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

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

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

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

Plaintiff: Thomas Jackson Miller

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

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

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

Facts

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

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

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

STOP

YOU ARE RELEASING THIS SKI AREA FROM LIABILITY

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

The Lift Ticket itself stated:

LIABILITY RELEASE

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

MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.

RECKLESS SKIING WILL RESULT IN LOSS OF TICKET

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

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

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

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

The court first looked at New Hampshire law on releases.

Such an exculpatory contract is enforceable if: 1) it does not violate public policy; 2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and 3) the plaintiff’s claims fall within the contemplation of the parties when they executed the contract.

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

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

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

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

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

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

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

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

A plaintiff’s failure to read a release “does not preclude enforcement of the release.” As long as the plaintiff had an opportunity to read the release, even if he chooses not to take it, a release can be enforced.

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

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

If “the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. The court gives the language of the release “its common meaning and give[s] the contract itself the meaning that would be attached to it by a reasonable person.” Id. “All that is required” is for the language to “clearly and specifically indicate[] the intent to release the defendants from liability for personal injury caused by the defendants’ negligence . . . .”

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

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

The court further defined reckless under New Hampshire law as:

…at a minimum, is conduct “where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.

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

The court summed up its analogy as:

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

So Now What?

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

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

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

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

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

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

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

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

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

United States District Court for the District of New Hampshire

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

Civil No. 16-cv-143-JL

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

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

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

Opinion by: Joseph N. Laplante

Opinion

[*584]  MEMORANDUM ORDER

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

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

I. Applicable legal standard

Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, the court “constru[es] the record in the light most favorable to the nonmoving party and resolv[es] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). In the summary judgment analysis, “a fact is ‘material’ if it has the potential of determining the outcome of the litigation.” Maymi v. P.R. Ports. Auth., 515 F.3d 20, 25 (1st Cir. 2008). A factual dispute is genuine “if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citation and [**3]  internal quotation marks omitted). Nevertheless, if the nonmoving party’s “evidence is merely colorable, or is not significantly probative,” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citations omitted).

II. Background

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

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

 [*586]  STOP

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

YOU ARE RELEASING THIS SKI AREA FROM LIABILITY

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

The lift ticket itself displayed the following language:

LIABILITY RELEASE

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

MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.

RECKLESS SKIING WILL RESULT IN LOSS OF TICKET

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

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

(Emphasis in original).

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

 [*587]  III. Analysis

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

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

A. Public policy

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

1. New Hampshire statutory law

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

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

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

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

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

Id. (emphasis added).

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

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

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

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

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

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

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

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

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

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

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

2. Injurious to the public interest

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

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

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

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

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

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

 [*594]  B. Import of the agreement

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

1. Signature

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

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

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

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

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

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

 [*596]  2. Opportunity to read the release

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

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

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

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

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

C. Contemplation [**34]  of the parties

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

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

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

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

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

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

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

D. Reckless, wanton or positive misconduct

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

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

1. Recklessness

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Wanton and positive misconduct

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

3. Potential [**48]  certification

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

IV. Conclusion

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

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

SO ORDERED.

/s/ Joseph N. Laplante

Joseph N. Laplante

United States District Judge

March 31, 2018


Colorado Passenger Tramway Act

COLORADO REVISED STATUTES

TITLE 25. HEALTH

PRODUCTS CONTROL AND SAFETY

ARTICLE 5.PRODUCTS CONTROL AND SAFETY

PART 7. PASSENGER TRAMWAY SAFETY

25-5-701. Legislative declaration.. 2

25-5-702. Definitions. 2

25-5-703. Passenger tramway safety board – composition – termination.. 4

25-5-703.5. Board subject to termination – repeal of article. (Repealed) 5

25-5-704. Powers and duties of board. 5

25-5-705. Responsibilities of area operators. 6

25-5-706. Disciplinary action – administrative sanctions – grounds. 7

25-5-707. Orders – enforcement 8

25-5-708. Disciplinary proceedings. 8

25-5-709. Passenger tramway licensing required. 9

25-5-710. Application for new construction or major modification.. 9

25-5-711. Application for licensing. 10

25-5-712. Licensing of passenger tramways. 10

25-5-713. Licensing and certification fees. 11

25-5-714. Disposition of fees and fines. 11

25-5-715. Inspections and investigations – costs – reports. 11

25-5-716. Emergency shutdown.. 12

25-5-717. Provisions in lieu of others. 13

25-5-718. Governmental immunity – limitations on liability. 13

25-5-719. Independent contractors – no general immunity. 13

25-5-720. Confidentiality of reports and other materials. 14

25-5-721. Repeal of part 14

 

