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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Belknap

No. 2014-703

MARGARET DOLBEARE

v.

CITY OF LACONIA

Argued: April 9, 2015

Opinion Issued: July 15, 2015

Normandin, Cheney & O’Neil, PLLC, of Laconia (William D. Woodbury on 

the brief and orally), for the plaintiff.

Maggiotto & Belobrow, PLLC, of Concord (Corey Belobrow on the brief 

and orally), for the defendant.

DALIANIS, C.J. This is an interlocutory appeal by the defendant, the 

City of Laconia (City), from a decision of the Superior Court (Smukler, J.) 

denying its motion to dismiss negligence and nuisance claims brought by the 

plaintiff, Margaret Dolbeare. The trial court transferred two questions for our 

review:

(1) Did the trial court err in finding that the City owed Plaintiff 

a duty, despite RSA 212:34, II?
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(2) Did the trial court err in holding that the City was not 

immune from suit under RSA 508:14, I, because “using 

playground equipment is not . . . recreation within the meaning of 

RSA 508:14”?

Because the parties do not argue otherwise, and for the purposes of answering 

the transferred questions, we assume, without deciding, that RSA 212:34, II 

(Supp. 2014) and RSA 508:14, I (2010) apply to municipalities. We answer 

both questions in the affirmative as they relate to the plaintiff’s negligence 

claim. The plaintiff also argues that, notwithstanding either RSA 212:34, II or 

RSA 508:14, I, the City is liable for its alleged negligence under RSA 507-B:2 

(2010). Because the trial court did not address this argument, we decline to do 

so in the first instance. Accordingly, we vacate the trial court’s order denying 

the City’s motion to dismiss the plaintiff’s negligence claim.

To the extent that the transferred questions refer to the plaintiff’s 

nuisance claim, we decline to answer them. See Sup. Ct. R. 8. Although the 

City argues that the plaintiff has failed to state a claim for nuisance, the trial 

court neither ruled upon that argument nor transferred a question regarding it. 

Because the trial court has not yet decided whether the plaintiff has stated a 

claim for nuisance, we decline, at this juncture, to determine whether the City 

would be entitled to immunity under RSA 212:34, II or RSA 508:14, I, in the 

event that she stated such a claim. See id.

We accept the statement of the case and facts as presented in the 

interlocutory appeal statement and rely upon the record for additional facts as 

necessary. See Lawrence v. Philip Morris USA, 164 N.H. 93, 95 (2012). The 

City owns and maintains Opechee Park. In May 2012, the plaintiff was

enjoying the playground equipment at the park with her granddaughter. As 

the plaintiff approached the park swings, her foot caught under the edge of a 

mat. She fell and suffered injuries.

The plaintiff filed a complaint against the City, alleging negligence and 

nuisance claims. The City moved to dismiss, arguing that the two recreational 

use immunity statutes, RSA 212:34, II and RSA 508:14, I, immunized it from 

the plaintiff’s claims. The trial court denied the City’s motion. The City 

unsuccessfully sought reconsideration, and this interlocutory appeal followed.

Because the issues on appeal involve statutory interpretation, our review 

is de novo. Atwater v. Town of Plainfield, 160 N.H. 503, 507 (2010). We are 

the final arbiter of the intent of the legislature as expressed in the words of the 

statute considered as a whole. Coan v. N.H. Dep’t of Env’t Servs., 161 N.H. 1, 

5 (2010). We first examine the language of the statute, and, when possible, 

ascribe the plain and ordinary meanings to the words used. Id. Statutes, such 

as RSA 212:34 (2010) and RSA 508:14, I, which are in derogation of the 
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common law right to recover, are strictly construed. See Estate of GordonCouture v. Brown, 152 N.H. 265, 266-67 (2005).

