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In New Hampshire, the skier Safety Act requires the ski area receives notice of a claim within 90 days.

Pursuant to this decision, the ninety-days are based on when the notice is mailed, not when the notice or mail was received.

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

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Deborah Hogan and Matthew Hogan

Defendant: Pat’s Peak Skiing, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Failure to meet the statutory requirements to file a lawsuit.

Holding: For the Plaintiff

Year: 2015

The plaintiffs both fell out of a chairlift at the defendant ski area. The New Hampshire Skier Safety Act requires the ski area receives notice of the intent to sue within 90 days.

The plaintiff’s hired an attorney that sent notice to the ski area which was mailed within the 90 days. However, it was not received within the 90 days by the ski area.

The defendant moved to dismiss the case for failing to meet the requirements of the statute. The trial court agreed and dismissed the case. The plaintiff’s appealed.

In New Hampshire, there are only trial courts and the New Hampshire Supreme court. There is no intermediate appellate court.

Analysis: making sense of the law based on these facts.

Section 225-A:25 Insurance; Limitations of the New Hampshire Skier Safety Act states notices must be sent to the ski area by certified mail within 90 days of the injury or claim.

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.

In the law, there is a mail box rule. In general, the law says notice is received when the notice is put in the mail. “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.” Most states then say that something mailed if it arrives within three to five days, then it was properly mailed and received.

The other issue in the law is “notice.” Notice usually requires the person have actual or constructive notice, and that occurs when the person receives that notice which was the defendant’s argument.

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.

Under one theory the requirements of the statute were met and under the other, the case must be dismissed, and the defendant wins the decision.

The court held that the ninety-day  requirement was met when the letter was mailed, not when it was received.

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.

The basis for the reasoning was who would suffer the most by the interpretation of the law one way or the other. Whether or not the ski area received the notices ninety days or ninety-one days after the injury would not affect the ski area at all. That one day could mean suffering to the plaintiff.

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 to circumstances beyond that party’s control. We elect not to allow such forfeiture.

The plaintiff’s injury by the application of one rule or the other would be far greater, according to the court, then the injury suffered by the ski area by receiving notice of the claim a day later.

Furthermore,  “it is not to be presumed that the legislature would pass an act leading to an absurd result . …”. 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.

The case was sent back for discovery and trial.

So Now What?

Several statutes in the outdoor recreation industry have pre-litigation notice requirements like this. They are, in effect, a mini-statute of limitations. The New Hampshire Skier Safety Act requires the actual lawsuit be started within two years of the injury which gives rise to the claim.

However, the effectiveness of these notice requirements is marginal at best. In most cases, not all, if the court has to decide for or against the notice being received, the courts will error on the side of the plaintiff, and in favor of allowing the lawsuit to continue.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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