Advertisements

New Hampshire Recreational Use Statute

 New Hampshire Recreational Use Statute

Title XVIII  Fish and Game

Chapter 212  Propagation of Fish and Game

Liability of Landowners

RSA 212:34  (2017)

212:34.  Duty of Care.

I. In this section:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Advertisements

New Hampshire court upholds release and defines the steps under NH law to review a release.

Release law is stretched in New Hampshire court to cover injuries from snowmobile driven by employee hitting the plaintiff on the ski slopes.

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

State: New Hampshire, Superior Court of New Hampshire, Hillsborough County

Plaintiff: Marcella McGrath f/k/a Marcella Widger

Defendant: NH Development, Inc. and John Doe

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: 2008

The defendant is the owner of Crotched Mountain Ski Area in New Hampshire. The plaintiff signed an application for a season pass which included release language in the application. While skiing one day the plaintiff was hit by an employee of the defendant driving a snowmobile.

The defendants moved for summary judgment based on the release. The plaintiff objected stating the release violated public policy. The plaintiff also argued the parties, when the release was signed, did not contemplate the release would cover negligence claims.

The phrase “did not contemplate” is another way of saying there was no meeting of the minds. For a contract to be valid, the parties to the contract must understand the basic nature of the contract. There must be a meeting of the minds to the contract. This does not mean that all aspects of the contract must be contemplated by both parties, just that the major issues and purpose of the contract are understood.

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

The court reviewed the requirements for a release to be valid under New Hampshire law, which requires the release to:

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

Then the court looked at each of the three requirements. The first, Public Policy in New Hampshire, means the parties did not have a special relationship and were not of disparity in bargaining power. This definition is the original definition of public policy.

Special relationship means where one party had no choice but to deal with the other party to obtain a necessary good or service.

A defendant seeking to avoid liability must show that the 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.”

A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way

Specifically, a special relationship exists between common carriers, innkeepers or public utilities and the public. A Monopoly that supplies goods or services that a person must have is an example of a defendant this definition would fit. Transportation, a place to stay and gas and electric providers have special relationships with the people they serve. This is the original definition of relationship that creates unequal bargaining power where releases are void.

The theory behind public policy was the state must step in to protect the common public from unscrupulous, overbearing or overreaching companies when the public had no choice but to deal with them. This relationship is based on the practical necessity of the goods or services they provide. Without them, life would not be possible or as possible.

Skiing in New Hampshire is not a practical necessity. You can live your life and never ski, in fact, many people do. On top of that the defendant was not the only ski area. Meaning the plaintiff could have gone to any number of other ski areas; the defendant did not force her to visit its ski area nor was she compelled to visit the defendant’s ski area. Consequently, there was no disparity of bargaining power because the plaintiff could have bargained with someone else or not gone skiing and still lived on.

The plaintiff also argued the release was a violation of public policy because it relieved the defendant of statutory compliance with a New Hampshire statute governing the use of snowmobiles. However, the court found the release did not affect the enforcement of the statute. The statute was one outlining the requirements for a state commissioner to make and enforce laws concerning snowmobiles. The release did not alter the commissioner’s ability to do so and would not alter any law or regulation made or the law or regulations affect.

If the release does not violate public policy, then the requirement two requires a review of whether or not the plaintiff or a reasonable person would have understood the exculpatory provisions in the release. For the plaintiff to argue that she did not understand the release, she would have to prove the language in the release was not understandable.

…therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”

The plaintiff did not deny she understood the release; she argued that the release did not cover the precise occurrence that gave rise to here injuries. Meaning the release did not cover injuries from being hit by a snowmobile being driven by an employee of the defendant. However, the law does not require a release to be specific in its language to cover the injury the plaintiff may later claim.

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

The release language was broadly written to cover all types of injuries that could occur while skiing. New Hampshire also does not require “magic words” such as negligence to make the release valid or convey a specific risk to the signor.

In reviewing the language the court found the language was broad enough to cover the injury the plaintiff received.

As noted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.”

