It was a tragedy that defied easy answers. In August 2008, the Ferra family found themselves trapped – stuck at a campsite in Ashland midway through a flash flood, staring down a precarious exit route over a raging stream.
The family, visiting New Hampshire from Rhode Island for a multiday vacation, had packed into their SUV to escape surging floodwaters, brought on by a torrential storm that swept the Lakes Region. There was only one way out: over the bridge across the stream and to the exit road. The Ferras made up their mind to cross.
Then the worst happened. Midway across the bridge, court records later detailed, the waters grabbed hold of the vehicle, knocking it into the stream below. Brandon and Donna Ferra and their son Cameron were ejected. Their daughter Kaitlyn, 7, drowned in the vehicle.
A year through their grief, the family took to the courts. In 2009, the Ferras filed a wrongful death lawsuit against the campground, Ames Brook Campground, charging that its owners, Vernon and Barbara Marion, knew about the impending storms and failed to give warnings or help evacuate.
The Marions denied the allegations, responding that they had no prior knowledge of the flood risks and couldn’t have warned anyone, records show. The suit, filed in U.S. District Court in Concord, carried on for two years, eventually ending in a settlement.
Attorneys for both parties were unavailable for comment. The Marions and Ferras could not be reached.
But the case got a spot of renewed attention in the State House on Tuesday. House lawmakers are considering a new bill to exempt campgrounds from a wide range of liability, protecting them from any lawsuits that don’t involve intentional or grossly negligent actions.
Campground owners say the bill, Senate Bill 501, would reduce court actions that have driven up insurance prices and created a never-ending financial threat. And they point to the Ferra case and others as examples of litigation gone too far.
“What this does is take care of what I consider nuisance lawsuits,” said Brendon Guida, a Chichester attorney who represents campgrounds and owns one himself. “This is a large tourist industry in New Hampshire – a lot larger than the ski industry – but we’re having problems.”
Under the proposed legislation, which passed the Senate earlier this month, campgrounds would be immune from any lawsuits over behavior that falls under an “inherent risk of camping” – incidents that advocates say campgrounds shouldn’t be expected to account for.
That includes any injuries due to trees and rocks, bodies of water, poor lighting, insects, animals or other campers, according to the legislation. Any injuries received when campers use their own equipment, like boating or driving, are exempt, as well.
The immunity does not cover manmade structures by the camp; slipping on a poorly maintained floor at a campsite bathroom or damaging a car in a pothole on the access road could still be causes for action. And it doesn’t apply when campground owners or employees intentionally cause the death, act with willful disregard for campers’ safety, fail to post notices of known hazards, or are found to be “grossly negligent.”
Testifying at a Judiciary Committee hearing Tuesday, campground owners said the changes are necessary to eliminate what for them is a threat of the unknown: a wide range of natural hazards on their properties, from bears to pointy branches, any one of which could trigger a lawsuit.
“People have to assume responsibility for their own actions,” said Dave Mankus, owner of Lake Forest Resort in East Wakefield. “There are examples where just providing a campsite is enough to get you sued.”
Adding to campground owners’ woes: insurance. Even if the lawsuits aren’t taken to court, the expenses to settle them drives up premium costs and makes companies wary, owners contend. And the lack of legal limits on the suits means that few companies are willing to issue liability insurance in the first place, they say.
That means some facilities can be stuck with one carrier for options – or none. Lake Forest Resort has never been sued, but has had its insurance pulled three times, Mankus testified, forcing it to close operations until it can find a way to restore it.
The bill follows other efforts to push for “immunity” laws in the Granite State; in 2005, the Legislature expanded immunity for ski areas, which argued that the high cost of injury litigation could bankrupt them. Among states, only Wisconsin has so far extended the immunity to campgrounds, advocates say.
But not all support the proposed litigation limits. The New Hampshire Association for Justice, which represents trial lawyers, says the bill is unnecessary.
To start, association officials say, no lawyer wants to lose money on frivolous lawsuits about bee stings.
“If you’re afraid about campgrounds going out of business because they do get sued, lawyers are going to go out of business by bringing these stupid lawsuits,” said Roger Turgeon, a representative of the group and a personal injury lawyer in New Hampshire and Massachusetts.
Moreover, Turgeon argued, New Hampshire common law already allows for egregious cases to be thrown out. The state employs a “reasonable man” standard; jurors must decide whether the campground owner could have reasonably prepared against the hazard that caused the injury; a wayward root in a forest would likely not pass muster.
And the courts follow the doctrine of “comparative negligence,” Turgeon continued. If the plaintiff is found to have been more negligent – for instance by wrongfully walking onto a shaky ledge – that can negate his or her claim to damages.
“All the arguments you hear, those are going through the jurors’ minds,” Turgeon said.
Putting the proposed measures into law, he added, would tie the hands of the courts and restrict reasonable outcomes.
But campground owners say the combined threat of lawsuits and insurance hikes makes for an unsustainable system. And to Guida, allowing them to continue goes against the soul of the activity itself – a raw experience, out in the wild.
“You don’t go camping because you want to stay in a Walmart parking lot; you go camping because you want to go in the woods,” he said.
(Ethan DeWitt can be reached at edewitt@cmonitor.com, or on Twitter at
@edewittNH.)