UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jennifer Lizzol; Michael Lizzol; and T.G., Plaintiffs

v. Case No. 15-cv-100-SM Opinion No.

Brothers Property Management Corporation; Out Back Kayak, Inc. OBK; and Martin Welch, Defendants

O R D E R

Plaintiffs have filed a motion to amend or alter the

judgment that was entered dismissing their negligence claims,

based on contractual waivers they signed. See Fed. R. Civ. P.

59(e). The seriousness of plaintiffs’ injuries and the

negligent conduct described in the complaint understandably move

counsel to seek some way around the negligence waiver principles

established in McGrath v. SNH Development, Inc.,

(2009). But there is no avoiding them in this case. New

Hampshire law applies and it is not ambiguous. Having carefully

considered plaintiffs’ motion, the court is constrained to deny

it. Background

This case turns on the enforceability of contractual

waivers of negligence claims that plaintiffs executed prior to

participating in a guided snowmobile tour. During the tour

plaintiffs’ snowmobile crashed, causing them serious injuries.

Defendants moved for summary judgment, asserting that

plaintiffs’ claims - all of which sound in negligence - are

barred by the waivers they executed. In opposing defendants’

motion, plaintiffs advanced five arguments:

(A) the Release does not apply to claims arising from negligent instruction or guidance on the trails; (B) the Release does not state with sufficient clarity that OBK is a party to the contract; (C) the Release is not enforceable against Jennifer Lizzol because she did not properly sign the contract; (D) the Release is unenforceable because it violates public policy; and (E) the Release is invalid because plaintiffs were fraudulently induced to sign.

Plaintiffs’ Objection to Summary Judgment (document no. 28-1) at

4. By prior order (document no. 30), the court addressed and

rejected each of plaintiffs’ arguments, concluding that: the

Release was sufficiently broad to cover defendants’ allegedly

negligent instruction and guidance, id. at 7-11; the Release

does apply to OBK, id. at 12-15; Jennifer Lizzol’s “failure to

initial certain paragraphs of the Release does not preclude its

enforcement” against her, id. at 15; the Release is not

unenforceable on grounds that it violates public policy, id. at

2 20-22; and “the plaintiffs have not sufficiently established

fraud in the inducement,” id. at 22. Accordingly, the court

granted defendants’ motion for summary judgment.

In their motion to alter or amend judgment, plaintiffs

assert that the court misapprehended their argument that the

contractual waivers of negligence claims are unenforceable on

public policy grounds. As a consequence, say plaintiffs, the

court erred as a matter of law in granting defendants’ motion

for summary judgment. The court disagrees.

Standard of Review

As the court of appeals has repeatedly noted, Rule 59(e) is

“an extraordinary remedy which should be used sparingly.”

Palmer v. Champion Mortg.,

(1st Cir. 2006)

(citations omitted). A Rule 59(e) motion “does not provide a

vehicle for a party to undo its own procedural failures or to

introduce new evidence or advance arguments that could and

should have been presented to the district court prior to

judgment.” Quality Cleaning Prods. R.C. v. SCA Tissue N. Am.,

LLC,

(1st Cir. 2015) (citations and internal

punctuation omitted). Consequently, this court may grant a

motion to amend judgment only “if the original judgment

evidenced a manifest error of law, if there is newly discovered

3 evidence, or in certain other narrow situations.” Glob. NAPs,

Inc. v. Verizon New England, Inc.,

(1st Cir.

2007) (citations omitted).

Here, as noted above, plaintiffs assert the court committed

a manifest error of law in construing New Hampshire law to

permit enforcement of their contractual waivers of negligence

claims. Although it is not entirely clear that each of the

plaintiffs’ arguments advanced on reconsideration was fairly

presented in opposition to summary judgment, the court will

address them nonetheless.

Discussion

While it may sometimes operate in ways that are harsh, and

differently from the rule in other states, New Hampshire’s law

on exculpatory contracts is clear: written contracts waiving

negligence claims are enforceable if those contracts do not

violate public policy, a reasonable person would understand the

impact of the waiver, and the asserted claims fall within the

contemplation of the parties when they executed the waiver.

