Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer, Deceased, Plaintiffs/Appellants, v. Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Dennis Anderson and Jane Doe Anderson, husband and wife; Anton Cerkvenik and Jane Doe Cerkvenik, husband and wife; and John Does I-X, Defendants/Appellees. Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer, Deceased, Cross-Appellees. v. Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Anton Cerkvenik and JANE Doe Cerkvenik, husband and wife. Cross-Appellants.

2 CA-CV 93-0175

COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT B

181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

May 17, 1994, Filed

SUBSEQUENT HISTORY: [***1] Petition for Review Denied December 20, 1994.

PRIOR HISTORY: APPEAL FROM THE SUPERIOR COURT OF MARICOPA COUNTY. Cause No. CV 91-17422. Honorable J. Kenneth Mangum, Judge, Honorable Sherry H. Hutt, Judge.

DISPOSITION: REVERSED IN PART AFFIRMED IN PART

CASE SUMMARY:

COUNSEL: Treon, Strick, Lucia & Aguirre, by Arthur G. Newman, Jr. and Richard T. Treon, Phoenix, Attorneys for Plaintiffs/Appellants/Cross-Appellees.

Teilborg, Sanders & Parks, P.C., by Brian R. Burt and Rick N. Bryson, Phoenix, Attorneys for Defendants/Appellees/Cross-Appellants.

Jennings, Kepner and Haug, by James L. Csontos, Phoenix, Attorneys for Defendants/Appellees Dennis Anderson.

JUDGES: JAMES D. HATHAWAY, Judge, WILLIAM E. DRUKE, Chief Judge, PHILIP G. ESPINOSA, Presiding Judge.

OPINION BY: JAMES D. HATHAWAY

OPINION

[**70] [*295] OPINION

HATHAWAY, Judge.

In this action for the wrongful death of their daughter Molly, plaintiffs/appellants Maurers appeal from the trial court’s grant of summary judgment in favor of defendants/appellees Cerkvenik-Anderson Travel, Inc., College Tours, Dennis Anderson and Anton Cerkvenik (collectively, “CA”) on the basis that CA had no duty to Molly regarding the tour package she purchased. CA cross-appeals [***2] the court’s denial of summary judgment sought on the basis of waiver or release from liability and its refusal to award attorney’s fees. We reverse summary judgment as to appellants and affirm as to CA.

2 FACTS

Viewing the evidence in the light most favorable to the non-moving party, Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982), the facts are as follows. CA is a travel agency doing business as “College Tours.” Its business includes organizing, promoting, selling and operating student vacation tours destined for Mazatlan, Mexico. CA sets the itinerary, arranges for transportation and lodging and provides information relating to the students’ comfort, convenience and safety on the tour. For many years, the tour packages have included an eighteen-hour ride on a Mexican train traveling from Nogales to Mazatlan, as was the case with the tour purchased by the decedent. CA described this as a “Party Train.”

During the train ride from Nogales to Mazatlan, Molly and a friend decided to “adventure” forward in the trainto see the engine. The connecting areas between passenger railcars have metal floors with accordion-like “boots” extending from the [***3] sides of each railcar, forming an area in which it is safe to walk from the door at the end of one railcar to the door at the end of the other. En route, Molly paused and attempted to communicate in Spanish with an apparent employee of the railroad before going through a door, which turned out to be the front door of the foremost passenger car of the train. The car in front of this car was either a freight car or the engine. There was only a partial “boot” between the front of this car and the car in front of it. Beyond the door was only a narrow platform and then a large area between the cars, up to four feet wide, open straight down to the tracks and wheels of the train. It was dark, and after Molly stepped through the door, she fell to her death between the cars.

Molly was the fourth student to die by falling from a moving train on a student tour to Mazatlan organized by CA. Three other students had died previously, albeit the particular circumstances of each incident varied. The students on Molly’s tour were not informed of these prior incidents eventhough CA acknowledges that it “knew of other deaths on Mexican trains.”

[**71] [*296] DUTY OF TRAVEL AGENTS/TOUR OPERATORS

[***4] Appellants contend that CA had a duty (1) to exercise reasonable care for the safety of students in operating its student tours; (2) to disclose material facts affecting safety in promoting and selling its tours; and, (3) not to make misrepresentations in promoting and selling its tours. CA counters that it had no such duties as a travel agent, it lacked the right to control the train to make it safe, and it had no knowledge of the specific condition which caused Molly’s death.

[HN1] The existence of duty is an issue of law for the court to decide, Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985), not to be confused with details of conformance with a standard of conduct imposed by the relationship. Ibid. 146 Ariz. at 355, 706 P.2d at 367; see also, Lasley v. Shrake’s Country Club Pharmacy, Inc., 1994 Ariz. App. LEXIS 58, 162 Ariz.Adv.Rep. 10 (App. April 5, 1994). Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. [***5] “‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.” W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 at 356 (5th ed. 1984). “If the court decides that no duty exists, then a trial is unnecessary.” Lankford & Blaze, The Law of Negligence in Arizona at 11 (1992). In this case, the trial court concluded that a trial was unnecessary because “no duty was owed by [CA] to [appellants’] decedent for the injuries which led to her death.” We disagree.

To conclude there is “no duty” is to conclude the defendant cannot be liable, no matter the facts. As the supreme court observed in Markowitz: “To postulate that the possessor of land has no duty at all to protect its invitees or warn of specific types of danger is to postulate that it can never be liable, no matter what the circumstances.” 146 Ariz. at 357, 706 P.2d at 369. The court asked the poignant question: “Would the state have been liable even if the park ranger, knowing of the hazard, had sat on the rock, watched David get ready to dive and said nothing?” Id. at 356, 706 P.2d at 368.

Adapting that query [***6] to the instant case, we believe an affirmative answer as to CA’s responsibility is compelled under principles governing agency relationships. As an Oklahoma court well summarized in Douglas v. Steele, 816 P.2d 586, 589 (Okla.App. 1991):

[HN2] An agent who handles travel and vacation plans is a special agent of the traveler for purposes of that one transaction between the parties. … And this is so even though the agent’s compensation may be paid by the company to whom she steers the business, much like an advertising agent….

[HN3] [The travel agent has] a duty to act with the care, skill and diligence a fiduciary rendering that kind of service would reasonably be expected to use…. This agency relationship also imposes a duty to promptly communicate to [the] principals confirmations and all other relevant information about the proposed travel plans and tours which would help them protect themselves from harm or loss.

(Citations omitted.) These duties include the [***7] duty to disclose material dangers known to the agent. See Tracy A. Bateman, Annotation, “Liability of Travel Publication, Travel Agent, or Similar Party for Personal Injury or Death of Traveler,” 2 A.L.R. 5th 396 (1992). This duty to disclose or warn of known dangers, as the court explained in Rookard v. Mexicoach, 680 F.2d 1257, 1263 (9th Cir. 1982), “does not represent an extension of tort liability upon an agent[;] it results from an exposition of the pre-existing duty of care owed a principal by his agent.” See also In re Swartz, 129 Ariz. 288, 294, 630 P.2d 1020, 1026 (1981) (agent’s duty to make full disclosure to principal of all material facts relevant to agency is fundamental to fiduciary relation); Walston & Co. v. Miller, 100 Ariz. 48, 410 P.2d 658 (1966); Restatement (Second) of Agency § 381 (1957), states the duty thusly:

Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire tohave and which can be communicated [**72] [*297] [***8] without violating a superior duty to a third person.

The travel agent’s duty to disclose is not without limits, however. The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance. A travel agent is not an insurer, nor can he be reasonably expected to divine and forewarn of an innumerable litany of tragedies and dangers inherent in foreign travel. Nonetheless, it does not follow that because a travel agent cannot possibly presage all dangers, he should be excused entirely from his fiduciary duties toward his principal to warn of those dangers of which he is aware, or should be aware in the exercise of due care.

Rookard, 680 F.2d at 1263. [HN4] “While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency.” United Airlines, Inc. v. Lerner, 87 Ill.App.3d 801, 43 Ill. Dec. 225, 410 N.E.2d 225, ___, 43 Ill.Dec. 225, ___, 410 N.E.2d 225, 228 (1980);Restatement (Second) of Agency, § 381 (1957).

[***9] In this case, because of the duties existing through the agency relationship, the trial court erred in ruling otherwise.

CONSUMER FRAUD ACTION

Appellants contend that CA violated the Consumer Fraud Act (Act), A.R.S. § 44-1521, et seq., by omitting material facts and making misrepresentations to Molly in selling and promoting its tours. [HN5] A private right of action exists for breach of the Act. Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974). [HN6] Under the Act, it is unlawful for any person to use or employ any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby, A.R.S. § 44-1522(A) [***10] . The term “merchandise” includes “services.” A.R.S. § 44-1521(5). Accordingly, CA can be held liable for misrepresentations and “concealment, suppression or omission” of any material fact in selling its services.

Appellants contend the trial court evidently held, death, as a matter of law, is not a type of damage for which a private right of action may be brought under the Act. Appellants point out that they have found only one case in the nation that has considered the question. Duncavage v. Allen, 497 N.E.2d 433, 147 Ill.App.3d 88, 100 Ill.Dec. 455 (1986) (claim held to have been stated in suit against landlord for consumer fraud act violation for death of tenant based on representations and omissions about building safety.)

Appellants argue that no policy reason exists to exclude death as an injury for which a private action for damages may be brought under the Act when the omission of material information about safety has caused the death of the purchaser. They also contend that such a view is consistent with Arizona decisions in which the omission of information one has a duty to disclose causes death. See, e.g., Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 789 P.2d 1040 (1990) [***11] (trial court erred in ruling that motel owner owed no duty to disclose information about earlier presence of robber to independent contractor security guard who was later shot and killed by robber.) Moreover, appellants contend that neither the Act nor the cases interpreting it exclude death caused by a breach of the Act; rather, the cases have considered as an element of the cause of action the general “consequent and proximate injury” to the victim. See, Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 591 P.2d 1005 (App. 1979).

Finally, appellants argue that if a private right of action had not been recognized in Arizona, the statute is the sort the violation of which would have been treated as negligence per se and that death is a cognizable injury within the scope of an action for negligence per se. Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). They persuasively conclude that, “recognition of a private [**73] [*298] right of action should not reduce the relief that would … otherwise have been available under negligence per se without the private right of action.” We agree.

We do not find any basis for an [***12] exemption when the damage resulting from the alleged violation is death. Accordingly, the trial court erred in granting summary judgment as to appellants’ claim under the Consumer Fraud Act.

CROSS-APPEAL ON CONTRACTUAL

RELEASE/WAIVER OF LIABILITY

CA contends in its cross-appeal that even assuming the existence of a duty, summary judgment against appellants must be affirmed because Molly released and/or waived any claim against them for any acts or omissions that led to her death. This issue has been raised both in the cross-appeal and as a cross-issue on appeal.

Molly’s itinerary contained the following provision:

XV. Terms and Conditions

… The purchaser releases and absolves College Tours from all liability for property loss or damage, caused and/or from all damages resulting in death or personal injury, loss of services, which may be sustained on account of, arising out of or while engaged in said trip, whether due to its own negligence or otherwise.

(Bold in original) The itinerary also contained a paragraph expressly entitled “Waiver of Liability.” This provision was set out separately from the other paragraphs in the itinerary and provided:

[***13] The students and the students [sic] relatives hereby waive any [sic] or liability for property damage, or personal injury, or death (Including the loss of services), which may be sustained by any student on account of, arising out of, or while engaged in said trip unless claimant establishes that the person or entity, versus whom the claim is made, violated the law or was guilty of a willful injury. Any alleged violation of law or willful injury must be the direct cause of the injury complained of; otherwise, the student and anyone making a claim as a result of any injury, damage or death to said student, hereby waives any such claim. All potential claimants hereby acknowledge that there are other means and tours available to visit Mexico or Hawaii and the student is not in an inferior bargaining position and thus freely accepts the responsibility contracted for herein. Each client has the right to choose to attend or not attend any event provided by College Tours and does so at their own discretion.

