2006-177, BETH CECERE, INDIVIDUALLY AND AS ADM'X OF THE ESTATE OF LOUIS CECERE v. LOON MT. RECREATION CORP.

The plaintiff, Beth Cecere, individually and as

Matthew R. Johnson on the brief, and Mr. Quarles orally), for the defendants. Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and

Bakis on the brief, and Mr. Hutchins orally), for the plaintiff. Wiggin & Nourie, P.A., of Manchester (Peter E. Hutchins and Gail E. to press. Errors may be reported by E-mail at the following address:

LOON MOUNTAIN RECREATION CORP. & a.

BETH CECERE, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE

editorial errors in order that corrections may be made before the opinion goes No. 2006-177 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Grafton Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

remedies for risks inherent in the sport of skiing.”

construed.

as a matter of law, the dangers inherent in the sport, and to that Each person who participates in the sport of skiing accepts

Under this provision:

intended this provision to “supersede and replace a skier’s common law Sweeney v. Ragged Mt. Ski Area, 151 N.H. p. 2 239, 242 (2004). The legislature RSA 225-A:24, I, is an immunity provision for ski area operators.

Id. at 401-0 p. 2 2.

immunity provisions barring the common law right to recover are strictly be taken away, it must be expressed clearly by the legislature. Id. Accordingly, presumption that the legislature has no such purpose. Id. If such a right is to common law. Id. While a statute may abolish a common law right, there is a CPA claim. The trial court granted the motion. Moreover, we strictly interpret statutes that are in derogation of the (amended p. 2 2005) barred her negligence claims and that she failed to prove her moved for summary judgment, arguing, in part, that RSA chapter 225-A (2000) entire statutory scheme. Id. intent in enacting them, and in light of the policy sought to be advanced by the the words used. Id. Our goal is to apply statutes in light of the legislature’s statute, and, where possible, we ascribe the plain and ordinary meanings to statute considered as a whole. Id. We first examine the language of the final arbiter of the intent of the legislature as expressed in the words of the Soraghan v. Mt. Cranmore Ski Resort, 152 N.H. 399, 401 (2005). We are the A. We review the trial court’s interpretation of RSA chapter 225-A de novo. We first address the parties’ arguments with respect to RSA chapter 225-

violating the New Hampshire Consumer Protection Act (CPA). The defendants review the trial court’s application of the law to the facts de novo. Id. judgment as a matter of law, we will affirm the trial court’s decision. Id. We any genuine issue of material fact, and if the moving party is entitled to died two days later. Dalton, 153 N.H. 75, 77 ( p. 2 2005). If our review of the evidence does not reveal in the light most favorable to the non-moving party. Dalton Hydro v. Town of the affidavits and other evidence, and all inferences properly drawn from them, When reviewing a trial court’s grant of summary judgment, we consider

Thereafter, the plaintiff sued the defendants for negligence and for

he failed to land safely, the decedent sustained serious injuries and tragically skiers and snowboarders typically use its features, including jumps. Because one who “participates in the sport of skiing.” p. 3 RSA p. 2 225-A:2, V. Based upon these provisions, we have held that a “skier” is

sport of skiing.”

nordic ski area operator and open to the public for recreation or competition.”

snowboarders. Because the decedent was a “skier,” he “participate[d] in the

sports, with different mechanics and maneuvers.” She further observes that designated trails and slopes and ski jumps under the control of the alpine and skiing.” RSA 225-A:2, IV. Ski areas are “all passenger tramways and all operator, to be used by skiers for the purpose of participating in the sport of

conceded at oral argument, the terrain park is used by both alpine skiers and most difficult on the mountain. As the trial court found, and as the plaintiff Loon Mountain depicts the terrain park as a black diamond trail, one of the 3

snowboard. She asserts that snowboarding and skiing are two “very different in this paragraph.

