Lorette v. Peter-Sam Investment Properties , 142 N.H. 208 ( 1997 )

BRODERICK, J.,

dissenting: The majority extends the result reached in Lorette v. Peter-Sam Investment Properties, 140 N.H. 208, 665 A.2d 341 (1995), a step further with its holding that RSA 215-A:34, II (1989) immunizes defendants from their reckless acts. Like Justice Batchelder before me, I question whether the legislature even intended to have this immunity statute apply to owners of sand and gravel excavation facilities. See Lorette, 140 N.H. at 213, 665 A.2d at 344-45 (Batchelder, J., dissenting). These facilities are subject to an extensive regulatory scheme, see RSA ch. 12-E (1988 & Supp. 1996); RSA ch. 155-E (1994 & Supp. 1996), which includes several legislatively imposed statutory duties, e.g., RSA 12-E.-7, 1(f) (1988), and it is questionable whether the legislature intended to subvert these laws when it passed the more broadly applicable OHRV immunity statute.

Further, I am hesitant to assume that the legislature intended to excuse a landowner’s reckless conduct. While the legislature has indicated its intent to cover acts beyond simple negligence in other immunity statutes, see, e.g., RSA 508:14, I (Supp. 1996), the present statute contains no such language. Given the profound implications of immunizing a landowner for reckless conduct, I would read the OHRV statute to provide protection only for negligent acts absent specific legislative guidance to the contrary. See Collins v. Martella, 17 F.3d 1, 4 (1st Cir. 1994) (per curiam) (immunity statutes are to be read narrowly).