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

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

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

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Deborah Hogan and Matthew Hogan

Defendant: Pat’s Peak Skiing, LLC

Plaintiff Claims: Negligence

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

Holding: For the Plaintiff

Year: 2015

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

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

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

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

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

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

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

In the law, there is a mail box rule. In general, the law says notice is received when the notice is put in the mail. “The mailbox rule is one that is traditionally associated with contract law, and provides that acceptances are effective when they are no longer in the control of the sender.” Most states then say that something mailed if it arrives within three to five days, then it was properly mailed and received.

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

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

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

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

In accordance with the principles of uniformity and certainty, we hold that notice given pursuant to RSA 225-A:25, IV is effective upon mailing. In doing so, we narrowly apply the common law mailbox rule to RSA 225-A:25, IV, in consonance with holdings from other jurisdictions.

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

Our holding favors the party who would be harmed more by a lack of certainty. As in this case, actual receipt a day beyond the 90-day period creates minimal inconvenience for the ski operator, for it hardly affects the ski area’s ability to evaluate its premises and investigate the incident in a timely manner. In contrast, under the alternative construction of the statute, the party allegedly injured by the operator’s wrongdoing is denied the right to bring suit even when receipt is late due to circumstances beyond that party’s control. We elect not to allow such forfeiture.

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

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

The case was sent back for discovery and trial.

So Now What?

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

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

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

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

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

No. 2014-420

SUPREME COURT OF NEW HAMPSHIRE

2015 N.H. LEXIS 74

April 9, 2015, Argued

July 28, 2015, Opinion Issued

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

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

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

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

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

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

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

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

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

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

OPINION BY: HICKS

OPINION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Reversed and remanded.

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