United States District Court, D. New Hampshire
R. Waystack, Jr., Esq. Sandra L. Cabrera, Esq. Paul B.
J. McAuliffe United States District Judge
Lizzol, her husband Michael, and their son, T.G., filed suit
to recover damages for injuries sustained as a result of a
snow machine accident that occurred during a winter vacation
at the Mountain View Grand Resort & Spa, in Whitefield,
New Hampshire (“Mountain View Grand”). Defendants
move for summary judgment based upon a liability release and
covenant not to sue executed by Jennifer and Michael before
the accident. Defendants also move for summary judgment on
Michael Lizzol's and T.G's bystander liability claim.
For the reasons discussed, defendants' motion is granted.
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). Nevertheless, if the non-moving party's
“evidence is merely colorable, or is not significantly
probative, ” no genuine dispute as to a material fact
has been proved, and “summary judgment may be
granted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-50 (1986) (citations omitted).
the record in the light most favorable to plaintiffs, and
resolving all reasonable inferences in their favor, the
controlling facts appear to be as follows.
Lizzols travelled to the Mountain View Grand from Long
Island, New York, on January 27, 2013, arriving in the
afternoon. Prior to their arrival, Jennifer had scheduled a
snowmobile lesson and tour for herself, her husband, and her
son, as well as for a few of their friends, through the
Mountain View Grand's website. Defs.' Mot. for
Summary Judgment, Exh. C at p. 2. The lessons and guided tour
were provided by Out Back Kayak, Inc. (“OBK”).
Upon arrival at the resort, the Lizzols quickly put their
luggage in their rooms, and then left to participate in the
snowmobile activity, including a lesson and tour.
Lizzols were directed by the hotel activities desk to a small
building on the grounds, where they met a Mountain View Grand
employee, who told them to quickly pick out helmets and sign
a two-page document that bore the following heading:
Snow Machine Tour
ACKNOWLEDGEMENT OF RISKS AND HAZARDS COVENANT NOT TO
SUE WAIVER AND RELEASE OF LIABILITY
(the “Release”). The Lizzols felt rushed during
the process, see, e.g., Defs.' Mot. for
Summary Judgment, Exh. C. at p. 3, but both Jennifer and
Michael had an opportunity to review the Release, and each
signed and initialed it. (Jennifer executed the release on
behalf of her minor son, T.G.). The Release includes the
I . . . hereby voluntarily agree to release, waive,
discharge, hold harmless, defend and indemnify BPMC, the
field operator, the event promoter, the owners of premises
used to conduct the snowmobile activity, their owners,
agents, officers and employees from any and all claims,
actions or losses for bodily injury, property damage,
wrongful death or injury, loss of services or otherwise which
may arise out of my use of eques[trian] or other equipment or
my participation in any BPMC activity. I specifically
understand that I am giving up any rights that I may have by
releasing, discharging and waiving any claims or actions
presently or in the future for the negligent acts or other
conduct by the owners, agents, officers, designees or
employees of BPMC.
Defs.' Mot. for Summary Judgment, Exh. A, p. 1. The
Release includes five lettered paragraphs that provide tour
participants with a designated space in which to place his or
her initials, thereby confirming that he or she understands
and acknowledges the following:
(A) that he or she is physically fit to participate in the
(B) that participation in the activity may result in
“bodily injury, disease, strains, fractures, partial
and/or total paralysis, eye injury, dental injury, blindness,
. . . cold weather injuries, heart attack, asthma, vehicle
injuries, mental duress, death or other ailments that could
cause serious disability;”
(C) that “[t]hese risks and dangers [of bodily injury]
may be caused by the negligence of the owners, employees,
officers or agents of the Mountain View Grand and/or the
negligence of the participants. . .;”
(D) that by participating “in these activities and/or
use of equipment, [the participant] . . . assume[s] all risks
and dangers and all responsibility for any loss and/or
damages, whether caused in whole or in part by the negligence
or other conduct of the owners, agents, officers, designees,
employees of BPMC, or by any other person[;]” and
(E) that the participant “understand[s] that [he or she
is] undertaking this snowmobiling activity at [his or her]
own risk, freely and voluntarily without any
Id. Jennifer did not initial Paragraph B or
Paragraph D, and Michael did not initial Paragraph B.
signing the Release and obtaining their helmets, the Lizzols
met their tour instructor, OBK employee Martin Welch, and his
assistant, Jennifer Welch. The Lizzols had no snow machine
experience. Welch provided a very brief introduction to and
instruction regarding operation of the snow machines. He
explained how to accelerate, brake, and turn. He told them
that the tour would never travel faster ...