A federal judge from the District of New Hampshire has dismissed the claim of a Massachusetts couple, who sued the operators of a New Hampshire ski area after their 13-year-old son suffered a concussion, broken arm and broken leg after colliding with an instructor on a snowboard.
The court found specifically that collisions were an inherent risk of skiing and that the employee cannot be held liable, even if he was violating the law or acting recklessly.
The incident in question occurred on February 3, 2011, when the plaintiffs’ son, “M.H.”, was participating in a ski racing program at Loon Mountain Recreation Corporation (LMRC). Accompanied by his younger sister, “J.H.”, and the head coach for the program, M.H. had skied down the Rampasture trail and was headed, via a crossing trail, to the Coolidge Street trail, where he had helped set up a race course. At the same time, Scott Patterson, a ski instructor employed at Loon Mountain, was snowboarding down the Upper Northstar trail, which intersects with the crossing trail on which M.H. was skiing.
As he approached the area where the two trails intersect, Patterson, without stopping, ducked under a rope closing off a section of the Upper Northstar trail and jumped a lip between the trails. While Susan Hanus watched from her seat on a chair lift above, Patterson struck M.H. in close proximity to J.H. As a result of the collision, M.H. suffered severe injuries, including a concussion and fractured bones in his right arm and leg.
The plaintiffs sued LMRC and Patterson, and shortly thereafter, amended their complaint to add Boyne USA, Inc., the operator of the facility, as a defendant. As amended, the complaint alleges claims against LMRC and Boyne for negligent supervision, negligent operation of a ski area, gross negligence, and respondeat superior; claims against Patterson for negligence and gross negligence; and a claim against all three defendants for negligent infliction of emotional distress. LMRC and Boyne, after answering the complaint, moved to dismiss.
In great relevance to the instant case is the “Skiers, Ski Area and Passenger Tramway Safety” law, N.H. Rev. Stat. Ann. § 225-A:1 et seq. which limits the liability of such resorts. In particular, the statute provides that “each person who participates in the sport of skiing . . . accepts as a matter of law, the dangers inherent in the sport, and to that extent may not maintain an action against a ski area operator for any injuries which result from such inherent risks, dangers, or hazards.” N.H. Rev. Stat. Ann. § 225-A:24, I.
“The question presented in this case is the extent to which this provision immunizes ski areas from liability for skier-to-skier collisions caused by their employees.”
Specifically, the plaintiffs argued that Patterson’s collision with M.H. “was not an inherent risk of skiing because Patterson violated the Ski Statute by ducking under a rope and traversing across a delineated, closed-off trail boundary.”
The court was unmoved. “Insofar as the Ski Statute provides ski area operators with an immunity limiting plaintiffs’ common-law rights, it must be ‘strictly construed.’ Cecere, 155 N.H. at 291 (recognizing the canons of statutory interpretation requiring narrow construction of immunity provisions and statutes in derogation of the common law).
The court sympathized with the plaintiffs.
“There may well be good reasons for the New Hampshire General Court to exclude those types of collisions from the inherent risks of skiing identified in the statute,” wrote the court. “But, though the General Court undoubtedly could have done so, it did not, and ‘where, as here, a statute’s language is plain and unambiguous, the court . . . will not consider what the legislature might have said or add language that the legislature did not see fit to include.’ Dennis v. Town of Loudon, 2012 DNH 165, 25 (quoting Cloutier v. City of Berlin, 154 N.H. 13, 17, 907 A.2d 955 (2006)).
“The mere fact that M.H. collided with a ski area employee who was behaving negligently or recklessly does not remove the collision from the realm of skiing’s inherent risks, at least as far as the statutory language is concerned.”
The plaintiffs also argued that because Patterson was employed by Loon Mountain, “LMRC and Boyne may be held vicariously liable for his breaches.”
The court disagreed.
“In arguing that LMRC and Boyne may be held liable for Patterson’s breach of those responsibilities … the plaintiffs are inviting the court to recognize a basis for liability that finds no footing in either the language of the Ski Statute or the case law interpreting it—and which is, in fact, contrary to the plain language of the statute. As another judge of this court observed when urged to recognize a novel exception to the Ski Statute’s ski area immunity provision, ‘plaintiffs who select a federal forum in preference to an available state forum may not expect the federal court to steer state law into unprecedented configurations.’ Payzant v. Loon Mtn. Rec. Corp., No. 94-cv-164, slip op. at 4 n.2 (D.N.H. Nov. 15, 1995) (Barbadoro, J.) (quoting Federico v. Order of Saint Benedict in R.I., 64 F.3d 1, 4 (1st Cir. 1995)).
Even if this court had license to do that, though, it is doubtful that it could exercise that power in this case. As LMRC and Boyne point out in their reply memorandum, our Court of Appeals has specifically declined to hold a ski area operator liable for its employees’ alleged violation of the duties imposed by § 225-A:24. Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 8-9 (1st Cir. 1991).
Susan Hanus and Michael Hanus, individually and as the Parents and Next Friends of M.H. and J.H. v. Loon Mountain Recreation Corp. et al.; D. N.H.; Civil No. 13-cv-44-JL, 2014 DNH 75; 2014 U.S. Dist. LEXIS 52778; 4/16/14
Attorneys of Record: (for plaintiffs) Eric B. Goldberg, Michael B. Cosentino, Susan D. Novins, LEAD ATTORNEYS, PRO HAC VICE, Wilchins Cosentino & Friend LLP, Wellesley, MA; Mark D. Wiseman, Cleveland Waters & Bass PA, Concord, NH. (for defendants) Thomas B.S. Quarles, Jr., LEAD ATTORNEY, Leigh S. Willey, Margaret A. O’Brien, Devine Millimet & Branch PA (Manchester), Manchester, NH.
