Hanus et al v. Loon Mountain Recreation Corporation et al

Filing 37

///CORRECTED MEMORANDUM ORDER granting 28 Motion to Dismiss for Failure to State a Claim. Defendants' motion to dismiss the plaintiffs' claims against them is GRANTED. The plaintiffs' claims against Patterson remain pending, as do the counterclaims against the plaintiffs by LMRC and Boyne. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Susan Hanus and Michael Hanus,
individually and as the Parents
and Next Friends of M.H. and
J.H.
v.

Civil No. 13-cv-44-JL
Opinion No. 2014 DNH 075

Loon Mountain Recreation Corp.,
Boyne USA, Inc., and Scott
Patterson
MEMORANDUM ORDER
Every winter, thousands of skiers and snowboarders journey
to the slopes of New Hampshire’s ski areas from locations both
far and near.

Like many states with a robust ski industry, New

Hampshire has enacted a statute–-the “Skiers, Ski Area and
Passenger Tramway Safety” law, N.H. Rev. Stat. Ann. § 225-A:1 et
seq. (the “Ski Statute”) that limits those areas’ liability to
their visitors.

In particular, the Ski Statute 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 [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.

Plaintiffs Susan and Michael Hanus have sued Loon Mountain
Recreation Corporation (“LMRC”) and Boyne USA, Inc., the
operators of one of New Hampshire’s ski areas, Loon Mountain
Resort, for injuries the plaintiffs’ minor son suffered while
skiing.

Those injuries arose from an on-trail collision between

the boy and a Loon Mountain employee who, the plaintiffs allege,
“ducked under a rope marking a permanently closed section of the
trail” immediately before the collision.

LMRC and Boyne have

moved to dismiss the plaintiffs’ claims against them, arguing
that § 225-A:24, I--which expressly identifies “collisions with
other skiers or other persons” as one of the “inherent risks,
dangers, or hazards” of skiing–-bars those claims.

See Fed. R.

Civ. P. 12(c).1
This court has jurisdiction under 28 U.S.C. § 1332(a)(1)
(diversity), because the plaintiffs are Massachusetts citizens,
the defendants are citizens of New Hampshire and Michigan, and
the amount in controversy exceeds $75,000.

After careful

consideration, the court grants the defendants’ motion.

The

plaintiffs have gamely attempted to pry this suit from the

1

The defendants’ motion relies upon Federal Rule of Civil
Procedure 12(b)(6), but, because the defendants answered the
complaint before moving to dismiss it, the court treats the
motion as one for judgment on the pleadings under Rule 12(c)–-a
“largely academic” distinction since Rules 12(b)(6) and 12(c)
“impose identical standards.” Holder v. Town of Newton, 638 F.
Supp. 2d 150, 152 n.1 (D.N.H. 2009); see also Part I, infra.
2

clutches of the Ski Statute’s ski area immunity provision by
arguing that the provision does not apply where, as here, the
suit arises out of injuries caused by a ski area employee who
fails to observe the responsibilities the Ski Statute imposes on
skiers.

This argument, however, cannot be reconciled with the

broad language of the statute itself, nor with the case law
interpreting it.

Plaintiffs’ claims against LMRC and Boyne must

be dismissed.
I.

Applicable legal standard
A motion for judgment on the pleadings under Rule 12(c) is

evaluated under essentially the same standard as a Rule 12(b)(6)
motion to dismiss for failure to state a claim.
Galvin, 575 F.3d 24, 30 (1st Cir. 2009).

See Simmons v.

To survive such a

motion, the complaint must make factual allegations sufficient to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In ruling on

such a motion, the court must accept as true all well-pleaded
facts set forth in the complaint and must draw all reasonable
inferences in the plaintiff’s favor.

See, e.g., Martino v.

Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010).

The court “may

consider not only the complaint but also “facts extractable from
documentation annexed to or incorporated by reference in the
3

complaint and matters susceptible to judicial notice.”

Rederford

v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009).

With the

facts so construed, “questions of law [are] ripe for resolution
at the pleadings stage.”

Simmons, 575 F.3d at 30.

The following

background summary is consistent with that approach.
II.

Background
On February 3, 2011, the plaintiffs’ thirteen-year-old son,

“M.H.”, was participating in a ski racing program at Loon
Mountain.

