Eileen Gwyn v . Loon Mtn. Corp. CV-01-214-B 12/19/02

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eileen Gwyn, as Executor of the Estate of Howard Gwyn, Eileen Gwyn on her own behalf, and Margaret Do

v. Civil N o . 01-00214-B

Loon Mountain Corporation d/b/a Loon Mountain Ski Area

MEMORANDUM AND ORDER

In this diversity case arising from a ski accident, Eileen

Gwyn (individually and on behalf of her late husband’s estate)

and Margaret Do (Gwyn’s daughter) are suing Loon Mountain

Corporation (“Loon”) for damages they suffered as a result of the

accident. Two motions for summary judgment filed by Loon are

presently pending. For the reasons that follow, I grant the

defendant’s first motion for summary judgment (Doc. N o . 3 3 ) ,

which in turn renders the defendant’s second motion for summary

judgment moot (Doc. N o . 3 2 ) . I. BACKGROUND1

While skiing at Loon, Howard Gwyn, his daughter Margaret D o ,

and Do’s fiancé Mark Gross traveled down the upper part of the

Big Dipper trail to the area where it adjoins the Triple Trouble

trail. The Triple Trouble trail was closed at the time, and the

beginning of the trail was marked with a “closed” sign and a

“closure rope.” Also, a trail board was present at the base of

the mountain indicating that Triple Trouble was closed.

As Howard Gwyn reached the area adjacent to the junction of

Big Dipper and Triple Trouble, he fell and unintentionally slid

down the closed Triple Trouble trail. Do and Gross removed their

skis and attempted to rescue Gwyn by walking down the slope

towards him. However, Do and Gross both slipped and plummeted

down the icy trail as well. Gwyn and Gross died as a result of

this awful and sad accident. Do suffered severe injuries.

1 A more detailed presentation of the underlying accident in this case can be found in my prior order regarding Loon’s motion to dismiss. See Gwyn e t . a l . v . Loon Mountain Corp, N o . CV-01-00214-B, (D.N.H. May 1 5 , 2002). Thus I recount only the evidence pertinent to the resolution of Loon’s first motion for summary judgment, construing it in the light most favorable to the plaintiffs. See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001) (summary judgment standard).

-2- In a prior order granting in part Loon’s motion to dismiss,

I determined that two viable claims under the statutory framework

of New Hampshire’s Skiers, Ski Area, and Passenger Tramway Safety

Act (“Ski Statute”),

-A (“RSA 225-A”),

survived Loon’s motion. Gwyn, N o . CV-01-00214-B (D.N.H. May 1 5 ,

2002). Specifically, I ruled that: If plaintiffs can establish that defendant failed to designate the Triple Trouble trail as closed on its base area trail board . . . and that Howard Gwyn would have avoided the icy area where he fell but for this statutory violation, a jury reasonably might conclude that the statutory violation caused his fatal injuries. Similarly, if the plaintiffs can establish that defendant failed to place a closed sign on the Triple Trouble trail’s designated access point from the Big Dipper trail, and that Howard Gwyn would have approached the trail junction differently - e.g., less aggressively or at a different angle - but for this statutory violation, a jury reasonably might conclude that the statutory violation caused his fatal injuries.

(citations omitted). The two viable claims are based upon

the statutory responsibility of Loon to (1) maintain a base area

trail board designating “which trails and slopes are open or

closed,” RSA 225-A:23, II(a); and (2) “mark the beginning o f , and

designated access points t o , each alpine trail or slope that is

closed with a sign in accordance with RSA 225-A:23, I(e),” RSA

225-A:23, III(b). The parties refer to these two claims as the

-3- trail board claim and the trail closure claim, respectively.

Loon now moves for summary judgment, arguing that the

plaintiffs have stipulated that a base area trail board was

present at Loon on the day of the accident in compliance with RSA

225-A:23, II(a). The board indicated that Triple Trouble was

closed. Further, Loon argues that plaintiffs stipulate that the

beginning of Triple Trouble was marked “closed” in compliance

with RSA 225-A:23, III(b). As such, it concludes that no genuine

issue of material fact is in dispute and that it is entitled to

judgment as a matter of law. I agree.

