Tennessee still has not caught up, and assumption of the risk is not a defense to sport or recreational activities.

There is no assumption of the risk defense in Tennessee. Consequently, cyclists in a paceline who crash can be liable to each other for the crash.

Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

State: Tennessee, Court of Appeals of Tennessee, At Knoxville

Plaintiff: Carolyn Crisp

Defendant: Michael Nelms, et Al.

Plaintiff Claims: negligence

Defendant Defenses: inherent risk

Holding: for the plaintiff

Year: 2018

Summary

Cyclists in a paceline could be liable for a fatality of one of the riders because Tennessee has no assumption of the risk as a defense. Paceline riding is inherently dangerous; however, court chose to ignore that issue. Recreation in Tennessee is risky for sports & recreation participants.

Facts

A paceline is a group of riders cycling right behind the first ride, single file in a row. Cyclists do this because it increases the speed of the entire group and saves everyone’s energy. The rider in front is expanding 10% or more, less energy and the riders behind can expand up to 30% less energy. Pacelines are what you see in large cycling races like the Tour de France.

On February 25, 2014, five people embarked on a cycling expedition along the shoulder of U.S. Highway 321 near Townsend, Tennessee. The group was riding in a paceline, an activity wherein cyclists ride in a line one after the other in close quarters. This action serves to increase the efficiency of the ride as the riders draft off one another to counteract the wind resistance. At the front of the line was Long. Behind Long was Nelms. Richard Cox was third. Decedent was fourth, and Stacy Napier was at the back of the line. This was not a group of novices. Rather, these were seasoned cyclists riding expensive bicycles. Long and Decedent, friends since childhood [*3] and regular cycling companions, were in their 70s.

The cyclists left Cycology, a bicycle shop on U.S. highway 321 in Blount County, at 10:30 a.m. The riders were traveling at a speed of about 22 miles per hour. Around noon, the incident occurred. Nelms’ front tire struck Long’s back tire. Nelms wrecked and fell to the pavement. Cox, third in line, swerved and avoided Nelms. Decedent, fourth, steered right but wound up flying off his bicycle and landing on his head. Hospital records reflect that “another rider hit” Nelms. Nelms denies that Decedent hit him, asserting instead that Decedent sharply applied his breaks and thereby caused his own misfortune.

Decedent was rendered quadriplegic by the wreck. Decedent dictated a note to Nelms, stating in part: “I think it is important for you to know that I place no blame on you for the accident . . . it was just one of those things that you cannot understand.” On August 22, 2014, Decedent died.

In February 2015, Plaintiff, Decedent’s widow, sued Nelms in the Trial Court. In April 2015, Nelms filed an answer denying liability. Nelms raised the defense of comparative fault and stated that Long may have been negligent in causing the incident. In [*4] June 2015, Plaintiff filed an amended complaint, this time including Long as a defendant. In August 2015, Long filed an answer acknowledging that Nelms struck his bicycle but denying that he slowed down. Long raised the defense of comparative fault with respect to Nelms and Decedent. Discovery ensued.

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

What a crock.

I’ve written extensively about most states bringing back the assumption of the risk defense for sports and recreational activities. Without players being protected from the risks of the sport, the sport or activity will have no enthusiasm and very little value. Tennessee has not adopted that doctrine. Tennessee states that assumption of the risk is a factor used to help determine the damages. Meaning when the jury determines if there was any negligence and then determine damages, the damages can be reduced by how much of the risk the plaintiff assumed.

Assumption of the risk is a complete bar to litigation in the vast majority of states. Not in Tennessee.

Tennessee still prevents litigation over inherently risky activities. However, this court in its zeal to allow the plaintiff to win, totally ignore the fact that riding in a paceline is an inherently dangerous activity.

Defendants argue that paceline riding is an inherently risky activity as described by the experts and participants, especially for a rider of Decedent’s age. Nelms argues that Decedent had his own duty to adhere to, as well. Plaintiff argues in response that no rider in a paceline assumes that the person riding in front of him suddenly and inexplicably will slow down. Our initial inquiry is whether a duty of care exists in paceline riding and what the nature of that duty is.

By ignored, I mean the court bent over backwards to find a way to allow this case to proceed by simply ignoring the law concerning inherently dangerous activities. The court moved from inherently dangerous to finding a duty. No duty is owed in an inherently dangerous activity.

INHERENTLY DANGEROUS: An activity is inherently dangerous if there is (a) an existence of a high degree of risk of some harm to the person; (2)likelihood that any harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of commons usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which value to the community is outweighed by its dangerous attributes. (Restatement, Torts 2d § 519(1))

See Definitions.

If assumption of the risk is not a defense, and if you ignore the issue of whether the risk is inherently dangerous. Consequently, you are back to simple negligence and the duties that each person owes another.

Everyone has a duty to exercise ordinary and reasonable care in light of the surrounding circumstances to refrain from conduct that could foreseeably injure others, and some locations and circumstances may require a higher degree of care than others.

The court even acknowledged why assumption of the risk is a doctrine that should be adopted in sporting and recreation situations.

The reason many courts have required a plaintiff to prove reckless or intentional conduct on the part of a defendant in order to recover for injuries sustained in an athletic competition, is that these courts have feared that an ordinary negligence standard will increase litigation of sports injuries and stifle athletic competition.

However, Tennessee does not believe it.

We do not share these court’s concerns with respect to the imposition of an ordinary negligence standard in cases of sports related injuries, because we think that the recognition that the reasonableness of a person’s conduct will be measured differently on the playing field than on a public street, will sufficiently prevent the stifling of athletic competition. We also note that the reasonableness of a person’s conduct will be measured differently depending upon the particular sport involved and the likelihood and foreseeability of injury presented by participation in the particular sport. What is reasonable, acceptable, and even encouraged in the boxing ring or ice hockey rink, would be negligent or even reckless or intentional tortious conduct in the context of a game of golf or tennis. We should not fashion a different standard of care for each and every sport. We simply recognize that the reasonable conduct standard of care should be given different meaning in the context of different sports and athletic competitions.

If there is a duty of reasonable care, you can then proceed to prove negligence. Negligence in Tennessee is defined as a five-step process.

To establish a claim for negligence a plaintiff must prove: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) injury or loss; (4) causation in fact; (5) and proximate causation.

From there it was easy to fabricate the idea that paceline riders owed each other a duty of reasonableness.

Inherently risky or not, a paceline rider still has a duty of care to her fellow riders. For instance, while wrecks can and do happen, a paceline rider has a duty to refrain from abruptly applying her brakes or from hitting the wheel of the rider of front of her without good reason. We conclude that each paceline rider in the instant case had a duty to act reasonably under the circumstances.

Think about the absurdity of the above statement. A group of cyclists in a paceline has the right of way. A large truck pulls out in front of the first rider. Based on the analysis of the facts by the court, the first rider is now supposed to hit or get hit by the truck. He or she cannot apply their brakes.

The Tennessee Appellate court sent the case back for trial.

So Now What?

Honestly, this is a scary case. Because Tennessee’s law is antiquated, any participant in any outdoor recreation activity or sporting event could be sued for any injury they receive during the event. Insurance costs in Tennessee will continue to rise because it will be cheaper to settle these cases then to try to win at trial.

And the court’s refusal to look at the inherent risks of cycling in a paceline was a plaintiff’s dream. Even professional’s crash in pacelines. Amateurs are always going to be at risk and there is nothing you can do about the risks. Don’t ride in a paceline, and you don’t get the benefits that a paceline provides.

If you engage in any event in Tennessee, you can walk away a defendant. Stay away from Tennessee if you are recreating.

What do you think? Leave a comment.

