such a claim, the trial
court did not err by dismissing it.

To the extent that the plaintiff’s assertion of a gross negligence claim is
based upon RSA 507-B:11 (2010), we, likewise, conclude that dismissing the
claim was not error. We are the final arbiter of the intent of the legislature as
expressed in the words of the statute considered as a whole. Sweeney v.
Ragged Mt. Ski Area, 151 N.H. 239, 241 (2004). We first examine the language
of the statute, and, if possible, we ascribe the plain and ordinary meanings to
the words used. Id. When the language of a statute is plain and
unambiguous, we need not look beyond it for further indication of legislative
intent. Id. Immunity provisions, such as RSA 507-B:11, are strictly construed
because they bar the common law right to recover. See id.

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 RSA 507-B:11 provides:

A municipality or school district, which without charge
permits any person to use a facility operated by the municipality or
school district for the purpose of skateboarding, rollerblading,
stunt biking, or rollerskiing, shall not be liable for personal injury
or property damage resulting from the person’s participation in
such activity, in the absence of gross and wanton negligence.

By its express terms, RSA 507-B:11 does not apply to the instant case. Even if
we assume without deciding that, as the plaintiff asserts, the tennis court was
a “facility,” he used it to play tennis, not to skateboard, rollerblade, stunt bike,
or rollerski.

The plaintiff argues that RSA 507-B:11 applies under the principle of
ejusdem generis. His reliance upon that principle is misplaced. Ejusdem
generis provides that, when specific words in a statute follow general ones, the
general words are construed to embrace only objects similar in nature to those
enumerated by the specific words. Dolbeare, 168 N.H. at 55. Here, the
enumerated activities in RSA 507-B:11 are just that: specific, enumerated
activities to which the statute applies. The plain language of the statute does
not demonstrate that the legislature intended the enumerated activities to
illustrate some broader concept, and, therefore, ejusdem generis does not
apply.

The plaintiff contends that “[i]t is difficult to accept” that a municipality
may be liable under RSA 507-B:11 when a person has used a municipal facility
“for the purpose of skateboarding, rollerblading, stunt biking, or rollerskiing,”
RSA 507-B:11, and the municipality has engaged in “gross and wanton
negligence,” id., but that the same municipality is not liable when a person has
used a municipal facility to play tennis. The plaintiff makes this policy
argument to the wrong forum as matters of policy are reserved to the
legislature. Dolbeare, 168 N.H. at 57.

We have reviewed the plaintiff’s remaining arguments and conclude that
they do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322
(1993). Any issues that the plaintiff raised in his notice of appeal, but did not
brief, are deemed waived. See In re Estate of King, 149 N.H. at 230.

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

Eileen Fox,
Clerk

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