Porter v . Dartmouth CV-07-28-PB 09/30/09 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. Case 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 that she suffered while

participating in an introductory ski class to fulfill her

physical education requirement at Dartmouth College. Porter’s

parents have sued Dartmouth College for negligence and wrongful

death. Dartmouth has moved for summary judgment based upon an

Equipment Rental and Liability Release Agreement(“Release

Agreement”) that Porter signed prior to her accident, contending

that the Release Agreement relieves Dartmouth College from any

and all liability. I deny Dartmouth’s motion for summary

judgment for the reasons set forth below. I. BACKGROUND

Porter, a Twenty-year-old undergraduate student at Dartmouth

College (“Dartmouth”), enrolled in Dartmouth’s introductory ski

class for the Spring 2004 semester to fulfill her physical

education requirement. (Compl., Doc. N o . 1 , ¶ 13.) The ski

class was conducted at the Dartmouth Skiway in Lyme, New

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

Dartmouth. (Id. ¶ 14.)

A. The Accident

On February 3 , 2004, Porter was participating in the ski

class at Dartmouth Skiway when her instructors allowed her to ski

down a particular slope, apart from her classmates. Porter

obeyed their instructions and proceeded down the slope, without

supervision, while the instructors accompanied the remainder of

the class down a more difficult trail. (Compl., Doc. N o . 1 ,

¶¶ 18-22.) Porter skied off the trail on her way down the slope,

resulting in catastrophic injuries that included multiple skull

fractures, an arm fracture, and traumatic brain injury. (Id. ¶

28.) As a result of her injuries, Porter died on January 1 6 ,

2005. (Id. ¶¶ 29-30.)

-2- Porter’s estate filed this action on February 2 , 2007,

asserting claims for negligence and wrongful death. On October

2 4 , 2007, I denied Dartmouth’s motion to dismiss and ruled that

the New Hampshire ski area operator statute does not bar

Plaintiffs’ claims. Porter ex. rel. Porter v . Dartmouth College,

N o . 07-cv-28-PB,

(D.N.H. Oct. 2 4 , 2007).

B. The Liability Release Agreement

Dartmouth students who were enrolled in the Spring 2004 ski

class were able to rent ski equipment, including skis, poles, and

boots. Approximately 80% of the students enrolled in the ski

class rented ski equipment. (Def.’s Mot. for Summ. J., Doc. N o .

44-2, at 2.) Each student who rented equipment was required to

complete and sign an Equipment Rental and Liability Release

Agreement (“Release Agreement”) before receiving her equipment

and participating in the ski class. (Id.)

The Release Agreement is a one page form drafted by Solomon,

the manufacturer of the bindings attached to the renting

student’s skis. (Id.; Pls.’ Mem. of Law in Opp’n, Doc. N o . 54-2,

at 2.) The form is divided into three sections, each separately

outlined by a black border. The first section, appearing at the

top half of the page beneath the Solomon logo, asks the equipment

-3- renter to provide her contact information, as well as her height,

weight, and age, to ensure that she receives the appropriate

equipment sizes. (See Def.’s Mot. for Summ. J., Doc. N o . 44-2,

at 3.) This first section also asks the renter to classify her

“Skier Type” by checking one of five available boxes in the upper

right hand corner of the form. (See Pls.’ Mem. of Law in Opp’n

App. Equipment Rental Agreement, Doc. N o . 54-2, at A1.) The

renter is provided with an informational chart to assist her in

classifying her Skier Type according to her preferences for

speed, terrain, and level of binding retention. (Id. at A2.) A

signature line at the bottom of the section asks the renter to

certify that the provided information is accurate, and

acknowledge that she will refrain from using the equipment until

she fully understands its use and function. (Id. at A1.)

Porter’s signature appears on the “Equipment User’s Signature”

line on the Release Agreement submitted by the parties. (See

id.)

The second section of the Release Agreement, appearing

beneath the renter’s signature line, allows the equipment

technician to record the model and sizing specifications of the

equipment, the price of the equipment, and the toe and heel

-4- binding settings. An illegible signature appears on the

“Technician’s Signature” line in the Release Agreement submitted

by the parties. (See id.)

The third and final section of the Release Agreement,

occupying the lower half of the page, is comprised of seven

paragraphs of text beneath the heading of “Equipment Rental &

Liability Release Agreement,” followed by a signature line. (See

id.; Def.’s Mot. for Summ. J., Doc. N o . 44-2, at 3.) The first

two paragraphs acknowledge that the equipment renter accepts the

equipment “as is,” assumes financial responsibility for the

equipment for the duration of the rental period, and understands

that the binding system may not guarantee the renter’s safety.

