United States District Court, D. New Hampshire
JOSEPH DiCLERICO, Jr., District Judge.
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., 785 F.3d 65, 68 (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., 711 F.3d 217, 223 (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, 700 F.3d 604, 608 (1st Cir. 2012).
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 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.
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, 128 N.H. 102, 106 (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 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., 158 N.H. 540, 542 (2009); accord Jenks v. N.H. Motor Speedway, Inc., 2010 WL 830244, 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, 2009 WL 3227831, at *3 (D.N.H. Sept. 30, 2009) (citing Barnes, 128 N.H. at 107).
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, 128 N.H. at 106. 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." Id. In addition, a release may be against public policy if "it is injurious to the ...