Miller v. Sunapee Difference, LLC, 308 F. Supp. 3d 581; 2018 U.S. Dist. LEXIS 55536; 2018 DNH 072

Miller v. Sunapee Difference, LLC, 308 F. Supp. 3d 581; 2018 U.S. Dist. LEXIS 55536; 2018 DNH 072

United States District Court for the District of New Hampshire

March 31, 2018, Decided; March 31, 2018, Filed

Civil No. 16-cv-143-JL

Counsel:  [**1] For Thomas Jackson Miller, Plaintiff: Arend R. Tensen, Cullenberg & Tensen, Lebanon, NH.

For The Sunapee Difference, LLC, doing business as Mount Sunapee Resort, other Mount Sunapee Resort, Defendant: Thomas B.S. Quarles, Jr., LEAD ATTORNEY, Brendan P Mitchell, Devine Millimet & Branch PA, Manchester, NH.

Judges: Joseph N. Laplante, United States District Judge.

Opinion by: Joseph N. Laplante

Opinion

[*584]  MEMORANDUM ORDER

The plaintiff in this case, a skier at New Hampshire’s Mount Sunapee resort, was injured when he struck a support post for snow making equipment. At issue in this case is whether a release attached to his lift ticket excuses the ski area for liability in connection with its alleged negligence in failing to mark the post, warn skiers about it, or otherwise make it visible.

Invoking the court’s diversity jurisdiction, 28 U.S.C. § 1332(a), plaintiff Thomas Jackson Miller, a New York resident, sued The Sunapee Difference, LLC, operator of the Mount Sunapee Resort (“Mount Sunapee”), a New Hampshire ski area, for injuries he sustained when he struck the unmarked and unpadded post that was concealed by fresh snow. Pursuant to Fed. R. Civ. P. 12(c), Mount Sunapee moved for judgment on the pleadings, arguing that the liability release printed on Miller’s [**2]  lift ticket bars his claim. Miller argues that the release is unenforceable under New Hampshire law and inapplicable on its face. As both sides submitted  [*585]  documents outside the pleadings in litigating this motion, the court has, with the parties’ consent,1 converted the motion into one for summary judgment under Fed. R. Civ. P. 12(d).2 Having considered the parties’ filings and hearing oral argument, the court finds that the release is both applicable and enforceable, and therefore grants summary judgment in favor of Mount Sunapee.3

I. Applicable legal standard

Summary judgment is appropriate when the record reveals “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). When ruling on a motion for summary judgment, the court “constru[es] the record in the light most favorable to the nonmoving party and resolv[es] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). In the summary judgment analysis, “a fact is ‘material’ if it has the potential of determining the outcome of the litigation.” Maymi v. P.R. Ports. Auth., 515 F.3d 20, 25 (1st Cir. 2008). A factual dispute is genuine “if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citation and [**3]  internal quotation marks omitted). Nevertheless, if the nonmoving party’s “evidence is merely colorable, or is not significantly probative,” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citations omitted).

II. Background

Following a large 2015 snowfall, Miller visited Mount Sunapee with his brother and father for a day of skiing. Miller was skiing ahead of his companions through fresh powder on the left side of the Beck Brook trail4 when he struck an unmarked “snow gun holder” that was concealed by snow. The “holder” — essentially a steel pipe protruding from the ground — is a mounting post for snow-making guns. The post remains embedded in the ground after the guns are removed. There was no snow-making gun in the holder at the time of this accident. Miller suffered serious leg injuries in the collision.

In order to ski at Mount Sunapee, Miller first purchased a lift ticket. The ticket has a self-adhesive backing, which the skier affixes to his zipper tab or similar visible location. In order to attach it, the skier must first remove it from a peel-off backing. Printed on the back of the peel-off backing of the Mount Sunapee lift ticket [**4]  was the following:

 [*586]  STOP

[a red octagon image similar to a traffic-control “stop sign”]

YOU ARE RELEASING THIS SKI AREA FROM LIABILITY

By removing this peel-off backing and using this ticket, you agree to be legally bound by the LIABILITY RELEASE printed on the other side of this ticket. If you are not willing to be bound by this LIABILITY RELEASE, please return this ticket with the peel-off backing intact to the ticket counter for a full refund.

The lift ticket itself displayed the following language:

LIABILITY RELEASE

Skiing, snowboarding, and other winter sports are inherently dangerous and risky with many hazards that can cause injury or death. As purchaser or user of this ticket, I agree, as a condition of being allowed to use the facilities of the Mount Sunapee resort, to freely accept and voluntarily assume all risks of property damage, personal injury, or death resulting from their inherent or any other risks or dangers. I RELEASE MOUNT SUNAPEE RESORT, its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCE which may result from conditions on or about the premises, operation of the ski area [**5]  or its afacilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause. Further I agree that any claim which I bring against Mount Sunapee Resort, its officers, directors, employees or agents shall be brought only in Federal or State courts in the State of New Hampshire. I agree my likeness may be used for promotional purposes.

MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.

RECKLESS SKIING WILL RESULT IN LOSS OF TICKET

NON-TRANSFERABLE: Use by a non-purchaser constitutes theft of services.

NON-REFUNDABLE. LOST TICKETS WILL NOT BE REPLACED Mount Sunapee Resort, P.O. Box 2021, Newbury, NH 03255

(Emphasis in original).

After timely filing this lawsuit,5 Miller filed an Amended Complaint6 asserting a single count of negligence. He alleges that Mount Sunapee failed to mark or warn skiers of the pipe, or otherwise mitigate its danger to skiers, by, for example, padding it or making it visible to skiers. In addition, Miller alleges that Mount Sunapee breached its duties to create a safe environment for guests, and to perform in-season trail maintenance [**6]  work. Finally, Miller claims that Mount Sunapee is liable because it failed to comply with N.H. Rev. Stat. Ann. § 225-A:23 (II)(b), which provides, in relevant part, that “[t]he ski area operator shall warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.”7

 [*587]  III. Analysis

As noted at the outset, Sunapee argues that the release printed on Miller’s lift ticket — in combination with the acceptance of its terms on the backing sheet — bars his claim. “Although New Hampshire law generally prohibits a plaintiff from releasing a defendant from liability for negligent conduct, in limited circumstances a plaintiff can expressly consent by contract to assume the risk of injury caused by a defendant’s negligence.” Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 413, 807 A.2d 1274 (2002). Such an exculpatory contract is enforceable if: 1) it does not violate public policy; 2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and 3) the plaintiff’s claims fall within the contemplation of the parties when they executed the contract. McGrath v. SNH Dev., Inc., 158 N.H. 540, 542, 969 A.2d 392 (2009) (citing Dean v. MacDonald, 147 N.H. 263, 266-67, 786 A.2d 834 (2008)); Lizzol v. Brothers Prop. Mgmt. Corp., 2016 DNH 199, *7.

Plaintiff argues that the [**7]  release satisfies none of these criteria, because: 1) it violates public policy; 2) a reasonable person would have understood the release to exclude only “inherent risks of skiing,” as enumerated in New Hampshire’s “ski statute,” N.H. Rev. Stat. Ann. § 225-A:24; 3) the release does not encompass reckless, wanton, or willful conduct; and 4) the release is unsigned.

A. Public policy

“A defendant seeking to avoid liability must show that an exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power.” McGrath, 158 N.H. at 543 (quoting Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986)). The New Hampshire Supreme Court has also found an agreement to be against public policy “if, among other things, it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.” Id. (citing Harper v. Healthsource New Hampshire, 140 N.H. 770, 775, 674 A.2d 962 (1996)). Miller does not argue that he had a special relationship with Mount Sunapee or that there was a disparity in bargaining power between the two.8 Instead, he confines his public policy argument to two points: 1) that the release violates New Hampshire statutory law; and 2) that it is injurious to the interest of the public. Neither argument [**8]  withstands scrutiny.

1. New Hampshire statutory law

Miller argues that the combination of N.H. Rev. Stat. Ann. §§ 225-A:23, II, and 225-A:24 requires ski area operators to plainly mark or make visible snow-making equipment. Therefore, he concludes, applying the release to the allegedly hidden snow gun holder would allow Mount Sunapee to impermissibly evade this statutory responsibility. As a general proposition, Miller is correct that a release can not excuse a ski area‘s statutory violation. Harper, 140 N.H. at 775; cf. Nutbrown v. Mount Cranmore, 140 N.H. 675, 683, 671 A.2d 548 (1996) (noting, in ski accident case, that ski areas’ immunity does not apply to claim based on statutory violation). However, Miller’s argument here is built on a faulty premise — that  [*588]  § 225-A:24, denoted “Responsibilities of Skiers and Passengers” — imposes an affirmative duty on ski areas to mark or make visible snow-making equipment. The court rejects this argument for several reasons.

First, Miller attempts, without legal support, to create an affirmative duty out of the text of § 225-A:24 where none exists. Section 225-A:24 “is an immunity provision for ski area operators.” Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 291, 923 A.2d 198 (2007). It has been “interpreted to mean that ski area operators owe no duty to skiers to protect them from the inherent risks of skiing.” Rayeski v. Gunstock Area/Gunstock Area Comm’n, 146 N.H. 495, 497, 776 A.2d 1265 (2001). One of the inherent “risks, hazards, or dangers which [**9]  the skier . . . assumes as a matter of law” is “plainly marked or visible snow making equipment.” N.H. Rev. Stat. Ann. § 225-A:24, I. Miller argues that because unmarked or not visible snow-making equipment is not “an inherent risk” enumerated by the statute, ski areas therefore have a statutory duty to mark them or make them visible.

This argument is both contrary to the language of the statute and unsupported by any legal authority. While the language of the statutory immunity provision — enumerating a “Skier’s Responsibilities” — arguably does not bar Miller’s claim9 that he struck an unmarked and not visible piece of equipment, it likewise creates no affirmative duties for ski areas. Stated differently, while New Hampshire law may allow
ski area liability for injuries resulting from collisions with unmarked equipment, it does not logically follow that New Hampshire law requires the marking of such equipment. The statute sets forth no such obligation or legal duty.

To avoid the plain language of §225-A:24, Miller argues that Rayeski, supra, imposes an affirmative duty on Mount Sunapee when read in conjunction with § 225-A:23. In that case, the New Hampshire Supreme Court, invoking §225-A:24, upheld the dismissal of a skier’s claim for injuries sustained [**10]  in a collision with an unmarked light pole. 146 N.H. at 500. The plaintiff in Rayeski argued that the light pole collision was similar to a collision with unmarked snow-making equipment, which the statute “implies . . . is not an inherent risk of skiing” by not barring such a claim. Id. at 498. In the course of finding that the pole collision was an inherent risk of skiing (despite not being specifically enumerated as such in the statute), the Court distinguished between poles and snow making equipment:

We conclude that the legislature’s explicit reference to “plainly marked or visible snow making equipment” was intended to balance the immunity granted to ski area operators under RSA 225-A:24 with their duty under RSA 225-A:23, II(b) (2000) to warn skiers of snow making or grooming activities by denying immunity to ski area operators who breach a statutorily imposed safety responsibility.

Id. (emphasis added).

Based on the emphasized language, Miller argues that § 225-A:23 required Mount Sunapee to mark or make visible the snow gun holder he struck. This argument ignores the plain language both of Rayeski and the statute. The Rayeski
opinion referred only to “snow making or grooming activities,” and made no reference to marking equipment. And [**11]  the statute, captioned “Base Area; Information to Skiers and  [*589]  Passengers,” requires that a ski area operator “warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.” (Emphasis added). Thus, contrary to Miller’s argument, this section imposes no requirement to “mark or make visible” the snow gun holder at issue in this case. Instead, the statute requires the ski area to post “at the base area” a warning concerning grooming and snowmaking operations, if applicable.
10See Nardone v. Mt. Cranmore, Civ. No. 91-114-SD, slip op. at 6-7 (holding that § 225-A:23, II(b)‘s warning requirement does not apply where snowmaking was not in progress and where plaintiff collided with fixed, unmarked piece of snowmaking equipment) (emphasis added).11 Miller does not dispute Mount Sunapee’s contention that there was no grooming or snow making “in progress” at the time of or in the vicinity of Miller’s accident.12 An inoperative snow gun holder is neither an “activity” nor an “operation.”

Further undermining Miller’s argument that § 225-A:24 creates obligations for ski area
operators is the fact that [**12]  its five sub-sections are explicitly and unambiguously addressed to skiers and passengers (as opposed to ski area
operators), as follows: I) “Each person who participates in the sport of skiing . . . accepts . . . the dangers inherent in the sport . . . .”; II) “Each skier and passenger shall have the sole responsibility . . . “; III) “Each skier or passenger shall conduct himself or herself . . .”; IV) “Each passenger shall be the sole judge of his ability . . .”; V) “No skier or passenger or other person shall . . .” N.H. Rev. Stat. Ann. § 225-A:24, I-V (emphasis added).