The final argument made by the plaintiff was the release did not contemplate a snowmobile accident because snowmobiles are not an inherent part of skiing.

In this case, the release did not refer to the inherent risks of skiing, but stated that skiing was a hazardous sport and that injuries are commonplace.

Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.

Consequently, the restrictions that the term inherent would have identified were not there, the language was broad enough to cover the accident the plaintiff complained of.

The case was dismissed based upon the defendant’s motion for summary judgment.

So Now What?

Use of the narrowing term inherent in the release when referring to the risks might have allowed the plaintiff to continue with her claim. Remember inherent is a restricting word and if used in this release, it might have excluded a snowmobile accident from the pool of possible claims. As the release was worded the snowmobile accident was covered.

The bigger issue is the attempt to spread the definition of Public Policy board enough that it would void this release. However, the court did not do that and kept the definition to the original definition that a release cannot protect those monopolies that provide a necessity to the public cannot use a release to limit their liability.

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

What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2017 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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, Skiing, Release, NH, New Hampshire, Ski Area, Snowmobile, Snowmobile Collision, Public Policy,

 


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

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

Marcella McGrath f/k/a Marcella Widger v. SNH Development, Inc. and John Doe, an unnamed individual

No. 07-C-0111

SUPERIOR COURT OF NEW HAMPSHIRE, HILLSBOROUGH COUNTY

2008 N.H. Super. LEXIS 45

May 19, 2008, Decided

NOTICE:

THE ORDERS ON THIS SITE ARE TRIAL COURT ORDERS THAT ARE NOT BINDING ON OTHER TRIAL COURT JUSTICES OR MASTERS AND ARE SUBJECT TO APPELLATE REVIEW BY THE NEW HAMPSHIRE SUPREME COURT.

SUBSEQUENT HISTORY: Affirmed by McGrath v. SNH Dev., Inc., 158 N.H. 540, 969 A.2d 392, 2009 N.H. LEXIS 43 (2009)

JUDGES:  [*1] GILLIAN L. ABRAMSON, PRESIDING JUSTICE.

OPINION BY: GILLIAN L. ABRAMSON

OPINION

ORDER

The plaintiff commenced the instant action alleging negligence against the defendants, SNH Development, Inc. (“SNH Development”) and John Doe, an unnamed individual. The defendants now move for summary judgment, and the plaintiff objects.

For purposes of the defendants’ motion for summary judgment, the parties do not appear to dispute the following facts. SNH Development is a subsidiary of Peak Resorts, Inc. and owns and operates the Crotched Mountain Ski Area in Bennington, New Hampshire. On October 23, 2003, the plaintiff signed an application (the “application”) for a season pass to the Crotched Mountain Ski Area. The application provides:

I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the ski area facility, that I freely accept and voluntarily assume all risks of personal injury or death of property damage, release Crotched Mountain its owners and its agents, employees, directors, officers and shareholders from any and all liability for personal injury or property damage  [*2] which results in any way from negligence, conditions on or about the premises, the operations of the ski area including, but not limited to, grooming snow making, ski lift operations, actions or omissions of employees or age the area, or my participation in skiing, accepting myself the full responsibility

Defs.’ Mot. for Summ. J., Ex. B. Moreover, on December 20, 2003, the plaintiff signed a Liability Release Agreement, which provides:

I understand and accept the fact that alpine skiing in its various forms is a hazardous sport, and I realize that injuries are a common occurrence. I agree, as a condition of being allowed to use the area facility, that I freely accept and voluntarily assume all risks of personal injury or death or property damage, and release Peak Resorts, Inc, all of its subsidiaries, and its agents, employees, directors, officers, shareholders and the manufacturers and distributors of this equipment and the school and group organizers (collective “providers’), from any and all liability for personal injury, death or property damage which results in any way from negligence, conditions on or about the premises, the operation of the area including, but not limited to grooming,  [*3] snowmaking, lift operations, actions or omissions of employees or agents of the areas, or my participating in skiing, snowboarding, blading, accepting myself the full responsibility.

