Siegel v. Meadow Green

• Court: District Court, D. New Hampshire
• Decided: November 22, 1999
• Docket: CV-99-086-M
• Status: Published

Opinion

Siegel v . Meadow Green CV-99-086-M 11/22/99 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Heather Siegel, Executrix of the Estate of Ted Siegel, et a l . , Plaintiffs

v. Civil N o . 99-86-M

Meadow Green - Wildcat Corp., d/b/a Wildcat Mountain Ski Area, Defendant

O R D E R

In February of this year, plaintiffs filed a two count complaint against Meadow Green - Wildcat, Corp., d/b/a Wildcat Mountain Ski Area (“Wildcat”), seeking damages for injuries t o , and the subsequent death o f , Ted Siegel. Count one of plaintiffs’ complaint alleges that Wildcat breached certain common law duties owed to the skiing public, proximately causing Mr. Siegel to lose control, ski off the trail, and collide with a tree. Count two alleges that M r . Siegel’s accident was also caused by Wildcat’s breach of certain statutory duties owed to the skiing public.

Pending before the court is Wildcat’s motion to dismiss for

failure to state a cause of action. See Fed. R. Civ. P.

12(b)(6). Wildcat alleges that, as a matter of law, neither

count in plaintiffs’ complaint sets forth a viable claim under

New Hampshire law. Plaintiffs object. Standard of Review

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of

limited inquiry, focusing not on “whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims.” Scheuer v . Rhodes, 416 U.S.

232, 236 (1974). In considering a motion to dismiss, “the

material facts alleged in the complaint are to be construed in

the light most favorable to the plaintiff and taken as admitted,

with dismissal to be ordered only if the plaintiff is not

entitled to relief under any set of facts he could prove.”

Chasan v . Village District of Eastman, 572 F.Supp. 5 7 8 , 579

(D.N.H. 1983), aff’d without opinion, 745 F.2d 43 (1st Cir. 1984)

(citations omitted).

Discussion

On February 2 3 , 1997, Ted Siegel was skiing at Wildcat with his son and daughter. Plaintiffs claim that Wildcat’s negligent maintenance of the trail and its failure to properly inspect and sign that trail proximately caused M r . Siegel to lose control and ski into the woods. M r . Siegel sustained severe injuries and died not long after the accident.

Although counts one and two of the complaint articulate

different theories of recovery (breach of common law duties and

breach of statutory duties), Wildcat’s alleged culpable conduct

is the same in each count. Compare complaint, para. 35 with

2 complaint, para. 4 8 . Both count one and count two allege that

Wildcat breached certain duties owed to plaintiffs’ decedent by

failing t o :

a. Properly mark the trail on which the decedent was injured;

b. Provide adequate and proper written operational policies and procedures for risk reduction, identification of dangerous conditions, trail assessment, maintenance of ski trails, and safe operation of the ski area;

c. Adequately and properly inspect the trails to identify dangerous conditions and to identify developing dangerous conditions;

d. Provide adequate and properly trained maintenance personnel to conduct inspections of trails and to identify present or developing dangerous conditions;

e. Provide adequate and proper training of personnel;

f. Provide adequate and proper management of the ski area;

g. Perform appropriate inspections and to identify and close unreasonably dangerous trails;

h. Mark unreasonably dangerous trails with appropriate signage indicating that said trails were closed;

i. Identify on a trail board that said unreasonably dangerous trails were closed;

j. Adequately advise skiers through the use of the trail board or other means at the base of the mountain as to the weather and surface conditions on the slopes above; and

k. Adequately warn skiers through the use of such trail board of unreasonably dangerous ice and snow conditions existing on the mountain.

Complaint at paras. 35 and 4 8 .

3 Wildcat asserts that both counts in plaintiffs’ complaint

are barred by N.H. Rev. Stat. Ann. (“RSA”) ch. 225-A, which

provides, in pertinent part, that:

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: Each 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; rocks, 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.

RSA 225-A:24 I (emphasis supplied).

I. Count I - Common Law Negligence. Wildcat asserts that count one of plaintiffs’ complaint is barred by the provisions of RSA 225-A. The court agrees. As the Court of Appeals for the First Circuit observed:

It is clear from the plain and unambiguous wording of [RSA 225-A:24] that the legislature intended to place the burden of certain risks or dangers on skiers, for actions arising as a result of dangers inherent in the sport of skiing, rather than on ski area operators. By the mere act of skiing, the skier accepts, as a matter of law, the risk that he or she might be injured in a manner that falls within the scope of the statute.

