Sweeney v. Ragged Mountain Ski Area, Inc.

855 A.2d 427, 151 N.H. 239, 2004 N.H. LEXIS 126
CourtSupreme Court of New Hampshire
DecidedJuly 15, 2004
DocketNo. 2003-719
StatusPublished
Cited by15 cases

This text of 855 A.2d 427 (Sweeney v. Ragged Mountain Ski Area, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sweeney v. Ragged Mountain Ski Area, Inc., 855 A.2d 427, 151 N.H. 239, 2004 N.H. LEXIS 126 (N.H. 2004).

Opinion

Galway, J.

The plaintiff, Alaina Sweeney, appeals an order of the Superior Court (Fitzgerald, J.) granting a motion to dismiss filed by the defendant, Ragged Mountain Ski Area, Inc. (Ragged Mountain). We reverse and remand.

The relevant facts follow. On March 21, 2001, the plaintiff went snow tubing at Ragged Mountain, which operates, among other things, snow tube runs. The snow tube area was designated only for snow tubing, and was not used for alpine or nordic skiing. When the plaintiff went snow tubing, no employees of Ragged Mountain were present to instruct her on the proper use of the snow tube. The plaintiff made a few “runs” down the snow tube trail. On her last run, she crossed the center line between snow tube lanes, continued down the adjacent lane, and ultimately collided with another snow tuber.

The plaintiff brought a negligence claim against Ragged Mountain for injuries sustained as a result of the collision. Ragged Mountain moved to dismiss, alleging that RSA 225-A:24, I (2000) barred recovery because it precludes claims brought by those injured in the “sport of skiing,” which, Ragged Mountain argued, includes snow tubing. The plaintiff argued that the statute does not apply to snow tubers. The court granted Ragged Mountain’s motion to dismiss.

On appeal, the plaintiff first argues that RSA 225-A:24,1, does not bar her claim because it does not apply to snow tubers. Because we agree, we need not address her other arguments.

The plaintiff contends that pursuant to RSA 225-A:24, I, ski area operators are granted immunity from liability only when claims are filed by those who participate in the “sport of skiing.” She argues that because snow tubing is not the “sport of skiing,” RSA 225-A:24, I, does not preclude her recovery. Ragged Mountain disagrees, arguing that the “sport of skiing” includes snow tubing.

“In reviewing the trial court’s grant of a motion to dismiss, our task is to ascertain whether the allegations pleaded in the plaintiffs writ are reasonably susceptible of a construction that would permit recovery.” Rayeski v. Gunstock Area, 146 N.H. 495, 496 (2001) (quotation omitted). “We assume all facts pleaded in the plaintiffs writ are true, and we construe all reasonable inferences drawn from those facts in the plaintiff’s favor.” Id. ‘We then engage in a threshold inquiry that tests the facts in the complaint against the applicable law.” Id. (quotation omitted). If the facts fail to constitute a basis for legal relief, we will uphold the granting of [241]*241the motion to dismiss. Cambridge Mut. Fire Ins. Co. v. Crete, 150 N.H. 673, 674-75 (2004).

The question before us is one of statutory interpretation — whether RSA 225-A:24, I, grants immunity to ski area operators against claims for injuries brought by snow tubers. We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. In the Matter of Jacobson & Tierney, 150 N.H. 513, 515 (2004). We first examine the language of the statute, and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. When the language of a statute is plain and unambiguous, we need not look beyond it for further indication of legislative intent. Id.

Furthermore, “statutes in derogation of the common law are to be interpreted strictly.” 3 N. Singer, Sutherland Statutory CONSTRUCTION § 61:6, at 255 (6th ed. rev. 2001). While a statute may abolish a common law right, “there is a presumption that the legislature has no such purpose.” Id. § 61.1, at 222. If such a right is to be taken away, “it must be noted clearly by the legislature.” Id. at 222-23. Accordingly, then, immunity provisions barring the common law right to recover are to be strictly construed. We have often stated that we will not interpret a statute to abrogate the common law unless the statute clearly expresses that intent. See State v. Hermsdorf, 135 N.H. 360, 363 (1992); see also Douglas v. Fulis, 138 N.H. 740, 742 (1994).

RSA 225-A:24, entitled, “Responsibilities of Skiers and Passengers,” states, in relevant part:

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:
I. 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;... 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.

[242]*242RSA 225-A:24,1 (emphasis added). As we have previously held, RSA 225-A:24, I, limits skiers’ recovery, thereby functioning as an immunity provision for ski area operators. See Nutbrown v. Mount Cranmore, 140 N.H. 675, 680-81 (1996). In enacting this provision, “the legislature intended to supersede 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). The question we must answer today is whether that statute also replaces the plaintiffs common law remedy. In answering this question, we need not precisely define the “sport of skiing,” nor list every activity encompassed within that phrase.

Because the phrase “sport of skiing,” is not specifically defined, we look to other provisions of the statutory scheme for guidance. A “skier” is defined as “a person utilizing the ski area under the control of a ski area operator for the purpose of utilizing the ski slopes, trails, jumps or other areas.” RSA 225~A:2, II (2000). “Ski slopes, trails and areas” are further defined as “only those areas designated by the alpine or nordic ski operator on trail boards or maps ... to be used by skiers for the purpose of participating in the sport of skiing.” RSA 225-A:2, IV (2000) (emphasis added). Thus, a “skier” is limited to one who “participates in the sport of skiing,” and, as such, the statutory references to “skiers” necessarily inform our interpretation of the “sport of skiing.”

We next look to the declaration of policy set forth at the beginning of the statutory scheme for guidance. See RSA 225-A:1 (2000). RSA 225-A:1 states, in part:

[I]t shall be the policy of the state of New Hampshire to define the primary areas of responsibility of skiers and other 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.

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Bluebook (online)
855 A.2d 427, 151 N.H. 239, 2004 N.H. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sweeney-v-ragged-mountain-ski-area-inc-nh-2004.