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 trail2 and jumped a lip between

2

The plaintiffs allege that this section of the Upper
Northstar trail had been “permanently closed” since at least
2003. The defendants take issue with this characterization,
arguing in their memorandum that “[t]here is no such thing as a
‘permanently closed’ ski trail under New Hampshire law.” Memo.
in Supp. of Mot. to Dismiss (document no. 28-1) at 3. Instead,
the defendants assert, Loon Mountain had simply “put up a rope to
delineate the intersections area” between the trails. Id. While
4

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 filed this action against LMRC and Patterson,
and shortly thereafter, amended their complaint to add Boyne 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, filed the motion at bar.

(Patterson has not yet filed

any motion seeking to dispose of the claims against him.)
III. Analysis
The Ski Statute “recogniz[es] that the sport of skiing and
other ski area activities involve risks and hazards which must be

that may in fact be the case, this court is bound to accept as
true the facts pleaded by the plaintiffs, see Martino, 609 F.3d
at 2, and the plaintiffs have at the very least pleaded that the
section of trail in question was closed at the time. Whether the
closure was temporary or permanent (and whether a trail can be
“permanently closed” under the law of this state) is immaterial
to the court’s analysis of the defendants’ motion.
5

assumed as a matter of law by those engaging in such activities,
regardless of all safety measures taken by the ski area
operators.”

N.H. Rev. Stat. Ann. § 225-A:1.

Accordingly, the

statute–-as noted at the outset--contains an immunity provision
for ski area operators, providing 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 the operator for any injuries which
result from such inherent risks, dangers, or hazards.
The categories of such risks, hazards, or dangers which
the skier or passenger assumes as a matter of law
include but are not limited to . . . collisions with
other skiers or other persons . . . .
Id. § 225-A:24, I.

As interpreted by the New Hampshire Supreme

Court, this provision “mean[s] that a ski area operator owes its
patrons no duty to protect them from inherent risks of skiing,”
and, “[t]o the extent that a skier’s injury is caused by an
inherent risk of skiing, the skier may not recover from the ski
area operator.”

Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675,

680 (1996).
The question presented by the defendants’ motion concerns
the scope of this provision, which “supersede[s] and replace[s] a
skier’s common law remedies for risks inherent in the sport of
skiing.”

Cecere v. Loon Mtn. Rec. Corp., 155 N.H. 289, 291

(2007) (quoting Sweeney v. Ragged Mtn. Ski Area, 151 N.H. 239,
242 (2004)).

LMRC and Boyne argue that, because the plaintiffs

6

seek to recover for injuries resulting from a collision with
another “skier,”3 specifically identified by the statute as one
of the inherent risks of skiing, this action falls squarely
within the provision–-irrespective of Patterson’s status as a
Loon Mountain employee--and is therefore barred.

The plaintiffs,

for their part, concede that “under ordinary circumstances,” a
skier-to-skier collision would constitute an inherent risk of
skiing for which they could not recover.
(document no. 30) at 7.

Opp. to Mot. to Dismiss

They argue, however, 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.”
at 2; see also id. at 5.

Id.

LMRC and Boyne have the better

argument.
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

3

It is true that, at the time of the collision, Patterson
was snowboarding, and there are some differences between skiers
and snowboarders: in general, “[s]kiers view snowboarders as a
menace,” while “snowboarders view skiers as Elmer Fudd.” Dave
Barry, Snow Immobile, Wash. Post, Feb. 12, 1995, at W40. Despite
his preferred mode of descent, Patterson is considered a “skier”
under the Ski Statute. See N.H. Rev. Stat. Ann. § 225-A:2, IX
(defining “skier” as “a person utilizing the ski area . . . for
ski, snowboard, and snow tube recreation and competition”);
Cecere, 155 N.H. at 292-93.
7

canons of statutory interpretation requiring narrow construction
of immunity provisions and statutes in derogation of the common
law).

Nonetheless, in interpreting the Ski Statute, this court

applies the ordinary tools of statutory construction, “first
examin[ing] the language of the statute, and, where possible,
. . . ascrib[ing] the plain and ordinary meanings to the words
used.”

Id.

Here, the “plain and ordinary meaning” of the ski

area immunity provision could hardly be clearer:

it identifies

“collisions with other skiers or other persons” as one of the
“risks, dangers, or hazards which the skier . . . assumes as a
matter of law.”

It makes no exception for collisions with skiers

who are violating the Ski Statute, nor does it except collisions
with ski area employees, even when those employees are themselves
violating the Ski Statute or otherwise conducting themselves in a
negligent or reckless fashion.
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.

