Lizzol v. Brothers Property, et al.

2016 DNH 199

• Court: District Court, D. New Hampshire
• Decided: October 31, 2016
• Docket: 15-cv-100-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jennifer Lizzol, Michael Lizzol, and T.G., Plaintiffs

v. Case No. 15-cv-100-SM Opinion No. 2016 DNH 199 Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants

O R D E R

Jennifer Lizzol, her husband Michael, and their son, T.G.,

filed suit to recover damages for injuries sustained as a result

of a snow machine accident that occurred during a winter

vacation at the Mountain View Grand Resort & Spa, in Whitefield,

New Hampshire (“Mountain View Grand”). Defendants move for

summary judgment based upon a liability release and covenant not

to sue executed by Jennifer and Michael before the accident.

Defendants also move for summary judgment on Michael Lizzol’s

and T.G’s bystander liability claim. For the reasons discussed,

defendants’ motion is granted.

Standard of Review

When ruling on a motion for summary judgment, the court

must “constru[e] the record in the light most favorable to the

1 nonmoving party and resolv[e] all reasonable inferences in that

party's favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301

(1st Cir. 2014). Summary judgment is appropriate when the

record reveals “no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over

it is ‘genuine’ if the parties' positions on the issue are

supported by conflicting evidence.” Int'l Ass'n of Machinists &

Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196,

199–200 (1st Cir. 1996) (citations omitted). See also Nolan v.

CN8, 656 F.3d 71, 76 (1st Cir. 2011). Nevertheless, if the non-

moving party's “evidence is merely colorable, or is not

significantly probative,” no genuine dispute as to a material

fact has been proved, and “summary judgment may be granted.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)

(citations omitted).

Background

Construing the record in the light most favorable to

plaintiffs, and resolving all reasonable inferences in their

favor, the controlling facts appear to be as follows.

The Lizzols travelled to the Mountain View Grand from Long

Island, New York, on January 27, 2013, arriving in the 2 afternoon. Prior to their arrival, Jennifer had scheduled a

snowmobile lesson and tour for herself, her husband, and her

son, as well as for a few of their friends, through the Mountain

View Grand’s website. Defs.’ Mot. for Summary Judgment, Exh. C

at p. 2. The lessons and guided tour were provided by Out Back

Kayak, Inc. (“OBK”). Upon arrival at the resort, the Lizzols

quickly put their luggage in their rooms, and then left to

participate in the snowmobile activity, including a lesson and

tour. Id.

The Lizzols were directed by the hotel activities desk to a

small building on the grounds, where they met a Mountain View

Grand employee, who told them to quickly pick out helmets and

sign a two-page document that bore the following heading:

Snow Machine Tour

ACKNOWLEDGEMENT OF RISKS AND HAZARDS COVENANT NOT TO SUE WAIVER AND RELEASE OF LIABILITY

(the “Release”). The Lizzols felt rushed during the process,

see, e.g., Defs.’ Mot. for Summary Judgment, Exh. C. at p. 3,

but both Jennifer and Michael had an opportunity to review the

Release, and each signed and initialed it. (Jennifer executed

the release on behalf of her minor son, T.G.). The Release

includes the following language:

3 I . . . hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, property damage, wrongful death or injury, loss of services or otherwise which may arise out of my use of eques[trian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions presently or in the future for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.

Defs.’ Mot. for Summary Judgment, Exh. A, p. 1. The Release

includes five lettered paragraphs that provide tour participants

with a designated space in which to place his or her initials,

thereby confirming that he or she understands and acknowledges

the following:

(A) that he or she is physically fit to participate in the activity;

(B) that participation in the activity may result in “bodily injury, disease, strains, fractures, partial and/or total paralysis, eye injury, dental injury, blindness, . . . cold weather injuries, heart attack, asthma, vehicle injuries, mental duress, death or other ailments that could cause serious disability;”

(C) that “[t]hese risks and dangers [of bodily injury] may be caused by the negligence of the owners, employees, officers or agents of the Mountain View Grand and/or the negligence of the participants . . . ;”

(D) that by participating “in these activities and/or use of equipment, [the participant] . . . assume[s] all risks and dangers and all responsibility for any loss and/or damages, whether caused in whole or in

4 part by the negligence or other conduct of the owners, agents, officers, designees, employees of BPMC, or by any other person[;]” and

(E) that the participant “understand[s] that [he or she is] undertaking this snowmobiling activity at [his or her] own risk, freely and voluntarily without any inducement[.]”