(Bold in original) Molly received an invoice form that also contained a “Waiver of Liability” provision virtually identical to that contained in the itinerary. [***14] It also contained a certification that the customer had read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. A copy of the invoice was returned to CA with Molly’s final payment for the trip.

In denying the defense motion for summary judgment on the release/waiver issue, the trial court explained:

This Court does not find waiver to be a valid defense to Plaintiffs’ claims. read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. Because the danger being waived was so specific and obvious in Valley National Bank v. National Assoc. for Stock Car Auto Racing, Inc., 153 Ariz.App. [sic] 374, 736 P.2d 1186 (App. 1987), that Court allowed the waiver to defeat Plaintiff’s claims. Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply.

We find merit in the trial court’s distinction. Attempts to release oneself from liability by contract for harm caused by one’s own negligence are not looked upon with favor. “This would tend to encourage [***15] carelessness.” Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 382, 694 P.2d 198, 212 (1984).

[HN7] While an agent may be discharged from liability by an effective release, Restatement [**74] [*299] (Second) of Agency § 419 (1957), such agent is under the “duty of disclosure and fair dealing stated in Section 390.” That section provides that an agent has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.

Thus, although we conclude that CA is a seller to consumers and an agent bound by statutory and common law duties, we are unable to determine from the limited record before us whether the release is valid. Whether CA fulfilled its duty to Molly under Section 390 must await further discovery or trial. Accordingly, the court’s order denying CA’s Motion to Dismiss/Motion for Summary Judgment on waiver/release grounds [***16] is affirmed.

Reversed in part; affirmed in part.

JAMES D. HATHAWAY, Judge

CONCURRING:

WILLIAM E. DRUKE, Chief Judge

PHILIP G. ESPINOSA, Presiding Judge


Hogan v. Pat’s Peak Skiing, LLC, 2015 N.H. LEXIS 74

Hogan & a. v. Pat’s Peak Skiing, LLC, 2015 N.H. LEXIS 74

Deborah Hogan & a. v. Pat’s Peak Skiing, LLC

No. 2014-420

SUPREME COURT OF NEW HAMPSHIRE

2015 N.H. LEXIS 74

April 9, 2015, Argued

July 28, 2015, Opinion Issued

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

1. Statutes–Generally–Legislative History or Intent Statutory interpretation is a question of law, which is reviewed de novo. In matters of statutory interpretation, the Court is the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. The Court first looks to the language of the statute itself, and, if possible, construes that language according to its plain and ordinary meaning. The Court interprets legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. The Court construes all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Moreover, the Court does not consider words and phrases in isolation, but rather within the context of the statute as a whole. This enables the Court to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. In the event that the statutory language is ambiguous, the Court will resolve the ambiguity by determining the legislature’s intent in light of legislative history.

2. Contracts–Offer and Acceptance–Generally The mailbox rule is one that is traditionally associated with contract law, and provides that acceptances are effective when they are no longer in the control of the sender. The Court has applied the doctrine in its contract jurisprudence.

3. Statutes–Generally–Remedial and Curative Statutes Without legislative history to guide it, the Court construes statutes to address the evil or mischief that the legislature intended to correct or remedy.

4. Notice–Generally–Particular Statutes On the one hand, the chapter involving skiers was passed to protect New Hampshire’s citizens and visitors from hazards and the unsafe operation of ski areas and to allow those injured from such endangerments to seek compensation. On the other hand, the notice requirement allows ski operators to promptly investigate incidents, to evaluate the conditions of their premises and take any necessary remedial measures, and to adequately prepare to defend against claims. RSA 225-A:1.

5. Notice–Generally–Particular Statutes In accordance with the principles of uniformity and certainty, the Court holds that notice given of an injury to a skier or passenger is effective upon mailing; accordingly, plaintiffs satisfied the notice provision by mailing the notice the day before the 90-day notice period expired. In doing so, the Court narrowly applies the common law mailbox rule to the notice provision, in consonance with holdings from other jurisdictions. Where a statute specifies that a person shall be notified by a particular means, such as certified or registered mail, notice is effective when deposited in the mails. RSA 225-A:25, IV.

6. Statutes–Generally–Avoidance of Absurd or Unjust Results It is not to be presumed that the legislature would pass an act leading to an absurd result.

COUNSEL: Christopher W. Driscoll, of Gloucester, Massachusetts, by brief and orally, for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and Leigh S. Willey on the brief, and Mr. Quarles orally), for the defendant.

JUDGES: HICKS, J. DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.

OPINION BY: HICKS

OPINION

Hicks, J. The plaintiffs, Deborah Hogan and Matthew Hogan, appeal the decision of the Superior Court (Smukler, J.) granting the motion to dismiss filed by the defendant, Pat’s Peak Skiing, LLC. We reverse and remand.

The following facts are derived from the trial court’s order or the record. On February 4, 2012, both plaintiffs fell from a ski chairlift while skiing at the defendant’s premises. The plaintiffs were evaluated that day by a member of the defendant’s ski patrol and incident reports were completed. Both plaintiffs reported injuries from the fall. On May 3, 2012, the plaintiffs sent notice to the defendant, by certified return receipt mail, stating that they had retained counsel regarding the February 4, 2012 incident. The letter of notice was dated May 3, 2012, arrived at the Henniker post office on May 5, 2012, and was delivered [*2] to the defendant on May 10, 2012.

The plaintiffs filed a complaint against the defendant on December 3, 2013, seeking damages for negligence, recklessness, and loss of consortium. The defendant moved to dismiss the complaint, arguing that the plaintiffs did not provide notice by May 4, 2012 — ninety days from the date of the injury — as required by RSA 225-A:25, IV (2011). The defendant asserted that the plaintiffs failed to comply with the statute because the notice did not arrive until, at the earliest, May 5, 2012, the ninety-first day. In response, the plaintiffs countered that mailing the notice on May 3, 2012, the eighty-ninth day, satisfied the statutory requirement. Alternatively, the plaintiffs contended that they adhered to the notice provision by completing incident reports and giving verbal notice on the day of the incident and also by giving verbal notice on a later visit to the ski area. The trial court granted the defendant’s motion to dismiss, concluding that the plaintiffs failed to give proper notice pursuant to RSA 225-A:25, IV. This appeal followed.

The question before us is whether the statutory phrase “shall be notified,” as it appears in RSA 225-A:25, IV, is satisfied upon dispatch of notice or upon receipt [*3] of notice. RSA 225-A:25, IV provides:

[HN1] No action shall be maintained against any operator for injuries to any skier or passenger unless the same is commenced within 2 years from the time of injury provided, however, that as a condition precedent thereof the operator shall be notified by certified return receipt mail within 90 days of said injury. The venue of any action against an operator shall be in the county where the ski area is located and not otherwise.

RSA 225-A:25, IV (emphasis added).

[1] [HN2] “Statutory interpretation is a question of law, which we review de novo.” Appeal of Local Gov’t Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). “In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Id. “We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning.” Id. “We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include.” Id. “We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result.” Id. “Moreover, we do not consider words [*4] and phrases in isolation, but rather within the context of the statute as a whole.” Id. “This enables us to better discern the legislature’s intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme.” Id. In the event that the statutory language is ambiguous, “we will resolve the ambiguity by determining the legislature’s intent in light of legislative history.” United States v. Howe, 167 N.H. 143, 148-49, 106 A.3d 425 (2014).

[2] The plaintiffs ask that we adopt the common law “mailbox rule” in interpreting the notice provision of RSA 225-A:25, IV. [HN3] The mailbox rule is one that is traditionally associated with contract law, and provides that acceptances are effective when they are no longer in the control of the sender. See Restatement (Second) of Contracts § 63 (1981). We have applied the doctrine in our contract jurisprudence. See Cushing v. Thomson, 118 N.H. 292, 294, 386 A.2d 805 (1978) (noting that a contract becomes complete when the acceptance has been mailed by the offeree, not when the acceptance is received by the offeror). The plaintiffs argue that we should apply the rule to RSA 225-A:25, IV notices. As a result, notice would become effective upon the date of mailing. Under the plaintiffs’ construction, therefore, notice was effectively given upon mailing, on May 3, [*5] 2012 — eighty-nine days after the date of the injury and within the statutory period.

The defendant, on the other hand, argues that the mailbox rule should not be read into the notice provision of RSA 225-A:25, IV. Instead, the defendant asks us to interpret the provision to require actual receipt of notice. Under the defendant’s construction, notice was given, at the earliest, upon its arrival at the Henniker post office on May 5, 2012 — ninety-one days after the date of the injury, and one day after the expiration of the statutory period.

We conclude that both the plaintiffs’ and the defendant’s proffered constructions are reasonable. Because RSA 225-A:25, IV’s language is subject to more than one reasonable interpretation, we would normally resolve the ambiguity by determining the legislature’s intent in light of legislative history. See Howe, 167 N.H. at 148-49 (quotation omitted). In this case, however, the legislative history is not helpful.

RSA 225-A:25, IV, originally codified as RSA 225-A:26, II, was enacted in 1965. See Laws 1965, 241:2. The provision was amended in 1978, increasing the notice period from within sixty days of injury to within ninety days of injury, among other changes. See Laws 1978, 13:5. In 2005, the provision was amended a final time in a manner [*6] not relevant to this appeal. See Laws 2005, 145:7. There are no committee reports, legislative debates, or other historical documents that shed light on the intentions of the legislature regarding the effectiveness of notice. As a result, a review of the legislative history is unavailing in resolving the ambiguity of RSA 225-A:25, IV.

[3, 4] [HN4] Without legislative history to guide us, “[w]e construe statutes to address the evil or mischief that the legislature intended to correct or remedy.” State v. Costella, 166 N.H. 705, 710, 103 A.3d 1155 (2014) (quotation omitted). However, this case involves competing policy interests. [HN5] On the one hand, RSA chapter 225-A was passed to “protect [New Hampshire’s] citizens and visitors” from hazards and the unsafe operation of ski areas and to allow those injured from such endangerments to seek compensation. RSA 225-A:1 (2011). On the other hand, the notice requirement allows ski operators to promptly investigate incidents, to evaluate the conditions of their premises and take any necessary remedial measures, and to adequately prepare to defend against claims. In the absence of legislative direction, we cannot determine the principal policy purpose of RSA 225-A:25, IV.

[5] Nonetheless, a decision must be made. Cf. 1 J.M. Perillo, Corbin on Contracts, § 3.24, at 440-41 (rev. ed. 1993) (noting [*7] with respect to the mailbox rule, “One of the parties must carry the risk of loss and inconvenience. We need a definite and uniform rule as to this. We can choose either rule; but we must choose one. We can put the risk on either party, but we must not leave it in doubt.”). [HN6] In accordance with the principles of uniformity and certainty, we hold that notice given pursuant to RSA 225-A:25, IV is effective upon mailing. In doing so, we narrowly apply the common law mailbox rule to RSA 225-A:25, IV, in consonance with holdings from other jurisdictions. See, e.g., Call v. Alexander Coal Co., 8 Ohio App. 3d 344, 8 Ohio B. 455, 457 N.E.2d 356, 357 (Ohio Ct. App. 1983) (“Where a statute specifies that a person shall be notified by a particular means, such as certified or registered mail, notice is effective when deposited in the mails.”).

