Gwyn et a l . v. Loon Mountain CV-01-214-B 05/15/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Eileen Gwyn, as Executor of the Estate of Howard Gwyn, Eileen Gwyn, on her own behalf, and Margaret Do
v. Civil No. 01-00214-B Opinion No. 2002 DNH 100 Loon Mountain Corporation d/b/a Loon Mountain Ski Area
MEMORANDUM AND ORDER
This diversity case arises out of a tragic skiing accident
that resulted in two fatalities. In their first amended
complaint, plaintiffs Eileen Gwyn (individually and on behalf of
her late husband's estate) and Margaret Do (Gwyn's daughter) seek
to hold defendant Loon Mountain Corporation liable for damages
they suffered as a result of the accident. Presently pending are
two motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed
by defendant, as well as a motion for leave to amend the first
amended complaint and a motion for leave to reply to defendant's
objection thereto filed by plaintiffs. For the reasons that
follow, I grant in part and deny in part one of defendant's motions to dismiss, grant the second motion to dismiss, grant
plaintiffs' motion for leave to reply to defendant's objection to
the motion for leave to amend, but deny plaintiffs' motion for
leave to amend.
I.
In addressing defendant's Rule 12(b) (6) motions, I accept
all the factual allegations in the first amended complaint and
draw all reasonable inferences from those allegations in
plaintiffs' favor. See Alternative Energy, Inc. v. St. Paul Fire
& Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
On January 25, 1999, Howard and Eileen Gwyn; their daughter,
Margaret Do; and their daughter's fiance, Mark Goss, were skiing
at Loon Mountain Ski Area in Lincoln, New Hampshire. At about
11:15 a.m., Howard Gwyn, Do, and Goss rode the chairlift to the
top of the Big Dipper ski trail, while Eileen Gwyn remained at
the base of the mountain. The four planned to meet for lunch at
11:30 a.m. at the Governor Adams Base Lodge.
After exiting the chair lift, Howard Gwyn (an expert skier),
Do, and Goss skied down the upper part of the Big Dipper trail to
the area where it adjoins the Triple Trouble trail. The Triple
- 2 - Trouble trail was closed at the time. Gwyn, skiing in control
and with due care, was the first to approach the junction of the
two trails. As Gwyn reached the area adjacent to the junction,
he attempted to stop. Unbeknownst to him, the area was covered
by ice. Gwyn fell and began to slide. Loon had placed a single
rope across the pathway by which skiers access the Triple Trouble
trail from the Big Dipper trail, but Gwyn slid beneath the rope
and some 900 additional feet down the mountain.
Do and Goss witnessed Gwyn's involuntary slide under the
rope and unintended entry onto the Triple Trouble trail.
Recognizing the seriousness of the situation. Do and Goss removed
their skis, placed them near the intersection of the two trails,
and attempted to rescue Gwyn by walking down the slope towards
him. But Do and Goss both slipped and plummeted down the icy
trail as well.
Eileen Gwyn became concerned when her family did not arrive
for lunch at the agreed-upon time. At some point between 12:15
p.m. and 12:30 p.m., Gwyn approached a Loon employee at an
information booth or ski school area inside the lodge, told the
employee that her family was unusually late, and asked if the
- 3 - employee had heard about any skiers being injured. The employee
replied that she had not heard about any injured skiers and that
Gwyn should not worry. At approximately 1:00 p.m., Gwyn
approached the same employee, expressed concern about the safety
of her family, and stated that she needed help finding them. The
employee told Gwyn not to worry and took no further action. At
approximately 1:50 p.m., Gwyn approached the employee yet again,
stated that her family had been missing since 11:30 a.m., and
informed the employee that she needed help in locating them. The
employee replied that she did not have a phone and that there was
nothing she could do to help.