Id. Jennifer did not initial Paragraph B or Paragraph D, and

Michael did not initial Paragraph B.

After signing the Release and obtaining their helmets, the

Lizzols met their tour instructor, OBK employee Martin Welch,

and his assistant, Jennifer Welch. The Lizzols had no snow

machine experience. Welch provided a very brief introduction to

and instruction regarding operation of the snow machines. He

explained how to accelerate, brake, and turn. He told them that

the tour would never travel faster than 20 miles per hour.

Welch then assisted the tour members with their snowmobile

selections, and the tour began.

Jennifer and Michael rode on a two-person snow machine,

with Jennifer operating the vehicle. They were directly behind

Welch in the line of snowmobiles. Their son, T.G., rode by

himself and was farther back in the line. Welch drove rather

quickly during the tour, and far exceeded the self-imposed 20

miles per hour speed limitation he had announced earlier.

Jennifer did not keep pace, and, as Welch increased his speed

5 during the second half of the tour, Jennifer lost sight of him.

Jennifer attempted to follow Welch’s tracks in the snow, but, in

doing so, lost control of the snowmobile, which left the path

and flipped over. Jennifer, Michael, and the snow machine fell

down a steep embankment that was approximately seventy-five feet

high.

Both Jennifer and Michael suffered physical injuries, but

Jennifer’s were particularly severe. She lost consciousness,

had collapsed lungs, 10 broken ribs, and multiple injuries to

her spine and back.

The plaintiffs later learned that other customers may have

complained that Welch drove too quickly during earlier snow

machine tours. After the accident, Mountain View Grand manager,

Chris Diego, asked Michael if Welch had been “going too fast

again.” Pls.’ Opp. to Summary Judgment, Exh. 4, p. 6.

Jennifer, Michael, and their son brought suit against

Brothers Property Management Corporation (which owns and

operates the Mountain View Grand), OBK, and Martin Welch,

asserting claims for negligence, including negligent training

and supervision, vicarious liability, bystander liability, and

loss of consortium. The defendants move for summary judgment,

6 arguing that the contractual Release is both valid and

enforceable.

Discussion

Defendants argue that the scope of the Release plainly

encompasses the claims at issue here because the complaint

alleges that, as a result of the defendants’ negligence, they

were injured while participating in the snow machine lesson and

tour activity. Plaintiffs disagree.

New Hampshire law generally prohibits exculpatory

contracts. McGrath v. SNH Development, Inc., 158 N.H. 540, 542

(2009). But, there are exceptions. Exculpatory contracts are

enforceable if: “(1) they do not violate public policy; (2) the

plaintiff understood the import of the agreement or a reasonable

person in [plaintiff’s] position would have understood the

import of the agreement; and (3) the plaintiff's claims fall

within the contemplation of the parties when they executed the

contract.” Id. at 542 (quoting Dean v. MacDonald, 147 N.H. 263,

266-67 (2008)).

A. The Scope of the Release

Plaintiffs argue that the Release is not enforceable

because they did not understand it to encompass claims for

negligent instruction, or negligent guidance on the snow machine

7 tour, and a reasonable person in their position would not

understand the Release to bar such claims. They say that the

content, structure, and organization of the Release – which

plaintiffs contend is verbose, employs obfuscating language, and

uses confusing sentence structure – disguised any intent to

relieve the defendants of liability for their own negligence

related to instruction or guidance along the trail. They point

out that the words “instruction,” “lesson” and “guide” are terms

that do not appear in the Release. Rather, the Release focuses

on terms like “services,” “use of equipment,” and “participation

in activities.” Altogether, they say, the impression is given

that the Release applies only to injuries inherent to snow

machine activity and the use of snow machine equipment, but not

to harm resulting from an instructor’s or guide’s failure to act

with reasonable care.