McGrath,

. As the court previously held, all of

those conditions are met in this case and the waivers are

enforceable under McGrath.

4 Plaintiffs’ memoranda are difficult to follow but they seem

to be positing different theories of avoidance than those

pressed in their opposition to summary judgment. On

reconsideration they seem to say that their instructor/guide

acted “recklessly” by providing inadequate instruction and

guidance on the snowmobile tour — riding well ahead of the

group, traveling at excessive speeds, and compelling them to

drive beyond their limited (novice) abilities in order to catch

up with him. That is, plaintiffs characterize defendants’

failure to adequately instruct in proper snowmobile operation,

their failure to properly guide the tour, and their failure to

“make a good faith effort” to insure their safety as

“recklessness” amounting to “bad faith.” Thus, say plaintiffs,

defendants breached the implied covenant of good faith and fair

dealing implied in every New Hampshire contract, so the

contract’s waiver of negligence provision should not be enforced

against them. Plaintiffs also add that the contractual waivers

are unenforceable because defendants’ bad faith contract

performance contravenes public policy and enforcement of such

waivers would place public safety at risk.

Plaintiffs’ general argument suffers from two basic flaws.

First, even construing their complaint (as well as the evidence

presented in opposition to summary judgment), in the light most

5 favorable to them, it does not fairly describe conduct on the

part of defendants that rises to the level of “recklessness” -

at least not of the sort that might render the contractual

negligence waivers unenforceable. And, second, even if

defendants had “recklessly” performed their obligations under

the parties’ contract, or even if they “failed to make a good

faith effort” to ensure plaintiffs’ safety, that fact would not,

under the circumstances of this case, constitute a breach of the

implied covenant of good faith and fair dealing. Nor would it

give rise to a basis for invalidating their contractual releases

on public policy grounds.

I. Plaintiffs’ Assertions of “Recklessness”

Plaintiffs readily concede that their complaint does not

assert an intentional tort claim. Nevertheless, they say both

the complaint and the evidence produced in opposition to summary

judgment reference facts from which it can plausibly be

concluded that their snowmobile instructor and guide acted

“recklessly.” There is, however, considerable doubt about that,

because plaintiffs’ description of his conduct is fairly

conventional. Plaintiffs plead, directly or implicitly, a lack

of care, lack of appropriate attention, inadequate supervision,

inadequate instruction, driving too fast, and going too far

ahead and leaving the group behind on the trail — all hallmarks

6 of negligence claims, but falling short of describing conduct

consistent with New Hampshire’s use of the term “reckless.”

The New Hampshire Supreme Court generally refers favorably

to the Restatement of Torts and has done so with respect to its

description of “reckless” conduct:

Under the Restatement [(Second) of Torts], § 500, at 587 (1965), conduct is “reckless” if it “would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such a risk is substantially greater than that which is necessary to make his conduct negligent.” Id. The conduct “must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.” Id. comment a at 588.

Boulter v. Eli & Besse Cohen Found.,

(2014).

Moreover, as the court noted in Thompson v. Forest,

(1992), a litigant’s characterization of conduct

as “wanton and reckless” is not particularly useful in

identifying the line separating negligence and intentional torts

because, “willful, wanton and reckless conduct may, or may not,

be the basis for a properly pleaded intentional tort.”

“Recklessness” as plaintiffs mean the term to be understood here

— equating to bad faith in contract performance — must, at a

minimum, describe conduct qualifying as an intentional tort

7 (i.e., more than negligence), that is, “where the known danger

ceases to be only a foreseeable risk which a reasonable person

would avoid, and becomes in the mind of the actor a substantial

certainty.”

(quoting W.P. Keeton, et al., Prosser and

Keeton on the Law of Torts § 8 (5th ed. 1984)). Otherwise,

negligent acts could invalidate a contract provision meant to

waive claims for those very acts of negligence, thereby

rendering such contractual waivers meaningless - something

plainly inconsistent with established New Hampshire law.

Whether conduct amounting to “recklessness” in contract

performance will operate to negate waivers of negligence under

New Hampshire law remains to be seen. But here, notwithstanding

the descriptive adjectives employed by plaintiffs, the facts and

allegations pled do not suggest that, in the mind of the

instructor/guide, there was “a substantial certainty” that

serious foreseeable harm would occur based on his conduct. And,

of course, plaintiffs do not allege the substantial certainty of

their injuries. See Thompson,

.