In addition, under New Hampshire statutory construction law, “[t]he title of a statute is ‘significant when considered in connection with . . . ambiguities inherent in its language.'” Appeal of Weaver, 150 N.H. 254, 256, 837 A.2d 294 (2003) (quoting State v. Rosario, 148 N.H. 488, 491, 809 A.2d 1283 (2002); see also, Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 9 (1st Cir. 1991) (interpreting N.H. Rev. Stat. Ann. § 225-A:24 and observing that “[i]t is well established that a statute’s title may aid in construing any ambiguities in a statute.”). As noted, the title of § 225-A:24 is explicitly directed at “skiers and passengers,” not ski area operators. While this court discerns no such ambiguity that would justify a foray into ascertaining “legislative intent,” our Court of Appeals has stated that “the title indicates the legislative intent to limit the application [**13]  of [§ 225-A:24] to skiers and passengers and similar classes of individuals, which does not include a ski operator or its employees.” Berniger, 945 F.2d at 9 (1st Cir. 1991). This conclusion is buttressed by the fact that the preceding provision, § 225-A:23, is captioned “Responsibilities of Ski Area Operators,” further  [*590]  suggesting § 225-A:24‘s inapplicability here. This statutory structure — clearly distinguishing ski area operator responsibilities from visitor responsibilities — is especially important in light of the New Hampshire Supreme Court’s requirement that statutes be construed “as a whole.” Petition of Carrier, 165 N.H. 719, 721, 82 A.3d 917 (2013); see also, Univ. of Texas Sw. Med. Ctr v. Nassar, 570 U.S. 338, 133 S. Ct. 2517, 2529, 186 L. Ed. 2d 503 (2013) (“Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices.”); DeVere v. Attorney General, 146 N.H. 762, 766, 781 A.2d 24 (2001) (noting that structure of a statute can be an interpretive tool). Accordingly, the court finds that the Mount Sunapee release does not impermissibly seek to avoid statutory liability.13

In addition to his misplaced reliance on Rayeski, Miller also argues that the McGrath Court’s allowance of liability releases is “limited to situations where the public statute at issue contains a statutorily imposed enforcement mechanism,” which allows state officials to protect the public interest by imposing [**14]  penalties on violators.14

The holding in McGrath, which involved a snowmobiling accident, is not as broad as plaintiff posits. It is true that the Court in McGrath, in rejecting a claim that a liability waiver violated public policy because it allowed defendants to avoid certain snowmobile safety statutes, noted that the waiver did not affect the State’s ability to enforce snowmobiling rules and penalize infractions, and thus did not entirely relieve the defendant property owners of any statutory responsibility. 158 N.H. at 543 (citing N.H. Rev. Stat. Ann. §§ 215-C:32 and 34). But several factors undercut Miller’s reliance on McGrath. First, plaintiff’s argument is premised on his assertion that Mount Sunapee is trying to avoid liability for a statutory violation. The court has already rejected plaintiff’s premise as an untenable reading of §§ 225-A:23 and 24. Next, the State enforcement criterion was not dispositive in McGrath, as the Court found that the liability waiver did not contravene public policy because, “[i]rrespective of the statute, the plaintiff has voluntarily agreed not to hold the ski area, or its employees, liable for injuries resulting from negligence so that she may obtain a season ski pass.” Id. at 543 (emphasis added). In addition, even [**15]  if the court read McGrath to require a state law enforcement vehicle to protect the public interest, the New Hampshire ski statutes do in fact provide one. Under N.H. Rev. Stat. Ann. § 225-A:26, “any person . . . violating this chapter . . . shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person.”

Plaintiff argues that this statutory enforcement provision is limited to tramway operations, and thus does not satisfy McGrath. He supports this argument with a letter from a supervisor at the New Hampshire Division of Fire Safety,15 which  [*591]  correctly observes, pursuant to N.H. Rev. Stat. Ann. § 225-A:3-a, that the authority of the Passenger Tramway Safety Board is limited to ski lift operations and “shall not extend to any other matters relative to the operation of a ski area.”16 The letter also states that the penalty provision of § 225-A:26 “specifically relates to operating a tramway without it first being registered.”17 The letter also specifically mentions §§ 225-A:23 and 24, as being outside the tramway board’s authority.18

There are several reasons why the letter does not advance plaintiff’s statutory argument. First, the letter is not properly part of the summary judgment record. According to its terms, it was sent in response [**16]  to plaintiff’s counsel’s request for documents concerning the enforcement of § 225-A:26. However, “[i]n opposing a motion for summary judgment, a plaintiff must proffer admissible evidence that could be accepted by a rational trier of fact as sufficient to establish the necessary proposition.” Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 662 n.3 (1st Cir. 2010) (emphasis added). The letter itself is inadmissible hearsay, as it is being offered to prove the truth of the matters asserted with respect to enforcement of § 225-A:23 and 24. See
Fed. R. Evid. 801(c)(2); see also Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011) (“It is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted.”). Moreover, although apparently issued by a government office (the plaintiff made no effort to lay such a foundation), the letter is not admissible under the Public Records hearsay exception. See
Fed. R. Evid. 803(8) (requiring, for admissibility, the evidence in question to, inter alia, set out the public office’s activities and involve a matter observed while under a legal duty to report). It is true that some forms of evidence, such as affidavits and declarations, may be considered on summary judgment, even if they would not be admissible at trial, so long as they “set out facts that would be admissible in evidence” [**17]  if the affiant or declarant testified to them at trial. Fed. R. Civ. P. 56(c)(4). The letter in question, however, is neither an affidavit nor a declaration. In addition to being an unsworn letter, it fails to show how the letter writer is expressing “personal knowledge,” and fails to show that she is “competent to testify on the matters stated,” as required by Fed. R. Civ. P. 56(c)(4); see also
Fed. R. Evid. 602 (personal knowledge requirement).

Next, even if the letter was properly before the court, it lacks any legal force, either as a pronouncement of New Hampshire law, or an interpretation thereof. N.H. Rev. Stat. Ann. § 225-A:8 empowers the Tramway Safety Board to make rules regarding tramways. “Rules and Regulations promulgated by administrative agencies, pursuant to a valid delegation of authority, have the full force and effect of laws.” State v. Elementis Chem., 152 N.H. 794, 803, 887 A.2d 1133 (2005). Under New Hampshire administrative law, however, as set forth under its Administrative Procedure Act, the letter in question is not a rule, and thus lacks such force. It is simply a letter answering a question posed by the plaintiff’s lawyer. See
N.H. Rev. Stat. Ann. § 541-A:1, XV (explicitly excluding, under definition of “Rule,” “informational pamphlets, letters or other explanatory materials which refer to a statute or rule without affecting its substance or [**18]  interpretation”). Notably, the plaintiff cites no provision of New Hampshire’s administrative  [*592]  law involving the Passenger Tramway Safety Board or Rules which support his theory. See N.H. Code. Admin. R. Ann. (PAS 301.01 et. seq. (2016)).

Finally, even if the letter was a properly admissible part of the summary judgment record in support of the proposition that the enforcement of § 225-A:26 is limited to tramway operations, and even if it were a duly-promulgated article of New Hampshire administrative law, it still fails to advance the plaintiff’s argument (to the extent it even addresses the issue before the court), because it incorrectly contradicts the governing statute, § 225-A:26.

As noted, the letter states that the authority of the Tramway Safety Board is limited to ski lift operations and “shall not extend to any other matters relative to the operation of a ski area.”19 This is undoubtedly true as far as it goes, as it tracks the language of § 225-A:3-a. That observation misses the point, however, as § 225-A:26 does not limit enforcement of § 225-A to the Tramway Board. To the contrary, the statute holds “any person” “guilty” of a violation or misdemeanor for violations of “this chapter,” i.e., the entirety of N.H. Rev. Stat. Ann. § 225-A, a chapter which [**19]  addresses a wider variety of ski-related activities than ski lifts and tramways. Thus, the letter contradicts the plain language of the statute by inaccurately portraying the applicability of § 225-A:26 as limited to “operating a tramway without it first being registered.”20 Under New Hampshire law, “[r]ules adopted by administrative agencies may not add to, detract from, or in any way modify statutory law,” Elementis Chem., 152 N.H. at 803, and the letter’s pronouncement, even it were a duly adopted Rule, would be invalid. See Appeal of Gallant, 125 N.H. 832, 834, 485 A.2d 1034 (1984) (noting that agency regulations that contradict the terms of a governing statute exceed the agency’s authority and are void). The statute penalizes not only failing to register, but also “violating this chapter or rules of the [Tramway Safety] board.” (emphasis added). In effect, the plaintiff is asking the court to ignore the plain language of the statute in favor of a letter which is neither properly before the court nor is a valid administrative rule and which fails to address the issue before the court — the scope of § 225-A:26. The court is not free to ignore the Federal Rules of Civil Procedure, New Hampshire’s Administrative Procedure Act,21 or the plain language of New Hampshire’s ski-related statutes.

Accordingly, the court finds that New Hampshire statutory law provides no support to plaintiff’s public policy argument.

2. Injurious to the public interest

Plaintiff next argues that the Mount Sunapee release violates public policy as injurious to the public interest because Mount Sunapee is located on state-owned land that was, at least in part, developed with federal funding. Plaintiff cites no authority for this argument, but instead relies on various provisions in the lease between Mount Sunapee and the State of New Hampshire. None of these provisions establish or support the proposition that public policy prohibits the enforcement of the release.

For example, the lease requires the property to be used for “public outdoor recreational uses,” “for the mutual benefit of the public and the Operator,” and “as a public ski area . . . for the general public.”22 In addition, the ski area operator is  [*593]  required to “allow public access,” “maintain the Leased Premises in first class condition,” and “undertake trail maintenance.”23 Even assuming, arguendo, that the lease theoretically establishes public policy, the plaintiff makes no coherent argument how the release in question runs afoul of any [**21]  of its provisions. Instead, plaintiff argues, strenuously but without authority, that condoning Mount Sunapee’s requirement that a skier agree to the release as a condition of skiing there “effectively sanctions the conversion of public land by Mount Sunapee.”24 He also argues, again without authority, that:

“[p]rivate operators of public lands, to which the public must be allowed access, cannot be allowed to limit access to such lands to those individuals who are willing to forego their statutory rights by exculpating the private operators from the consequences of their own negligence. To hold otherwise, would mark the first step toward eliminating public access to public lands at the expense of the general public.”

(Emphasis added). Initially, the court reiterates its finding, supra, Part III.A.1, that the language at issue in this case does not implicate plaintiff’s statutory rights. Moreover, whatever persuasive force his policy-based arguments hold, plaintiff cites no authority — in the form of cases, statutes or regulations — upon which the court can rely to accept them.25

As a final public-interest related matter, the parties dispute the import of liability releases used at Cannon [**22]  Mountain, a state-owned and operated ski area. In its motion, Mount Sunapee cited those releases to demonstrate that New Hampshire’s public policy does not generally disfavor liability releases.26 Plaintiff, however, points out that because the Cannon release does not use the word “negligence,” it may, in fact, not release Cannon from its own negligence. See Barnes, 128 N.H. at 107 (noting that “the [exculpatory] contract must clearly state that the defendant is not responsible for the consequences of his negligence.”). Therefore, plaintiff suggests, Sunapee’s release may have exceeded what public policy (as articulated in the Cannon release) permits. Regardless of the Cannon release’s enforceability — a matter on which the court offers no opinion — the court finds that Mount Sunapee has the better of this argument. New Hampshire’s public policy is likely best expressed by its legislative enactments, particularly N.H. Rev. Stat. Ann. § 225-A:24, I, under which “ski area operators owe no duty to protect patrons from the inherent risks of skiing and thus are immunized from liability for any negligence related to these risks.” Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 295, 923 A.2d 198 (2007). Such legislatively-enacted immunity from negligence undercuts Miller’s argument that the Cannon release demarcates [**23]  the outer boundary of New Hampshire public policy. Ultimately, the court is skeptical that, as both parties implicitly argue, the state’s risk management decisions and devices, as embodied in certain ski area releases, constitute articulations of public policy.

Having failed to demonstrate any statutory transgressions or injury to the public interest, plaintiff has failed to establish a genuine issue of material fact as to whether the Mount Sunapee release violates public policy.

 [*594]  B. Import of the agreement

The next factor the court must consider in assessing the enforceability of the Mount Sunapee release is whether the plaintiff or a reasonable person in his position would have understood its import. Dean, 147 N.H. at 266-67. Miller argues that a factual dispute exists as to this criterion because there was no “meeting of the minds” sufficient to form an enforceable binding agreement.27 He bases this proposition, in turn, on two assertions: 1) that the release is unsigned; and 2) that he did not read it. The court finds that New Hampshire law does not require a signature to effectuate the terms of a release and that the plaintiff had — but chose not to take advantage of — an opportunity to read the release.