The parties’ differing subjective understandings of the

Release’s intent is of limited relevance to the controlling

analysis, however, since courts must “judge the intent of the

parties by objective criteria rather than the unmanifested

states of mind of the parties.” Dean, 147 N.H. at 267 (citing

Lake v. Sullivan, 145 N.H. 713, 715 (2001) and Barnes v. New

Hampshire Karting Ass'n, Inc., 128 N.H. 102, 107 (1986)). Under

applicable New Hampshire law, courts examine the language of a

8 release and “give the language used by the parties its common

meaning and give the contract itself the meaning that would be

attached to it by a reasonable person.” McGrath, 158 N.H. at

545 (internal quotations omitted) (quoting Dean, 147 N.H. at

267). “As long as the language of the release clearly and

specifically indicates the intent to release the defendant from

liability for personal injury caused by the defendant's

negligence, the agreement will be upheld.” Id. (internal

quotations omitted) (quoting Dean, 147 N.H. at 267). However, a

defendant “will not be released from liability when the language

of the contract raises any doubt as to whether the plaintiff has

agreed to assume the risk of a defendant's negligence.” Allen

v. Dover Co-Recreational Softball League, 148 N.H. 407, 414

(2002) (citations omitted).

The language used in the Release at issue here is broad in

reach, detailed, and clear. A reasonable person would be hard

pressed to avoid recognizing the significance and effect of the

words used. The Release plainly purports to release Mountain

View Grand employees and agents of all liability for their own

negligence, or the negligence of others (e.g. other snowmobile

activity participants), related to the snow machine instruction

and tour (equipment and services). The Release repeatedly

references waiving the negligence of MVG’s employees, officers

9 and agents. For example, after warning the signatory of the

serious risks of injury associated with participation in the

snow machine tour, including bodily injury and death, the

Release explains that those risks could be caused by “the

negligence of the owners, employees or agents of the Mountain

View Grand.” Defs.’ Mot. for Summary Judgment, Exh. A. The

Release then states that the signatory agrees to “assume all

risks and dangers and all responsibility for any loss and/or

damages whether caused in whole or in part by the negligence . .

. of the owners, agents, officers, designees, employees of

BPMC.” Id. The Release further provides: “I specifically

understand that I am giving up any rights that I may have by

releasing, discharging and waiving any claims or actions . . .

for the negligent acts or other conduct by the owners, agents,

officers, designees or employees of BPMC.” Id.

The language of the Release unarguably applies to claims or

suits based on the negligence of Mountain View Grand owners,

employees, officers or agents. The Release does not qualify or

limit the “negligence” being released in any way, nor is the

Release ambiguous in that regard. References in the Release to

“participation in [the] activity” also make clear that claims

arising from the releasees' negligence associated with the

described activity are being waived.

10 The Lizzols participated in an activity that consisted

of a snow machine lesson and a snow machine tour.

Plaintiffs’ claim that they were injured because defendants

negligently conducted both the snow machine lesson and the

tour. Their negligence claims, then, necessarily arise

directly from their participation in the activity (the snow

machine lesson and tour). That the Release does not

include terms like “instruction,” “lesson” or “guide” is

not dispositive: “[T]he parties need not have contemplated

the precise occurrence that resulted in the plaintiff's

injuries, and may adopt language that covers a broad range

of accidents.” McGrath, 158 N.H. at 545 (internal

citations omitted) (citing Barnes, 128 N.H. at 107). So,

attempting to carve out discrete acts of negligence from

the Release is futile if, as here, those discrete acts are

associated with the conduct of the snow machine instruction

and tour activity.

A reasonable person “would have contemplated that the

agreements released the defendants from any negligence, not just

from negligence inherent” in snowmobiling. McGrath, 158 N.H. at

547.

11 B. The Release encompasses the negligence claims against OBK

Plaintiffs further argue that the Release failed to place

them on notice that they were releasing OBK from liability,

since OBK is not a named party to the exculpatory contract, and

is not mentioned by name. Relying on Porter v. Dartmouth

College, No. 07-cv-28-PB, 2009 WL 3227831 (D.N.H. Sept. 30,

2009), plaintiffs note that the Release repeatedly makes

reference to the Mountain View Grand and its equipment, but does

not mention OBK or its instructors. Therefore, they say, a

reasonable person would not understand that the Release also

purported to absolve OBK from liability for its own negligence.

“An exculpatory contract need not specifically identify the

defendant by name.” Porter, 2009 WL 3227831, at *3 (citing

Dean, 147 N.H. at 270). “However, the contract must at least

provide a functional identification of the parties being

released.” Id. Here, the Release reads in relevant part:

I . . . voluntarily agree to release . . . BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, . . . wrongful death or injury, loss of services or otherwise which may arise out of my use of [equestrian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or

12 other conduct by the owners, agents, officers, designees or employees of BPMC.