Even taken in the light most favorable to plaintiffs, the

facts pled and the evidence produced would not support a finding

that the guide’s conduct involved an unreasonable risk of

physical harm “substantially greater than is required for

8 ordinary negligence or that the risk was one involving an easily

perceptible danger of death or substantial physical harm.”

Boulter,

. That is, the record is not

susceptible to a construction that supports plaintiffs’

assertions of “reckless” conduct amounting to either an

intentional tort or a material breach of the parties’ contract.

Of course, it is possible that plaintiffs are using the

term “recklessness” to describe conduct that is something akin

to “grossly negligent,” but short of intentionally wrongful. If

that is their claim, it too fails. New Hampshire’s common law

does not recognize distinctions among varying degrees of

negligence. See, e.g., Barnes v. New Hampshire Karting Assn.,

(1986). Consequently, if plaintiffs are

using the term “reckless” to mean a particularly egregious form

of negligence, their argument is unavailing. See, e.g.,

DeCormier v. Harley-Davidson Motor Co. Group,

(Mo. 2014) (“While exculpatory agreements will be strictly

construed, this Court will enforce exculpatory agreements to

protect a party from liability for their own negligence. Ms.

DeCormier cannot avoid this rule by alleging Harley–Davidson and

Gateway were grossly negligent because Missouri courts do not

recognize degrees of negligence at common law.”) (citation

omitted).

9 The United States District Court for the District of

California has addressed issues similar to those advanced by

plaintiffs and its reasoning is instructive. In that case, as

here:

Plaintiffs also argue that Defendants “in bad faith breached the ‘waiver’ contract” and that Defendants’ “deliberate indifference, gross negligence, and reckless conduct represent a failure of consideration.” Both arguments fail. Plaintiffs provide no explanations for how negligent or reckless conduct which they allege occurred after they signed the release affects consideration, and the Court can see no connection. Nor do they identify how Defendants breached the contract. If Plaintiffs mean to say that Defendants’ negligence amounted to a breach of the release contract, such an argument is meritless. Negligence, and any injury which might result, is precisely that for which the contract releases Defendants.

R.H. v. Los Gatos Union School District,

(N.D. Calif. 2014) (citations omitted). So it

is in this case. It was not “reckless” or in “bad faith”

for defendants to have engaged in conduct expressly

permitted by plaintiffs’ releases. Again, the Los Gatos

opinion is helpful:

[B]ehavior which is authorized is not wrongful and, logically, cannot be the basis of a [negligence] action. “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward

10 him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone . . . The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” Prosser & Keeton, Torts (5th ed. 1984) § 68, at 480–481. By contractually agreeing to assume all the risks of participation on the Fisher wrestling team and by expressly releasing Defendants from liability for any injuries sustained in connection with participation on the team, Plaintiffs consented to certain acts or omissions by Defendants which might otherwise have constituted negligence.

Id. at 1171 (emphasis in original).

II. Good Faith and Fair Dealing.

As noted above, plaintiffs also assert that, by acting

“recklessly,” defendants breached the implied covenant of good

faith and fair dealing. Consequently, say plaintiffs’ their

contractual waivers are unenforceable. But, even if plaintiffs’

complaint had adequately pled facts from which one could

reasonably conclude that their instructor/guide acted

“recklessly,” such conduct would not - at least under the

circumstances of this case - constitute a breach of the implied

covenant of good faith and fair dealing.

The covenant of good faith and fair dealing implied in

every New Hampshire contract is a doctrine that is often

misunderstood and routinely (improperly) invoked as a general

11 equitable catch-all. Under New Hampshire common law, “[t]he

various implied good-faith obligations fall into three general

categories: (1) contract formation; (2) termination of at-will

employment agreements; and (3) limitation of discretion in

contractual performance.” J & M Lumber & Constr. Co. v.