4 Thus, the statute clearly indicates that in enacting chapter 225-A, the legislature intended to supercede and replace a skier’s common law remedies for risks inherent in the sport of skiing.

Berniger v . Meadow Green-Wildcat Corp., 945 F.2d 4 , 7 (1st Cir.

1991). In a footnote, the court acknowledged that the statute

does not, however, prohibit a limited class of common law claims

against ski operators: those that relate to injuries resulting

from “negligent construction or maintenance of a tramway or any

building.” Id., at 7 n.3. Plainly, however, plaintiffs’ claims

relate t o , and arise out o f , M r . Siegel’s having skied off a

trail and into the woods - precisely the sort of inherent risk

associated with skiing assumed by skiers under the statute, and

with regard to which they may not maintain common law negligence

claims against ski area operators.

Plaintiffs attempt to circumvent the provisions of RSA 225-A

by asserting that M r . Siegel’s injuries and death were caused by

factors unrelated to the inherent risks associated with skiing as

identified in the statute. That argument i s , however,

unavailing. As pled, these claims arise from precisely the type of circumstances the legislature sought to preclude as bases for

ski operator liability – skiing off a trail into the woods due to

ice, conditions of the terrain, and/or an inability to safely

negotiate the slopes under the prevailing conditions.

5 Plaintiffs’ common law negligence claims against Wildcat

(count one) are barred by RSA 225-A. To the extent the complaint

sets forth any viable claims, they relate to Wildcat’s alleged

violations of statutory duties imposed by RSA 225-A, as described

in count two.

II. Count Two - Violations of RSA 225-A.

Count two of plaintiffs’ complaint alleges that Wildcat

violated numerous explicit and implicit statutory duties imposed

by RSA 225-A. Construing the complaint liberally, as the court

must at this stage of the litigation, count two arguably asserts

a viable claim for violation of certain statutory duties imposed

upon Wildcat by RSA 225-A.

Section 23 of RSA 225-A identifies the specific

responsibilities of ski area operators and imposes upon them the

following obligations:

1. To use a trail marking system established by the National Trail Marking System, which consists of a series of color coded signs indicating the relative degree of difficulty of each trail within the ski area;

2. To mark the beginning of each ski trail or slope with the appropriate symbol for that particular trail or slope’s degree of difficulty;

3. To mark with an appropriate sign the beginning of (and designated access points to) each trail that is closed;

4. To maintain a “trail board” in a prominent location, which depicts each trail or slope

6 within the area, discloses its relative degree of difficulty, and informs the skiing public which trails or slopes are closed; 5. When applicable, to warn skiers by use of the trail board or other appropriate means that snow grooming or snow making operations are routinely in progress on the slopes and trails;

6. To provide all skiers with a map indicating the system of trails and slopes at the ski area; and

7. At or near all ski jump facilities, to provide a sign that warns the ski jumper that the use of the ski jump is entirely at the ski jumper’s own risk. The ski area operator is responsible for the design, construction, and structural maintenance of all ski jumps.

RSA 225-A:23.

While many of the alleged “duties” identified by plaintiffs

are not imposed upon Wildcat by the statute, a few are. For

example, the complaint alleges that Wildcat failed to “properly

mark the trail on which Ted Siegel was injured.” Complaint,

para. 48(a). See also RSA 225-A:23 III(a). It also alleges that

Wildcat failed to “mark unreasonably dangerous trails with

appropriate signage indicating that said trails were closed.”

Complaint, para. 48(h). See also RSA 225-A:23 III(b). Finally,

plaintiffs claim that Wildcat failed to “identify on a trail

board that said unreasonably dangerous trails were closed.”

Complaint, para. 48(i). See also RSA 225-A:23 II(a). Plaintiffs

specifically allege that “it was the failure of the instant

Defendant to comply with the foregoing statutory duties which

7 resulted in Ted Siegel’s death.” Plaintiffs’ memorandum

(document n o . 7 ) at 7 .

Thus, liberally construed, paragraphs 48(a), ( h ) , and ( i ) of

plaintiffs’ complaint assert a cognizable claim against Wildcat

for its alleged breach of certain duties imposed by RSA 225-A.1

Of course, whether plaintiffs can demonstrate the causal link

between Mr. Siegel’s death and Wildcat’s alleged failure to

properly mark the trail on which he was skiing (or to post the

statutorily prescribed signs indicating that the trail was closed

if it was, in fact, closed) is not currently before the court.