C.R.S. 25-5-701 (2015)

25-5-701. Legislative declaration

In order to assist in safeguarding life, health, property, and the welfare of this state, it is the policy of the state of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of passenger tramways and to assure that reasonable design and construction are used for, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of, passenger tramways.

HISTORY: Source: L. 65: p. 709, § 1. C.R.S. 1963: § 66-25-1.L. 76: Entire section amended, p. 660, § 1, effective May 27.L. 77: Entire section amended, p. 1288, § 2, effective July 1.L. 83: Entire section amended, p. 1071, § 1, effective May 25.L. 93: Entire section amended, p. 1533, § 3, effective July 1.

Cross references: For agricultural and animal products standards, see title 35; for automotive products standards, see parts 8 and 9 of article 20 of title 8.

ANNOTATION

Law reviews. For article, “Ski Injury Liability”, see 43 U. Colo. L. Rev. 307 (1972). For article, “Changes in Colorado Ski Law”, see 13 Colo. Law. 407 (1984). For article, “The Development of the Standard of Care in Colorado Ski Cases”, see 15 Colo. Law. 373 (1986).

Neither this act nor the Ski Safety Act of 1979 (article 44 of title 33, C.R.S.) preempts or supersedes the common law standard of care applicable to ski lift operators, to use the highest degree of care commensurate with the practical operation of the lift, regardless of the season. The general assembly did not intend for the regulations adopted by the board to preclude common law negligence actions against ski lift operators or the duty to exercise the highest degree of care. Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998).

25-5-702. Definitions

As used in this part 7, unless the context otherwise requires:

(1) “Area operator” means a person who owns, manages, or directs the operation and maintenance of a passenger tramway. “Area operator” may apply to the state or any political subdivision or instrumentality thereof.

(1.5) “Board” means the passenger tramway safety board created by section 25-5-703.

(1.7) “Commercial recreational area” means an entity using passenger tramways to provide recreational opportunities to the public for a fee.

(2) “Industry” means the activities of all those persons in this state who own, manage, or direct the operation of passenger tramways.

(3) “License” means the formal, legal, written permission of the board to operate a passenger tramway.

(4) “Passenger tramway” means a device used to transport passengers uphill on skis, or in cars on tracks, or suspended in the air by the use of steel cables, chains, or belts, or by ropes, and usually supported by trestles or towers with one or more spans. “Passenger tramway” includes, but is not limited to, the following devices:

(a) Fixed-grip lifts. “Fixed-grip lift” means an aerial lift on which carriers remain attached to a haul rope. The tramway system may be either continuously or intermittently circulating, and may be either monocable or bicable.

(b) Detachable-grip lifts. “Detachable-grip lift” means an aerial lift on which carriers alternately attach to and detach from a moving haul rope. The tramway system may be monocable or bicable.

(c) Funiculars. “Funicular” means a device in which a passenger car running on steel or wooden tracks is attached to and propelled by a steel cable, and any similar devices.

(d) Chair lifts. “Chair lift” means a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain, or link belt supported by trestles or towers with one or more spans, and any similar devices.

(e) Surface lifts. “Surface lift” means a J-bar, T-bar, or platter pull and any similar types of devices or means of transportation which pull skiers riding on skis by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans.

(f) Rope tows. “Rope tow” means a type of transportation which pulls the skier riding on skis as the skier grasps the rope manually, and any similar devices.

(g) Portable aerial tramway devices. “Portable aerial tramway device” means any device designed for temporary use and operation, without permanent foundations, in changing or variable locations, with a capacity of less than five persons, which transports equipment or personnel, and is not used or intended to be used by the general public.

