Hanus, et al. v. Loon Mountain, et al CV-13-44-JL 4/16/14

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Susan Hanus and Michael Hanus, individually and as the Parents and Next Friends of M.H. and J.H.

v. Civil No. 13-CV-44-JL Opinion No.

Loon Mountain Recreation Corp., Boyne USA, Inc., and Scott Patterson

MEMORANDUM ORDER

Every winter, thousands of skiers and snowboarders journey

to the slopes of New Hampshire's ski areas from locations both

far and near. Like many states with a robust ski industry. New

Hampshire has enacted a statute--the "Skiers, Ski Area and

Passenger Tramway Safety" law,

-A:l et

seq. (the "Ski Statute") that limits those areas' liability to

their visitors. In particular, the Ski Statute 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 [a ski

area] operator for any injuries which result from such inherent

risks, dangers, or hazards."

-A:24, I.

The question presented in this case is the extent to which this

provision immunizes ski areas from liability for skier-to-skier

collisions caused by their employees. Plaintiffs Susan and Michael Hanus have sued Loon Mountain

Recreation Corporation ("LMRC") and Boyne USA, Inc., the

operators of one of New Hampshire's ski areas. Loon Mountain

Resort, for injuries the plaintiffs' minor son suffered while

skiing. Those injuries arose from an on-trail collision between

the boy and a Loon Mountain employee who, the plaintiffs allege,

"ducked under a rope marking a permanently closed section of the

trail" immediately before the collision. LMRC and Boyne have

moved to dismiss the plaintiffs' claims against them, arguing

that § 225-A:24, I--which expressly identifies "collisions with

other skiers or other persons" as one of the "inherent risks,

dangers, or hazards" of skiing--bars those claims. See Fed. R.

Civ. P . 12(c).1

This court has jurisdiction under

(a) (1)

(diversity), because the plaintiffs are Massachusetts citizens,

the defendants are citizens of New Hampshire and Michigan, and

the amount in controversy exceeds $75,000. After careful

consideration, the court grants the defendants' motion. The

plaintiffs have gamely attempted to pry this suit from the

1The defendants' motion relies upon Federal Rule of Civil Procedure 12(b)(6), but, because the defendants answered the complaint before moving to dismiss it, the court treats the motion as one for judgment on the pleadings under Rule 12(c)--a "largely academic" distinction since Rules 12(b)(6) and 12(c) "impose identical standards." Holder v. Town of Newton,

, 152 n.l (D.N.H. 2009); see also Part I, infra.

2 clutches of the Ski Statute's ski area immunity provision by

arguing that the provision does not apply where, as here, the

suit arises out of injuries caused by a ski area employee who

fails to observe the responsibilities the Ski Statute imposes on

skiers. This argument, however, cannot be reconciled with the

broad language of the statute itself, nor with the case law

interpreting it. Plaintiffs' claims against LMRC and Boyne must

be dismissed.

I. Applicable legal standard

A motion for judgment on the pleadings under Rule 1 2 (c) is

evaluated under essentially the same standard as a Rule 12(b) (6)

motion to dismiss for failure to state a claim. See Simmons v.

Galvin,

(1st Cir. 2009). To survive such a

motion, the complaint must make factual allegations sufficient to

"state a claim to relief that is plausible on its face."

Ashcroft v. Igbal, 129 S. C t . 1937, 1949 (2009) (guoting Bell

Atl. Corp. v. Twombly,

(2007)). In ruling on

such a motion, the court must accept as true all well-pleaded

facts set forth in the complaint and must draw all reasonable

inferences in the plaintiff's favor. See, e.g., Martino v.

Forward Air, Inc.,

(1st Cir. 2010). The court "may

consider not only the complaint but also "facts extractable from

documentation annexed to or incorporated by reference in the

3 complaint and matters susceptible to judicial notice." Rederford

v. U.S. Airways, Inc.,

(1st Cir. 2009). With the

facts so construed, "questions of law [are] ripe for resolution

at the pleadings stage." Simmons,

. The following

background summary is consistent with that approach.

II. Background

On February 3, 2011, the plaintiffs' thirteen-year-old son,

was participating in a ski racing program at Loon

Mountain. Accompanied by his younger sister, "J.H.", and the

head coach for the program, M.H. had skied down the Rampasture

trail and was headed, via a crossing trail, to the Coolidge

Street trail, where he had helped set up a race course. At the

same time, Scott Patterson, a ski instructor employed at Loon

Mountain, was snowboarding down the Upper Northstar trail, which

intersects with the crossing trail on which M.H. was skiing.