Our holding favors the party who would be harmed more by a lack of certainty. As in this case, actual receipt a day beyond the 90-day period creates minimal inconvenience for the ski operator, for it hardly affects the ski area’s ability to evaluate its premises and investigate the incident in a timely manner. In contrast, under the alternative construction of the statute, the party allegedly injured by the operator’s wrongdoing is denied the right to bring suit even when receipt is late due [*8] to circumstances beyond that party’s control. We elect not to allow such forfeiture. See Opinion of the Justices, 126 N.H. 554, 566-67, 493 A.2d 1182 (1985).

[6] Furthermore, [HN7] “it is not to be presumed that the legislature would pass an act leading to an absurd result . …” Costella, 166 N.H. at 711 (quotation omitted). Were we to hold that notice under RSA 225-A:25 is effective upon actual receipt, delays caused by a carrier that postpones the delivery of notice, or loss or destruction of notice while in the mail system, would leave plaintiffs without recourse through no fault of their own — an absurd and unfair outcome which our holding avoids.

If the legislature disagrees with our interpretation of RSA 225-A:25, “it is free, subject to constitutional limitations, to amend the statute.” State v. Dor, 165 N.H. 198, 205-06, 75 A.3d 1125 (2013).

Accordingly, having determined that the plaintiffs satisfied the notice provision of RSA 225-A:25, IV by mailing the notice on May 3, 2012, we need not address the plaintiffs’ remaining arguments.

Reversed and remanded.

Dalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.


Becker v. Hoodoo Ski Bowl Developers, Inc., 269 Ore. App. 877; 346 P.3d 620; 2015 Ore. App. LEXIS 319

Becker v. Hoodoo Ski Bowl Developers, Inc., 269 Ore. App. 877; 346 P.3d 620; 2015 Ore. App. LEXIS 319

Tabitha Becker, Plaintiff-Appellant, v. Hoodoo Ski Bowl Developers, Inc., an Oregon corporation, dba Hoodoo Ski Area, Defendant-Respondent.

A154563

COURT OF APPEALS OF OREGON

269 Ore. App. 877; 346 P.3d 620; 2015 Ore. App. LEXIS 319

November 4, 2014, Argued and submitted

March 18, 2015, Decided

PRIOR HISTORY: [***1] Linn County Circuit Court. 112557. DeAnn L. Novotny, Judge.

DISPOSITION: Reversed and remanded.

COUNSEL: Kathryn H. Clarke argued the cause for appellant. With her on the briefs was William A. Gaylord.

Andrew C. Balyeat argued the cause for respondent. With him on the brief was Balyeat & Eager, LLP.

JUDGES: Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION BY: TOOKEY

OPINION

[**621] [*878] TOOKEY, J.

Plaintiff Becker, who was injured by a chair lift at Hoodoo’s ski area, brought this negligence action against defendant Hoodoo Ski Bowl Developers, Inc. (Hoodoo). Hoodoo filed a motion for summary judgment, arguing that it was entitled to the affirmative defense of release, and Becker filed a cross-motion for partial summary judgment, arguing that the release was unenforceable because it violated public policy and was procedurally and substantively unconscionable. The trial court granted Hoodoo’s motion for summary judgment, denied Becker’s cross-motion for partial summary judgment, and entered a judgment in favor of Hoodoo. Becker now appeals that judgment, renewing her argument that the release was unenforceable because it violated public policy and was procedurally and substantively unconscionable. For the reasons that follow, [***2] we reverse and remand.

[HN1] We review a trial court’s rulings on summary judgment to determine whether “there is no genuine issue as to any material fact” and whether “the moving party is entitled to prevail as a matter of law.” ORCP 47 C. “We view the historical facts set out in the summary judgment record, along with all reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party–plaintiff on defendant’s motion for summary judgment, and defendant on plaintiff’s cross-motion.” Bagley v. Mt. Bachelor, Inc., 356 Ore. 543, 545, 340 P3d 27 (2014) (Bagley II).

Becker’s husband purchased a lift ticket for Becker to ski at Hoodoo’s ski area. An anticipatory release, along with Hoodoo’s logo, appeared on the face of the lift ticket. The release read as follows:

“Release Agreement

“‘The purchaser or user of this ticket understands that skiing can be hazardous and accepts and assumes the inherent risks of skiing including but not limited to changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare sports [sic], creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their [*879] components, collisions with chairlifts, snow grooming equipment [***3] and other skiers, and a skier’s [**622] failure to ski within the skier[‘]s own ability. Always ski in control.’

“‘THE USER OF THIS TICKET HEREBY RELEASES HOODOO SKI BOWL DEVELOPERS, INC., d.b.a. HOODOO SKI AREA AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS TICKET INCLUDING BUT NOT LIMITED TO SKIING ACTIVITIES AND LOADING AND UNLOADING FROM LIFTS. THIS RELEASE INCLUDES CLAIMS BASED UPON NEGLIGENCE.[‘]

“The holder of this ticket as condition of being permitted to use the facilities of the area agrees to assume all risk of personal injury or loss of or damage to property and that the management is not responsible for ticket if lost or stolen. This ticket may be revoked without refund at any time for misconduct of or nuisance caused by the holder[.]

“NO REFUNDS NOT TRANSFERABLE”

(Capitalization in original; emphases added.) The release occupied approximately one-half of the face of the ticket, and the logo occupied the other half.1 Becker did not notice or read the release.

1 The lift ticket was “designed to have its backing removed, and to then be folded over a metal wicket so that the backs of each half stick together resulting in the Hoodoo [***4] logo being visible on one side and the release agreement visible on the other side.” That design allowed the user of the ticket to remove the backing and attach “the wicket to his or her clothing before using the ski lifts.”

A sign was also posted in Hoodoo’s ski area. The sign provided, in part, that

“[a] ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers or reasonably should have discovered, such injury. ORS 30.980(1). Failure to give notice as required by this section bars a claim for injuries or wrongful death. ORS 30.980(4).

“The above notice is required by Oregon Law and is presented in a manner reasonably calculated to inform. It is in addition to other notices and specific release agreements you may have entered into with Ski Area Management.”

[*880] On the day in question, Becker used a chair lift several times without incident. While Becker was waiting to again board the lift, a chair came around to the boarding area with its seat bottom upright. Becker “tried to turn her skis and go off to the right[,]” but the chair struck Becker, and she was injured.2

2 Becker’s complaint alleges, in part, that [***5] Becker

“was struck, lifted, run over, dragged and dropped by a moving chair lift, causing tearing, twisting, wrenching, bruising and abrading to the bones, muscles, ligaments, tendons, joints and associated soft tissues of her right arm and shoulder and both lower extremities, from all of which she suffered a dislocated right shoulder and associated brachial plexus injury, with radiculopathy and nerve pain and numbness into the fingers of her right hand, requiring her to undergo surgery and to keep her right arm in a sling, resulting in a temporary partially frozen shoulder, and a permanent partial disability of her shoulder and in continuing and intermittent pain, weakness, and reduced range of motion of her right arm; a low-back injury, with sciatic pain down her left leg; injuries to both knees, with parasthesia into the three middle toes of the left foot; and left heel and ankle pain and instability; and exacerbation of a pre-existing plantar fasciitis in her left foot. As a further result of these injuries, plaintiff is now at risk of developing arthritis in the injured areas as she ages.”

Becker subsequently filed this action, alleging that Hoodoo was negligent in its operation [***6] of the chair lift and that its negligence caused her injuries. Hoodoo filed a motion for summary judgment, arguing that it was entitled to the affirmative defense of release based on the release that was printed on Becker’s lift ticket. Becker filed a cross-motion for partial summary judgment, arguing that the release violated public policy and was procedurally and substantively unconscionable. After a hearing on those motions, the trial court ruled in favor of Hoodoo as noted above, and Becker now appeals.

On appeal, Becker contends that the trial court erred in granting Hoodoo’s motion for summary judgment, denying her cross-motion [**623] for partial summary judgment, and entering a judgment in favor of Hoodoo, again arguing that the release was unenforceable because it violated public policy and was procedurally and substantively unconscionable.3 Hoodoo responds that the trial court did not err [*881] because the release at issue is not contrary to public policy and is not unconscionable. In their appellate briefs, both parties cite Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390, 310 P3d 692 (2013) (Bagley I), rev’d, 356 Ore. 543, 340 P3d 27 (2014)–a case that was decided by this court after the parties argued their motions to the trial court and after the trial court entered judgment in favor [***7] of Hoodoo.

3 Becker also argues that “[t]here was no agreement reached under the circumstances of this case.” However, we need not decide that issue because, assuming without deciding that an agreement was reached in this case, enforcement of such an agreement would be unconscionable, as we conclude below.

The plaintiff in Bagley I, who had signed a release agreement4 when he purchased a season ski pass from the defendant Mt. Bachelor, Inc., was injured while snowboarding over a jump in the defendant’s “‘terrain park'” and brought an action alleging negligence in the design, construction, maintenance, or inspection of that jump. Id. at [*882] 392. There, as here, the defendant moved for summary judgment based on the affirmative defense of release, and the plaintiff argued that the release was contrary to public policy and unconscionable. After analyzing the facts in Bagley I, this court concluded that the release in that case was not contrary to public policy and that the terms of the release were neither procedurally nor substantively unconscionable. Id. at 410.

4 The release agreement at issue in Bagley, which was signed by the plaintiff, read, in part:

“‘In consideration of the use of a Mt. Bachelor pass and/or Mt. Bachelor’s [***8] premises, I/we agree to release and indemnify Mt. Bachelor, Inc., its officers and directors, owners, agents, landowners, affiliated companies, and employees (hereinafter ‘Mt. Bachelor, Inc.’) from any and all claims for property damage, injury, or death which I/we may suffer or for which I/we may be liable to others, in any way connected with skiing, snowboarding, or snowriding. This release and indemnity agreement shall apply to any claim even if caused by negligence. The only claims not released are those based upon intentional misconduct.

“‘* * * *

“‘The undersigned(s) have carefully read and understand this agreement and all of its terms on both sides of this document. This includes, but is not limited to, the duties of skiers, snowboarders, or snowriders. The undersigned(s) understand that this document is an agreement of release and indemnity which will prevent the under-signed(s) or the undersigneds’ estate from recovering damages from Mt. Bachelor, Inc. in the event of death or injury to person or property. The undersigned(s), nevertheless, enter into this agreement freely and voluntarily and agree it is binding on the undersigned(s) and the undersigneds’ heirs and legal representatives. [***9]

“‘By my/our signature(s) below, I/we agree that this release and indemnity agreement will remain in full force and effect and I will be bound by its terms throughout this season and all subsequent seasons for which I/we renew this season pass.

“‘See reverse side of this sheet * * * for duties of skiers, snowboarders, or snow riders which you must observe.'”

Bagley I, 258 Ore. App. at 392-93. (Capitalization omitted.) The “crux of the release agreement was also printed” on the plaintiff’s ski pass. Id. at 394.

In addition, a sign was posted at each of the defendant’s ski lift terminals, providing, in part, that “‘YOUR TICKET IS A RELEASE'” and advising members of the public not to purchase tickets without agreeing to be bound by the terms and conditions of the release. Id. at 395 (capitalization in original).

