Deborah Hogan et al. v. Pat’s Peak Skiing

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This is case 2014 0 4 2 0. Deborah Hogan at all versus Pat. Speak skiing. LLC, Counsel, Counsel, may I please the court.

Christopher Driscoll here for the plaintiff's appellants, Deborah and Matthew Hogan. It's difficult to imagine a ski slope getting any better. Notice that one of its patrons has been injured than in this case. One of their, their lift operators witnessed, actually saw the accident happen. The lift operator directed the plaintiff appellants to a first aid facility where an employee of the ski slope evaluated the appellants. Based on that evaluation, the ski slope handed each appellant an incident report form. And contrary to the representation of the ski slope in the trial court, the incident report forms were filled out by the appellants. Doesn't the, doesn't, the statute require not notice of the injury, but notice of the claim? No, no, your Honor. Um, the statute just trails off at the end. However, That as a condition precedent thereof, that is bringing a suit, the operator shall be notified by certified mail return re uh, return receipt, I'm sorry, shall be notified by certified return receipt mail within 90 days of the date of said injury. That's, that's the, that doesn't say that the notice that you're giving is a notice of injury. It says a notice. It, it read in the context of the whole overall statute. Doesn't it mean notice of claim? Because, uh, because otherwise obviously, I mean, it, wouldn't it be a very rare case if it meant, if it meant notice of injury? It would be a very rare case. Would it not that the ski area wouldn't know of the injury when it happened. Uh, I would respectfully take issue with that, your Honor. Um, I've been done premises work for almost 20 years. I, it is not uncommon for a patron to suffer injury at a facility and leave the facility without necessarily reporting that for Sure. But isn't it also very common that that, that particularly with more serious injuries, that the, the ski area knows about it? So to say, I mean, to, to, to say that this, that, that the, that the, that the legislature was intending to cut out a very broad swath of, of, uh, claims, uh, uh, from the exclusion just seems to me to be, seems to me to be, you know, not, not a sensible reading of the statute. Notice runs to said injury of the legislature, But it also says no action shall be maintained unless you meet a condition precedent by notifying by this return receipt mail. And I take it, the problem here is that, A, you didn't do that and b you're trying to argue around it. Well, no, actually, first of all, it wasn't No actually can subsequent the suit subsequently can be brought. Certainly that's what the statute says. The statute doesn't say that the claimant has to, in their notice say, we are gonna sue you. But Doesn't say that. I think the chief's question is what do you make of the language condition precedent? It has to mean something. Condition precedent does mean something written Notice has to be furnished. Certified return notice receipt mail. Well, under the time of Newport case, the certification is, is dubious, your Honor. But this is a statute we're, we are supposed to follow statutes as they are written unless they are unconstitutional or would lead to an absurd result or various other reasons why we don't have to. But it does seem to me fairly plain that no action by the Hogans can be maintained against Pat's peak unless that condition precedent has been satisfied. And I, you haven't answered my question yet, but I take it you didn't send cer return receipt certified mail, right? No, That did happen, your Honor. 89 days, not within the 20 days was our nine. We got there one Day, later days after the accident. Okay. In addition to the, the written forms by the appellants, the day of the accident, they handled the Ski. That's, and for the record, it was previous counsel, not you, correct? That's right. Yes, Massachusetts. I wasn't casting personal aspersion. I just wanted to make that, so there, There are really two there percent. There are really two issues. One is what is the me? What, uh, does notified mean? Does it mean notified of a claim or notified of an injury? The two of you take opposite views of that. The second injury is, was the 90 day period satisfied by the notice that was sent? Now, perhaps, I suppose the, the, the notification might be a bit ambiguous because it does say you can't bring an action unless notification is provided, and then it, the sentence ends with injury. So arguably there's some ambiguity. What are you notifying the defendant of the action or the injury? Is there legislative history that gives us some understanding? Not that, not the, not that I'm aware of, your honor, of the appellants and counsel. And by the way, the argument wasn't raised in the trial court. That's a, that's a new