(h) Portable tramway devices. “Portable tramway device” means any device designed to be used and operated as a rope tow or surface lift without permanent foundations and intended for temporary use in changing or variable locations, when used within the boundary of a recognized ski area.

(i) Private residence tramways. “Private residence tramway” means a device installed at a private residence or installed in multiple dwellings as a means of access to a private residence in such multiple dwelling buildings, so long as the tramway is so installed that it is not accessible to the general public or to other occupants of the building.

(j) Reversible aerial tramways. “Reversible aerial tramway” means a device on which passengers are transported in cable-supported carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals.

(k) Conveyors. “Conveyor” means a type of transportation by which skiers, or passengers on recreational devices, are transported uphill on top of a flexible, moving element such as a belt or a series of rollers.

(4.5) “Program administrator” means the person who manages the board’s offices on a day-to-day basis and works with the supervisory tramway engineer and the board in implementing the policies, decisions, and orders of the board.

(5) “Qualified tramway design engineer” or “qualified tramway construction engineer” means an engineer licensed by the state board of licensure for architects, professional engineers, and professional land surveyors pursuant to part 1 of article 25 of title 12, C.R.S., to practice professional engineering in this state.

(6) “Staff” means the program administrator, the supervisory tramway engineer, and their clerical staff.

(7) “Supervisory tramway engineer” means the tramway engineer who works with the program administrator and the board in implementing the policies, decisions, and orders of the board.

HISTORY: Source: L. 65: p. 709, § 1. C.R.S. 1963: § 66-25-2.L. 76: (1) and (4)(c) amended and (1.5) and (5) added, p. 661, § 2, effective May 27.L. 83: (5) amended, p. 1072, § 2, effective May 25.L. 93: (1), (3), and (4) amended and (1.7), (4.5), (6), and (7) added, p. 1533, § 4, effective July 1.L. 2001: (4)(k) added, p. 118, § 3, effective July 1.L. 2004: (5) amended, p. 1311, § 57, effective May 28.L. 2006: (5) amended, p. 743, § 11, effective July 1.

25-5-703. Passenger tramway safety board – composition – termination

(1) There is hereby created a passenger tramway safety board of six appointive members and one member designated by the United States forest service. The appointive members shall be appointed by the governor from persons representing the following interests: Two members to represent the industry or area operators; two members to represent the public at large; one member who is a licensed professional engineer not employed by a ski area or related industry; and one member familiar with or experienced in the tramway industry who may represent the passenger tramway manufacturing or design industry or an area operator. No person shall be so appointed or designated except those who, by reason of knowledge or experience, shall be deemed to be qualified. Such knowledge or experience shall be either from active and relevant involvement in the design, manufacture, or operation of passenger tramways or as a result of extensive and relevant involvement in related activities. The governor, in making such appointments, shall consider recommendations made to him or her by the membership of the particular interest from which the appointments are to be made.

(2) Each of the appointed members shall be appointed for a term of four years and until a successor is appointed and qualified and no board member shall serve more than two consecutive four-year terms. A former board member may be reappointed to the board after having vacated the board for one four-year term. Vacancies on the board, for either an unexpired term or for a new term, shall be filled through prompt appointment by the governor. The member of the board designated by the United States forest service shall serve for such period as such federal agency shall determine and shall serve without compensation or reimbursement of expenses.

(3) The governor may remove any member of the board for misconduct, incompetence, or neglect of duty.

(4) Board members appointed by the governor shall have been residents of this state for at least three years.

(5) No member of the board who has any form of conflict of interest or the potential thereof shall participate in consideration of the deliberations on matters to which such conflict may relate; such conflicts may include, but are not limited to, a member of the board having acted in any consulting relationship or being directly or indirectly involved in the operation of the tramway in question.

(6) A majority of the board shall constitute a quorum. When necessary, the board may conduct business telephonically during a public meeting for purposes of obtaining a quorum, facilitating the participation of members in remote locations, or both.

(7) The provisions of section 24-34-104, C.R.S., concerning the termination schedule for regulatory bodies of the state unless extended as provided in that section, are applicable to the passenger tramway safety board created by this section.

HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-3.L. 76: Entire section amended, p. 661, § 3, effective May 27.L. 77: Entire section amended, p. 1289, § 3, effective July 1.L. 93: Entire section amended, p. 1535, § 5, effective July 1.L. 2001: (1) amended, p. 119, § 4, effective July 1.L. 2008: (1) amended, p. 369, § 4, effective July 1.

ANNOTATION

Law reviews. For article, “Ski Injury Liability”, see 43 U. Colo. L. Rev. 307 (1972).

25-5-703.5. Board subject to termination – repeal of article. (Repealed)

HISTORY: Source: L. 76: Entire section added, p. 627, § 39, effective July 1.L. 91: Entire section amended, p. 688, § 56, effective April 20.L. 93: Entire section repealed, p. 1536, § 6, effective July 1.

25-5-704. Powers and duties of board

(1) The board has the following powers and duties in addition to those otherwise described by this part 7:

(a) To promulgate, amend, and repeal such rules as may be necessary and proper to carry out the provisions of this article. In adopting such rules, the board may use as general guidelines the standards contained in the “American National Standard for Passenger Ropeways – Aerial Tramways and Aerial Lifts, Surface Lifts, Tows, and Conveyors – Safety Requirements”, as adopted by the American national standards institute, incorporated, as amended from time to time. Such rules shall not be discriminatory in their application to area operators and procedures of the board with respect thereto shall be as provided in section 24-4-103, C.R.S., with respect to rule-making.

(b) To investigate matters relating to the exercise and performance of the powers and duties of the board;

(c) To receive complaints concerning violations of this part 7;

(d) To conduct meetings, hold hearings, and take evidence in all matters relating to the exercise and performance of the powers and duties of the board, subpoena witnesses, administer oaths, and compel the testimony of witnesses and the production of books, papers, and records relevant to the subject inquiry. The program administrator may issue subpoenas on behalf of the board at the board’s direction. If any person refuses to obey any subpoena so issued, the board may petition the district court, setting forth the facts, and thereupon the court in a proper case shall issue its subpoena. The board may appoint an administrative law judge pursuant to part 10 of article 30 of title 24, C.R.S., to take evidence and to make findings and report them to the board. The board may elect to hear the matter itself with the assistance of an administrative law judge, who shall rule on the evidence and otherwise conduct the hearing in accordance with the “State Administrative Procedure Act”, article 4 of title 24, C.R.S.

(e) To discipline area operators in accordance with this part 7;

(f) To approve and renew licenses in accordance with this part 7;

(g) To elect officers;

(h) To establish standing or temporary technical and safety committees composed of persons with expertise in tramway-related fields to review, as the board deems necessary, the design, construction, maintenance, and operation of passenger tramways and to make recommendations to the board concerning their findings. Committees established pursuant to this paragraph (h) shall meet as deemed necessary by the board or the supervisory tramway engineer.

(i) To collect fees, established pursuant to section 24-34-105, C.R.S., for any application for a new construction or major modification, for any application for licensing, and for inspection and accident investigations;

(j) To cause the prosecution and enjoinder of all persons violating such provisions and to incur the necessary expenses thereof;

(k) To delegate duties to the program administrator;

(l) To keep records of its proceedings and of all applications.

HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-4.L. 77: Entire section amended, p. 1289, § 4, effective July 1.L. 79: Entire section amended, p. 912, § 15, effective July 1.L. 93: Entire section amended, p. 1536, § 7, effective July 1.L. 2001: (1)(a) and (1)(i) amended, p. 119, § 5, effective July 1.

25-5-705. Responsibilities of area operators

The primary responsibility for design, construction, maintenance, operation, and inspection rests with the area operators of passenger tramway devices.

HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-5.L. 76: Entire section amended, p. 661, § 4, effective May 27.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1538, § 8, effective July 1.

25-5-706. Disciplinary action – administrative sanctions – grounds

(1) Disciplinary action of the board pursuant to this section shall be taken in accordance with the “State Administrative Procedure Act”, article 4 of title 24, C.R.S.

(2) Disciplinary action of the board may be imposed as an alternative to or in conjunction with the issuance of orders or the pursuit of other remedies provided by section 25-5-707 or 25-5-716, and may consist of any of the following:

(a) Denial, suspension, revocation, or refusal to renew the license of any passenger tramway. The board may summarily suspend a license pursuant to the authority granted by this part 7 or article 4 of title 24, C.R.S.

