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 027 Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants
O R D E R
Jennifer Lizzol, her husband Michael, and the couple’s son,
T.G., bring this action seeking to recover damages for injuries
they sustained in a snowmobiling accident while vacationing at
the Mountain View Grand Resort & Spa, in Whitefield, New
Hampshire. Defendants move to dismiss one of plaintiffs’
negligence claims, asserting that it fails to state a viable
cause of action under New Hampshire common law. See Fed. R. Civ.
P. 12(b)(6). For the reasons discussed, that motion is granted.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st
Cir. 2010). Although the complaint need only contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face,” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).
Background
Accepting the factual allegations of the amended complaint
as true - as the court must at this juncture - the relevant
background is as follows. In January of 2013, plaintiffs were
vacationing in New Hampshire. Prior to their arrival, Jennifer
Lizzol went to the Mountain View Grand Internet website and
registered her family for a snowmobile lesson and tour. Those
lessons and the guided tour were provided by an independent
contractor used by Mountain View Grand: Out Back Kayak (“OBK”).
On the day in question, OBK employee Martin Welch served as the
Lizzols’ instructor and tour guide.
According to the amended complaint, Welch provided
plaintiffs - who had never driven snowmobiles before - with only
cursory instructions on the operation of the machines. The group
then set off on their tour. Jennifer Lizzol operated one
2 snowmobile, on which Michael was a passenger. T.G. operated
another. The group was told to follow Welch, as he headed out on
the trail. But, say plaintiffs, Welch drove too quickly for them
to safely follow and Jennifer (who was in the front of the tour
group) eventually lost sight of him. While trying to catch-up to
Welch, Jennifer lost control of her snowmobile, which left the
trail and flipped over. Jennifer, Michael, and the snowmobile on
which they had been riding rolled down an embarkment that was
approximately seventy-five feet high. As a result, Jennifer
suffered severe injuries, including injuries to her spine.
In their multiple-count amended complaint, plaintiffs
advance claims against Brothers Property Management Corporation
(operator of Mountain View Grand Resort & Spa), OBK, and Martin
Welch. Defendants move to dismiss one of those claims, asserting
that it fails to state a viable cause of action under New
Hampshire law.
Discussion
In Count II(c) of their amended complaint, plaintiffs seek
to impose vicarious liability on Mountain View Grand for the
alleged negligence of Martin Welch - the employee of independent
contractor OBK. The essence of plaintiffs’ claim is as follows:
3 Because Defendant Mountain View Grand contracted with Out Back Kayak to provide guided snow mobile tours, which is an inherently dangerous activity, Defendant Mountain View Grand is therefore vicariously liable for the negligence of the tour guide committed while engaged in performing work as such a guide.
Amended Complaint (document no. 9) at para. 56 (emphasis
supplied).
As plaintiffs acknowledge, New Hampshire law provides that,
“[r]espondeat superior, or vicarious liability, ordinarily does
not extend to torts by independent contractors because the
employer reserves no control or power of discretion over the
execution of the work.” Arthur v. Holy Rosary Credit Union, 139
N.H. 463, 465 (1995). Here, that common law doctrine would
preclude holding Mountain View Grand vicariously liable for the
negligence of OBK and/or its employee, Welch. But, say
plaintiffs, their claim against Mountain View Grand falls within
an exception to that general principle. That exception provides
that a party can be liable for its independent contractor’s
negligence if the independent contractor was, at the time,
engaged in an “inherently dangerous activity.” See Id. See also
Elliott v. Pub. Serv. Co. of N.H., 128 N.H. 676, 679 (1986)
(“[O]ne who undertakes an inherently dangerous activity has a
non-delegable duty to protect third parties against injury
resulting from that activity.”). And, say plaintiffs, providing
4 riding lessons and giving guided snowmobile tours is such an
inherently dangerous activity. Moreover, they point out that the
New Hampshire Supreme Court has repeatedly held that “whether an
activity is inherently dangerous is a question of fact to be
determined by the trier of fact.” Holy Rosary Credit Union, 139
N.H. at 466 (quoting Elliot, 128 N.H. at 682).
In response, defendants assert that, as a matter of law,
providing snowmobiling lessons and tours does not meet the
definition of an inherently dangerous activity. Consequently,
they say, it would be inappropriate to permit a jury to consider
that issue and plaintiffs’ vicarious liability claim against
Mountain View Grand necessarily fails. The court agrees.