As he approached the area where the two trails intersect,

Patterson, without stopping, ducked under a rope closing off a

section of the Upper Northstar trail2 and jumped a lip between

2The plaintiffs allege that this section of the Upper Northstar trail had been "permanently closed" since at least 2003. The defendants take issue with this characterization, arguing in their memorandum that "[t]here is no such thing as a 'permanently closed' ski trail under New Hampshire law." Memo, in Supp. of Mot. to Dismiss (document no. 28-1) at 3. Instead, the defendants assert. Loon Mountain had simply "put up a rope to delineate the intersections area" between the trails.

While

4 the trails. While Susan Hanus watched from her seat on a chair

lift above, Patterson struck M.H. in close proximity to J.H. As

a result of the collision, M.H. suffered severe injuries,

including a concussion and fractured bones in his right arm and

leg.

The plaintiffs filed this action against LMRC and Patterson,

and shortly thereafter, amended their complaint to add Boyne as a

defendant. As amended, the complaint alleges claims against LMRC

and Boyne for negligent supervision, negligent operation of a ski

area, gross negligence, and respondeat superior; claims against

Patterson for negligence and gross negligence; and a claim

against all three defendants for negligent infliction of

emotional distress. LMRC and Boyne, after answering the

complaint, filed the motion at bar. (Patterson has not yet filed

any motion seeking to dispose of the claims against him.)

Ill. Analysis

The Ski Statute "recogniz[es] that the sport of skiing and

other ski area activities involve risks and hazards which must be

that may in fact be the case, this court is bound to accept as true the facts pleaded by the plaintiffs, see Martino,

, and the plaintiffs have at the very least pleaded that the section of trail in guestion was closed at the time. Whether the closure was temporary or permanent (and whether a trail can be "permanently closed" under the law of this state) is immaterial to the court's analysis of the defendants' motion.

5 assumed as a matter of law by those engaging in such activities.

regardless of all safety measures taken by the ski area

operators."

-A:l. Accordingly, the

statute--as noted at the outset--contains an immunity provision

for ski area operators, providing that:

Each 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. The categories of such risks, hazards, or dangers which the skier or passenger assumes as a matter of law include but are not limited to . . . collisions with other skiers or other persons . . . .

§ 225-A:24, I. As interpreted by the New Hampshire Supreme

Court, this provision "mean[s] that a ski area operator owes its

patrons no duty to protect them from inherent risks of skiing, "

and, "[t ]o the extent that a skier's injury is caused by an

inherent risk of skiing, the skier may not recover from the ski

area operator." Nutbrown v. Mount Cranmore, Inc.,

(1996).

The guestion presented by the defendants' motion concerns

the scope of this provision, which "supersede[s] and replace[s] a

skier's common law remedies for risks inherent in the sport of

skiing." Cecere v. Loon Mtn. Rec. Corp.,

(2007) (guoting Sweeney v. Ragged Mtn. Ski Area,

(2004)). LMRC and Boyne argue that, because the plaintiffs

6 seek to recover for injuries resulting from a collision with

another "skier,"3 specifically identified by the statute as one

of the inherent risks of skiing, this action falls sguarely

within the provision--irrespective of Patterson's status as a

Loon Mountain employee--and is therefore barred. The plaintiffs,

for their part, concede that "under ordinary circumstances," a

skier-to-skier collision would constitute an inherent risk of

skiing for which they could not recover. Opp. to Mot. to Dismiss

(document no. 30) at 7. They argue, however, that Patterson's

collision with M.H. "was not an inherent risk of skiing because

Patterson violated the Ski Statute by ducking under a rope and

traversing across a delineated, closed-off trail boundary." Id.

at 2; see also id. at 5. LMRC and Boyne have the better

argument.

Insofar as the Ski Statute provides ski area operators with

an immunity limiting plaintiffs' common-law rights, it must be

"strictly construed." Cecere,

(recognizing the

3It is true that, at the time of the collision, Patterson was snowboarding, and there are some differences between skiers and snowboarders: in general, "[s]kiers view snowboarders as a menace," while "snowboarders view skiers as Elmer Fudd." Dave Barry, Snow Immobile, Wash. Post, Feb. 12, 1995, at W40. Despite his preferred mode of descent, Patterson is considered a "skier" under the Ski Statute. See

-A:2, IX (defining "skier" as "a person utilizing the ski area . . . for ski, snowboard, and snow tube recreation and competition"); Cecere,

.

7 canons of statutory interpretation requiring narrow construction

of immunity provisions and statutes in derogation of the common

law). Nonetheless, in interpreting the Ski Statute, this court

applies the ordinary tools of statutory construction, "first

examin[ing] the language of the statute, and, where possible,

. . . ascrib[ing] the plain and ordinary meanings to the words

used."