(b) (I) When a complaint or investigation discloses an instance of misconduct that, in the opinion of the board, does not warrant formal action by the board but that should not be dismissed as being without merit, issuance and sending of a letter of admonition, by certified mail, to the area operator.

(II) When a letter of admonition is sent by the board, by certified mail, to an area operator such area operator shall be advised that he or she has the right to request in writing, within twenty days after receipt of the letter, that formal disciplinary proceedings be initiated to adjudicate the propriety of the conduct upon which the letter of admonition is based.

(III) If the request for adjudication is timely made, the letter of admonition shall be deemed vacated and the matter shall be processed by means of formal disciplinary proceedings.

(c) Assessment of a fine, not to exceed ten thousand dollars per act or omission or, in the case of acts or omissions found to be willful, fifty thousand dollars per act or omission, against any area operator;

(d) Imposition of reasonable conditions upon the continued licensing of a passenger tramway or upon the suspension of further disciplinary action against an area operator.

(3) The board may take disciplinary action for any of the following acts or omissions:

(a) Any violation of the provisions of this part 7 or of any rule or regulation of the board promulgated pursuant to section 25-5-704 when the act or omission upon which the violation is based was known to, or reasonably should have been known to, the area operator;

(b) Violation of any order of the board issued pursuant to provisions of this part 7;

(c) Failure to report any incident or accident to the board as required by any provision of this part 7 or any rule or regulation of the board promulgated pursuant to section 25-5-704 when the incident or accident was known to, or reasonably should have been known to, the area operator;

(d) Willful or wanton misconduct in the operation or maintenance of a passenger tramway;

(e) Operation of a passenger tramway while a condition exists in the design, construction, operation, or maintenance of the passenger tramway which endangers the public health, safety, or welfare, which condition was known, or reasonably should have been known, by the area operator;

(f) Operation of a passenger tramway by an operator whose license has been suspended;

(g) Failure to comply with an order issued under section 25-5-707 or 25-5-716.

HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-6.L. 86: Entire section amended, p. 974, § 1, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1538, § 8, effective July 1.L. 2004: (2)(b) amended, p. 1863, § 123, effective August 4.L. 2006: (3)(f) and (3)(g) added, p. 96, § 64, effective August 7.

25-5-707. Orders – enforcement

(1) If, after investigation, the board finds that a violation of any of its rules or regulations exists or that there is a condition in passenger tramway design, construction, operation, or maintenance endangering the safety of the public, it shall forthwith issue its written order setting forth its findings and the corrective action to be taken and fixing a reasonable time for compliance therewith. Such order shall be served upon the area operator involved in accordance with the Colorado rules of civil procedure or the “State Administrative Procedure Act”, article 4 of title 24, C.R.S., and shall become final unless the area operator applies to the board for a hearing in the manner provided in section 24-4-105, C.R.S.

(2) If any area operator fails to comply with a lawful order of the board issued under this section within the time fixed thereby, the board may take further action as permitted by sections 25-5-706 and 25-5-716 and may commence an action seeking injunctive relief in the district court of the judicial district in which the relevant passenger tramway is located.

(3) Any person who violates an order issued pursuant to this section shall be subject to a civil penalty of not more than five thousand dollars for each day during which such violation occurs.

(4) Any area operator who operates a passenger tramway which has not been licensed by the board or the license of which has been suspended, or who fails to comply with an order issued under this section or section 25-5-716, commits a class 3 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S. Fines collected pursuant to this section shall be deposited in the general fund of the state.

HISTORY: Source: L. 65: p. 711, § 1. C.R.S. 1963: § 66-25-7.L. 86: (3) and (4) amended, p. 974, § 2, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1539, § 8, effective July 1.L. 2002: (4) amended, p. 1537, § 268, effective October 1.

25-5-708. Disciplinary proceedings

(1) The board may investigate all matters which present grounds for disciplinary action as specified in this part 7.

(2) Disciplinary hearings shall be conducted by the board or by an administrative law judge in accordance with section 25-5-704 (1) (d).

(3) Any person aggrieved by a final action or order of the board may appeal such action to the Colorado court of appeals in accordance with section 24-4-106 (11), C.R.S.

