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Lizzol v. Brothers Property Management Corp.

United States District Court, D. New Hampshire

February 11, 2016

Jennifer Lizzol, Michael Lizzol, and T.G., Plaintiffs
v.
Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants Opinion No. 2016 DNH 027

Philip R. Waystack, Jr., Esq.

Sandra L. Cabrera, Esq.

Paul B. Kleinman, Esq.

ORDER

Steven J. McAuliffe, United States District Judge

Jennifer Lizzol, her husband Michael, and the couple’s son, T.G., bring this action seeking to recover damages for injuries they sustained in a snowmobiling accident while vacationing at the Mountain View Grand Resort & Spa, in Whitefield, New Hampshire. Defendants move to dismiss one of plaintiffs’ negligence claims, asserting that it fails to state a viable cause of action under New Hampshire common law. See Fed.R.Civ.P. 12(b)(6). For the reasons discussed, that motion is granted.

Standard of Review

When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must “accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).

Background

Accepting the factual allegations of the amended complaint as true - as the court must at this juncture - the relevant background is as follows. In January of 2013, plaintiffs were vacationing in New Hampshire. Prior to their arrival, Jennifer Lizzol went to the Mountain View Grand Internet website and registered her family for a snowmobile lesson and tour. Those lessons and the guided tour were provided by an independent contractor used by Mountain View Grand: Out Back Kayak (“OBK”). On the day in question, OBK employee Martin Welch served as the Lizzols’ instructor and tour guide.

According to the amended complaint, Welch provided plaintiffs - who had never driven snowmobiles before - with only cursory instructions on the operation of the machines. The group then set off on their tour. Jennifer Lizzol operated one snowmobile, on which Michael was a passenger. T.G. operated another. The group was told to follow Welch, as he headed out on the trail. But, say plaintiffs, Welch drove too quickly for them to safely follow and Jennifer (who was in the front of the tour group) eventually lost sight of him. While trying to catch-up to Welch, Jennifer lost control of her snowmobile, which left the trail and flipped over. Jennifer, Michael, and the snowmobile on which they had been riding rolled down an embarkment that was approximately seventy-five feet high. As a result, Jennifer suffered severe injuries, including injuries to her spine.

In their multiple-count amended complaint, plaintiffs advance claims against Brothers Property Management Corporation (operator of Mountain View Grand Resort & Spa), OBK, and Martin Welch. Defendants move to dismiss one of those claims, asserting that it fails to state a viable cause of action under New Hampshire law.

Discussion

In Count II(c) of their amended complaint, plaintiffs seek to impose vicarious liability on Mountain View Grand for the alleged negligence of Martin Welch - the employee of independent contractor OBK. The essence of plaintiffs’ claim is as follows:

Because Defendant Mountain View Grand contracted with Out Back Kayak to provide guided snow mobile tours, which is an inherently dangerous activity, Defendant Mountain View Grand is therefore vicariously liable for the negligence of the tour ...

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