argument that that was not even discussed in the trial court. It wasn't briefed, wasn't argued, raised for the first time by the ski slope on appeal. So what Can you the notice, notice requirement wasn't met. Was not Argued. No. Pardon? Pardon me. Uh, uh, your honor, uh, whether or not notice of a claim versus notice of an injury, that issue that was foreign to the, what happened on the trial court that was raised on appeal? Frankly, it's been, can You clarify for me? Are you arguing that in fact the mailing of this by certified mail complied with requirement that it be, that the operator be notified by certified mail within 90 days? You're saying that in fact you did that, right? Absolutely. Mailbox rule, your honor, Day 89, We, we deposited that in the mail. So it has to do with notification. What, what does that mean? Is it notified when you put it in the mail or notified when somebody gets it? That's, that, That's the issue. The trial, the trial judge found that, that, uh, it was, uh, satisfaction was upon actual receipt. Um, but that doesn't square the, the majority rule. It's, it's all, it's all in the brief. Majority rule in the United States is the mailbox room, Merrill me Merrill cite to this am just cites to this states state courts, um, cited in the materials. The majority position with certified male statutes like this is they're satisfied upon mailing. And that was the only issue addressed by the trial court. The trial court made no ruling as to the nature of the notice. That is, should it, should it have been notice of a claim or notice of an injury? Didn't that, that issue was Not addressed. Trial court never addressed it. It was not addressed in the trial Court. So what are you asking us? I mean, um, I'm I'm just thinking out loud here because the trial court didn't address it. Are you saying we're foreclosed from remanding for the trial court to address it? The ar the first time the argument was raised in these proceedings, your Honor, was on appeal by Pat's peak. The notice, the notice wasn't raised Before, I'm sorry. The notice that the notice that you did send you, you know, you said you mailed it on 89 days. What did that say? It, uh, gave basic notice of injury. Yeah. And did it say we're gonna sue you? No, it was on an attorney's letterhead in downtown Boston. So, well, We're gonna make it didn't say we're gonna make a claim against, we're making a claim against you for we want, we want compensation and that kind of thing. Basic notification of injury, um, in, in accordance with the, uh, It says they fell off the chairlift and sustained serious personal injuries as a direct approximate result of the negligence. And that's it. So it's a not you provided a notification of injury. There's notice Yeah. In addition, of course, to the writing at the slope on the date of the accident. I understand this is subsequent, Right, but, well, You must have asked for something. You can't just say, oh, by the way, we were hurt, uh, within 90 days, uh, period. Shouldn't the letter say we were hurt on this date? We're within 90 days and we're gonna make a claim against you otherwise. How does Pat speak know what you're planning, Your Honor, kindly refer this matter to your insure all legal counsel is on a letterhead from an attorney in downtown Boston. There's gonna be litigation. Okay. I'm sorry. So it does say that it says kindly refer to this matter to your, to your, Yeah. So whether it's injury or a claim seems as though that letter would satisfy either. Absolutely. Right? Right. So I guess, I mean, my point is that when, whether the letter was timely or not, when you sent the letter or your, or your predecessor sent the letter, um, he or she clearly understood that it was more than you were doing. More than just saying, I've been injured. You were saying notify your carrier 'cause I you are gonna pay for my Injury. Absolutely. There's gonna be a legal proceeding. Otherwise, Mr. Corals wouldn't be here. Right. So I, I mean, I guess my point is that tends to show that your, whoever sent the letter understood that what you were doing to comply with the notice provision is saying, I'm gonna sue you, get your, you know, get the, the insurance carrier on board. Didn't just say, I've got an injury, it said, I've got an injury. And you better let your insurance carrier know. 