UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Adriana Serna and Charlie Serna

v. Civil No. 14-cv-049-JD Opinion No.

Lafayette Nordic Village, Inc., et al.

O R D E R

While on visiting friends in New Hampshire, Adriana Serna

went skating at Nestlenook Farm and Resort (“Nestlenook”) and

was injured when she fell while walking to the warming gazebo.

Adriana and her husband, Charlie Serna, brought suit against the

owners and operators of Nestlenook, alleging that the defendants

were negligent in maintaining the path and failing to warn of

dangers, that they were negligent in training and supervising

the staff at Nestlenook, and that their negligence caused

Adriana’s fall and Charlie Serna’s loss of consortium. The

defendants move for summary judgment on the ground that the

release Adriana signed bars her claims.

Standard of Review

Summary judgment is appropriate when “the movant shows that

there is 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); Santangelo v. New York Life Ins. Co.,

(1st Cir. 2015). “A genuine issue is one that can be

resolved in favor of either party, and a material fact is one

which has the potential of affecting the outcome of the case.”

Jakobiec v. Merrill Lynch Life Ins. Co.,

(1st

Cir. 2013) (internal quotation marks omitted). In deciding a

motion for summary judgment, the court draws all reasonable

factual inferences in favor of the nonmovant. Kenney v. Floyd,

(1st Cir. 2012).

Background

On February 28, 2011, Adriana went to Nestlenook with her

friend and former employer, Melissa Rigazio, Melissa’s

daughters, and a friend of one of the daughters. Adriana and

the girls rented ice skates to use on Nestlenook’s skating pond.

Nestlenook provided a warming gazebo near the skating pond

where renters changed into and out of their skates. The route

between the gazebo and the pond consisted of a six-foot portion

covered by rubber mats followed by a set of stairs.

The form for renting skates at Nestlenook included a

release of liability on the reverse side. As part of renting

the skates, Adriana signed the rental form.

After skating, Adriana walked from the pond up the stairs

to the path that led to the warming gazebo. At the top of the

stairs, Adriana stepped onto a rubber mat that had been placed 2 on the path, which she contends was icy and buckled. There was

no hand rail. She took several steps and then slipped and fell,

injuring her ankle, which later required surgery.

The Sernas filed suit against Lafayette Nordic Village,

Inc., Olde Jackson Village, Inc., and Robert Cyr as the owners

and operators of Nestlenook. They alleged claims of negligence,

Count I; negligent training and supervision, Count II; and loss

of consortium, Count III. Lafayette Nordic Village, Inc. has

been dismissed from the action by stipulation.

Discussion

The defendants contend that the release on the rental form

is enforceable against Adriana and bars her claims against them.

Alternatively, the defendants argue that even if the release

does not bar all of the claims, it bars any claim arising out of

their negligence in the installation, maintenance, selection,

adjustment, and use of the rented skates. The plaintiffs argue

that the release does not bar their claims.

“In New Hampshire, exculpatory contracts are generally

prohibited.” Barnes v. N.H. Karting Ass’n,

(1986). Despite the breadth of the general rule, the New

Hampshire Supreme Court has established a significant exception

when exculpatory contracts, including releases of liability,

“(1)[] do not violate public policy; (2) the plaintiff

3 understood the import of the agreement or a reasonable person in

his position 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.” McGrath v. SNH

Dev., Inc.,

(2009); accord Jenks v. N.H. Motor

Speedway, Inc.,

, at *3 (D.N.H. Mar. 3, 2010). If

the release does not violate public policy, the court must

decide whether the release clearly identifies which parties are

shielded from liability and the types of claims that are barred.

See Porter v. Dartmouth College,

, at *3 (D.N.H.

Sept. 30, 2009) (citing Barnes,

).

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.” Barnes,

. A special relationship exists when “the

defendant is a common carrier, innkeeper or public utility, or

is otherwise charged with a duty of public service.”

In

addition, a release may be against 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.” McGrath,

.

4 The plaintiffs argue, briefly, that because the defendants

are innkeepers the release violates public policy. Whether or

not the defendants are innkeepers, the release did not pertain

to the usual activities of running an inn. In fact, the

plaintiffs were not staying at the inn at Nestlenook, and they

assert that the inn was closed for the winter when the accident

happened.

The release was part of a rental form for ice skates. Like

snowboarding and kart racing, skating is not an activity “of

such great importance or necessity to the public that it creates

a special relationship.” McGrath,

. For similar

reasons, the single opportunity to ice skate at Nestlenook did

not create a disparity in bargaining power that implicates

public policy.

Therefore, the release does not violate

public policy.

B. Meaning of the Release

The defendants contend that a reasonable person would have

understood that the release applied to liability of Nestlenook

for all negligence and specifically to liability arising from

the use of the skates. They also contend that Adriana assumed

the risks of skating. The plaintiffs argue that neither Adriana

nor a reasonable person in her position would have understood

that the rental form included a release because she was not

5 given an opportunity to read it and because the release does not

state that it applies to Nestlenooks’ negligence in constructing

and maintaining the premises and in training and supervising its

staff.

1. Opportunity to Read the Release

The plaintiffs argue that Adriana did not understand and

that no reasonable person in her position would have understood

that she had signed a release of Nestlenook’s liability. They

assert that Adriana did not have a chance to read the release

because the Nestlenook employee who rented the skates to her

“appeared to be in a hurry” and because Adriana was not aware

that the rental form she signed was a release. They also argue

that the rental form did not clearly show that it was release of

the defendants’ liability.