Id. On February 20, 2004, the plaintiff was skiing 1 a trail at the Crotched Mountain Ski Area when an employee of SNH Development drove a snowmobile into the plaintiff’s path, causing a collision.

1 Some of the pleadings state that the plaintiff was skiing, while other’s state that the plaintiff was snowboarding.

The defendants now move for summary judgment, arguing that the plaintiff signed the application and the Liability Release Agreement, both of which are valid, enforceable exculpatory contracts. The plaintiff objects, arguing that the application and the Liability Release Agreement violate public policy and that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim.

In ruling on a motion for summary judgment, the Court “consider[s] the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” White v. Asplundh Tree Expert Co., 151 N.H. 544, 547, 864 A.2d 1101 (2004).  [*4] The Court must grant a motion for summary judgment if its “review of the evidence does not reveal a genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law Id. A fact is material “if it affects the outcome of the litigation under the applicable substantive law.” Palmer v. Nan King Restaurant, 147 N.H. 681, 683, 798 A.2d 583 (2002).

New Hampshire law generally prohibits exculpatory contracts, but the Court will enforce them if; “(1) do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement; and (3) the plaintiff’s claims were within the contemplation of the parties when they executed the contract.” Dean v. MacDonald, 147 N.H. 263, 266-267, 786 A.2d 834 (2001). Thus, the Court considers each of these requirements in turn.

Regarding the first requirement, an exculpatory contract violates public policy if a special relationship existed between the parties or if there was some other disparity in bargaining power. See Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986) (“A defendant seeking to avoid liability must show that the exculpatory agreement does  [*5] not contravene public policy i.e that no special relationship existed between the parties and that there was no other disparity in bargaining power.”).

A special relationship exists “[w]here the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service….” Id. The plaintiff contends that a special relationship existed between the parties because any person operating a snowmobile has a statutory duty to yield the right of way, RSA 215-C:49, XII (Supp. 2007), and because the Crotched Mountain Ski Area serves the public. Assuming that RSA 215-C:49, XII applies to the operation of a snowmobile on a privately owned ski area, the plaintiff has not offered any legal support for the conclusion that this statute somehow charges the defendants with a duty of public service. Moreover, the fact that the Crotched Mountain Ski Area serves the public is not conclusive. For example, Barnes, involved a negligence claim arising from a collision at an enduro kart racing facility. In Barnes, the New Hampshire Supreme Court noted that the defendant’s served the public but held that the defendant’s were not charged with a duty of public service because  [*6] Endurokart racing is not “affected with a public interest.” Barnes, 128 N.H. at 108. Similarly, skiing is a recreational activity not affected with a public interest, and the Court finds that the defendant’s are not charged with a duty of public service.

The Plaintiff also contends that she was at an obvious disadvantage in bargaining power because all ski areas require skiers to sign releases. The Court disagrees.

This case … does not have any hallmarks of a disparity in bargaining power. The [skiing] service offered by the defendant is not a “matter of practical necessity.” Nor did the defendant in this ease have monopoly control over this service such that the plaintiff could not have gone elsewhere.

Audley v. Melton, 138 N.H. 416, 418, 640 A.2d 777 (1994) (quoting Barnes, 128 N.H. at 108). 2

2 The Plaintiff also argues that the application and the Liability Release Agreement violate public policy because they relieve the defendant’s from compliance with RSA chapter 215-C, which governs snowmobiles. Assuming that RSA chapter 215-C applies to the operation of a snowmobile on privately owned ski area, the application and the Liability Release Agreement would have no bearing on the enforcement of RSA chapter 215-C.  [*7] See RSA 215-C-32 (Supp.2007) (providing for the enforcement of RSA chapter 215-C).

“Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that reasonable person in his position would have known of the exculpatory provision.” Barnes, 128 N.H. at 107. “The plaintiff’s understanding presents an issue of fact, and the plaintiff should have an opportunity to prove the fact at trial unless the exculpatory language was clear and a misunderstanding was unreasonable.” Wright v. Loon Mt. Recreation Corp., 140 N.H. 166, 169, 663 A.2d 1340 (1995). The Court

therefore examine[s] the language of the release to determine whether “a reasonable person in [the plaintiff’s] position would have known of the exculpatory provision.” A reasonable person would understand the provision if its language “clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence….”