1. Signature

As an initial matter, the court notes that a “meeting of the minds” is not an explicit requirement of enforceability under New Hampshire law. The Court in Dean required only that “the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement.” 147 N.H. at 266-67. While a signature might be evidence of such understanding, it has never been held to be a prerequisite. Indeed, in Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 552 A.2d 99 (1988), the Court enforced an unsigned and unread release of an insurance claim.

Plaintiff asserts that the New Hampshire Supreme Court has never explicitly upheld the enforcement of an unsigned liability release. See, e.g., McGrath, 158 N.H. at 545 (“[t]he ski pass application signed by the plaintiff”); Dean, 147 N.H. at 266 (“Mr. Dean signed the Release before entering the infield pit area”); Audley, 138 N.H. at 417 (“two releases signed by the plaintiff”); Barnes, 128 N.H. at 106 (“release and waiver of liability and indemnity agreement he signed”). Even if one were to accept this proposition despite the holding in Gannett, which is arguably distinguishable from the line of New Hampshire cases just cited, it is not dispositive, because the Court has also never explicitly required a signature on a liability release as a condition [**25]  of enforceability.

In a diversity case such as this one, if the state’s highest court has not spoken directly on the question at issue, this court must try to predict “how that court likely would decide the issue,” looking to the relevant statutory language, analogous state Supreme Court and lower state court decisions, and other reliable sources of authority. Gonzalez Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 318-19 (1st Cir. 2009). A review of an analogous decision of the New Hampshire Supreme Court and several New Hampshire trial court decisions reviewing ski area liability releases leads the court to conclude that Miller’s unsigned release is enforceable.

The court finds some guidance in Gannett, supra, where the Court enforced a release of an insurance claim even though the releasing party neither read nor signed the release, but returned it before cashing the insurer’s check. 131 N.H. at 270. Especially salient here, the Court found it “irrelevant whether [plaintiff] actually read the release, when the release clearly and unambiguously stated the condition, and when she had the opportunity to read it.” Id. at 269-270 (emphasis added). The Gannett Court cited the passage in Barnes, 128 N.H. at 108, enforcing an un-read liability  [*595]  release where the defendant felt rushed through the admittance line. The Barnes court enforced [**26]  the release where “[t]here was no evidence . . . that [the plaintiff] was denied the opportunity to read the body of the release.” Id.

Two New Hampshire Superior Court cases involving ski lift ticket releases also inform this analysis. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967) (noting that decrees of lower state courts should be “attributed some weight”, but are not controlling, where the highest State court has not spoken on an issue). In Camire v. Gunstock Area Comm’n, No. 11-C-337, 2013 N.H. Super. LEXIS 30 (N.H. Super. Ct., Mar. 22, 2013) (O’Neil, J.), the court granted the defendant ski area summary judgment based on an unsigned release. 2013 N.H. Super. LEXIS 30 at *8. (“[T]he fact that Ms. Camire did not sign the agreement does not render it unenforceable, as a participant’s signature is not required under the factors set forth in [Dean]“), aff’d on other grounds, 166 N.H. 374, 97 A.3d 250 (2014). While the trial judge also noted that the ski area had a large sign near the ticket kiosk calling attention to the existence of the lift ticket release, and that plaintiff testified in her deposition that she would have understood the ticket’s release language had she read it, 2013 N.H. Super. LEXIS 30 at *5, the trial court’s observation that the lack of a signature was not dispositive is entitled, as the United States Supreme Court has [**27]  noted, to “some weight.” Bosch’s Estate, 387 U.S. at 465.

The court also draws some guidance from a New Hampshire trial court that denied a ski area operator’s motion for summary judgment in another case involving a lift ticket release. In Reynolds v. Cranmore Mountain Resort, No. 00-C-0035, (N.H. Super. Ct., March 20, 2001) (O’Neil, J.), the plaintiff’s lift ticket contained a peel off backing similar to the one at issue here, including the red “STOP” sign symbol. Id. at 2. The plaintiff claimed that she did not sign the release and that the release language was not conspicuous enough to give notice to a reasonable person. Id. at 5. While the court did not rule on the signature issue, it ruled that a jury issue remained as to whether the “STOP” sign on the ticket was sufficiently conspicuous, because the peel-off backing contained an advertisement for a free workout, also written in red, in a larger font than much of the warning on the backing. Id. at 1-2, 7. In so ruling, the court relied on Passero v. Killington, Ltd., 1993 U.S. Dist. LEXIS 14049, 1993 WL 406726 (E.D. Pa. Oct. 4, 1993), a Pennsylvania case in which the lift ticket at issue contained an advertisement in a larger typeface than the release language. 1993 U.S. Dist. LEXIS 14049, [WL] at * 7 (“[Plaintiff] argues that the exculpatory clause’s minuscule size, its setting against a dark background, and the existence [**28]  of a much larger advertisement for a 15% discount on a “COMPLETE OVERNIGHT SKI TUNE-UP” on the lift ticket’s adhesive backing, all serve to distract the skier’s attention away from the substantive rights he or she is supposedly relinquishing by purchasing the lift ticket.”). The Superior Court found that it was “best left to the trier of fact to determine whether the language of the lift ticket reasonably communicated the existence of a contractual agreement to the purchaser . . . .” Id. Here, the Mount Sunapee lift ticket contains no such distracting advertisement or font sizes greater than that of the release language on the ticket. As the distracting features were the basis for the New Hampshire Superior Court’s denial of summary judgment in Reynolds, the lack of any such features here is significant. Accordingly, the court finds that the lack of a signature on the lift ticket release is not, under the circumstances of this case, a barrier to its enforceability where the plaintiff had an opportunity to read it and the terms were unambiguous and not contrary to public policy.

 [*596]  2. Opportunity to read the release

A plaintiff’s failure to read a release “does not preclude enforcement of [**29]  the release.” Barnes, 128 N.H. at 108. As long as the plaintiff had an opportunity to read the release, even if he chooses not to take it, a release can be enforced. Dean, 147 N.H. at 270; cf. Jenks v. N.H. Motor Speedway, Inc., 2010 DNH 38 (material factual dispute existed as to whether plaintiff had opportunity to read release where plaintiff put his name on a sign-up sheet and release may have been obscured).

Plaintiff, a personal injury attorney, originally submitted two sparse affidavits in opposition to Mount Sunapee’s dispositive motion.28 The affidavits’ only reference to the release is that he did not read the language on the lift ticket or the peel off backing, nor was he instructed to. He did not claim that he lacked the time or opportunity to read it, or was discouraged from doing so. Nor do the affidavits state that he did not peel off the lift ticket from the backing paper.

To be sure, the plaintiff carries no burden of proof at summary judgment, but the sparse and somewhat cryptic nature of the plaintiff’s affidavits — one of which conspicuously tracked the facts emphasized in the Reynolds Superior Court decision, supra, but added nothing more — led this court to ask several pointed questions at oral argument. When pressed by the court regarding the omitted, but [**30]  critical, subject matter, plaintiff’s counsel conceded that Miller purchased the ticket, affixed it to his own jacket, had the opportunity to read the backing and the release, and would have recognized it as a release (although not as interpreted by Mount Sunapee).29

In an abundance of caution, and reluctant to grant summary judgment terminating plaintiff’s claims without a more fully developed record, the court sua sponte ordered supplemental discovery concerning, inter alia, the issue of plaintiff’s purchase and use of the lift ticket on the day of his injury.30 Although the plaintiff resisted defense counsel’s attempts to elicit direct answers to straightforward questions about his handling and viewing of the lift ticket, plaintiff’s deposition confirmed certain relevant facts that his counsel conceded at oral argument. First, plaintiff testified that he was handed the lift ticket with the release language facing up, and did not see the language on the peel-off backing.31 Nevertheless, plaintiff confirmed that he had the opportunity to read the release language on the lift ticket and the peel off backing before he removed the ticket from the backing and affixed it to his clothing.32 Even [**31]  though plaintiff testified  [*597]  that he attached the ticket to his pants immediately after receiving it, and thus did not read it, he agreed that he was not pressured to do so,33 and had the opportunity to read it if he so chose.34

Based on the summary judgment record, the plaintiff’s concessions at oral argument and his supplemental deposition testimony sua sponte ordered by the court in an abundance of caution, the court finds that the undisputed facts demonstrate that plaintiff purchased the lift ticket, peeled it from its backing before attaching it to his clothing, had the opportunity to read both sides of it,35 and that “a reasonable person in plaintiff’s position” would have “known of the exculpatory provision.” Barnes, 128 N.H. at 107. The court therefore finds that plaintiff’s decision to not  [*598]  read the lift ticket release language does not render it unenforceable.36

C. Contemplation [**34]  of the parties

The final factor the court considers is whether the plaintiff’s claims “were within the contemplation of the parties.” Barnes, 128 N.H. at 107. This factor concerns whether plaintiff’s claims were within the scope of the release. Dean, 147 N.H. at 267. To determine the scope and application of a liability release agreement, the court must examine its language. Dean, 147 N.H. at 267. If “the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. The court gives the language of the release “its common meaning and give[s] the contract itself the meaning that would be attached to it by a reasonable person.” Id. “All that is required” is for the language to “clearly and specifically indicate[] the intent to release the defendants from liability for personal injury caused by the defendants’ negligence . . . .” McGrath, 158 N.H. at 545.

While plaintiff’s counsel conceded at oral argument that a reasonable person would have recognized the lift ticket language as a release, he argues that it would only be understood as applying to “the inherent risks of skiing,” as enumerated in § 225-A:24,37 and not to the circumstances of plaintiff’s accident.38 As [**35]  explained below, this argument is based on an incomplete reading of the release and a flawed reading of persuasive New Hampshire Supreme Court precedent. It is therefore rejected.

Plaintiff argues that the first words of the release — “Skiing, snowboarding, and other winter sports are inherently dangerous”39 — limit the scope [**36]  of the release to  [*599]  the inherent risks of skiing as set forth in N.H. Rev. Stat. Ann. § 225-A:24, which, he posits, do not include collisions with unmarked or not visible snow-making equipment. The remainder of the release, however, is far broader, explicitly encompassing “all risks . . . of personal injury . . . resulting from . . . inherent or any other risks or dangers.” (Emphasis added). Additional language in the release is similarly broad:

I RELEASE MOUNT SUNAPEE RESORT, its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCEwhich may result from conditions on or about the premises, operation of the ski area or its afacilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause.40

(Bold emphasis in original; underlining added). While plaintiff acknowledges that his “participation in skiing” might trigger the release, he argues that the expansive “any and all” language is qualified by the first sentence’s reference to skiing as “inherently dangerous,” which, he asserts, warrants limiting [**37]  the release to the risks itemized in § 225-A:24.

In support of his “inherent risks” argument, plaintiff relies on Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 663 A.2d 1340 (1995), a case in which a horseback rider was kicked by her guide’s horse, allegedly due to the guide’s negligence. Id. at 168. The Court in Wright held that a release which first noted the “inherent hazards” of horseback riding “obscured” the later following exculpatory clause, part of which resembled the one employed here by Mount Sunapee. Id. at 170. But there is a significant textual difference between the release in
Wright and the one at issue here, and that difference was the lynchpin of the Wright Court’s analysis: the operative language of the Wright release affirmatively referred back to the “inherent hazards” language. In Wright, the exculpatory clause purporting to release the defendant from “any and all” liability began with the phrase “I therefore release . . .” Id. (emphasis added). The Court found the word “therefore” not only significant but dispositive, noting that it means, inter alia, “for that reason” and thus “cannot be understood without reading the antecedent [inherent hazards] language.” Id. Accordingly, the Court concluded, “[b]ecause the exculpatory [**38]  clause is prefaced by the term ‘therefore,’ a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that reason.”
41Id. The Court ultimately held that the negligence of a guide is not such an “inherent risk.” Id.

Unlike the release in Wright, however, the Mount Sunapee release contains no such “therefore” or other referential language which might call into question the breadth of the language that follows. As such, the court finds that the release  [*600]  “clearly state[s] that the defendant is not responsible for the consequences of his negligence,” Barnes, 128 N.H. at 107, and explicitly called particular attention “to the notion of releasing the defendant for liability for its own negligence.” Cf. Audley v. Melton, 138 N.H. 416, 419, 640 A.2d 777 (1994) (rejecting exculpatory clause because it failed to call particular attention to releasing defendant from liability). The court therefore finds that the Mount Sunapee release is not limited to the “inherent risks” of skiing enumerated in N.H. Rev. Stat. Ann. § 225-A:24, I. Accordingly, even assuming that Miller’s accident did not result from an “inherent risk” of skiing, his claim is nevertheless encompassed by the terms of the release and within the contemplation [**39]  of the parties.