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v . Liberty Lobby, Inc.,

4 2 , 250 (1986). A material fact is one that affects the

-4- outcome of the suit. See id. at 248.

In ruling upon a motion for summary judgment, I must

construe the evidence in the light most favorable to the non-

movant. See Navarro, 261 F.3d at 9 4 . The party moving for

summary judgment, however, “bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v . Catrett,

1 7 , 323 (1986). Once the

moving party has properly supported its motion, the burden shifts

to the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb

Co.,

6 , 94 (1st Cir. 1996) (citing Celotex,

; Anderson,

4 9 ) . Neither conclusory allegations,

improbable inferences, or unsupported speculation are sufficient

to defeat summary judgment. See Carroll v . Xerox Corp.,

(1st Cir. 2002).

-5- III. DISCUSSION

As the plaintiffs concede that a base trail board was

present on the day of the accident listing Triple Trouble as

closed, I grant the defendant’s motion for summary judgment as to

the trail board claim. See Plfs’ Mem. in Supp. of O b j . to Def’s

1st Mot. Summ. J., p.6-7; Stip. ¶ 1 .

Turning to the trail closure claim, the plaintiffs have

stipulated that “the beginning of the Triple Trouble trail at

Loon Mountain was marked with a closed sign in compliance with

RSA 225-A:23, I ( e ) . It was also marked with a closure rope at

approximately waist height.” Stip. ¶ 2 . Correctly noting that

the Ski Statute requires ski area operators to mark as closed

both the beginning of a trail and its “designated access points,”

RSA 225-A:23, III(b), the plaintiffs interpret the phrase

“designated access points” as including any trail that eventually

leads to or reaches a closed trail. They conclude, therefore,

that summary judgment is not appropriate because the facts

indicate that, although Loon properly marked the beginning of

Triple Trouble, it did not mark all the trails along the

plaintiffs’ ski route that lead to Triple Trouble with signs

indicating that it was closed.

-6- The resolution of this case involves a straight-forward

question of statutory interpretation: Does the phrase

“designated access points,” RSA 225-A:23, III(b), mean the

beginning of any trail from which a skier may eventually reach or

enter a closed trail? I conclude that it does not.

The starting point in any statutory interpretation case is

the language of the statute itself. N.H. Hemp Council, Inc. v .

Marshall,

, 6 (1st Cir. 2000). I look to the plain and

ordinary meanings to words used and should assume that they

accurately express the legislature’s intent. Inmates of Suffolk

Cty. Jail v . Rouse,

(1st Cir. 1997). However,

I do not merely look at isolated words or phrases, but instead

consider the statute as a whole. Kenerson v . F.D.I.C.,

9 , 23 (1st Cir. 1995). If the language, when viewed in accord

with the above principles, is plain and unambiguous, I need not

look beyond the statute for further indications of legislative

intent. Bryson v . Shumway,

9 , 85 (1st Cir. 2002).

RSA 225 A:23, III states:

III. Ski Trails and Slopes; Information and Warning to Skiers and Other Persons

(a) The operator shall mark the beginning of each ski trail or slope with the appropriate symbol for that

-7- particular trail’s or slope’s degree of difficulty in accordance with RSA 225-A:23, I ( a ) , (b) and ( c ) .

(b) The operator shall mark the beginning o f , and designated access points t o , each alpine trail or slope that is closed with a sign in accordance with RSA 225- A:23, I ( e ) .

Read in isolation, the meaning of the phrase “designated

access points” is not entirely clear. When read in the context

of the statute as a whole, however, the phrase plainly means any

junction where the closed trail actually intersects with another

trail. In other words, the statutory provision mandates that ski

operators properly mark the beginning o f , or any point of actual

entry onto, each trail that is closed. I reach this conclusion

for three reasons.

RSA 225-A:23, III(a) sets forth the markings that must

appear at “the beginning of each ski trail or slope.” (Emphasis

added.) These markings only include the appropriate degree of

difficulty symbol in accordance with the National Trail Marking

System. RSA 225-A:23, III(a). Therefore, this provision does

not mandate that the beginning of each trail or slope be marked

with a sign indicating that upcoming or accessible trails are

closed.