HISTORY: Source: L. 65: p. 712, § 1. C.R.S. 1963: § 66-25-8.L. 67: p. 200, § 1.L. 76: (1) amended and (2) added, p. 662, § 6, effective May 27.L. 77: (1) amended, p. 1290, § 6, effective July 1.L. 79: Entire section R&RE, p. 1661, § 120, effective July 19.L. 83: (2) repealed, p. 1073, § 6, effective May 25.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1540, § 8, effective July 1.

25-5-709. Passenger tramway licensing required

(1) The state, through the board, shall license all passenger tramways, unless specifically exempted by law, establish reasonable standards of design and operational practices, and cause to be made such inspections as may be necessary in carrying out the provisions of this section.

(2) A passenger tramway shall not be operated in this state unless it has been licensed by the board. No new passenger tramway shall be initially licensed in this state unless its design and construction have been certified to this state as complying with the rules and regulations of the board promulgated pursuant to section 25-5-704. Such certification shall be made by a qualified tramway design engineer or a qualified tramway construction engineer, whichever the case requires.

(3) The board shall have no jurisdiction over the construction of a new private residence tramway or over any modifications to an existing private residence tramway when such tramway is not used, or intended to be used, by the general public.

(4) The board shall have no jurisdiction over a portable aerial tramway device.

(5) The board shall have no jurisdiction over a portable tramway device when such tramway device is not used, or intended to be used, by the general public.

HISTORY: Source: L. 65: p. 712, § 1. C.R.S. 1963: § 66-25-9.L. 73: p. 1373, § 29.L. 79: Entire section amended, p. 1661, § 121, effective July 19.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1540, § 8, effective July 1.L. 2001: (3) and (5) amended, p. 119, § 6, effective July 1.

25-5-710. Application for new construction or major modification

Any new construction of a passenger tramway or any major modification to an existing installation shall not be initiated unless an application for such construction or major modification has been made to the board and a permit therefor has been issued by the board.

HISTORY: Source: L. 65: p. 712, § 1. C.R.S. 1963: § 66-25-10.L. 67: p. 200, § 2;L. 76: (1)(f) amended and (1)(g) added, p. 662, § 7, effective May 27;L. 77: (1)(b) amended, p. 308, § 14, effective June 10; (1)(h), (1)(i), and (2) added, p. 1290, § § 8, 7, effective July 1.L. 79: (1)(i) amended, p. 1661, § 122, effective July 19;L. 83: (1)(f) amended and (1)(g) repealed, pp. 1072, 1073, § § 5, 6, effective May 25;L. 86: (1)(a) to (1)(c) amended, p. 975, § 3, effective April 3.L. 87: (1)(b) amended, p. 971, § 83, effective March 13.L. 88: (1)(h) amended, p. 317, § 11, effective April 14.L. 91: (1)(a) amended, p. 1917, § 40, effective June 1.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1540, § 8, effective July 1.

ANNOTATION

Law reviews. For note, “Exculpatory Clauses and Public Policy: A Judicial Dilemma”, see 53 U. Colo. L. Rev. 793 (1982).

25-5-711. Application for licensing

Each year, every area operator of a passenger tramway shall apply to the board, in such form as the board shall designate, for licensing of the passenger tramways which such area operator owns or manages or the operation of which such area operator directs. The application shall contain such information as the board may reasonably require in order for it to determine whether the passenger tramway sought to be licensed by such area operator complies with the intent of this part 7 as specified in section 25-5-701 and the rules and regulations promulgated by the board pursuant to section 25-5-704.

HISTORY: Source: L. 65: p. 713, § 1. C.R.S. 1963: § 66-25-11.L. 77: Entire section amended, p. 637, § 5, effective July 1; entire section amended, p. 1291, § 9, effective July 1.L. 86: Entire section amended, p. 975, § 4, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1540, § 8, effective July 1.