Here, the "plain and ordinary meaning" of the ski

area immunity provision could hardly be clearer: it identifies

"collisions with other skiers or other persons" as one of the

"risks, dangers, or hazards which the skier . . . assumes as a

matter of law." It makes no exception for collisions with skiers

who are violating the Ski Statute, nor does it except collisions

with ski area employees, even when those employees are themselves

violating the Ski Statute or otherwise conducting themselves in a

negligent or reckless fashion.

There may well be good reasons for the New Hampshire General

Court to exclude those types of collisions from the inherent

risks of skiing identified in the statute. But, though the

General Court undoubtedly could have done so, it did not, and

"where, as here, a statute's language is plain and unambiguous,

the court . . . will not consider what the legislature might have

said or add language that the legislature did not see fit to

include." Dennis v. Town of Loudon,

(quoting

8 Cloutier v. City of Berlin,

(2006)) (internal

quotation marks and alterations omitted). And, in any event, it

is entirely unsurprising that such exceptions are absent from the

statute. As the California Court of Appeal observed in a similar

case when concluding that the plaintiff's claims were barred by

the common-law doctrine of primary assumption of the risk (upon

which the Ski Statute's ski area immunity provision is based, see

Nutbrown,

):

[T]he inherent risks of injury from skiing down a snow covered mountain include accidentally careless conduct by other skiers resulting in collisions. This risk is so inherent and obvious it goes without saying plaintiff assumed the risk no matter who the other skiers may be. . . . [The defendant ski area's] act of employing [the employee who caused the injury] and requiring him to be on the slope did not increase the risk of injury inherent in skiing.

Towns v. Davidson, 147 Cal. Ap p . 4th 461, 469-70 (2007). So too

here. The mere fact that M.H. collided with a ski area employee

who was behaving negligently or recklessly does not remove the

collision from the realm of skiing's inherent risks, at least as

far as the statutory language is concerned.

In an effort to escape this conclusion,the plaintiffs point

to case law holding that the Ski Statute does not grant immunity

"to ski area operators who breach a statutorily imposed safety

responsibility." Rayeski v. Gunstock Area,

(2001) (citing Nutbrown,

). Section 225-A:24, the

9 plaintiffs note, imposes several safety responsibilities on

skiers, which, they say, Patterson breached by his conduct:

• § 225-A:24, III provides that "[e]ach skier . . . shall conduct himself or herself, within the limits of his or her own ability, maintain control of his or her speed and course at all times both on the ground and in the air, while skiing, snowboarding, snow tubing, and snowshoeing heed all posted warnings, and refrain from acting in a manner which may cause or contribute to the injury of himself, herself, or others";

• § 225-A:24, V(c) provides that no skier shall "[e]ngage in any type of conduct which will contribute to cause injury to any other person"; and

• § 225-A:24, V(g) provides that no skier shall "[s]ki or otherwise access terrain outside open and designated ski trails and slopes or beyond ski area boundaries without written permission of said operator or designee."

The plaintiffs maintain that because (in their view) Patterson

breached these responsibilities during the scope of his

employment at Loon Mountain, LMRC and Boyne may be held

vicariously liable for his breaches under the rule noted in the

Nutbrown line of cases.

The plaintiffs, however, misread those cases. As the New

Hampshire Supreme Court explained nearly 50 years ago, the Ski

Statute "confers a right of action if the operator is in

violation of the statute which imposes duties by way of

classifying slopes and trails and notices of closed trails and

trails on which maintenance crews are working." Adie v. Temple

Mtn. Ski Area, Inc.,

(1968) (emphasis added).

10 It is those duties, which are found in

-A:23, to which the court in Nutbrown was referring when it

held that a ski area operator could be held liable for a breach

of its statutory duties--not to the duties imposed on individual

skiers by § 225-A:24. See Nutbrown,

. In

the words of another judge of this court, "the legislature has

specified the responsibilities of ski area operators in

-A:23 and the responsibilities of skiers . . . in

-A:24," and the immunity provision in

§ 225-A:24, I "does not relieve ski area operators of liability

for injuries caused by a violation of their statutory duties

under

-A:23."4 Gwyn v. Loon Mtn.

Corp.,

(Barbadoro, J.) (emphasis added).

Plaintiffs have cited, and this court has found, no case law

holding that a ski area operator may be held liable for its

employees' breach of the responsibilities set forth in § 225-

A :2 4 .

In arguing that LMRC and Boyne may be held liable for

Patterson's breach of those responsibilities, then, the

plaintiffs are inviting the court to recognize a basis for

liability that finds no footing in either the language of the Ski

4Tellingly, although the plaintiffs guote this sentence from Gwyn in their memorandum, they have chosen to omit the emphasized segment. See Opp. to Mot. to Dismiss (document no. 30) at 6.