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

8

Cloutier v. City of Berlin, 154 N.H. 13, 17 (2006)) (internal
quotation marks and alterations omitted).

And, in any event, it

is entirely unsurprising that such exceptions are absent from the
statute.

As the California Court of Appeal observed in a similar

case when concluding that the plaintiff’s claims were barred by
the common-law doctrine of primary assumption of the risk (upon
which the Ski Statute’s ski area immunity provision is based, see
Nutbrown, 140 N.H. at 680):
[T]he inherent risks of injury from skiing down a snow
covered mountain include accidentally careless conduct
by other skiers resulting in collisions. This risk is
so inherent and obvious it goes without saying
plaintiff assumed the risk no matter who the other
skiers may be. . . . [The defendant ski area’s] act of
employing [the employee who caused the injury] and
requiring him to be on the slope did not increase the
risk of injury inherent in skiing.
Towns v. Davidson, 147 Cal. App. 4th 461, 469-70 (2007).
here.

So too

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.
In an effort to escape this conclusion, the plaintiffs point
to case law holding that the Ski Statute does not grant immunity
“to ski area operators who breach a statutorily imposed safety
responsibility.”

Rayeski v. Gunstock Area, 146 N.H. 495, 498

(2001) (citing Nutbrown, 140 N.H. at 683).

9

Section 225-A:24, the

plaintiffs note, imposes several safety responsibilities on
skiers, which, they say, Patterson breached by his conduct:
•

§ 225-A:24, III provides that “[e]ach skier . . . shall
conduct himself or herself, within the limits of his or her
own ability, maintain control of his or her speed and course
at all times both on the ground and in the air, while
skiing, snowboarding, snow tubing, and snowshoeing heed all
posted warnings, and refrain from acting in a manner which
may cause or contribute to the injury of himself, herself,
or others”;

•

§ 225-A:24, V(c) provides that no skier shall “[e]ngage in
any type of conduct which will contribute to cause injury to
any other person”; and

•

§ 225-A:24, V(g) provides that no skier shall “[s]ki or
otherwise access terrain outside open and designated ski
trails and slopes or beyond ski area boundaries without
written permission of said operator or designee.”

The plaintiffs maintain that because (in their view) Patterson
breached these responsibilities during the scope of his
employment at Loon Mountain, LMRC and Boyne may be held
vicariously liable for his breaches under the rule noted in the
Nutbrown line of cases.
The plaintiffs, however, misread those cases.

As the New

Hampshire Supreme Court explained nearly 50 years ago, the Ski
Statute “confers a right of action if the operator is in
violation of the statute which imposes duties by way of
classifying slopes and trails and notices of closed trails and
trails on which maintenance crews are working.”

Adie v. Temple

Mtn. Ski Area, Inc., 108 N.H. 480, 483 (1968) (emphasis added).

10

It is those duties, which are found in N.H. Rev. Stat. Ann.
§ 225-A:23, to which the court in Nutbrown was referring when it
held that a ski area operator could be held liable for a breach
of its statutory duties–-not to the duties imposed on individual
skiers by § 225-A:24.

See Nutbrown, 140 N.H. at 681, 683.

In

the words of another judge of this court, “the legislature has
specified the responsibilities of ski area operators in N.H. Rev.
Stat. Ann. § 225-A:23 and the responsibilities of skiers . . . in
N.H. Rev. Stat. Ann. § 225-A:24,” and the immunity provision in
§ 225-A:24, I “does not relieve ski area operators of liability
for injuries caused by a violation of their statutory duties
under N.H. Rev. Stat. Ann. § 225-A:23.”4

Gwyn v. Loon Mtn.

Corp., 2002 DNH 100, 9-11 (Barbadoro, J.) (emphasis added).
Plaintiffs have cited, and this court has found, no case law
holding that a ski area operator may be held liable for its
employees’ breach of the responsibilities set forth in § 225A:24.
In arguing that LMRC and Boyne may be held liable for
Patterson’s breach of those responsibilities, then, the
plaintiffs are inviting the court to recognize a basis for
liability that finds no footing in either the language of the Ski

4

Tellingly, although the plaintiffs quote this sentence from
Gwyn in their memorandum, they have chosen to omit the emphasized
segment. See Opp. to Mot. to Dismiss (document no. 30) at 6.
11

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.