At approximately 2:50 p.m., Gwyn pleaded with the employee
for help in finding her family. The employee responded by
telling Gwyn that she could check the first aid station, which
was approximately one-half mile away. The employee did not offer
to use a telephone to call for help. At approximately 3:50 p.m.,
as the ski area was beginning to shut down, Gwyn approached the
employee and again begged for help. The employee once again
replied that she could not assist Gwyn and that Gwyn should "go
see one of the guys in the black and red jackets" - i.e., the ski
patrol. Gwyn subsequently located a ski patrol member and
- 4 - informed him that her family had been missing since 11:30 a.m.
The ski patrol member called the first aid station.
At approximately 4:10 p.m., the Loon ski patrol discovered
the skis Do and Goss had left near the intersection of the Triple
Trouble and Big Dipper trails. Shortly thereafter, the patrol
discovered Howard Gwyn, Do, and Goss. Howard Gwyn was badly
injured and unconscious; Do was badly injured and frostbitten;
and Goss was dead. The ski patrol transported the three skiers
by stokes litter to the base of the mountain. Eileen Gwyn
experienced near hysteria at the shock of seeing her husband and
daughter bloodied and near death. Do survived her injuries, but
required extensive medical treatment and therapy. Howard Gwyn
died from his injuries two days after the accident.
In January 2001, plaintiffs initiated this action in Grafton
County Superior Court. Defendant removed the case to this court
on the basis of diversity jurisdiction, and plaintiffs
subsequently filed a first amended complaint. The first amended
complaint sets forth five causes of action. Count I asserts that
plaintiffs were injured by defendant's failure to maintain
certain signs and designations allegedly required by N.H. Rev.
- 5 - tat. Ann. § 225-AI23;1 Count II, which sounds in negligence,
asserts that plaintiffs were injured by defendant's breach of a
number of duties owed to plaintiffs because their fulfillment is
1Count I asserts that defendant (1) "failed to provide critically important information . . . on a trail board at the base of the mountain pursuant to RSA 225-A:23 to indicate that the Triple Trouble Trail and its access points were closed, dangerous, extra hazardous, or potentially life threatening"; (2) "failed to mark the beginning of each ski trail or slope with the appropriate symbol for that particular trail's or slope's degree of difficulty pursuant to RSA 225-A:23 to warn . . . of the dangerous, extra hazardous, and life threatening conditions leading up to and on the Triple Trouble Trail"; and (3) "failed to mark the beginning of, and designated access points to, the Triple Trouble Trail with a closed sign pursuant to RSA 225-A:23 to warn . . . of the dangerous, extra hazardous, and potentially life threatening conditions then existing." As detailed infra, N.H. Rev. Stat. Ann. § 225-A:23 does require ski areas to post certain information on their trail boards and at the beginnings of their ski trails and slopes. The statute also obliges ski areas to notify skiers, at the beginnings of their ski trails and slopes and at designated access points, if a trail is closed. But as defendant points out, the statute does not require ski areas to warn skiers if their trails or slopes are dangerous, extra hazardous, and/or potentially life threatening. Mindful that I am evaluating a Fed. R. Civ. P. 12(b)(6) motion, I will disregard these surplus allegations and construe Count I as alleging that defendant failed to fulfill its statutory obligations to post certain signs and designations on its trail board, at the beginning of the Big Dipper and Triple Trouble trails, and at the access point to the Triple Trouble trail where the falls underlying this lawsuit took place. Of course, if I am construing the vaguely worded Count I too generously, defendant may challenge the statutory claims which survive its motion to dismiss, see infra, in a properly supported motion for summary judgment.
- 6 - essential to the safe operation of a ski area and/or because
defendant "voluntarily assumed" them and thus obliged itself to
perform them with due care under the principle set forth in
Restatement (Second) of Torts § 323 (endorsing recovery, in
certain circumstances, for persons victimized by another's
negligent performance of an undertaking to render services)
("negligent performance of an undertaking doctrine"); Count III
asserts that plaintiffs were injured by defendant's negligent
infliction of emotional distress; Count IV asserts that
plaintiffs were injured by defendant's knowing and willful
violation of the New Hampshire Consumer Protection Act ("CPA"),
N.H. Rev. Stat. Ann. § 358-A, in the course of advertising and
marketing itself as a safe ski area; and Count V asserts that
defendant is liable to plaintiffs under the doctrine of
respondeat superior.
