United States District Court, D. New Hampshire
Arend
R. Tensen, Esq. Thomas B. S. Quarles, Jr., Esq. Brendan P.
Mitchell, Esq.
MEMORANDUM ORDER
JOSEPH
N. LAPLANTE, UNITED STATES DISTRICT JUDGE
The
plaintiff in this case, a skier at New Hampshire's Mount
Sunapee resort, was injured when he struck a support post for
snow making equipment. At issue in this case is whether a
release attached to his lift ticket excuses the ski area for
liability in connection with its alleged negligence in
failing to mark the post, warn skiers about it, or otherwise
make it visible.
Invoking
the court's diversity jurisdiction, 28 U.S.C. §
1332(a), plaintiff Thomas Jackson Miller, a New York
resident, sued The Sunapee Difference, LLC, operator of the
Mount Sunapee Resort ("Mount Sunapee"), a New
Hampshire ski area, for injuries he sustained when he struck
the unmarked and unpadded post that was concealed by fresh
snow. Pursuant to Fed.R.Civ.P. 12(c), Mount Sunapee moved for
judgment on the pleadings, arguing that the liability release
printed on Miller’s lift ticket bars his claim. Miller
argues that the release is unenforceable under New Hampshire
law and inapplicable on its face. As both sides submitted
documents outside the pleadings in litigating this motion,
the court has, with the parties' consent,[1] converted the
motion into one for summary judgment under Fed.R.Civ.P.
12(d).[2] Having considered the parties' filings
and hearing oral argument, the court finds that the release
is both applicable and enforceable, and therefore grants
summary judgment in favor of Mount Sunapee.[3]
I.
Applicable legal standard
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). When ruling on a motion for summary judgment, the
court "constru[es] the record in the light most
favorable to the nonmoving party and resolv[es] all
reasonable inferences in that party's favor."
Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st
Cir. 2014). In the summary judgment analysis, "a fact is
'material' if it has the potential of determining the
outcome of the litigation." Maymi v. P.R. Ports.
Auth., 515 F.3d 20, 25 (1st Cir. 2008). A factual
dispute is genuine "if the evidence about the fact is
such that a reasonable jury could resolve the point in the
favor of the non-moving party." Sanchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citation and
internal quotation marks omitted). Nevertheless, if the
nonmoving 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).
II.
Background
Following
a large 2015 snowfall, Miller visited Mount Sunapee with his
brother and father for a day of skiing. Miller was skiing
ahead of his companions through fresh powder on the left side
of the Beck Brook trail[4] when he struck an unmarked "snow
gun holder" that was concealed by snow. The
"holder" – essentially a steel pipe
protruding from the ground – is a mounting post for
snow-making guns. The post remains embedded in the ground
after the guns are removed. There was no snow-making gun in
the holder at the time of this accident. Miller suffered
serious leg injuries in the collision.
In
order to ski at Mount Sunapee, Miller first purchased a lift
ticket. The ticket has a self-adhesive backing, which the
skier affixes to his zipper tab or similar visible location.
In order to attach it, the skier must first remove it from a
peel-off backing. Printed on the back of the peel-off backing
of the Mount Sunapee lift ticket was the following:
STOP [a red octagon image similar to a traffic-control
"stop sign"]
YOU ARE RELEASING THIS SKI AREA FROM LIABILITY
By removing this peel-off backing and using this ticket, you
agree to be legally bound by the LIABILITY RELEASE printed on
the other side of this ticket. If you are not willing to be
bound by this LIABILITY RELEASE, please return this ticket
with the peel-off backing intact to the ticket counter for a
full refund.
The
lift ticket itself displayed the following language:
LIABILITY RELEASE
Skiing, snowboarding, and other winter sports are inherently
dangerous and risky with many hazards that can cause injury
or death. As purchaser or user of this ticket, I agree, as a
condition of being allowed to use the facilities of the Mount
Sunapee resort, to freely accept and voluntarily assume all
risks of property damage, personal injury, or death resulting
from their inherent or any other risks or dangers. I RELEASE
MOUNT SUNAPEE RESORT, its parent companies, subsidiaries,
affiliates, officers, directors, employees and agents FROM
ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCE which
may result from conditions on or about the premises,
operation of the ski area or its afacilities [sic] or from my
participation in skiing or other winter sports, accepting for
myself the full and absolute responsibility for all damages
or injury of any kind which may result from any cause.