Defs.’ Mot. for Summary Judgment, Exh. A (emphasis supplied).

Defendants point out that OBK, and Welch individually, are

covered by the Release because they are both “agents” of BPMC,

and they acted as the referenced “field operator” for the snow

machine tour. Indeed, plaintiffs specifically alleged the

existence of an agency relationship between BPMC and OBK in

their Complaint. See, e.g., Compl. ¶ 48 (“Mountain View Grand

controlled in whole or in part the activities engaged in by Out

Back Kayak and/or its employees and is vicariously liable for

the negligent actions of the snow mobile tour guides committed

while engaged in the scope of employment.”). The asserted

agency relationship is an essential element of plaintiffs’

vicarious liability claim. Defendants readily agree that OBK

and Welch were agents of BPMC. For reasons satisfactory to the

parties, they do not dispute OBK’s or Welch’s status as agents

of BPMC. As BPMC’s agent, OBK and Welch are plainly covered by

the Release.

Moreover, plaintiffs’ reliance on Porter is unhelpful. In

Porter, the plaintiff, an undergraduate student at Dartmouth

College, was fatally injured while participating in a class that

13 included ski lessons, at a facility owned, operated, and

maintained by Dartmouth. 2009 WL 3227831, at *1. Her estate

filed suit, asserting claims for negligence and wrongful death.

Id. Dartmouth argued that the claims were barred by a release

agreement plaintiff signed before renting ski equipment for the

class. Id. at 2. The release in Porter, which had been drafted

by Solomon (the ski and bindings manufacturer), did not mention

Dartmouth by name, and repeatedly emphasized and referred only

to ski equipment being rented by the student. See id. at 3.

Based on those distinguishing facts, the court concluded that

the release failed to place the “equipment renter on even

functional notice that Dartmouth was in any way a party” to the

release agreement. Id.

Unlike the release at issue in Porter, the Release here

makes evident that it pertains not just to the furnishing and

use of equipment associated with the snow machine activity, but

also to the furnishing of services associated with that

activity. The clearest example is found in the first paragraph

of the Release, which provides: “In consideration of Brothers

Property Management Corporation . . . furnishing services and

equipment to enable me to participate in the Snow Machine tour

(snowmobiling), I acknowledge and agree as follows.” Defs.’

Mot. for Summary Judgment, Exh. A (emphasis added). Indeed,

14 nearly every time the Release references the signatory’s use of

equipment, the Release also references the signatory’s

participation in the snow machine lesson and tour. See id. Such

references objectively manifest the parties’ intent that the

Release encompass all claims based upon the negligent provision

of services – including services provided by Mountain View

Grand’s agent, OBK — that related to plaintiffs’ participation

in the snow machine tour activity. While not identified by

name, OBK and Welch were functionally identified as benefitting

from the Release, when acting as agents of Mountain View Grand.

C. Jennifer’s failure to initial certain paragraphs of the Release does not preclude its enforcement.

Plaintiffs next argue that, even if the Release does

encompass the claims at issue, it is still not enforceable

against Jennifer, because she failed to initial paragraphs B and

D of the Release. Plaintiffs characterize the lettered

paragraphs as “several distinct exculpatory clauses” that they

were required to agree to separately, and which, as structured,

give the impression that “the participant might agree to certain

terms, but not others.” Pls.’ Mem. in Opp. to Mot. for Summary

Judgment at p. 18. Because Jennifer did not initial two of the

contract’s paragraphs, plaintiffs say, those paragraphs are not

enforceable against her. At the very least, plaintiffs

continue, Jennifer’s failure to initial those paragraphs gives

15 rise to disputed issues of material fact regarding her intent to

be bound by those paragraphs, and whether there was a “meeting

of the minds” with respect to releasing defendants from

liability for their own negligence. Id.

In response, defendants point out that the final paragraph

of the Release reads:

I have read the above paragraphs and fully understand their content. I understand that this is a Release of Liability, which will legally prevent me or any other person from filing suit and making any other claims for damages in the event of personal injury, death or property damage.

Defs.’ Mot. for Summary Judgment, Exh. A. Defendants argue that

the final paragraph clearly and explicitly incorporates the

terms of paragraphs B and D, and therefore plaintiffs’ argument

is unavailing.