-8- In contrast, ski area operators are required to mark both

“the beginning o f , and designated access points t o , each alpine

trail or slope that is closed,” with a sign marking it as such.

RSA 225-A:23, III(b) (emphasis added). Reading these two

provisions together, the plain language indicates that while RSA

225-A:23, III(a) sets forth the required markings for each trail,

RSA 225-A:23, III(b) pertains solely to markings that must appear

on closed trails. If the legislature had intended to require ski

area operators to place additional signs (such as signs

indicating that an upcoming trail is closed) at the beginning of

each trail, it would have included such a mandate in RSA 225-

A:23, III(a). The legislature did not do s o , and I will not read

into the statute words or phrases that the legislature has chosen

not to include. Belluscio v . Town of Westmoreland,

5 ,

56 (1994). Accordingly, the plain language of RSA 225-A:23,

III(b) only requires ski area operators to mark the beginning of

and any “designated access points” that exist on a closed trail.

It does not require any such marking at the beginning of each

trail that may lead to a closed trail.

Further, the legislature has mandated that ski area

operators post a trail board at the base of the mountain

-9- indicating which trails are open or closed. RSA 225-A:23, II(a).

Interpreting “designated access points” as requiring that signs

be posted at the beginning of every trail that leads to a closed

trail would essentially require ski mountain operators to post

trail boards on the mountain in addition to at the base. The

plaintiffs’ interpretation, if followed, would result in a

judicially created duty upon ski area operators to post trail

boards in places other than the base area. A ski area is only

obligated to comply with the obligations expressed in the Ski

Statute, Nutbrown v . Mount Cranmore,

, 6 8 1 , 683

(1996), and I will not read into the statute words or phrases

that the legislature has chosen not to include. Belluscio,

6 .

Lastly, if I were to adopt the plaintiffs’ interpretation,

ski area operators would only be required to mark the beginning

of a closed trail and the beginning of a trail that leads to a

closed trail with signs pursuant to RSA 225-A:23, I ( e ) . This

would lead to two results that run counter to common sense.

First, ski area operators would not be required to mark the

junctions, or actual access points, where an open trail

intersects a closed trail at some point below the beginning of

-10- the closed trail. Thus, skiers would not be prevented from

entering a closed trail at these entry points. This makes no

sense. Second, RSA 225-A:23, I(e) requires that the appropriate

National Trail Marking symbol be used to mark a closed trail: a

skier with a black band running diagonally across the sign.

There is no requirement to put the name of the closed trail on

the sign. Placing such a generic sign at the beginning of an

open trail would do nothing but inform the skier, at best, that

an upcoming, unknown trail is closed. At worst, since the sign

would be posted at the beginning of the open trail, it may

mislead the skier into thinking that the open trail itself is

closed. The most appropriate place to put a closed trail sign is

at the beginning o f , and at any point of actual entry onto, a

trail that is closed. Placing signs in these spots provides the

skier with the information needed to avoid skiing down a closed

trail. When read together, RSA 225-A:23, III(b) and I(e)

accomplish this goal.

In this case, the beginning of the Triple Trouble trail is

also the trail’s designated access point from which a skier may

enter it from Big Dipper trail. Therefore, Loon was only

required to post a closed trail sign at the area where a skier

-11- may enter Triple Trouble from the point where it intersects with

Big Dipper. The plaintiffs have stipulated that this area “was

marked with a closed sign in compliance with RSA 225-A:23, I(e).”

As there is no genuine dispute as to any material fact and Loon

fulfilled its statutory obligation by posting the requisite

closed trail sign, I grant summary judgment to Loon in regards to

the trail closure claim.

IV. CONCLUSION

I grant the defendant’s motion for summary judgment (Doc.

No. 3 3 ) . The Clerk is directed to enter judgment accordingly and

to close the case.

SO ORDERED.

Paul Barbadoro Chief Judge

December 1 9 , 2002

cc: Kevin M . Leach, Esq. Thomas Quarles, Jr., Esq.

-12-