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Backing of a lift ticket peeled off by Plaintiff to attach lift ticket to his jacket held by Federal District court to be a release and prevents plaintiffs’ claims for skiing into hidden snow making equipment.

Five Federal District Courts have ruled that the information on the back of a lift ticket is a release. No state Courts have ruled this way.

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

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

Plaintiff: Thomas Jackson Miller

Defendant: The Sunapee Difference, LLC d/b/a Mount Sunapee Resort

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

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.

Facts

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.

The major difference in this case was the lift ticket identified itself as a release. The back of the lift ticket, on the part that peeled away to reveal the sticky section where the lift ticket attached to itself to create a two-sided lift ticket stated:

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 was the following:

STOP

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 stated:

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 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

The language on this lift ticket specifically stated that it was a release, not just a lift ticket and not just a warning.

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

The court first looked at New Hampshire law on releases.

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.

The plaintiff argued that the release was void because it violated public policy, and a reasonable person would only understand that the release applied to the inherent risks of skiing.

New Hampshire public policy requires a showing that no special relationship exists between the parties to the agreement and there is no disparity in the bargaining power between the parties. The New Hampshire Supreme Court found that an agreement would violate public policy if “it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.”

The plaintiff admitted that there was no special relationship between the parties nor was there a disparity of bargaining power. He centered his public policy argument on the theory that the release violated New Hampshire statutory law and that the release was injurious so the public interest. The statutory law argument was based on the New Hampshire Ski Area Act. The Act requires ski area operators to mark visible man-made objects. This object was not visible so therefor the plaintiff argued it should be marked and therefore, was negligence not to pad or mark it. However, the court would not buy into adding language to the statute where none existed. On top of that another section of the statute specially stated a ski assumes the risks of hitting snow making equipment.

The next argument advanced to argue the release violated public policy was based on several prior court decisions that held there was a duty on the state to do things. However, here again, the court found the was no duty in the New Hampshire Ski Area Act other than found in the plain language of the act. The duty the plaintiff was attempting to create was based on tying different sections of the act together that were not related.

The final public policy argument was because the ski area, Mount Sunapee was located on state-owned land and developed with federal funding, that created a greater duty to the public. However, the plaintiff could not provide any support for this theory, other than arguing sections of the lease between the ski area, and the state required it. The court found there was no language in the lease that created supported a public policy argument.

In most states, to create a contract, there are several requirements. One of those is there must be a meeting of the minds. A meeting of the minds requires the parties to know they are entering into a contract and the general terms of the agreement. This was clearly not the case in this situation (and in most lift ticket cases); however, New Hampshire does not require a meeting of the minds to enforce a contract.

The plaintiff then argued that without a signature, there could be a release. However, New Hampshire had a lot of case law where unsigned contracts were enforced.

The plaintiff argued he did not have an opportunity to read the release. However, that does not matter in New Hampshire and in most states when you sign it. However, here there was no signature.

A plaintiff’s failure to read a release “does not preclude enforcement of the release.” 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.

Here the court sort of worked its way around that issue because it found the plaintiff was a personal injury attorney. The plaintiff had submitted affidavits on the issue, which the court found lacking in the information needed to support the plaintiff’s arguments. The court did hammer plaintiff’s counsel at oral argument until plaintiff’s counsel admitted he had the opportunity to read it if he wanted.

Another issue is what the parties were contemplating when they made the agreement. A requirement for a contract under New Hampshire law. The court found the language of the release, which it had earlier found valid, contained the necessary information to define what the intention of the release was.

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 . . . .”

The court then went into the Reckless, Wanton or positive misconduct claims of the plaintiff. New Hampshire has adopted the Restatement of Torts definition of Reckless.

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 physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.”

The court further defined reckless under New Hampshire law as:

…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.

However, the court found that the pleadings of the plaintiff pled no more than simple negligence. Meaning the facts argued by the plaintiff did not rise to the level needed to create a recklessness claim.

The court summed up its analogy as:

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.

So Now What?

It seemed obvious that this court was going to hold for the ski area. The decision explored all the arguments and possible arguments the plaintiff’s made and then ruled for the defendants.

The back of the pass had more than normal warning language as required by most statutes. This peel away release stated it was a release. There is also an issue that the purchaser of the lift ticket had already paid for the ticket before they found out there was a release giving rise to misrepresentation and fraud claim may be.

What is interesting is the change in the past five year, only in Federal District Courts holding that a lift ticket is a valid release at least mentioning the lift ticket as more than a receipt or a pass to access the lifts.

For more articles about Lift Tickets being used to stop lawsuits at ski areas see:

Lift tickets are not contracts and rarely work as a release in most states    http://rec-law.us/1bO85eU

Colorado Federal District Court judge references a ski area lift ticket in support of decision granting the ski area’s motion for summary judgment and dismissing the lawsuit.    http://rec-law.us/2vHUXf1

#BoycottNH New Hampshire charges for Search & Rescue. Do not recreate in New Hampshire

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

 

 


Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

Crisp v. Nelms, 2018 Tenn. App. LEXIS 160; 2018 WL 1545852

Court of Appeals of Tennessee, At Knoxville

January 16, 2018, Session; March 28, 2018, Filed

Reporter

CAROLYN CRISP v. MICHAEL NELMS, ET AL.

Subsequent History: Request granted Crisp v. Nelms, 2018 Tenn. LEXIS 401 (Tenn., Aug. 8, 2018)

Later proceeding at Crisp v. Nelms, 2018 Tenn. LEXIS 503 (Tenn., Aug. 9, 2018)

Prior History: Tenn. R. App. P. 3 [*1]
Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded. Appeal from the Circuit Court for Blount County. No. L-18929. Rex H. Ogle, Judge.

Disposition: Judgment of the Circuit Court Reversed; Case Remanded.

Counsel: David T. Black, Melanie E. Davis, and Carlos A. Yunsan, Maryville, Tennessee, for the appellant, Carolyn Crisp.

P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Michael Nelms. Rick L. Powers and William A. Ladnier, Knoxville, Tennessee, for the appellee, George Long.

Judges: D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

Opinion by: D. MICHAEL SWINEY

Opinion

This appeal arises from a lawsuit over a fatal cycling accident. Carolyn Crisp (Plaintiff), surviving spouse of William Andrew Crisp (Decedent), sued Michael Nelms (Nelms) and George Long (Long) (Defendants, collectively) in the Circuit Court for Blount County (the Trial Court) for negligence. Decedent and four others, including Nelms and Long, were riding as part of a paceline group when a crash occurred. Nelms asserted comparative fault, stating that Long slowed down suddenly at the head of the line. Long denied he slowed down suddenly. Defendants [*2]
filed motions for summary judgment. The Trial Court held, among other things, that paceline cycling inherently is dangerous and that Decedent was at least 50% at fault for his accident. Plaintiff appealed to this Court. We hold, inter alia, that there is a genuine issue of material fact as to whether Long slowed down suddenly at the head of the line and whether a reasonable jury could find Decedent less than 50% at fault in his accident. We reverse the judgment of the Trial Court and remand for the case to proceed.

OPINION

Background

On February 25, 2014, five people embarked on a cycling expedition along the shoulder of U.S. Highway 321 near Townsend, Tennessee. The group was riding in a paceline, an activity wherein cyclists ride in a line one after the other in close quarters. This action serves to increase the efficiency of the ride as the riders draft off one another to counteract the wind resistance. At the front of the line was Long. Behind Long was Nelms. Richard Cox was third. Decedent was fourth, and Stacy Napier was at the back of the line. This was not a group of novices. Rather, these were seasoned cyclists riding expensive bicycles. Long and Decedent, friends since childhood [*3]
and regular cycling companions, were in their 70s.