Smyjunas,

(2011) (citation omitted). Here,

somewhat unhelpfully, plaintiffs point to the generally

understood principle that there “is an implied covenant in every

contractual relationship that the parties will carry out their

obligations in good faith.” Cloutier v. Great Atl. & Pac. Tea

Co.,

(1981). That is undeniable. However,

what is meant by “good faith” depends upon the context in which

it is invoked. See generally Centronics Corp. v. Genicom Corp.,

, 140–41 (1989) (discussing the difficulty of

defining “good faith” in the context of each of the three

categories of contract cases in which it arises).

It is, therefore, important to understand precisely how,

according to plaintiffs, defendants breached the implied

covenant of good faith and fair dealing. In this case,

plaintiffs invoke the third category of cases in which the

implied covenant of good faith is implicated: those situations

in which one party’s exercise of contractually-vested discretion

is subject to an implicit limitation in the performance of its

12 contractual obligations. See Plaintiffs’ Memorandum at 5 (“The

present case relates to the third category: contractual

performance.”). But, as the New Hampshire Supreme Court has

observed, that “third category is comparatively narrow.”

Livingston v. 18 Mile Point Drive, Ltd.,

(2009). Nevertheless, the court noted that, “its broader

function is to prohibit behavior inconsistent with the parties’

agreed-upon common purpose and justified expectations, as well

as with common standards of decency, fairness and

reasonableness.”

(citation and internal punctuation

omitted). In the context of this case, the implied covenant of

good faith and fair dealing serves to preclude one party from

exercising its contractually-vested discretion in a manner that

would “thwart a reasonable expectation of the other party, going

to the essence of the contract.” Centronics,

.

Critically, not every contract breach, however blatant or

extensive, constitutes a breach of the covenant of good faith

and fair dealing. Plaintiffs’ complaint does not assert that no

instruction was given, or that no tour guidance was provided.

Instead, they assert that their tour guide “did not make a good

faith effort in carrying out his duties as an instructor and

guide.” Plaintiff’s Memorandum (document no. 32-1) at 4. That,

in turn, say plaintiffs, constitutes a breach of the covenant of

13 good faith and fair dealing. It does not. Merely asserting

that their instructor failed to make a “good faith effort” to

uphold his obligations under the contract is not sufficient to

state a claim that he breached his obligations of good faith and

fair dealing by exercising contractually vested discretion in a

manner that thwarted a reasonable expectation of plaintiffs,

going to the essence of the contract. Here, the “essence” of

the contract was straight forward. Defendants offered

snowmobile lessons and a guided snowmobile tour in exchange for

both a fee and a release of all negligence claims that might

arise from plaintiffs’ participation in that recreational

activity.

Fundamentally, plaintiffs’ argument misconstrues New

Hampshire’s law on good faith and fair dealing. Contrary to

their suggestion, New Hampshire law does not impose a blanket

requirement upon every contracting party to make a “good faith

effort” to perform all of its contractually-assumed obligations.

Instead, as applied to contract performance, the implied

covenant of good faith and fair dealing serves as an implicit

limitation on one party’s contractually-vested discretion. See

Centronics,

(“Despite the variety of their fact

patterns, these cases illustrate a common rule: under an

agreement that appears by word or silence to invest one party

14 with a degree of discretion in performance sufficient to deprive

another party of a substantial proportion of the agreement’s

value, the parties’ intent to be bound by an enforceable

contract raises an implied obligation of good faith to observe

reasonable limits in exercising that discretion, consistent with

the parties’ purpose or purposes in contracting.”) (emphasis

supplied). Consequently, in order to prevail on a claim that a

defendant violated the covenant of good faith and fair dealing

in its performance of a contract, a plaintiff must demonstrate

the following:

1. The contract allows or confers upon the defendant a degree of discretion in the performance of its obligations tantamount to a power to deprive the plaintiff of a substantial proportion of the agreement’s value; and

2. The defendant’s exercise of that discretion exceeded the limits of reasonableness; and

3. The damages of which plaintiff complains were caused by defendant’s abuse of discretion.

See Centronics,

. When plaintiffs’ burden is

appropriately phrased, it is plain that their claims against

defendants do not properly invoke the covenant of good faith and

fair dealing. The contract at issue simply did not vest

defendants with a degree of discretion sufficient to deprive

plaintiffs of a substantial portion of the value of the

contract. Necessarily, then, defendants did not abuse that

15 (nonexistent) discretion. Simply claiming, without more, that

defendants did not act in “good faith” in carrying out their

contractual obligations is insufficient to invoke the covenant

of good faith and fair dealing as it relates to contract

performance.

