UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christina Margaret Porter, Deceased, by Brent M . Porter and Mary M . Salstrom, as Administrators of her Estate and Individually

v. Civil N o . 07-cv-28-PB Opinion N o .

Dartmouth College and John/Jane Doe Defendants 1-10

MEMORANDUM AND ORDER

Christina Porter died from injuries she suffered while

participating in an introductory ski class at Dartmouth College.

Her parents have sued Dartmouth for negligence and wrongful

death. Dartmouth has moved to dismiss, contending that

plaintiffs’ claims are barred by the New Hampshire Skiers, Ski

Area, and Passenger Tramway Safety Act (“Ski Statute”),

-A. Because I conclude that plaintiffs’ claims

are not precluded by the Ski Statute, I deny Dartmouth’s motion

to dismiss. I. BACKGROUND1

Porter was a 20-year-old undergraduate student at Dartmouth

College (“Dartmouth”) when she enrolled in Dartmouth’s physical

education introductory ski class for the Spring 2004 semester.

The ski class was held at the Dartmouth Skiway in Lyme, New

Hampshire, a facility that is owned, operated, and maintained by

Dartmouth College. Porter was an inexperienced beginner skier,

taking the class to fulfill Dartmouth’s three-credit physical

education requirement for all undergraduates. Her ski

instructors were aware of Porter’s inexperience.

On February 3 , 2004, the ski instructors told Porter to ski

down a trail alone, while the instructors accompanied the rest of

the class down another more difficult trail. Porter followed

instructions and skied down the trail alone and unsupervised.

Before reaching the bottom, she struck a tree and suffered

numerous catastrophic injuries including skull and arm fractures,

pleural effusion, heart compromise, and brain injury. As a

result of the accident, Porter became a paraplegic and died from

1 I draw the background facts from the Complaint and describe them in the light most favorable to the plaintiffs.

-2- her injuries almost a year later.

Plaintiffs filed this action on February 2 , 2007, just

before the expiration of the New Hampshire three year statute of

limitations for personal actions. See

(2000).

II. STANDARD OF REVIEW

On a Rule 12(b)(6) motion to dismiss, the court must accept

a plaintiff’s well-pleaded factual allegations as true, and the

plaintiff is entitled to all reasonable inferences from the facts

alleged in the complaint. Fed. R. Civ. P. 12(b)(6); Phoung Luc

v . Wyndham Mgmt. Corp.,

5 , 88 (1st Cir. 2007). Because

I am reviewing state law claims, I will apply New Hampshire state

substantive law and adhere to interpretations of New Hampshire

law by the New Hampshire Supreme Court. Phoung Luc, 496 F.3d at

88.

III. ANALYSIS

The Ski Statute both imposes safety standards on the

State’s ski industry,

-A:3-a

(establishing tramway safety board), 225-A:23 (requiring

-3- operators to implement trail marking system), and bars claims

against ski area operators that result from the inherent risks of

skiing,

-A:24.2 The statute also

establishes a special two-year statute of limitations for certain

claims by skiers against ski area operators.

-A:25 IV. Dartmouth argues that the Ski Statute bars

plaintiffs’ claims both because Porter’s injuries resulted from

risks inherent in the sport of skiing and because her claims are

subject to the statute’s special two-year statute of limitations.

I find neither argument persuasive.

The Ski Statute states that “[e]ach skier and passenger

shall have the sole responsibility for knowing the range of his

own ability to negotiate any slope, trail or passenger tramway.”

-A:24 I I . It also mandates that

“[e]ach skier or passenger shall conduct himself within the

limits of his own ability, maintain control of his speed and

course at all times while skiing, heed all posted warnings and

refrain from acting in a manner which may cause or contribute to

2 The Ski Statute was amended in 2005. I refer in this Memorandum and Order to the version that was in effect in 2004 when Porter was injured.

-4- the injury of himself or others.”