The cyclists left Cycology, a bicycle shop on U.S. highway 321 in Blount County, at 10:30 a.m. The riders were traveling at a speed of about 22 miles per hour. Around noon, the incident occurred. Nelms front tire struck Longs back tire. Nelms wrecked and fell to the pavement. Cox, third in line, swerved and avoided Nelms. Decedent, fourth, steered right but wound up flying off his bicycle and landing on his head. Hospital records reflect that another rider hit Nelms. Nelms denies that Decedent hit him, asserting instead that Decedent sharply applied his breaks and thereby caused his own misfortune.

Decedent was rendered quadriplegic by the wreck. Decedent dictated a note to Nelms, stating in part: I think it is important for you to know that I place no blame on you for the accident . . . it was just one of those things that you cannot understand. On August 22, 2014, Decedent died.

In February 2015, Plaintiff, Decedents widow, sued Nelms in the Trial Court. In April 2015, Nelms filed an answer denying liability. Nelms raised the defense of comparative fault and stated that Long may have been negligent in causing the incident. In [*4]
June 2015, Plaintiff filed an amended complaint, this time including Long as a defendant. In August 2015, Long filed an answer acknowledging that Nelms struck his bicycle but denying that he slowed down. Long raised the defense of comparative fault with respect to Nelms and Decedent. Discovery ensued.

Timothy Joganich, a bicycle safety expert testifying for Plaintiff, stated in his deposition:

Q. All right. The last sentence here, The collision with Mr. Nelms bike and the wheel of Mr. Longs
strike that. The collision with Mr. Nelms bike and with the wheel of Mr. Longs bike shows that these duties were breached by Mr. Nelms. That is an opinion you will be giving?

A. Yes.

Q. If Mr. Longs bike slowed suddenly, and Mr. Nelms front wheel contacted Mr. Longs back wheel, would that be a breach of a duty by Mr. Nelms?

A. You have to define suddenly because this is really a control systems problem. The reality is there is a variation in speed of all the cyclists out there, even the one in front. Now, it may be so subtle and so small that you may not perceive it. The fact is that the rider out in front has the duty to maintain a constant pace as possible, and then all the riders following [*5]
have to respond to any variation in input. Now, if for reason the rider out in front had an emergency braking where the following riders would not respond in time, then you are going to have a crash. In this case, I dont see anything in the evidence to support Mr. Long slowing down in a sudden manner to the point where Mr. Nelms could not respond.

Q. Okay. Well, you read Mr. Nelms deposition, did you not?

A. Correct. He said that he slowed down suddenly. But when you look at all the other evidence, even Mr. Nelms said that there was nothing in the roadway that he saw I should backup and say that the only reason why the rider is going to slow down is for some external factors such as something in the roadway Im talking about an emergency type of condition such as a deer runs out or a squirrel runs out, and that happens all the time. It happens to our group, but theres no evidence of anything like that happening. Mr. Long testified that he was going to go at a constant pace all the way to River Road, so theres no reason for him to slow down. The only other reason for him to slow down is he were going to pull off and switch positions, but theres no evidence of that.

Q. Well, [*6]
theres been testimony that there was a strong headwind that day. Are you going to give any opinion about the wind conditions on the day of the accident in question?

A. I will certainly refer to it because that is an issue in the case, and its been discussed in the depositions.

Q. Well, while we are on that topic, and I will cover it again, but I dont see that you give any opinion in your affidavit or in this letter where you discuss the wind conditions. Are you sticking to that?

A. Well, its not going to be a main point. It may be a sub opinion based on some of the main opinions Im talking about. If you asked me, was there a wind at the time, then Im going to talk to you about what the others said and what the climatology report says.

Q. Okay. When Mr. Long says that there was a strong headwind that day, do you have any reason to dispute that?

A. Well, I will say theres conflicting testimony in that regard because Ms. Napers doesnt remember any wind, and Mr. Nelms only suspects that there was a strong wind, so yes, Mr. Long did testify there was a wind. Now, when you look at the climatology records in that time frame, we are talking 8 to 10 miles an hour with the wind coming predominantly [*7]
out of the north, and it gives the wind direction, 330 degrees.

Q. Are you ruling out wind as any possible contribution to any of the accidents?

A. I dont see it playing a significant role.

***

Q. You state in paragraph 16 that the front wheel of Mr. Crisps bicycle subsequently ran into Mr. Nelms. Now, you understand that that statement, that fact, is disputed?

A. Its in the medical records.

Q. That was my next question.

A. Okay.

Q. What do you rely on to come to that conclusion?

A. A couple things. One is primarily the medical records. I will refer you

Q. The medical records of whom?

A. Mr. Nelms. I will refer you to the specific record. Im referring to the Care Today Clinic. Its for Michael Nelms. Lets see if theres a date on it. The date is 2/25/14. The time is 7:23. Under HPI, which is history of the patient, it says, Riding bicycle approximately 22 miles an hour, wrecked, and another rider hit him. When you look at that evidence in the context of all of the other testimony of the other riders that avoided the pileup, logically, you can only conclude it was Mr. Crisp hitting Mr. Nelms. Then Stacy testified that Mr. Crisp hit Mr. Nelms bike. Well, everything is happening so quick, [*8]
but both the bike and Nelms are on the ground, so bike versus Mr. Nelms, so I can see where there would be some confusion, and it may have been both.

James Green, a forensic engineer specializing in bicycle wreck reconstruction hired by Nelms, also was deposed. Green testified in part:

Q. You said you were employed to determine causation. Can you tell us whether or not this accident would have happened but for Mr. Nelms hitting the bicycle in front of him and losing control and wrecking?

A. Well, Im not sure I can answer it the way youve phrased it. If youre – – let me see if I understand your question and Ill try to answer it. Are you asking me if the accident to Mr. Crisp would have occurred if Mr. Nelms had not hit the bike ahead of him, or are you asking me what are you asking me causation, I guess is my question to you, to answer your question?

Q. No. Im asking you this question, and however you interpret it. But my question is, would this accident have happened not have happened but for the fact that Mr. Nelms hit the bicycle in front of him?

A. Im not Im not sure. If you isolate it just to the series of events, I would say it wouldnt. But if youre looking at causation [*9]
in terms of the whole scenario, Im going to say that you basically had four gentlemen in their 70s, and Im 71, riding riding bikes in a tight paceline on a very, very windy day where wind was coming from several different directions over time, and it really isnt an appropriate thing to do, in my opinion. I dont ride pacelines anymore, and I used to race as a pro. So and Im very familiar with riding in that area. I just dont see if youre going to ride in a paceline, even as a pro, in your 20s and 30s, eventually youre going to wreck riding in one. Its just a very dangerous activity. Its not a safe activity.

***

Q. Would you[r] opinion be different if you assume these facts. That Mr. Nelms says that he was struck by another bicyclist, that Mr. Crisp says that he struck Mr. Nelms and thats what caused him to hit and go over the handlebars, and that he had no time to apply his brakes. If those facts were true, would your opinion differ?

A. Well, those first of all, those arent facts. Those are fact statements. Witness statements. And no, it wouldnt change my opinion, because it does not line up with the engineering data that Ive already given you in the record. The [*10]
two of them for me to accept the fact witness statement its got to agree with the engineering, and the engineering is not supporting that statement. Its not supporting your hypothetical on Nelms or your hypothetical on Crisp.

Nelms and Long filed motions for summary judgment in April and May 2016, respectively. In September 2016 following a hearing, the Trial Court entered an order granting Defendants motions for summary judgment. In its oral ruling attached to its order, the Trial Court stated in part:

This is obviously a very tragic case, loss of life and just theres nothing that anybody can do to obviously change this. My first thought, as I have read through these things, is that there is no difference here in how this proceeded than a stock car race. Everybody bunched together.

