The Supreme Court of New Hampshire has narrowly construed the Recreational Ski Act in that state, breathing new life into a suit brought by a woman who was injured in a snow tubing accident.
The plaintiff, Alaina Sweeney, was snow tubing at the Ragged Mountain Ski Area on March 21, 2001 when she collided with another tuber. The accident and injury occurred in an area that was designated only for snow tubing.
Sweeney sued the resort for negligence. Ragged Mountain moved to dismiss, alleging that RSA 225-A:24, I (2000) barred recovery because it precludes claims brought by those injured in the “sport of skiing.” The property argued that snow tubing fell under that umbrella. The court agreed, dismissing the case.
On appeal, the plaintiff argued that RSA 225-A:24, I, does not bar her claim, because it does not apply to snow tubers.
The court began its analysis by focusing on RSA 225-A:24, I, and the definition and its protections.
According to the act, “It shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other users of alpine (downhill) and nordic (cross country and ski jumps) areas, recognizing that the sport of skiing and other ski area activities involve risks and hazards which must be assumed as a matter of law by those engaging in such activities, regardless of all safety measures taken by the ski area operators.”
The court wrote “that the focus of the statutory scheme is upon those who utilize alpine and nordic areas. It further indicates that alpine areas are those used for downhill activities, while nordic areas are those used for cross country activities and ski jumps. While utilizing the alpine and nordic areas may not be the sole, defining characteristic of a skier, the policy provision indicates that it is an essential characteristic nonetheless.”
Thus, because the plaintiff was not using an alpine or nordic slope, “we cannot conclude that she ‘participated in the sport of skiing’ as intended by the legislature in RSA 225-A:24, I.”
By extension, “Nothing in the policy provision, then, clearly expresses the legislative intent to extinguish the common law claims of snow tubers injured on a track designated solely for snow tubing,” according to the court.
The court reversed and remanded the case to the trial court. Sweeney v. Ragged Mountain Ski Area, Inc., S.Ct.N.H., No. 2003-719, 7/15/04
Attorneys of Record: (for plaintiff) Wiggin & Nourie, P.A., of Manchester (Peter E. Hutchins on the brief and orally). (for defendant) Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr. on the brief and orally).