The New Hampshire Supreme Court has made clear that not
every potentially dangerous activity is an “inherently dangerous”
one. Rather, to constitute an inherently dangerous activity, the
risk of accident or injury to a third party must arise “directly
from the [activity itself], and not from the negligent manner of
its performance.” Thomas v. Harrington, 72 N.H. 45, 46 (1903).
See also Carr v. Merrimack Farmers Exch., 101 N.H. 445, 449
(1958) (“[T]he technical meaning given to the phrase ‘inherently
dangerous’ as applied to undertakings conducted through
independent contractors often implies work that is dangerous even
5 when conducted with reasonable care; and that the exception
relating to such undertakings has been principally applied in
cases of demolition, excavation, and other clearly dangerous
activities particularly when conducted in proximity to public
highways.”).
More recently, the New Hampshire Supreme Court held that, in
order to be “inherently dangerous,” the activity:
must be dangerous in and of itself and not dangerous simply because of the negligent performance of the work, and that [] danger must be naturally apprehended by the parties when they contract.
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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 027 Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants
O R D E R
Jennifer Lizzol, her husband Michael, and the couple’s son,
T.G., bring this action seeking to recover damages for injuries
they sustained in a snowmobiling accident while vacationing at
the Mountain View Grand Resort & Spa, in Whitefield, New
Hampshire. Defendants move to dismiss one of plaintiffs’
negligence claims, asserting that it fails to state a viable
cause of action under New Hampshire common law. See Fed. R. Civ.
P. 12(b)(6). For the reasons discussed, that motion is granted.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable inferences in
favor of the pleader.” SEC v. Tambone, 597 F.3d 436, 441 (1st
Cir. 2010). Although the complaint need only contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R. Civ. P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face,” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation and internal
punctuation omitted).
Background
Accepting the factual allegations of the amended complaint
as true - as the court must at this juncture - the relevant
background is as follows. In January of 2013, plaintiffs were
vacationing in New Hampshire. Prior to their arrival, Jennifer
Lizzol went to the Mountain View Grand Internet website and
registered her family for a snowmobile lesson and tour. Those
lessons and the guided tour were provided by an independent
contractor used by Mountain View Grand: Out Back Kayak (“OBK”).
On the day in question, OBK employee Martin Welch served as the
Lizzols’ instructor and tour guide.
According to the amended complaint, Welch provided
plaintiffs - who had never driven snowmobiles before - with only
cursory instructions on the operation of the machines. The group
then set off on their tour. Jennifer Lizzol operated one
2 snowmobile, on which Michael was a passenger. T.G. operated
another. The group was told to follow Welch, as he headed out on
the trail. But, say plaintiffs, Welch drove too quickly for them
to safely follow and Jennifer (who was in the front of the tour
group) eventually lost sight of him. While trying to catch-up to
Welch, Jennifer lost control of her snowmobile, which left the
trail and flipped over. Jennifer, Michael, and the snowmobile on
which they had been riding rolled down an embarkment that was
approximately seventy-five feet high. As a result, Jennifer
suffered severe injuries, including injuries to her spine.
In their multiple-count amended complaint, plaintiffs
advance claims against Brothers Property Management Corporation
(operator of Mountain View Grand Resort & Spa), OBK, and Martin
Welch. Defendants move to dismiss one of those claims, asserting
that it fails to state a viable cause of action under New
Hampshire law.
Discussion
In Count II(c) of their amended complaint, plaintiffs seek
to impose vicarious liability on Mountain View Grand for the
alleged negligence of Martin Welch - the employee of independent
contractor OBK. The essence of plaintiffs’ claim is as follows:
3 Because Defendant Mountain View Grand contracted with Out Back Kayak to provide guided snow mobile tours, which is an inherently dangerous activity, Defendant Mountain View Grand is therefore vicariously liable for the negligence of the tour guide committed while engaged in performing work as such a guide.
Amended Complaint (document no. 9) at para. 56 (emphasis
supplied).