However, after the parties in this case briefed and argued this case to us, the Oregon Supreme Court reversed our decision in Bagley I. See Bagley II, 356 Ore. at 543. In so doing, the court explained that it would, “for the sake of convenience–if not doctrinal convergence–* * * address the parties’ public policy arguments in the context of [its] analysis of whether, in the particular circumstances of [that] case, enforcement of the release would be unconscionable.” Id. at 554. The court then [***10] set forth the “procedural factors” and “substantive considerations” that it gleaned from its prior decisions involving unconscionable contracts, stating:

“We glean from those decisions that [HN2] relevant procedural factors in the determination of whether enforcement of an anticipatory release would violate public policy or be unconscionable include whether the re [**624] lease was conspicuous and unambiguous; whether there was a substantial disparity in the parties’ bargaining power; whether the contract was offered on a take-it-or-leave-it basis; and whether the contract involved a consumer transaction. Relevant substantive considerations include whether enforcement of the release would cause a harsh or inequitable result to befall the releasing party; whether the releasee serves an important public interest or function; and whether the release purported to disclaim liability for more serious misconduct than ordinary negligence. Nothing in our previous decisions suggests that any single factor takes precedence over the others or that the listed factors are exclusive. Rather, they indicate that a determination whether enforcement of an anticipatory release would violate public policy or be unconscionable [***11] must be based on the totality of the circumstances of a particular transaction. The analysis in that regard is guided, but not limited, by the factors that this court previously has identified; it is also informed by any [*883] other considerations that may be relevant, including societal expectations.”

Id. at 560 (emphases added).

The court then analyzed those factors and considerations as they pertained to the facts in that case. When analyzing the procedural factors, the court noted that one factor–whether the release was conspicuous and unambiguous–weighed in favor of enforcement, as the plaintiff did not contend that he was surprised by the terms of the release. Id. at 561. The court then stated that “[o]ther procedural factors * * * point[ed] in a different direction[,]” noting that this “was not an agreement between equals” as “[o]nly one party to the contract–defendant–was a commercial enterprise, and that party exercised its superior bargaining strength by requiring its patrons, including plaintiff, to sign an anticipatory release on a take-it-or-leave-it basis as a condition of using its facilities.” Id. The court also noted that “plaintiff had no opportunity * * * to negotiate for different terms or pay an additional [***12] fee for protection against defendant’s negligence.” Id. at 562.

When analyzing the substantive considerations, the court stated that “the enforcement of the release would cause a harsh and inequitable result” to befall the plaintiff; that the “defendant’s business operation [was] sufficiently tied to the public interest as to require the performance of its private duties to its patrons[;]” and that “the fact that plaintiff’s claim [was] based on negligence rather than on more egregious conduct carries less weight than the other substantive factors[.]” Id. at 565-70. The court concluded by stating, “Because the factors favoring enforcement of the release are outweighed by the countervailing considerations that we have identified, we conclude that enforcement of the release at issue in this case would be unconscionable.” Id. at 573.

The release here is materially indistinguishable from the release at issue in Bagley, and, therefore, under the analysis set forth by the Oregon Supreme Court in Bagley II, we conclude that enforcement of the release in this case would likewise be unconscionable. Accordingly, Hoodoo is not entitled to prevail on its affirmative defense of release, [*884] and the trial court erred in granting [***13] Hoodoo’s motion for summary judgment, denying Becker’s cross-motion for partial summary judgment, and entering a judgment in favor of Hoodoo.

Reversed and remanded.


Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

Diana Camire v. The Gunstock Area Commission

No. 2013-258

SUPREME COURT OF NEW HAMPSHIRE

166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

February 26, 2014, Argued

June 18, 2014, Opinion Issued

PRIOR HISTORY: [***1]

Belknap

DISPOSITION: Affirmed.

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

1. Appeal and Error–Questions Considered on Appeal–Questions Not Preserved, but Considered Ordinarily, an appellate court will not review arguments that were not timely raised before the trial court because trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court, This rule, however, is not absolute. Preservation is a limitation on the parties to an appeal and not the reviewing court. [*375]

2. Torts–Defenses–Assumption of Risk The specification of “collisions with other skiers or other persons” in the enumerated categories of inherent risks in the statute regarding responsibilities of skiers and passengers plainly includes all person-to-person collisions. As the United States District Court for the District of New Hampshire has concluded, the plain and ordinary meaning of the statute’s immunity provision could hardly be clearer: it identifies collisions with other skiers or other persons as one of the risks, dangers, or hazards which the skier assumes as a matter of law. It makes no exception for collisions with skiers who are violating the statute, nor does it except collisions with ski area employees, even when those employees are themselves violating the statute or otherwise conducting themselves in a negligent or reckless fashion. RSA 225-A:24, I.

3. Torts–Defenses–Assumption of Risk Based upon the plain language of the statute regarding responsibilities of skiers and passengers, the legislature intended to include, as a category of inherent risk, collisions with ski area employees, regardless of whether they were working at the time of the collision. Thus, when a snowboarder collided with an instructor who was snowboarding prior to his scheduled “lineup,” the statute barred her vicarious liability claims as a matter of law. RSA 225-A:24, I.

4. Torts–Defenses–Assumption of Risk The current statute regarding responsibilities of skiers and passengers does not limit the risks assumed to those enumerated therein. Thus, “collisions with other skiers or other persons” does not exclude collisions with ski area employees because the legislature did not specifically identify them as an inherent risk of skiing, snowboarding, snow tubing, and snowshoeing. RSA 225-A:24, I.

5. Appeal and Error–Questions Considered on Appeal–Particular Cases Because plaintiff did not develop an argument as to why the trial court erred by granting summary judgment to defendant on her direct negligence claim, the court declined to review it.

COUNSEL: McLaughlin Law Office, P.C., of Laconia (Emily F. McLaughlin on the brief and orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and Leigh S. Willey on the brief, and Mr. Quarles orally), for the defendant.

JUDGES: CONBOY, J. DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

OPINION BY: CONBOY

OPINION

[**252] Conboy, J. The plaintiff, Diana Martinez (formerly Diana Camire), appeals an order of the Superior Court (O’Neill, J.) granting summary judgment in favor of the defendant, The Gunstock Area Commission (Gunstock), on the plaintiff’s claims for damages for negligence and recklessness. We affirm.

The following facts are drawn from the trial court’s order and the record, or are otherwise undisputed. On February 13, 2010, the plaintiff, a snowboarder, visited Gunstock’s ski and snowboard area. Posted on the wall of the ticket kiosk was a thirty-five inch by forty inch sign that recited, in part, the language of RSA 225-A:24 and also stated: “By purchasing and/or affixing a ticket to use our facilities, you are agreeing to accept, as a matter of law, all inherent risks of winter sports activities and agree not [*376] to sue Gunstock for NEGLIGENCE or any other [***2] legal claim.” (Bolding omitted.). See RSA 225-A:24 (2011) (outlining responsibilities of skiers and passengers). In addition, the back of the lift ticket purchased by the plaintiff included language stating that, as a condition of using the ski area, the purchaser or user of the ticket agreed to release Gunstock, and its employees and agents from any legal liability, including, but not limited to, claims for negligence.

Later that day, between 11:15 a.m. and 11:30 a.m., the plaintiff was injured when she was snowboarding on a ski trail and another snowboarder struck her from behind. The snowboarder was employed by Gunstock during the 2009-2010 season as a snowboard instructor. At the time of the collision, he was snowboarding prior to his scheduled 11:45 a.m. “lineup” in anticipation of a 12:00 p.m. lesson. The plaintiff alleges that she suffered injuries as a result of the collision.

The plaintiff sued Gunstock, asserting three counts based upon vicarious liability for the instructor’s alleged negligent and reckless conduct, and one count alleging that Gunstock was directly liable for negligently hiring, training, and supervising the instructor. The trial court granted Gunstock’s motion [***3] for summary judgment on all of the claims. This appeal followed.

[HN1] “In reviewing the trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” Sanchez v. Candia Woods Golf Links, 161 N.H. 201, 203, 13 A.3d 268 (2010) (quotation omitted). “If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.” Id. (quotation omitted). We review the trial court’s application of the law to the facts de novo. Id.

On appeal, the plaintiff argues that the trial court erred by determining that the liability releases barred her claims “in the absence of some evidence that [she] expressly agreed to [the] exculpatory language.” She also contends that the trial court erred in finding that, as a matter of law, the instructor was not in Gunstock’s employ at the time of the collision. She further asserts that RSA 225-A:24, I, “does not bar recovery for [a ski area] operator’s negligent supervision of its employees and the negligence of its agents in violation of their [***4] duties as employees.”

The defendant disputes the plaintiff’s contention that the releases do not preclude its liability and that the instructor was working at the time of the collision. The defendant further asserts that, even if the instructor had been “working at the time of the accident, because this accident was a skier-to-skier collision [–] an inherent [**253] risk of skiing, for which ski areas are immune [–] Gunstock would have immunity from [the plaintiff’s] claims.”

[*377] [1] We recognize that, in the trial court proceeding, neither party, nor the court, addressed the applicability of RSA 225-A:24, I, to the plaintiff’s claims. [HN2] Ordinarily, we will not review arguments that were not timely raised before the trial court, Baines v. N.H. Senate President, 152 N.H. 124, 128 (2005), because “trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court,” Petition of Guardarramos-Cepeda, 154 N.H. 7, 9, 904 A.2d 609 (2006) (quotation omitted). This rule, however, is not absolute. Id. As we have previously recognized, preservation is a limitation on the parties to an appeal and not the reviewing court. Id. The issue of whether a ski area operator has statutory [***5] immunity under RSA 225-A:24, I, presents a question of law that, in this case, is dispositive of the plaintiff’s vicarious liability claims. Accordingly, in the interest of judicial economy, and because both parties addressed the issue during oral argument before this court, we will consider it. See id.

Whether RSA 225-A:24, I, precludes the plaintiff’s vicarious liability claims is a question of statutory interpretation. [HN3] “We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Martin v. Pat’s Peak, 158 N.H. 735, 738, 973 A.2d 333 (2009) (quotation omitted). “We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used.” Id. (quotation omitted). “Our goal is to apply statutes in light of the legislature’s intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme.” Id. (quotation omitted).

RSA 225-A:24, I, provides, in pertinent part:

[HN4] Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain [***6] an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: … collisions with other skiers or other persons . …

(Emphasis added.). The plaintiff argues that the statute does not bar her claims because “collisions with other skiers or other persons” does not include collisions with employees of the ski area operator.

[2, 3] Contrary to the plaintiff’s argument, [HN5] the specification of “collisions with other skiers or other persons” in the enumerated categories of inherent risks plainly includes all person-to-person collisions. Cf. LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 94, 931 A.2d 571 (2007) (interpreting “any [*378] person injured” broadly within context of Consumer Protection Act). As the United States District Court for the District of New Hampshire recently concluded:

the “plain and ordinary meaning” of the [statute’s] immunity provision could hardly be clearer: it identifies “collisions with other skiers or other persons” as one of the “risks, dangers, or hazards which the skier assumes as a [***7] matter of law.” It makes no exception for collisions with skiers who are violating the [statute], nor does it except collisions with ski area employees, even when those employees are themselves violating [**254] the [statute] or otherwise conducting themselves in a negligent or reckless fashion.

Hanus v. Loon Mountain Recreation Corp., No. 13-cv-44-JL, 2014 U.S. Dist. LEXIS 52778, 2014 WL 1513232, at *3 (D.N.H. Apr. 16, 2014) (ellipsis omitted). If we were to conclude, as the plaintiff urges, that the legislature intended to exclude collisions with ski area employees, we would, in effect, be rewriting the statute. This we decline to do. See LaChance, 156 N.H. at 94. Thus, we hold that, [HN6] based upon the plain language of the statute, the legislature intended to include, as a category of inherent risk, collisions with ski area employees, regardless of whether they were working at the time of the collision.

