918 F.3d 172
1st Cir.2019Background
- In 2015 Miller bought and affixed a peel-off lift ticket at Mount Sunapee; the ticket front contained a small-print liability release and the peel-off backing warned in larger red text that removing it manifested assent to the release.
- While skiing, Miller collided with an unmarked, snow-covered steel mounting post for snowmaking equipment and suffered serious leg injuries.
- Miller sued Mount Sunapee in federal district court under New Hampshire negligence law; Mount Sunapee moved under Rule 12(c) and the court converted the motion to summary judgment under Rule 12(d).
- The district court granted summary judgment for Mount Sunapee, finding the lift-ticket release valid, sufficiently conspicuous, broadly worded, not contrary to public policy, and that the record did not support a claim of recklessness.
- On appeal the First Circuit reviewed the summary-judgment record de novo and affirmed for the same reasons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforceability / meeting of minds: was plaintiff bound by unsigned lift-ticket release? | Miller: he did not sign or read the release and therefore did not assent. | Mount Sunapee: ticket and peel-off backing provided opportunity and notice; plaintiff had opportunity to read and conceded recognition of a release. | Court: release enforceable; plaintiff had opportunity and a reasonable person would have known of the exculpatory provision. |
| Conspicuousness / scope: does the release cover non-inherent risks like unmarked equipment? | Miller: specific-to-general rule limits release to inherent skiing risks; unmarked snowmaking equipment is not an inherent risk. | Mount Sunapee: release expressly covers "any other risks or dangers" and "any and all liability including negligence" from premises or operation. | Court: release language broadly covers claims like Miller’s; limiting construction rejected. |
| Public policy: does the release violate public policy or statutory duties? | Miller: release conflicts with statutory or public duties (marking/warning snowmaking equipment; public-land operation). | Mount Sunapee: statute cited (§225-A:23) does not impose the duty alleged; no special relationship or bargaining disparity shown. | Court: release not against public policy; statutory text and precedent do not bar enforcement. |
| Recklessness exception: does alleged conduct rise to recklessness (which releases may not bar)? | Miller: heavy recent snowfall and grooming report show Mount Sunapee knew or should have known equipment was concealed, supporting a recklessness claim. | Mount Sunapee: grooming report pertained to different terrain; no record evidence of actual notice about covered equipment where accident occurred. | Court: no triable evidence of recklessness; summary judgment proper on negligence claim. |
Key Cases Cited
- Allen v. Dover Co-Recreational Softball League, 807 A.2d 1274 (N.H. 2002) (exculpatory agreements enforceable in limited circumstances)
- Dean v. MacDonald, 786 A.2d 834 (N.H. 2001) (requirements for enforceable release: public policy, understanding, contemplation)
- Gannett v. Merchants Mut. Ins. Co., 552 A.2d 99 (N.H. 1988) (unsigned contract may be enforceable when opportunity to read existed)
- Barnes v. New Hampshire Karting Ass'n, 509 A.2d 151 (N.H. 1986) (conspicuousness and enforceability of exculpatory provisions)
- Wright v. Loon Mountain Recreation Corp., 663 A.2d 1340 (N.H. 1995) (narrow construction of a release tied to expressly emphasized inherent risks)
- McGrath v. SNH Dev., Inc., 969 A.2d 392 (N.H. 2009) (public-policy analysis; special relationship and bargaining disparity)
- Commercial Union Assurance Co. v. Brown Co., 419 A.2d 1111 (N.H. 1980) (avoid constructions that render contract terms superfluous)
- Boulter v. Eli & Bessie Cohen Found., 97 A.3d 1127 (N.H. 2014) (definition of recklessness)
- Thompson v. Forest, 614 A.2d 1064 (N.H. 1992) (recklessness as substantial certainty of harm)
- Migdal v. Stamp, 564 A.2d 826 (N.H. 1989) (pleading negligence can support reckless-conduct claim where facts suffice)