the alpine or nordic ski operator on trail boards or maps supplied by such

of participating in the sport of skiing.” RSA 225-A:2, IV. The trail map for

The plaintiff argues that her son was not a “skier” because he used a other skiers or other persons or with any of the categories included plainly marked or visible snow making equipment; collisions with See Sweeney, 151 N.H. at 242. the sport of skiing” and was not a “skier.” other areas.” Ski slopes, trails and areas “mean only those areas designated by and other forms of forest growth or debris; . . . pole lines and

trail boards or maps [they] supplied . . . , to be used by skiers for the purpose he used an alpine “slope” or “trail” that was “designated by the [defendants] on Here, we hold that the decedent was a “skier” under the statute because

exclusively for that purpose, rather than an alpine or nordic slope or trail. Id. found it significant that the patron was using a snow tube run designated

In Sweeney, we ruled that a patron who was injured while utilizing a looked to other provisions for guidance.

A:2, II defines a skier as “a person utilizing the ski area under the control of a not limited to the following: variations in terrain, surface or the skier or passenger assumes as a matter of law include but are Sweeney, 151 N.H. at 242. RSA 225- Because the phrase “sport of skiing” is not specifically defined, we have hazards. The categories of such risks, hazards or dangers which

RSA 225-A:24, I.

injuries which result from such inherent risks, dangers, or extent may not maintain an action against the operator for any p. 4 (Supp. 2006).

sports of skiing, snowboarding, snow tubing and snowshoeing.” RSA 225-A:1 “[w]inter sports.” defines “[t]ubing terrain,” and RSA 225-A:2, XI (Supp. 2006), which defines

referred only to the “sport of skiing.” As amended in 2005, it refers to “the

definitions to RSA 225-A:2, including RSA 225-A:2, X (Supp. 2006), which

instance, the 1978 version of the declaration of policy provision, RSA 225-A:1, that they pertain to snowboarding, snow tubing and snowshoeing. For legislature amended certain provisions of RSA chapter 225-A to make clear terrain, and nordic ski jumps.” The 2005 amendments also added several new refers to “designated alpine and nordic trails, slopes, freestyle terrain, tubing provision in the amended RSA chapter 225-A, RSA 225-A:2, VII (Supp. 2006), 4

which was last amended in 1978, to apply to snowboarding. In 2005, the

referred to “designated trails and slopes and ski jumps,” whereas the analogous

and “other ski area activities.” “strong evidence” of the legislature’s intent with respect to the 1978 version of Coming so soon after we decided Sweeney, these amendments are

demonstrate that the legislature did not intend the prior version of the chapter,

Similarly, the definition of “[s]ki areas” provided in RSA 225-A:2, V

as narrow as the plaintiff suggests, it would not have referred to “other users”

regardless of all safety measures taken by the ski area operators.

The plaintiff contends that the 2005 amendments to RSA chapter 225-A

(Emphasis added.) Had the legislature intended the scope of the chapter to be

assumed as a matter of law by those engaging in such activities, define a skier as one who uses skis. Rather, it defines a skier as “a person other ski area activities involve risks and hazards which must be . . . and nordic . . . areas, recognizing that the sport of skiing and primary areas of responsibility of skiers and other users of alpine the legislature did not intend the statute to apply to snowboarders. [I]t shall be the policy of the state of New Hampshire to define the

RSA 225-A:1 further evinces this intent. It provides, in pertinent part:

area, not upon the means by which they do so. See Sweeney, 151 N.H. at 242. (emphasis added). RSA chapter 225-A focuses upon those who use the ski utilizing the ski slopes, trails, jumps or other areas.” RSA 225-A:2, II utilizing the ski area under the control of a ski area operator for the purpose of