The plaintiff relies upon Adie v. Temple Mt. Ski Area, 108 N.H. 480, 238 A.2d 738 (1968), to support her argument that a “ski area can be liable for an employee’s negligence, despite the existence of statutory immunity.” In Adie, we considered whether the statute barred “an action for negligent instruction against an operator who has undertaken [***8] to instruct skiers.” Adie, 108 N.H. at 482. We concluded that the statute did not bar recovery for a ski area operator’s negligence in ski instruction to a skier because “the statute does not regulate instruction in skiing by operators.” Id. at 483-84. We noted that “[i]f the Legislature had intended to bar skiers from actions against an operator for negligent instruction … , some regulation of their operations in th[is] area[ ] would have appeared in the statute.” Id. at 484. Here, unlike in Adie, the plaintiff’s vicarious liability claims allege injuries caused by a “collision[ ] with other skiers or other persons,” RSA 225-A:24, I; such claims are expressly addressed in the statute.

[4] Moreover, as we have previously explained, [HN7] the current statute “does not limit the risks assumed to those enumerated therein.” Rayeski v. Gunstock Area, 146 N.H. 495, 498, 776 A.2d 1265 (2001); see RSA 225-A:24, I (risks, hazards, or dangers “include but are not limited to” enumerated items). Thus, we disagree with the plaintiff to the extent that she argues that “collisions with other skiers or other persons,” RSA 225-A:24, I, excludes [*379] collisions with ski area employees because the legislature did not specifically [***9] identify them as an inherent risk of skiing, snowboarding, snow tubing, and snowshoeing.

Accordingly, because RSA 225-A:24, I, bars the plaintiff’s vicarious liability claims as a matter of law, the trial court properly granted summary judgment to Gunstock on those claims. In light of our holding, we need not decide whether the instructor was acting within the scope of his employment at the time of the collision or whether the claims are also barred by Gunstock’s liability releases.

[5] The final count of the plaintiff’s writ alleged negligence on the part of Gunstock in failing to properly hire, train, and supervise the instructor. Gunstock moved for summary judgment on this claim on the basis that the plaintiff could not establish a causal connection between her injury and the fact that the ski instructor worked for Gunstock. Although, on appeal, the plaintiff cites Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 485, 657 A.2d 417 (1995), for the proposition that “[a]n employer may be directly liable for damages resulting from the negligent supervision of its employee’s activities,” she does not develop an argument as to why the trial court erred by granting summary judgment to the defendant on her [***10] direct negligence claim. As she has failed to brief this argument sufficiently for appellate review, we decline to review it. See Porter [**255] v. City of Manchester, 155 N.H. 149, 157, 921 A.2d 393 (2007); State v. Blackmer, 149 N.H. 47, 49, 816 A.2d 1014 (2003).

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.


Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

Brian Kopeikin, M.D., Plaintiff, vs. Moonlight Basin Management, LLC, D/B/A Moonlight Ba In Resort, Defendant.

CV 13-C45-CBU-CDLC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BUTTE DIVISION

90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

February 9, 2015, Decided

February 9, 2015, Filed

PRIOR HISTORY: Kopeikin v. Moonlight Basin Mgmt., LLC, 981 F. Supp. 2d 936, 2013 U.S. Dist. LEXIS 160390 (D. Mont., 2013)

CORE TERMS: skier, skiing, rock, snow, elkhorn, ski, track, cat, terrain, inherent dangers, summary judgment, ski area, hazard, reasonable care, mountain, sport, hit, injuries resulted, surface, slope, skis, visible, ski resort, disputed, safely, skied, unmarked, matter of law, entitled to judgment, legal responsibility

COUNSEL: [**1] For Brian Kopeikin, M.D., Plaintiff: Edward P. Moriarity, MORIARITY BADARUDDIN & BOOKE, LLC, Missoula, MT.

For Moonlight Basin Management, LLC doing business as Moonlight Basin Resort, Defendant: Ian McIntosh, LEAD ATTORNEY, CROWLEY FLECK, Bozeman, MT.

JUDGES: Dana L. Christensen, Chief United States District Judge.

OPINION BY: Dana L. Christensen

OPINION

[*1104] ORDER

Before the Court is Defendant’s Motion for Summary Judgment. For the reasons explained, the Court grants the motion.

Synopsis

Plaintiff Dr. Brian Kopeikin (“Kopeikin”) was injured in a skiing accident in Montana. Kopeikin is a resident of California. He brought this diversity action against Defendant Montana ski area operator Moonlight Basin Management, LLC (“Moonlight”) asserting a claim for negligence sounding in premises liability and a claim for negligent hiring, training, supervision and management.

Earlier in the litigation, Moonlight moved to dismiss the Complaint asserting that it failed to state a claim under Montana’s skier responsibility statute, Montana Code Annotated § 23-2-736, because even as alleged all of Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. The Court denied the motion.

Now before the Court is Moonlight’s motion for summary judgment, and a [**2] fully-developed record in which several of Kopeikin’s key allegations from the Complaint are conclusively rebutted. On this updated evidentiary record, the Court concludes that Moonlight acted consistent with its duty of reasonable care and that all of Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. Accordingly, Moonlight is entitled to judgment as a matter of law and its motion for summary judgment is granted.

Factual Background1

1 Defendant filed its motion for summary judgment on June 23, 2014, and Kopeikin responded on July 25, 2014. In accordance with Local Rule 56.1(b), Kopeikin simultaneously filed a separate Statement of Disputed Facts with his brief in opposition to the motion for summary judgment. Then, on the afternoon of January 28, 2015, less than 24 hours prior to a hearing on the motion, Kopeikin filed a document styled as a “Supplement to Statement of Disputed Facts.” (Doc. 41.) Kopeikin did not seek leave of Court to file the “Supplement,” and the filing is not contemplated by Local Rules. Indeed, it is contrary to the Local Rule’s requirement that a Statement of Disputed Facts be filed “simultaneously with” the brief in opposition. L.R. 56.1(b). The filing is untimely by [**3] at least six months, and Kopekin has not sought leave to file it. Accordingly, its contents are not considered for purposes of deciding this motion.

On February 5, 2012, Kopeikin and his skiing partner, Sven Rose, purchased lift tickets to ski Moonlight Basin ski resort. Near the ticket booth where Kopeikin purchased his ticket is a sign warning skiers of unmarked hazards. Kopeikin is a very experienced skier, having skied at several ski resorts throughout the Rocky Mountain West over the past 36 years, and he had seen similar signs at other ski resorts warning patrons of unmarked hazards. Kopeikin knew that the presence of rocks is common at ski areas in the Rocky Mountains, such as Moonlight, and he did not expect that all hazards at Moonlight would be marked.

Skiing conditions at Moonlight on February 5, 2012, were generally good, with [*1105] clear skies, calm winds, and temperatures near thirty-two degrees. However, it was a low snow coverage year, and Kopeikin acknowledges that prior to his accident he saw uncovered rocks on the sides of the ski runs. Rocks are prevalent at Moonlight.

After skiing several easier warm-up runs, Kopeikin and Rose decided to take the Six Shooter chairlift up [**4] the mountain in an effort to access an area of more challenging, expert terrain known as Headwaters. Upon learning that hiking was required to access the terrain, and due to their concern about a lack of sufficient snow coverage, the two men decided not to ski Headwaters.

Instead, Kopeikin and Rose decided to ski a run called “Elkhorn.” At the unloading area for the Six Shooter chairlift there is a sign identifying Elkhorn as a black diamond, or “most difficult,” run. (Doc. 21-9; 30-7.) To access Elkhorn, Kopeikin and Rose began by skiing on an intermediate run called “Fast Lane.” On Fast Lane, there were plainly visible rocks above the snow surface that Kopeikin admits that he likely saw.

The two then approached the entrance to Elkhorn. Immediately before the entrance to Elkhorn, there is a sign indicating, again, that Elkhorn is designated a black diamond, or “most difficult,” run. (Doc. 21-13.) Kopeikin and Rose skied past this sign and onto Elkhorn. At this point, the terrain steepened and narrowed, and the ski run was occupied by obstacles such as moguls and snowdrifts.2 As Kopeikin began skiing down Elkhorn, plainly visible grass and rocks could be seen poking through the snow on [**5] the side of the run.

2 A snowdrift, or wind drift, is defined as “a heap of snow piled up by the wind.” Webster’s New World Dictionary (4th Ed., Wiley Publishing 2002). In his deposition, Kopeikin referred to the snowdrifts as “drift lumps.” (Doc. 25-4 at 93.)

Approximately 200 yards below the entrance of Elkhorn, there is an area where a cat track, or its remains, crosses Elkhorn. In 2007, after determining the cat track was not being used regularly, Moonlight removed the edges of the cat track where it crossed Elkhorn in an attempt to return the slope to its natural condition. The cat track, or what remains of it, partially obscures the terrain immediately below it.

Rose skied in front of Kopeikin and successfully navigated the cat track and the terrain immediately below it. Kopeikin estimates that he was skiing behind Rose at approximately 10 to 15 miles per hour. Kopeikin “came over the cat track and absorbed it[] and when [his] skis touched down both hit rocks,” and he was ejected from his skis. (Doc. 25-4 at 120.) He fell forward and landed in other rocks that were either visible or buried under the snow. As a result of his fall, Kopeikin suffered serious and disabling injuries that [**6] necessitated extensive medical care and treatment.

Kopeikin testified that he “would not have fallen because of the cat track,” id. at 124:1-2, but fell because his “skis hit rocks.” Id. at 124:2-3. The particular rock that caused him to be ejected from his ski was one that he could not see because it was under the snow and was “something you had to penetrate and hit with a little force.” Id. at 146:14-15.

From 2003, when Moonlight opened, through the end of the 2012 ski season, Moonlight had approximately 700,000 skier visits. Other than Kopeikin’s accident, there have been no other reported accidents due to rocks in the location of the subject accident.3

3 Kopeikin disputes whether any other accidents had been reported at the location of his accident, but he presents no contrary evidence. In an effort to show that the fact is disputed, Kopeikin cites to the Court three incident reports involving skiing or snowboarding accidents on the Elkhorn run generally. These include: (1) a 2013 accident that occurred somewhere on Elkhorn in which a woman with “no vision on one side” bumped into her daughter on her blind side and fell, (Doc. 25-11 at 3); (2) a 2011 accident in which a snowboarder “was [**7] going down of [sic] the second hill of elkhorn [and] rolled forward,” (Doc. 25-9 at 2-3.); and (3) a 2008 accident that occurred on the “left side on skiers L of Lower Elkhorn” in which a snowboarder “caught [his] edge on ice [and] fell forward,” (Doc. 25-10 at 2-3). None of these accident appear to have occurred at the location of Kopeikin’s accident, and all of them are, in any case, of such dissimilar nature as to be immaterial to the Court’s analysis.

[*1106] Legal Standard

A party is entitled to summary judgment if it can demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248. In ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The “mere existence of a scintilla of evidence in support of the plaintiff’s [**8] position” is insufficient to defeat a properly supported motion for summary judgment. Id. at 252.

Discussion

In this diversity action, the Court applies Montana substantive law. Erie R.R. v. Tompkins, 304 U.S. 64, 79, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

Pursuant to Montana statute, “[a] skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing.” Mont. Code Ann. § 23-2-736(4). The “inherent dangers and risks of skiing” are statutorily defined as “those dangers or conditions that are part of the sport of skiing,” including in pertinent part:

. . .

(b) snow conditions as they exist or as they may change, . . .

. . .

(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps . . . and other natural objects;

. . .

(f) variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks,4 and other terrain modifications.

Id. at § 702(2).

4 Consistent with its Order of November 7, 2013, the Court interprets the term “catwalk” to be synonymous with the term “cat track.” No objection to this interpretation has been raised by the parties. [**9]

Under Montana statute, “[a] skier has the duty to ski at all times in a manner that avoids injury to the skier and others and to be aware of the inherent dangers and risks of skiing.” Id. at § 736(1). Additionally, Montana statute requires a skier to “know the range of the skier’s ability and safely ski within the limits of that ability . . . so as to negotiate any section of terrain or ski slope and trail safely and [*1107] without injury or damage.” Id. at 736(2)(a). A skier is also statutorily required to “know that the skier’s ability may vary because of ski slope and trail changes caused by weather, grooming changes, or skier use.” Id.