The final paragraph of the Release is unambiguous. By

signing the Release, Jennifer acknowledged that she had read the

entire agreement and agreed to its terms; all of its terms. Cf.

Serna v. Lafayette Nordic Vill., Inc., No. 14-CV-049-JD, 2015

WL 4366250, at *3 (D.N.H. July 16, 2015) (finding that

plaintiff’s failure to sign a release on the back of a form did

not bar enforcement, where plaintiff had signed the front of the

agreement following a statement acknowledging that she had read

16 the agreement on the back of the form concerning the release of

liability, and agreed to its terms); see also Gannett v.

Merchants Mut. Ins. Co., 131 N.H. 266, 269–70 (1988) (“The

plaintiff argues, however, that she is not bound by the

condition in the release, as she never returned the release to

Merchants. The return of the release, however, is irrelevant, as

it was the acceptance of a check offered on the condition that

it constitute payment in full, rather than the signing of the

release, which bound [plaintiff]. It is also irrelevant whether

she actually read the release, when the release clearly and

unambiguously stated the condition, and when [plaintiff] had the

opportunity to read it before cashing the check.”). Here,

Jennifer acknowledged having read the entire release and

objectively manifested her agreement, after which she accepted

the services to be provided only on condition that a full

release first be given.

The parties do not cite New Hampshire authorities directly

on point, nor has the court found any, but it appears that the

Tenth Circuit addressed a nearly identical issue in Elsken v.

Network Multi-Family Security Corp, 49 F.3d 1470 (10th Cir.

1995). In Elsken, the plaintiff entered into a services

agreement with a security corporation to provide a 24-hour alarm

system. Id. at 1471. The agreement contained a limitation of

17 liability clause, on the same page as a space provided for a

party to initial. Id. at 1473. The plaintiff signed the

agreement, but failed to initial the line next to the limitation

of liability clause. Plaintiff there also signed the agreement

below a provision “articulating a presumption that the agreement

was properly executed,” which read:

Resident acknowledges that resident has read and understands all of this resident agreement including the terms and conditions on this side and the reverse side, particularly Paragraph 3.0 Limitation of Liability and agrees to the amounts set forth herein.

Id. at 1473. The plaintiff was subsequently fatally stabbed in

her apartment. Her estate filed suit against the security alarm

company, asserting claims for breach of contract, negligence,

and breach of warranties based on the alarm company’s failure to

properly respond to an alarm. Plaintiffs argued that the

limitation of liability clause was not effective because

plaintiff did not initial the line provided for that purpose,

and, therefore, had not objectively manifested her agreement to

the waiver provision. Id. at 1472-73.

The court of appeals found that plaintiff’s failure to

initial the line provided did not preclude summary judgment,

since plaintiff had signed “directly below a statement of

acceptance of the contract that explicitly incorporates the

provisions on the reverse side of the page.” Id. at 1474. The

18 court determined that, “[b]ased upon a plain reading of the

contract,” plaintiff agreed to the contract in its entirety as

written. Id. So too, here. Jennifer’s signature directly

follows a paragraph that references the liability waiver clauses

defendants seek to enforce.

Finally, plaintiffs point to no evidence in the record that

might support a finding that Jennifer’s failure to initial

paragraphs B and D was in any way motivated by an objection to

or non-acceptance of either of those terms. Nor do they point

to evidence in the record that would support a finding that

Jennifer ever expressed any objection to the terms of paragraphs

B and D before executing the agreement. Indeed, the relevant

evidence of record suggests that Jennifer’s failure to initial

paragraphs B and D was not the product of a conscious decision.

See Defs.’ Mot. for Summary Judgment, Exh. C, p. 4 (Q: “Do you

have any explanation for why A, C, and E were initialed, but not

B and D?” Jennifer Lizzol: “No.” . . . Q: “Was there a conscious

decision on your part not to initial B and D?” Jennifer Lizzol:

“No.”)

Jennifer Lizzol’s failure to initial paragraphs B and D of

the Release does not render the Release or those paragraphs

unenforceable against her. The same general analysis applies to

Michael Lizzol's failure to initial Paragraph B of the Release. 19 D. The Release does not violate public policy.