Further I agree that any claim which I bring against Mount
Sunapee Resort, its officers, directors, employees or agents
shall be brought only in Federal or State courts in the State
of New Hampshire. I agree my likeness may be used for
promotional purposes.
MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.
RECKLESS SKIING WILL RESULT IN LOSS OF TICKET
NON-TRANSFERABLE: Use by a non-purchaser constitutes theft of
services.
NON-REFUNDABLE. LOST TICKETS WILL NOT BE REPLACED Mount
Sunapee Resort, P.O. Box 2021, Newbury, NH 03255
(Emphasis in original).
After
timely filing this lawsuit,[5] Miller filed an Amended
Complaint[6] asserting a single count of negligence. He
alleges that Mount Sunapee failed to mark or warn skiers of
the pipe, or otherwise mitigate its danger to skiers, by, for
example, padding it or making it visible to skiers. In
addition, Miller alleges that Mount Sunapee breached its
duties to create a safe environment for guests, and to
perform in-season trail maintenance work. Finally, Miller
claims that Mount Sunapee is liable because it failed to
comply with N.H. Rev. Stat. Ann. § 225-A:23 (II)(b),
which provides, in relevant part, that "[t]he ski area
operator shall warn skiers and passengers by use of the trail
board, if applicable, that snow grooming or snow making
operations are routinely in progress on the slopes and trails
serviced by each tramway.”[7]
III.
Analysis
As
noted at the outset, Sunapee argues that the release printed
on Miller's lift ticket – in combination with the
acceptance of its terms on the backing sheet – bars his
claim. "Although New Hampshire law generally prohibits a
plaintiff from releasing a defendant from liability for
negligent conduct, in limited circumstances a plaintiff can
expressly consent by contract to assume the risk of injury
caused by a defendant's negligence." Allen v.
Dover Co-Recreational Softball League, 148 N.H. 407, 413
(2002). Such an exculpatory contract is enforceable if: 1) it
does not violate public policy; 2) the plaintiff understood
the import of the agreement or a reasonable person in
[plaintiff's] position would have understood the import
of the agreement; and 3) the plaintiff's claims fall
within the contemplation of the parties when they executed
the contract. McGrath v. SNH Dev., Inc., 158 N.H.
540, 542 (2009) (citing Dean v. McDonald, 147 N.H.
263, 266-67 (2008)); Lizzol v. Brothers Prop. Mgmt.
Corp., 2016 DNH 1999, 7.
Plaintiff
argues that the release satisfies none of these criteria,
because: 1) it violates public policy; 2) a reasonable person
would have understood the release to exclude only
"inherent risks of skiing," as enumerated in New
Hampshire's "ski statute," N.H. Rev. Stat. Ann.
§ 225-A:24; 3) the release does not encompass reckless,
wanton, or willful conduct; and 4) the release is unsigned.
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.” McGrath, 158 N.H. at 543 (quoting Barnes v.
N.H. Karting Assoc., 128 N.H. 102, 106 (1986)). The New
Hampshire Supreme Court has also found an agreement to be
against public policy "if, among other things, it is
injurious to the interests of the public, violates some
public statute, or tends to interfere with the public welfare
or safety." Id. (citing Harper v.
Healthsource New Hampshire, 140 N.H. 770, 775 (1996)).
Miller does not argue that he had a special relationship with
Mount Sunapee or that there was a disparity in bargaining
power between the two.[8]Instead, he confines his public policy
argument to two points: 1) that the release violates New
Hampshire statutory law; and 2) that it is injurious to the
interest of the public. Neither argument withstands scrutiny.
1. New
Hampshire statutory law
Miller
argues that the combination of N.H. Rev. Stat. Ann.