The fourth paragraph affirms that the renter understands that a

helmet may further reduce the risk of injury. (See Pls.’ Mem. of

Law in Opp’n App. Equipment Rental Agreement, Doc. N o . 54-2, at

A1.) At issue here are paragraphs three, five, and six of this

third section, which state:

[3] I understand that the sports of skiing, snowboarding, snowshoeing, and other sports (collectively “RECREATIONAL SPORTS”) involve inherent and other risks of INJURY and DEATH. I voluntarily agree to expressly assume all risks of injury or death that may result from these RECREATIONAL SNOW SPORTS, or which relate in any way to the use of this equipment.

-5- [5] I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, affiliates, agents, officers, directors, and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or which is related in any way to the use of this equipment, including all liability which results from NEGLIGENCE of PROVIDERS, or any other person or cause.

[6] I further agree to defend and indemnify PROVIDERS for any loss or damage, including any that results from claims or lawsuits for personal injury, death, and property loss and damage related in any way to the use of this equipment.

(Id. (emphasis in original); Def.’s Mot. for Summ. J., Doc. N o .

44-2, at 3.) Dartmouth cites these paragraphs in its Motion for

Summary Judgment, arguing that the Release Agreement, signed by

Porter, is a valid and enforceable exculpatory contract that

relieves Dartmouth of any and all liability.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

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

56(c). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v .

-6- Catrett,

1 7 , 323 (1986). The burden then 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); see Celotex,

.

III. ANALYSIS

New Hampshire law generally prohibits exculpatory contracts,

including liability releases of the kind that Porter signed. See

Barnes v . New Hampshire Karting Ass’n,

0 2 , 106-07

(1986). Such contracts will be enforced, however, where (1) they

do not violate public policy, (2) the plaintiff understood the

import of the agreement or a reasonable person would have

understood the import of the agreement, and (3) the plaintiff’s

claims were within the contemplation of the parties when they

executed the contract. Dean v . MacDonald,

(2001) (quoting Barnes,

0 7 ) .

To determine whether a release meets prongs two and three of

this three-part test, New Hampshire courts examine whether the

release identifies with sufficient clarity the specific parties

being released as well as the types of claims that the agreement

-7- covers. See Barnes,

. A release’s terms are

strictly construed against the defendant, who must show that the

contract “clearly state[s] that the defendant is not responsible

for the consequences of his negligence” and demonstrate that the

plaintiff’s claims were “within the contemplation of the parties

at the time of the execution of the agreement.”

A release

agreement will be upheld only if its language “clearly and

specifically indicates the intent to release the defendant[] from

liability for personal injury caused by the defendant[]’s

negligence.” McGrath v . SNH Development, Inc.,

4 0 , 545

(2009) (emphasis added) (citing Dean

6 7 ) .

Dartmouth argues that the Release Agreement that Porter

signed when she rented her ski equipment bars Porter’s claims

under New Hampshire law. Plaintiffs counter, however, that the

release fails to state with sufficient clarity (1) that Dartmouth

was a party to the contract and is therefore released from

liability, and (2) that the release contemplated claims arising

from Dartmouth’s educational ski class.1

1 Because I determine that the Release Agreement does not meet the exacting clarity standard outlined by the New Hampshire Supreme Court, I need not consider whether a special relationship existed between Porter and Dartmouth that renders the Release Agreement unenforceable as a matter of public policy. See Barnes,

.

-8- A. The Release Agreement Does Not State with Sufficient Clarity that Dartmouth Is a Party to the Contract

An exculpatory contract need not specifically identify the

defendant by name. See Dean,

. However, the

contract must at least provide a functional identification of the

parties being released. See

The Release Agreement that

Porter signed neither specifically identifies Dartmouth by name

nor functions to place the equipment renter on notice that she is

relieving Dartmouth, and not merely Solomon, of liability.2

2 Dartmouth mistakenly relies upon Brush v . Jiminy Peak to support its position.

(D. Mass. 2009). While the facts in Brush bear some resemblance to those in the present case, the release signed by the plaintiff in that case stands in marked contrast to the Release Agreement signed by Porter. Brush, a student on the Middlebury College ski team, suffered severe injuries while participating in a collegiate ski race hosted by Williams College at Jiminy Peak. In that case, the court held that a United States Ski and Snowboard Association (USSA) release barred the plaintiff’s claims against her coach, race officials, and competing colleges. The court was careful to note, however, that the liability waiver “defined USSA quite expansively to encompass a host of individuals and groups including affiliates, volunteers, competition organizers, sponsors, coaches and representatives. It is clear that the list was meant to encompass anyone involved in running a competition sanctioned by the USSA.”

. It was also “undisputed” that the plaintiff knew that the Williams-hosted event was sanctioned by the USSA, and that the liability waiver therefore applied.