Plaintiffs argue that the Release contravenes public

policy, because its enforcement would relieve an instructor from

liability for his own negligent instruction. Plaintiffs contend

that because the instructor/guide holds a position of authority

over the conduct of the snow machine tour, the instructor/guide

is uniquely positioned to ensure that the tour is conducted in a

reasonably safe manner. So, plaintiffs say, releasing an

instructor of his or her obligation to exercise reasonable care

will result in that instructor failing to make a good faith

effort to carry out his duties, which, they say, is what

happened here. That contravenes public policy, they argue,

because it will surely impede public safety.

The argument, while creative, avoids the public policy

analysis required under New Hampshire law. “A defendant seeking

to avoid liability must show that the exculpatory agreement does

not contravene public policy; i.e., that no special relationship

existed between the parties and that there was no other

disparity in bargaining power.” Barnes, 128 N.H. at 106. “‘A

special relationship exists when “the defendant is a common

carrier, innkeeper or public utility, or is otherwise charged

with a duty of public service.’” Serna v. Lafayette Nordic

Vill., Inc., 2015 WL 4366250, at *2 (quoting Barnes, 128 N.H. at

20 106). Additionally, a release may be against public policy if,

among other things, “it is injurious to the interests of the

public, violates some public statute, or tends to interfere with

the public welfare or safety.” Serna, 2015 WL 4366250, at *2

(citing McGrath, 158 N.H. at 543).

Plaintiffs do not contend that a “special relationship”

existed between the parties, as that term is used in the

liability waiver context. Nor could they. While the Mountain

View Grand is an inn, the Release does “not pertain to the usual

activities of running an inn,” but instead to the Mountain View

Grand’s facilitation of collateral outdoor recreation

activities. Serna v. Lafayette Nordic Vill., Inc., 2015 WL

4366250, at *2. And snowmobiling (like skating, Serna, id., and

snowboarding, McGrath, 158 N.H. at 544) constitutes recreational

activity, not “an activity ‘of such great importance or

necessity to the public that it creates a special

relationship.’” Serna, 2015 WL 4366250, at *2 (quoting McGrath,

158 N.H. at 544).

“Where there is a disparity in bargaining power, the

plaintiff may not be deemed to have freely chosen to enter into

the contract.” McGrath, 158 N.H. at 544 (citing Barnes, 128

N.H. at 107). But, “there [is] no substantial disparity in

bargaining power among the parties, despite the fact that 21 [plaintiffs were] required to sign the release in order to”

participate in the snow machine lesson and tour. Barnes, 128

N.H. at 108. Here, the plaintiffs were “under no physical or

economic compulsion to sign the release,” and “[s]ince the

defendants’ service is not an essential one, the defendants had

no advantage of bargaining strength” over the plaintiffs or

others who sought to participate in the snowmobile lesson and

tour. Barnes, 128 N.H. at 108.

The Release does not violate public policy.

E. The plaintiffs have not sufficiently established fraud in the inducement.

Finally, plaintiffs argue that the Release is unenforceable

because they were fraudulently induced to enter into the

agreement. Plaintiffs assert that defendants had prior

knowledge that Welch generally drove too quickly when conducting

snow machine tours, and, notwithstanding that knowledge, failed

(negligently) to take reasonable steps to ensure that Welch

conducted the tours safely. Plaintiffs further contend that

they were induced to sign the Release based upon defendants’

false assurances that the lesson and tour would be conducted in

a safe manner, with adequate instruction, and at a safe speed.

Relying on those assurances, plaintiffs signed the Release.

Plaintiffs argue that, at the very least, whether the defendants

22 made assurances (and omissions) regarding the nature of the snow

machine tour with conscious indifference to the truth, and

whether the plaintiffs justifiably relied upon those statements

when signing the Release, are disputed issues of material fact

precluding summary judgment.

“Under New Hampshire law, fraud in the inducement is a

valid defense to a contract action and can be raised to void a

contract.” Bryant v. Liberty Mut. Grp., Inc., No. 11-CV-217-SM,

2013 WL 2403483, at *9 (D.N.H. May 31, 2013) (citing Nashua

Trust Co. v. Weisman, 122 N.H. 397, 400 (1982)). As the parties

seeking to invalidate the Release on fraudulent inducement

grounds, plaintiffs bear a substantial burden: they “must

establish that the other party made a representation with

knowledge of its falsity or with conscious indifference to its

truth with the intention to cause another to rely upon it. In

addition, the party seeking to prove fraud must demonstrate

justifiable reliance.” Trefethen v. Liberty Mut. Grp., Inc.,

No. 11-CV-225-SM, 2013 WL 2403314, at *7 (D.N.H. May 31,

2013)(quoting Van Der Stok v. Van Voorhees, 151 N.H. 679, 682

(2005)) (additional citations omitted).