D. Reckless, wanton or positive misconduct

After Mount Sunapee’s initial motion for judgment on the pleadings raised the lift ticket release as a defense, Plaintiff added four paragraphs to his suit in an Amended Complaint, all in support of his one negligence count. The new additions quote from a handwritten note on a “grooming report” prepared by Mount Sunapee Mountain Operations Manager Alan Ritchie two weeks prior to plaintiff’s accident. Ritchie’s note states the following: “keep the skier’s left guardrail 3′ from the tower guns at BTM (Hidden Hydrants below the snow[)]. Remove 2′ of snow from just above the Blue Shield around the Teckno fan gun.”42 Based solely upon this entry, Miller asserts that Mount Sunapee knew of buried snowmaking equipment and that failing to mark it or otherwise make it visible both violated its statutory duty and constituted “reckless, wanton, and positive acts of misconduct” from which it can not legally be released.43

In response, Mount Sunapee argues: 1) that the allegations do not support a claim for a statutory violation; 2) that New Hampshire law does not recognize extra-culpable, non-releasable categories of negligence; and 3) that [**40]  the Amended Complaint and attached documents fail, in any event, to set forth facts amounting to anything other than ordinary negligence. The court has already found no statutory violation44 and further finds that the complaint, even as amended, alleges nothing more than ordinary negligence.

1. Recklessness

Plaintiff argues that the additional allegations in the Amended Complaint state a claim for reckless behavior, which, he argues, is not within the purview of the release. The court finds that the new amendments do not allege conduct that is more culpable than negligence, which is subject to the terms of the Mount Sunapee release.45

The New Hampshire Supreme Court generally refers favorably to the Restatement of Torts and has done so with respect to its description of “reckless” conduct:

 [*601]  Under the Restatement [(Second) of Torts], § 500, at 587 (1965), conduct is “reckless” if it “would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such a risk is substantially greater than that which is necessary to make his conduct negligent.” Id. The conduct “must involve an easily perceptible danger of death or substantial [**41]  physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.” Id.
comment a at 588.

Boulter v. Eli & Bessie Cohen Found., 166 N.H. 414, 421, 97 A.3d 1127 (2014).

As the Court noted in Thompson v. Forest, 136 N.H. 215, 220, 614 A.2d 1064 (1992), a litigant’s characterization of conduct as evincing a particular culpable mental state is not particularly useful. “Recklessness,” at a minimum, is conduct “where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.” Id. (quoting WP Keaton, et al., Prosser and Keaton on the Law of Torts § 8 (5th ed. 1984)). Here, notwithstanding the descriptive adjectives employed by the plaintiff, the facts and allegations pled do not suggest that, to anyone affiliated with Mount Sunapee, there was “a substantial certainty” that serious foreseeable harm would occur based on its alleged conduct or that Mount Sunapee’s conduct involved an unreasonable risk of physical harm “substantially greater than is required for ordinary negligence or that the risk was one involving an easily perceptible danger of death or substantial physical harm.” Boulter, 166 N.H. at 422.

Plaintiff relies on a recent New Hampshire Superior Court case involving an injured ski lift [**42]  passenger in which the trial judge held that the plaintiff’s allegations of recklessness were sufficient to survive a motion for summary judgment.46 In Perry v. SNH Dev., No. 2015-CV-00678, 2017 N.H. Super. LEXIS 32 (N.H. Super. Ct., Sept. 13, 2017) (Temple, J.), the child plaintiff was injured after first dangling from, and then falling from, a chair lift into which she was improperly loaded. 2017 N.H. Super. LEXIS 32 at *33. There, the plaintiff successfully pled facts that alleged recklessness and avoided the ski area‘s enforceable negligence release. 2017 N.H. Super. LEXIS 32 at *23. Specifically, the plaintiffs in Perry alleged that the ski area‘s:

employee(s)[‘] total and complete failure to monitor the safe and proper loading of the Rocket chair lift in any fashion, coupled with the undisputed failure (actions or inactions) to stop the chair lift once a life threatening emergency was clearly in progress and ongoing for a considerable period of time, were failures to do acts which the employees had a duty to perform for [plaintiffs] and constitute a reckless disregard of safety.

2017 N.H. Super. LEXIS 32 at *27. The court denied the ski area‘s motion for summary judgment on the recklessness issue, first noting the allegation that there “were multiple employees of Crotched Mountain in or around [**43]  the area observing that Sarah was not able to properly and/or safely board the Rocket chair lift; but rather [was] dangling from the chair lift.” 2017 N.H. Super. LEXIS 32 at *33. The court found this allegation sufficient to support an inference that the ski area‘s employees  [*602]  “knew that [the child plaintiff] was not properly loaded on the chair lift, but chose not to act.” Id. The court additionally cited the allegations that the ski area‘s employees knew that their failure to “stop the chair lift once a life threatening emergency was clearly in progress” would create an “unreasonable risk of physical harm or death.” Id. These facts, the Superior Court concluded, were sufficient to establish a claim of reckless conduct. Id.

In reaching its decision, the Perry court assumed that recklessness involved a defendant’s “conscious choice.” 2017 N.H. Super. LEXIS 32 at *32 (citing State v. Hull, 149 N.H. 706, 713, 827 A.2d 1001 (2003)). Here, plaintiff argues that a reasonable inference can be made that Mount Sunapee knowingly disregarded the risk of harm posed by hidden snowmaking equipment, and that they “knew that ‘hidden’ hydrants posed a danger, but chose not to act.47

The court finds no such inference. As noted, the amended allegations do not pertain to a time or place related to Miller’s accident. [**44]  There is nothing in the Ritchie affidavit that supports an allegation that Mount Sunapee made a “conscious choice” to create a “risk that was substantially greater than is required for ordinary negligence or that . . . [involved] an easily perceptible danger of death or substantial physical harm.” Boulter, 166 N.H. at 422 (internal quotation marks omitted). Significantly, the allegations in this case stand in stark contrast to those in Perry, where ski area employees allegedly ignored a nearby lift passenger already in obvious danger, a child literally dangling from the moving chair lift. Under plaintiff’s theory, any collision with buried snowmaking equipment would constitute a claim for recklessness.

One of the cases cited in Perry supports the court’s conclusion. In Migdal v. Stamp, 132 N.H. 171, 564 A.2d 826 (1989), the plaintiff, a police officer, was shot by a 15-year old who had been involuntarily hospitalized due to mental health issues. Id. at 173. The day after his release into his parents’ custody, the teen took several guns and hundreds of rounds of ammunition from an unsecured gun cabinet in their home, fired them throughout the house, and then shot and injured the plaintiff, who responded to the scene. Id. The injured officer sued the shooter’s parents, [**45]  who sought dismissal based on the “fireman’s rule.”48 After first noting that the rule bars claims of negligent, but not reckless, conduct, id. at 176, the Court concluded that the plaintiff had adequately pled recklessness by alleging that the parents “failed to seek recommended medical treatment” for their son and allowed him access to “an array of firearms and ammunition,” despite their knowledge that their son “was suffering from mental and emotional instabilities,” had “exhibited dangerous propensities,” and had ransacked and vandalized the house the day before. Id. Mount Sunapee’s conduct — failure to mark or make visible the snow gun holder — is neither of the same type nor degree as the defendants’ conduct in Migdal.

A ski case from the District of Massachusetts is also instructive. In Brush v. Jiminy Peak Mountain, 626 F. Supp. 2d 139 (D. Mass. 2009), a ski racer was injured when she lost control and collided with a ski tower support located off the trail. Id.
 [*603]  at 143. In suing, inter alia, the ski area, the plaintiff alleged that netting and other safety devices should have been placed around the support, as required by certain ski racing standards and as had been done by the defendant in the past. Id. at 145. In order to avoid application of a release, the plaintiff asserted [**46]  a claim for gross negligence, which, under Massachusetts law, is a less culpable standard than recklessness. Id. at 151 (citing Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (Mass. 1919)). The Court concluded that plaintiff had alleged only simple negligence. Id. The Court first observed that “[t]here is no evidence in the record, and indeed no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation.” Id. Ultimately, the Court held, “[a]t most there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.” Id.

The court views the conduct alleged here as much more akin to that alleged in Brush — which alleged conduct that was less culpable than recklessness — than that in Perry
or Migdal. The factual allegations in this case fall far short of recklessness. First, as previously noted, the grooming report on which plaintiff relies is remote both in time and location. Next, the conduct alleged here is significantly less egregious than the [**47]  allegations in Perry, where ski area employees allegedly ignored a nearby passenger already in danger of falling from a lift chair, or the conduct in Migdal, where the defendant parents, one day after their son had exhibited mental instability, ransacked the family home, and exhibited dangerous tendencies, failed to seek treatment for him and to secure multiple firearms and ammunition. As in Brush, the most that can be said here is that Mount Sunapee failed to take a step that — while not legally required, see supra, § III.A.1 — might have prevented plaintiff’s accident. These allegations do not support a claim that their acts or omissions in not clearing snow away from a snow gun holder in an ungroomed area “were substantially more serious” than ordinary negligence. Boulter, 166 N.H. at 422.
49

2. Wanton and positive misconduct

In an attempt to characterize his claims in such a way to avoid the language of the release, plaintiff’s Amended Complaint describes them as “wanton and positive acts of misconduct,” that is, more culpable than negligence, but not intentional.50 The court, however, has already determined that the Complaint alleges no more than ordinary negligence, so this argument fails.

3. Potential [**48]  certification

If the court had found that the facts alleged by the plaintiff could constitute conduct more culpable than negligence, it would have considered certifying an unresolved question to the New Hampshire  [*604]  Supreme Court: whether conduct more culpable than negligence, but less than intentional could be the subject of a release like the one at issue here. See
N.H. Sup. Ct. R. 34. In the absence of such allegations, certification is unnecessary.

IV. Conclusion

The undisputed factual record shows that plaintiff purchased and affixed to his clothing a lift ticket at Mount Sunapee that unambiguously released the ski area from liability from its own negligence, that such a release does not violate public policy, and that plaintiff’s signature was not required to effectuate its terms. Furthermore, there is no material factual dispute that plaintiff had the opportunity to read both the cautionary language on the ticket’s peel-off backing and the release language itself, that he would have understood that language to constitute a release and that a reasonable person in his position would have understood that the release exculpated Mount Sunapee from its own negligence.

As plaintiff has alleged only that Mount [**49]  Sunapee’s negligence caused his injuries, and that the facts he alleges do not constitute conduct more culpable than negligence, the court finds that plaintiff’s claims fall within the ambit of the Mount Sunapee release and that the release is enforceable against the plaintiff. Therefore, defendant’s motion for judgment on the pleadings, having been converted to a motion for summary judgment51 is GRANTED.52

SO ORDERED.

/s/ Joseph N. Laplante

Joseph N. Laplante

United States District Judge

March 31, 2018


Twenty years ago, the New Hampshire Supreme Court shows how you can trample common sense to find a release invalid.

Release was signed for a trail ride and plaintiff claimed she told guide his horse was getting ready to act out before it kicked her.

Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Brenda Wright

Defendant: Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 1995

Summary

Twenty-year-old New Hampshire Supreme Court decisions shows how convoluted a court can get when it decides a release will not be enforced. Court held the language in the release was confusing. However, to get that point the court had to not read the release I think.

Facts

The plaintiff signed up for a trail ride with the defendant. While on the ride she was kicked in the leg by another horse. She sued. On appeal she argued that her guide had failed to respond to indications that his horse, the one that kicked the plaintiff, was about to “act out.”

While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging that her tour guide had failed to respond to indications that his horse was about to “act out.”

[Every time I’ve been bit or kicked by a horse there was no warning. Sure, if a horse’s ears go back, there is a warning, but most times, horse 1, Moss 0. I wish there were indications that a horse was going to act out.]

Prior to suing she signed a release. The trial court dismissed her claim because of the release. She appealed.

New Hampshire has a two-tier court system. The trial court is called the Superior Court and appeals from the Superior Court are appealed to the New Hampshire Supreme Court. This appeal was decided by the New Hampshire Supreme Court.

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

The entire issue before the court was “whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence.”

The defendant argued the release “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding’“.

The Supreme Court looked at this decision in its analysis in a slightly different way.

This court will not enforce an exculpatory contract that contravenes public policy. “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.”

“Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.”

The court then read the release to determine if a reasonable person would have known about the exculpatory clause in the release. The court then worked hard to find a reasonable person would not.

A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” We will assess the clarity of the con-tract by evaluating it as a whole, not by examining isolated words and phrases.

We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case.

The language the court examined was in all caps so the language stood out from the surrounding language. However, the court stated that when the entire agreement was read, the all cap language was unclear. (?) The court’s determination that the clause was not clear was based on the word therefore.