Id. (citations omitted) (quoting Barnes, 128 N.H. at 107). The Court “will assess the clarity. the contract by evaluating it as a whole, not by examining  [*8] isolated words and phrases. Id. at 169-170.

The plaintiff does not appear to dispute that she understood the import of the application or the Liability Release Agreement. Rather, the plaintiff argues that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim. Thus, the Court turns to the third requirement.

“[T]he plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement. The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries. They may adopt language to cover, a broad range of accidents….” Barnes, 128 N.H. at 107 (citation omitted). To determine the scope of a release, the Court examines its language, strictly construing it against the defendant. Dean, 147 N.H. at 267.

Thus, in order to effectively release a defendant from liability for his own negligence, “the contract must clearly state that the defendant is not responsible for the consequences of his negligence.” There is no requirement that the term “negligence” or any other magic words appear in the release as long “as the language of  [*9] the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence.”

Audley, 138 N.H. at 418 (citations omitted) (quoting Barnes, 128 N.H. at 107).

The plaintiff contends that the parties did not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because neither the application nor the Liability Release Agreement reference snowmobiles. As rioted above, the parties need not have contemplated a negligence claim arising from a snowmobile accident. Rather, it is sufficient that the parties adopted language to cover a broad range of accidents. The application releases the defendants “from any and all liability for personal injury or property damage which results in any way from negligence,” and the Liability Release Agreement releases the defendants “from any and all liability for personal injury, death or property damage which results in from negligence.” Defs.’ Mot. for Summ. J., Ex. B. This language clearly states that the defendants are not responsible for the consequences of their negligence.

The Plaintiff also contends that the parties did  [*10] not contemplate that the application or the Liability Release Agreement would bar the plaintiff’s negligence claim because snowmobiles are not an inherent hazard of skiing. The plaintiff relies on Wright. In Wright, the New Hampshire Supreme Court noted:

The paragraphs preceding the exculpatory clause emphasize the inherent hazards of horseback riding. Because the exculpatory clause is prefaced by the term “therefore,” a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that

Wright, 140 N.H. at 170. Here, however, the application and the Liability Release Agreement do not mention the inherent hazards of skiing. Rather, the application and the Liability Release Agreement note that skiing is a hazardous sport and that injuries are a common occurrence and then, without using the term “therefore,” release the defendants from any and all liability. Because the application and the Liability Release Agreement do not use the phrase “inherent hazards of skiing” or the term “therefore,” this case is distinguishable from Wright. A reasonable person would have contemplated that the application and the  [*11] Liability Release Agreement would release the defendants from a negligence claim, whether nor not that claim arouse from an inherent hazard of skiing.

Based on the foregoing, the defendant’s motion for summary judgment is GRANTED.

So ORDERED.

 


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.

clip_image002What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

 

 

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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, Mailbox Rule, New Hampshire Ski Area Safety Act, New Hampshire, Notice,

 


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.


Snowboarder, off-duty employee of defendant ski area, collides with a skier. New Hampshire Supreme Court finds a way different from what was argued at the trial court to decide the case.

Court looks at the New Hampshire Skier Safety Act signage posted at the ticket window and on the back of the lift ticket in reviewing the facts of the case, but does not use that information in its decision. This is both c and interesting in a Supreme Court decision.

Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

State: New Hampshire, Supreme Court of New Hampshire

Plaintiff: Diana Camire

Defendant: The Gunstock Area Commission

Plaintiff Claims: three counts based upon vicarious liability for the instructor’s alleged negligent and reckless conduct, and one count alleging that Gunstock was directly liable for negligently hiring, training, and supervising the instructor

Defendant Defenses: Release and lack of liability because the employee was off duty at the time of the collision

Holding: for the defendant

Year: 2014

This is a simple case. However, how the New Hampshire Supreme Court decided the case is novel.