§§ 225-A:23, II, and 225-A:24 requires ski area
operators to plainly mark or make visible snow-making
equipment. Therefore, he concludes, applying the release to
the allegedly hidden snow gun holder would allow Mount
Sunapee to impermissibly evade this statutory responsibility.
As a general proposition, Miller is correct that a release
can not excuse a ski area's statutory violation. Harper,
140 N.H. at 775; cf. Nutbrown v. Mount Cranmore, 140
N.H. 675, 683 (1996) (noting, in ski accident case, that ski
areas' immunity does not apply to claim based on
statutory violation). However, Miller's argument here is
built on a faulty premise – that § 225-A:24,
denoted "Responsibilities of Skiers and Passengers"
– imposes an affirmative duty on ski areas to mark or
make visible snow-making equipment. The court rejects this
argument for several reasons.
First,
Miller attempts, without legal support, to create an
affirmative duty out of the text of § 225-A:24 where
none exists. Section 225-A:24 "is an immunity provision
for ski area operators." Cecere v. Loon Mountain
Recreation Corp., 155 N.H. 289, 291 (2007). It has been
"interpreted to mean that ski area operators owe no duty
to skiers to protect them from the inherent risks of
skiing." Rayeski v. Gunstock Area/Gunstock Area
Comm'n, 146 N.H. 495, 497 (2001). One of the
inherent "risks, hazards, or dangers which the skier . .
. assumes as a matter of law" is "plainly marked or
visible snow making equipment." N.H. Rev. Stat. Ann.
§ 225-A:24, I. Miller argues that because unmarked or
not visible snow-making equipment is not "an inherent
risk" enumerated by the statute, ski areas therefore
have a statutory duty to mark them or make them visible.
This
argument is both contrary to the language of the statute and
unsupported by any legal authority. While the language of the
statutory immunity provision – enumerating a
"Skier's Responsibilities" – arguably
does not bar Miller's claim[9] that he struck an unmarked and
not visible piece of equipment, it likewise creates no
affirmative duties for ski areas. Stated differently, while
New Hampshire law may allow ski area liability for injuries
resulting from collisions with unmarked equipment, it does
not logically follow that New Hampshire law requires the
marking of such equipment. The statute sets forth no such
obligation or legal duty.
To
avoid the plain language of §225-A:24, Miller argues
that Rayeski, supra, imposes an affirmative duty on
Mount Sunapee when read in conjunction with § 225-A:23.
In that case, the New Hampshire Supreme Court, invoking
§225-A:24, upheld the dismissal of a skier's claim
for injuries sustained in a collision with an unmarked light
pole. 146 N.H. at 500. The plaintiff in Rayeski argued that
the light pole collision was similar to a collision with
unmarked snow-making equipment, which the statute
"implies . . . is not an inherent risk of skiing"
by not barring such a claim. Id. at 498. In the
course of finding that the pole collision was an inherent
risk of skiing (despite not being specifically enumerated as
such in the statute), the Court distinguished between poles
and snow making equipment:
We conclude that the legislature's explicit reference to
“plainly marked or visible snow making equipment”
was intended to balance the immunity granted to ski area
operators under RSA 225–A:24 with their duty under RSA
225–A:23, II(b) (2000) to warn skiers of snow making or
grooming activities by denying immunity to ski area operators
who breach a statutorily imposed safety responsibility.
Id. (emphasis added).
Based
on the emphasized language, Miller argues that §
225-A:23 required Mount Sunapee to mark or make visible the
snow gun holder he struck. This argument ignores the plain
language both of Rayeski and the statute. The Rayeski opinion
referred only to "snow making or grooming
activities," and made no reference to marking equipment.
And the statute, captioned "Base Area; Information to
Skiers and Passengers," requires that a ski area
operator "warn skiers and passengers by use of the trail
board, if applicable, that snow grooming or snow making
operations are routinely in progress on the slopes and trails
serviced by each tramway." (Emphasis added). Thus,
contrary to Miller's argument, this section imposes no
requirement to "mark or make visible" the snow gun
holder at issue in this case. Instead, the statute requires
the ski area to post "at the base area" a warning
concerning grooming and snowmaking operations, if
applicable.[10] See Nardone v. Mt. Cranmore, Civ.
