2008-499, MARCELLA MCGRATH v. SNH DEVELOPMENT, INC. & a.

was snowboarding at the Crotched Mountain Ski Area when she was involved

The undisputed facts are as follows. On February 20, 2004, the plaintiff

We affirm. defendants, SNH Development, Inc. and John Doe, an unnamed individual. the Superior Court (Abramson, J.) granting summary judgment to the BRODERICK, C.J. The plaintiff, Marcella McGrath, appeals an order of

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

Pennington on the brief and orally), for the plaintiff. Fernald, Taft, Falby & Little, P.A., of Peterborough (Richard L. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. MARCELLA MCGRATH

No. 2008-499 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 responsibility. p. 2 the area, or my participation in skiing, accepting myself the full

reconsideration was denied, the plaintiff filed this appeal.

ski lift operations, actions or omissions of employees or agents of

policy; (2) the plaintiff understood the import of the agreement or a

contracts. The trial court granted the motion. After her motion for

law.” the ski area including, but not limited to, grooming, snow making,

in the light most favorable to the non-moving party. 2

contracts, we will enforce them if: (1) they do not violate public

agreements, signed by the plaintiff, are valid and enforceable exculpatory

material fact, and if the moving party is entitled to judgment as a matter of negligence, conditions on or about the premises, the operations of personal injury or property damage which results in any way from directors, officers and shareholders from any and all liability for the affidavits and other evidence, and all inferences properly drawn from them, release Crotched Mountain its owners and its agents, employees,

Although New Hampshire law generally prohibits exculpatory

defendants. The defendants moved for summary judgment, arguing that the review the trial court’s application of the law to the facts de novo. Id. Dean v. MacDonald, 147 N.H. 263, 266 (2001) (quotation omitted). We

in any way from negligence . . . .” 511, 513 (2008). “We will affirm if the evidence reveals no genuine issue of

When we review a trial court’s grant of summary judgment, we consider all risks of personal injury or death or property damage, and use the ski area facility, that I freely accept and voluntarily assume common occurrence. I agree, as a condition of being allowed to

first, an application for the pass, states: The plaintiff subsequently filed a negligence action against the

Resorts, Inc., . . . from any and all liability for personal injury . . . which results a condition of being allowed to use the area facility, that I . . . release Peak identical to the application in all material respects, again providing, “I agree, as The second document, a “Liability Release Agreement,” contains language

forms is a hazardous sport, and I realize that injuries are a

sign two separate documents in order to obtain her pass (the agreements). The

Development, Inc., a subsidiary of Peak Resorts, Inc.

I understand and accept the fact that alpine skiing in its various

Prior to this incident, the plaintiff, a season pass holder, was required to

area. Crotched Mountain Ski Area is owned and operated by SNH in a collision with a snowmobile operated by John Doe, an employee of the ski agreements. p. 3 property, and, thus, the statute has no bearing on the enforcement of the

chapter 215-C does not apply to the operation of snowmobiles on private

of these statutory requirements. The defendants, however, argue that RSA were violated, and it would be against public policy to “relieve” the defendants person on . . . skis,” RSA 215-C:49, XII. The plaintiff alleges these provisions RSA 215-C:8, IV, and, further, a snowmobile “shall yield the right of way to any

enforcement of the statute.

215-C, it is unlawful to operate a snowmobile so as to endanger any person,

with the public welfare or safety. violation). Indeed, it is the State that is charged with enforcing this statute,

plaintiff’s waiver of negligence claims in the agreements has no effect upon the agreements relieve the defendants of any responsibility under the statute. The virtue of an exculpatory contract. The plaintiff notes that, under RSA chapter operation of snowmobiles on privately owned land, we disagree that the does not contravene public policy; pertaining to snowmobiles,” namely, RSA chapter 215-C (Supp. 2008), by Assuming, without deciding, that RSA chapter 215-C applies to the that [the] Defendants would be relieved from public safety laws enacted

We address each argument in turn. the interests of the public, violates some public statute, or tends to interfere in application to the ordinary risks inherent to the sport or sports in question.

defendant seeking to avoid liability must show that an exculpatory agreement

The plaintiff argues that, “[p]ublic policy is clearly offended by the notion

agreement to be against public policy if, among other things, it is injurious to contracts were executed; and (3) as a matter of law, a release should be limited Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106 (1986). We have found an between the parties and that there was no other disparity in bargaining power.”