A ski area operator must act “consistent with the duty of reasonable care owed by a ski area operator to a skier.” Id. at § 733. Montana’s skier responsibility statutes cannot be read to immunize ski resorts from their own negligent or intentional acts, because such an interpretation would violate Montana’s constitution. Mead v. M.S.B., Inc., 264 Mont. 465, 872 P.2d 782, 788 (Mont. 1994). However, the stated purpose of Montana’s skier responsibility statutes is to “discourage[] claims based on damages resulting from the inherent risks of skiing.” Mont. Code Ann. § 23-2-731.

In ruling on Defendant’s motion to dismiss, the Court articulated an interpretation of Montana’s skier [**10] responsibility statutes that harmonizes the definition of the inherent dangers and risks of skiing with the requirement that a ski area operator act consistent with its duty of reasonable care. In so doing, the Court rejected the notion that a court’s only role in ski area liability cases is to inquire whether the plaintiff’s injuries resulted from a collision with a particular object appearing on the statutory list of inherent risks of skiing, because such an application would produce absurd results and render the statute unconstitutional. Kopeikin v. Moonlight Basin Management, LLC, 981 F.Supp.2d 936, 945 (D. Mont. 2013). At the same time, not every case involving hazards on a ski mountain presents a genuine dispute of fact appropriate for trial, and summary judgment will sometimes be appropriate. Id. at 943.

Ultimately, Montana’s skier responsibility statutes make clear that the duty of reasonable care owed by a ski area operator to a skier “must be viewed in the unique context of skiing.” Id. at 945. Skiing is a sport in which thrill-seeking skiers embrace its inherent dangers and risks. It is a sport that occurs on “a mighty mountain, with fluctuation in weather and snow conditions that constantly change.” Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786, 791 (D. Vt. 1951). “[A] ski area operator cannot be expected to expend all of its resources [**11] making every hazard or potential hazard safe, assuming such an end is even possible,” or desirable. Kopeikin, 981 F.Supp.2d at 946. “Ski areas encompass vast and unwieldy terrain and mother nature is always at play.” Id. The act of skiing in such terrain presents an obvious array of dangers to a skier, many of which the ski area operator has no duty to protect against under Montana law. Fundamentally, a skier bears much of the responsibility for avoiding injury to himself, which is a principal that is consistent with Montana law.

In this case, Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. Without question, applying a plain language interpretation of Montana’s skier responsibility statutes leads to this conclusion. In snow conditions as they existed on February 4, 2012, Kopeikin skied over a variation in terrain and collided with a subsurface rock that caused him to fall and collide with other surface or subsurface rocks. Thus, the accident falls clearly within the definition of the inherent dangers and risks that are part of the sport of skiing. Mont. Code Ann. § 23-2-701(2)(b)(d)&(f). Furthermore, Kopeikin failed to negotiate the terrain safely and without injury. Notwithstanding his years of experience and expertise, [**12] he failed to ski in manner that avoided injury to himself and to be aware of the inherent dangers and risks of skiing. See id. at § 23-2-736. Accordingly, so long as Moonlight [*1108] acted consistent with its duty of reasonable care owed to Kopeikin, Kopeikin must accept all legal responsibility for his injuries. Id. at § 23-2-736(4).

It is clear that Moonlight acted consistent with its duty of reasonable care as a ski area operator with respect to Kopeikin. Moonlight warned generally of unmarked hazards. It posted multiple signs designating the run on which Kopeikin was injured a black diamond, or most difficult, run. With respect to the cat track, Moonlight had taken efforts to remove it and return the slope back to its natural condition.

Kopeikin did not suddenly and blindly encounter an unmarked cat track. Rather, Kopeikin admits that what remained of the cat track could be clearly seen from above. Also, the rocks that Kopeikin collided with, like all of the rocks on the Elkhorn run, were naturally occurring. Without citation to any record evidence, Kopeikin asks the Court to infer that some of the rocks in the area where he fell unnaturally accumulated there through the process of removing the cat track back [**13] in 2007. The record evidence, however, establishes the opposite — the process of removing the cat track reduced the number of rocks in the area because many of the rocks were covered up during the cat track removal process.

Furthermore, with over 700,000 skier visits, there had never been another reported accident at the location of Kopeikin’s accident caused by a collision with rocks. According to Kopeikin, the rock that he hit with his skis, which caused him to fall, was buried under the snow and “was something you had to penetrate and hit with a little force and then it was there.” (Doc. 25-4 at 147.) Thus, Kopeikin’s theory that Moonlight had a duty to warn of these specific rocks, is undermined by this specific accident’s unforeseeability, despite the fact that accidents of this general nature were foreseeable to skiers that were skiing on the mountain in low snow conditions. To impose a duty on Moonlight to mark or remove all submerged rocks, which are not readily visible, would be to require Moonlight to undertake an impossibility.

Kopeikin himself recognized that it was a low snow year. He had seen other rocks on other runs prior to skiing Elkhorn. He elected not to ski Headwaters [**14] in part because there was “no snow.” (Doc. 25-4 at 90.) He rightly did not expect that all hazards on the mountain would be marked. On Elkhorn, rocks and grass were plainly visible. When he approached the area of Elkhorn where the remains of the cat track obscured the terrain immediately below, he did not stop and assess what was below.

It is clear that Montana’s skier responsibility statutes apply to these facts, that Kopeikin encountered the inherent dangers and risks of skiing, and that he must therefore accept all legal responsibility for his injuries and damages. As was eloquently stated by Judge Gibson in granting a directed verdict for the defendant ski area operator against a claim by a plaintiff injured when her skis unexpectedly hit a tree stump buried under the snow:

Skiing is a sport; a sport that entices thousands of people; a sport that requires an ability on the part of the skier to handle himself or herself under various circumstances of grade, boundary, mid-trail obstructions, corners and varied conditions of the snow. Secondly, it requires good judgment on the part of the skier and recognition of the existing circumstances and conditions. Only the skier knows his own [**15] ability to cope with a certain piece of trail. Snow, ranging from powder to ice, can be of infinite kinds. Breakable crust may be encountered where soft snow is expected. [*1109] Roots and rocks may be hidden under a thin cover. A single thin stubble of cut brush can trip a skier in the middle of a turn. Sticky snow may follow a fast running surface without warning. Skiing conditions may change quickly. What was, a short time before, a perfect surface with a soft cover on all bumps may fairly rapidly become filled with ruts, worn spots and other manner of skier created hazards.

Wright, 96 F.Supp. at 790-91 (emphasis added).

The Montana Legislature has recognized these truths about skiing and codified them, so that a skier has a duty to ski safely and within his abilities, and accepts all responsibility for injuries resulting from the inherent dangers and risks of skiing. Because Kopeikin’s injuries resulted only from the inherent dangers and risks of skiing and because Moonlight did not breach its duty of reasonable care, Moonlight is entitled to judgment as matter of law.

IT IS ORDERED that Moonlight’s motion for summary judgment (Doc. 20) is GRANTED. IT IS FURTHER ORDERED that all other motions are DENIED AS MOOT. The [**16] clerk shall enter judgment in favor of Defendant and against Plaintiff. This case is CLOSED.

Dated this 9th day of February 2015.

/s/ Dana L. Christensen

Dana L. Christensen, Chief District Judge

United States District Court


Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

David Karlsberg, appellant, v Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain, respondent. (Index No. 38816/11)

2014-05431

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

September 23, 2015, Decided

COUNSEL: [*1] The Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and Meir Katz of counsel), for appellant.

Carol A. Schrager, New York, N.Y. (Beth A. Willensky of counsel), for respondent.

JUDGES: JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, JJ. LEVENTHAL, J.P., ROMAN, and HINDS-RADIX, JJ., concur.

OPINION

[***746] DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Pastoressa, J.), entered March 24, 2014, as, upon reargument, adhered to a prior determination in an order of the same court dated December 3, 2012, granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.

ORDERED that the order entered March 24, 2014, is affirmed insofar as appealed from, with costs.

On March 19, 2011, the plaintiff sought beginner snowboarding lessons at the defendant’s facility, and signed an “Equipment Rental Form and Release of Liability” that provided, among other things, that

“all disputes arising under this contract and/or the use of this equipment and/or the use of the facilities [*2] at Hunter Mountain Ski Bowl, shall be litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.”

In December 2011, the plaintiff commenced this action in the Supreme Court, Suffolk County, alleging that an instructor employed by the defendant failed to provide him with proper instruction, causing him to sustain injuries while snowboarding at the defendant’s facility. In September 2012, the defendant moved, inter alia, pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.

Upon reargument, the Supreme Court properly adhered to its original determination [***747] granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County. Contrary to the plaintiff’s contentions, the “Equipment Rental Form and Release of Liability” was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not [**2] contravene public policy (see Molino v Sagamore, 105 AD3d 922, 923, 963 N.Y.S.2d 355; KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 AD3d 650, 651, 897 N.Y.S.2d 649; LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395, 817 N.Y.S.2d 657). Contrary to the plaintiff’s additional contention, the defendant’s motion was timely, inasmuch as it was [*3] made within a reasonable time after the commencement of the action (see CPLR 511[a]; Medina v Gold Crest Care Ctr., Inc., 117 AD3d 633, 634, 988 N.Y.S.2d 578; Bonilla v Tishman Interiors Corp., 100 AD3d 673, 953 N.Y.S.2d 870).

LEVENTHAL, J.P., ROMAN, and HINDS-RADIX, JJ., concur.

CONCUR BY: DICKERSON

CONCUR

DICKERSON, J., concurs in the result, on constraint of Molino v Sagamore (105 AD3d 922, 963 N.Y.S.2d 355), with the following memorandum:

I vote with the majority on constraint of this Court’s precedent, but I write separately to express my view that the better rule is one where forum selection clauses are not to be enforced if they are shown to consumers for the first time upon their arrival at a resort.

In Molino, the injured plaintiff made a reservation to stay as a guest at a resort in Warren County (see id.). Upon arrival, and while registering for the stay, the injured plaintiff signed a document, entitled “Rental Agreement,” containing a provision stating that “if there is a claim or dispute that arises out of the use of the facilities that results in legal action, all issues will be settled by the courts of the State of New York, Warren County” (id.). After the injured plaintiff allegedly tripped and fell on the resort’s property, she, and her husband suing derivatively, commenced an action against the resort in the Supreme Court, Queens County (see id.). This Court held that the Supreme [*4] Court should have granted the defendant’s motion pursuant to CPLR 501 and 511 to change the venue of the action from Queens County to Warren County, concluding that the plaintiffs failed to demonstrate that: (1) enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy; (2) the clause was invalid because of fraud or overreaching; or (3) a trial in the selected forum of Warren County would, for all practical purposes, deprive them of their day in court (see id. at 923).

In so holding, the Molino Court cited Carnival Cruise Lines, Inc. v Shute (499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622) for the proposition that “the fact that the Rental Agreement containing the forum selection clause was presented to the plaintiffs at registration and was not the product of negotiation does not render it unenforceable” (Molino v Sagamore, 105 AD3d at 923). In Carnival Cruise Lines, the United States Supreme Court concluded that the United States Court of Appeals for the Ninth Circuit erred in refusing to enforce a forum selection clause contained on the face of cruise tickets issued to the plaintiffs in that case. However, the United States Supreme Court noted that it did not “address the question of whether [the plaintiffs] [***748] had sufficient notice of the forum selection clause before [*5] entering the contract for passage” (Carnival Cruise Lines, Inc. v Shute, 499 US at 590) because the plaintiffs had essentially conceded that they had notice of the forum selection provision and the Ninth Circuit had evaluated the enforceability of the forum clause under the assumption, although ” doubtful,'” that the passengers could be deemed to have knowledge of the clause (id., quoting Shute v Carnival Cruise Lines, 897 F2d 377, 389 n 11 [9th Cir]).

