By PAULA TRACY, InDepthNH.org

PLYMOUTH – A woman who was paralyzed in a sledding accident at an apple orchard in Londonderry had her case argued before the state Supreme Court asking to overturn a lower court ruling Tuesday, but the venue was not the usual one in Concord.

Instead of being behind the granite walls of the Supreme Court building on a river bluff overlooking the state’s capital, the state’s high court went “on the road” as it has occasionally since 2002, and heard oral arguments before about 200 students from middle school to college age. 

And the auditorium at Plymouth Regional High School became a real court room for the morning.

“This is not a role play. This is an actual case before the court,” said Ned Gordon of Bristol, a retired circuit court judge and former state Senator who introduced the case and the process before the five justices took the stage wearing their robes. 

He then helped moderate a discussion afterward with the students who asked engaging questions, revealing how the high court works.

There was no decision in the sledding case, as is customary on days in Concord where lawyers on both sides of accepted cases get a chance to provide oral backup to their briefs and the justices get to ask questions. In many cases, it takes more than a year to prepare to stand before the high court, the lawyers told the students.

About 150 students from five communities who are students in the Plymouth area and about 50 business law students from Plymouth State University listened and then got the rare opportunity to ask questions which were not specific to the case.

Chief Justice Gordon J. MacDonald, Senior Associate Justice James P. Bassett, Justice Anna Barbara Hantz Marconi, Justice Patrick E. Donovan and Justice Melissa B. Countway took the stage, and after hearing the case answered questions.

The case was Caroline Adams and Christopher Estrella v. Moose Hill Orchards, LLC d/b/a Mack’s Apples, with attorneys Anna Zimmerman and Michaila Oliveira representing the plaintiff and attorney Nick Wright representing the orchard’s owners. Adams, a dentist, was seriously injured on the orchard property while sledding and sued the landowner, but a Rockingham County Superior Court judge approved the orchard’s motion to dismiss. 

The appeals case before the high court focused on the motion to dismiss at the lower court and whether or not it erred and should be sent back or whether it should stand.

The state has only one appellate state court, the students were told, while other, larger states have more. And it differs from federal courts.

Just as if in Concord, each side was given 15 minutes to argue their case with the justices able to ask questions. 

The only differences with the “On the Road” cases – 22 of which have been heard in about as many years – both sides needed to agree to the change of venue and participate in a question and answer period with the attorneys first and the justices later, who returned to the stage in casual dress to answer questions. 

The oral arguments were also live streamed on the Judicial Branch website.

Gordon told the students that this is “a solemn event.” All of the students had to part with their cell phones for two hours and focus on the testimony.

Gordon pleaded cases before the high court as a lawyer and said it was both a “nerve wracking process” and a privilege. He called it “the biggest thing you can do as an attorney” to appear before the high court.

He suggested the students listen closely to the questions of the justices which could give an indication of their thought processes and perhaps be used to help persuade other justices of their position.

CASE SUMMARY

Adams, a resident of Hudson, was in a sledding accident on the property of Mack’s Apples, a popular apple orchard and farm stand in Londonderry on Jan. 30, 2022.

She attended oral arguments with her husband and sat in the front row with the students. 

It was noted in the briefs that Mack’s Apples neither prohibits members of the public from sledding on its property, nor charges for such access. However, it operates a seasonal stand which is on the way to the sledding hill and sells hot cider, hot chocolate, and other goods to sledders, which the couple had planned to patronize. 

Her complaint alleged that Mack’s Apples was liable under a theory of negligence — that the sledding hill contained a dangerous and unseen “jump” and that, as a result of the jump’s presence, Mack’s Apples did not comply with a legal duty to maintain its property in a safe manner free of unreasonably dangerous conditions and defects. 

Mack’s Apples filed a motion to dismiss under RSA 508:14, I (a New Hampshire statute) passed by the legislature and signed by the governor, which 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.

After reviewing the complaint and the motion to dismiss, and without holding a trial, Rockingham Superior Court Judge David Ruoff granted the motion to dismiss in reliance on the statute. 

The appeal was based on that action on the motion to dismiss.

The plaintiff argued that the statute does not apply under the case Soraghan v. Mt. Cranmore Ski Resort, 152 N.H. 399, 403 (2005), in which the Supreme Court held that the relevant inquiry under the statute is not whether any single person was charged to use the defendant’s land for recreational purposes, but “whether the injured entrant was on the property for a purpose related to the landowner’s business for which the landowner customarily charges.”

