2008-650, HELEN MARTIN & a. v. PAT'S PEAK, INC.

This case comes before us on an interlocutory transfer

Leigh S. Willey on the brief, and Ms. Willey orally), for the defendant. Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and

Daniel J. Shanahan on the brief, and Mr. Shanahan orally), for the plaintiffs. Gibson & Behman, P.C., of Manchester (Christopher W. Driscoll and to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. HELEN MARTIN & a.

No. 2008-650 editorial errors in order that corrections may be made before the opinion goes Merrimack Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as in this paragraph. p. 2 other skiers or other persons or with any of the categories included

plainly marked or visible snow making equipment; collisions with

the foregoing whether above or below snow surface); pole lines and

(Supp. 2008).

of forest growth or debris; lift towers and components thereof (all of or ice conditions; bare spots; rocks, trees, stumps and other forms to the following: variations in terrain, surface or subsurface snow

certified return receipt mail within 90 days of said injury.” RSA 225-A:25, IV however, that as a condition precedent thereof the operator shall be notified by the same is commenced within 2 years from the time of injury provided,

passenger assumes as a matter of law include but are not limited

injured, RSA 225-A:24, I, provided:

maintained against any operator for injuries to any skier or passenger unless

categories of such risks, hazards or dangers which the skier or which result from such inherent risks, dangers, or hazards. The was defective, and/or failed to warn of the defective condition. may not maintain an action against the operator for any injuries have known, in the exercise of reasonable care, the tubing park and/or failed to repair the tubing park when it knew or should

RSA 225-A:25, IV (2000) (amended 2005). At the time Helen Martin was

RSA 225-A:25, IV has provided, in pertinent part, that “[n]o action shall be 1978 version of the statute. At all relevant times, the statute of limitations in remained unchanged since 1978 and is therefore sometimes referred to as the RSA 225-A:24, I (2000). Until its amendment in 2005, this paragraph had

matter of law, the dangers inherent in the sport, and to that extent

tubing park, failed to maintain its tubing park in a safe condition

225-A:24 (2000) (amended 2005) and by the statute of limitations contained in alleging that Helen Martin’s injuries:

Each person who participates in the sport of skiing accepts as a

defective and unreasonably dangerous condition to exist on its

Pat’s Peak moved to dismiss, arguing that the action is barred by RSA February 15, 2007, the plaintiffs instituted this action against the defendant, was injured while snow tubing at the Pat’s Peak ski area. By writ dated Michael Martin brought a claim for loss of consortium. area in Henniker known as “Pat’s Peak.” On February 18, 2004, Helen Martin

were the result of the Defendant’s negligence in that it permitted a

transfer statement or appear in the record. Pat’s Peak owns and operates a ski The following relevant facts are recited in the parties’ joint interlocutory p. 3 [

bar their claims because Helen Martin was not a “skier” within the meaning of

because Helen Martin’s injuries were the result of risks inherent in

The Martins contend that the 1978 version of RSA 225-A:24, I, does not

We will address the questions in turn.

limitations, RSA 508:4 applies to the Plaintiffs’ claims? encompass snow tubing. immunity to activities beyond simply the “sport of skiing” and to (2005) p. 3 [sic] or New Hampshire’s general three (3) year statute of limitations under the Ski Statute RSA 225-A (1978) [sic] and sic] and applicable case law? Whether the two (2) year statute of

Whether RSA 225-A applies to and bars Plaintiffs’ claims

following questions: The trial court therefore granted an interlocutory transfer without ruling of the

I. the New Hampshire legislature had originally intended to grant the present claims. . . . An argument can therefore be made that that the 2005 amendments, “ p. 3 [c]oming so soon after we decided However, . . . the analysis . . . in Cecere also may be applicable to would not be subject to the immunity provisions of RSA 225-A. Sweeney constitutes direct case law precedent that snow tubing

snowboarding, snow tubing and snowshoeing.” In its order on the motion to dismiss, the trial court noted:

292. an alpine slope or trail is a “skier” under the 1978 version of the statute. Id. at that the 2005 amendments supported our holding that a snowboarder utilizing the act.” tubing” did not participate in the sport of skiing for purposes of RSA 225-A:24, Cecere, 155 N.H. at 293 (quotation omitted). We therefore concluded “strong evidence of the legislature’s intent with respect to the 1978 version of upon Sweeney,” are the statute, rather than the amended version, applied. Nevertheless, we noted which Cecere arose occurred prior to these amendments, the 1978 version of Corp., 155 N.H. 289, 293 (2007); see Laws 2005, ch. 145. As the incident from

certain provisions of RSA chapter 225-A to make clear that they pertain to Shortly after the Sweeney decision, in 2005, “the legislature amended

Sweeney, 151 N.H. at 242-43.

that a person “utilizing a snow tube run designated exclusively for snow Sweeney v. Ragged Mt. Ski Area, 151 N.H. 239 (2004), in which we held was not a “skier” within the meaning of the applicable statutes. They relied The Martins opposed the motion to dismiss, arguing that Helen Martin p. 4 225-A:24, I.”

not “‘participat[e] in the sport of skiing’ as intended by the legislature in RSA

“was utilizing a snow tube run designated exclusively for snow tubing,” she did

RSA chapter 225-A does not define the phrase “sport of skiing,” we looked in those who utilize alpine and nordic areas.” hazards” that are “inherent in the sport.” RSA 225-A:24, I (2000). Because [ski area] operator for any injuries which result from . . . risks, dangers, or

Hampshire to define the primary areas of responsibility of

Id. at 242-43.

because the plaintiff “was not utilizing an alpine or nordic slope,” but rather

that “[t]his provision indicates that the focus of the statutory scheme is upon 151 N.H. at 242 (quoting RSA 225-A:1 (2000) (amended 2005)). We determined and hazards’” which participants must assume as a matter of law. “participat[ing] in the sport of skiing” from “maintain[ing] an action against the Sweeney, recognizing that the sport of skiing and other ski area activities involve risks users of alpine (downhill) and nordic (cross country and ski jumps) areas, the entire statutory scheme. skiers and other which, in pertinent part, declared it to be “‘the policy of the state of New enacting them, and in light of the policy sought to be advanced by Sweeney goal is to apply statutes in light of the legislature’s intent in, 151 N.H. at 242. We also looked to the statute’s declaration of policy particular, the definition of “skier” in RSA 225-A:2, II (2000) (amended 2005). Sweeney “to other provisions of the statutory scheme for guidance”; in law remedies for risks inherent in the sport of skiing.”

As previously noted, the 1978 version of RSA 225-A:24, I, bars persons

omitted). to be taken away, it must be noted clearly by the legislature.” Id. (quotation law right to recover are to be strictly construed.” Id. at 241. “If such a right is accordance with the principle that “immunity provisions barring the common ascribe the plain and ordinary meanings to the words used. Our 242 (quotation and italics omitted). Thus, we interpret the statute in

ski area operators[,] . . . intended to supersede and replace a skier’s common We noted in Sweeney that RSA 225-A:24, is “an immunity provision for tubers.” Cecere, 155 N.H. at 291 (citations omitted). precisely the one presented in

examine the language of the statute, and, where possible, we in the words of the statute considered as a whole. We first We are the final arbiter of the intent of the legislature as expressed

Sweeney, 151 N.H. at 241.

immunity to ski area operators against claims for injuries brought by snow

skiing. Thus, as the trial court recognized, the first question before us is the statute and her injuries were not caused by risks inherent in the sport of legislature . . . cannot constitutionally enact laws that affect existing causes of

p. 5 nothing in this passage from

offenses.” N.H. CONST. pt. I, art. 23. We have therefore held that “[t]he chapter 225-A. snow tubing and snowshoeing within the statute’s ambit. Nevertheless, rather than changed, the meaning of the 1978 version of RSA

Martins’ claims.

intent – was necessary, and was accomplished by the 2005 amendments.

expresse[d]” in the 1978 version of the statute.

retrospective laws “either for the decision of civil causes, or the punishment of Cecere). Part I, Article 23 of the New Hampshire Constitution prohibits legislature sought to clarify its intent to include the activities of snowboarding, Supp. 2d 578, 580 (D. Mass. 2007) (reaching contrary conclusion, based upon of the original act. In this way, the 2005 amendments clarified,

But see Lanzilla v. Waterville Valley Ski Resort, Inc., 517 F.