In this case, the term “therefore” is significant. A common definition of “therefore” is “for that rea-son: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced by the term “therefore” cannot be understood without reading the antecedent language.

The court found additional language that it held confused the meaning of the release. The court concluded its analysis with this statement.

The exculpatory contract lacks a straightforward statement of the defendant’s intent to avoid liability for its failure to use reasonable care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions.

There was a dissent by two justices. Both who found the majority’s analysis was just a little ridiculous.

So Now What?

Sometimes your release is not going to win. In those cases, you are going to rely on your insurance company. In this case, the court worked hard to find little ways it could justify its desire to not support the release.

Possibly, this release might have had a better chance with a simple clear statement that by signing the release the signor could not sue for negligence. This release reads like it was written by an attorney training to kill trees rather than write documents for consumers.

But!

What do you think? Leave a comment.

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Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

Wright v. Loon Mountain Recreation Corporation, 140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

Brenda Wright v. Loon Mountain Recreation Corporation d/b/a Loon Mountain Equestrian Center

No. 94-266

SUPREME COURT OF NEW HAMPSHIRE

140 N.H. 166; 663 A.2d 1340; 1995 N.H. LEXIS 119

August 22, 1995, Decided

SUBSEQUENT HISTORY: [***1] Released for Publication September 7, 1995.

PRIOR HISTORY: Merrimack County.

DISPOSITION: Reversed and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff injured brought a negligence action against defendant tour company after being hurt while on a horseback riding tour. The injured appealed the decision of the Superior Court of Merrimack County (New Hampshire), which granted the tour company’s motion for summary judgment.

OVERVIEW: Before going horseback riding on the tour, the injured signed an exculpatory agreement that released the tour company from liability as a result of various occurrences. The tour company successfully argued in the trial court that the exculpatory agreement barred the injured’s suit. The court found that the issue of whether the injured understood the agreement presented an issue of fact. In assessing the clarity of the contract by evaluating it as a whole, the court found that the contract structure and organization obscured the exculpatory clauses and did not clearly relieve the tour company of responsibility for the sort of negligence at issue in the case. The court reasoned that one clause was understandable to relate to the inherent dangers of horseback riding and liability for injures that occurred for that reason. However, the court found that receiving an injury that would not have occurred but for a tour guide’s negligence was not an inherent danger. Because the contract did not put the injured on clear notice, the tour company was not entitled to summary judgment.

OUTCOME: The judgment was reversed, and the case was remanded.

CORE TERMS: horse, exculpatory, horseback riding, reasonable person, exculpatory provision, personal injury, own negligence, summary judgment, public policy, animal, exculpatory clauses, issue of fact, opportunity to prove, contravenes, inclusive, obscured, verb, tour guide, qualifying, notice, ridden, matter of law, entitled to judgment, contract language, misunderstanding, unabridged, exhaustive, quotations, prefaced, genuine

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants

Civil Procedure > Summary Judgment > Opposition > General Overview

Civil Procedure > Summary Judgment > Standards > Genuine Disputes

[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Torts > Negligence > Defenses > Exculpatory Clauses > Interpretation

Torts > Procedure > Settlements > Releases > Construction & Interpretation

[HN2] The court will not enforce an exculpatory contract that contravenes public policy. Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision. Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.

Contracts Law > Contract Conditions & Provisions > Indemnity

[HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.

Contracts Law > Contract Conditions & Provisions > Exculpatory Clauses

Contracts Law > Types of Contracts > Releases

Torts > Procedure > Settlements > Releases > General Overview

[HN4] The court examines the language of the release to determine whether a reasonable person in the plaintiff’s position would have known of the exculpatory provision. A reasonable person would understand the provision if its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. The court assesses the clarity of the contract by evaluating it as a whole, not by examining isolated words and phrases.

HEADNOTES

1. Contracts–Liability for Negligence–Public Policy

New Hampshire Supreme Court will not enforce an exculpatory contract that contravenes public policy.

2. Contracts–Construction–Ambiguity

The plaintiff’s understanding of the release presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.

3. Contracts–Liability for Negligence–Exculpatory Provision

A reasonable person would “understand” an exculpatory provision if its language clearly and specifically indicated the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.

4. Contracts–Liability for Negligence–Exculpatory Provision

Release language should be plain; a careful reading should not be necessary to divine the defendant’s intent.

5. Contracts–Liability for Negligence–Exculpatory Provision

The release language fails where it is obscured by qualifying terms and phrases and doesn’t put the plaintiff on clear notice.

COUNSEL: Craig, Wenners, Craig & Casinghino, P.A., of Manchester (Gary L. Casinghino and Gemma M. Dreher on the brief, and Mr. Casinghino orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Gregory D. H. Jones and Joseph M. McDonough, III, on the brief, and Mr. Jones orally), for the defendant.

JUDGES: JOHNSON, J.; THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.

OPINION BY: JOHNSON

OPINION

[*167] [**1341] JOHNSON, J. The question presented is whether an exculpatory contract signed by the plaintiff, Brenda Wright, released the defendant, Loon Mountain Recreation Corporation, from liability for its own negligence. The Superior Court (Manias, J.) found that the signed release barred the plaintiff’s negligence claim and granted the defendant’s motion for summary judgment. We reverse.

Before embarking on a horseback riding tour at the Loon Mountain Equestrian Center, owned and operated by the defendant, the plaintiff was asked to read, complete, and sign the following exculpatory [***2] agreement:

I accept for use, as is, the animals listed on this form and accept full responsibility for its care while it is in my possession. I have made no misrepresentation to Loon Mountain regarding my name, address or age. I agree to hold harmless and indemnify Loon Mountain Recreation Corporation and its owners, agents and employees for any loss or damage, including any that result from claims for personal injury or property damage related to the use of this animal.

I understand and am aware that horseback riding is a HAZARDOUS ACTIVITY. I understand that the above activity and the use of horses involves a risk of injury to any and all parts of my body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death from the use of this animal while participating in this activity.

I understand that it is not possible to predict every situation and condition of the terrain a horse will be ridden on; therefore, it is impossible to guarantee the horse I am riding will react safely in all riding situations. [*168]

I realize that it is mandatory that I wear a helmet at all times while horseback riding, and that I will obey all trail signs [***3] and remain only on open trails.

I therefore release Loon Mountain Recreation Corporation, its owners, agents and employees FROM ANY AND ALL LIABILITY FOR DAMAGES AND PERSONAL INJURY TO MYSELF OR ANY PERSON OR PROPERTY RESULTING FROM THE NEGLIGENCE OF LOON MOUNTAIN RECREATION CORPORATION TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any and all damages or injury of any kind which may result. (PLEASE SIGN: Brenda Wright/s)

I agree that there have been no warranties, expressed or implied, which have been made to me which extend beyond the description of the equipment listed on this form. I the undersigned, acknowledge that I have carefully read this agreement and release of liability, and I understand its contents. I understand that my signature below expressly waives any rights I have to sue Loon Mountain Recreation Corporation for injuries and damages.

The plaintiff signed this agreement after the fifth paragraph and at the bottom.

While on the tour, the plaintiff was kicked in the leg by her guide’s horse and sustained an injury. She brought a negligence action against the defendant, alleging [***4] that her tour guide had failed to respond to indications that his horse was about to “act out.” The defendant argued that the exculpatory contract barred the plaintiff’s suit and moved for summary judgment. The Superior Court (Manias, J.) granted its motion, and this appeal followed.

[**1342] On appeal, the defendant argues that we should uphold the trial court’s grant of summary judgment because the contract “clearly and specifically indicated an intent to release Loon Mountain from liability for injury resulting from its own negligence while [the plaintiff] was engaged in the activity of horseback riding.”

[HN1] The trial court must grant summary judgment when it finds no genuine issue of material fact, after considering the affidavits and other evidence presented in a light most favorable to the non-moving party, and when the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must put forth contradictory [*169] evidence under oath, sufficient to indicate that a genuine issue of fact exists so that the party should have an opportunity to prove the fact at trial. All reasonable doubts should be resolved against the movant.


Phillips v. Verax [***5] Corp., 138 N.H. 240, 243, 637 A.2d 906, 909 (1994) (brackets, ellipses, and quotations omitted).

[HN2] This court will not enforce an exculpatory contract that contravenes public policy. Audley v. Melton, 138 N.H.. 416, 418, 640 A.2d 777, 779 (1994). “Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position would have known of the exculpatory provision.” Barnes v. N.H. Karting Assoc., 128 N.H. 102, 107, 509 A.2d 151, 154 (1986). “Since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” Id.

The plaintiff does not argue that the exculpatory contract contravenes public policy. Accordingly, we determine only whether “the plaintiff understood the import of the agreement,” and if not, whether “a reasonable person in [her] position would have known of the exculpatory provision.” Id.

The parties dispute whether the plaintiff understood the agreement to release the defendant from [***6] liability for its own negligence. [HN3] The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable. See Phillips, 138 N.H. at 243, 637 A.2d at 909; Barnes, 128 N.H. at 107, 509 A.2d at 154.

[HN4] We therefore examine the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107, 509 A.2d at 154; cf. Raudonis v. Ins. Co. of North America, 137 N.H. 57, 59, 623 A.2d 746, 747 (1993) (interpretation of insurance contract language a question of law; we construe terms as would reasonable person in insured’s position). A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence . . . .” Barnes, 128 N.H. at 107, 509 A.2d at 154. We will assess the clarity of the contract by evaluating it as a whole, not by examining isolated [*170] words and phrases. See Chadwick v. CSI, Ltd., [***7] 137 N.H. 515, 524, 629 A.2d 820, 826 (1993).

We conclude that the contract structure and organization obscured the exculpatory clauses. Strictly construing the contract language against the defendant, we find the contract did not clearly relieve the defendant of responsibility for the sort of negligence at issue in this case. See Barnes, 128 N.H. at 107, 509 A.2d at 154.

The defendant emphasizes the language of the agreement’s fifth paragraph, which states: “I therefore release [the defendant] from ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE, accepting myself the full responsibility for any . . . injury of any kind which may result.” (Emphasis added.) We find that when this clause is read within the [**1343] context of the entire agreement, its meaning is less than clear.

In this case, the term “therefore” is significant. A common definition of “therefore” is “for that reason: because of that: on that ground . . . .” Webster’s Third New International Dictionary 2372 (unabridged ed. 1961) (Webster’s). A clause that is introduced [***8] by the term “therefore” cannot be understood without reading the antecedent language.

The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that reason.” Being kicked by a horse is a danger inherent to horseback riding; receiving an injury that would not have occurred but for a tour guide’s negligence, however, is not.

The exculpatory phrase in the fifth paragraph is further clouded by the qualifying language that follows. Pursuant to the contract, the defendant is released from liability for its negligence “to include negligence in selection, adjustment or any maintenance of any horse.” If we parse these terms, they do not necessarily restrict the defendant’s release to liability for negligent selection, adjustment, or maintenance of any horse. The superfluity of the terms, however, serves to obscure rather than clarify. Moreover, one sense of the word “inclusive” is “covering or intended to cover all items . . . .” Webster’s, [***9] supra at 1143. A reasonable person reading the clause thus might conclude that the agreement relieved the defendant of responsibility for the enumerated types of negligence only.

[*171] Whether the tour guide’s failure to control his horse constitutes “the negligent . . . maintenance of any horse,” is unclear. Webster’s gives several definitions for the word “maintain,” the two most relevant being: (1) “to keep in a state of repair, efficiency, or validity: preserve from failure or decline” and (2) “to provide for: bear the expense of: SUPPORT.” Webster’s, supra at 1362. When read in the context of selection and adjustment, therefore, a reasonable person in the position of the plaintiff might understand “the negligent . . . maintenance of any horse” to relate to negligent upkeep rather than control.

The contract is also unclear with respect to injuries involving horses not ridden by the plaintiff. The first, second, and third paragraphs emphasize only the horse that the plaintiff “accept[s] for use.” We reject the defendant’s argument that the phrase “use of this animal,” used in the first and second paragraphs, “is merely an alternative expression for the activity of ‘horseback [***10] riding.'” We also reject the defendant’s contention that the phrase “use of this animal” does not limit the contract’s application to injuries involving the plaintiff’s horse because “[a] careful reading . . . reveals that it is part of a clause modifying plaintiff’s agreement to ‘hold harmless and indemnify [the defendant] for any loss or damage. . . .'” The Barnes test requires that release language be plain; a careful reading should not be necessary to divine the defendant’s intent.

In Audley, we concluded:

Quite simply, the general release language does not satisfy the Barnes requirement that the contract must clearly state that the defendant is not responsible for the consequences of his negligence. The release fails in this respect not because it neglects to use the word ‘negligence’ or any other special terms; instead it fails because no particular attention is called to the notion of releasing the defendant from liability for his own negligence. The general language in the context of the release simply did not put the plaintiff on clear notice of such intent.


