Adie v. Temple Mountain Ski Area, Inc.

• Decision Date: 29 February 1968
• Docket Number: No. 5664,5664
• Parties: Donna ADIE, by her father and Next Friend, Richard Adie v. TEMPLE MOUNTAIN SKI AREA, INC. Richard ADIE v. TEMPLE MOUNTAIN SKI AREA, INC.
• Court: New Hampshire Supreme Court

Page 738

238 A.2d 738

108 N.H. 480

Donna ADIE, by her father and Next Friend, Richard Adie v. TEMPLE MOUNTAIN SKI AREA, INC.

Richard ADIE v. TEMPLE MOUNTAIN SKI AREA, INC.

No. 5664.

Supreme Court of New Hampshire.

Argued Nov. 8, 1967.

Decided Feb. 29, 1968.

Edward P. McDuffee, Hollis, and Robert Kierce, Chelmsford, Mass., for plaintiffs.

Wyman, Bean & Tefft, Stanton E. Tefft, Manchester, for defendant.

GRIFFITH, Justice.

These are actions to recover damages for injuries alleged to have been sustained by the minor plaintiff while skiing at the defendant's ski area on December 30, 1965. The defendant's motion to dismiss the action prior to trial was transferred without ruling by the Trial Court (Keller, J.).

The plaintiff has alleged that Donna Adie rented skis and equipment and paid admission to the defendant's area. In addition it is alleged that she paid the defendant for skiing instructions and that the defendants were informed that that she had never been on skis before. It is claimed that the defendants through their agents and servants negligently left her unattended in the ski area without proper instructions in such a position that she was caused to fall, sustaining the injuries complained of.

Defendant's motion to dismiss relies upon RSA 225-A:26 (supp) which reads as follows: 'Limitations. I. Unless an operator is in violation of this chapter or the regulations of the board, which violation is causal of the injury complained of, no action shall lie against any operator by any skier or representative thereof; this prohibition shall not, however, prevent the maintenance of an action against an operator for negligent construction or maintenance of the passenger tramway itself or any building within the area. The venue of any action by a skier against an operator shall be the county wherein the passenger tramway base station is located and not otherwise. Each operator shall maintain liability insurance with limits of not less than ten thousand dollars for each injury.

'II. No action shall be maintained against any operator for injuries to any skier unless the same is commenced within one year of the time of injury provided, however, that as a condition precedent thereof the operator shall be notified by registered or certified mail within sixty days of said injury as to the alleged violation of this chapter. The condition precedent shall not apply to any such action which shall have accrued prior to September 30, 1965.'

The motion relies upon the claim that neither the sixty days notice provision was complied with, nor was the action begun within one year. Finally the motion alleges that the accident is barred absolutely by the statute.

We consider only the issue of whether the accident as alleged falls within the statute since if it does it is barred and if it does not the limitations of actions in the statute are inapplicable.

The statute in its declaration of policy sets forth in some detail that the State of New Hampshire intends to protect its citizens and visitors from unnecessary mechanical hazards from the operation of ski tows, lifts and tramways and that while the primary responsibility for design, construction and maintenance shall rest with the operator, the State through a Passenger Safety Board will establish standards and make such independent inspections as are required to carry out this policy. RSA 225-A:1.

The statute as originally enacted in Laws 1957, ch. 254 and as amended by Laws 1959, ch. 299 contained no reference to actions which might be brought against an operator by a skier and related solely to the inspection and regulation of mechanical lift devices in ski areas. It provided for a Passenger Tramway Safety Board, authorized the Board to adopt regulations for the operation of mechanical lifts and to inspect, register and prevent the operation of unsafe devices.

Laws 1965, ch. 241 substantially amended the previous statute by adding the sections on which the defendant relies. RSA 225-A:2, 225-A:24, 225-A:25, 225-A:26 (supp). These additions to the statute define skiers, set forth the duties of operators to classify and mark trails and slopes, set forth duties of skiers, and contain the limitation and bar of actions set forth above. While regulations as authorized by the original statute cover in some detail the requirements of operators relating to the maintenance and operation of mechanical lifts no regulations have been adopted relating to the amendments of 1965. We are concerned then with the question of whether the statute bars an action for negligent instruction against an operator who has undertaken to instruct skiers.

Defendant relies upon the language of the statute which defines skier as: 'A person utilizing the ski area under control of the operator for the purpose of skiing whether or not he is utilizing a passenger tramway. (b) A person utilizing the passenger...