release agreement are unenforceable because they violate public policy. “A The plaintiff first asserts that the ski pass application and liability

the contemplation of the parties when they executed the contract. II

parties did not contemplate the negligent operation of a snowmobile when the agreement are unenforceable because: (1) they violate public policy; (2) the On appeal, the plaintiff asserts that the application and liability release

Id. at 266-67.

import of the agreement; and (3) the plaintiff’s claims were within reasonable person in his position would have understood the deemed to have freely chosen to enter into the contract.

p. 4 of contract clauses insisting upon assumption of risk by all those

pass. Where there is a disparity in bargaining power, the plaintiff may not be

public service. necessity.” service of great importance to the public, nor is racing a matter of practical monopoly of a particular field of service, from the generality of use of a public statute or interfering with the public welfare.

because she was required to sign the agreements before obtaining her season relationship. ski area’s status as an area of public accommodation created this special

that the statutory duty to yield is equivalent to being charged with a duty of

racing is affected with a public interest. Provision of racing facilities is not a The disparity in bargaining power may arise from the defendant’s not contravene public policy as injurious to the interests of the public, violative she may obtain a season ski pass. Therefore, we conclude the agreements do Id. at 107. ski area, or its employees, liable for injuries resulting from negligence so that

dispositive of a special relationship. Moreover, we disagree that there was a disparity in bargaining power

contends that both the statutory duty to yield under RSA 215-C:49, XII and the creates a special relationship between the ski area and the plaintiff. snowboarding is of such great importance or necessity to the public that it

Id. at 108. We likewise cannot say that the recreational activity of does impose certain restrictions on the operation of a snowmobile, we disagree

relationship between the parties by virtue of its application. While the statute defendants serve a segment of the public, we cannot say that Enduro kart we aware of, any support for her proposition that this statute creates a special applicable release did not violate public policy, we held, “Although the injured while racing on the track. Id. at 104-05. In determining that the Irrespective of the statute, the plaintiff has voluntarily agreed not to hold the the exculpatory contract between an Enduro kart racing facility and a driver

Likewise, the fact that the ski area is available for public use is not

because she had a special relationship with the defendants. The plaintiff

106. With respect to RSA chapter 215-C, the plaintiff does not point to, nor are or is otherwise charged with a duty of public service.” Barnes, 128 N.H. at exists “[w]here the defendant is a common carrier, innkeeper or public utility, the public are protected by the State’s ability to enforce the statute. We disagree. In Barnes, we stated that a special relationship determinative of a public policy violation. As is the case here, the interests of negligence action arising out of an activity that is regulated by statute is not

The plaintiff also argues that the agreements violate public policy

waiver. The fact that an exculpatory agreement waives the right to bring a and it is free to pursue the alleged violations, notwithstanding the plaintiff’s from p. 5 assume all risks of personal injury . . . and release Crotched Mountain . . .

application signed by the plaintiff clearly states: “I freely accept and voluntarily

agreement will be upheld.”

from the duty to safely operate snowmobiles. We disagree. The ski pass makes reference to a snowmobile or states that it would relieve the defendants agreements to apply to negligent operation of a snowmobile because neither

liability for personal injury, death or property damage which results in any way agreement mirrors this language, releasing the defendants from “any and all parties at the time of the execution of the agreement. in any way from negligence from liability for personal injury caused by the defendant’s negligence, the. . . .” (Emphases added.) The liability release contract, the plaintiff’s claims must have been within the contemplation of the any and all liability for personal injury or property damage which results

we examine its language.

The plaintiff asserts that a reasonable person would not understand the accidents. exculpatory contracts against the defendant. Id.

release clearly and specifically indicates the intent to release the defendant person.” involving the operation of a snowmobile. In order to uphold an exculpatory Id. (quotation and brackets omitted). “As long as the language of the contract itself the meaning that would be attached to it by a reasonable give the language used by the parties its common meaning and give the

To determine the scope of the application and liability release agreement,

Id.