II.
As noted above, defendant has filed two motions to dismiss.
The first motion seeks dismissal of Counts I-III, and V as
precluded as a matter of law by the New Hampshire's Skiers, Ski
Area, and Passenger Tramway Safety Act ("Ski Statute"), N.H. Rev.
- 7 - Stat. Ann. § 225-A. The second motion seeks dismissal of Count
IV for failure to state a viable cause of action. Plaintiffs
have filed objections to these motions. Plaintiffs also have
moved for leave to amend their first amended complaint and to
reply to defendant's objection to their motion for leave to
amend.
A. Motion to Dismiss Based on the Ski Statute
Defendant argues that the allegations in Counts I and II do
not state claims under which relief can be granted because (1)
the Ski Statute specifies the few duties defendant owed to
plaintiffs; (2) the Ski Statute immunizes defendant from
liability for injuries caused by the inherent risks, dangers, or
hazards of skiing; and (3) plaintiffs' allegations make clear
that their injuries were not caused by defendant's violation of a
statutory duty, but by the inherent risks, dangers, or hazards of
skiing. Defendant further asserts that Counts III and V fail to
state claims on which relief can be granted because they are
derivative of Counts I and II. Finally, defendant presses an
alternative argument that, irrespective of its other
deficiencies. Count III is inadequately pleaded. I largely, but
not entirely, agree with these arguments. 1. Counts I and II
Defendant's first argument is built upon an accurate
depiction of New Hampshire law. In its first section, titled
"Declaration of Policy," the Ski Statute states:
[I]t shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other private users of alpine (downhill) and nordic (cross country and ski jumps) areas, recognizing that the sport of skiing and other ski area 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.
N.H. Rev. Stat. Ann. § 225-A:1. To this end, the legislature has
specified the responsibilities of ski area operators in N.H. Rev.
Stat. Ann. § 225-A:23, and the responsibilities of skiers and
passengers on ski area tramways in N.H. Rev. Stat. Ann. § 225-
A: 24 .
In relevant part, N.H. Rev. Stat. Ann. § 225-A:23 requires
ski area operators (1) to mark the beginning of each ski trail or
slope with a designated symbol designed to notify skiers of the
degree of difficulty of the trail or slope, see N.H. Rev. Stat.
Ann. § 225-A:23, I(a)-(d), III(a); (2) to mark the beginning of,
and designated access points to, each alpine trail that is closed
- 9 - with a designated symbol notifying skiers of the closure, N.H.
Rev. Stat. Ann. § 225-A:23, 1(e), III(b); and (3) to maintain a
base area trail board which lists the area's network of ski
trails and slopes, notifies skiers of the degree of difficulty of
each trail or slope through use of the aforementioned symbols,
and notifies skiers which trails or slopes are closed through use
of a designated symbol, see N.H. Rev. Stat. Ann. § 225-A:23,
I(a)- (e), 11(a). The relevant portion of N.H. Rev. Stat. Ann. §
225-A:24 states:
It is hereby recognized that, regardless of all safety measures which may be taken by the ski area operator, skiing as a sport and the use of passenger tramways associated therewith may be hazardous to the skiers or passengers. Therefore . . . [e]ach person who participates in the sport of skiing accepts as a matter of law[] the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards. The categories of such risks, hazards or dangers which the skier or passenger assumes as a matter of law include but are not limited to the following: variations in terrain, surface or subsurface snow or ice conditions; bare spots; rock, trees, stumps and other forms of forest growth or debris; lift towers and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph.