The Release Agreement that Porter signed, on the other hand, includes no definition of “equipment rental facility” whatsoever. (See Pls.’ Mem. of Law in Opp’n App. Equipment Rental Agreement, Doc. N o . 54-2, at A1.) Porter and her classmates, as novice skiers, would also have been less likely to understand the import of a liability release agreement, in contrast to an

-9- The Release Agreement appears to be nothing more than a

standard form agreement created by Solomon. The “Solomon” name

and logo appear prominently in the upper left hand corner of the

Release Agreement in large, capital letters, indicating that the

form was clearly intended to release the equipment manufacturer,

and not Dartmouth, from liability. Applying the Barnes standard

to the form’s contents, neither Porter nor a reasonable person in

Porter’s position would interpret the Release Agreement to be

anything more than the standard equipment manufacturer liability

release that all skiers are required to sign before rental

equipment is issued, whether at a public ski resort or at

Dartmouth Skiway. See Barnes,

. The title

“Equipment Rental & Liability Release Agreement” appears in bold,

capital letters above the text of the Release Agreement’s

substantive provisions, and the Release Agreement specifies that

the recipient accepts the “equipment” as i s , understands that the

“binding system” cannot be guaranteed, and specifically releases

the “equipment rental facility, its employees, owners,

experienced ski team member like Brush. Furthermore, the court’s determination in Brush rested upon Colorado law, not New Hampshire law. There is no indication that even the release in Brush would relieve the defendants of liability under the exacting New Hampshire Barnes standard that must be applied here.

-10- affiliates, agents, officers, directors and the equipment

manufacturers and distributors and their successors in interest

(collectively ‘PROVIDERS’).” (Pls.’ Mem. of Law in Opp’n App.

Equipment Rental Agreement, Doc. N o . 54-2, at A1) (emphasis

added). The term “equipment” appears thirteen times throughout

the Release Agreement. (See id.; Pls.’ Reply Mem. of Law in

Opp’n, Doc. N o . 6 5 , at 3.) This repeated emphasis on ski

equipment, with no mention of Dartmouth College, its affiliates,

or the Dartmouth Skiway facility, fails to place the equipment

renter on even functional notice that Dartmouth was in any way a

party to the Release Agreement.

Dartmouth nevertheless argues that it and its employees are

clearly released from liability because they qualify as

“PROVIDERS” under the Release Agreement. See Def.’s Mot. for

Summ. J., Doc. N o . 44-2, at 11.) To be released from liability,

Dartmouth must demonstrate that it is clearly a “PROVIDER[]” as

that term is read within the context of the entire Release

Agreement. See Wright v . Loon Mountain Recreation Corp.,

(1995) (holding that an exculpatory phrase did not

relieve the defendant tour company of liability for a tour

guide’s negligence when read within the context of the provisions

in the preceding paragraphs).

-11- The term “PROVIDERS” is defined in paragraph five of the

Equipment Rental & Liability Release Agreement as “the equipment

rental facility, its employees, owners, affiliates, agents,

officers, directors, and the equipment manufacturers and

distributors and their successors in interest.” (Pls.’ Mem. of

Law in Opp’n App. Equipment Rental Agreement, Doc. N o . 54-2, at

A1.) Dartmouth asserts in its Reply Memorandum that “there is no

entity, other than Dartmouth, that can reasonably be considered

the ‘equipment rental facility.’” (Def.’s Reply Mem. in Supp. of

Mot. for Summ. J., Doc. N o . 5 6 , at 4.) However, Dartmouth

provides absolutely no support for this proposition. Without

such support, I cannot conclude that a reasonable person in

Porter’s position would have understood that Dartmouth, rather

than some other entity with whom Dartmouth had contracted, was

the equipment rental facility.

B. The Release Agreement Does Not Insulate Dartmouth from Liability for Claims Arising from Ski Instruction

Even if Dartmouth was clearly and specifically identified by

name as a party to the Release Agreement, the Release Agreement

does not apply to the type of negligence claims asserted here.

New Hampshire law requires that a release call particular

attention to the type of negligence claims that are being

-12- released. See Audley v . Melton,

(1994). In

Audley, an exculpatory contract relieved a photographer and his

studio “of any or all liability” associated with working with

wild animals.

. The New Hampshire Supreme Court held,

however, that while the agreement insulated the defendant

photographer from liability for injuries inflicted by wild

animals, it failed to clearly state that the defendant was

relieved of liability for the consequences of his own negligence.

; McGrath,

. Thus, the agreement did

not release the photographer from liability for his failure to

take any precautionary action when he noticed that the

plaintiff’s hair was agitating a lion during a photo shoot. See

Audley,

; see also Gonzalez v . Univ. Sys. of N.H.,

N o . 451217,

8 8 , at *46 (Conn. Super. C t .

Jan. 2 8 , 2005)(finding that a liability release agreement failed

to release defendants, a state college and University System,

from liability where the agreement could be interpreted as

releasing cheerleading club members, other third parties, or the

plaintiff herself).

