CONCORD, N.H. (Legal Newsline) – The New Hampshire Supreme Court recently ruled that the town of Chester was not liable for the injuries caused to a boy swimming at a pond on city property.
"We’re obviously pleased with the ruling," said Chester's attorney Donald Lee Smith, of Devine Millimet & Branch. "The issue was whether the town was entitled to immunity under the New Hampshire Recreational Use statutes.”
The case of Jay Kurowski, as father and next friend of Christopher Kurowski v. Town of Chester was dismissed by a Superior Court, but appealed. The state Supreme Court affirmed the lower court’s ruling Sept. 21.
The town of Chester owns the Wason Pond Conservation and Recreation Area, which is open to the public. In 2012, Christopher Kurowski was hit by someone swinging on a rope swing overlooking the pond on Aug. 20, 2015, the opinion states.
Smith explained what happened: “He [Christopher Kurowski] was actually in the water and somebody else was swinging on a rope swing. He was slapping the individual’s feet. The person let go and it caused injuries to him.”
Smith doesn’t feel the case was frivolous, noting, “It just raised an interesting legal issue, whether or not there were sufficient facts in the complaint to support a claim that the town had engaged in intentional or willful conduct with respect to the rope swing being present at the pond.”
Smith doesn’t know the extent of the injuries to the boy because the case didn’t get into the discovery phase.
“We moved to dismiss on the grounds that the assertions in the complaint were not adequate to support the claims and we were entitled to immunity under the Recreational Use statute. So we never got into the discovery phase,” he said.
The other issue was if there was a claim for intentional conduct.
“The plaintiff argues that the town’s conduct constituted an intentional act for the same reasons he asserts the town’s conduct was willful — because the town acknowledged that the rope swing was a hazard, was warned about that hazard on three occasions between 2012 and 2015, did nothing to remove it, and did not post warning signs. We disagree,” according to the court's opinion.
“The second issue was whether or not the facts could be construed to support a claim for intentional conduct and the court didn’t rule specifically on what intentional conduct was but for purposes of litigation accepted the definition proposed by the parties and concluded there weren’t sufficient facts to support a claim for intentional conduct either,” Smith said.
In the Supreme Court opinion, authored by Justice James P. Bassett, the conclusion is that although the town knew the rope swing was a hazard, "The plaintiff’s allegations are insufficient to demonstrate that the town had actual or constructive knowledge that its conduct was substantially certain to result in injury.”
Justices Linda Stewart Dalianis, Gary E. Hicks and Robert J. Lynn concurred.