- 10 - N.H. Rev. Stat. Ann. § 225-A:24, I.
The New Hampshire Supreme Court has interpreted the
interplay of these provisions as codifying the primary assumption
of the risk doctrine with respect to the inherent risks of
skiing. See Raveski v. Gunstock Area/Gunstock Area Comm'n, 776
A.2d 1265, 1268 (N.H. 2001); Nutbrown v. Mount Cranmore, Inc.,
140 N.H. 675, 680 (1996). As applied inthis context, the
doctrine relieves ski area operators from any duty to protect
skiers from the inherent risks of skiing. See Nutbrown, 140 N.H.
at 680 ("To the extent that a skier's injury is caused by an
inherent risk of skiing, the skier may not recover from the ski
area operator."). But the doctrine does not relieve ski area
operators of liability for injuries caused by a violation of
their statutory duties under N.H. Rev. Stat. Ann. § 225-A:23.
See Nutbrown, 140 N.H. at 683 (regarding as viable the
plaintiff's claim that his injuries were caused by the
defendant's failure to mark properly the beginning of the trail
on which he was injured).
By virtue of N.H. Rev. Stat. Ann. 225-A:24, I, Howard
Gwyn's, Do's, and Goss's encounters with ice near the
intersection of the Big Dipper and Triple Trouble trails were, as
- 11 - a matter of law, legally assumed risks, dangers, or hazards
inherent in the sport of skiing. See id. (identifying accidents
caused by "surface or subsurface snow or ice conditions" as
"risks, hazards or dangers" which the skier assumes as a matter
of law). So too were their subsequent slides down the ice-
covered Triple Trouble trail. See id.2 Consequently, because
these events were clearly causative (at least factually) of
plaintiffs' injuries, defendant is entitled to dismissal of
plaintiffs' claims unless plaintiffs can identify some act or
omission of defendant that both could have been an additional
factual cause of the skiers' injuries and is outside the scope of
conduct immunized from liability under the New Hampshire Supreme
Court's construction of N.H. Rev. Stat. Ann. § 225-A.
I start with plaintiffs' negligence theories. Plaintiffs'
primary argument is that injuries caused by an inherent risk of
skiing can also be caused by ski area operator carelessness, and
2Plaintiffs argue that one cannot assume a risk of which s/he is unaware, and that Howard Gwyn was unaware of the dangerous patch of hidden ice which led to his fall. Plaintiffs also make the closely related argument that encountering hidden dangers is not an inherent risk of skiing. These arguments fail because the statute effectively charged Gwyn with knowledge that, while skiing, he might encounter a dangerous and hidden, indeed life-threatening, patch of ice which could cause him to fall.
- 12 - that the acts and omissions identified in Count II as having
played a causal role in plaintiffs' injuries - defendant's
failure to warn against, ameliorate, and/or close the icy area
where Howard Gwyn and Do slipped and fell and subsequent failure
to rescue the injured skiers in a timely manner - are actionable
at common law notwithstanding the Ski Statute. There is
ambiguous language in Nutbrown which, when read out of context,
can be construed to support this argument by negative
implication. See 140 N.H. at 680 ("An injury entirely caused by
an inherent risk of skiing is not actionable.") (emphasis
supplied); see also id. (generally acknowledging that the Ski
Statute does not bar actions based on "injuries caused by the
[ski area] operator's own negligent or intentional acts"). But
last year's Raveski opinion forecloses this argument:
We also reject the plaintiff's argument that his claim falls within the category of "injuries caused by the [ski area] operator's own negligent or intentional acts" that we noted in Nutbrown were not barred by [the Ski Statute] . . . . The categories of injuries caused by an inherent risk of skiing and injuries caused by negligence are mutually exclusive . . . . [A]n injury caused by an inherent risk cannot have been negligently caused because there is no duty to protect against such risks. Having determined that the plaintiff's injuries were caused by an inherent risk of skiing, we necessarily conclude that they were not caused by the defendant's negligence.