In Sun Trust Bank v Sun Intl. Hotels Ltd. (184 F Supp 2d 1246 [SD Fla]) and Foster v Sun Intl. Hotels, Ltd. (2002 WL 34576251, 2002 US Dist LEXIS 28475 [SD Fla, No. 01-1290-CIV]), the United States District Court for the Southern District of Florida concluded that forum selection clauses set forth in reservation forms that were not shown to consumers until they arrived at a resort were unenforceable because the consumers were not given an adequate opportunity to consider the clause and reject their contracts with the resort (see Foster v Sun Intl. Hotels Ltd., 2002 WL 34576251, *1, 2002 US Dist LEXIS 28475 *3-4; Sun Trust Bank v Sun Intl. Hotels Ltd., 184 F Supp 2d at 1261-1262). Similarly, in Ward v Cross Sound Ferry (273 F3d 520 [2d Cir]), the United States Court of Appeals for the Second Circuit held that a contractual statute of limitations clause set forth in a ticket issued to a cruise passenger just minutes before she boarded a ship, and then collected at boarding, was not enforceable because the circumstances did not permit the passenger to become meaningfully informed of the contractual terms at stake (see id. at 523-526). By contrast, where forum selection clauses have been sent [*6] to consumers or travel agents prior to the [**3] consumer’s arrival at the subject resort, or where consumers had visited the subject resort on previous occasions and signed forms containing similar forum selection clauses, the United States Court of Appeals for the Eleventh Circuit has found that the clauses were reasonably communicated to the consumers and, thus, enforceable (see McArthur v Kerzner Intl. Bahamas Ltd., 607 Fed. Appx. 845, 2015 WL 1404409, *1-2, 2015 US App LEXIS 5058, *6-7 [11th Cir, No. 14-138897]; Pappas v Kerzner Intl. Bahamas Ltd., 585 Fed Appx 962, 965-966 [11th Cir]; Estate of Myhra v Royal Caribbean Cruises, Ltd., 695 F3d 1233, 1246 [11th Cir]; Krenkel v Kerzner Intl. Hotels Ltd., 579 F3d 1279, 1282 [11th Cir]).

While I believe that the federal cases discussed above set forth the better rule, the doctrine of stare decisis dictates that we follow our prior decision in Molino, which is factually indistinguishable from this case in all relevant respects (see Matter of State Farm Mut. Auto Ins. Co. v Fitzgerald, 25 NY3d 799, 2015 NY Slip Op 05626 [2015]; Eastern Consol. Props. v Adelaide Realty Corp., 95 NY2d 785, 788, 732 N.E.2d 948, 710 N.Y.S.2d 840). Accordingly, I agree with the majority that the subject forum selection clause was enforceable, notwithstanding the fact that it was shown to the plaintiff for the first time upon his arrival at the defendant’s facility. I also agree with the majority’s other conclusions, and that, upon reargument, the Supreme Court properly adhered to its prior determination granting that branch of the defendant’s motion which was pursuant to CPLR 501 and 511 to change the venue of the action from Suffolk County to Greene County.


Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

April Dodge, Plaintiff-Respondent, v. Grafton Zipline Adventures, LLC, and Michael Quinn, Defendants-Petitioners.

NO. 5-14-0124

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

2015 IL App (5th) 140124-U; 2015 Ill. App. Unpub. LEXIS 1584

July 14, 2015, Decision Filed

NOTICE: THIS ORDER WAS FILED UNDER SUPREME COURT RULE 23 AND MAY NOT BE CITED AS PRECEDENT BY ANY PARTY EXCEPT IN THE LIMITED CIRCUMSTANCES ALLOWED UNDER RULE 23(E)(1).

PRIOR HISTORY: [**1] Appeal from the Circuit Court of Madison County. No. 13-L-238. Honorable Barbara L. Crowder, Judge, Presiding.

Dodge v. Grafton Zipline Adventures, LLC, 2014 Ill. LEXIS 1270, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill., 2014)

JUDGES: JUSTICE SCHWARM delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

OPINION BY: SCHWARM

OPINION

ORDER

[*P1] Held: Appellate court declines to answer the certified question and remands to the trial court to hear evidence to determine whether exculpatory agreement is between the public and one charged with a duty of public service, i.e., a common carrier, and therefore unenforceable.

[*P2] The plaintiff, April Dodge, filed the instant suit seeking recovery for injuries she sustained while riding on an aerial zip line course designed and operated by defendant Grafton Zipline Adventures, LLC (Grafton Zipline), by which defendant Michael Quinn is employed. The circuit court certified a question after denying the defendants’ motion to dismiss.

[*P3] BACKGROUND

[*P4] In her first amended complaint filed on May 3, 2013, the plaintiff alleged that Grafton Zipline operated an aerial zip line course in which paying guests, riding from one elevated platform to another, were guided over a series of suspended wire cable runs. The plaintiff alleged that [**2] “guests [we]re outfitted with a harness and pulley system which attache[d] to the suspended cables and which in theory allow[ed] them to control their speed by braking on descents.” The plaintiff alleged that on the eighth run of the zip line course, the plaintiff’s braking system failed to slow her descent, she approached the landing platform at a high rate of speed, and she violently struck the trunk of the tree on which the landing platform was mounted, fracturing her right heel bone.

[*P5] In count I, the plaintiff alleged that Grafton Zipline was a common carrier that breached its duty of care by negligently designing and operating its course, intentionally or recklessly violated the safety regulations promulgated by the Illinois Department of Labor (56 Ill. Adm. Code 6000.350 (2013)), and thereby engaged in willful and wanton misconduct. In count II, the plaintiff claimed that Quinn, a tour guide for Grafton Zipline, was negligent in instructing the plaintiff, in inspecting and maintaining the braking system, and in failing to prevent the plaintiff from colliding with the tree. The plaintiff also alleged willful and wanton misconduct against Quinn.

[*P6] On June 7, 2013, pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)), the defendants [**3] filed a motion to dismiss the plaintiff’s first amended complaint on the basis that the plaintiff’s claims were barred by an exculpatory agreement signed by the plaintiff prior to her participation in the zip line activity. In the agreement, the plaintiff agreed to release the defendants from liability for injury, disability, death, or loss or damage to persons or property, whether caused by negligence or otherwise.

[*P7] In the plaintiff’s memorandum of law in opposition to the defendants’ motion to dismiss, the plaintiff asserted that the defendants’ exculpatory agreement was unenforceable. The plaintiff asserted that zip line courses are common carriers under Illinois law, and as such, they cannot exempt themselves from liability for their own negligence.

[*P8] On November 1, 2013, the circuit court held that exculpatory clauses were unenforceable against plaintiffs injured by the ordinary negligence of a common carrier. The circuit court noted that when parties disagree as to whether a defendant is a common carrier, the question becomes a controverted question of fact to be determined after considering evidence. However, the circuit court found that the pleadings before it alleged sufficient [**4] facts to establish that the defendants were common carriers, in that zip lines fell within the definition of amusement rides pursuant to the Illinois Carnival and Amusement Rides Safety Act (430 ILCS 85/2-2 (West 2012)) and were akin to merry-gorounds or other amusement rides that had been held to be common carriers. The circuit court thereby denied the defendants’ section 2-619 motion to dismiss based on the exculpatory clause but also stated that “questions of fact remain as to whether [d]efendants *** are within the definition of common carriers.”

[*P9] On March 6, 2014, the circuit court, pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010), entered its order certifying the following question for appeal:

“Is an exculpatory agreement signed by a participant on a zip[ ]line course, that released the zip[ ]line operator and its employees from their own negligence, enforceable to bar the participant’s suit for negligence, or is the zip[ ]line course a common carrier such that the exculpatory agreement is unenforceable?”

[*P10] On March 20, 2014, the defendants filed an application for permissive interlocutory appeal, which we denied on April 21, 2014. On September 24, 2014, however, the Illinois Supreme Court directed this court to vacate its judgment denying [**5] the defendants’ application for leave to appeal and directed us to grant such application. Dodge v. Grafton Zipline Adventures, LLC, 387 Ill. Dec. 513, 22 N.E.3d 1166 (Ill. 2014). On November 5, 2014, per the supreme court’s supervisory order and pursuant to Illinois Supreme Court Rule 308, we thereafter allowed the defendants’ permissive interlocutory appeal.

[*P11] ANALYSIS

[*P12] On appeal, the defendants argue that the exculpatory agreement signed by the plaintiff bars her negligence claims and that the exculpatory agreement is enforceable because Grafton Zipline is not a common carrier. The plaintiff counters that the circuit court’s certified question is not ripe for determination because there are unresolved questions of fact regarding whether Grafton Zipline is a common carrier. We agree with the plaintiff.

[*P13] “The scope of review in an interlocutory appeal brought under [Illinois Supreme Court] Rule 308 is limited to the certified question.” Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th) 120289, ¶ 15, 986 N.E.2d 216, 369 Ill. Dec. 267. “A reviewing court should only answer a certified question if it asks a question of law and [should] decline to answer where the ultimate disposition ‘will depend on the resolution of a host of factual predicates.’ [Citations.]” Id. “A certified question pursuant to Rule 308 is reviewed de novo.” Id.

[*P14] An exculpatory [**6] clause is a contractual provision that excuses the defaulting party’s liability. See Black’s Law Dictionary 648 (9th ed. 2009) (defining an exculpatory clause as “a contractual provision relieving a party from liability resulting from a negligent or wrongful act”); McKinney v. Castleman, 2012 IL App (4th) 110098, ¶ 14, 968 N.E.2d 185, 360 Ill. Dec. 106 (exculpatory agreement involves express assumption of risk wherein one party consents to relieve another of a particular obligation). “Courts disfavor such agreements and construe them strictly against the benefitting party, particularly one who drafted the release.” McKinney, 2012 IL App (4th) 110098, ¶ 14. “Nevertheless, contracting parties are free to ‘allocate the risk of negligence as they see fit, and exculpatory agreements do not violate public policy as a matter of law.'” Id. (quoting Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407, 412, 869 N.E.2d 195, 311 Ill. Dec. 521 (2007)).

[*P15] Accordingly, if a valid exculpatory clause clearly applies, and in the absence of fraud or willful and wanton negligence, courts will enforce it unless “‘(1) it would be against a settled public policy of the State to do so, or (2) there is something in the social relationship of the parties militating against upholding the agreement.'” McKinney, 2012 IL App (4th) 110098, ¶ 14 (quoting Harris v. Walker, 119 Ill. 2d 542, 548, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988)). Exculpatory agreements between the public and those charged with a duty of public service, such as those involving a common [**7] carrier, an innkeeper, a public warehouseman, or a public utility, have been held to be unenforceable as contrary to public policy. McKinney, 2012 IL App (4th) 110098, ¶ 14; Johnson v. Salvation Army, 2011 IL App (1st) 103323, ¶ 19, 957 N.E.2d 485, 354 Ill. Dec. 169; White v. Village of Homewood, 256 Ill. App. 3d 354, 358-59, 628 N.E.2d 616, 195 Ill. Dec. 152 (1993). Courts have alternatively recognized that exculpatory agreements between common carriers and passengers are unenforceable because of the special social relationship of a semipublic nature that permeates the transaction between the parties. See McClure Engineering Associates, Inc. v. Reuben Donnelley Corp., 101 Ill. App. 3d 1109, 1111, 428 N.E.2d 1151, 57 Ill. Dec. 471 (1981); First Financial Insurance Co. v. Purolator Security, Inc., 69 Ill. App. 3d 413, 419, 388 N.E.2d 17, 26 Ill. Dec. 393 (1979) (“when an exculpatory provision is found invalid because of a special relationship between the parties, it is the semipublic nature of the party seeking to exculpate itself from liability that allows the court to invalidate the provision”).