-

A:24 III. Further, it provides that “[e]ach person who

participates in the sport of skiing accepts as a matter of law

the dangers inherent in the sport, and to that extent may not

maintain an action against the operator for any injuries which

result from such inherent risks, dangers, or hazards.”

-A:24 I . The statute goes on to identify certain

categories of risks that are deemed to be inherent in the sport

of skiing by stating that “[t]he categories of such risks

. . . include but are not limited to the following: variations in

terrain, surface or subsurface snow or ice conditions; bare

spots; rocks, trees, stumps and other forms of forest growth or

debris; lift towers and components thereof (all of the foregoing

whether above or below snow surface); pole lines and plainly

marked or visible snow making equipment; collisions with other

skiers or other persons or with any of the categories included in

this paragraph.”

Dartmouth argues that Porter’s claims are necessarily barred

by § 225-A:24 because she was injured after she skied off the

trail and struck a tree. This argument is plainly wrong. Porter

alleges that her injuries were caused by the negligence of her

-5- instructors rather than trail conditions that all skiers face

when they take to the slopes. While the Ski Statute identifies

the risk of striking a tree as a risk inherent in the sport of

skiing, it is silent on the subject of negligent instruction. If

a skier hires a ski area operator to provide specialized

instruction, she is entitled to assume that her instructors will

exercise reasonable care in assessing her abilities and in

providing guidance and supervision during the period of

instruction. There is no good reason why negligent instruction

should be deemed to be an inherent risk of skiing.

The New Hampshire Supreme Court determined in Adie v . Temple

Mountain Ski Area,

8 0 , 483-84 (1968), that an earlier

version of the Ski Statute did not bar negligent instruction

claims. In reaching this conclusion, the court reasoned that

“[i]f the Legislature had intended to bar skiers from actions

against an operator for negligent instruction or negligent rental

of defective equipment, some regulation of their operations in

these areas would have appeared in the statute.”

Although

the Ski Statute has been amended several times since the supreme

court’s pronouncement in Adie, the legislature has failed to

amend the statute to expressly bar claims by skiers based on

-6- either negligent instruction or the negligent rental of defective

equipment. Its failure to do so is dispositive of Dartmouth’s

argument that Porter’s negligence instruction claims are barred

by § 225-A:24.

Dartmouth argues in the alternative that Porter’s claims are

barred by the Ski Statute’s special two-year statute of

limitations. Section 225-A:25 IV provides in pertinent part that

“[n]o action shall be maintained against any operator for

injuries to any skier or passenger unless the same is commenced

within 2 years from the time of injury . . . .” While this

language could be construed broadly to apply to all claims by

skiers against ski area operators, the New Hampshire Supreme

Court in Adie construed an indistinguishable predecessor statute

of limitations to apply only to claims that depend upon the Ski

Statute for their existence. Adie,

. Porter’s

claims are not based on the breach of a duty imposed on ski area

operators by the Ski Statute. Accordingly, her claims are not

subject to the statute’s special statute of limitations.3

3 Dartmouth also seeks to have plaintiffs’ wrongful death claim dismissed because Porter was not a minor at the time of her death. I find no support for this argument in supreme court precedent, which recognizes that the parents of an adult child

-7- IV. CONCLUSION

For the reasons stated above, defendant’s motion to dismiss

(Doc. N o . 7 ) is denied.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

October 2 4 , 2007

cc: K. William Clauson, Esq. Angela Collison, Esq. Kevin Murphy, Esq. Charles J. Raubicheck, Esq. Danielle L . Pacik, Esq.

can maintain a wrongful death claim on behalf of their child’s estate. See Merrill v . Great Bay Disposal Serv.,

4 0 , 542 (1984). Although plaintiffs cannot recover damages for loss of familial relationship, see § 556:12 III (limiting claims for loss of familial relationship to cases where decedent was a minor), they are not otherwise barred from proceeding with their wrongful death claim.

-8-