Plaintiffs rely on Van Der Stok v. Van Voorhees, but that

decision offers little support. That case arose out of a

transaction for the sale of real estate. The plaintiff 23 represented that defendant-purchaser would be able to build on

the property, but did not disclose that his own earlier

application to the zoning board for a permit to build on the

property had been denied. After the closing, defendant went to

the town offices to inquire about the property, and first

learned that plaintiff’s earlier permit application had been

denied. Defendant stopped payment on the check given at closing

to cover the purchase price. The plaintiff subsequently filed

an action, and defendant raised fraud in the inducement as a

defense to plaintiff’s claims. Plaintiff argued the defendant

could not show reasonable reliance on his purported

misrepresentation, because the purchase and sale agreement

provided, “Seller makes no representations as to land use law or

regulations.” Id. at 682.

The New Hampshire Supreme Court rejected that argument for

two reasons. First, the court was unconvinced that the

disclaimer “would put a reasonable person on notice that he

could not rely upon the specific representation made . . . that

the particular lot he was buying was a buildable lot.” Id. at

683. Moreover, the plaintiff had “made a representation with

knowledge of its falsity or with conscious indifference to the

truth with the intention to cause another to rely upon it.” Id.

(quoting Snierson v. Scruton, 145 N.H. 73, 77 (2000)). Such

24 “positive fraud,” the court stated, “vitiates every thing.” Id.

(quoting Jones v. Emery, 40 N.H. 348, 350 (1860)).

This case is distinguishable from Van Der Stok because the

Lizzols have not shown what representation defendant(s)

allegedly made "with knowledge of its falsity or with conscious

indifference to its truth with the intention to cause another to

rely upon it.” Id. In support of their assertion that

defendants knew (or believed) that Walsh was likely to conduct

their particular tour in an unsafe manner, plaintiffs point to

the following: (1) “[u]pon information and belief, there had

been complaints from customers that OBK’s tour guides,

specifically Martin Welch, had driven unreasonably fast while

conducting tours; (2) after the incident, the MVG manager asked

Michael if Welch had been “driving too fast again.”

Admissibility of that evidence is doubtful, and it is

plainly insufficient to support a finding that defendants knew

that plaintiffs’ lesson and tour would be conducted in a

negligent or actionably unsafe manner or were recklessly

indifferent to that likelihood. And plaintiffs have identified

no particular representation made by defendants, with the

intention to induce plaintiffs to rely upon it, and, upon which

they justifiably relied, that either proved to be false or the

product of reckless indifference to the truth. The only 25 statement in the record to which they point (Welch’s statement

that he would not drive the snow machines faster than 20 miles

per hour) occurred after plaintiffs signed the Release. The

record is also utterly silent with respect to whether speed in

excess of 20 mph is considered dangerous or negligent when

conducting a snowmobile tour, or whether "too fast" in the past

equates to the speed driven by the guide on plaintiffs' tour, or

even what "too fast" might mean in the context of a snowmobile

tour that included novices.

Because plaintiffs have not produced sufficient evidence

from which a finder of fact could conclude that the defendants

knowingly made fraudulent representations to them, they have not

established that a genuine issue of fact exists with respect to

whether their execution of the Release was fraudulently induced,

and is therefore ineffective.

The Release is valid and enforceable, and it encompasses

the plaintiffs’ bystander liability claim as well as their

negligence claims.

Conclusion

For the foregoing reasons, and for those argued in the

defendants’ memoranda, the motion for summary judgment (document

no. 23) is necessarily granted under controlling New Hampshire

26 law. The Release at issue here is not ambiguous. It

unmistakably released the defendants from any liability relating

to their negligence, and that of their employees and agents.

Neither qualifying language nor any other provision in, nor the

structure of the Release, obscured the defendants' intent to be

relieved of all liability for their own negligence. A

reasonable person would have understood that the Release

relieved the defendants of all liability for injuries caused by

their negligence. The Clerk of Court shall enter judgment for

defendants and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 31, 2016

cc: Philip R. Waystack, Jr., Esq. Sandra L. Cabrera, Esq. Paul B. Kleinman, Esq.