A plaintiff’s failure to read a release “does not preclude

enforcement of the release.” Barnes,

. As long

as the plaintiff had an opportunity to read the release, despite

the defendant’s employees hurrying to complete the transaction,

the plaintiff’s failure to do so does not bar the release. Id.;

cf. Jenks v. N.H. Motor Speedway, Inc.,

, at *3-*4

(D.N.H. Mar. 3, 2010) (material factual dispute existed as to

whether plaintiff had opportunity to read release where

6 plaintiff put his name on a sign-up sheet and release may have

been obscured).

In this case, the release was printed on the back of the

rental form. The Nestlenook employee who rented the skates to

Adriana completed the form, including the sizes and numbers of

the skates rented and the date. Adriana signed the form on the

front.

Just above the signature line is the following statement:

“I have read the agreement on the back of the form, releasing

the inn from liability. I voluntarily agree to the terms of

that agreement.” The agreement referred to is the release on

the back, which is comprised of seven paragraphs and signature

and date lines.

Although Adriana did not also sign the release on the back

of the form, she signed on the front and in doing so, she agreed

to the release on the back. Nothing in the circumstances

Adriana describes shows that she did not have an opportunity to

read the release. Therefore, her failure to read the release

that was provided to her does not preclude enforcement. See,

e.g., Dean v. MacDonald,

(2001).

The plaintiffs also argue that the lease is unenforceable

because it refers to the Inn rather than to Nestlenook. They

contend that because the Inn was closed at the time neither

Adriana nor a reasonable person in her position would have 7 understood who was released from liability. In this case, a

reasonable person would have understood that the Inn encompassed

Nestlenook and functionally referred to the entity providing the

skates and access to the pond.1 See Dean,

; cf.

Porter v. Dartmouth College,

, at *3 (D.N.H.

Sept. 30, 2009) (release was form provided by ski manufacturer

as to its liability and did not release the owner of the ski

area).

3. Scope of the Release

The plaintiffs contend that if the release is enforceable

it applies only to the defendants’ negligence in renting the

skates and to the activity of skating on the pond. Based on

that limitation, the plaintiffs argue that the release does not

bar their claims that allege negligence in constructing and

maintaining the path, failing to warn of dangers on the path,

and failing to properly train and supervise employees to

maintain the premises. The defendants argue that because

Adriana fell while wearing the rented skates and walking from

1 Although the plaintiff’s counsel states in an affidavit that the Inn was closed at the time of Adriana’s injury, the plaintiffs provide no evidence that Adriana knew the Inn was closed or that a reasonable person would have known that. In addition, paragraph 6 of the release states: “I hereby release the Inn and its owners, agents and employees from any and all liability for damage . . . ,” which applies to parties other than the Inn. (Emphasis added.) 8 the skating pond, the release bars all of her claims.

Alternatively, the defendants seek to bar the claims to the

extent they arise from their negligence related to the skates.

The scope of the release depends on the language used in

the release. McGrath,

. To be enforceable, a

release must “‘clearly and specifically indicate[] the intent to

release the defendant from liability for personal injury caused

by the defendant’s negligence.’” Wright v. Loon Mountain

Recreation Corp.,

(2995) (quoting Barnes,

). The language used is given “its common meaning”

and the agreement is given “the meaning that would be attached

to it by a reasonable person.” McGrath,

(internal quotation marks omitted).

Pertinent to the plaintiffs’ claims in this case, the

release on the back of the skate rental form provides: “I

understand that there are inherent and other risks involved in

the sport for which this equipment is to be used and that

injuries are a common and ordinary occurrence of the sport, and

I freely assume those risks.” The release also states that the

signer “hereby release[s] the Inn and its owners, agents and

employees from any and all liability for damage to [the signer]

. . . resulting from negligence: installation, maintenance, the

selection, adjustment and use of the equipment, accepting myself

9 the full responsibility for any and all such damage or injury

which may result.”

Taken in the context of the entire release form and the

rental agreement, the provision in which the renter assumes

responsibility for inherent risks is reasonably interpreted to

mean risks inherent in the sport of skating. The provision that

releases liability for negligence is limited to negligence for

the specific actions listed. As such, that provision is

reasonably interpreted to pertain to the liability for

negligence in providing the rented equipment, that is the ice

skates. Cf. McGrath,

(release at a ski area

applied to negligence in using a snowmobile because it released

defendant “from any and all liability for personal injury or

property damage which results in any way from negligence”

without any limitation).

Adriana was wearing skates when she fell, but she was

walking to the gazebo, not skating on the pond. Because of

Nestlenook’s arrangement of providing the warming gazebo for

skaters to change their footwear which was accessible only by

the path to the pond, skaters had to walk in their skates from

the pond to the gazebo. The defendants have not shown that

Adriana was engaged in the sport of skating when she fell.

The plaintiffs allege that the defendants were negligent in

constructing and maintaining the rubber mat portion of the path, 10 in failing to protect their patrons and to warn of dangers on

the path, and in training and supervising their employees to

properly maintain the path. Although the plaintiffs appear to

criticize the skates provided to Adriana in the fact portion of

their complaint, their claims do not allege negligence in

providing the skates or in maintaining the skating pond.

Therefore, the defendants have not shown that the release bars

the plaintiffs’ claims.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document no. 13) is denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

July 16, 2015

cc: Stephen E. Borofsky, Esq. David S. Brown, Esq. Paul B. Kleinman, Esq. Danielle L. Santuccio, Esq.

11