No. 91-114-SD, slip op. at 6-7 (holding that §
225-A:23(b)'s warning requirement does not apply where
snowmaking was not in progress and where plaintiff collided
with fixed, unmarked piece of snowmaking equipment) (emphasis
added).[11] Miller does not dispute Mount
Sunapee's contention that there was no grooming or snow
making "in progress" at the time of or in the
vicinity of Miller's accident.[12] An inoperative snow gun
holder is neither an "activity" nor an
"operation."
Further
undermining Miller's argument that § 255-A:24
creates obligations for ski area operators is the fact that
its five sub-sections are explicitly and unambiguously
addressed to skiers and passengers (as opposed to ski area
operators), as follows: I) "Each person who participates
in the sport of skiing . . . accepts . . . the dangers
inherent in the sport . . . ."; II) "Each skier and
passenger shall have the sole responsibility . . . ";
III) "Each skier or passenger shall conduct himself or
herself . . ."; IV) "Each passenger shall be the
sole judge of his ability . . ."; V) "No skier or
passenger or other person shall . . ." N.H. Rev. Stat.
Ann. § 225-A:24, I-V (emphasis added).
In
addition, under New Hampshire statutory construction law,
"[t]he title of a statute is 'significant when
considered in connection with . . . ambiguities inherent in
its language.'" Appeal of Weaver, 150 N.H. 254, 256
(2003) (quoting State v. Rosario, 148 N.H. 488, 491
(2002); see also, Berninger v. Meadow Green-Wildcat
Corp., 945 F.2d 4, 9 (1st Cir. 1991) (interpreting N.H.
Rev. Stat. Ann. § 225-A:24 and observing that "[i]t
is well established that a statute's title may aid in
construing any ambiguities in a statute."). As noted,
the title of § 225-A:24 is explicitly directed at
"skiers and passengers," not ski area operators.
While this court discerns no such ambiguity that would
justify a foray into ascertaining "legislative
intent," our Court of Appeals has stated that "the
title indicates the legislative intent to limit the
application of [§ 225-A:24] to skiers and passengers and
similar classes of individuals, which does not include a ski
operator or its employees." Berninger, 945 F.2d
at 9 (1st Cir. 1991). This conclusion is buttressed by the
fact that the preceding provision, § 225-A:23, is
captioned "Responsibilities of Ski Area Operators,"
further suggesting § 225-A:24's inapplicability
here. This statutory structure – clearly distinguishing
ski area operator responsibilities from visitor
responsibilities – is especially important in light of
the New Hampshire Supreme Court's requirement that
statutes be construed "as a whole." Petition of
Carrier, 165 N.H. 719, 721 (2013); see also, Univ. of
Texas Sw. Med. Ctr v. Nassar, 133 S.Ct. 2517, 2529
(2013) ("Just as Congress' choice of words is
presumed to be deliberate, so too are its structural
choices."); DeVere v. Attorney General, 146
N.H. 762, 766 (2001) (noting that structure of a statute can
be an interpretive tool). Accordingly, the court finds that
the Mount Sunapee release does not impermissibly seek to
avoid statutory liability.[13]
In
addition to his misplaced reliance on Rayeski, Miller also
argues that the McGrath Court's allowance of liability
releases is "limited to situations where the public
statute at issue contains a statutorily imposed enforcement
mechanism," which allows state officials to protect the
public interest by imposing penalties on
violators.[14]
The
holding in McGrath, which involved a snowmobiling accident,
is not as broad as plaintiff posits. It is true that the
Court in McGrath, in rejecting a claim that a liability
waiver violated public policy because it allowed defendants
to avoid certain snowmobile safety statutes, noted that the
waiver did not affect the State's ability to enforce
snowmobiling rules and penalize infractions, and thus did not
entirely relieve the defendant property owners of any
statutory responsibility. 158 N.H. at 543 (citing N.H. Rev.