- 13 - 776 A.2d at 1269-70. This passage can only mean that,
irrespective of its knowledge of dangerous conditions and/or
ability to take prophylactic measures, a ski area operator does
not owe skiers a common law duty to protect them from injuries
sustained as a result of hitting ice on a trail or slope, which
the New Hampshire legislature views as an inherent risk of
skiing. See N.H. Rev. Stat. Ann. 225-A:24, I. The Ski Statute
thus immunizes the acts and omissions complained of in Count II
from liability under traditional negligence principles.
Plaintiffs have a fallback position. Relying on the
negligent performance of an undertaking doctrine set forth in
Restatement (Second) of Torts § 323, plaintiffs contend that,
because defendant voluntarily undertook a number of safety-
related initiatives beyond those required by statute,3 it made
3In its Objection to Defendant's Motion to Dismiss First Amended Complaint Based on Ski Statute, plaintiffs specify the following as voluntary undertakings giving rise to liability under § 323: defendant's failure to locate a rope closing off the Triple Trouble trail at a safe enough distance to avoid the harm that occurred; defendant's failure to assess the need for safety measures; and defendant's failure to adequately close off the icy area where the accident occurred by "using standard safety devices used by a reasonably prudent ski operation" - e.g., fencing, netting, and "slide for life" warnings. Id. at 20 .
- 14 - itself liable for any harm that it caused in negligently
performing the undertakings. In Raveski, the New Hampshire
Supreme Court declined to say whether the negligent performance
of an undertaking doctrine might give rise to liability where an
injury might reasonably be thought to have been caused by both an
inherent risk of skiing and a ski area operator's carelessness in
performing some undertaking not required by the Ski Statute. See
776 A.2d at 1269 (rejecting plaintiff's so-called "voluntarily
assumed duty" theory, drawn from Restatement (Second) of Torts §
323, on grounds of forfeiture). But if applicable at all in this
context,4 the doctrine would only apply where a plaintiff has
pleaded facts sufficient to permit a reasonable inference that
defendant's undertaking(s) either (a) increased the risk that
plaintiff would suffer harm, or (b) caused the harm because of
plaintiff's reliance upon defendant's undertaking(s). See
Restatement (Second) of Torts § 323.
4Defendant makes a powerful argument that applying the doctrine in cases such as this would be bad public policy because it would give ski area operators an economic incentive not to engage in safety measures beyond those required by the Ski Statute.
- 15 - Here, the first amended complaint is devoid of allegations
suggesting that defendant's failure to exercise reasonable care
to perform the identified undertakings, see supra note 3, created
the icy area where the falls took place, exacerbated an already
dangerous situation, caused Howard Gwyn and Do to enter an area
they would not have entered absent the undertakings, or caused
Howard Gwyn and Do to suffer worse injuries than they would have
suffered absent the undertakings. In short, plaintiffs have
provided me with no basis for inferring that defendant put
plaintiffs in a worse position than they would have been in had
defendant indulged its prerogative not to engage in any safety-
related undertakings beyond those mandated in the Ski Statute.
Consequently, the negligent performance of an undertaking
doctrine does not supply plaintiffs with a viable negligence
claim under Count II.
Much of Count I also lacks viability. Two of the omissions
identified in Count I as giving rise to liability under N.H. Rev.
Stat. Ann. § 225-A:23 (when stripped of their non-textual
surplusage, see supra note 1) simply could not have caused
plaintiffs' injuries. Even if defendant failed to mark the
beginning of the Big Dipper trail with the designation
- 16 - appropriate to the trail's degree of difficulty, there is no
suggestion in the first amended complaint that Howard Gwyn, Do,
or Goss was misled or induced to ski down a trail that was beyond
his or her skiing competency. And even if defendant failed to
mark with an appropriate "closed" sign the beginning of the
Triple Trouble trail, there is no suggestion that the absence of
such a sign induced Howard Gwyn, and then Do and Goss, to enter
the trail under the misapprehension that it was open. Indeed, it
is undisputed that Howard Gwyn inadvertently entered the Triple
Trouble trail from the open Big Dipper trail, and that Do and
Goss intentionally entered the Triple Trouble trail (which they
knew to be closed and dangerous) in an unsuccessful attempt to
assist Howard Gwyn.