You know, back in the old days, Dale Earnhardt, Sr., would run you off the road, and there you were off the track, and there you were in the wall. But by its very nature, NASCAR granted higher speeds is different, but theyve got steel and helmets and everything else. This type of activity, in a sense, is no different than that.

These gentlemen were riding together. It is very reasonable to [*11]
assume and well, its a fact that its not seriously disputed that an accident, when they are riding this closely together, is certainly foreseeable on everybodys part. And unfortunately, something happened up front that caused people to slow. But as it relates to Mr. Crisp, the Court would have to leap to assumptions in order to say what he did or what he didnt do, and he owed himself a duty of reasonable care to see what was in front of him and to understand his surroundings as well.

It would also as I have understood it and read it and counsel, this Court, as Ive said many times, I cannot guarantee you Im right, but I guarantee you I try to be right. From my reading of the record, from the affidavits, that there is no basis other than sheer speculation that would allow a jury to find for the plaintiff in this case.

In fact, speculation is pretty much all there is in this case. We could allow them to speculate about certain facts, but the ultimate conclusion is, is that these types of accidents are foreseeable in bicycle racing, especially this close type of racing. We see it all the time. We pass them on the highways. Im not taking well, I think I could take judicial [*12]
notice that cyclists in group activities wreck.

And so these parties chose to engage in this activity. They chose to ride together. Theres testimony throughout about what happens when these cyclists are riding together, about drafting, about various movements on the surface that they are cycling on.

And the Court hates to do it, but the Court does not see how any jury could reasonably find that either of these defendants were negligent in the cause the cause in fact or the proximate cause of the tragic accident and injury and ultimate death o[f] Mr. Crisp.

***

[T]he Court also holds that no jury that the actions of Mr. Crisp were at least his actions were at least fifty percent of the cause of his own accident.

In October 2016, Plaintiff filed a motion to alter or amend and a request for findings of fact and conclusions of law. In May 2017, the Trial Court entered an order denying Plaintiffs motion, stating:

After considering the plaintiffs motion and the responses thereto, the Court finds as follows:

1. That the Memorandum Opinion was issued by the Court and incorporated in the Order Granting the Motion for Summary Judgment on September 29, 2016.

2. That the plaintiff mistakenly [*13]
understood the Court to infer that the parties were racing. That was not the intention nor finding of this Court. The Court was merely referencing to the fact that bumper to bumper activities by automobiles or bicycles can lead to disastrous consequences.

3. That the plaintiffs basic position is that she does not know what happened, but that she wants a jury to try this matter.

4. That taken in a light most favorably to the plaintiff, there are no genuine issues of material fact upon which a claim of negligence against the defendants could be found.

5. That the unexplained cause or causes of the accident in question could not require a finding of negligence.

6. That because Mr. Crisp chose to ride in the activity of paceline riding where it is certainly foreseeable that an accident could occur, the Court finds that a reasonable jury would have to find that he was at least 50% liable for his own injuries.

From all of which it is hereby ORDERED, ADJUDGED, AND DECREED that the above, along with the Courts Memorandum Opinion, are the findings and fact and conclusions of law, and that no further hearing on this particular issue shall be considered by the Court, and that this order is hereby [*14]
deemed a final order in all respects. Any remaining court costs are hereby taxed to the plaintiff, for which execution shall issue if necessary.

Plaintiff timely appealed to this Court.

Discussion

We restate and consolidate the issues Plaintiff raises on appeal into the following dispositive issue: whether the Trial Court erred in granting summary judgment to Defendants.

As our Supreme Court has instructed regarding appellate review of a trial courts ruling on a motion for summary judgment:

HN1[] Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Tenn. R. Civ. P. 56.04. HN2[] We review a trial court
s ruling on a motion for summary judgment de novo, without a presumption of correctness. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist Healthcare—Memphis Hosps., 325 S.W.3d 98, 103 (Tenn. 2010). In doing so, we make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied. Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471 (Tenn. 2012)). . . .

* * *

HN3[] [I]n Tennessee, as in the federal system, when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden [*15]
of production either (1) by affirmatively negating an essential element of the nonmoving partys claim or (2) by demonstrating that the nonmoving partys evidence at the summary judgment stage is insufficient to establish the nonmoving partys claim or defense. We reiterate that HN4[] a moving party seeking summary judgment by attacking the nonmoving partys evidence must do more than make a conclusory assertion that summary judgment is appropriate on this basis. Rather, Tennessee Rule 56.03 requires the moving party to support its motion with a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.
Tenn. R. Civ. P. 56.03.
Each fact is to be set forth in a separate, numbered paragraph and supported by a specific citation to the record.
Id. When such a motion is made, any party opposing summary judgment must file a response to each fact set forth by the movant in the manner provided in Tennessee Rule 56.03. HN5[]
[W]hen a motion for summary judgment is made [and] . . . supported as provided in [Tennessee Rule 56], to survive summary judgment, the nonmoving party may not rest upon the mere allegations or denials of [its] pleading, but must respond, and by affidavits or one [*16]
of the other means provided in Tennessee Rule 56, set forth specific facts
at the summary judgment stage
showing that there is a genuine issue for trial.
Tenn. R. Civ. P. 56.06. The nonmoving party
must do more than simply show that there is some metaphysical doubt as to the material facts.
Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348. The nonmoving party must demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party. HN6[] If a summary judgment motion is filed before adequate time for discovery has been provided, the nonmoving party may seek a continuance to engage in additional discovery as provided in Tennessee Rule 56.07. However, after adequate time for discovery has been provided, summary judgment should be granted if the nonmoving party
s evidence at the summary judgment stage is insufficient to establish the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the nonmoving party comes forward with at the summary judgment stage, not on hypothetical evidence that theoretically could be adduced, despite the passage of discovery deadlines, at a future trial. . . .

Rye v. Womens Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 2015).

Defendants argue that paceline riding is an inherently risky activity as described [*17]
by the experts and participants, especially for a rider of Decedents age. Nelms argues that Decedent had his own duty to adhere to, as well. Plaintiff argues in response that no rider in a paceline assumes that the person riding in front of him suddenly and inexplicably will slow down. Our initial inquiry is whether a duty of care exists in paceline riding and what the nature of that duty is.

The case of Becksfort v. Jackson is highly instructive. In Becksfort, a woman was injured while participating in a tennis drill at a club. We discussed as follows:

In Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994), our HN7[] Supreme Court abolished implied assumption of the risk as a complete bar to recovery in a negligence action and held that cases involving implied assumption of the risk issues should be analyzed under the principles of comparative fault and the common law concept of duty. The Court stated that the reasonableness of a partys conduct in confronting a risk should be determined under the principles of comparative fault. Attention should be focused on whether a reasonably prudent person in the exercise of due care knew of the risk, or should have known of it, and thereafter confronted the risk; and whether such a person would have [*18]
behaved in the manner in which the plaintiff acted in light of all the surrounding circumstances, including the confronted risk.
Id. at 905.

HN8[] Everyone has a duty to exercise ordinary and reasonable care in light of the surrounding circumstances to refrain from conduct that could foreseeably injure others, and some locations and circumstances may require a higher degree of care than others. White v. Metropolitan Government of Nashville and Davidson County, 860 S.W.2d 49, 51 (Tenn. App. 1993). The term reasonable care must be given meaning in relation to the circumstances. Doe v. Linder Constr. Co., Inc. 845 S.W.2d 173, 178 (Tenn. 1992). HN9[] To establish a claim for negligence a plaintiff must prove: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) injury or loss; (4) causation in fact; (5) and proximate causation. Haynes v. Hamilton County, 883 S.W.2d 606, 611 (Tenn. 1994).