25-5-712. Licensing of passenger tramways

(1) The board shall issue to the applying area operator without delay licensing certificates for each passenger tramway owned, managed, or the operation of which is directed by such area operator when the board is satisfied:

(a) That the facts stated in the application are sufficient to enable the board to fulfill its duties under this part 7; and

(b) That each such passenger tramway sought to be licensed has been inspected by an inspector designated by the board according to procedures established by the board and that such inspection disclosed no unreasonable safety hazard and no violations of the provisions of this part 7 or the rules and regulations of the board promulgated pursuant to section 25-5-704.

(2) In order to satisfy itself that the conditions described in subsection (1) of this section have been fulfilled, the board may cause to be made such inspections described in section 25-5-715 as it may reasonably deem necessary.

(3) Repealed.

(4) Licenses shall expire on dates established by the board.

(5) Each area operator shall cause the licensing certificate, or a copy thereof, for each passenger tramway thus licensed to be displayed prominently at the place where passengers are loaded thereon.

HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-12.L. 77: Entire section amended, p. 1291, § 10, effective July 1.L. 86: Entire section amended, p. 976, § 5, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1541, § 8, effective July 1.L. 2001: (3) repealed, p. 120, § 7, effective July 1.

25-5-713. Licensing and certification fees

The application for new construction or major modification and the application for licensing shall be accompanied by a fee established pursuant to section 24-34-105, C.R.S.

HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-13.L. 77: Entire section amended, p. 1291, § 11, effective July 1.L. 86: Entire section amended, p. 976, § 6, effective April 6.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1541, § 8, effective July 1.L. 2001: Entire section amended, p. 120, § 8, effective July 1.

25-5-714. Disposition of fees and fines

(1) All fees collected by the board under the provisions of this part 7 shall be transmitted to the state treasurer, who shall credit the same pursuant to section 24-34-105, C.R.S., and the general assembly shall make annual appropriations pursuant to said section for expenditures of the board incurred in the performance of its duties under this part 7, which expenditures shall be made from such appropriations upon vouchers and warrants drawn pursuant to law.

(2) Fines collected pursuant to section 25-5-707 shall be deposited in the general fund of the state.

HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-14.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1541, § 8, effective July 1.L. 2006: Entire section amended, p. 96, § 65, effective August 7.

25-5-715. Inspections and investigations – costs – reports

(1) The board may cause to be made such inspection of the design, construction, operation, and maintenance of passenger tramways as the board may reasonably require.

(2) Such inspections shall include, at a minimum, two inspections per year or per two thousand hours of operation, whichever occurs first, of each passenger tramway, one of which inspections shall be during the high use season and shall be unannounced, and shall be carried out under contract by independent contractors selected by the board or by the supervisory tramway engineer. Additional inspections may be required by the board if the area operator does not, in the opinion of the board, make reasonable efforts to correct any deficiencies identified in any prior inspection or if the board otherwise deems such additional inspections necessary. The board shall provide in its rules and regulations that no facility shall be shut down for the purposes of a regular inspection during normal operating hours unless sufficient daylight is not available for the inspection.

(3) The board may employ independent contractors to make such inspections for reasonable fees plus expenses. The expenses incurred by the board in connection with the conduct of inspections provided for in this part 7 shall be paid in the first instance by the board, but each area operator of the passenger tramway which was the subject of such inspection shall, upon notification by the board of the amount due, reimburse the board for any charges made by such personnel for such services and for the actual expenses of each inspection.

(4) The board may cause an investigation to be made in response to an accident or incident involving a passenger tramway, as the board may reasonably require. The board may employ independent contractors to make such investigations for reasonable fees plus expenses. The expenses incurred by the board in connection with the conduct of investigations provided for in this part 7 shall be paid in the first instance by the board, and thereafter one or more area operators may be billed for work performed pursuant to subsection (3) of this section.

(5) If, as the result of an inspection, it is found that a violation of the board’s rules and regulations exists, or a condition in passenger tramway design, construction, operation, or maintenance exists, endangering the safety of the public, an immediate report shall be made to the board for appropriate investigation and order.

HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-15.L. 86: Entire section amended, p. 976, § 7, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1542, § 8, effective July 1.