Nonetheless, reading the first amended complaint in the
light most favorable to plaintiffs and drawing all reasonable
inferences in their favor, see Alternative Energy, Inc., 267 F.3d
at 33, plaintiffs have stated two viable statutory claims. If
plaintiffs can establish that defendant failed to designate the
Triple Trouble trail as closed on its base area trail board (as
the first amended complaint can be generously construed to
allege, see supra note 1) and that Howard Gwyn would have avoided
- 17 - the icy area where he fell but for this statutory violation, a
jury reasonably might conclude that the statutory violation
caused his fatal injuries. Similarly, if plaintiffs can
establish that defendant failed to place a closed sign on the
Triple Trouble trail's designated access point from the Big
Dipper trail, see supra note 1, and that Howard Gwyn would have
approached the trail junction differently - e.g., less
aggressively or at a different angle - but for this statutory
violation, a jury reasonably might conclude that the statutory
violation caused his fatal injuries. Thus, in these respects,
the estate's direct statutory claim and Eileen Gwyn's and Do's
derivative claims5 survive defendant's motion to dismiss. But in
5Eileen Gwyn's Count I claim is derivative because she was not directly injured by defendant's alleged breach of its statutory duty with respect to the trail board. Rather, she is seeking damages caused by her lack of consortium with her late husband, whose fatal injuries were allegedly caused by defendant's breach of this duty. Do's statutory claim is also derivative because she does not, and cannot, claim that the absence of a closed sign on the trail board induced her to enter the icy area where she slipped. Instead, she claims that she entered the icy area where she slipped in order to attempt a rescue of her father. In permitting Do to proceed on this "rescue doctrine" claim, I reject defendant's argument for dismissal thereof because Do did not plead the rescue doctrine as a theory of liability. For purposes of Fed. R. Civ. P. 12(b) (6), it is sufficient that the estate has a viable statutory claim and that
- 18 - all other respects, I grant the motion to dismiss with respect to
Counts I and II.
2. Counts III and V
As noted above, defendant's primary argument for dismissal
of these counts is that they are derivative of Counts I and II -
i.e., their viability depends necessarily on a finding that
defendant breached some other statutory and/or common law duty to
plaintiffs - and thus fail to the extent that Counts I and II
lack viability. This argument is built from a sound premise and
is persuasive as far as it goes; because plaintiffs rely on the
same breaches of duties alleged in Counts I and II in framing
Counts III (for negligent infliction of emotional distress) and V
(for respondeat superior), Counts III and V cannot provide a
the pleaded facts support an award to Do under the doctrine. See Blackstone Realty LLC v. EPIC, 244 F.3d 193, 197 (1st Cir. 2001) (dismissal under Rule 12(b) (6) appropriate only if relief unobtainable under "any viable theory" suggested by the facts) (citation and internal quotation marks omitted) ; cf. Connecticut General Life Ins. Co. v. Universal Ins. Co., 838 F.2d 612, 622 (1st Cir. 1988) (directing that a judgment be entered under a legal theory that was not pleaded but was implicated by the established facts of the case). I also note that defendant has hinted at, but failed to develop, an argument that the New Hampshire Supreme Court would not apply the rescue doctrine under the circumstances of this case. I express no opinion on this issue, which has not been fully joined.