The plaintiff was skiing at the defendant ski area. While skiing she was hit by a snowboarder causing her injuries. At the time of the collision, the snowboarder was off duty, but employed by the defendant as a snowboard instructor.

The plaintiff argued the defendant was vicariously liable for the actions of the snowboarder because he was an employee of the defendant. Vicarious liability is liability of an employer for the actions of an employee while working or acting for the employer.

At the time of the collision the snowboarder had not reported to work, which was supposed to do in another 15 minutes.

The court pointed out the plaintiff purchased her lift ticket next to a 35” by 40” sign, which recited language of the New Hampshire Skier Safety Act. Additional language and warnings were printed on the backside of the lift ticket the plaintiff purchased.

The plaintiff sued the ski area for the actions of the snowboarder and for negligently hiring, training and supervising the snowboarder. The trial court granted the defendant’s motion for summary judgment based on the release and the fact the snowboarder was not working for the defendant at the time of the accident.

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

The lower court granted the defendant ski area’s motion for summary judgment based on the release and the lack of duty because the snowboarder was not working at the time of the incident.

The Supreme Court ignored both of those legal issues and instead looked at whether the New Hampshire Skier Safety Act affected this case. Normally, an appeals court will only look at the issues specifically argued in the lower courts and prevent litigation over issues not presented at the trial court. Here the court held that failure to bring an argument at a lower court limits the parties from making the argument at the appellate court but does not prevent the appellate court from look and ruling on the issue.

The court looked at the New Hampshire Skier Safety Act and found the act created immunity for the defendant ski area.

The issue of whether a ski area operator has statutory immunity under RSA 225-A:24, I, presents a question of law that, in this case, is dispositive of the plaintiff’s vicarious liability claims. Accordingly, in the interest of judicial economy, and because both parties addressed the issue during oral argument before this court, we will consider it.

The court quoted specific language in the act that prevented litigation for collisions.

Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: … collisions with other skiers or other persons . … [Emphasize added by the court.]

The plaintiff argued the statute did not apply in this case because the statute did not apply to employees of the ski area involved in a collision. The court did not read the statute with the limitation that the statute only applied to non-employees.

Thus, we hold that, based upon the plain language of the statute, the legislature intended to include, as a category of inherent risk, collisions with ski area employees, regardless of whether they were working at the time of the collision.

The court also pointed out that the New Hampshire Skier Safety Act did not apply only to the risks set forth in the statute. Additional risks, not identified by the New Hampshire Skier Safety Act, could be assumed by a skier at a resort.

Thus, we disagree with the plaintiff to the extent that she argues that “collisions with other skiers or other persons,” RSA 225-A:24, I, excludes collisions with ski area employees because the legislature did not specifically identify them as an inherent risk of skiing, snowboarding, snow tubing, and snowshoeing.

The court ruled the negligence claims of the plaintiff based on vicarious liability were properly dismissed because the New Hampshire Skier Safety Act created immunity to the ski area.

The final claim was the negligent hiring, supervision or training claim. The defendant argued that the ski area was not liable because the plaintiff could establish a causal connection between her injury and the fact the snowboarder worked for the defendant ski area.

However, the court found that the plaintiff had “failed to brief this argument sufficiently for appellate review…” so the court declined to review the issue.

The motion for summary judgment in favor of the defendant ski area was upheld, and the plaintiff’s claims dismissed.

So Now What?

In this one case, there are two examples of what could happen if a party to litigation did not adequately raise an issue and the trial court and fully and properly brief and argue the issue at the appellate court.

In one case, an issue not even reviewed at the lower court was used by the court to grand the defendant’s motion and in the other case an issue that was raised but not adequately argued on appeal was dismissed.

Neither way is a reliable way to win a lawsuit. Always raise every possible claim and/or defense in your pleadings and at trial. Always get into the record either by witnesses, offers of proof or other evidence sufficient facts and legal arguments to create a record on appeal that the appellate court cannot ignore.