We first address whether RSA 212:34, II applies to the plaintiff’s 

negligence claim. The parties dispute whether the use of playground 

equipment constitutes an “outdoor recreational activity” within the meaning of 

RSA 212:34, II. RSA 212:34, II, states that, except as provided in RSA 212:34, 

V, 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.” (Emphasis added.) RSA 212:34, V provides that 

the immunity granted by RSA 212:34, II does not apply when the landowner 

has given permission to use the premises for outdoor recreational activity for a 

charge or “[w]hen the injury suffered was caused by the intentional act of the 

landowner.” RSA 212:34, V(b), (d). RSA 212:34, I(c) defines “[o]utdoor 

recreational activity” as “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 argues that “the use of man-made attractions, such as 

playground equipment,” does not constitute “outdoor recreational activity” 

under RSA 212:34, I(c). Although she agrees that the list of activities in RSA 

212:34, I(c) is not exhaustive, she asserts that “using a swing is not of the 

same class as those activities specifically enumerated in the statute,” and, 

thus, is excluded from the definition of an “outdoor recreational activity” under 

the doctrine of ejusdem generis. According to the plaintiff, RSA 212:34, II 

“clearly relieves landowners of a duty of care for the use of land only, not for 

injuries incurred as a result of [the] use of negligently constructed or 

maintained man-made attractions, such as playground equipment.”

The principle of 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. In the 

Matter of Hennessey-Martin & Whitney, 151 N.H. 207, 211 (2004). We 

conclude that the use of playground equipment is similar in nature to the 

activities enumerated in RSA 212:34, I(c), and thus, hold that the use of such 

equipment constitutes an “outdoor recreational activity” under RSA 212:34.

The use of playground equipment is an outdoor activity, like all of the 

activities enumerated in RSA 212:34, I(c). Like many of the activities listed in 

the statute, the use of playground equipment involves the use of man-made 

equipment. See RSA 212:34, I(c) (referring to hunting, trapping, bicycling, 

snowmobiling, and operating an off-highway recreational vehicle). Although 

the playground equipment here was supplied by the landowner, rather than 
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the user, this distinction is immaterial. On its face, the statute is not limited to 

outside recreational activities involving equipment provided by the user.

To the extent that the plaintiff argues that playground equipment 

constitutes a “structure” that is on land, as opposed to land in its natural 

state, we observe that the statute specifically applies to “structures.” It relieves 

a landowner from liability for failing to warn “of hazardous . . . structures . . . 

on such premises to persons entering” the land for outdoor recreational 

purposes. RSA 212:34, II. Thus, we conclude that the use of playground 

equipment constitutes an “outdoor recreational activity” within the meaning of 

RSA 212:34, II.

We next address whether RSA 508:14, I, applies to the plaintiff’s 

negligence claim. RSA 508:14, I, provides that 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.” Here, the parties 

have stipulated that the plaintiff was not charged for the use of the park and 

that the park was open to the general public.

The plaintiff argues that, even if the use of playground equipment is 

“recreational,” it is not a “recreational activity” within the meaning of RSA 

508:14, I, because it does not constitute the “use [of] land.” Relying upon our 

decision in Coan, 161 N.H. at 5-6, the City argues that, because the plaintiff 

used “land” to access playground equipment, she was using “land for 

recreational purposes.” We agree with the City that Coan is dispositive.

In that case, two boys drowned while swimming in Silver Lake, which 

was downstream from a dam owned by the New Hampshire Department of 

Environmental Services (DES). Coan, 161 N.H. at 3-4. One appeal issue was 

whether DES was immune from liability under RSA 508:14, I. Id. at 5. We 

held that, even if the word “land” pertains only to the ground and not to water, 

because the boys gained access to the water by using State-owned land and 

because their purpose was to go swimming, which the parties agreed was a 

recreational activity, RSA 508:14, I, applied and DES was entitled to immunity. 

Id. at 6.

Like the boys in Coan who used State-owned land to access the water for 

a recreational activity (swimming), here, the plaintiff used the City’s land (the 

park) to access the playground for a recreational activity (using playground 

equipment). Although the plaintiff relies upon RSA 508:14, III to support her 

construction of RSA 508:14, I, we conclude that her argument does not 

warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). To 

the extent that the plaintiff relies upon public policy to support her 

construction of RSA 508:14, I, she makes her argument in the wrong forum, as 
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matters of public policy are reserved for the legislature. Petition of Kilton, 156 

N.H. 632, 645 (2007).

For all of the above reasons, therefore, we conclude that the trial court 

erred when it determined that the use of playground equipment was neither an

“outdoor recreational activity” within the meaning of RSA 212:34, II, nor the 

“use [of] land” within the meaning of RSA 508:14, I. Accordingly, we vacate its 

order denying the City’s motion to dismiss the plaintiff’s negligence claim and 

remand for further proceedings consistent with this opinion.

Vacated and remanded.

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.