plaintiff’s injuries, and may adopt language that covers a broad range of parties need not have contemplated the precise occurrence that resulted in the was under no physical or economic compulsion to do so. Id. at 107. However, the

because the parties did not contemplate a liability release from negligence The plaintiff next asserts that the agreements are not enforceable terms. leave him no reasonable alternative to the acceptance of the offered III arise from the exigencies of the needs of the plaintiff himself, which disparity in bargaining power, and the agreements do not violate public policy. bargaining strength in that regard. Id. We therefore conclude there is no defendants’ service is not an essential service, so there was no advantage in

the application and liability release agreement before obtaining her pass, she bargaining power. See id. at 108. Although the plaintiff was required to sign Id. (quotations omitted). Here, we do not find any substantial disparity in

possibility of obtaining the service without the clause; or it may engaged in such a field, so that the plaintiff has no alternative p. 6 6 that specific release.

of this clause was “less than clear,” because “[t]he paragraphs preceding the

injured party’s horse and the “use of this animal.”

the inherent risks of the activity at issue, we did so based upon the language of We disagree. While we have previously limited certain exculpatory contracts to 170 (quotation, brackets and ellipses omitted). We concluded that the meaning against the ordinary risks inherent to the sports of skiing and snowboarding. SELECTION, ADJUSTMENT OR ANY MAINTENANCE OF ANY HORSE.” Id. at NEGLIGENCE OF THE DEFENDANT TO INCLUDE NEGLIGENCE IN ALL LIABILITY FOR PERSONAL INJURY TO MYSELF RESULTING FROM THE The clause concluded with: “I therefore release the defendant from ANY AND

clause contained in the agreements such that a reasonable person would not 41 p. 6 6, 418-19 (1994). In Wright, the exculpatory contract detailed the risks

rather than the unmanifested states of mind of the parties.”

The plaintiff argues that the agreements should only be enforceable

contemplated this precise occurrence is not dispositive.

provided the language of the agreements “cover[s] a broad range of accidents” conclude that neither the font nor the formatting obscured the exculpatory contemplated the precise occurrence that caused the plaintiff’s injuries” 2 p. 6 67 (quotation omitted). Indeed, the defendants are not required to “have

snowmobile. However, “[w]e judge the intent of the parties by objective criteria contemplated [that] the release” would apply to negligence involving a The plaintiff further challenges “whether the Defendants themselves negligent act of the defendant’s employee. exculpatory clauses). The plaintiff sustained injuries while using the ski area because of the alleged 1 p. 6 66, 170 (1995) (finding structure and organization of the contract did obscure the defendants’ negligence, which is all that is required. Cf. Wright v. Loon Mt. Recreation Corp., 140 N.H. the intent to release the defendants from liability for personal injury caused by snowmobile, the language of these agreements clearly and specifically indicates collision with a snowmobile. However, upon our review of the agreements, we reasonable person would not have contemplated the agreements applied to a appears to use the formatting of the agreements to support her claim that a Although making no specific argument in this regard, the plaintiff

conclude that the plaintiff’s claim falls within the terms of the two agreements.

specifically make reference to injuries arising from the negligent operation of a from negligence.” While the application and liability release agreement do not p. 7 7

negligence inherent to the sports of skiing and snowboarding.

agreements released the defendants from any negligence, not just from

DALIANIS, DUGGAN and HICKS, JJ., concurred.

of his own negligence. failed to clearly state the defendant was not responsible for the consequences therefore conclude that a reasonable person would have contemplated that the defendants’ intent. Nor is there any ambiguity in the language used. We ski area. There is no qualifying language or other provision obscuring the defendant “free of any or all liability.” any liability relating to the negligence of its employees or the operation of the Wright and Audley, the agreements here clearly release the defendants from Here, there is no such ambiguity. Unlike the exculpatory clauses in both

releasing the defendant from liability for his own negligence.” failure to use reasonable care in any way.” Id. terms; instead, it fails because no straightforward statement of the defendant’s intent to avoid liability for its particular attention is called to the notion of respect not because it neglects to use the word ‘negligence’ or any other special

might understand its language to relate to the inherent dangers of horseback defendant from liability based upon his own negligence because the contract omitted). We concluded that this language did not effectively release the

associated with working with wild animals, and then promised to hold the In Audley, the exculpatory contract recognized certain inherent risks

language that follows,” and ultimately concluded that the contract “lack[ed] a omitted). We found this language was “further clouded by the qualifying

the exculpatory clause is prefaced by the term ‘therefore,’ a reasonable person exculpatory clause emphasize the inherent risks of horseback riding. Because