'cause I'm gonna hold you responsible for it. Sure. So have we adopted the mailbox rule officially In contracts cases, your Honor, As a matter of now, As a matter of common law? Yes. The narrow issue of, uh, when a certified male notice statute is sat satisfied whether it's satisfied upon mailing upon receipt, this court has not narrowly answered that question. Sister states have, and the majority rule is the mailbox rule. So, so you, you say, we've said that that satisfies notice in a contracts context, but haven't been asked yet to decide whether it suffices in a tort context In this narrow setting under a statute Honor and I, and I take it, you are asking us to adopt that rule in this context. Yes. Follow the majority of all in the United States. What if he lose? What if we say no, doesn't apply in this context? You've got the backup argument that you notified the ski area on the day of the accident via the, the injury report, which notifies of injury. It doesn't notify of claim. So then we're back to the original question. What are we notifying the defendant of? Uh, the, the statute says, uh, said injury. And really this is a, So if you lose on the mailbox rule, it doesn't end our inquiry according to you. Absolutely not. They satisfied that statute the day they got hurt before they left the ski slope, voluntarily sought, filled out incident reports signed, they were provided by the ski slope, and they identified them as the injured person. Those are is signed next to injured person. Those Are all very, very good arguments. But it strikes me that the purpose of the statute is not to make it easy for an injured plaintiff to sue a ski area operator. Would you agree with that? I would not, your Honor. Uh, we are talking about the derogation of common law rights. The, this, this stuff Is, the legislature can do that anytime it wants subject to certain limitations. And in New Hampshire, the legislature does that frequently with regard to ski areas. They limit all sorts of things relating to what a person can and can't do to a ski area. So just justice hicks's question is, is salient in that regard, don't you think? I do. I do. Uh, but it shouldn't be entrap It shouldn't be interpreted to be a trap. I think the legislature might have intended a trap. That's how dissolute I am. Well, The legislature wanted to trick people off In any event, where our first line of analysis is to examine the plain language of the statute. And so if we conclude it's ambiguous, what happens next? Let's, then we go to the legislative History. Let's, let's say we conclude you are out on the mailbox rule. We look at the statute and we say, Hmm, you know, the way it's structured, arguably there's ambiguity as to what the notice needs to be of a claim or an injury. Then we look at legislative history and what does that tell us That the appellants have, have not briefed? I do not know the legislative history on that point, your honor, the issue, again, it's, it's, uh, it's stimulating to have to focus on this, but this issue is a brand new, So are you telling us that the plain language of the statute means notice of injury? Absolutely said injury. So you put the intelligent business owner on notice of a toret exposure. It says they gave their phone number. You, you don't, you don't need to. Yeah. Yeah. It says, said when, when it uses the term said injury in the end of the last sentence of the, uh, the last after the semi call, the last doesn't, doesn't injury. There is just used for the purpose of the dating. It says this is when the notice has to, has to come 90 days from the injury. It doesn't say that the notice is a notice of injury. And it would not, seems to me, it doesn't make any sense. Where the statute talks about no action. That what they're really talking about is the notice of a claim that we are going to bring a claim against you, which must that notice must be given within 90 days of the injury. Your Honor, I don't see the word claim in the text. I see said injury at the end of the text. Right. Um, but what I'm saying is it, it does say no action shall be maintained. Right? So you can't bring a lawsuit unless you give 'em written notice of an injury. I mean, these are intelligent, sophisticated business people. They're intelligent enough to log to the legislature to pass this legislation. You are on notice. You have, there's an injury here. They gave their phone numbers, your address. These people couldn't be nicer people. You wanna inquire about your to exposure. You have a phone call. You are on notice. None of this existed in common law. This, this is all in derogation common law, Excuse me. Statutes, derogate the common law all the time. And we are dealing with a statute. So we're not dealing with the common law. So we have to focus on statute and not pay attention to what may once have been the common law, fair to say. Right, your Honor. But we have to be very careful when we are delegating core civil, common law rights. Very careful. I mean, these are, this is unknownly common law. I mean, you gotta get 60, I mean two, two year statute of limitations. I mean, who was there when the, when the legislation was being debated and argued. I mean, this mostly affects outta state people. There's no representation. Your your time is up, sir. Thank you. Thank You. Good afternoon. Your honors, uh, maybe at release of the court. My name is Tom Quales from the Law Firm of Divine Milled and Branch. Uh, my colleague, Lee Willie, uh, who wrote the brief with me, uh, was