Audley, 138 N.H. at 419, 640 A.2d at 779 (quotations and citations omitted). [***11] Whereas the release language in Audley failed because it was too general, the release language in the present case fails because it is obscured by qualifying terms and phrases. The cases are similar, however, because neither contract put the plaintiff “on clear notice,” id.

The exculpatory contract lacks a straightforward statement of the defendant’s intent [**1344] to avoid liability for its failure to use reasonable [*172] care in any way. The agreement easily could have been framed in a manner that would have expressed more clearly its conditions and exclusions. The defendant was not entitled to judgment as a matter of law.

Reversed and remanded.

THAYER, J., with whom BROCK, C.J., joined, dissented; the others concurred.

DISSENT BY: THAYER

DISSENT

THAYER, J., dissenting: I would uphold the trial court’s grant of summary judgment because the exculpatory contract explicitly indicated an intent to release the defendant from liability for its own negligence. The contract in question purports to release the defendant from “ANY AND ALL LIABILITY FOR . . . PERSONAL INJURY TO MYSELF . . . RESULTING FROM THE NEGLIGENCE OF [THE DEFENDANT] TO INCLUDE NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE [***12] OF ANY HORSE.” The language clearly indicates an intent to release the defendant from liability for its own negligence. I agree with the majority that the use of the word “therefore” restricts the release to negligence associated with the inherent hazards of horseback riding. I do not agree, however, that the negligence alleged is not such a risk. The plaintiff alleged that the defendant’s employee had failed to properly control his horse, and that as a result, the horse “acted out.” Controlling a horse is an essential part of horseback riding. The possibility that someone will fail to exercise the proper control would seem to fall squarely within the category of dangers inherent in the sport.

The majority bases its holding in part on its interpretation of the phrase “to include.” In holding that the list prefaced by the words “to include” is meant to be exhaustive, the majority relies on a definition of the word “inclusive.” Such reliance is misplaced. The contract used the word “include” as a verb. The primary relevant definition of that word is “to place, list, or rate as a part or component of a whole or a larger group, class, or aggregate.” Webster’s Third New International [***13] Dictionary 1143 (unabridged ed. 1961) (Webster’s). “Inclusive,” however, is an adjective and its definition differs from the verb form of the word. See In re Dumaine, 135 N.H. 103, 107, 600 A.2d 127, 129 (1991). The use of the verb form of the word indicates that the listed types of negligence are “component[s] of a whole or a larger group,” Webster’s, supra, and that the list was not exhaustive.

The appropriate question, therefore, is whether the negligence alleged in this case is of the same type as those listed. The plaintiff [*173] alleges that the defendant’s employee failed to properly control his mount. This would seem to fall squarely within the type of negligence defined by the contract. That the horse causing the injury was not ridden by the plaintiff is irrelevant. The contract releases the defendant for negligence resulting from “the use of horses” and specifically from “NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE.” (Emphasis added.) While the contract does refer to the plaintiff’s horse on a number of occasions, it also refers to horses generally and to “any” horse. This language cannot be read to restrict the defendant’s release [***14] solely to injuries caused by the plaintiff’s horse. I disagree with the majority’s reading of the exculpatory contract. Therefore, I respectfully dissent.

BROCK, C.J., joins in the dissent.


Safe, NOTHING is safe, when you advertise telling those who come to your website that your business, activity, or land is safe, you will be writing checks for anything pain, blood, illness or injury that can occur.

Website for park stated it was a safe place for visitors. Plaintiff went to the park because of that statement and when she fell on a rock protruding above the boardwalk, she sued. Is a rock sticking through a boardwalk a risk, normal or at least “not safe.”

The plaintiff was able to claim negligent misrepresentation because the park represented itself as safe. Safe is a Bad work.

Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

State: New Hampshire: United States District Court for the District of New Hampshire

Plaintiff: Misha Kendall

Defendant: The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association

Plaintiff Claims: Negligence, Gross Negligence and Negligent Misrepresentation

Defendant Defenses:

Holding: for the plaintiff

Year: 2017

Summary

The website promoting the private park stated the park was safe. The plaintiff went, paid her fee and got hurt. Therefore, the park was not safe. The plaintiff was able to argue the statements made on the website about safety were negligent misrepresentation; Negligent statements made to induce the plaintiff to come to the park.

The second issue was a gap between a recently passed statute and decisions of the New Hampshire Supreme Court which effectively nullified the two immunity statutes by the legislature to protect the park.

Facts

There is always an issue of “when.” When did the plaintiff actually learn or see, but in this case, the court stated the following facts.

The land is owned by a nonprofit corporation, and is operated by a third party.

The Society for the Protection of New Hampshire Forests (the “Society”) is a nonprofit corporation which owns the Lost River Gorge and Boulder Caves (“Lost River”). White Mountain Attractions Association (“White Mountain”) operates Lost River. White Mountain manages Lost River’s website, and the Society contributes to and approves the website’s content.

The land is protected from lawsuits by a specific statute that was enacted in 1917.

Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River’s reservations, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.

So, the relationship with the state is, it is not a state park, but it is protected like one to a major extent.

The plaintiff alleges that was looking for an outdoor activity that would be safe for herself and her two six-year-old children. She went to the website of for the park to look for a “safe way” to view rock formations.

She took herself and her two children to the park, paid the entrance fee and proceeded to a boardwalk. The boardwalk was four feet wide and crowded. The boardwalk turned sharply after a bridge on the say to the Sun Altar cave. The plaintiff’s view was blocked after the turn because of the crowd, a sign and a large tree.

Just after the turn a boulder protruded up through the boardwalk about a foot.

Just after the turn, a large boulder extended through the middle of the boardwalk to a height of about a foot. The boardwalk was constructed around this boulder. There were no signs to warn of the boulder in the boardwalk. Kendall did not see the boulder in her path, tripped over it, and fell, shattering her elbow. Her digital camera was destroyed, and her clothing had to be cut off of her at the hospital. She has permanent damage to her elbow that has resulted in disability.

The plaintiff sued for her injuries.

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

The defendant raised four defenses to the gross negligence and negligent misrepresentation claims of the plaintiff.

Defendants contend that Kendall’s claims for gross negligence and negligent misrepresentation are futile for the following reasons: (a) defendants are immune from liability for both claims under the 1917 Law; (b) no claim for gross negligence exists under New Hampshire law; (c) the statement about the boardwalks being safe is not a misrepresentation of fact but merely an opinion; and (d) Kendall does not allege damages that can be recovered for negligent misrepresentation.

The court first started with the immunity statutes. Besides the specific immunity statute enacted in 1917, there was a more recent statute, RSA 508.14, II.

508:14. Landowner Liability Limited.

II. Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

Emphasize added

What never enters the discussion is the fact the plaintiff paid to be on the land, so the recreational use statute, RSA 508.14 should not apply.

The court first decided if the new statute canceled out the old statute and made the termination that it did not. It then examined both statutes stating that the statutes should be strictly construed and viewed as being consistent with each other. Reading the first statute that one, the court found the first statute stopped claims for negligence, but not gross negligence.

The issue though is the New Hampshire Supreme court ruled that New Hampshire does not recognize gross negligence. There is only one form of negligence in New Hampshire, simple negligence.

However, because the statute in question stated that the defendant could be liable for gross negligence or willful or wanton misconduct, the court held the legislature wanted the plaintiff to be able to sue for gross negligence.

Therefore, the plaintiff’s allegations of gross negligence were outside of the immunity afforded by both statutes.

Gross negligence was defined by the court as:

…”very great negligence, or the absence of slight diligence, or the want of even scant care” and willful misconduct has been interpreted as intentional conduct or recklessness that “carries a great chance of causing harm to another.”

Based on that definition the court was able to find the boulder built in the middle of the boardwalk was gross negligence.

…Kendall alleges that defendants built the boardwalk around an obstruction, a boulder that protrudes into the boardwalk approximately one foot higher than the boardwalk. She also alleges that the boulder is in a dangerous location, just around a turn, and is obscured by a sign, a tree, and crowds of people using the boardwalk. She alleges that defendants placed no warnings about the boulder for the tourists to see before walking on the boardwalk. The proposed amended complaint alleges that the obstructed boardwalk constitutes an obvious danger, and that defendants acted with gross negligence in failing to remove or warn of the boulder.

The court tackled the negligent misrepresentation claim next. Negligent misrepresentation is “a negligent misrepresentation of a material fact by the defendant and justifiable reliance by the plaintiff.” The website stated the place was safe and the plaintiff, in her opinion, found it wasn’t.

The court was not sold on the plaintiff’s allegations, however.

At this early stage, the court cannot determine whether defendants’ alleged statement that there were boardwalks at Lost River that provided a “safe way” to view rock formations is an actionable misrepresentation.

Whether the statement on the website was actionable would be based upon several factors: whether or not it was puffing, slight exaggerations to close the sale that everyone knows are not true, the specificity of the statement, the knowledge of the person making the statement and the knowledge of both parties in relation to each other.

The plaintiff argued “that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers.”

The allegations made by the plaintiff were enough for the court not to dismiss them.

Consequently, the plaintiff will be allowed to amend her complaint to add additional claims, which would make the defendants motion to dismiss the original complaint moot.

So Now What?

Marketing makes promises that Risk Management has to Pay For. The marketing promised a safe place to recreate, and the plaintiff received in an injury there; therefore, the place was not safe.

Combine the statements made on the website with the gap between decisions of the New Hampshire Supreme Court and recent statutes in New Hampshire and the plaintiff was effective in keeping her claim alive.

What do you think? Leave a comment.

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Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association, 2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

Misha Kendall v. The Society for the Protection of New Hampshire Forests and White Mountains Recreation Association, Inc. d/b/a White Mountain Attractions Association

Civil No. 16-cv-428-LM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

2017 DNH 126; 2017 U.S. Dist. LEXIS 95362

June 21, 2017, Decided

June 21, 2017, Filed

CORE TERMS: gross negligence, boardwalk, negligent misrepresentation, immunity, river, boulder, leave to amend, futile, willful, citation omitted, immunity statutes, misrepresentation, nonprofit, website, bridge, repeal, trails, safe, common law right, misrepresentation claim, misconduct, construe, forest, entity, wanton, amend, path, internal quotation marks, formations, futility

COUNSEL: [*1] For Misha Kendall, Plaintiff: Benjamin T. King, LEAD ATTORNEY, Megan E. Douglass, Douglas Leonard & Garvey PC, Concord, NH.

For The Society for the Protection of NH Forests, White Mountains Attractions Association, Defendants: Robert E. Murphy, Jr., Wadleigh Starr & Peters PLLC, Manchester, NH.

JUDGES: Landya McCafferty, United States District Judge.

OPINION BY: Landya McCafferty

OPINION

ORDER

Misha Kendall brings suit against The Society for the Protection of New Hampshire Forests and White Mountain Recreation Association, Inc. alleging claims for negligence and gross negligence arising from her injuries and property damage sustained when she fell on a boardwalk at Lost River Gorge and Boulder Caves in Woodstock, New Hampshire. Defendants move to dismiss the complaint (doc. no. 13).

In response, Kendall objects and moves for leave to amend her complaint (doc. no. 20) to add factual allegations, remove her claim for negligence, and add a claim for negligent misrepresentation based on defendants’ statement on their website. Defendants object to the motion to amend.

The court first addresses Kendall’s motion for leave to amend her complaint, and then turns to defendants’ motion to dismiss.

I. Motion to Amend

In her proposed [*2] amended complaint, Kendall alleges claims for gross negligence and negligent misrepresentation. Defendants argue that the proposed amendment would be futile because they are immune from liability for both claims under 1917 New Hampshire Laws Chapter 19, § 1 (“1917 Law”) and because the proposed amended complaint fails to state a plausible claim for relief. Defendants also argue that the motion to amend is untimely.

Under Federal Rule of Civil Procedure 15(a)(2), the court will grant leave to amend a complaint “when justice so requires.” Despite the broad standard, a “court may deny leave to amend for a variety of reasons, including futility, bad faith, undue delay, or a dilatory motive on the movant’s part.” In re Curran, 855 F.3d 19, 27-28 (1st Cir. 2017) (internal quotation marks and citation omitted).

A. Timeliness

Defendants argue that Kendall’s motion should be denied because of undue delay, based on the time between when Kendall filed the original complaint and when she filed the motion for leave to amend.

Kendall brought suit as a pro se party, filing her complaint in state court on August 8, 2016. After defendants removed the case to this court, counsel entered an appearance on Kendall’s behalf on November 4, 2016. On December 7, 2016, defendant filed a motion to dismiss. [*3] Counsel responded to defendants’ motion to dismiss and then moved to amend on January 19, 2017. As such, the timing does not show undue delay, and defendants have not shown unfair prejudice that would result from allowing the amended complaint.