25-5-716. Emergency shutdown

When facts are presented tending to show that an unreasonable hazard exists in the continued operation of a passenger tramway, after such verification of said facts as is practical under the circumstances and consistent with the public safety, the board, any member thereof, or the supervisory tramway engineer may, by an emergency order, require the area operator of said tramway forthwith to cease using the same for the transportation of passengers. Such emergency order shall be in writing and signed by a member of the board or the supervisory tramway engineer, and notice thereof may be served by the supervisory tramway engineer, any member of the board, or as provided by the Colorado rules of civil procedure or the “State Administrative Procedure Act”, article 4 of title 24, C.R.S. Such service shall be made upon the area operator or the area operator’s agent immediately in control of said tramway. Such emergency shutdown shall be effective for a period not to exceed seventy-two hours from the time of service. The board shall conduct an investigation into the facts of the case and shall take such action under this part 7 as may be appropriate.

HISTORY: Source: L. 65: p. 714, § 1. C.R.S. 1963: § 66-25-16.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1543, § 8, effective July 1.

25-5-717. Provisions in lieu of others

The provisions for regulation, registration, and licensing of passenger tramways and the area operators thereof under this part 7 shall be in lieu of all other regulations or registration or licensing requirements, and passenger tramways shall not be construed to be common carriers within the meaning of the laws of this state.

HISTORY: Source: L. 65: p. 715, § 1. C.R.S. 1963: § 66-25-17.L. 77: Entire section amended, p. 1292, § 13, effective July 1.L. 85: Entire section amended, p. 411, § 23, effective July 1.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1543, § 8, effective July 1.

ANNOTATION

Even though a ski lift operator is not a common carrier, the attendant circumstances of operating a ski lift demand that the ski lift operator be held to the highest degree of care commensurate with the practical operation of the lift. Bayer v. Crested Butte Mountain Resort, 960 P.2d 70 (Colo. 1998).

25-5-718. Governmental immunity – limitations on liability

The board, any member of the board, any person on the staff of the board, any technical advisor appointed by the board, any member of an advisory committee appointed by the board, and any independent contractor hired to perform or acting as a state tramway inspector on behalf of the board with whom the board contracts for assistance shall be provided all protections of governmental immunity provided to public employees by article 10 of title 24, C.R.S., including but not limited to the payment of judgments and settlements, the provision of legal defense, and the payment of costs incurred in court actions. These protections shall be provided to the board, board members, staff, technical advisors, committee members, and independent contractors hired to perform or acting as a state tramway inspector on behalf of the board only with regard to actions brought because of acts or omissions committed by such persons in the course of official board duties.

HISTORY: Source: L. 65: p. 715, § 1. C.R.S. 1963: § 66-25-18.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1543, § 8, effective July 1.

ANNOTATION

Law reviews. For article, “Ski Injury Liability”, see 43 U. Colo. L. Rev. 307 (1972).

25-5-719. Independent contractors – no general immunity

The provisions of section 25-5-718 shall be construed as a specific exception to the general exclusion of independent contractors hired to perform or acting as a state tramway inspector on behalf of the board from the protections of governmental immunity provided in article 10 of title 24, C.R.S.

HISTORY: Source: L. 86: Entire section added, p. 977, § 8, effective April 3.L. 93: Sections 25-5-705 to 25-5-719 R&RE, p. 1543, § 8, effective July 1.

25-5-720. Confidentiality of reports and other materials

(1) Reports of investigations conducted by an area operator or by a private contractor on an area operator’s behalf and filed with the board or the board’s staff shall be presumed to be privileged information exempt from public inspection under section 24-72-204 (3) (a) (IV), C.R.S., except as may be ordered by a court of competent jurisdiction.

(2) Except as otherwise provided in subsection (1) of this section, all information in the possession of the board’s staff and all final reports to the board shall be open to public inspection in accordance with part 2 of article 72 of title 24, C.R.S.

HISTORY: Source: L. 93: Entire section added, p. 1544, § 9, effective July 1.

25-5-721. Repeal of part

(1) This part 7 is repealed, effective July 1, 2019.

(2) Prior to such repeal, the passenger tramway safety board shall be reviewed as provided for in section 24-34-104, C.R.S.

HISTORY: Source: L. 93: Entire section added, p. 1544, § 9, effective July 1.L. 2001: (1) amended, p. 120, § 9, effective July 1.L. 2008: (1) amended, p. 369, § 1, effective July 1.