***

[B]y participating in the drill, Ms. Becksfort did not confront or accept the risk that another player would act or play unreasonably. The plaintiff offered proof that Ms. Jackson knew or should have known that Ms. Becksfort was not watching Jacksons ball, and was rather watching only her (Becksforts) ball. The plaintiff also offered proof that Ms. Jackson knew or should have known that the ball was traveling in the direction of the plaintiff. [*19]
Kent Shultz stated in his deposition that during the two ball drill the respective sets of players focused on the ball in play on their half of the court. Mr. Shultz also testified that the shot which Ms. Jackson hit into the eye of the plaintiff was a forehand shot with some power behind it. Ms. Jackson contended in her deposition that (apparently due to the speed at which the ball was traveling) there simply was no time to issue a warning; however, that appears to be a question of fact upon considering all the circumstances involved.

We think there is sufficient evidence to create a genuine issue of material fact as to whether Ms. Jackson acted unreasonably by failing to warn of the errant shot. Based upon this record, reasonable minds could differ as to whether Ms. Jackson acted reasonably under the circumstances. Therefore, this question should be resolved by the trier of fact.

Becksfort v. Jackson, No. 02A01-9502-CV-00027, 1996 Tenn. App. LEXIS 257, 1996 WL 208786, at *2-4 (Tenn. Ct. App. April 30, 1996), no appl. perm. appeal filed.

In Becksfort, we elaborated upon the duty of care in a sports context as follows:

The reason many courts have required a plaintiff to prove reckless or intentional conduct on the part of a defendant in order to recover for injuries sustained in an athletic competition, is that [*20]
these courts have feared that an ordinary negligence standard will increase litigation of sports injuries and stifle athletic competition. See, e.g., Hoke v. Cullinan, 914 S.W.2d 335, 337, 42 12 Ky. L. Summary 33 (Ky. 1995) (A view often expressed is that such a standard promotes sound public policy by allowing redress in extraordinary circumstances without permitting fear of litigation to alter the nature of the game.); Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, 710 (Cal. 1992) (The courts have concluded that vigorous participation in sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.). We do not share these courts concerns with respect to the imposition of an ordinary negligence standard in cases of sports related injuries, because we think that the recognition that the reasonableness of a persons conduct will be measured differently on the playing field than on a public street, will sufficiently prevent the stifling of athletic competition. We also note that the reasonableness of a persons conduct will be measured differently depending upon the particular sport involved and the likelihood and foreseeability of injury presented by participation in the particular sport. What is reasonable, acceptable, and [*21]
even encouraged in the boxing ring or ice hockey rink, would be negligent or even reckless or intentional tortious conduct in the context of a game of golf or tennis. We should not fashion a different standard of care for each and every sport. We simply recognize that the reasonable conduct standard of care should be given different meaning in the context of different sports and athletic competitions.

Becksfort, 1996 Tenn. App. LEXIS 257, 1996 WL 208786, at *3 n. 4.

In the present case, we respectfully disagree with the apparent position of the Trial Court and Defendants that to participate in paceline riding is to assume the risk of whatever dangerous conduct, however unreasonable, is engaged in by the participants. Many years ago, our Supreme Court abolished implied assumption of the risk as a complete bar to recovery. We decline Defendants invitation to essentially resurrect implied assumption of the risk through a special carve-out exception. Inherently risky or not, a paceline rider still has a duty of care to her fellow riders. For instance, while wrecks can and do happen, a paceline rider has a duty to refrain from abruptly applying her brakes or from hitting the wheel of the rider of front of her without good reason. We conclude that each [*22]
paceline rider in the instant case had a duty to act reasonably under the circumstances.

Having concluded that the paceline riders owed a duty of care, it remains to be established in this case at the summary judgment stage whether that duty was breached and by whom. That is problematic because there are conflicting accounts as to what happened. Chiefly, it never has been established how Nelms came to collide with Longs bicycle. Nelms states that Long suddenly slowed down. Long disputes this. Nelms and Long are, therefore, at odds in their accounts. This is not a trivial dispute but rather goes to the heart of the case—whether a breach of duty occurred and, if so, by whom. This is what juries often are called on to decide in a negligence case where comparative fault is alleged. There are genuine issues of material fact as to whether Defendants acted reasonably under the circumstances, and the issue of fault allocation, if any, should be resolved by the trier of fact. We take no position on the merits of the question, only that it remains a question suitable for trial.

The Trial Court, in its order denying Plaintiffs motion to alter or amend, also stated: [B]ecause [Decedent] chose [*23]
to ride in the activity of paceline riding where it is certainly foreseeable that an accident could occur, the Court finds that a reasonable jury would have to find that he was at least 50% liable for his own injuries. This is a puzzling and unsupported finding. There were five participants in the paceline group at issue, and three of those were involved in the crash. If Decedent is presumed to be at least 50% responsible for his own accident simply for participating in paceline riding, then the other riders involved in the crash also must be at least 50% responsible simply by participating. The math does not add up as, naturally, one cannot exceed 100% in an allocation of fault. Finding or holding that someone who participates with others in an inherently dangerous activity must be at least 50% at fault if he is injured is, once again, an attempt to resurrect the defense of assumption of the risk. We decline to do so.

As genuine issues of material fact remain unresolved in this case, summary judgment is inappropriate. We reverse the judgment of the Trial Court and remand for further proceedings.

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the [*24]
Trial Court for collection of the costs below and for further proceedings consistent with this Opinion. The costs on appeal are assessed one-half equally against the Appellees, Michael Nelms and George Long.

D. MICHAEL SWINEY, CHIEF JUDGE


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


Stay away from Grooming Machines when you are skiing and boarding. They are dangerous!

Ski area safety acts were written, no matter what anyone says, to protect ski areas. However, if the ski area does not follow the statutes, then they cannot use the statute as a defense.

Citation: Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

State: Michigan, United States District Court, E.D. Michigan, Southern Division

Plaintiff: Corinne Dawson et al.

Defendant: Mt. Brighton, Inc. et al.

Plaintiff Claims: Negligence

Defendant Defenses: Michigan Ski Safety Act

Holding: for the plaintiff

Year: 2013

Summary

Michigan Ski Safety Act lists grooming machines as an inherent risk of skiing. The act also requires signs to be posted on slopes where groomers are operating. Failure to have the proper sign creates an issue as to whether the inherent risk applies defeating the ski areas’ motion for summary judgment.

Facts

A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.

An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)

Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)

A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.

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

The only real defense the defendant ski area had was the Michigan Ski Safety Act. The plaintiffs argue that because the defendants had violated the act, they could not use the act to protect them from a lawsuit.

The court then went through the act looking at the purpose for its creation and the protections it affords ski areas. One specific part of the act’s states that snow-grooming equipment is a risk.

MCL § 408.342. Duties of skier; acceptance of inherent dangers.

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

However, the act also requires that when snow grooming equipment is on the slope. there must be a sign posted.

MCL § 408.326a. Duties of ski area operators.

(f) Place or cause to be placed, if snow-grooming or snowmaking operations are being performed on a ski run, slope, or trail while the run, slope, or trail is open to the public, a conspicuous notice at or near the top of or entrance to the run, slope, or trail indicating that those operations are being performed.

The plaintiff argued the signs were not posted on the run.

The issue for the court was, did the violation of the duty created by the statute remove the defense the Michigan Ski Safety Act provides.

The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.”