As plaintiffs acknowledge, New Hampshire law provides that,
“[r]espondeat superior, or vicarious liability, ordinarily does
not extend to torts by independent contractors because the
employer reserves no control or power of discretion over the
execution of the work.” Arthur v. Holy Rosary Credit Union, 139
N.H. 463, 465 (1995). Here, that common law doctrine would
preclude holding Mountain View Grand vicariously liable for the
negligence of OBK and/or its employee, Welch. But, say
plaintiffs, their claim against Mountain View Grand falls within
an exception to that general principle. That exception provides
that a party can be liable for its independent contractor’s
negligence if the independent contractor was, at the time,
engaged in an “inherently dangerous activity.” See Id. See also
Elliott v. Pub. Serv. Co. of N.H., 128 N.H. 676, 679 (1986)
(“[O]ne who undertakes an inherently dangerous activity has a
non-delegable duty to protect third parties against injury
resulting from that activity.”). And, say plaintiffs, providing
4 riding lessons and giving guided snowmobile tours is such an
inherently dangerous activity. Moreover, they point out that the
New Hampshire Supreme Court has repeatedly held that “whether an
activity is inherently dangerous is a question of fact to be
determined by the trier of fact.” Holy Rosary Credit Union, 139
N.H. at 466 (quoting Elliot, 128 N.H. at 682).
In response, defendants assert that, as a matter of law,
providing snowmobiling lessons and tours does not meet the
definition of an inherently dangerous activity. Consequently,
they say, it would be inappropriate to permit a jury to consider
that issue and plaintiffs’ vicarious liability claim against
Mountain View Grand necessarily fails. The court agrees.
The New Hampshire Supreme Court has made clear that not
every potentially dangerous activity is an “inherently dangerous”
one. Rather, to constitute an inherently dangerous activity, the
risk of accident or injury to a third party must arise “directly
from the [activity itself], and not from the negligent manner of
its performance.” Thomas v. Harrington, 72 N.H. 45, 46 (1903).
See also Carr v. Merrimack Farmers Exch., 101 N.H. 445, 449
(1958) (“[T]he technical meaning given to the phrase ‘inherently
dangerous’ as applied to undertakings conducted through
independent contractors often implies work that is dangerous even
5 when conducted with reasonable care; and that the exception
relating to such undertakings has been principally applied in
cases of demolition, excavation, and other clearly dangerous
activities particularly when conducted in proximity to public
highways.”).
More recently, the New Hampshire Supreme Court held that, in
order to be “inherently dangerous,” the activity:
must be dangerous in and of itself and not dangerous simply because of the negligent performance of the work, and that [] danger must be naturally apprehended by the parties when they contract. Only then will the work constitute an inherent danger that places a non- delegable duty upon the one ordering it to protect third parties against resulting injury.
Holy Rosary Credit Union, 139 N.H. at 466 (citing Thomas, 72 N.H.
at 46-47). So, for example, the court noted that while
construction projects are “typically fraught with a variety of
potential dangers that may arise if the work is not carefully
done,” they “do not, as a rule, fall within the inherently
dangerous category.” Holy Rosary Credit Union, 139 N.H. at 466.
So it is in this case. While training novices to safely
operate a snowmobile and/or taking them on guided tours may
involve an element of danger - particularly if done in a
negligent manner - there is nothing inherently ultra-hazardous or
6 even particularly dangerous associated with that activity.
Stated slightly differently, it is not an activity “that is
dangerous even when conducted with reasonable care.” Carr, 101
N.H. at 449. To the contrary, snowmobiling is a leisure activity
that can, if performed in a non-negligent manner, be done with
minimal risk of injury. It is an activity that is safely engaged
in by numerous people each year, often absent any formal training
and without the need to obtain any education, certification, or
licensing from the State. Indeed, as plaintiffs’ amended
complaint makes clear, the activity of snowmobiling itself was
not inherently dangerous; rather, it only became dangerous
because of the alleged negligence of their tour guide.
The court concludes that the conduct in which Mountain View
Grand’s independent contractor was engaged - conducting basic
operator training and providing guided snowmobile tours - was not
an inherently dangerous activity, as that phrase is understood in
New Hampshire’s common law. Snowmobiling cannot fairly be
compared to recognized inherently dangerous activities like
blasting, demolition, and excavation. Consequently, Count II(c)
of plaintiffs’ amended complaint, seeking to impose vicarious
liability on Mountain View Grand for the alleged negligence of
OBK and its employee, fails to state a viable claim. See
generally Holy Rosary Credit Union, 139 N.H. at 466 (“We find
7 that the trial judge properly ruled that because the inherent
danger doctrine is inapplicable as a matter of law where, as
here, the danger derived not from the nature of the work, but
from the negligence of the contractor, there was no issue for the
jury.”) (citation omitted).
Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ memorandum, defendants’ motion to dismiss Count II(c)
of plaintiffs’ amended complaint (document no. 12) is granted.
SO ORDERED.
___________________________ Steven J. McAuliffe United States District Judge
February 11, 2016
cc: Philip R. Waystack, Jr., Esq. Sandra L. Cabrera, Esq. Paul B. Kleinman, Esq.