The plaintiff misinterprets RSA chapter 225-A. This chapter does not

not include the words “snowboarding” or “snowboard.” Therefore, she reasons, the plain language of RSA chapter 22 p. 5 5-A, before it was amended in 2005, did 5

constitute “variations in terrain”). vehicles and holding that man-made alterations to land such as excavation pit

omitted). The jump, which the plaintiff admitted at oral argument was made man-made components of lift towers are enumerated as inherent risks.” physical features of a tract of land.” Lorette I, 140 N.H. at 211 (quotation New International Dictionary 2 p. 5 533 (unabridged ed. 2002). “Terrain is the obstacles on ski trails based upon . . . whether they are natural or man-made “change in the form, position, state or quality of something.” Webster’s Third subsequent to their passage.” a jump like that in question. The plain meaning of the word “variation” is a Further, the plain meaning of the phrase “variations in terrain” includes

not an inherent risk of skiing.

similar language in immunity provision pertaining to off-highway recreational Sam Inv. Properties, 140 N.H. 208, 210-11 (199 p. 5 5) (Lorette I) (interpreting Rayeski v. Gunstock Area, 146 N.H. 495, 498 (2001); see also Lorette v. Peter-

. . . . We note, for instance, that both natural snow and ice conditions and

mistaken. “We discern no general intent in RSA 22 p. 5 5-A:24 to classify potential scope existent at the time of the enactments and to those coming into existence contends that this refers only to variations that occur naturally. The plaintiff is 225-A:24, I, lists “variations in terrain” as an inherent risk of skiing, but

The plaintiff next asserts that because the jump was man-made, it was

amendments support our construction of the 1978 version of RSA chapter 22 p. 5 5- snowboarding, not whether this sport existed in 1978. of the statute as it existed before the 2005 amendments encompassed 151 N.H. 513, 517 (2004). Thus, the relevant inquiry is whether the language

alike to persons, subjects and business[es] within their general purview and because snowboarding did not exist in 1978. “[L]egislative enactments apply “clarified” that RSA chapter 22 p. 5 5-A was intended to apply to snowboarding The plaintiff also argues that the 2005 amendments could not have

119 N.H. at 20 p. 5 5. Thus, contrary to the plaintiff’s assertions, the 2005 of the 1978 version of RSA chapter 225-A. See Blue Mountain Forest Ass’n, In this way, the 2005 amendments clarified, rather than changed, the meaning Zimmerman Ford v. Midwest Automotive I, p. 6 679 N.W.2d 606, 610 (Iowa 2004). California Dept. of Veterans Affairs, 135 P.3d 637, 643 (Cal. 2006); Bob Statutory Construction § 22:31, at 380 (6 ed. 2002); see also Carter v. th as a legislative interpretation of the original act.” 1A N. Singer, Sutherland as to the interpretation of the original act, it is logical to regard the amendment 205 (1979). Where an “amendment [is] enacted soon after controversies [arise] the act. See Blue Mountain Forest Ass’n v. Town of Croydon, 119 N.H. 202, personnel.

inspect the trails and inadequately trained, supervised and managed its skiers, had inadequate safety and risk reduction policies, did not adequately construct and maintain the ski trails adequately, inadequately channeled

because it “created and maintained a dangerous condition of the ski trails.”

ski trail, hit an area to the right of the trail and fell down a ravine.

defendants’ negligence. risks of skiing as the likely causes of the plaintiff’s injuries.” Id. at p. 6 684. All of are mutually exclusive.” Id. We ruled that all of these allegations “suggest[ed] only inherent

225-A:24, I. (quotation omitted). Specifically, he claimed that the defendant failed to for any negligence related to these risks. patrons from the inherent risks of skiing and thus are immunized from liability Id. 140 N.H. at p. 6 683. He asserted that the defendant was liable for these injuries

instructive. In that case, the plaintiff alleged that he was injured when he left a Our decision in Nutbrown v. Mount Cranmore, 140 N.H. p. 6 675 (1996), is

skiing, we necessarily have concluded that he was not injured by the Id. at 499. the defendants assert that he was injured by an inherent risk of skiing. injuries caused by an inherent risk of skiing and injuries caused by negligence is no duty to protect against such risks.” Id. at 499-500. “The categories of caused by an inherent risk cannot have been negligently caused because there individual has been injured by an inherent risk is a legal question under RSA See id. at 497, 499-500. “[A]n injury

omitted). Under RSA 225-A:24, I, ski area operators owe no duty to protect “variations in terrain” owed or there was no breach of an existing duty.” Id. at 499 (quotation proposition that the defendant was not negligent, that is, there was no duty embodied in RSA 225-A:24 is simply an alternative expression for the