The plaintiff contended that Mack’s Apples is subject to liability under Soraghan because Mack’s Apples “is not simply a private landowner permitting members of the general public to use [its] land for recreational purposes,” but is “allowing the public to use its land as a means of enticing the public to its property for the primary purpose of its business to sell items to the public for a profit.” 

The Superior Court rejected this argument, ruling that, “even when a landowner may indirectly profit from allowing access to their land, recreational immunity still applies so long as there is no charge to the general public for access to the land itself.”

Mack’s Apples argued that the Superior Court’s ruling was correct under the statute because Mack’s Apples allowed the general public to access its land without directly charging a fee for use of the sledding hill.

ORAL ARGUMENTS

Justice Donovan began to ask questions of the plaintiff’s attorney focusing on whether Mack’s Apples was using the free sledding hill as a way to support the farmstand.

Zimmerman said the hill on the property is “akin to an advertising source” and that the couple went to the hill because they wanted to go to the farmstand.

Chief Justice MacDonald then began a line of questioning and then Justice Melissa Countway, the newest member of the court, asked about financial benefits.

Zimmerman said Mack’s wasn’t being altruistic in allowing people to sled there but was using it as an amenity to attract business, like a playground in a mall.

“Are their profits significantly higher when there is enough snow available for sledding…is there an upward spike in their revenue?” she asked. 

Do they advertise their hill, Justice Donovan asked. Zimmerman said the plaintiffs had seen articles online which attracted them to the hill. 

Wright began his oral arguments with RSA 508:14 showing the legislative intent about use of private land which makes it available without a fee.

But could Judge Bassett go out and use the ski jump behind the school and sue the property owner if injured, Donovan asked.

What is the limit, how far can they go to advertise it to still be harmless under the statute, asked Justice Marconi.

The key thing is that they cannot charge, Wright said.

But what about rentals and commercial activity surrounding the land, she asked.

Wright maintained that the landowner is immune from suit if they are not charging for its use.

QUESTIONS AND ANSWERS

After the oral arguments, the justices went off stage to conference over the case in private and assign a justice to work on the order.

Meanwhile, students peppered the lawyers with questions about preparation of their cases, fears and reactions from the justices and how case law is used to help bolster and or take away from their cases. They also asked about research approaches lawyers use to develop cases and how they decided to become lawyers.

Zimmerman told the students she was relieved the oral arguments were over and said she likes active questions from the justices. 

She said her biggest concern is if the justices ask her about another case she is not familiar with, which did not happen Tuesday.

Wright said he is a fast talker and he has to slow himself down but be fluent enough to hear the argument trying to be made. He said his important point in this case was what he focused on first, the legislative intent of the law.

After the lawyers’ question and answer period, the justices came out to tell them a little bit about themselves, how they got to become justices and to answer more questions.

They concluded by explaining the process behind closed doors after an oral argument, explaining that Justice Countway, because she is the least senior justice, takes notes of each justice’s positions and where each may want to land on a decision. 

At this point, the case had already been assigned to a justice and that justice will take it in chambers, follow the straw vote, read all the cases that are cited in the briefs and do their own research to determine the right result.

This process can take several months before a written decision is issued.

Countway noted that they literally take a pitcher containing pieces of paper with all their names and one is removed to determine who will be assigned.

“Very high tech,” said Marconi, laughing.

Normally, the justices have several day-long sessions each month in which as many as seven cases are heard and several more that they discuss.

Asked if public opinion sways justices Marconi said it does not and cannot, adding a lot of the job is interpreting statutes passed by the legislature.

“So we are constrained. We are either interpreting statutes, we’re applying the Constitution, or we are interpreting contracts and again, it is a process that is unaffected by public opinion,” Marconi said.

Countway noted there is a Code of Judicial Conduct that governs their behavior and part of that is “we have to be fair and impartial and not subject to…popular opinion.”

Justices were asked what advice they would give to those who might want to pursue law as a career.

Marconi suggested they take a break between college and law school to get some contrasting experience.

Countway said New Hampshire needs more lawyers and one of her administrative duties is to work on developing a pipeline of young people to come to the state to be lawyers. 

She suggested internships and volunteer opportunities and Donovan suggested considering UNH law school.

MacDonald concluded by saying it was so energizing for the court to be engaged with the students who he said by their questions have obvious interest in the law. 

He encouraged them all to consider the law for their future work.

“At the end of the day, our democracy is founded on the rule of law and all lawyers, whatever they do, uphold those ideas and principles. We need good people, young people coming into our profession,” the chief justice said.

Watch full program here: https://youtu.be/qaYw1u6VPZM