- 19 - basis for recovery unless plaintiffs prevail on one or more of
the theories advanced in Counts I and II.6 As a result,
defendant's potential liability is limited at the threshold to
whatever emotional distress it might have negligently inflicted
upon Eileen Gwyn or Do7 in connection with the two viable breach
of statutory duty theories identified in the previous section of
this memorandum and order.
Settled New Hampshire law makes it clear that Eileen Gwyn,
whose own claims under Counts I and II are derivative loss of
consortium claims, see supra note 5, lacks a viable negligent
infliction of emotional distress claim based on her exposure to
the injuries suffered by her husband and daughter because she did
not contemporaneously perceive the accidents giving rise to her
6In fact. Count V does not set forth a distinct cause of action at all; it merely contains an assertion that defendant is responsible for any duty-breaching acts or omissions of its agents, employees, and representatives. Defendant does not take issue with the merits of this proposition, so I will assume its correctness and say nothing more about Count V.
7Although Count III purports to state a negligent infliction of emotional distress claims on behalf of all plaintiffs, subsequent submissions make clear that only Eileen Gwyn and Do are seeking to state such a claim. See Plaintiffs' Objection to Defendant's Motion to Dismiss First Amended Complaint Based on Ski Statute, at 23; Plaintiffs' Motion for Leave to Amend Complaint, at 3.
- 20 - family members' injuries. See Nutter v. Frisbie Memorial Hosp.,
124 N.H. 791, 795-96 (1984); see also Wilder v. City of Keene,
131 N.H. 599, 603 (1989) ("we focus our analysis on whether the
plaintiffs observed or perceived the accident when it occurred
not on whether they observed or perceived the injuries their
child sustained"). I therefore grant defendant's motion with
respect to Eileen Gwyn's claim under Count III. Do, on the other
hand, has viable negligent infliction of emotional distress
claims under Count III because she was allegedly both a victim of
a breach of statutory duty (by operation of the rescue doctrine,
see supra note 5) that might reasonably be thought to have caused
her a painful mental experience with lasting physical effects,
see Thorpe v. State, 133 N.H. 299, 303-04 (1990), and a
contemporaneous perceiver of the others' accidents, which were
allegedly caused by defendant's breach of a statutory duty and
might reasonably be thought to have caused her a painful mental
experience with lasting physical effects, see Corso v. Merrill,
119 N.H. 647, 657-58 (1979).8 I therefore deny defendant's
8In so ruling, I reject defendant's alternative argument that Do's negligent infliction of emotional distress claim should be dismissed because plaintiffs have failed to allege that Do suffered physical manifestations of her emotional distress. The
- 21 - motion with respect to Do's Count III claims (to the extent that
they are tied to the viable breach of statutory duty claims
imbedded within Count I).
B. Motion to Dismiss Count IV
Defendant moves to dismiss Count IV, which sets forth a
claim that defendant
knowingly and willfully violated [the New Hampshire CPA] by explicitly and impliedly representing that its goods or services had sponsorship approval, characteristics, uses, benefits, or qualities that they did not have. In particular. Defendant represented that its ski slopes and trails would be safe for non threatening skiing on its open slopes, that skiers would be properly warned of unexpected, dangerous extra hazardous, or life threatening trails, that dangerous, life threatening trails would be adequately closed off and monitored, and that ski operations including operations to find missing skiers would be implemented in a timely, adequate and safe fashion.
First Amended Complaint, 5 70. Defendant contends, inter alia,
that plaintiffs have inadequately pleaded the misrepresentation
first amended complaint alleges that Do "sustained past and future severe and painful injuries, severe mental and emotional distress, fear, anxiety, . . . permanent impairments, loss of enjoyment of life, past and future medical care and expenses, and other losses and damages." First Amended Complaint, at 5 56. This allegation, in combination with the underlying factual allegations detailing Do's horrific experience, is sufficient for purposes of Fed. R. Civ. P. 12(b) (6) to constitute an allegation that a lasting physical injury resulted from Do's emotional distress. See Thorpe, 133 N.H. at 304.