Having determined that the decedent was injured by an inherent risk of by the defendants’ negligent design, construction or maintenance of the jump, judgment. She observes that while she argues that the decedent was injured See id. regarding the cause of the decedent’s injuries, which precluded summary provision pertaining to off-highway recreational vehicles). Thus, whether an Properties, 142 N.H. 208, 211 (1997) (Lorette II) (interpreting immunity

individuals who participate in “the sport of skiing” assume the risk of N.H. Int’l Speedway, Inc., 151 N.H. 409, 414 (2004), under RSA 225-A:24, I, While proximate causation generally is a question of fact, see Carignan v.

The plaintiff next contends there were disputed issues of material fact

thus was a “variation[ ] in terrain.” solely of snow, constituted a change in the physical features of the land and conduct. p. 7 whether RSA 225-A:24, I, immunizes ski area operators from their intentional

construction and structural maintenance of all ski jumps.

immunizes defendants from their reckless acts. We also need not address

entirely of snow. We disagree.

Further, the ski area operator shall be responsible for the design,

not resolve in this case whether RSA 225-A:24, I, like former RSA 215-A:34, II,

and maintain the jump properly. use of the ski jump is entirely at the ski jumper’s own risk.

defendants negligently designed, constructed or maintained the jump, we need participating in sport). As the plaintiff here has alleged only that the barred by former RSA 215-A:34, II; fifteen-foot drop off was inherent risk of

pertains to both nordic jumps, which the defendants describe as “large free-

inherent risk. son’s injury because they breached their statutory duty to design, construct the ski jump facility, which sign shall warn the ski jumper that the The operator shall provide a sign in a prominent location at or near

RSA 225-A:23, IV provides: the statute.

otherwise prevent access to” fifteen-foot wall and “drop off onto a concrete slab”

that the word “jump” as used in RSA 225-A:23, IV and elsewhere in the chapter

Alternatively, the plaintiff asserts that the defendants are liable for her

See Lorette II, 142 N.H. at 211-12; Nutbrown, 140 N.H. at 683-84.

maintained the jump; such claims fall within the inherent risks identified by bars any claim that the defendants inadequately constructed, designed or “in creating and then failing to warn, inspect, modify, illuminate, supervise or terrain and is therefore an inherent risk of skiing, RSA 225-A:24, I, necessarily Here, because we have determined that a jump constitutes a variation in

former RSA 215-A:34, II immunized a landowner for any claim that he negligence, but also from their reckless conduct. In that case, we held that off-highway recreation vehicles, immunized defendants not only from their

148 N.H. 592, 593-94 (2002) (plaintiff’s claim that defendant acted recklessly

Lorette, 142 N.H. at 212; see also Moody v. Continental Paving,

provision, former RSA 215-A:34, II (2000) (repealed 2005), which pertained to In Lorette II, 142 N.H. at 212, we ruled that a similar immunity

the beginning of the trail. Id. at 683-84. allegation to survive was that the defendant violated its statutory duty to mark these allegations were therefore barred by RSA 225-A:24, I. Id. The only such a facility.”

p. 8 guidelines, and any facilities that are associated with the use or viewing of

ski jumping and built in accordance with appropriate standards and

amended complaint, the plaintiff alleged that the defendants violated the CPA respect to nordic ski jumps.