Berninger v. Meadow Green-Wildcat Corp., 945 F.2d

4, 8-9 (1st Cir. 1991).

While the decision in Berninger was

based primarily upon the court’s interpretation of a single
phrase in a subsection of § 225-A:24, its admonition that the
class of individuals governed by § 225-A:24 “does not include a
ski operator or its employees,” id. at 9, sweeps substantially
more broadly than that.

“[U]nless and until” the New Hampshire

Supreme Court “has addressed a pertinent state law issue, a

12

federal district court is bound by First Circuit precedent” on
that issue.

Vertex Surgical, Inc. v. Paradigm Biodevices, Inc.,

648 F. Supp. 2d 226, 231 n.3 (D. Mass. 2009) (citing Esquire,
Inc. v. Esquire Slipper Mfg. Co., 243 F.2d 540, 544 (1st Cir.
1957)).

This court, then, cannot simply disregard Berninger,

unless an intervening decision of the New Hampshire Supreme Court
has reached a contrary conclusion–-and, as just noted, plaintiffs
have identified, and the court has located, no such decision.
(Indeed, although LMRC and Boyne discuss Berninger in their reply
memorandum–-and although the court granted the plaintiffs leave
to file a surreply, see Order of Oct. 30, 2013–-the plaintiffs
made no attempt to reconcile their position with that case until
oral argument.)
For the foregoing reasons, the court concludes that M.H.’s
collision with Patterson was an “inherent risk, danger, or
hazard” of skiing, despite Patterson’s alleged violation of the
responsibilities set forth in § 225-A:24.

The court is

sympathetic to the plaintiffs and their son; the collision was
unfortunate and undoubtedly frustrating in that it was caused by
a Loon Mountain employee.

Because the plaintiffs’ injuries

resulted from an inherent risk of skiing, however, they “may not
maintain an action against” LMRC or Boyne to recover for those

13

injuries.

N.H. Rev. Stat. Ann. § 225-A:24, I; see also Nutbrown,

140 N.H. at 680; Cecere, 155 N.H. at 296.5
IV.

Conclusion
For the reasons set forth above, the defendants’ motion to

dismiss the plaintiffs’ claims against them6 is GRANTED.

The

5

As a final aside, the court notes that the plaintiffs rely
upon several extrajurisdictional cases in opposing the motion to
dismiss. See Opp. to Mot. to Dismiss (document no. 30) at 9-10)
(citing Rusnak v. Walker, 273 Mich. App. 299 (2006); Jagger v.
Mohawk Mtn. Ski Area, Inc., 269 Conn. 672 (2004); Clover v.
Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991)). Those cases do
not affect this court’s ruling, for the following reasons:
•

In the Rusnak case, the plaintiff did not seek to recover
from a ski area, but from a fellow skier, so the court never
had occasion to discuss the scope of ski area liability
under Michigan’s version of the Ski Statute (which, in any
event, differs from the New Hampshire law).

•

The result in the Jagger case was based upon an exemption
from the Connecticut Ski Statute’s ski area immunity
provision that does not exist in the New Hampshire law.
That exemption denies ski area operators immunity for
injuries “proximately caused by the negligent operation of
the ski area by the ski area operator, his agents, or
employees.” See Jagger, 269 Conn. at 674 n.4 (quoting Conn.
Gen. Stat. § 29-212). Indeed, the Jagger court itself noted
this critical difference in rendering its opinion. See id.
at 696 n.20 (distinguishing N.H. Rev. Stat. Ann. § 225-A).

•

While the Clover case is arguably more apposite than either
of the other cases upon which the plaintiffs rely, the court
finds it unpersuasive for the reasons discussed in Glover v.
Vail Corp., 955 F. Supp. 105, 108-09 (D. Colo. 1997)
(Babcock, J.), aff’d, 137 F.3d 1444. This court cannot
improve upon the analysis of the district court in that
case, and adopts it wholesale.
6

Document no. 28.
14

plaintiffs’ claims against Patterson remain pending, as do the
counterclaims against the plaintiffs by LMRC and Boyne.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

April 16, 2014

Eric B. Goldberg, Esq.
Michael B. Cosentino, Esq.
Susan D. Novins, Esq.
Mark D. Wiseman, Esq.
Thomas B.S. Quarles, Jr., Esq.
Leigh S. Willey, Esq.
Margaret A. O’Brien, Esq.
Kevin C. Devine, Esq.

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