designated to give this oral argument, uh, however she's left our firm. Uh, so I'll be giving the argument, uh, if I could pick up where we seem to have left off. Uh, we obviously heard, Can you skip, can you skip right ahead to your biggest problem? And you're fully aware that this question is coming. If it is actual notice under all circumstances, what is to prevent the ski operator from leaving the country for 90 days after the injury and not going to the post office and picking up the mail? I, I think if, if you had that set of facts, uh, uh, the court could and should, uh, get into a, uh, analysis of, of is there impossibility here? So you, you want us to wait for that case? And you're just saying, certainly in this case, I noticed you've trimmed your argument rather substantially. This was one day late. Well, uh, again, uh, at best it is analogous to a statute of limitations. Um, and, uh, as this court knows from the jurisprudence on statutory notice, generally it has to be strictly construed. Uh, if you start making exceptions, then, uh, the exception is gonna swallow the Rule. But you're not claiming, are you claiming it was six days late because the operator picked it up six days later? Or are you claiming it was one day late? Because under the circumstances, the mail service could not possibly have delivered it any sooner by certified mail, I'm generally claiming the latter. Uh, but if I, if, you know, if a fax presented themselves otherwise, uh, again, what's reasonable for somebody who gets a certified mail notice to go down to the post office and pick it up? Is it a couple of days? Probably that case doesn't present itself, uh, on these set of facts. What, what, again, is clear cut and bright line here is demonstrably the attorney, the first attorney for the plaintiffs had a statute. She was aware of it. She attempted to comply with it. Uh, I don't believe the language in the statute of received within 90 days is ambiguous. Mr. Qua. So let me ask you, it seems to me there are two issues in regard to the statute. One is whether the content of the letter was sufficient, and the other is whether 89 or 91 days is what we ought to be looking at. And as to the content, did I understand your brother to say that below there was no argument that the content was insufficient. Is that true or not? Absolutely true. Uh, we are not contesting the letter met the, uh, standard of notice under The, so it did meet it, other than the timeliness in your view. Absolutely. But you're saying what you're saying is that the, that the, what you say did not meet the, did not meet the standard of the statute is the report of injury at the time of the injury. Absolutely. And again, let's not lose sight of the fact that the statute expressly says it's gotta be notice by return receipt, certified mail. Obviously, what we get the day of, to the extent, uh, he wants to cons pursue it as notice doesn't meet that requirement. And more to the point on the practicalities, we, uh, and this is in our brief in some detail, we were notified of an accident by these two plaintiffs alleging a strain or sprain That's a far cry from the serious personal injuries that that now becomes in the actual formal notice letter. So if you want to get into policy here, uh, the policy needs are met by having a formal notice of claim. As you may, uh, surmise, a ski area has many, many reported injuries. In general, the ski patrol makes a report if it's reported to them. If that's sufficient to lay the groundwork under the statute for a lawsuit, then these ski patrols are gonna have to put on a lot more people and do a lot more thorough investigation, because every one of them now might lead to a lawsuit. One of the points of this statute is to make a distinction. Well wait, But I'm, I guess I'm not clear on that. Why would, why? I mean, whether they have to give 90 days notice or not, you're still gonna, you anytime there's, there's a, there's a potential injury, you're gonna have to worry that there's, that it's gonna be a suit, right? I mean, Not, not, not as the, not as the ski industry works. Uh, again, these people walked away that day. They refused, uh, further medical attention at the ski patrol, and they said we're gonna leave. Um, if, if we were on a, if we had to thoroughly investigate every one of those cases as though it might result in a lawsuit, again, uh, we don't have those resources. The statute, however, tells us, okay, we've got a 90 day window, and if within that 90 days this person goes out, gets a lawyer and, or makes a claim themselves, then we can go back and look at our investigation. And sometimes contrary to what, uh, my opponent said, there are unreported acts. Let Me ask you this question then. We, if, if the, I mean, I, I, uh, in terms of what the legislature probably intended, I tend to think that they did intend the notice of a claim rather than just notice of injury. But to