However, the court found that the issue presented by the plaintiff, that no sign was present created a genuine issue of material fact, which denies a motion for summary judgment.

In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.”

The case went on to discuss other motions filed that did not relate to the facts or legal issues of interest.

So Now What?

A Colorado ski area had a multi-year nasty battle over that same issue eleven years earlier. Now signs are permanently posted at all lift loading areas and the at the tops of unloading areas so you know you can realize that groomers may be on the slopes.

At the same time, most ski areas have worked hard to remove snow groomers from the slopes when skiers are present.

For another case, colliding with a snow cat see: The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. If it was in the release, then it was a risk.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

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

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Appellate court slams climbing gym, all climbing gyms in New York with decision saying not climbing gym can use a release.

A climbing gym is a recreational facility. As such, under New York law, the court found all releases fail at climbing gyms. Short, simple and broad statement leaves little room to defend using a release in New York.

Citation: Lee, et al., v Brooklyn Boulders, LLC, 156 A.D.3d 689; 67 N.Y.S.3d 67; 2017 N.Y. App. Div. LEXIS 8723; 2017 NY Slip Op 08660

State: New York; Supreme Court of New York, Appellate Division, Second Department

Plaintiff: Jennifer Lee, et al.

Defendant: Brooklyn Boulders, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release and Assumption of the Risk

Holding: For the Plaintiff

Year: 2017

Summary

A climber fell between the mats at a climbing gym injuring her ankle. The release was thrown out because a climbing gym is a recreational facility and assumption of the risk did not prevail because the Velcro holding the mats together hid the risk.

Facts

The plaintiff Jennifer Lee (hereinafter the injured plaintiff) allegedly was injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats. According to the injured plaintiff, the gap was covered by a piece of Velcro.

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

The trial court dismissed the defendant’s motion for summary judgment, and the defendant appealed. There were two issues the defendant argued on appeal: Release and Assumption of the Risk.

The court threw out the release in a way that makes using a release in New York at a climbing gym difficult if not impossible.

Contrary to the defendant’s contention, the release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature. Therefore, the release does not bar the plaintiffs’ claims.

The court threw out the release with a very far-reaching statement. “the defendant’s facility is recreational in nature.” It is unknown if the defendant tried to argue educational issues such as in Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)

The court then looked at the defense of assumption of the risk.

Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Moreover, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation

This court would seem to agree with an assumption of the risk defense based on statements made in case law set out above.

However, the facts in this case do not lead to such a clear decision. Because the gap between the mats was covered by Velcro, the court thought the Velcro concealed the risk.

Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing.

The Velcro, which was designed to keep the mats from separating, concealed the gap, which injured the plaintiff’s foot, when she landed between the mats. The defense of assumption of the risk was not clear enough for the court to decided the issue. Therefore assumption of the risk must be decided by a jury.

Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, regardless of the sufficiency of the opposition papers

So Now What?

It is getting tough to defend against claims and injuries in New York, specifically in climbing gyms. For an almost identical case factually see: Employee of one New York climbing wall sues another NYC climbing wall for injuries when she fell and her foot went between the mats.

Obviously, the facts in the prior New York climbing gym case, where the plaintiff fell between the mats provided the “track” used by this plaintiff in this lawsuit.

If your climbing gym has mats held together with Velcro or some other material, paint the material yellow or orange and identify that risk in your release or assumption of the risk agreement.

Assumption of the risk may still be a valid defense see NY determines that falling off a wall is a risk that is inherent in the sport. Unless you are teaching a class or some other way to differentiate your gym or that activity from a recreational activity, you are going to have to beef up your assumption of the risk paperwork and information to stay out of court.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

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leave to amend, punitive damages, sport, gap, recover damages, personal injuries, summary judgment, rock climbing, inherent risks, prima facie, cross-appeal, recreational, engaging, mats, inter alia

risks, sport, injured plaintiff, punitive damages, leave to amend, cross motion, cross-appeal, consented, climbing, gap, personal injury damages, action to recover, summary judgment, inherent risk, prima facie, inter alia, recreational, appreciated, plaintiffs’, engaging, appeals, mats, rock


Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

Corinne Dawson et al., Plaintiffs, v. Mt. Brighton, inc. et al., Defendants.

Civil Action No. 11-10233

United States District Court, E.D. Michigan, Southern Division.

March 27, 2013

ORDER DENYING MOTION FOR SUMMARY JUDGMENT, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SANCTIONS AND ORDER SETTING FINAL PRETRIAL CONFERENCE AND TRIAL DATES

DENISE PAGE HOOD, District Judge.

I. BACKGROUND

On August 10, 2011, a First Amended Complaint was filed by Plaintiffs Corinne Dawson, individually and as co-Next Friend of A.M., a minor, Peter Miles, co-Next Friend of A.M., a minor, Justine Miles and Dwaine Dawson against Defendants Mt. Brighton, Inc. and Robert Sturgis alleging: By A.M., by and through his Co-Next Friends, Statute Violations against All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count I); By Corinne Dawson, Dwaine Dawson and Justine Miles, Statute Violations by All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count II); By A.M., by and through his Co-Next Friends, Common Law Premises Liability against All Defendants (Count III); and, By Corinne Dawson, Dwaine Dawson and Justine Miles, Common Law Premises Liability against All Defendants (Count IV).

A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.

An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)

Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)

A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.

This matter is now before the Court on Defendants’ Motion for Summary Judgment. Plaintiffs filed a response, along with various documents, including “Plaintiffs’ Separate Statement of Facts”, Declaration of Larry Heywood, and Declaration of Timothy A. Loranger. Defendants filed a reply. Plaintiffs also filed a document titled “Plaintiffs’ Evidentiary Objections and Motion to Strike” portions of Defendants’ summary judgment motion. Defendants replied to this motion. Defendants filed a Motion to Adjourn Scheduling Order Dates seeking adjournment of the December 4, 2012 trial date, to which Plaintiffs submitted a response that they did not object to the motion.

II. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact, ” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.

B. Michigan’s Ski Area Safety Act

Defendants argue they are entitled to summary judgment under Michigan’s Ski Area Safety Act (“SASA”) which bars recovery for any injuries under common law premises liability or negligence claims. Plaintiffs respond that because of Defendants’ violation of SASA, specifically failing to post any signs that grooming was taking place, Defendants are not immune from liability under SASA. Plaintiffs also argue that SASA does not apply since the place where the incident occurred was not a ski run, slope or trail.

SASA was enacted in 1962. The purposes of SASA include, inter alia, safety, reduced litigation, and economic stabilization of an industry which contributes substantially to Michigan’s economy. Shukoski v. Indianhead Mountain Resort, Inc., 166 F.3d 848, 850 (6th Cir. 1999). The Michigan legislature perceived a problem with respect to the inherent dangers of skiing and the need to promote safety, coupled with the uncertain and potentially enormous ski area operators’ liability. Id. (citation omitted) Given the competing interests between safety and liability, the legislature decided to establish rules regulating ski operators and the ski operators’ and skiers’ responsibilities in the area of safety. Id. The Legislature decided that all skiers assume the obvious and necessary dangers of skiing, limiting ski area operators’ liability and promoting safety. Id. The statute states:

(1) While in a ski area, each skier shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Stay clear of snow-grooming vehicles and equipment in the ski area.

(c) Heed all posted signs and warnings.

(d) Ski only in areas which are marked as open for skiing on the trial board…

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

M.C.L. § 408.342. This subjection identifies two types of dangers inherent in the sport. Anderson v. Pine Knob Ski Resort, Inc., 469 Mich. 20, 24 (2003). The first is described as natural hazards and the second as unnatural hazards. Id. Both types of examples are only examples because the Legislature used the term “dangers include, but are not limited to.” Id. at 25.