Stat. Ann. §§ 215-C:32 and 34). But several factors
undercut Miller's reliance on McGrath. First,
plaintiff's argument is premised on his assertion that
Mount Sunapee is trying to avoid liability for a statutory
violation. The court has already rejected plaintiff's
premise as an untenable reading of §§ 225-A:23 and
24. Next, the State enforcement criterion was not dispositive
in McGrath, as the Court found that the liability waiver did
not contravene public policy because, "[i]rrespective of
the statute, the plaintiff has voluntarily agreed not to hold
the ski area, or its employees, liable for injuries resulting
from negligence so that she may obtain a season ski
pass." Id. at 543 (emphasis added). In
addition, even if the court read McGrath to require a state
law enforcement vehicle to protect the public interest, the
New Hampshire ski statutes do in fact provide one. Under N.H.
Rev. Stat. Ann. § 225-A:26, "any person . . .
violating this chapter . . . shall be guilty of a violation
if a natural person, or guilty of a misdemeanor if any other
person." Plaintiff argues that this statutory
enforcement provision is limited to tramway operations, and
thus does not satisfy McGrath. He supports this argument with
a letter from a supervisor at the New Hampshire Division of
Fire Safety,[15] which correctly observes, pursuant to
N.H. Rev. Stat. Ann. § 225-A:3-a, that the authority of
the Passenger Tramway Safety Board is limited to ski lift
operations and "shall not extend to any other matters
relative to the operation of a ski area."[16] The letter
also states that the penalty provision of § 225-A:26
"specifically relates to operating a tramway without it
first being registered."[17] The letter also specifically
mentions §§ 225-A:23 and 24, as being outside the
tramway board's authority.[18]
There
are several reasons why the letter does not advance
plaintiff's statutory argument. First, the letter is not
properly part of the summary judgment record. According to
its terms, it was sent in response to plaintiff's
counsel's request for documents concerning the
enforcement of § 225-A:26. However, "[i]n opposing
a motion for summary judgment, a plaintiff must proffer
admissible evidence that could be accepted by a rational
trier of fact as sufficient to establish the necessary
proposition." Gomez–Gonzalez v. Rural
Opportunities, Inc., 626 F.3d 654, 662 n. 3 (1st Cir.
2010) (emphasis added). The letter itself is inadmissible
hearsay, as it is being offered to prove the truth of the
matters asserted with respect to enforcement of §
225-A:23 and 24. See Fed.R.Evid. 801(c)(2); see also
Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011)
("It is black-letter law that hearsay evidence cannot be
considered on summary judgment for the truth of the matter
asserted."). Moreover, although apparently issued by a
government office (the plaintiff made no effort to lay such a
foundation), the letter is not admissible under the Public
Records hearsay exception. See Fed.R.Evid. 803(8) (requiring,
for admissibility, the evidence in question to, inter alia,
set out the public office's activities and involve a
matter observed while under a legal duty to report). It is
true that some forms of evidence, such as affidavits and
declarations, may be considered on summary judgment, even if
they would not be admissible at trial, so long as they
"set out facts that would be admissible in
evidence" if the affiant or declarant testified to them
at trial. Fed.R.Civ.P. 56(c)(4). The letter in question,
however, is neither an affidavit nor a declaration. In
addition to being an unsworn letter, it fails to show how the
letter writer is expressing "personal knowledge,"
and fails to show that she is "competent to testify on
the matters stated," as required by Fed.R.Civ.P.
56(c)(4); see also Fed.R.Civ.P. 602 (personal knowledge
requirement).
Next,
even if the letter was properly before the court, it lacks
any legal force, either as a pronouncement of New Hampshire
law, or an interpretation thereof. N.H. Rev. Stat. Ann.
§ 225-A:8 empowers the Tramway Safety Board to make
rules regarding tramways. "Rules and Regulations
promulgated by administrative agencies, pursuant to a valid
delegation of authority, have the full force and effect of
laws." State v. Elementis Chem., 152 N.H. 794,
803 (2005). Under New Hampshire administrative law, however,
as set forth under its Administrative Procedure Act, the
letter in question is not a rule, and thus lacks such force.