The language in the Release Agreement that Porter signed

similarly fails to relieve Dartmouth of liability for the

consequences of its ski instructors’ negligence. Although the

-13- Release Agreement relieves “PROVIDERS” from “all liability for

injury, death, property loss and damage which results from the

equipment user’s participation in the RECREATIONAL SNOW SPORTS

for which the equipment is provided,” the Release Agreement fails

to call any particular attention to the notion of releasing

“PROVIDERS” from liability for negligent ski instruction. (See

Pls.’ Mem. of Law in Opp’n App. Equipment Rental Agreement, Doc.

N o . 54-2, at A1.) Nowhere in the Release Agreement do the words

“instruction,” “lesson,” or “physical education” appear, nor does

any other term extend the scope of the Release Agreement to the

educational or instructional setting. The Release Agreement

therefore fails to “clearly state” that Dartmouth is released

from liability for negligence claims arising out of its

educational ski class, and a reasonable person would not

understand the Release Agreement to relieve Dartmouth of

liability in any educational or instructional context. See

Barnes,

. 3

3 Dartmouth’s extensive reliance upon Checket v . Tuthill Corporation is misplaced. N o . 99-1819, 2001 P a . Dist. & Cnty. LEXIS 460 (Pa. County C t . 2001), aff’d,

(Pa. Super. C t . 2002). Dartmouth attempts to draw parallels between the language in the Release Agreement that Porter signed and the language in the release upheld by the court in Checket to bolster its argument that the Release Agreement is both an equipment rental agreement and a liability release agreement. Even if the

-14- While the language of the release in Audley failed to

relieve the defendant of liability because it was too general, a

release’s language may also fail because it is too specific,

i.e., where certain classes of claims are released against

specific parties but the terms in the release fail to encompass

the claims at issue. See Wright,

. In Wright,

the court concluded that a reasonable person might understand an

exculpatory clause’s language to relate to the inherent dangers

of horseback riding and liability for injuries that occur for

that reason, but not to harm that results from a tour guide’s

failure to use reasonable care when handling his horse. McGrath,

(citing Wright,

7 0 ) . Here, a

reasonable person would likely interpret the Release Agreement as

limiting liability only with respect to claims that arise in the

Release Agreement at issue here does release other parties from certain types of negligence claims, there is no clear indication that Dartmouth is such a party, that the agreement is intended to release negligent instruction claims, or that the Release Agreement extends beyond the recreational snow sports context to encompass negligence claims arising from educational ski instruction. Furthermore, the agreement in Checket specifically and clearly asserted, in capital letters, that defendant “BLUE MOUNTAIN SKI AREA” was released from liability. In contrast, the Release Agreement that Porter signed fails to identify Dartmouth College, Dartmouth Skiway, or its affiliates or employees as parties to the Release Agreement. (See Pls.’ Mem. of Law in Opp’n App. Equipment Rental Agreement, Doc. N o . 54-2, at A1.)

-15- recreational setting, not where education or instruction is being

provided. The term “RECREATIONAL SNOW SPORTS” appears in bold,

capital letters four times in the Release Agreement, indicating

that the form was drafted by Solomon to release it from liability

for equipment-related accidents occurring at public ski areas,

not to insulate Dartmouth from negligence claims arising from its

educational ski class. (See Pls.’ Mem. of Law in Opp’n App.

Equipment Rental Agreement, Doc. N o . 54-2, at A 1 ; Pls.’ Reply

Mem. of Law in Opp’n, Doc. N o . 6 5 , at 3.)

Furthermore, as Dartmouth itself acknowledges, only those

students who rented ski equipment were required to sign the

Release Agreement. (See Def.’s Mot. for Summ. J., Doc. N o . 44-2,

at 2-3.) If the Release Agreement was intended to relieve

Dartmouth of liability for the negligent acts of its ski

instructors, and not merely to insulate the ski manufacturer and

rental facility from claims pertaining to the rental of ski

equipment, surely all students would have been required to sign a

liability release. Indeed, Dartmouth had secured waivers from

all students enrolled in other physical education classes that

expressly released Dartmouth from liability. (See Pls.’ Mem. of

Law in Opp’n, Doc. N o . 54-2, at 3-4.) Had Dartmouth sought to

immunize itself from all liability arising from its educational

-16- ski class, it could have drafted such a waiver, and it could have

required all students, not merely those who rented ski equipment,

to sign i t .

IV. CONCLUSION

For the foregoing reasons, I deny Dartmouth’s motion for

summary judgment (Doc. N o . 4 4 ) .

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

September 3 0 , 2009

cc: Bradford T . Atwood, Esq. K. William Clauson, Esq. Kevin Murphy, Esq. Matthew R. Johnson, Esq. Thomas B.S. Quarles, Jr., Esq. Charles J. Raubicheck, Esq.

-17-