follow up on what Justice Hicks said, I mean, it seems to me that there, that there's at least, it's at least arguable that a notice of injury would be enough from the statute. And given that, you know, this, this statute does seem to be designed to make it to, to, to establish a number of hoops that, that may or may not be of particular importance to the, to protecting the, uh, legitimate interests of the ski industry. If, why wouldn't it be appropriate for us to say, listen, you can do this, you know, legislature, you can do this if you want to. You can make it really difficult for somebody to bring a lawsuit in this situation. But if you wanna do that, you really gotta be clear. And here you weren't really clear because this, this language could be interpreted to mean, to mean, uh, notice of the injury is enough. Well, I think you answered the question, um, earlier. Uh, the proper reading of that statute, uh, is that it's, it's one sentence. It's one sentence with a lot of clauses, but the subject of the sentence is no action shall be maintained. And it's modified by the subsequent clauses. And as you pointed out, when you get to the very end, it, it says, shall be notified by certified return receipt mail within 90 days of said injury. The 90 day the said injury has got to be a time marker. But Mr. Quarles, because there's No other marker Available. I thought you said in response to my question, that you weren't arguing that the content of the letter was insufficient to satisfy the statute. Isn't that right? You're arguing about the timing of the letter, not the content of the letter. Or maybe I misunderstood what you said. The content of the letter is sufficient had it been received within 90 days. Right. Okay. So the questions about whether it's about a claim or an injury, that's not what you're basing your argument on. You're saying it, it arrived one day late. Well, yeah. And made it 89 days to mail it is not enough to comply with the statute. That's your argument. Right. Well, I have to refute his argument that the day of the accident notice was sufficient. That's What that, but I'm not, I'm talking about the statute. I'm all, I'm not, uh, persuaded by that argument. I'm concentrating on the statute. So you're halfway there. But, uh, but you are making a timeliness argument, not a content argument as to why the statute wasn't Complied with, right? Yes. And so the content of that letter was sufficient to satisfy this statute. Had it been received in 90 days. It did two things. It notified of an injury and it also notified, notified of a claim. So that letter doesn't really help us with the interpretation of the the statute. But what, I'm sorry, I'm sorry. Because it satisfies both, regardless of how you look at the statute. I'm not Sure claim or injury doesn't matter because Just say, yes, It covers both injury and claim. Got it. But, but you have to do that to satisfy the statute timely. You can't do it with a, uh, day of the incident report. But there, but assuming you're right about that, there is an argument to be made that Mr. Driscoll's mailbox rule, should we decide to adopt it, um, would protect him because the statute doesn't say received within 90 days. It says certified, uh, mail return receipt requested within 90 days. It says that he argues the mailbox rule. The mailbox rule has been, uh, limited by this court to just a contract, uh, context. Is That true? Have we actually said it only applies in the context of a Contract? I believe so. Uh, and the trial court, uh, uh, made that argument in its, uh, trial court decision. Uh, you know, I'd also argue that in the 21st century, uh, the mailbox rules pretty archaic, uh, in this day of instant communication, you know, maybe the mailbox rule should be revisited. But again, what If it, what if it had landed in the post office within 90 days or on the 89th day, If it had landed in the post office on the 89th day? Is that notified? Is that notice? No, but no, because don't forget, uh, Well then you go back to my avoidance scenario. Your client could prohibit a claim or prevent a claim by simply avoiding picking up certified, uh, receipt mail. A lot of people do that. Yeah, But let me just, you're forgetting a step. Once the post office gets post, office gets it, it has to mail, it has to deliver that green card to the address c saying, you have a piece of certified mail, please come down to the post office and pick it Up. You're right. I Forgot. So, you know, you gotta change your dates to, to get to where you want to go. Um, Well do, so do you argue that entire process has to occur within 90 days or only that the claimant has to initiate the process within 90 days? Absolutely. Uh, the addressee, the C operator must receive that notice within 90 days. And again, so, so, and how is that measured? When, when, when the recipient signs for it and the post office picks, uh, has in its hands the return