A family in New Hampshire absorbed a painful lesson last fall when a federal judge sided with that state’s highest court, which “interpreted” a 1978 statute that shielded ski resorts from litigation associated with more traditional skiing accidents to also include “snow tubing” accidents.
The incident occurred on February 19, 2004, when Paul Lanzilla and his family arrived at the Waterville Valley Ski Resort. The resort did not provide the beginner ski lessons that the youngest child required. The Waterville employees suggested that Lanzilla take her tubing.
The court noted that the tube slope at Waterville curved around the woods and prevented an observer at the top of the slope from clearly viewing the bottom. Metal poles held snow fencing that delineated the edge of the tubing area. After reaching the bottom, patrons would take a snow tube, walk to the top of the slope, and then ride the tube back to the bottom. “The tube slope did not separate the area for walking up the hill from the area where patrons rode the tubes down,” noted the court.
Lanzilla and his daughter proceeded to take a few tubing runs. After a break, they decided to take another run. Lanzilla had his daughter in his lap when they started down the slope. “After coming around a curve, they came upon an adult walking up the middle of the slope pulling two tubes filled with children,” the court wrote. “Lanzilla swerved to avoid hitting the people and made contact with the slope’s embankment. The contact sent the tube into the air. Lanzilla’s left leg struck a metal pole that held the snow fencing, and the impact shattered his tibia and fibula.”
Lanzilla sued the resort on February 17, 2006, alleging that his injuries were caused by the negligent operation and maintenance of Waterville’s tubing slope. On May 31, 2007, Waterville moved for summary judgment. This Court heard oral argument on this motion on July 18, 2007.
In its discussion, the court noted that on February 19, 2004, the date when Lanzilla suffered his injury, “New Hampshire state law precluded claims brought by those injured in ‘the sport of skiing.’ N.H. Rev. Stat. Ann. § 225-A:24(I) (1978). The Supreme Court of New Hampshire, in Sweeney v. Ragged Mountain Ski Area, Inc., 151 N.H. 239, 855 A.2d 427 (2004), interpreted this statutory phrase while adjudicating whether immunity ought extend to claims brought by a plaintiff utilizing a snow tube slope for snow tubing. Id. at 242-43. The court did not specifically define the phrase, but held that an essential characteristic included the utilization of ‘alpine’ and ‘nordic’ areas of the ski area. Id. at 242. The court applied these defining characteristics to the claims brought by the snow tubing plaintiff and declined to extend statutory immunity to the defendant. Id. at 243. The court explained that it could not conclude that the New Hampshire legislature sought to include the sport of snow tubing within the coverage of the statutory scheme. Id.
“The New Hampshire legislature swiftly responded to the Sweeney decision in 2005 by amending the statute to substitute the language ‘skiing, snowboarding, snow tubing, and snowshoeing,’ for ‘skiing as a sport’ as activities from which ski area operators would be immunized if injuries resulted. N.H. Rev. Stat. Ann. § 225-A:24 (2005) (emphasis added). Additionally, the amendment clarified the term ‘ski areas’ to include ‘tubing terrain.’ Id. § 225-A:2(VIII) (emphasis added).
“It is a general and time-tested principal that, absent a clear showing of legislative intent to the contrary, a substantive change in statutory law does not enjoy retroactive effect. See In re Donovan, 152 N.H. 55, 63, 871 A.2d 30 (2005); Cowan v. Tyrolean Ski Area, Inc., 127 N.H. 397, 403, 506 A.2d 690 (1985). In this case, in light of the Sweeney decision and without evidence of legislative intent that the 2005 statutory amendment was to have retroactive effect, it would be clear that Waterville could not seek immunity under the New Hampshire statute.
“The Supreme Court of New Hampshire has, however, specifically addressed the issue of retroactivity. In Cecere v. Loon Mountain Recreation Corp., 923 A.2d 198 (N.H. 2007), the court addressed the retroactive effect of the 2005 amendments with respect to fatal injuries suffered by a person snowboarding on the defendant’s ski mountain. Id. at 203-04. The court held that the New Hampshire legislature’s swift reaction to its decision in Sweeney constituted ‘strong evidence’ of the legislature’s true intent relative to the 1978 version. Id. at 204. Specifically, the court stated that the 2005 amendments to the terms “sport of skiing” and “ski areas” ‘clarified, rather than changed, the meaning of the 1978 version.’ Id. The amendments referenced added ‘snow tubing’ as a sport and ‘tubing terrain’ as an area of activity that were covered under the immunity statute. Id.
“As a result of the Cecere decision, the Supreme Court of New Hampshire has specifically held that the legislative intent of the immunity statute in 1978 encompassed snow-tubing injuries and injuries sustained on tubing terrain. See id. This definitively places Lanzilla’s snow-tubing injury in 2004 within the coverage of the statute. As a result, Lanzilla is precluded from advancing his claim against Waterville.”
Paul Lanzilla et al v. Waterville Valley Ski Resort; D. Mass.; No. 06-10315-WGY; LEXIS 76023; 10/12/07
Attorneys of Record: (for plaintiff) Osler L. Peterson, LEAD ATTORNEY, Freeto, Peterson & Scoll, Newton, MA. (for defendant) William L. Keville, Melick, Porter & Shea, LLP, Boston, MA.