A.M. was injured by snow-grooming equipment, which is expressly noted in SASA. Plaintiffs argue that there was no sign posted regarding the use of snow-grooming equipment, as required in the statute, M.C.L. § 408.326(a), which states,

Each Ski Area operator shall, with respect to operation of a ski area, do all of the following:

* * *

(f) Place or case to be placed, if snow grooming or snow making operations are being performed on a ski run, slope, or trial while the run, slope, or trial is open to the public, a conspicuous notice at or near the top of the entrance to the run, slope, or trail indicating that those operations are being performed.

M.C.L. § 408.326(a).

The Michigan courts have held that even if there are allegations that provisions of SASA were violated which may have caused injury, there is no limitation in SASA as to the risks assumed. Rusnak v. Walker, 273 Mich.App. 299, 307 (2006). Rusnak was a suit under SASA involving a collision between two skiers. In Rusnak, the Michigan Court of Appeals noted that, “the Legislature did not start off the subsection by stating except for violations of other sections of this act, ‘ the skier assumes the obvious and necessary dangers inherent in the sport.” Id . (italics added). The assumption of the risk provision in M.C.L. § 408.342 is “clear and unambiguous, providing that a skier assumes the risk of obvious and necessary dangers that inhere in the sport, and [t]hose dangers’ specifically include collisions” with snow groomers. Id.

The Michigan Supreme Court has made clear that the Legislature created a certainty concerning a ski area operator’s liability risks. Anderson, 469 Mich. at 26. In a case where a skier collided at the end of a ski run with a shack that housed race timing equipment, the Michigan Supreme Court noted:

To adopt the standard plaintiff urges would deprive the statute of the certainty the Legislature wished to create concerning liability risks. Under plaintiff’s standard, after any accident, rather than immunity should suit be brought, the ski-area operator would be engaged in the same inquiry that would have been undertaken if there had been no statute ever enacted. This would mean that, in a given case, decisions regarding the reasonableness of the place of lift towers or snow groomers, for example, would be placed before a jury or judicial fact-finder. Yet it is just this process that the grant of immunity was designed to obviate. In short, the Legislature has indicated that matters of this sort are to be removed from the common-law arena, and it simply falls to us to enforce the statute as written. This we have done.

Id. There is no need to consider whether the ski operator retains a duty under common-law premises liability. Id. at 26-27. Plaintiffs’ argument that Defendants violated SASA by failing to post the appropriate sign that snow grooming was taking place does not override the express assumption of the risk by the skier enacted by the Legislature.

The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” Rusnak, 273 Mich.App. at 309. However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.” Id. “Indeed, we cannot favor one section, such as the assumption-of-risk provision, over other equally applicable sections, such as the duty and liability provisions.” Id. The Rusnak panel held that a plaintiff does assume the risks set forth in the statute. Id. The provisions must be read together while giving them full force and effect. Id. However, a plaintiff can still recover limited damages against a defendant if the plaintiff can prove that a defendant violated SASA, causing the injuries suffered by the plaintiff. Id. In such a situation, the defendant’s acts would be relevant for a “comparative negligence” evaluation. Id. at 311. Depending on the facts, the actions of a defendant may be relevant for purposes of determining the allocation of fault and, perhaps damages. Id. at 313. Reading the provisions together is consistent with the plain language of the two provisions at issue, which conform to the legislative purpose of SASA – to reduce the liability of ski operators, while at the same time placing many, but not all, risks of skiing on the individual skiers. Id. at 314.

In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.” The State of Michigan Investigator and Defendants’ expert, Mark Doman, stated at his deposition that the area where the incident occurred could be described as a “ski run, slope, or trail” even though Defendants argue that this area is a “transition area.” (Doman Dep., p. 74) Summary judgment on the issue of notice under M.C.L. § 408.236a(f) is denied. Although there is no genuine issue of material fact that A.M. assumed the risk as to snow groomers under SASA, Defendants’ actions as to their duties under M.C.L. § 408.236a(f) as to notice is relevant for purposes of determining the allocation of fault and damages under a comparative negligence analysis.

III. SANCTIONS

Defendants seek sanctions against Plaintiffs under the Court’s inherent power. Defendants argue that Plaintiffs have no intention to follow applicable well established court and ethical rules, including: page limit; entering onto Mt. Brighton for inspection in violation of Fed.R.Civ.P. 34 without notice to Defendants; and having contact with the owner of Mt. Brighton without counsel in violation of the Michigan Rules of Professional Conduct 4.1 and 4.2. Defendants seek dismissal based on Plaintiffs’ alleged pattern of discovery abuse. Defendants claim that Plaintiffs’ counsel took an oath in this Circuit to follow the rules and practice with integrity, yet counsel had no plans to follow the oath and this Court must sanction Plaintiffs’ counsel to deter any further continued conduct. Plaintiffs respond that they did not violate the court or ethical rules.

A. Page Limit

As to the page limit claim, Defendants argue that Plaintiffs violated Local Rule 7.1 regarding page limits since Plaintiffs submitted separate documents setting forth their version of “material facts” separate from Plaintiffs’ response brief, in addition to other documents including “objection” to the summary judgment motion and “declarations” by Plaintiffs’ experts.

Plaintiffs respond that as to the page limit issue, this matter was argued at the time the Court heard the summary judgment motion. In any event, Plaintiffs claim they did not exceed the page limit since Local Rule 7.1(d)(3) states that the text of a brief may not exceed 20 pages and that Plaintiffs’ response brief was only 19 pages. Plaintiffs agree that the accompanying documents in support of their brief included declaration of expert witness, list of material facts, a motion to Defendants’ report and objections to Defendants’ purported “evidence.” These documents are not part of their response “brief” but other documents supporting Plaintiffs’ arguments. Plaintiffs argue that while there is nothing in the rules which requires the filing of a separate document of undisputed facts, there is nothing prohibiting such a filing.

Local Rule 7.1(d)(3) provides, “[t]he text of a brief supporting a motion or response, including footnotes and signatures, may not exceed 20 pages. A person seeking to file a longer brief may apply ex parte in writing setting forth the reasons.” E.D. Mich. LR 7.1(d)(3). A review of Plaintiffs’ “Response” to the Motion for Summary Judgment (Doc. #28) shows that the brief is only 19 pages, which does not violate Local Rule 7.1(d)(3). However, Plaintiffs did file other documents supporting their opposition including a separate document entitled “Plaintiffs’ Separate Statement of Material Facts” (Doc. #29) which consists of 14 pages. This document highlights facts and source of the facts, including declarations and deposition page numbers. Plaintiffs also filed a separate document entitled “Plaintiffs’ Evidentiary Objections and Motion to Strike” (Doc. #30) which consists of 9 pages. Plaintiffs also filed two documents entitled “Declaration of Larry Heywood” (Doc. #31) and “Declaration of Timothy A. Loranger, Esq.” (Doc. #32).

Defendants did not cite to any authority, other than the Court’s inherent power, that violation of a Local Rule must result in dismissal of a case. It is noted that at the time of the filing of the response and other documents in September 2012, Defendants did not object to these filings by a separate motion until the instant motion which was filed on November 26, 2012. Defendants addressed the documents Plaintiffs filed in Defendants’ reply brief and so argued at oral arguments. Generally, exhibits and declarations supporting motions or response briefs are “attached” as exhibits to the main brief. As to Plaintiffs’ Separate Statement of Material Facts and Evidentiary Objections and Motion to Strike, these arguments should have been made in Plaintiffs’ main brief.[1] These documents may have been filed to circumvent the page limit requirement. However, the Court has the discretion to allow filings separate from the parties’ main brief. A violation of the page limit local rule does not support dismissal of the case as sanctions.