receipt? Yes, it's measured. Uh, normally when the, uh, uh, when the skier operator signs for that piece of mail, uh, for which they'd have to come into the post office and sign. Now again, in the scenario where somebody's consciously avoiding it, I'll just tell you in my practice when I have that issue, I send them both a, uh, regular mail and a certified mail copy. And if the regular mail copy doesn't come back, I think that's some evidence if you ever get to an evidentiary hearing of whether was delivered. Can I just Ask you if, suppose that what happened here was that on the day of the injury, suppose it was, it was more obvious that the, you know, that it was as serious as was stated in the letter that was obvious on the day of the injury. And suppose that the, that the plaintiffs here told the ski area on the day of the injury, you know, I'm, I'm very seriously injured here and I'm gonna sue you. Would that be enough? It wouldn't. And again, this gets to the, the some of the policy reasons and the discussion you've had about what the legislature can do, uh, vis-a-vis, uh, derogation of the common law. Let me just, uh, cite to you 'cause it's not in the briefs. Um, the very last sentence of the very first section of the ski statute is RSA 2 25 A one. And it says, and I'm, um, I'm getting rid of, uh, irrelevant material. 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 areas, recognizing the supportive skiing and other skier 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. And as you know, uh, at the end of the ski statute or a number of immunity provisions. Now, Mr. Quale is accepting that as the goal of the statute. Why would it be undermine the goal of the statute to interpret it? That all that has to happen here is that the claimant put the, uh, claim in the mail before the 90th day. How does that do violence to that statutory purpose? Again, because I think the legislature seemed fit to set up a fairly restrictive, at least claims notice scheme for this statute. Right? But we're talking about one day You can make an example that has any, uh, any fence sitting, uh, issues. Uh, but again, from the perspective of a potential claimant, uh, again, it defies logic why somebody would, would play with fire, uh, and wait until the 89th day to send that message. Well, you, Your position is it has to be done by certified mail. So, um, it couldn't be done by an email that requires, you know, some emails require notice when you open the email, you say, Mm-Hmm. Not satisfying the statute Again, uh, we, we aren't here to second guess the legislature. Uh, they, the, the statute may be as old as 1957. I was looking quickly, well, That, well, that was my, that's my question. Yeah. In 1957, none of us alive then would have anticipated how business is conducted today. But again, you're, you know, your jurisprudence is clear. If a statute is clear and unambiguous, uh, with certain exceptions, it must be honored and followed by this court. Mr. Qua, let me, let me just ask you, do I understand the facts correctly, that for 16 months after this letter was sent, there were negotiations back and forth about settling the claim and that no one raised this timeliness issue until, um, August of 2013. That seems to be the case. Uh, that also, uh, would be when I got involved in the case. Um, but again, uh, we've got case law. We've cited in our brief, the fact that you're engaged in settlement discussions doesn't mean you waive any of your claims. So you say it's, that's clear juris jurisdictional in a way, it's jurisdictional. You don't satisfy it. You don't get to make the claim notwithstanding. In fact, negotiations are underway. Absolutely. And no, nobody, am I understand correctly, nobody's claiming that anything was said in the negotiations about we'll waive. We are not, we're not gonna pursue our statute of limitations or anything like that. Correct? Correct. They were just talking about correct set, settling the matter without prejudice, presumably to the rights of any side. They were discussing this without any reference to this issue. And I, I take it, Mr. Quarles, it's your position that there is no ambiguity in this statute, that if we read the statute, there is only one reasonable interpretation, which means that despite the fact that the statute talks about sending, um, it talk, it, what we really talk about is actual receipt of notice. The, the, Again, it, because I'm talking about sending Yeah. It says, as a condition, precedent thereof, the operator shall be notified by certified return receipt mail. Okay. Within 90 days. But It doesn't talk about actual notice. It doesn't, pardon me, It does not talk about actual notice. Uh, I would interpret that as, uh, requiring actual notice that, that, uh, operator shall be notified By certified mail and by no other means. Exactly. Thank You. Time's up. Thank you. Okay. Submitted the court will take a brief recess. Alright.