B. Futility

In the proposed amended complaint, Kendall alleges claims for gross negligence and negligent misrepresentation.1 Defendants contend that the proposed claims are futile.

1 Kendall also substitutes White Mountains Recreation Association, Inc. as the correct legal name for White Mountains Attraction Association.

1. Standard of Review

In assessing, before discovery, whether the claims in a proposed amended complaint are futile, the court uses the same standard that applies to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Curran, 855 F.3d at 28; Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006). The court takes the factual allegations in the proposed amended complaint as true and draws all reasonable inferences in favor of the plaintiff. Morgan v. Town of Lexington, 823 F.3d 737, 742 (1st Cir. 2016). Then, based on that view of the proposed amended complaint, the court determines whether the plaintiff has stated a plausible claim for relief. Curran, 855 F.3d at 28.

2. Background

The Society for the Protection of New Hampshire Forests (the “Society”) is a nonprofit corporation which owns the Lost River Gorge and Boulder Caves (“Lost River”). White Mountain Attractions Association (“White Mountain”) operates Lost River. White Mountain manages Lost River’s [*4] website, and the Society contributes to and approves the website’s content.

In her proposed amended complaint, Kendall alleges that she was looking for an outdoor activity that would be safe for her and her two six-year-old children. Kendall read about Lost River on its website and noted the descriptions and information provided. In particular, Kendall read that there were boardwalks at Lost River that provided “a ‘safe way’ to view rock formations.” Doc. no. 20-1 at ¶ 9.

On August 8, 2013, Kendall decided to go to Lost River with her children. She was an experienced hiker and dressed accordingly. When she and her children arrived, she paid the entrance fee, and they entered Lost River.

After walking down a sandy path through the forest, Kendall and the children came to a boardwalk and a bridge over a river. The boardwalk was crowded and no more than four feet wide. The boardwalk turned sharply after the bridge on the way to the “Sun Altar” cave. Because of the turn, the crowd, a sign giving information about the cave, and a large tree, Kendall could not see ahead on the boardwalk after the bridge.

Just after the turn, a large boulder extended through the middle of the boardwalk to a height [*5] of about a foot. The boardwalk was constructed around this boulder. There were no signs to warn of the boulder in the boardwalk. Kendall did not see the boulder in her path, tripped over it, and fell, shattering her elbow. Her digital camera was destroyed, and her clothing had to be cut off of her at the hospital. She has permanent damage to her elbow that has resulted in disability.

3. Discussion

Defendants contend that Kendall’s claims for gross negligence and negligent misrepresentation are futile for the following reasons: (a) defendants are immune from liability for both claims under the 1917 Law; (b) no claim for gross negligence exists under New Hampshire law; (c) the statement about the boardwalks being safe is not a misrepresentation of fact but merely an opinion; and (d) Kendall does not allege damages that can be recovered for negligent misrepresentation. Kendall responded to the futility arguments in her reply.

a. Immunity

There are two immunity statutes at issue in this case, and the parties dispute which one applies to the claims in Kendall’s proposed amended complaint.

In 1917, the New Hampshire legislature provided the Society with immunity from liability for any negligence [*6] in constructing or maintaining paths, trails, and bridges. The 1917 Law states:

Section 1. The Society for the Protection of New Hampshire Forests, being a corporation organized under the laws of this state for the purpose of encouraging the protection and preservation of forests and other natural resources of this state for the public benefit, and having in pursuance of its corporate purposes acquired several properties, including those known as Sunapee, Monadnock and Lost River reservations, which it has made accessible for use by the public by the building of paths, trails, bridges, and other structures, is hereby exempted from all civil liability in any suit or action by or on behalf of any person injured or claiming to have been injured through the negligent act or omission of said society or of any officer, agent, or employee thereof in constructing or maintaining such paths, trails, bridges, or other structures upon any property now held or hereafter acquired by it for such purposes.

(emphasis added).

A more recent statute, RSA 508:14, II, provides immunity to any nonprofit entity, such as the Society, “that constructs, maintains, or improves trails for public recreational use,” from liability “for [*7] personal injury or property damage.” This more recent immunity statute, however, provides an exception for “gross negligence or willful or wanton misconduct.” RSA 508:14, II states:

Any individual, corporation, or other nonprofit legal entity, or any individual who performs services for a nonprofit entity, that constructs, maintains, or improves trails for public recreational use shall not be liable for personal injury or property damage in the absence of gross negligence or willful or wanton misconduct.

(emphasis added).

Defendants contend that Kendall’s claims are futile because the 1917 Law gives them immunity from any claim involving negligence, which they contend includes claims for gross negligence and negligent misrepresentation. Defendants argue that because the 1917 Law is more specific, as it applies directly to the Society rather than to all nonprofit entities, it controls over the more general immunity provision in RSA 508:14, II. Not surprisingly, Kendall argues that RSA 508:14, II, and not the 1917 Law, applies to the claims in her proposed amended complaint. Because RSA 508:14, II provides an exception for claims based on allegations of gross negligence, such as the claims she alleges in her proposed amended [*8] complaint, Kendall asserts that defendants are not entitled to immunity.

At first glance, one might conclude that in enacting RSA 508:14, II, the New Hampshire legislature repealed the 1917 Law by implication. That is, the more recent immunity statute applies to a far broader spectrum of landowners, which would include the Society. The doctrine of “repeal by implication” is generally disfavored, however, especially where, as here, the more recent statute contains no expression of a legislative intent to repeal the 1917 Law. See generally Branch v. Smith, 538 U.S. 254, 273, 123 S. Ct. 1429, 155 L. Ed. 2d 407 (2003) (holding that “repeals by implication are not favored” unless there is “a clearly expressed congressional intention” (internal quotation marks and citation omitted)); Diaz-Ramos v. Hyundai Motor Co., 501 F.3d 12, 16-17 (1st Cir. 2007) (“A general law does not repeal a special law unless such repeal is expressly stated or clearly arises from the legislative intent.”) (internal quotation marks and citation omitted).

Moreover, a court should avoid applying the disfavored “repeal by implication” doctrine where it is possible to read two laws as consistent with one another. Indeed, the New Hampshire Supreme Court directs that where “reasonably possible, statutes should be construed as consistent with each other.” EnergyNorth Nat. Gas, Inc. v. City of Concord, 164 N.H. 14, 16, 48 A.3d 960 (2012) (quoting In re Union Tel. Co., 160 N.H. 309, 319, 999 A.2d 336 (2010)) (internal [*9] quotation marks omitted). Therefore, if possible, the court should construe the 1917 Law and RSA 508:14, II “so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes.” Soraghan v. Mt. Cranmore Ski Resort, Inc., 152 N.H. 399, 405, 881 A.2d 693 (2005) (internal citation omitted).

Another rule of statutory construction at play here calls for the court to narrowly construe immunity statutes. See, e.g., Estate of Gordon-Couture v. Brown, 152 N.H. 265, 267, 876 A.2d 196 (2005). Specifically, the rule requires the court to give a narrow construction to the term “negligent” in the 1917 Law because the Law restricts the common law right to recover for injuries caused by another’s negligence. Id. As the New Hampshire Supreme Court explained, a court must:

strictly interpret statutes that are in derogation of the common law. While a statute may abolish a common law right, there is a presumption that the legislature has no such purpose. If such a right is to be taken away, it must be expressed clearly by the legislature. Accordingly, immunity provisions barring the common law right to recover are strictly construed.

Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 291, 923 A.2d 198 (2007) (internal citations omitted); see also Dolbeare v. City of Laconia, 168 N.H. 52, 54, 120 A.3d 146 (2015) (immunity statutes “in derogation of the common law right to recover, are strictly construed”).

In short, there are [*10] two rules of statutory construction that govern this dispute: courts should strictly construe immunity statutes and, where reasonably possible, courts should construe statutes as consistent with one another. Applying these principles, the court narrowly interprets the 1917 Law’s use of the term “negligent” to exclude gross negligence and wanton or willful conduct. Such a construction renders the scope of the immunity provided in 1917 Law consistent with the scope of immunity provided in RSA 508:14, II.

Defendants contend that New Hampshire law does not recognize a cause of action for gross negligence and, therefore, the term “negligent” in the 1917 Law necessarily includes gross negligence. In support of that assertion, they rely on Barnes v. N.H. Karting Ass’n, Inc., 128 N.H. 102, 509 A.2d 151 (1986), and the New Hampshire Supreme Court’s statement that “New Hampshire law does not distinguish causes of action based on ordinary and gross negligence.” Id. at 108.

By way of RSA 508:14, II, however, the New Hampshire legislature has included just such a distinction. In the context of nonprofit entities that maintain public trails for recreational use, the legislature has defined the scope of immunity by distinguishing between derivative degrees of negligence. Although the 1917 Law predates [*11] RSA 508:14, II, the court is not inclined to ignore the legislature’s unmistakably clear language exempting gross negligence from the scope of immunity in its more recent statute. Cf. Lee v. Chamberlain, 84 N.H. 182, 188, 148 A. 466 (1929) (“[W]here such doctrine is made the basis of a legislative rule, enforceable here, it cannot be treated as meaningless.”). Thus, the court finds that in the specific context at issue here, New Hampshire law does distinguish between ordinary and gross negligence.

For the reasons explained above, the court can–and therefore must–reasonably construe the 1917 Law and RSA 508:14, II as consistent with one another. As a practical matter, such a construction means that while both statutes provide immunity to defendants for claims based on allegations of negligence, neither provides immunity for claims based on allegations of gross negligence. The court therefore concludes that defendants are not entitled to immunity from Kendall’s claims to the extent they are based on allegations of gross negligence.

b. Merits of the Claims

Defendants contend that even if they are not immune from claims based on allegations of gross negligence or wanton or willful misconduct, the proposed amended complaint does not contain allegations that rise to that [*12] level. They also assert that the proposed amended complaint does not adequately allege a claim for negligent misrepresentation.

i. Gross Negligence

Gross negligence has been interpreted to mean “very great negligence, or the absence of slight diligence, or the want of even scant care” and willful misconduct has been interpreted as intentional conduct or recklessness that “carries a great chance of causing harm to another.” Beane v. Beane, 856 F. Supp. 2d 280, 307 (D.N.H. 2012) (internal quotation marks and citation omitted); see also Colston v. Boston & Me. R.R., 78 N.H. 284, 99 A. 649, 649 (1916) (noting “gross” in gross negligence means great and “willful” means with conscious knowledge).

In the proposed amended complaint, Kendall alleges that defendants built the boardwalk around an obstruction, a boulder that protrudes into the boardwalk approximately one foot higher than the boardwalk. She also alleges that the boulder is in a dangerous location, just around a turn, and is obscured by a sign, a tree, and crowds of people using the boardwalk. She alleges that defendants placed no warnings about the boulder for the tourists to see before walking on the boardwalk. The proposed amended complaint alleges that the obstructed boardwalk constitutes an obvious danger, and that defendants acted with gross [*13] negligence in failing to remove or warn of the boulder.

Drawing all reasonable inferences in Kendall’s favor, the proposed amended complaint sufficiently alleges gross negligence. Accordingly, the doctrine of futility does not bar Kendall’s request for leave to amend her complaint to allege a claim based on gross negligence.

ii. Negligent Misrepresentation

Defendants also contend that the proposed amended complaint does not adequately allege a claim for negligent misrepresentation. Kendall’s negligent misrepresentation claim is based on defendants’ statement on their website that there were boardwalks at Lost River that provided a “safe way” to view rock formations.

To state a claim for negligent misrepresentation, a plaintiff must allege facts that show “a negligent misrepresentation of a material fact by the defendant and justifiable reliance by the plaintiff.” Wyle v. Lees, 162 N.H. 406, 413, 33 A.3d 1187 (2011). Defendants contend that the alleged misrepresentation identified in the proposed amended complaint is merely an opinion, not a statement of fact, and, therefore, cannot be the basis of a negligent misrepresentation claim.

Although statements of opinion do not generally provide a proper basis for a claim for misrepresentation, [*14] under “certain circumstances, an opinion may constitute the basis of fraud or misrepresentation.” DePalantino v. DePalantino, 139 N.H. 522, 524, 658 A.2d 1207 (1995) (citing cases); see also Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 12-cv-040-LM, 2014 U.S. Dist. LEXIS 54183, 2014 WL 1572559, at *16 (D.N.H. Apr. 18, 2014). At this early stage, the court cannot determine whether defendants’ alleged statement that there were boardwalks at Lost River that provided a “safe way” to view rock formations is an actionable misrepresentation. See, e.g., Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (“Whether a statement is an actionable statement of ‘fact’ or mere ‘puffing’ depends upon a number of factors, including the statement’s specificity, the speaker’s knowledge, the comparative levels of the speaker’s and the hearer’s knowledge, and whether the statement relates to the present or the future.”).2

2 Defendants also assert that the negligent misrepresentation claim is not based on allegations of gross negligence or willful or wanton misconduct and, therefore, they are immune from liability under both the 1917 Law and RSA 508:14, II. Viewed generously, however, the proposed amended complaint alleges that on their website, defendants represented that there were boardwalks at Lost River that provided a “safe way” to view rock formations despite obvious dangers. Whether defendants made the alleged misrepresentation with gross negligence requires factual development and cannot be determined at this stage of the litigation.

