New Hampshire season pass release protects ski area from claim for injury due to snowmobile accident

McGrath v. SNH Development, Inc. 2008 N.H. Super. LEXIS 45

Language of the release was broad enough to cover those claims that were not clearly contemplated by the parties to the release.

The facts in this case are simple. The plaintiff was a season pass holder of Crotched Mountain Ski Area in Bennington, New Hampshire. Crotched Mountain Ski Area is owned by SNH Development, Inc., which is a subsidiary of Peak Resorts, Inc. While skiing at the resort one day an employee of the ski area drove a snowmobile into the plaintiff’s path causing a collision.

The plaintiff sued, and the defendants raised the defense of the release.

Summary of the case

The court reviewed the legal issues fairly extensively under New Hampshire law. Releases are upheld under New Hampshire law, as long as they:

(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.”

Under New Hampshire law, to violate public policy the release must be between parties with a special relationship or there was a disparity in bargaining power. A special relationship exists if the defendant “is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service...” The court found the ski area did not meet the definition to create a special relationship to the plaintiff.

There was no disparity of bargaining power because to have that situation, the services offered by the defendant must be a “matter of practical necessity.” A necessity is something needed to survive in this day and age, food, power, phone or utilities generally.  Skiing is not necessary to survive; it is recreation.

The plaintiff also argued the release violated public policy because New Hampshire has a statute governing snowmobiles. Because the snow mobile was operating on private land, the court also rejected this argument.

The next claim was the release should not be upheld because it the plaintiff did not contemplate that the release would be used to bar a claim for an accident with a snowmobile. Under New Hampshire law the release does not have to name with any specificity, the possible claims that it will protect against. The release only has to adopt language that covers a broad range of accidents.

Thus, in order to release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of the release clearly and specifically indicate the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”

From the quote from another New Hampshire case, Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994), it is obvious that in New Hampshire, you do not have to use the word negligence in a release. However, doing so creates more opportunities to test the release and the law.

The plaintiff argued that the release does not use the word snowmobile so a collision with a snowmobile falls outside of the release. However, a review of the release by the court found the language was broad enough to cover the facts in the case, a collision with a snowmobile.

This argument also created an argument that the release only covered the inherent risks of skiing. Inherent risks are those risks those are part and parcel of the risk. Inherent risks, unless changed by statute, do not cover any increases in the risk caused by man’s involvement. So a snowmobile is not an inherent risk of skiing.

However, the court found the release did not use the term inherent in it so the risks contemplated by the release were not limited to the inherent risks of the sport of skiing.

So Now What?

Like all cases involving a release, the release must be written carefully so not to be thrown out. This means someone who knows the law, knows the sport or activity you engage in and knows you must write the release.

Here, if the release had incorporated the word inherent, as many releases do, the release would have failed.

 

Plaintiff: Marcella McGrath f/k/a Marcella Widger

 

Defendant: SNH Development, Inc.

 

Plaintiff Claims: Negligence

 

Defendant Defenses: Release

 

Holding: Release bars the claims of the plaintiff

 

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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