11 Statute or the case law interpreting it--and which is, in fact,

contrary to the plain language of the statute. As another judge

of this court observed when urged to recognize a novel exception

to the Ski Statute's ski area immunity provision, "plaintiffs who

select a federal forum in preference to an available state forum

may not expect the federal court to steer state law into

unprecedented configurations." Payzant v. Loon Mtn. Rec. Corp.,

No. 94-cv-164, slip op. at 4 n.2 (D.N.H. Nov. 15, 1995)

(Barbadoro, J.) (guoting Federico v. Order of Saint Benedict in

R. I ., 64 F .3d 1, 4 (1st Cir. 1995)).

Even if this court had license to do that, though, it is

doubtful that it could exercise that power in this case. As LMRC

and Boyne point out in their reply memorandum, our Court of

Appeals has specifically declined to hold a ski area operator

liable for its employees' alleged violation of the duties imposed

by § 225-A:24. Berninger v. Meadow Green-Wildcat Corp.,

(1st Cir. 1991). While the decision in Berninger was

based primarily upon the court's interpretation of a single

phrase in a subsection of § 225-A:24, its admonition that the

class of individuals governed by § 225-A:24 "does not include a

ski operator or its employees," id. at 9, sweeps substantially

more broadly than that. "[UJnless and until" the New Hampshire

Supreme Court "has addressed a pertinent state law issue, a

12 federal district court is bound by First Circuit precedent" on

that issue. Vertex Surgical, Inc. v. Paradigm Biodevices, Inc.,

, 231 n.3 (D. Mass. 2009) (citing Esguire,

Inc. v. Esquire Slipper Mfg. Co.,

(1st Cir.

1957)). This court, then, cannot simply disregard Berninger,

unless an intervening decision of the New Hampshire Supreme Court

has reached a contrary conclusion--and, as just noted, plaintiffs

have identified, and the court has located, no such decision.

(Indeed, although LMRC and Boyne discuss Berninger in their reply

memorandum--and although the court granted the plaintiffs leave

to file a surreply, see Order of Oct. 30, 2013--the plaintiffs

made no attempt to reconcile their position with that case until

oral argument.)

For the foregoing reasons, the court concludes that M.H.'s

collision with Patterson was an "inherent risk, danger, or

hazard" of skiing, despite Patterson's alleged violation of the

responsibilities set forth in § 225-A:24. The court is

sympathetic to the plaintiffs and their son; the collision was

unfortunate and undoubtedly frustrating in that it was caused by

a Loon Mountain employee. Because the plaintiffs' injuries

resulted from an inherent risk of skiing, however, they "may not

maintain an action against" LMRC or Boyne to recover for those

13 injuries.

-A:24, I; see also Nutbrown,

; Cecere,

.5

IV. Conclusion

For the reasons set forth above, the defendants' motion to

dismiss the plaintiffs' claims against them6 is GRANTED. The

5A s a final aside, the court notes that the plaintiffs rely upon several extrajurisdictional cases in opposing the motion to dismiss. See Opp. to Mot. to Dismiss (document no. 30) at 9-10) (citing Rusnak v. Walker,

(2006); dagger v. Mohawk Mtn. Ski Area, Inc.,

(2004); Clover v. Snowbird Ski Resort,

(Utah 1991)). Those cases do not affect this court's ruling, for the following reasons: • In the Rusnak case, the plaintiff did not seek to recover from a ski area, but from a fellow skier, so the court never had occasion to discuss the scope of ski area liability under Michigan's version of the Ski Statute (which, in any event, differs from the New Hampshire law). • The result in the dagger case was based upon an exemption from the Connecticut Ski Statute's ski area immunity provision that does not exist in the New Hampshire law. That exemption denies ski area operators immunity for injuries "proximately caused by the negligent operation of the ski area by the ski area operator, his agents, or employees." See dagger,

n.4 (guoting

). Indeed, the dagger court itself noted this critical difference in rendering its opinion. See

at 696 n.20 (distinguishing

-A). • While the Clover case is arguably more apposite than either of the other cases upon which the plaintiffs rely, the court finds it unpersuasive for the reasons discussed in Glover v. Vail Corp.,

(D. Colo. 1997) (Babcock, d.), aff'd ,

. This court cannot improve upon the analysis of the district court in that case, and adopts it wholesale.

6Document no. 28.

14 plaintiffs' claims against Patterson remain pending, as do the

counterclaims against the plaintiffs by LMRC and Boyne.

SO ORDERED.

Jo/eph N. Laplante Urfited States District Judge

Dated: April 16, 2014

cc: Eric B. Goldberg, Esg. Michael B. Cosentino, Esg. Susan D. Novins, Esg. Mark D. Wiseman, Esg. Thomas B.S. Quarles, Jr., Esg. Leigh S. Willey, Esg. Margaret A. O'Brien, Esg. Kevin C. Devine, Esg.

15