[*P16] Thus, any contract by which a common carrier of goods or passengers undertakes to relieve itself from liability for loss or damage arising from its negligence or the negligence of its servants is void. Checkley v. Illinois Central R.R. Co., 257 Ill. 491, 494, 100 N.E. 942 (1913); Simmons v. Columbus Venetian Stevens Buildings, Inc., 20 Ill. App. 2d 1, 17, 155 N.E.2d 372 (1958); Restatement (Second) of Torts § 496B cmt. g (1965) (“Where the defendant is a common carrier ***, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect.”). “Having undertaken the duty to the public, which includes the obligation of reasonable care, [**8] [common carriers] are not free to rid themselves of their public obligation by contract, or by any other agreement.” Restatement (Second) of Torts § 496B cmt. g (1965).

[*P17] An exculpatory contract, wherein a common carrier of goods or passengers undertakes to exempt itself from liability for negligence “if sustained, would relieve the carrier from its essential and important duties to the public growing out of the character of its employment, and tend to defeat the foundation principle on which the law of common carriers is based; that is, the securing of the highest care and diligence in the performance of the important duties due to the public.” Checkley, 257 Ill. at 494; see also Simmons, 20 Ill. App. 2d at 17. “The heightened status afforded to common carrier[ ] *** relationships is based on the protection of the public ***.” Zerjal v. Daech & Bauer Construction, Inc., 405 Ill. App. 3d 907, 912, 939 N.E.2d 1067, 345 Ill. Dec. 887 (2010); see also Simmons, 20 Ill. App. 2d at 17 (“It has been said if there is any general reason for the rule to be deduced from the passenger cases, it is that the public service consideration alone prevents contractual limitation of liability for negligence.”).

[*P18] In holding that a common carrier has a duty to exercise the highest degree of care consistent with the practical operation of its conveyances to protect its passengers (Rotheli v. Chicago Transit Authority, 7 Ill. 2d 172, 177-78, 130 N.E.2d 172 (1955); Browne v. Chicago Transit Authority, 19 Ill. App. 3d 914, 917, 312 N.E.2d 287 (1974)), courts have considered the “‘unique control [a common [**9] carrier] possesses over its passengers’ safety.'” Krywin v. Chicago Transit Authority, 391 Ill. App. 3d 663, 666, 909 N.E.2d 887, 330 Ill. Dec. 865 (2009) (quoting Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151, 154, 632 N.E.2d 1069, 198 Ill. Dec. 458 (1994)); see also O’Callaghan v. Dellwood Park Co., 242 Ill. 336, 345, 89 N.E. 1005 (1909) (“If the injury of a passenger is caused by apparatus wholly under the control of a carrier and furnished and managed by it, and the accident is of such a character that it would not ordinarily occur if due care is used, the law raises a presumption of negligence.”). “Common carriers are charged with the highest duty of care when transporting passengers because passengers must wholly rely upon a common carrier’s proper maintenance and safe operation of its equipment during passage.” Sheffer, 261 Ill. App. 3d at 156. “[C]ommon carriers are responsible for their patrons’ physical safety for which there is no second chance if a mistake should occur.” Zerjal, 405 Ill. App. 3d at 912.

[*P19] In determining whether a defendant is a common carrier that owes the highest degree of care in transporting its passengers, the courts have characterized the following as common carriers: owners of buildings with elevators (Rotheli, 7 Ill. 2d at 177); a scenic railway at an amusement resort, where “steep inclines, sharp curves, and great speed necessarily are sources of peril” (O’Callaghan, 242 Ill. at 344); a merry-go-round (Arndt v. Riverview Park Co., 259 Ill. App. 210, 216-17 (1930)); a taxicab (Metz v. Yellow Cab Co., 248 Ill. App. 609, 612 (1928)); and a Ferris wheel (Pajak v. Mamsch, 338 Ill. App. 337, 341, 87 N.E.2d 147 (1949)).

[*P20] In finding that an escalator was not a common carrier, the Illinois Supreme Court in Tolman found [**10] it significant that a person on an escalator may actively participate in the transportation in a manner similar to the use of a stairway and may contribute to his own safety. Tolman v. Wieboldt Stores, Inc., 38 Ill. 2d 519, 526, 233 N.E.2d 33 (1967). The court noted that the role of a passenger on a train, bus, or elevator is a passive one, and ordinarily such a passenger cannot exercise any control over his own safety. Id. at 525. The court further held that the rule as to the higher duty one owning and operating an elevator owes to a passenger riding in same, who is injured through some defect in its operating mechanism, is predicated upon the fact that a person riding in an elevator cannot possibly know or show, if such elevator gets out of control, what caused it to do so. Id. at 524-25. The court noted that because the elevator owner was in sole control of the elevator and the machinery used in its operation, an inference of negligence on the part of said owner arose out of the circumstances. Id.; see also Lombardo v. Reliance Elevator Co., 315 Ill. App. 3d 111, 125, 733 N.E.2d 874, 248 Ill. Dec. 199 (2000) (because bank had full control of premises, it had the duties of common carrier owed to the plaintiff who suffered injuries when the lift he was riding suddenly fell); Carson v. Weston Hotel Corp., 351 Ill. App. 523, 532, 115 N.E.2d 800 (1953) (lessee in full control of the premises had the duties of a common carrier of elevator [**11] passengers).

[*P21] While proper solicitude for human safety requires a carrier of passengers not to diminish its liability to them, the relative bargaining power of the parties is also a factor. Simmons, 20 Ill. App. 2d at 17. In Hamer v. City Segway Tours of Chicago, LLC, 402 Ill. App. 3d 42, 43-44, 930 N.E.2d 578, 341 Ill. Dec. 368 (2010), the plaintiff sought to recover for injuries she suffered on a tour run where she rode a segway onto a small grassy hill, and it threw her off. The plaintiff signed a release before participating in the tour. Id. The plaintiff argued, however, that her social relationship with the defendant and its tour guide rendered the release unenforceable. Id. at 46. The court concluded, without analysis, that the defendant was not a common carrier. Id. Finding also that that there was no disparity of bargaining power because the plaintiff simply could have refused to join the tour if she had disagreed with the exculpatory clause, the court held that the exculpatory language of the release was enforceable. Id.

[*P22] Further, courts have distinguished between a common and a private carrier. “A common carrier, generally, is a carrier hired to carry any person who applies for passage as long as there is room available and there is no legal excuse for refusing.” Long v. Illinois Power Co., 187 Ill. App. 3d 614, 628, 543 N.E.2d 525, 135 Ill. Dec. 142 (1989). “Ordinarily, a common carrier must accept as a passenger [**12] any person offering himself or herself for passage at the proper time and in the proper manner and who is able and willing to pay the fare.” Id. “[A] common carrier may be liable for an unexcused refusal to carry all who apply.” Doe v. Rockdale School District No. 84, 287 Ill. App. 3d 791, 794, 679 N.E.2d 771, 223 Ill. Dec. 320 (1997). A common carrier is “obligated by law to undertake the charge of transportation, which none but a common carrier, without a special agreement, is.” Rathbun v. Ocean Accident & Guarantee Corp., 299 Ill. 562, 566, 132 N.E. 754 (1921).

[*P23] A common carrier holds himself out as such by advertising or by actually engaging in the business and pursuing the occupation as an employment. Id. at 567. The test to distinguish a common carrier from a private carrier is whether the carrier serves all of the public alike. Green v. Carlinville Community Unit School District No. 1, 381 Ill. App. 3d 207, 211, 887 N.E.2d 451, 320 Ill. Dec. 307 (2008); Illinois Highway Transportation Co. v. Hantel, 323 Ill. App. 364, 375, 55 N.E.2d 710 (1944). Again, common carriers necessarily have control and regulation of the passengers’ conduct and of the operation of the carriage before they can be held to the extraordinary liability of common carriers to such passengers. Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence).

[*P24] “Private carriers as ordinarily defined are those who, without being engaged in such business as a public employment, undertake [**13] to deliver goods or passengers in a particular case for hire or reward.” Rathbun, 299 Ill. at 566. A private carrier makes no public profession to carry all who apply for transport, transports only by special agreement, and is not bound to serve every person who may apply. Green, 381 Ill. App. 3d at 211; Rockdale School District No. 84, 287 Ill. App. 3d at 795.

[*P25] “Whether a particular transportation service is undertaken in the capacity of a private or of a common carrier must be determined by reference to the character of the business actually carried on by the carrier, and also by the nature of the service to be performed in the particular instance.” (Internal quotation marks omitted.) Long, 187 Ill. App. 3d at 630. When a plaintiff affirms and the defendant denies that the defendant is operating as a common carrier, the question becomes a controverted question of fact to be determined by a consideration of the evidence by the trial court. Rathbun, 299 Ill. at 566; Bare v. American Forwarding Co., 242 Ill. 298, 299, 89 N.E. 1021 (1909); Hantel, 323 Ill. App. at 374; Beatrice Creamery Co. v. Fisher, 291 Ill. App. 495, 497, 10 N.E.2d 220 (1937).

[*P26] Accordingly, we find that whether Grafton Zipline is a common carrier is a question of fact, “dependent upon the nature of the business in which [it is] engaged, and [is] to be determined from a consideration of all of the evidence.” Beatrice Creamery Co., 291 Ill. App. at 497. In its order, the circuit court noted that questions of fact remained regarding whether Grafton Zipline is a common carrier. [**14] We agree and find this so with regard to the certified question. To determine whether the exculpatory clause is unenforceable on the basis that Grafton Zipline is a common carrier “charged with a duty of public service” the court must necessarily determine disputed factual issues. The court must determine whether Grafton Zipline had control and regulation of the passengers’ conduct and of the operation of the carriage (see Rathbun, 299 Ill. at 567 (evidence that deceased contracted car by private contract and had control of car and driver revealed defendant was not common carrier but was liable only as private carrier for ordinary negligence)); whether the plaintiff actively participated in the transportation and contributed to her own safety (Tolman, 38 Ill. 2d at 525-26 (because escalator allowed the plaintiff to actively participate in the transportation and allowed control over safety, escalator not common carrier); whether there was a disparity of bargaining power between the parties (see Hamer, 402 Ill. App. 3d at 43-44 (exculpatory clause enforceable where plaintiff could simply have refused to join the segway tour)); and whether Grafton Zipline made a profession to carry all who applied for carriage (see Browne v. SCR Medical Transportation Services, Inc., 356 Ill. App. 3d 642, 647, 826 N.E.2d 1030, 292 Ill. Dec. 594 (2005) (because medical transport van served only those individuals [**15] who met its eligibility requirements, could decline to serve anyone based on numerous factors such as location and availability of medical transport vans, made no profession to carry all who apply for carriage, and was not bound to serve every person who may apply, medical transport van was not a common carrier)). To answer the certified question before the circuit court has heard evidence on these matters would be premature. Thus, we decline to answer the certified question, and we remand the cause for further proceedings consistent with this order. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 477, 693 N.E.2d 358, 230 Ill. Dec. 229 (1998).

[*P27] CONCLUSION

[*P28] For the reasons stated, we decline to answer the certified question as its ultimate disposition depends on the resolution of multiple factual predicates. We remand the cause to the Madison County circuit court for further proceedings.

[*P29] Certified question not answered; cause remanded.


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