The other issue which was brought out by the court but not raised in its decision was the language on a sign and the back of the lift ticket take from the New Hampshire Skier Safety Act. This was in the first paragraphs of this decision, which usually indicated the court finds it important. However, none of the information was argued to support the decision on appeal.

clip_image002What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

 

 

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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, New Hampshire, New Hampshire Ski Area Safety Act, Skier v. Skier, Skier Collision, Snowboarder v. Skier, Collision,

 


Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

Camire v. The Gunstock Area Commission, 166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

Diana Camire v. The Gunstock Area Commission

No. 2013-258

SUPREME COURT OF NEW HAMPSHIRE

166 N.H. 374; 97 A.3d 250; 2014 N.H. LEXIS 60

February 26, 2014, Argued

June 18, 2014, Opinion Issued

PRIOR HISTORY: [***1]

Belknap

DISPOSITION: Affirmed.

HEADNOTES NEW HAMPSHIRE OFFICIAL REPORTS HEADNOTES

1. Appeal and Error–Questions Considered on Appeal–Questions Not Preserved, but Considered Ordinarily, an appellate court will not review arguments that were not timely raised before the trial court because trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court, This rule, however, is not absolute. Preservation is a limitation on the parties to an appeal and not the reviewing court. [*375]

2. Torts–Defenses–Assumption of Risk The specification of “collisions with other skiers or other persons” in the enumerated categories of inherent risks in the statute regarding responsibilities of skiers and passengers plainly includes all person-to-person collisions. As the United States District Court for the District of New Hampshire has concluded, the plain and ordinary meaning of the statute’s immunity provision could hardly be clearer: it identifies collisions with other skiers or other persons as one of the risks, dangers, or hazards which the skier assumes as a matter of law. It makes no exception for collisions with skiers who are violating the statute, nor does it except collisions with ski area employees, even when those employees are themselves violating the statute or otherwise conducting themselves in a negligent or reckless fashion. RSA 225-A:24, I.

3. Torts–Defenses–Assumption of Risk Based upon the plain language of the statute regarding responsibilities of skiers and passengers, the legislature intended to include, as a category of inherent risk, collisions with ski area employees, regardless of whether they were working at the time of the collision. Thus, when a snowboarder collided with an instructor who was snowboarding prior to his scheduled “lineup,” the statute barred her vicarious liability claims as a matter of law. RSA 225-A:24, I.

4. Torts–Defenses–Assumption of Risk The current statute regarding responsibilities of skiers and passengers does not limit the risks assumed to those enumerated therein. Thus, “collisions with other skiers or other persons” does not exclude collisions with ski area employees because the legislature did not specifically identify them as an inherent risk of skiing, snowboarding, snow tubing, and snowshoeing. RSA 225-A:24, I.

5. Appeal and Error–Questions Considered on Appeal–Particular Cases Because plaintiff did not develop an argument as to why the trial court erred by granting summary judgment to defendant on her direct negligence claim, the court declined to review it.

COUNSEL: McLaughlin Law Office, P.C., of Laconia (Emily F. McLaughlin on the brief and orally), for the plaintiff.

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

OPINION BY: CONBOY

OPINION

[**252] Conboy, J. The plaintiff, Diana Martinez (formerly Diana Camire), appeals an order of the Superior Court (O’Neill, J.) granting summary judgment in favor of the defendant, The Gunstock Area Commission (Gunstock), on the plaintiff’s claims for damages for negligence and recklessness. We affirm.

The following facts are drawn from the trial court’s order and the record, or are otherwise undisputed. On February 13, 2010, the plaintiff, a snowboarder, visited Gunstock’s ski and snowboard area. Posted on the wall of the ticket kiosk was a thirty-five inch by forty inch sign that recited, in part, the language of RSA 225-A:24 and also stated: “By purchasing and/or affixing a ticket to use our facilities, you are agreeing to accept, as a matter of law, all inherent risks of winter sports activities and agree not [*376] to sue Gunstock for NEGLIGENCE or any other [***2] legal claim.” (Bolding omitted.). See RSA 225-A:24 (2011) (outlining responsibilities of skiers and passengers). In addition, the back of the lift ticket purchased by the plaintiff included language stating that, as a condition of using the ski area, the purchaser or user of the ticket agreed to release Gunstock, and its employees and agents from any legal liability, including, but not limited to, claims for negligence.