It is simply a letter answering a question posed by the
plaintiff’s lawyer. See N.H. Rev. Stat. Ann. §
541-A:1, XV (explicitly excluding, under definition of
"Rule," "informational pamphlets, letters or
other explanatory materials which refer to a statute or rule
without affecting its substance or interpretation").
Notably, the plaintiff cites no provision of New
Hampshire's administrative law involving the Passenger
Tramway Safety Board or Rules which support his theory. See
N.H. Code. Admin. R. Ann. (PAS 301.1 et. seq. (2016)).
Finally,
even if the letter was a properly admissible part of the
summary judgment record in support of the proposition that
the enforcement of § 225-A:26 is limited to tramway
operations, and even if it were a duly-promulgated article of
New Hampshire administrative law, it still fails to advance
the plaintiff's argument (to the extent it even addresses
the issue before the court), because it incorrectly
contradicts the governing statute, § 225-A:26.
As
noted, the letter states that the authority of the Tramway
Safety Board is limited to ski lift operations and
"shall not extend to any other matters relative to the
operation of a ski area."[19] This is undoubtedly true as
far as it goes, as it tracks the language of §
225-A:3-a. That observation misses the point, however, as
§ 225-A:26 does not limit enforcement of § 225-A to
the Tramway Board. To the contrary, the statute holds
"any person" "guilty" of a violation or
misdemeanor for violations of "this chapter," i.e.,
the entirety of N.H. Rev. Stat. Ann. § 225-A, a chapter
which addresses a wider variety of ski-related activities
than ski lifts and tramways. Thus, the letter contradicts the
plain language of the statute by inaccurately portraying the
applicability of § 225-A:26 as limited to
"operating a tramway without it first being
registered."[20] Under New Hampshire law, "[r]ules
adopted by administrative agencies may not add to, detract
from, or in any way modify statutory law," Elementis
Chem., 152 N.H. at 803, and the letter's pronouncement,
even it were a duly adopted Rule, would be invalid. See
Appeal of Gallant, 125 N.H. 832, 834 (1984) (noting that
agency regulations that contradict the terms of a governing
statute exceed the agency's authority and are void). The
statute penalizes not only failing to register, but also
"violating this chapter or rules of the [Tramway Safety]
board." (emphasis added). In effect, the plaintiff is
asking the court to ignore the plain language of the statute
in favor of a letter which is neither properly before the
court nor is a valid administrative rule and which fails to
address the issue before the court – the scope of
§ 225-A:26. The court is not free to ignore the Federal
Rules of Civil Procedure, New Hampshire's Administrative
Procedure Act,[21] or the plain language of New
Hampshire's ski-related statutes.
Accordingly,
the court finds that New Hampshire statutory law provides no
support to plaintiff's public policy argument.
2.
Injurious to the public interest
Plaintiff
next argues that the Mount Sunapee release violates public
policy as injurious to the public interest because Mount
Sunapee is located on state-owned land that was, at least in
part, developed with federal funding. Plaintiff cites no
authority for this argument, but instead relies on various
provisions in the lease between Mount Sunapee and the State
of New Hampshire. None of these provisions establish or
support the proposition that public policy prohibits the
enforcement of the release.
For
example, the lease requires the property to be used for
"public outdoor recreational uses," "for the
mutual benefit of the public and the Operator," and
"as a public ski area . . .for the general
public."[22] In addition, the ski area operator is
required to "allow public access," "maintain
the Leased Premises in first class condition," and
"undertake trail maintenance."[23] Even
assuming, arguendo, that the lease theoretically establishes
public policy, the plaintiff makes no coherent argument how
the release in question runs afoul of any of its provisions.
Instead, plaintiff argues, strenuously but without authority,
that condoning Mount Sunapee's requirement that a skier
agree to the release as a condition of skiing there
"effectively sanctions the conversion of public land by
Mount Sunapee."[24] He also argues, again without authority,
that:
"[p]rivate operators of public lands, to which the
public must be allowed access, cannot be allowed to limit
access to such lands to those individuals who are willing to
forego their statutory rights by exculpating the private
operators from the consequences of their own negligence. To
hold otherwise, would mark the first step toward eliminating
public access to public lands at the expense of the general
public."
