N.H. Supreme Court upholds drowning dismissal

CONCORD, N.H. (Legal Newsline) -- The New Hampshire Supreme Court last week affirmed the decision of a lower court dismissing a wrongful death lawsuit against a state agency and hydroelectric facility following a double drowning in a state lake.

In an opinion filed Oct. 19, the Court upheld a superior court's decision dismissing the plaintiffs' suit for wrongful death, negligence and negligent infliction of emotional distress against the state's Department of Environmental Services, or DES, and Algonquin Power Systems, Inc.

The Court also upheld the lower court's decision to deny the plaintiffs' motion to amend their writ.

The plaintiffs included Rebecca L. Coan and Micah Ciampi, co-administrators of the estate of Nicholas M. Lorette and parents of Jeffrey Lorette, and Sharon Ciampi, administratrix of the estate of Michael T. Squeglia.

On June 12, 2005, Nicholas, 16, Michael, 20, and Nicholas' 9-year-old brother Jeffrey went swimming in Silver Lake in Belmont.

Silver Lake is located downstream from Lochmere Dam. DES owns the dam and uses it to control water resources in the Winnipesaukee watershed. The dam also is part of a hydroelectric generating facility, which is owned by HDI I Associates Partnership, or HDI. HDI leases operation of the hydroelectric generating facility to Algonquin.

Many local residents use Silver Lake for swimming, the boys included. They frequently swam in the lake and had just done so the day before, their families testified.

Despite their familiarity with the lake, the boys did not know that on the afternoon of June 11, 2005
DES had added 375 cubic feet per second to the flow coming out of the dam into the lake, which made the currents in the north end deadly.

And though the defendants knew that people swam downstream from the dam and that swimming there could become dangerous when flow from the dam was increased, neither posted any warnings about the dangers of swimming in the north end of the lake, downstream from the dam. Nor did they place any safety devices on the lakeshore.

While swimming in the lake, Jeffrey became caught in the deadly currents near the mouth of the river and screamed for help. Nicholas and Michael raced to his aid, but also got caught in the currents.

A nearby resident finally was able to get to and save Jeffrey in his kayak, but Nicholas and Michael
drowned.

Following the accident, the plaintiffs sued the defendants in October 2007, and in February 2009 they filed their first amended writ.

In return, the defendants filed motions to dismiss, which the superior court granted.

Although the plaintiffs sought to amend their writ again, the superior court denied their motion to amend, and an appeal to the state's high court followed.

According to state code, "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 plaintiffs argued that the law does not apply because it extends to injuries and recreational activity that occur on the ground, but not to those occurring in water.

The State, represented by Attorney General Michael Delaney, countered that the plain meaning of the word "land" is "property," which includes both ground and water.

The plaintiffs also asserted that the law does not apply "because the State did not 'permit' Nicholas, Michael and Jeffrey to access Silver Lake through its land, even if the State in fact does own the land the boys crossed to enter the lake."

As the plaintiffs explained, "Owning the land where the boys entered the water does not immunize the State from liability for creating the lethal condition that killed Nicholas and Michael and injured Jeffrey, where the boys held a public easement to traverse such land to exercise their common law
rights to swim in Silver Lake."

Chief Justice John T. Broderick, Jr., who authored the Court's opinion, said the plaintiffs' argument is based upon their "mistaken assumption" that the State lacks authority to control access to public waters, such as Silver Lake, from public land.

"To the contrary, by statute, public waters (defined as '(a)ll natural bodies of fresh water situated entirely in the state having an area of 10 acres or more') are state-owned," he wrote.

Broderick points out that the State, according to law, "has an interest in protecting those waters and has the jurisdiction to control the use of the public waters and the adjacent shoreland for the greatest public benefit."

The chief justice wrote, "While the public has certain common law rights, such as the common law right to boat recreationally on public waters, the public's rights are always subject to the paramount right of the State to control them reasonably in the interests of navigation, water storage and classification, health and other public purposes."

The plaintiffs also alleged that Algonquin owed a duty to the boys and to the public to warn of the allegedly dangerous currents and to place safety devices on the lakeshore because it "knew or should have known that the area was a popular swimming area and that swimming conditions could be perilous in the vicinity of the dam and in the area adjacent to the (power) station."

Additionally, the plaintiffs alleged that Algonquin had a contractual duty to warn and place safety devices on shore that arose from its operating agreement for the Lochmere dam generating station.

According to the Court, the plaintiffs hadn't alleged that there was any special relationship between Algonquin and the boys that would give rise to a duty to act.

Moreover, it said, Algonquin's alleged knowledge about the dangers of swimming in Silver Lake is insufficient to impose a duty upon Algonquin to act.

"The writ alleges only that DES 'decided to add another 375 cubic feet per second to the flow coming out of the Lochmere dam into Silver Lake,'" the Court said.

"Even assuming all of the facts pleaded in the writ to be true, and drawing all reasonable inferences from them in the plaintiffs' favor, we conclude that they are insufficient to establish that Algonquin had any control over DES' actions."

The Court also ruled that nothing in the plain language of Algonquin's operating agreement requires the company to warn the public about dangerous downstream conditions or to place safety devices on the lakeshore.

This provision, it said, only obligates Algonquin to protect personnel and to comply with applicable safety laws and other safety requirements to prevent accidents or injury to people "on, about or adjacent to" the hydroelectric facility.

"Even if the area where the boys were swimming could be deemed to be 'adjacent to' the hydroelectric facility, the plaintiffs have not alleged any safety law or requirement that would oblige Algonquin to warn the general public about dangerous lake conditions or place safety devices on
shore," the Court ruled.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.