Later that day, between 11:15 a.m. and 11:30 a.m., the plaintiff was injured when she was snowboarding on a ski trail and another snowboarder struck her from behind. The snowboarder was employed by Gunstock during the 2009-2010 season as a snowboard instructor. At the time of the collision, he was snowboarding prior to his scheduled 11:45 a.m. “lineup” in anticipation of a 12:00 p.m. lesson. The plaintiff alleges that she suffered injuries as a result of the collision.

The plaintiff sued Gunstock, asserting three counts based upon vicarious liability for the instructor’s alleged negligent and reckless conduct, and one count alleging that Gunstock was directly liable for negligently hiring, training, and supervising the instructor. The trial court granted Gunstock’s motion [***3] for summary judgment on all of the claims. This appeal followed.

[HN1] “In reviewing the trial court’s grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.” Sanchez v. Candia Woods Golf Links, 161 N.H. 201, 203, 13 A.3d 268 (2010) (quotation omitted). “If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.” Id. (quotation omitted). We review the trial court’s application of the law to the facts de novo. Id.

On appeal, the plaintiff argues that the trial court erred by determining that the liability releases barred her claims “in the absence of some evidence that [she] expressly agreed to [the] exculpatory language.” She also contends that the trial court erred in finding that, as a matter of law, the instructor was not in Gunstock’s employ at the time of the collision. She further asserts that RSA 225-A:24, I, “does not bar recovery for [a ski area] operator’s negligent supervision of its employees and the negligence of its agents in violation of their [***4] duties as employees.”

The defendant disputes the plaintiff’s contention that the releases do not preclude its liability and that the instructor was working at the time of the collision. The defendant further asserts that, even if the instructor had been “working at the time of the accident, because this accident was a skier-to-skier collision [–] an inherent [**253] risk of skiing, for which ski areas are immune [–] Gunstock would have immunity from [the plaintiff’s] claims.”

[*377] [1] We recognize that, in the trial court proceeding, neither party, nor the court, addressed the applicability of RSA 225-A:24, I, to the plaintiff’s claims. [HN2] Ordinarily, we will not review arguments that were not timely raised before the trial court, Baines v. N.H. Senate President, 152 N.H. 124, 128 (2005), because “trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court,” Petition of Guardarramos-Cepeda, 154 N.H. 7, 9, 904 A.2d 609 (2006) (quotation omitted). This rule, however, is not absolute. Id. As we have previously recognized, preservation is a limitation on the parties to an appeal and not the reviewing court. Id. The issue of whether a ski area operator has statutory [***5] immunity under RSA 225-A:24, I, presents a question of law that, in this case, is dispositive of the plaintiff’s vicarious liability claims. Accordingly, in the interest of judicial economy, and because both parties addressed the issue during oral argument before this court, we will consider it. See id.

Whether RSA 225-A:24, I, precludes the plaintiff’s vicarious liability claims is a question of statutory interpretation. [HN3] “We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole.” Martin v. Pat’s Peak, 158 N.H. 735, 738, 973 A.2d 333 (2009) (quotation omitted). “We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used.” Id. (quotation omitted). “Our goal is to apply statutes in light of the legislature’s intent in enacting them, and in light of the policy sought to be advanced by the entire statutory scheme.” Id. (quotation omitted).

RSA 225-A:24, I, provides, in pertinent part:

[HN4] Each person who participates in the sport of skiing, snowboarding, snow tubing, and snowshoeing accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain [***6] an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: … collisions with other skiers or other persons . …

(Emphasis added.). The plaintiff argues that the statute does not bar her claims because “collisions with other skiers or other persons” does not include collisions with employees of the ski area operator.