- 22 - theory underlying their unfair or deceptive trade practice claim.
I agree.
By basing its CPA claim upon alleged misrepresentations and
further asserting that the misrepresentations constituted a
knowing and willful violation of the CPA, plaintiffs have in
essence accused defendant of fraud. Where an allegation of fraud
lies at the core of a cause of action, the heightened pleading
standards of Fed. R. Civ. P. 9(b) apply. See Havduk v. Lanna,
775 F.2d 441, 443 (1st Cir. 1985) (applying Rule 9(b) to a claim
for conspiracy to defraud); see also FDIC v. Bathgate, 27 F.3d
850, 876 (3d Cir. 1994) (applying Rule 9(b) to a claimed
violation of the New Jersey Consumer Fraud Act); Frith v.
Guardian Life Ins. Co. of America, 9 F. Supp.2d 734, 742 (S.D.
Tex. 1998) (applying Rule 9(b) to a fraud-based claim that
defendant violated the Texas CPA). Rule 9 (b) requires
"specification of the time, place and content of an alleged false
representation." Havduk, 775 F.2d at 444 (citation and internal
quotation marks omitted).
The first amended complaint does not detail when defendant
made the false representations underlying its CPA claim. Nor
does it specify either where the representations were made or the
- 23 - contents of what defendant said. Accordingly, defendant is
entitled to dismissal of Count IV. But the dismissal is without
prejudice to plaintiffs' seeking leave to file an amended
complaint which complies with the requirements of Fed. R. Civ. P.
9 (b) .
C . Motions for Leave to Amend and for Leave to Reply to _____ Defendant's Objection to the Motion for Leave to Amend
Plaintiffs seek leave to amend the first amended complaint
so as to add additional factual allegations and to state a claim
for negligent misrepresentation, and leave to reply to
defendant's objection to this motion. I grant plaintiffs' motion
for leave to reply to the objection but deny the motion for leave
to amend.
Neither the motion for leave to amend, which was filed more
than two months after the Fed. R. Civ. P. 16(b)(1) deadline for
amending the pleadings and well after defendant had fully briefed
its arguments in support of dismissal of the first amended
complaint, nor the reply to defendant's objection makes any
effort whatsoever to establish that "good cause" exists for
modifying the agreed-upon Rule 16(b) deadline for amending the
pleadings. See Hernandez-Lorinq v. Universidad Metropolitana,
- 24 - 233 F.3d 49, 51 (1st Cir. 2000) (applying the good cause
standard); c f . Riofrio Anda v. Ralston Purina, Co., 959 F.2d
1149, 1154-55 (1st Cir. 1992) (noting that "undue delay" and
"undue prejudice to the opposing party" provide bases for denying
a motion to amend and observing that allowance of an amendment
two months after the deadline established by the Rule 16(b)
scheduling order "would have nullified the purpose of rule
16(b)(1)"). Moreover, plaintiffs' motion fails to comply with
Local Rule 1 5 (a)'s requirement that parties seeking to amend
their pleadings both attach the proposed amended filing and
explain why the new allegations and claims were not included in
the original filing. I would have to ignore the requirements of
the federal and local rules entirely in order to grant
plaintiffs' motion.
Ill.
For the reasons stated and to the extent described above, I
grant in part and deny in part defendant's motion to dismiss the
first amended complaint based on the Ski Statute [document no.
11], grant defendant's motion to dismiss Count IV of the first
amended complaint [document no. 12], deny plaintiffs' motion for
- 25 - leave to amend the first amended complaint [document no. 19 ], and
grant plaintiffs' motion for leave to reply to defendant's
objection to the motion for leave to amend [document no. 21 ] •
SO ORDERED.
Paul Barbadoro Chief Judge
May 15, 2 002
cc: Kevin M. Leach, Esq. Thomas Quarles, Jr., Esq. Peg O'Brien, Esq.
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