United States District Court, D. New Hampshire
ORDER OPINION NO.
2014 DNH 225.
STEVEN J. McAULIFFE, District Judge.
In the fall of 2002, Joseph Bourget, a carnival operator d/b/a Bourget Amusement Company, began storing equipment and carnival rides in a building owned by the Hillsborough County 4H Foundation (the "Foundation"). The roof collapsed in 2008, damaging some of Bourget's rides, rendering them unusable in the upcoming season. He brought this action, seeking damages from the Foundation, as well as the building's manufacturer (NCI Group, Inc.), and its distributor (General Steel). By prior order, the court entered summary judgment in favor of both NCI and General Steel. Pending before the court is the Foundation's motion for partial summary judgment, in which it asserts that even if it is found liable to Bourget, any recovery would be statutorily capped at $250, 000. Bourget disagrees and objects to the Foundation's motion.
For the reasons discussed, the Foundation's motion for partial summary judgment is granted.
Standard of Review
When ruling on a motion for summary judgment, the court must "constru[e] the record in the light most favorable to the nonmoving party and resolv[e] all reasonable inferences in that party's favor." Pierce v. Cotuit Fire Dist. , 741 F.3d 295, 301 (1st Cir. 2014). Summary judgment is appropriate when the record reveals "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). In this context, "a fact is material' if it potentially affects the outcome of the suit and a dispute over it is genuine' if the parties' positions on the issue are supported by conflicting evidence." Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr. , 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). See also Nolan v. CN8 , 656 F.3d 71, 76 (1st Cir. 2011).
The Foundation is a Section 501(c)(3) charitable organization incorporated in the State of New Hampshire. It owns property, the fairgrounds, in New Boston, New Hampshire, where it hosts various agricultural events and related activities. In the spring of 2000, the Foundation purchased a prefabricated metal building from General Steel. The following year, General Steel delivered a building shell, manufactured by NCI, to the Foundation's fairgrounds. Foundation volunteers erected the building during the summer of 2002, and improvements (such as electricity and water) were completed by the fall of 2003.
Bourget operated an outdoor amusement business known as Bourget Amusement Company. Beginning in October of 2002, the Foundation (acting through its chairman, William Grigas) agreed that, in exchange for a fee, Bourget would be allowed to store his carnival equipment in the new building during the winter months. The parties' agreement was memorialized in a written contract known as the "Winter Rental Agreement." Thereafter, Bourget stored his equipment in the Foundation's building each winter through March of 2008.
Typically, the parties executed a new (though substantially similar) written agreement each fall to govern their relationship for the upcoming winter. And, the parties appear to agree that each of those contracts contained the following (or substantially similar) language:
It is understood and agreed that the Foundation shall not be responsible for damage to any vehicle or property due to natural or manmade causes including fire and other casualty losses.
It is understood that the [Foundation] shall not be responsible for loss of, or damage to, any vehicle or property due to any cause, including fire and other casualty losses. [Bourget] agrees to maintain comprehensive property damage insurance coverage on the stored units and agrees to indemnify and hold harmless the [Foundation] for any loss of, or damage to, any stored property.
"Winter Storage Agreement" (document no. 29-11).
In the fall of 2007, Grigas and Bourget discussed the terms of Bourget's use of the building for the upcoming winter. And, as was the case in prior years, Grigas presented Bourget with another Winter Rental Agreement for him to sign. But, Bourget never signed that document and he claims the parties' relationship that year was governed instead by an oral agreement between him and Grigas. Bourget denies that he agreed to the exculpatory language that had been employed in the prior written agreements or that he assumed any obligation to obtain casualty insurance with respect to the winter 2007-2008 term.
On March 2, 2008, the building's roof collapsed, apparently due to the weight of accumulated snow. Some of Bourget's equipment was damaged. He did not have property damage insurance. Grigas asserts that shortly after the collapse, Bourget admitted that he knew he was required to maintain insurance, but ...