When they executed the contractual waivers of negligence

claims, plaintiffs necessarily understood that they were

assuming a risk of serious injury arising out of their

participation in the snowmobiling activity and that such risk

included injury that might be caused by defendants’ negligent

acts. Their reasonable and justified expectations, then,

included an understanding that if they sustained injuries

because one or more defendants was negligent (as alleged in the

complaint), they had contractually waived all negligence claims

related to the activity, and could not recover damages.

Construing the contract as conditioning enforcement of the

negligence liability waivers on defendants’ non-negligent

performance of their contractual obligations would be

inconsistent with New Hampshire law. And, plaintiffs cannot

plead around their waivers by alleging that defendants violated

the implied covenant of good faith and fair dealing by acting in

16 a “reckless” manner or by failing to make a “good faith effort”

to perform their duties under the contract.

III. Public Policy.

Finally, plaintiffs assert that their negligence waivers

should be deemed unenforceable because enforcing them would

contravene public policy and tend to imperil or interfere with

public welfare or safety. See McGrath

.

Enforcement of those waivers, say plaintiffs, would tend to

interfere with public safety because it would relieve defendants

from liability for the “reckless” and “bad faith” conduct that

led to their injuries. But a similar argument was made and

rejected in McGrath. There, the plaintiff, a snowboarder, was

struck by a snowmobile. She argued that defendant’s operation

of the snowmobile both negligently and in contravention of

safety laws should negate her negligence waiver as being against

public policy. The Court rejected that argument:

Irrespective of the statute, the plaintiff has voluntarily agreed not to hold the ski area, or its employees, liable for injuries resulting from negligence so that she may obtain a season ski pass. Therefore, we conclude the agreements do not contravene public policy as injurious to the interests

of the public, violative of a public statute or interfering with the public welfare.

McGrath,

.

17 Negligent instruction and supervision with respect to the

snowmobile tour in which plaintiffs participated no doubt posed

a risk to their personal safety. But, again, the risk of injury

due to defendants’ potential negligence was the subject of the

waiver provisions. It does not follow that a contractual waiver

of negligence claims with respect to recreational activity

contravenes public policy because negligent conduct in such an

environment puts the participants’ safety at risk.

But, say plaintiffs, it is not the mere exposure to risks

to their safety that contravenes public policy, but exposure to

those risks as animated by “reckless” and “bad faith” conduct.

The so-called “recklessness” and “bad faith” referenced here,

however, is at best negligence; it is not the equivalent of an

intentional tort, or an intentional or complete failure to

perform. The waivers in this case do not contravene public

policy as plaintiffs argue the point.

18 Conclusion

Plaintiffs’ arguments are imaginative but, substantively,

they look like an impermissible appeal to alter well-established

common law. Along those lines, plaintiffs seem to assert that

the common law of New Hampshire should not permit the waiver of

negligence claims when the negligent conduct at issue rises to

some level of “recklessness” or is the product of one party’s

failure to make a “good faith effort” to carry out its

contractual duties. Simply stated, that is not consistent with

existing New Hampshire law.

The claims described in the complaint all sound in

negligence. Negligence claims can be waived. And, as

previously determined, plaintiffs waived their negligence claims

here. There are no intentional tort or other causes of action

asserted in the complaint and, as mentioned, New Hampshire law

does not draw distinctions among culpable degrees of negligence.

See Barnes,

; Lee v. Chamberlain,

(1929). Finally, the grounds upon which plaintiffs seek to

invalidate their waivers are not consistent with applicable New

Hampshire law.

For the foregoing reasons, plaintiffs’ Motion to Amend or

Alter Judgment (document no. 32) is denied.

19 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 6, 2017

cc: Philip R. Waystack, Jr., Esq. Sandra L. Cabrera, Esq. Paul B. Kleinman, Esq.

20