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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Belknap No. 2009-672

REBECCA L. COAN & a. v. NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES & a. Argued: May 13, 2010 Opinion Issued: October 19, 2010 Douglas, Leonard & Garvey, P.C., of Concord (Benjamin T. King on the brief and orally), for the plaintiffs.

Michael A. Delaney, attorney general (Evan J. Mulholland, assistant attorney general, on the brief and orally), for defendant New Hampshire Department of Environmental Services. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Mark C. Rouvalis and Michael J. Kenison on the brief, and Mr. Rouvalis orally), for defendant Algonquin Power Systems, Inc. BRODERICK, C.J. The plaintiffs, 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, appeal orders of the Superior Court (McGuire, J.) dismissing their lawsuit for wrongful death, negligence and negligent infliction of emotional distress, brought against the defendants, the New Hampshire Department of Environmental Services (DES) and Algonquin Power Systems, Inc. (Algonquin), and denying their motion to amend their writ. We affirm. The following facts derive either from the plaintiffs' allegations, which we accept as true for the purposes of this appeal, or from the trial court's orders. On June 12, 2005, the decedents, Nicholas, age sixteen, and Michael, age twenty, and Nicholas's nine-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 (HDI). HDI leases operation of the hydroelectric generating facility to Algonquin. Local residents use Silver Lake for swimming. The boys frequently swam in the lake and had just done so the day before. Despite their familiarity with the lake, the boys did not know that on the afternoon of June 11, 2005, defendant DES added 375 cubic feet per second to the flow coming out of Lochmere dam into the lake, which made the currents in the north end of the lake deadly. Although 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 either defendant 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 were also caught in the currents. A nearby resident was able to save Jeffrey in his kayak, but Nicholas and Michael drowned. The plaintiffs sued the defendants in October 2007, and, in February 2009, filed their first amended writ. The defendants filed motions to dismiss, which the trial court granted. Although the plaintiffs sought to amend their writ again, the trial court denied their motion to amend, and this appeal followed. In reviewing a trial court's grant of a motion to dismiss, our task is to determine whether the allegations in the writ are reasonably susceptible of a construction that would permit recovery. Berry v. Watchtower Bible & Tract Soc., 152 N.H. 407, 410 (2005). We assume all facts pleaded in the writ to be true and construe all reasonable inferences drawn from those facts in the

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plaintiffs' favor. Id. We then engage in a threshold inquiry that tests the facts in the writ against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss. In the Matter of Lemieux & Lemieux, 157 N.H. 370, 373 (2008). We first address whether the trial court erred by dismissing the plaintiffs' claims against DES. The trial court ruled that DES was entitled to recreational use immunity under RSA 212:34 (Supp. 2009) and RSA 508:14, I, (2010). Because we conclude that the trial court did not err by finding DES immune from liability under RSA 508:14, I, we do not address the parties' arguments concerning RSA 212:34. We are the final arbiters of the intent of the legislature as expressed in the words of the statute considered as a whole. Estate of Gordon-Couture v. Brown, 152 N.H. 265, 266 (2005). We first examine the language of the statute, and, where possible, ascribe the plain and ordinary meanings to the words used. Id. We review the trial court's statutory interpretation de novo. Id. Statutes, such as RSA 508:14, I, which are in derogation of the common law right to recover, are to be strictly construed. See id. at 266-67. RSA 508:14, I, provides: 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 do not dispute that RSA 508:14, I, applies to State-owned land. Accordingly, we assume, without deciding, that RSA 508:14, I, so applies. The plaintiffs first argue that RSA 508:14, I, does not apply here because it extends to injuries and recreational activity that occur on the ground, but not to those occurring in water. See Kantner v. Combustion Engineering, 701 F. Supp. 943, 946 (D.N.H. 1988). As primary support for this argument, the plaintiffs rely upon Kantner, in which the Federal District Court of New Hampshire "declined on this basis to apply RSA 508:14, I, to claims brought on behalf of two men who drowned while swimming and canoeing at the base of a dam." Collins v. Martella, 17 F.3d 1, 3 n.2 (1st Cir. 1994), disagreed with on other grounds by Estate of Gordon-Couture, 152 N.H. at 274-75. The Kantner court explained that RSA 508:14, I, did not apply because "[t]he decedents were swimming and canoeing in a river and were not using land for recreational purposes." Kantner, 701 F. Supp. at 946; see Webster's Third New International Dictionary 1268 (unabridged ed. 2002) (first definition of "land" is