[1978] version of the chapter . . . to apply to snowboarding.” The amendments do not, however, apply retrospectively to bar the

other words, clarification of the legislature’s intent – admittedly, its original

injured on a track designated solely for snow tubing” was not “clearly Sweeney that the “intent to extinguish the common law claims of snow tubers

determined that rather than intending a substantive change in the statute, the it is logical to regard the amendment as a legislative interpretation

to RSA chapter 225-A demonstrate that the legislature did not intend the Rather, it served to reject the plaintiff’s contention that “the 2005 amendments We did not use this analysis, however, in reaching our holding in Cecere.

Cecere, 155 N.H. at 293 (quotation, citations and brackets omitted). that they pertain to snowboarding, snow tubing and snowshoeing,”

after controversies arise as to the interpretation of the original act, Ski Statute.” Since 1978 version of the act. Where an amendment is enacted soon remotely similar to the sport of skiing, [she] is not a ‘skier’ under the . . . 1978 are “strong evidence” of the legislature’s intent with respect to the Pat’s Peak, rather than an alpine or nordic trail, and snow tubing is not Coming so soon after we decided Sweeney, these amendments

N.H. at 293, we stated:

225-A. After noting that the amendments to certain provisions “make clear comments we made in Cecere regarding the 2005 amendments to RSA chapter The suggestion that Sweeney may not be controlling arises from

with the Martins unless Sweeney is no longer good law.

designated exclusively for snow tubing, which was designed and constructed by The Martins contend that because Helen Martin “was using a run statute. Pat’s Peak counters, however, that because this suit was not

p. 6 filed.

found elsewhere remain controlling.” limitations and tolling provisions, and to ensure that more specific statutes

case, as we held above that she was not a “skier” under the 1978 version of the

be time-barred. If, on the other hand, RSA 508:4 applies, the suit was timely

the 1978 Ski Statute.” At the time Helen Martin was injured, that was the Helen Martin was not a “‘skier’ and her snow tubing claim does not fall within participating in the sport of skiing.’” Thus, if that statute is applicable, her action filed on February 15, 2007, would the limitations period of RSA 225-A:25, IV expired on February 18, 2006. in RSA 508:4, I (1997). Since Helen Martin was injured on February 18, 2004,

and therefore RSA 225-A:24, I, does not bar the Martins’ claims. apply to cases in which a different time is limited by statute.” The purpose of

The Martins contend that RSA 225-A:25, IV is not applicable because or maps [they] supplied . . . , to be used by skiers for the purpose of N.H. 744, 747 (1994). limitations in RSA 225-A:25, IV or the general three-year statute of limitations Doggett v. Town of North Hampton, 138

“participate in the sport of skiing,” RSA 225-A:24, I, at the time of her injuries, RSA 508:1 (1997) states that “[t]he provisions of this chapter shall not

alpine ‘slope’ or ‘trail’ that was ‘designated by the [defendants] on trail boards

precisely the construction of the statute set forth in We now turn to whether this action is governed by the two-year statute of

accrued claims. that Helen Martin was neither a “skier,” RSA 225-A:2, IV, nor did she Sweeney ’s validity and it remains controlling in this case. Accordingly, we hold 225-A:2, IV). Thus, neither Cecere nor the 2005 amendments undermine

to foreclose such actions entirely.” decedent snowboarder “was a ‘skier’ under the statute because he used an

retrospectively apply the 2005 amendments in that case. Rather, we applied This conclusion is not inconsistent with Cecere, as we did not

cannot be applied retrospectively to substantively bar the Martins’ previouslyamendment.” Id. Similarly, the 2005 amendments to RSA chapter 225-A even though she did not file suit until after the effective date of the could not “be applied retroactively to bar the plaintiff’s wrongful death action

amended the workmen’s compensation statute, “[t]he clear effect of [which] was wrongful death at the time her husband died. Subsequently, the legislature 128 N.H. 695, 699 (1986). In Lozier, the plaintiff had a cause of action for v. Brown Company, 121 N.H. 67, 70 (1981), limited by In re Estate of Fontaine, action, regardless of whether suit upon that action has not been p. 6 filed.” Lozier principles of statutory construction, “examine the language of the statute.”