B. Rule 34

Defendants argue that Plaintiffs violated Fed.R.Civ.P. Rule 34 regarding inspection of land when Plaintiffs’ counsel went to Mt. Brighton, without notice to Defendants and their counsel on two occasions.

Plaintiffs admit that counsel visited Mt. Brighton property without providing any notice to the defense because Plaintiffs believed no such notice was necessary since Mt. Brighton was open to the public for business when they visited. Plaintiffs argue that Rule 34 only states that a party “may” serve a request to permit entry and that the rule does not state “must.” Plaintiffs admit photographs were taken at that time, but that taking photographs was not prohibited by Mt. Brighton. Plaintiffs claim that admissions of these photographs at trial should be brought as motions in limine.

Rule 34 of the Rules of Civil Procedure provides:

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

* * *

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Fed. R. Civ. P. 34(a)(2).

Generally, if a party seeks protection from certain discovery matters, that party usually files a Motion for protective order under Fed.R.Civ.P. Rule 26(c). Here, Defendants did not seek such protection, nor did Defendants object to Plaintiffs’ entry of the land once they learned of the first instance in June 29, 2012 during the deposition of David Mark Doman wherein Plaintiffs’ counsel admitted he had sent an agent to take pictures of Defendant’s premises without notice to defense counsel. The instant Motion as filed in November 2012. Discovery rule violations are usually addressed under Rule 37. Defendants did not file a motion under Rule 37 to prohibit Plaintiffs from using any photographs they took in connection with any pre-trial proceedings at that time.

The second incident occurred on November 14, 2012, the same day oral argument was heard on the summary judgment motion. Joseph Bruhn, owner of Mt. Brighton, indicated he met three gentlemen who did not identify themselves but indicated they were there for “breakfast” even though it was 11:00 a.m. (Bruhn Aff., ¶ 5) Mr. Bruhn indicated the restaurant was not open and later noticed the gentlemen were taking pictures from the deck. (Bruhn Aff., ¶ 8) Mr. Bruhn learned the gentlemen were lawyers from Los Angeles in town to attend facilitation of this matter to be held the next day, November 15, 2012. (Bruhn, Aff., ¶9) This second incident is troublesome. Although Mr. Bruhn did not identify himself as the owner of Mt. Brighton, Plaintiffs’ counsel themselves knew the purpose of their visit – to inspect the property and take pictures.

In general, Rule 37(b)(2)(B) of the Rules of Civil Procedure provides for sanctions where a party fails to comply with a court order requiring the party to produce another person for examination, including prohibiting the disobedient party from introducing matters in evidence, striking pleadings, rendering default judgment against the disobedient party, treating as contempt of court the failure to obey an order or any further “just orders.” Fed.R.Civ.P. 37(b)(2)(B); 37(b)(2)(A). Here, no order has been entered by the Court striking the photographs or finding that Plaintiffs violated Rule 34. The “spirit” of Rule 34 was violated in that Plaintiffs did not notify the defense they were inspecting the premises for discovery purposes, even if the property is open to the public. The property is private property, but open to the public. The lay of the land is at the core of these proceedings. Plaintiffs should have notified the defense they sought to inspect the land as required under Rule 34. “Trial by surprise” is not a tactic in civil actions and related discovery proceedings. However, dismissal of the case is not warranted at this time, but the Court will consider this matter at trial by way of a motion in limine or objection if any testimony or exhibit is sought to be introduced relating to Plaintiffs’ first visit to Mt. Brighton. The second visit is addressed below.

C. Violation of Michigan Rules of Professional Responsibility

Defendants seek dismissal as sanctions because they allege that Plaintiffs’ counsel violated the Michigan Rules of Professional Responsibility (“MRPC”) by contacting Mt. Brighton’s owner without counsel. Plaintiffs respond that when counsel visited Mt. Brighton unannounced, counsel did not know that the gentleman greeting him at the Mt. Brighton restaurant was Mr. Bruhn, the owner of Mt. Brighton. Mr. Bruhn informed counsel that the kitchen was not open but he never indicated that Mt. Brighton was closed. Plaintiffs’ counsel then went out onto the patio to take a few photographs of the ski/golf area. Plaintiffs claim that Defendants admit in their moving papers that Plaintiffs did not violate MRPC 4.2 since there was no discussion of any aspect of the “subject of the representation” but that because counsel did not identify himself to Mr. Bruhn. Mr. Bruhn indicated in an affidavit that he did not learn of Plaintiffs’ counsel identity until the facilitation in this matter the day after.

MRPC 4.2 provides, “In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Although Defendants admit that “arguably” Plaintiffs did not directly speak with Mr. Bruhn as to the “subject of the representation, ” Plaintiffs’ counsel knew the reason they were on the premises was to take photographs of the property. Defendants seek an order from this Court finding that Defendants violated Rule 4.2 and that the proper sanction is to dismiss the case.

Although Plaintiffs’ counsel, as noted by the defense, did not “arguably” violate Rule 4.2, the Court cannot expressly so find. Violations of the professional responsibility code must be brought under E.D. Mich. LR 83.22. Defendants have not sought such a formal request. The Court, however, under Fed.R.Civ.P. 37(b)(2), will not allow Plaintiffs to offer any photographs taken of the property during the second visit to Mt. Brighton on November 14, 2012 since they knew the purpose of their visit was to take photographs and could have so indicated to opposing counsel, Mr. Bruhn or to any of Defendants’ agents. Plaintiffs had notice since June 2012 and under the discovery rules that they were required to notify Defendants of any access to Defendants’ property.

D. Rule 11 Sanctions

In Plaintiffs’ response, they indicate they may seek sanctions under Rule 11 themselves. Generally, Rule 11 provides that prior to requesting/filing a Motion for sanctions under this rule, the party must serve notice to the opposing party under the safe harbor provision of Rule 11. Fed.R.Civ.P. 11(c)(1)(A). Rule 11(c) states that the Motion shall not be filed if not submitted to the opposing party. Pursuant to the “safe harbor” provision in Rule 11, a party seeking sanctions under the rule must first serve notice to the opposing party that such a Motion will be filed. If either party seeks to file such Rule 11 sanctions, they must do so with the “safe harbor” provision in mind.

IV. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. No. 21) is DENIED as more fully set forth above.

IT IS FURTHER ORDERED that the Motion to Adjourn Scheduling Order Dates (Doc. No. 23) is MOOT.

IT IS FURTHER ORDERED that the Motion to Strike Portions of Defendants’ Summary Judgment Motion or Submit Evidence (Doc. No. 30) is DENIED.

IT IS FURTHER ORDERED that the Motion for Sanctions (Doc. No. 39) is GRANTED IN PART and DENIED IN PART. The second set of photographs is disallowed to be used as evidence in this case. The request for dismissal as sanctions is denied.

IT IS FURTHER ORDERED that a Final Pretrial Conference date is scheduled for Monday, June 10, 2013, 2:30 p.m. The parties must submit a proposed Joint Final Pretrial Order by June 3, 2013 in the form set forth in Local Rule 16.2. All parties with authority to settle must appear at the conference. The Magistrate Judge may reschedule the cancelled facilitation and submit a notice to the Court by June 3, 2013 once facilitation is complete.

IT IS FURTHER ORDERED that Trial is scheduled for Tuesday, July 9, 2013, 9:00 a.m.

Notes:

[1] The parties are referred to E.D. Mich. LR 7.1 and CM/ECF Pol. & Proc. R5 and R18 governing filing of motions, briefs and exhibits. See, http://www.mied.usourts.gov.