A federal judge has dismissed Dartmouth College’s motion to dismiss a negligence and wrongful death claim brought by a student, who was injured in a physical education introductory ski class when an instructor told the student, who was a beginner, to ski down the hill alone.
Christina Porter suffered catastrophic injuries in 2004 when she skied in to a tree. A year later, she died from her injuries. In 2007, before the expiration of the New Hampshire three year statute of limitations for personal actions, her parents sued Dartmouth for negligence and wrongful death.
Dartmouth countered with a Federal Rule of Civil Procedure 12(b)(6) motion, arguing that the plaintiffs’ claims are barred by the New Hampshire Skiers, Ski Area, and Passenger Tramway Safety Act.
In its analysis, the court began by noting that the Ski Statute bars claims against ski area operators that result from the inherent risks of skiing, N.H. Rev. Stat. Ann. § 225-A:24. Further, the statute establishes a special two-year statute of limitations for certain claims by skiers against ski area operators. N.H. Rev. Stat. Ann. § 225-A:25 IV. Dartmouth’s argument centered on both these limitations.
The Court wrote that the Ski Statute states that “[e]ach skier and passenger shall have the sole responsibility for knowing the range of his own ability to negotiate any slope, trail or passenger tramway. N.H. Rev. Stat. Ann. § 225-A:24 II
“It also mandates that ‘[e]ach skier or passenger shall conduct himself within the limits of his own ability, maintain control of his speed and course at all times while skiing, heed all posted warnings and refrain from acting in a manner which may cause or contribute to the injury of himself or others.’ N.H. Rev. Stat. Ann. § 225-A:24 III. Further, it provides that ‘[e]ach 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 the operator for any injuries which result from such inherent risks, dangers, or hazards.’ N.H. Rev. Stat. Ann. § 225-A:24 I. The statute goes on to identify certain categories of risks that are deemed to be inherent in the sport of skiing by stating that ‘[t]he categories of such risks . . . include but are not limited to the following: variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; lift towers and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.’ Id.
“Dartmouth argues that Porter’s claims are necessarily barred by § 225-A:24 because she was injured after she skied off the trail and struck a tree. This argument is plainly wrong.
“Porter alleges that her injuries were caused by the negligence of her instructors rather than trail conditions that all skiers face when they take to the slopes. While the Ski Statute identifies the risk of striking a tree as a risk inherent in the sport of skiing, it is silent on the subject of negligent instruction. If a skier hires a ski area operator to provide specialized instruction, she is entitled to assume that her instructors will exercise reasonable care in assessing her abilities and in providing guidance and supervision during the period of instruction. There is no good reason why negligent instruction should be deemed to be an inherent risk of skiing.
“The New Hampshire Supreme Court determined in Adie v. Temple Mountain Ski Area, 108 N.H. 480, 483-84, 238 A.2d 738 (1968), that an earlier version of the Ski Statute did not bar negligent instruction claims. In reaching this conclusion, the court reasoned that ‘[i]f the Legislature had intended to bar skiers from actions against an operator for negligent instruction or negligent rental of defective equipment, some regulation of their operations in these areas would have appeared in the statute.’ Id. Although the Ski Statute has been amended several times since the supreme court’s pronouncement in Adie, the legislature has failed to amend the statute to expressly bar claims by skiers based on either negligent instruction or the negligent rental of defective equipment. Its failure to do so is dispositive of Dartmouth’s argument that Porter’s negligence instruction claims are barred by § 225-A:24.
“Dartmouth argues in the alternative that Porter’s claims are barred by the Ski Statute’s special two-year statute of limitations. Section 225-A:25 IV provides in pertinent part that ‘[n]o action shall be maintained against any operator for injuries to any skier or passenger unless the same is commenced within 2 years from the time of injury . . . .’ While this language could be construed broadly to apply to all claims by skiers against ski area operators, the New Hampshire Supreme Court in Adie construed an indistinguishable predecessor statute of limitations to apply only to claims that depend upon the Ski Statute for their existence. Adie, 108 N.H. at 483-84. Porter’s claims are not based on the breach of a duty imposed on ski area operators by the Ski Statute. Accordingly, her claims are not subject to the statute’s special statute of limitations.”
Christina Margaret Porter et al v. Dartmouth College et al; D.N.H.; No. 07-cv-28-PB; NH LEXIS 81396; 10/24/07
Attorneys of Record: (for plaintiffs) Angela M. Collison, Charles J. Raubicheck, Kevin Murphy, LEAD ATTORNEYS, Frommer Lawrence & Haug, LLP, New York, NY; K. William Clauson, LEAD ATTORNEY, Clauson Atwood & Spaneas, Hanover, NH. (for defendants) Matthew R. Johnson, LEAD ATTORNEY, Devine Millimet & Branch PA, Manchester, NH; Thomas B.S. Quarles, Jr., Devine Millimet & Branch PA, (Manchester), Manchester, NH.
