Decision explains the liability in New Hampshire of a land owner allowing kids to sled on their landPosted: October 15, 2012
Reed v. , Inc., 2010 DNH 18; 706 F. Supp. 2d 180; 2010 U.S. Dist. LEXIS 9236
In this decision, the plaintiff was an 11-year-old Boy Scout a camping trip. During the camp out the trip went sledding on a hill at a local Boy Scout Council camp. The
camp was not owned by a council that was not the chartering council of the scout troop. While sledding, the boys built a jump. Around lunch time the adult leaders left to go prepare lunch leaving the scouts unattended.
The court noted that this was in violation of the Guide to Safe Scouting, a set of procedures developed by the BSA to keep kids safer. (Safer, kids get hurt, it is part of growing up.)
The plaintiff sued the council that owned the camp, Boston Minuteman Council, the landowner and the National Council, BSA. The National Council grants charters to local groups, councils in a specific geographic area to offer the Scouting program to youth in their area. The local council, in this case Daniel Webster Council issued a charter to the group of parents who ran the troop the plaintiff was part of.
The court took note of the fact that neither volunteers scoutmasters nor the local council Daniel Webster Council.
The plaintiff was only 11 and the youngest scout on the camp out. He had watched other scouts go over the jump and fall. He had gone over the jump once when the scoutmaster was present and fell on his back but did not suffer any injuries. After the adult, volunteers left the area the plaintiff went over the jump again breaking his leg.
Summary of the case
The case has two major parts in the decision. The first is the decision over the land owner’s liability. The second is a motion in limine over the future or potential earnings and medical bills of the plaintiff. For the purpose of this article, the second part of the discussion will be ignored because it is not relevant.
The first point of interest in this decision is one sentence. The plaintiff did not sue until after he had turned age 18. Under the law a minor, someone under the age of 18 can sue by and through their parents in most states, any time after their injury, or they can wait until they turn age 18 and sue then. The parental lawsuit has a statute of limitation, in NH two years, because it is an adult suit on behalf of the minor child. The minor child when he reaches the age of majority, 18, then also has two years to sue after turning age 18.
The defendant land owner filed this motion for summary judgment based on the New Hampshire Recreational Use statute and fact the risk was an open and obvious danger.
The New Hampshire recreational use statute protects land owners from lawsuits brought by people who are using the land for free. The exception to the rule is if the injury to the plaintiff was caused intentionally by the land owner.
508:14 Landowner Liability Limited.
I. 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.
II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.
III. An owner of land who permits another person to gather the produce of the land under pick-your-own or cut-your-own arrangements, provided said person is not an employee of the landowner and notwithstanding that the person picking or cutting the produce may make remuneration for the produce to the landowner, shall not be liable for personal injury or property damage to any person in the absence of willful, wanton, or reckless conduct by such owner.
The plaintiff argued the defendant land owner should be held liable because only scouts were allowed on the land; therefore, the land was not open to the public, part of the statute. Court held that the statute had latitude or a land owner would lose all control over his or her land. The court held that the landowner could not be held liable because it was protected by the New Hampshire recreational sue statute.
The second defense brought by the landowner was the “open and obvious” defense.
“a defendant generally has no duty to warn and instruct a plaintiff of obvious dangers about which the plaintiff’s knowledge and appreciation equal the defendant’s.”
The “open and obvious” defense is similar to an assumption of risk defense. If you can see or understand the dangerous situation on the land, then the landowner has no duty to warn you of the dangers.
The open and obvious defense requires that the dangerous condition be recognizable by the reasonable person. In the case of a minor the reasonable person test is changed to a reasonable person of the same age, intelligence and experience. A jump created by the other youth would have been obvious to the plaintiff even at age 11. Jumps are made to throw people into the air. Many courts have found that sledding and snowboarding over jumps is something a person of the plaintiff’s age, intelligence and experience should recognize so the court found that the defendant did not owe a duty to warn of the dangers of sledding or snowboarding over a jump.
So Now What?
This is an interesting and odd case. Not suing the local council or the scoutmasters is confusing. Waiting until the plaintiff turned 18 is even more confusing.
However, you can gain a few things from this case.
1. If you are a volunteer unit leader understand the rules by which the parent organization expects you to operate and do not violate those rules.
2. If you are a landowner who knows that people use your land for free without charging them for it, do two things.
a. Make sure your state recreational use statute is broad enough to protect you from litigation.
b. Make sure your liability policy provides you with coverage for allowing people to use your land.
Please, do NOT stop people from using your land, Please!
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