[2, 3] Contrary to the plaintiff’s argument, [HN5] the specification of “collisions with other skiers or other persons” in the enumerated categories of inherent risks plainly includes all person-to-person collisions. Cf. LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 94, 931 A.2d 571 (2007) (interpreting “any [*378] person injured” broadly within context of Consumer Protection Act). As the United States District Court for the District of New Hampshire recently concluded:

the “plain and ordinary meaning” of the [statute’s] immunity provision could hardly be clearer: it identifies “collisions with other skiers or other persons” as one of the “risks, dangers, or hazards which the skier assumes as a [***7] matter of law.” It makes no exception for collisions with skiers who are violating the [statute], nor does it except collisions with ski area employees, even when those employees are themselves violating [**254] the [statute] or otherwise conducting themselves in a negligent or reckless fashion.

Hanus v. Loon Mountain Recreation Corp., No. 13-cv-44-JL, 2014 U.S. Dist. LEXIS 52778, 2014 WL 1513232, at *3 (D.N.H. Apr. 16, 2014) (ellipsis omitted). If we were to conclude, as the plaintiff urges, that the legislature intended to exclude collisions with ski area employees, we would, in effect, be rewriting the statute. This we decline to do. See LaChance, 156 N.H. at 94. Thus, we hold that, [HN6] based upon the plain language of the statute, the legislature intended to include, as a category of inherent risk, collisions with ski area employees, regardless of whether they were working at the time of the collision.

The plaintiff relies upon Adie v. Temple Mt. Ski Area, 108 N.H. 480, 238 A.2d 738 (1968), to support her argument that a “ski area can be liable for an employee’s negligence, despite the existence of statutory immunity.” In Adie, we considered whether the statute barred “an action for negligent instruction against an operator who has undertaken [***8] to instruct skiers.” Adie, 108 N.H. at 482. We concluded that the statute did not bar recovery for a ski area operator’s negligence in ski instruction to a skier because “the statute does not regulate instruction in skiing by operators.” Id. at 483-84. We noted that “[i]f the Legislature had intended to bar skiers from actions against an operator for negligent instruction … , some regulation of their operations in th[is] area[ ] would have appeared in the statute.” Id. at 484. Here, unlike in Adie, the plaintiff’s vicarious liability claims allege injuries caused by a “collision[ ] with other skiers or other persons,” RSA 225-A:24, I; such claims are expressly addressed in the statute.

[4] Moreover, as we have previously explained, [HN7] the current statute “does not limit the risks assumed to those enumerated therein.” Rayeski v. Gunstock Area, 146 N.H. 495, 498, 776 A.2d 1265 (2001); see RSA 225-A:24, I (risks, hazards, or dangers “include but are not limited to” enumerated items). Thus, we disagree with the plaintiff to the extent that she argues that “collisions with other skiers or other persons,” RSA 225-A:24, I, excludes [*379] collisions with ski area employees because the legislature did not specifically [***9] identify them as an inherent risk of skiing, snowboarding, snow tubing, and snowshoeing.

Accordingly, because RSA 225-A:24, I, bars the plaintiff’s vicarious liability claims as a matter of law, the trial court properly granted summary judgment to Gunstock on those claims. In light of our holding, we need not decide whether the instructor was acting within the scope of his employment at the time of the collision or whether the claims are also barred by Gunstock’s liability releases.

[5] The final count of the plaintiff’s writ alleged negligence on the part of Gunstock in failing to properly hire, train, and supervise the instructor. Gunstock moved for summary judgment on this claim on the basis that the plaintiff could not establish a causal connection between her injury and the fact that the ski instructor worked for Gunstock. Although, on appeal, the plaintiff cites Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 485, 657 A.2d 417 (1995), for the proposition that “[a]n employer may be directly liable for damages resulting from the negligent supervision of its employee’s activities,” she does not develop an argument as to why the trial court erred by granting summary judgment to the defendant on her [***10] direct negligence claim. As she has failed to brief this argument sufficiently for appellate review, we decline to review it. See Porter [**255] v. City of Manchester, 155 N.H. 149, 157, 921 A.2d 393 (2007); State v. Blackmer, 149 N.H. 47, 49, 816 A.2d 1014 (2003).

Affirmed.

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