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Lizzol v. Brothers Property Management Corp.

United States District Court, D. New Hampshire

October 31, 2016

Jennifer Lizzol, Michael Lizzol, and T.G., Plaintiffs
Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants Opinion No. 2016 DNH 199

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


          Steven J. McAuliffe United States District Judge

         Jennifer 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.

         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). 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).


         Construing 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.

         The 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. Id.

         The 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

(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 following language:

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 activity;
(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 inducement[.]”

Id. Jennifer did not initial Paragraph B or Paragraph D, and Michael did not initial Paragraph B.

         After 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 ...

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