(Emphasis added). Initially, the court reiterates its
finding, supra, Part III.A.1, that the language at
issue in this case does not implicate plaintiff's
statutory rights. Moreover, whatever persuasive force his
policy-based arguments hold, plaintiff cites no authority
– in the form of cases, statutes or regulations –
upon which the court can rely to accept them.[25]
As a
final public-interest related matter, the parties dispute the
import of liability releases used at Cannon Mountain, a
state-owned and operated ski area. In its motion, Mount
Sunapee cited those releases to demonstrate that New
Hampshire's public policy does not generally disfavor
liability releases.[26] Plaintiff, however, points out that
because the Cannon release does not use the word
"negligence," it may, in fact, not release Cannon
from its own negligence. See Barnes, 128 N.H. at 107 (noting
that "the [exculpatory] contract must clearly state that
the defendant is not responsible for the consequences of his
negligence."). Therefore, plaintiff suggests,
Sunapee's release may have exceeded what public policy
(as articulated in the Cannon release) permits. Regardless of
the Cannon release's enforceability – a matter on
which the court offers no opinion – the court finds
that Mount Sunapee has the better of this argument. New
Hampshire's public policy is likely best expressed by its
legislative enactments, particularly N.H. Rev. Stat. Ann.
§ 225-A:24,I, under which "ski area operators owe
no duty to protect patrons from the inherent risks of skiing
and thus are immunized from liability for any negligence
related to these risks." Cecere v. Loon Mountain
Recreation Corp., 115 N.H. 289, 295 (2007). Such
legislatively-enacted immunity from negligence undercuts
Miller's argument that the Cannon release demarcates the
outer boundary of New Hampshire public policy. Ultimately,
the court is skeptical that, as both parties implicitly
argue, the state's risk management decisions and devices,
as embodied in certain ski area releases, constitute
articulations of public policy.
Having
failed to demonstrate any statutory transgressions or injury
to the public interest, plaintiff has failed to establish a
genuine issue of material fact as to whether the Mount
Sunapee release violates public policy.
B.
Import of the agreement
The
next factor the court must consider in assessing the
enforceability of the Mount Sunapee release is whether the
plaintiff or a reasonable person in his position would have
understood its import. Dean, 147 N.H. at 266-67. Miller
argues that a factual dispute exists as to this criterion
because there was no "meeting of the minds"
sufficient to form an enforceable binding
agreement.[27] He bases this proposition, in turn, on
two assertions: 1) that the release is unsigned; and 2) that
he did not read it. The court finds that New Hampshire law
does not require a signature to effectuate the terms of a
release and that the plaintiff had – but chose not to
take advantage of – an opportunity to read the release.
1.
Signature
As an
initial matter, the court notes that a "meeting of the
minds" is not an explicit requirement of enforceability
under New Hampshire law. The Court in Dean required only that
"the plaintiff understood the import of the agreement or
a reasonable person in his position would have understood the
import of the agreement." 147 N.H. at 266-67. While a
signature might be evidence of such understanding, it has
never been held to be a prerequisite. Indeed, in Gannett
v. Merchants Mut. Ins. Co., 131 N.H. 266 (1988), the
Court enforced an unsigned and unread release of an insurance
claim.
Plaintiff
asserts that the New Hampshire Supreme Court has never
explicitly upheld the enforcement of an unsigned liability
release. See, e.g., McGrath, 158 N.H. at 545 ("[t]he ski
pass application signed by the plaintiff"); Dean, 147
N.H. at 266 ("Mr. Dean signed the Release before
entering the infield pit area"); Audley, 138
N.H. at 417 ("two releases signed by the
plaintiff"); Barnes, 128 N.H. at 106 ("release and
waiver of liability and indemnity agreement he signed").
Even if one were to accept this proposition despite the
holding in Gannett, which is arguably
distinguishable from the line of New Hampshire cases just
cited, it ...