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"the solid part of the surface of the earth in contrast to the water of oceans and seas"). But see Collins, 17 F.3d at 3 n.2 (distinguishing Kantner because Collins, unlike decedents in Kantner, accessed water from land owned by defendant). The State counters that the plain meaning of the word "land" is "property," which includes both ground and water. See Black's Law Dictionary 955 (9th ed. 2009) ("In its legal significance, `land' is not restricted to the earth's surface, but extends below and above the surface. Nor is it confined to solids, but may encompass within its bounds . . . liquids." (quotation omitted)). We need not resolve whether the word "land" as used in RSA 508:14, I, refers only to ground or includes water because even if it refers only to ground, we conclude that RSA 508:14, I, applies to this case. Contrary to the plaintiffs' assertions, the plain language of RSA 508:14, I, strictly construed, does not require that the injury at issue actually occur on the ground or in a structure on the ground, as opposed to in the water. Immunity under RSA 508:14, I, is available whenever a landowner makes his or her land available to the general public to use for recreational activities or for watching recreational activities, free of charge. See Soraghan v. Mt. Cranmore Ski Resort, 152 N.H. 399, 402-03 (2005). Even if the word "land" refers only to the ground, as long as the injured party used the landowner's land for recreational activities or to watch such activities, immunity is available, provided the other conditions of RSA 508:14, I, are met (the land is open to the general public and the landowner does not charge for access or use). See id. at 402-03. In Collins, for instance, the First Circuit Court of Appeals concluded that RSA 508:14, I, applied because Collins gained access to the defendants' shallow pond from a dock installed on their beach. Collins, 17 F.3d at 3 n.2. On this point, we find Collins instructive. The boys in this case gained access to the water by using land owned by the State. The boys' purpose for accessing Silver Lake was to swim; no one disputes that, in this case, the boys' swimming was a recreational activity. Cf. RSA 212:34, I ("water sports" is recreational activity for which recreational use immunity is available under RSA 212:34). Thus, even if the word "land" pertains only to the ground, because the boys used State-owned land for recreational activities, i.e., to access water for swimming, we hold that RSA 508:14, I, applies to this case. The plaintiffs next assert that RSA 508:14, I, 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." See Kenison v. Dubois, 152 N.H. 448, 454 (2005) (to qualify as an "occupant" under RSA 508:14, I, one must at least have the ability or authority to permit persons to use or enter the land). The plaintiffs contend

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that, because Silver Lake is a public body of water, Nicholas, Michael and Jeffrey "enjoyed a public easement to cross public non-fenced land" to enter the lake. The plaintiffs assert: "The State had no power to prevent the boys from crossing the land to exercise their common law rights to enjoy Silver Lake." As the plaintiffs explain: "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." 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. RSA 271:20 (2010). The State "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." RSA 483-B:1, II (2001) (emphasis added). 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. See Lakeside Lodge v. Town of New London, 158 N.H. 164, 170 (2008) (referring to littoral owner rights); Appeal of Comm. to Save the Upper Androscoggin, 124 N.H. 17, 25 (1983) (rejecting argument that use of public lands is a "right" that lawfully elected representatives cannot alter for the public good). For instance, to protect the drinking water supply, the State may prohibit swimming in certain public waters altogether and preclude the public from engaging in any activity at all within a certain distance from a water supply intake structure. See, e.g., N.H. Admin. Rules, Env-Ws 386.58(g) (regulations for protecting the purity of the Bellamy Reservoir and its watershed); see also RSA ch. 485 (2001 & Supp. 2009). Having concluded that the trial court did not err by dismissing the claims against DES, we next address whether it erred when it ruled that Algonquin could not be liable to the plaintiffs because it had no duty to warn or place safety devices on shore. To prevail upon their negligence claims against Algonquin, the plaintiffs had to show that: (1) Algonquin owed the boys a duty; (2) Algonquin breached this duty; and (3) the breach proximately caused the deaths of Michael and Nicholas and the injuries to Jeffrey. See Dupont v. Aavid Thermal Technologies, 147 N.H. 706, 709 (2002). Whether a duty exists in a particular case is a question of law. See Hungerford v. Jones, 143 N.H. 208, 211 (1998).

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The plaintiffs allege 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 allege 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. We first address whether Algonquin owed a common law duty to protect the public and/or the boys. "In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable [person] to protect them against an unreasonable risk of harm to them arising out of the act." Restatement (Second) of Torts

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