defined a nordic ski jump as “a facility constructed for the purpose of nordic definition to RSA 225-A:2. RSA 225-A:2, IV (Supp. 2006). The legislature phrase “ski jump.” The legislature also added “[n]ordic ski jump” as a new

rejected the plaintiff’s contention under RSA 225-A:23, IV. 8

trade or commerce within this state.” RSA 358-A:2 (Supp. 2006). In her “periodic inspections and adjustments” and registration make sense only with necessary in carrying out this policy.” The references to “mechanical hazards,” operational practices and make such independent inspections as may be

amended RSA 225-A:1 and RSA 225-A:23, IV to add the word “nordic” to the

to nordic jumps. Accordingly, we hold that the trial court did not err when it

competition or any unfair or deceptive act or practice in the conduct of any part: “[I]t shall be unlawful for any person to use any unfair method of We now address the plaintiff’s CPA claim. The CPA provides, in pertinent lift devices and ski jumps, establish reasonable standards of design and

the 2005 amendments to RSA chapter 225-A. In 2005, the legislature

are those used for cross country activities and ski jumps.” Based upon the above, we conclude that RSA 225-A:23, IV pertains only areas. “[A]lpine areas are those used for downhill activities, while nordic areas A:1, for instance, the legislature distinguished between alpine and nordic Id.

RSA 225-A:1. RSA 225-A:1 further provides that the state “shall register all ski

We find additional support for this construction of RSA 225-A:23, IV in

jump” as used in RSA 225-A:23, IV refers only to nordic jumps. In RSA 225-

the statutory scheme of which it is a part, and to ensure that these are subject to “periodic inspections and adjustments.” mechanical hazards in the operation of ski tows, lifts, jumps and tramways” was state policy to “protect . . . citizens and visitors from unnecessary at 242; see RSA 225-A:1. Also in that provision, the legislature stated that it

Other provisions of RSA chapter 225-A demonstrate that the phrase “ski

153 N.H. 664, 666 (2006), this intent becomes more evident.

maintained structurally. When we construe RSA 225-A:23, IV in the context of apply to nordic ski jumps, which have “ski jump facilit[ies]” and can be maintenance” is some evidence that the legislature intended this provision to The use of the phrase “ski jump facility” and the reference to “structural experience to do so safely.” p. 9 should “not attempt any features unless [they] have sufficient ability and

these pages, the defendants specifically warn prospective patrons that they

website that states that the terrain park is open and “is the place to be.” On

in the sport.” On pages 158 and 159 is another purported print-out from a that under New Hampshire law, skiers and riders “accept the dangers inherent our guests participate in the sport.” This brochure specifically tells patrons

this court with a record sufficient to decide her issues on appeal.

that warns patrons that while “[g]uest safety is a fundamental value” of the CPA claim, she has failed to provide copies of her requests for our review. defendants tell patrons that the terrain park is “[f]un.” Page 82 is a brochure her appendix. Page 72 purports to be a print-out from a website in which the

for our review of this issue. It is the burden of the appealing party to provide

BRODERICK, C.J., and DUGGAN and GALWAY, JJ., concurred.

Although the plaintiff argues that the discovery she sought was “critical” to her Kinderworks Corp., 136 N.H. 548, 553 (1992); see also Sup. Ct. R. 13. snowboarding.” In her brief, the plaintiff points to pages 72, 82 and 158-59 of See Rix v.

discovery requests, we observe that she has failed to provide a record sufficient granting the defendants’ motion after staying their obligation to answer certain claims were made by the defendants.” The record supports this ruling. To the extent that the plaintiff asserts that the trial court erred by

summary judgment to the defendants upon her CPA claim. evidence to substantiate her claim.” Accordingly, we uphold its grant of error in the trial court’s determination that the plaintiff “has failed to present Based upon our review of the record submitted on appeal, we find no

representing that the terrain park was “state of the art” or “safe for . . .

depositions, or answers to interrogatories that set forth the representations she on this claim, in part, because the plaintiff failed to submit “any affidavits, snowboarding.” The trial court granted summary judgment to the defendants

The record on appeal contains no advertising by the defendants

“state of the art” and “safe for the use by patrons for the specific purpose of by falsely advertising that the terrain park and specifically its jumps were