p. 7 to determine the legislature’s intent, we first, in accordance with general

substantive or procedural rights.”

practically, a suitable remedy to enforce his rights.” construction, whether it intended to do so. could not substantively be applied to the plaintiffs. Accordingly, as our goal is definition of a term employed therein, which amended definition, moreover, inapplicable to the plaintiffs, became applicable through a change in the 7

“[n]o action shall be maintained against any operator for injuries to any skier

statutory interpretation that “turns on whether the statute affects the parties’

of the Constitution as a retrospective law, so long as it leaves to the party, time within which [an] action must be prosecuted[] is not within the prohibition apply a statute retrospectively, we must determine, as a matter of statutory Specifically, we have noted that “a statute which . . . reduces or enlarges the amended statute or its prior version applies, but whether a statute, previously

reasonable diligence to save his claim by a suit.” not the substantive rights of the litigants.” As previously noted, RSA 225-A:25, IV provides, in pertinent part, that

Cecere, 155 N.H. at 291. apply prospectively or retrospectively,” we generally employ a presumption of

before us. Before determining whether the legislature can constitutionally Article 23 of the New Hampshire Constitution under certain circumstances. In the instant case, however, the issue is not simply whether an

claim in question becomes barred, to enable the claimant by the use of 638 (2000) (quotation omitted). limitations upon a party’s right to sue and, as such, affect only the remedy and already expired in part or not, provided a sufficient time remains before any Appeal of Wal-Mart Stores, 145 N.H. 635, limitations at its pleasure, regardless of “whether the time of limitation has

611, 613 (1993). “When the legislature is silent as to whether a statute should apply to procedural statutes. See Eldridge v. Eldridge, 136 N.H.

Nevertheless, Pat’s Peak’s argument addresses only half of the question application of a statute of limitations does not violate the prohibition of Part I,

“recognize[d] the general rule that statutes of limitation are procedural 344, 353 (1852). Accordingly, the legislature may change the statute of

procedural in nature; and (2) the prohibition on retrospective laws does not the statute of limitations is permissible because: (1) statutes of limitations are Pat’s Peak argues that application of the 2005 amendments to the Martins via

120 N.H. 501, 504 (1980). We have also determined that retrospective

The legal principles Pat’s Peak cites are correct. We have, for instance,

definition of skier applies for purposes of applying the statute of limitations. commenced until after the 2005 amendments became effective, the amended time-barred.

p. 8 to their cause of action. Accordingly, RSA 508:4 applies, and the action is not 225-A:25, IV, even as in force at the time the Martins filed suit, does not apply statutory definition at the time she sustained the injuries complained of, RSA

“skier” to the time of injury. Since Helen Martin was not a “skier” within the

interpreted as a unitary phrase, tying the identity of the injured party as a

that statute is that the legislature intended “injuries to any skier” to be plain language of RSA 225-A:25, IV. Rather, the more likely construction of somewhat convoluted construction, however, is not readily apparent in the 8

the class of persons who sustained injury, after the injury occurred. This

to which that statute relates, after the cause of action’s accrual, by redefining Martins presumes that the legislature intended to redefine the cause of action injuries to a skier. Pat’s Peak’s contention that RSA 225-A:25, IV applies to the

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

its time for commencement, through reference to certain injuries; namely,

the intent to do so. We conclude that it did not. question before us is whether, by amending the definition of “skier,” it evinced shorten the limitations period applicable to the plaintiffs if it so chose, the

legislature defined the action to which the limitations period applied, and set any skier” may be maintained to “2 years from the time of injury.” Thus the RSA 225-A:25, IV limits the time within which an action for “injuries to

injury.” RSA 225-A:25, IV (Supp. 2008). Conceding that the legislature could or passenger unless the same is commenced within 2 years from the time of