Landowner Immunity for Recreational Use Expanded

Session 2012, Chapter 214

Approved: June 13, 2012

Effective: June 13, 2012

New Hampshire has two recreational use statutes that provide immunity for landowners
who permit others to participate in recreational activities on their property for free. 

The first, RSA 508:14, is under the chapter of the N.H. Revised Statutes that
govern limitations of legal actions.  It grants immunity to an owner, occupant, or lessee of
land who without charge permits any person to use land for recreational purposes.

The second, RSA 212:34, comes under the chapter relating to fish and game laws. 
It provides immunity to an owner, lessee or occupant of premises who gives permission
to another to use the land for a number of enumerated activities, including hunting,
fishing camping and the use Off Highway Recreational Vehicles  (OHRVs)

Prior to January 2006, New Hampshire had a third statute, RSA 215:34, II providing
that OHRV operators may not maintain an action against “an owner, occupant, or lessee
of land” for injuries resulting from risks inherent to the use of OHRVs.  This statute
was repealed when OHRV use was added to the list of activities covered by the
immunity provision in RSA 212:34. 

In 2005, before the repeal of RSA 215:34, II, the N.H. Supreme Court issued an opinion
in which all three statutes were held not to apply to a case in which a snowmobiler was
killed when he collided with a snow-trail grooming machine while using a
recreational trail for free. Estate of Kenison v. Dubois, 152 N.H. 448.

The trail was on land owned by Portland Pipeline. The grooming machine was operated
by defendant Dubois and owned by the defendant Waumbek Methna Snowmobile
Club.  Waumbek voluntarily maintained the section of the trail where the collision
occurred.

In that case the court held that the defendants did not meet the definition of an
“occupant” under any of the three recreation use statutes, because the defendants,
as volunteer maintainers of the property did not have the ability or authority to permit
persons to use or enter the land. 

In response, the legislature amended RSA 508:14 in 2006, to extend the immunity to
any person or entity that provides services such as maintenance, construction
or improvements on the land.

This new statute apparently is intended to make similar changes to RSA 212:34, which
has been repealed and reenacted to clarify certain details.

The statute now defines a “landowner” as the “owner, lessee, holder of an
easement, occupant of the premises, or person managing controlling or overseeing
the premises on behalf of the owner, lessee, holder of an easement or occupant of
the premises.”

Exceptions to Landowner immunity include: 

• Willful and malicious failure to guard or warn against the dangerous condition,
  use, structure or activity;
• Injuries suffered in a case where permission to enter or use the premises for
  outdoor recreational activity was granted for a charge other than for the
  consideration paid to the landowner by the state; or
• When injury was caused by the acts of persons to whom permission to enter the
  land for outdoor recreational activity was granted and that injury was caused to
  third persons to whom the landowner owed a duty to keep the premises safe or
  to warn of danger or when the injury suffered was caused by the intentional acts of
  the landowner.

Another significant change to the statute will require a plaintiff to pay
the defendant’s attorney’s fees and costs if the court finds that the defendant is
immune from a suit and that the plaintiff had no reasonable basis for bringing the
suit against the defendant.