At this juncture, the court need only determine whether, assuming

the truth of the factual allegations set forth in the complaint,

plaintiffs’ have stated a viable claim. And, for the reasons set

forth above, the court concludes that they have. See generally

Nutbrown v . Mount Cranmore, 140 N.H. 675, 683 (1996) (“RSA 225-

A:24 bars any action by a skier or tramway passenger to the

1 To the extent plaintiffs assert that Wildcat had a statutory duty to periodically inspect and assess the condition of its trails and “close unreasonably dangerous trails,” complaint, para. 48(h), they are incorrect. Whether and under what circumstances a trail should be closed (e.g., for repairs to snow making or lift equipment, construction of a jump, or merely to eliminate the wear caused by skiers and to allow for the accumulation of man-made snow) is left entirely to the operator. The statute simply imposes upon the operator an obligation to clearly mark trails that it has decided to close. It sets no standards for determining which trails should be closed, nor does it impose any obligation on operators to routinely assess the condition of trails. That some trails might be or become icy, or have surface irregularities, bare spots, rocks, stumps, trees, or other vegetation are all risks assumed by the skier. See RSA 225-A:24 I .

8 extent that the injuries were caused by an inherent risk of

skiing. The plaintiff’s allegation that the defendant violated

RSA 225-A:23 by failing ‘to properly mark’ the beginning of a

trail does not involve an inherent risk of skiing. Rather, it

asserts a statutory violation. Therefore, the portion of

plaintiff’s complaint alleging this violation is not barred by

RSA 225-A:24.”).

The remaining allegations in paragraph 48 of the complaint,

however, do not set forth cognizable claims against Wildcat.

See, e.g., MacDonald v . Loon Mountain Rec. Corp, N o . 98-571-B,

slip o p . (D.N.H. January 1 0 , 1999). In MacDonald, this court

(Barbadoro, C.J.) dismissed plaintiff’s claims, reasoning that

they were barred by RSA 225-A:24.

[Plaintiff] argues that her case is governed by an exception to the general rule [prohibiting suits for injuries arising out of the inherent dangers of skiing] because [her injuries were] caused by the defendant’s failure to properly mark the trail. A ski operator must mark the beginning of each trail with the appropriate difficulty designation. Under certain circumstances, it must also designate areas that are either extra hazardous or closed to skiers. However, New Hampshire law does not require the additional signage suggested by the plaintiff’s complaint. Accordingly, this case does not fall within any exception to the general rule prohibiting suits against a ski operator for injuries resulting from [the inherent risks associated with skiing].

Id., at 2 . Judge Barbadoro’s reasoning in MacDonald applies with

equal force in this case. The additional duties plaintiffs say

are owed by Wildcat to the skiing public are simply not imposed

9 by RSA 225-A, and suggestions of common law duties are

necessarily supplemented by the statute. In short, the statute

does not impose upon ski area operators the obligation to

undertake the sort of anticipatory or preventative safety

measures urged by plaintiffs. See Nutbrown, 140 N.H. at 684.

Skiing is an inherently risky activity and the risks are, by and

large, assumed by those who choose to participate. Accordingly,

paragraphs 48(b), ( c ) , ( d ) , ( e ) , ( f ) , ( g ) , ( j ) , and (k) of

plaintiffs’ complaint are dismissed.

Conclusion

The common law negligence claims described in count one of plaintiffs’ complaint are barred by RSA 225-A. As to count two, most of the “duties” plaintiffs assert Wildcat breached (e.g., obligation to provide adequate training to staff, to inspect the trail and identify potentially dangerous conditions, to warn skiers of weather and surface conditions on the slopes, etc.) are not based on the applicable statute. A portion of count two, however, sets forth a viable tort claim – that Wildcat breached statutorily imposed duties to the skiing public (i.e., paragraphs 48(a), ( h ) , and ( i ) ) .

Accordingly, defendant’s motion to dismiss (document n o . 4 )

is granted in part and denied in part. Count one of plaintiffs’

complaint is dismissed. Plaintiffs are, however, entitled to

present evidence in support of the claims alleged in paragraphs

10 48(a), ( h ) , and (i) of Count two. The remaining claims set forth

in count two are dismissed.

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 2 2 , 1999

cc: Shawn E . Nichols, Esq. Thomas B . S . Quarles, Jr., Esq.