Defendants also contend that Kendall has not alleged damages that may be recovered for negligent misrepresentation. A plaintiff is entitled to her economic losses caused by a defendant’s negligent misrepresentation but is not entitled to damages for emotional distress. Crowley v. Global Realty, Inc., 124 N.H. 814, 817-18, 474 A.2d 1056 (1984).

Kendall makes no demand for damages in her proposed amended complaint that is specific to her negligent misrepresentation claim. Instead, at the conclusion of the proposed amended complaint, Kendall requests damages [*15] for medical expenses, lost wages and employment benefits, destroyed property, emotional distress and inconvenience, and loss of the enjoyment of life. Although she cannot recover for emotional distress and loss of the enjoyment of life under her claim for negligent misrepresentation, Kendall alleges other damages that are recoverable. Therefore, Kendall’s proposed negligent misrepresentation claim is not futile.

C. Result

The circumstances support allowing Kendall to amend her complaint. Defendants have not shown, at this stage of the case, that Kendall’s claims would be futile. Therefore, Kendall is granted leave to file her amended complaint.

II. Motion to Dismiss

Defendants moved to dismiss Kendall’s original complaint. When the amended complaint is filed, it will supersede the original complaint, making the motion to dismiss moot. Brait Builders Corp. v. Mass. Div. of Capital Asset Mgmt., 644 F.3d 5, 9 (1st Cir. 2011). For that reason, the motion to dismiss is denied as moot.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for leave to amend (doc. no. 20) is granted. Plaintiff shall file the proposed amended complaint attached to document no. 20 as the amended complaint on or before June 23, 2017. Defendants’ motion to dismiss (doc. no. 13) is denied as moot.

[*16] SO ORDERED.

/s/ Landya McCafferty

Landya McCafferty

United States District Judge

June 21, 2017


No matter who created the activity or the risk on Town’s land, using the risk was an outdoor recreation activity and protected by the New Hampshire Recreational Use Statute.

Besides if you stand in front of a rope swinging when someone is using it attempting to slap the swinger’s feet as he goes by, and you get flattened by the swinger you should not be able to recover. 

Kurowski v. Town of Chester, 2017 N.H. LEXIS 174

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Jay Kurowski F/N/F Christopher Kurowski

Defendant: Town of Chester

Plaintiff Claims: acted negligently and willfully or intentionally by failing to remove the rope swing or post warning signs.

Defendant Defenses: New Hampshire Recreational Use Statute 

Holding: For the Defendant Town 

Year: 2017 

Summary 

The Town had a park with a pond. Someone had put up a rope swing that allowed you to swing into the pond. The town knew about the rope swing and knew that it was possibly hazardous. However, the town never removed the rope swing or posted signs about the hazards it presented. 

The minor plaintiff was standing in front of someone using the rope swing attempting to hit the person’s feet when he was clobbered by the person on the swing suffering injuries. 

The father of the plaintiff sued. The trial court and the appellate court dismissed the case because the New Hampshire Recreational Use Statute provided immunity to the Town for outdoor recreational activities such as this one.

Facts 

The defendant city had a park with a pond. Someone put up a rope swing to use to swing into the pond. The city did not create the rope swing. Several people complained to the city about the rope swing and asked for it to be taken down or signs put up warning against its use.

The Town owns and maintains the Wason Pond Conservation and Recreation Area, which includes walking paths and Wason Pond, and is open to the public free of charge. Since approximately 2012, a rope swing has been attached to a tree overhanging the pond. Neither the plaintiff nor the Town constructed or maintained the swing. People use the rope swing to fling themselves over and into the pond.

The plaintiff, a minor, was at the rope swing. Another person was using the swing to enter the water. The plaintiff was attempting to hit the person’s feet. The person on the swing and the plaintiff collided injuring the plaintiff.

On August 20, 2015, Christopher was at the pond, standing in the path of a person using the swing. While Christopher was attempting to touch the feet of the person swinging on the rope, the two collided, and Christopher was seriously injured.

The father of the minor filed this lawsuit. The city filed a motion for summary judgment asking the compliant be dismissed because the city as the landowner was protected by the New Hampshire Recreational Use Statute

The trial court agreed and dismissed the case. The plaintiff appealed. 

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

The plaintiff first argued that using a rope swing to swing into a pond was not an outdoor recreation activity as defined under the New Hampshire Recreational Use Statute. The court quickly shot this down because the statute did not list everything that was to be protected by the statute it only listed a few things and started that list with the language “including, but not limited to….

The court had found other decisions it had made where it interpreted outdoor recreation activities as covered under the statute even though they were not identified in the statute. 

By its plain terms, the statute’s list of outdoor recreational activities is not exhaustive. Indeed, we have previously applied the principle of ejusdem generis to this provision and concluded that an activity not specifically enumerated — but similar in nature to the activities listed in the statute — may constitute an “outdoor recreational activity.” The principle of ejusdem generis provides that, when specific words in a statute follow general ones, the general words are construed to embrace only objects similar in nature to those enumerated by the specific words.

Looking at the statute and the activity the court found the activity was a water sport and thus covered under the statute. 

We hold that Christopher was actively engaged in an outdoor recreational pursuit sufficiently similar in nature to the enumerated activity of “water sports” to constitute an “outdoor recreational activity” under RSA 212:34, I(c). 

The next argument made by the plaintiff was because the town did not supply the swing, it was not covered under the New Hampshire Recreational Use Statute. The court quickly shot this down finding it does not matter what was used in an outdoor recreational activity or who supplied it.

However, the identity of the person or entity providing the equipment or structure used in an outdoor recreational activity is immaterial. See id. at 56 (finding immaterial the fact that playground equipment used in outdoor activity was provided by landowner rather than user). Indeed, many of the enumerated outdoor recreational activities, for example, hunting, camping, hiking, bicycling, and snowmobiling, see RSA 212:34, I(c),….

The plaintiff next argued the activity was not an outdoor recreational activity because the landowner did not authorize the activity and because the activity was hazardous. The court seemed a little irked when it shot this argument down.

In fact, the statute specifically contemplates that immunity will apply even if the activity at issue involves a known hazardous condition. See RSA 212:34, II (“A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises … . (emphasis added)).

The next argument made by the plaintiff centered around whether or not the actions of the town willful when it failed to post signs about hazards of the activity. The plaintiff argued one version of the definition of the term willful, and the town argued a second. The court found that under either definition, the town was still immune under the statute. Additionally, the court found the actions of the
town were not willful because the plaintiff could not establish the town knew or should have known that an injury would probably result from the activity. 

An allegation that a landowner knew about a particular hazard and did nothing is insufficient to establish that the landowner knew or should have known that injury would probably result from that hazard. At most, such allegations sound in negligence. Therefore, even assuming that the Spires definition applies, we conclude that the plaintiff’s allegations are insufficient as a matter of law to establish that the Town acted “willfully.”

The plaintiff then argued the acts of the town were intentional. That part of the case was dismissed by the trial court because the court found the plaintiff had not alleged enough facts to prove a case of intentional acts on the part of the town. The plaintiff’s argument was:

The plaintiff argues that the Town’s conduct constituted an intentional act for the same reasons he asserts the Town’s conduct was willful — because the Town acknowledged that the rope swing was a hazard, was warned about that hazard on three occasions between 2012 and 2015, did nothing to remove it, and did not post warning signs. 

The court did not agree. There was no proof or pleading that the town had actual or constructive knowledge that its conduct, in failing to post signs or take down the swing, was conduct that was a substantially certain to result in an injury.

At most, the plaintiff’s allegations — that the Town was aware of a hazardous condition or activity and failed to act — sound in negligence. (concluding that allegations that defendant disregarded a substantial risk and failed to act sound in negligence). Accordingly, we hold that the trial court did not err when it found that the plaintiff alleged
insufficient facts to show that the Town’s conduct was willful or intentional.

The decision of the trial court was upheld, and the complaint dismissed.

So Now What? 

This case shows two simple truths for the outdoor recreation industry today. The first, plaintiffs are going to greater lengths to create arguments to litigate over outdoor recreation injuries. The work the plaintiff put in, in order to redefine each word of the statute in a way that did not protect the Town was
substantial and lengthy. 

The second is the statutes have to be written in a way that broadens the protections the legislature intends to give the courts the leeway to dismiss frivolous claims like this. Frivolous because I believe assumption of the risk would be the next defense.

If you stand in front of someone who is holding on to a rope swinging in your direction, and you do so willingly, you assume the risk of getting flattened.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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New Hampshire Recreational Use Statute

 New Hampshire Recreational Use Statute

Title XVIII  Fish and Game

Chapter 212  Propagation of Fish and Game

Liability of Landowners

RSA 212:34  (2017)

212:34.  Duty of Care.

I. In this section:

(a) “Charge” means a payment or fee paid by a person to the landowner for entry upon, or use of the premises, for outdoor recreational activity.

(b) “Landowner” means an owner, lessee, holder of an easement, occupant of the premises, or person managing, controlling, or overseeing the premises on behalf of such owner, lessee, holder of an easement, or occupant of the
premises.

(c) “Outdoor recreational activity” means outdoor recreational pursuits including, but not limited to, hunting, fishing, trapping, camping, horseback riding, bicycling, water sports, winter sports, snowmobiling as defined in RSA 215-C:1, XV, operating an OHRV as defined in RSA 215-A:1, V, hiking, ice and rock climbing or bouldering, or sightseeing upon or removing fuel wood from the premises. 

(d) “Premises” means the land owned, managed, controlled, or overseen by the landowner upon which the outdoor recreational activity subject to this section occurs.

(e) “Ancillary facilities” means facilities commonly associated with outdoor recreational activities, including but not limited to, parking lots, warming shelters, restrooms, outhouses, bridges, and culverts. 

II. A landowner owes no duty of care to keep the premises safe for entry or use by others for outdoor recreational activity or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except as provided in paragraph V. 

II-a. Except as provided in paragraph V, a landowner who permits the use of his or her land for outdoor recreational activity pursuant to this section and who does not charge a fee or seek any other consideration in exchange for allowing such use, owes no duty of care to persons on the premises who are engaged in the construction, maintenance, or expansion of trails or ancillary facilities for outdoor recreational activity.

III. A landowner who gives permission to another to enter or use the premises for outdoor recreational activity does not thereby:

(a) Extend any assurance that the premises are safe for such purpose;

(b) Confer to the person to whom permission has been granted the legal status of an invitee to whom a duty of care is owed; or 

(c) Assume responsibility for or incur liability for an injury to person or property caused by any act of such person to whom permission has been granted, except as provided in paragraph V.

IV. Any warning given by a landowner, whether oral or by sign, guard, or issued by other means, shall not be the basis of liability for a claim that such warning was inadequate or insufficient unless otherwise required under subparagraph V(a).

V. This section does not limit the liability which otherwise exists:

(a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity;

(b) For injury suffered in any case where permission to enter or use the premises for outdoor recreational activity was granted for a charge other than the consideration if any, paid to said landowner by the state;

(c) When the injury was caused by acts of persons to whom permission to enter or use the premises for outdoor recreational activity was granted, to third persons as to whom the landowner owed a duty to keep the premises safe or to warn of danger; or 

(d) When the injury suffered was caused by the intentional act of the landowner.

VI. Except as provided in paragraph V, no cause of action shall exist for a person injured using the premises as provided in paragraph II, engaged in the construction, maintenance, or expansion of trails or ancillary facilities as provided in paragraph II-a, or given permission as provided in paragraph III.

VII. If, as to any action against a landowner, the court finds against the claimant because of the application of this section, it shall determine whether the claimant had a reasonable basis for bringing the action, and if no reasonable basis is found, shall order the claimant to pay for the reasonable attorneys’ fees and costs incurred by the landowner in  defending against the action.

VIII. It is recognized that outdoor recreational activities may be hazardous. Therefore, each person who participates in outdoor recreational activities accepts, as a matter of law, the dangers inherent in such activities, and shall not maintain an action against an owner, occupant, or lessee of land for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the outdoor recreational participant assumes as a matter of law include, but are not limited to, the following: variations in terrain, trails, paths, or roads, surface or subsurface
snow or ice conditions, bare spots, rocks, trees, stumps, and other forms of forest growth or debris, structures on the land, equipment not in use, pole lines, fences, and collisions with other objects or persons.