Estate of Antonio v. Pedersen, Case No. 5:11–cv–41.

CourtUnited States District Courts. 2nd Circuit. District of Vermont
Citation897 F.Supp.2d 210
Decision Date20 September 2012
Docket NumberCase No. 5:11–cv–41.
PartiesEstate of Brienna Rose ANTONIO, Plaintiff, v. Mark R. PEDERSEN, d/b/a High Country Tours, and Mount Snow, Ltd., Defendants/Third–Party Plaintiffs, v. Andrea Mitchell, Third–Party Defendant, Andrea Mitchell and Charles Mitchell, Counterclaimants, v. Mark R. Pedersen, d/b/a High Country Tours, and Mount Snow, Ltd., Counterclaim Defendants.


David Compagnone, The Moynahan Law Firm, LLC, Timothy C. Moynahan, Esq., Moynahan & Minnella, LLC, Waterbury, CT, Michael J. Harris, Collins, McMahon & Harris, P.L.L.C., Burlington, VT, for Plaintiff.

Richard J. Windish, Hayes & Windish, Woodstock, VT, for Defendants/Third–Party Plaintiffs/Counterclaim Defendants.

James W. Swift, Langrock Sperry & Wool, LLP, Middlebury, VT, for Counterclaimants.


(Docs. 46, 59)


Presently pending before the court are two dispositive motions arising out of a February 20, 2010 snowmobile accident at or near the Mount Snow ski resort in West Dover, Vermont which resulted in injuries to Andrea Mitchell and the death of her passenger, Brienna Rose Antonio.

Defendants Mark R. Pedersen, d/b/a High Country Tours (HCT) and Mount Snow, Ltd. (Mount Snow) move to dismiss the counterclaim filed by Andrea and Charles Mitchell (Doc. 46). They ask the court to conclude that a document entitled HCT Express Assumption of Risks and Forum Selection Agreement (the “HCT Release”) executed by Ms. Mitchell bars Ms. Mitchell's negligence claims and her husband's derivative loss of consortium claim. HCT and Mount Snow further request the court to find that they have no obligation to indemnify Ms. Mitchell in the event she is found liable to the Estate of Brienna Rose Antonio (the “Estate”) in a pending state court action. Finally, HCT and Mount Snow ask the court to dismiss the Mitchells' breach of warranty claims on the grounds that HCT and Mount Snow made no express warranties to the Mitchells, and Vermont recognizes no implied warranties in the circumstances of this case.

The Mitchells oppose the motion to dismiss. In turn, they have moved for partial summary judgment (Doc. 59), asking the court to conclude that the HCT Release does not bar their negligence claims, and if it does, that it is void because it is contrary to Vermont's public policy. HCT and Mount Snow oppose the motion for partial summary judgment.

The Estate, which is represented by Michael J. Harris, Esq., takes no position on the pending motions. HCT is represented by Richard J. Windish, Esq. Mount Snow is represented by Richard J. Windish, Esq. and Thomas P. Aicher, Esq. The Mitchells are represented by James W. Swift, Esq.

For the reasons set forth below, the court hereby GRANTS IN PART AND DENIES IN PART HCT and Mount Snow's motion to dismiss and GRANTS IN PART the Mitchells' motion for partial summary judgment, finding the remainder of the motion moot.

I. Factual and Procedural Background.

On February 2, 2011, the Estate filed a complaint against HCT and Mount Snow, alleging they negligently caused the death of Ms. Antonio, while she was riding as a passenger on a snowmobile operated by Ms. Mitchell and are jointly and severally liable for any damages Ms. Antonio and the Estate suffered. In a separate action filed in state court, the Estate seeks damages from Ms. Mitchell for the death of Ms. Antonio.

In their Counterclaim, the Mitchells allege that: (1) HCT negligently caused injuries to Ms. Mitchell; (2) HCT breached express and implied warranties to Ms. Mitchell, causing her injuries; (3) Mount Snow, as a joint venturer with HCT, is jointly and severally liable for HCT's negligence; (4) HCT and Mount Snow are obligated to indemnify Ms, Mitchell for any damages awarded against her in the Estate's state court action; and (5) both HCT and Mount Snow are liable to Mr. Mitchell for loss of consortium.

The pending motions present a common nucleus of facts which serve as the factual basis for both the motion to dismiss and the motion for partial summary judgment. These facts pertain to the HCT Release. The remaining facts are treated as allegations and are derived from the Mitchells' Counterclaim.

On October 31, 2009, Mr. Pedersen and Mount Snow entered into an agreement entitled “AGREEMENT High Country Snowmobile Tours” (the “Agreement”). Pursuant to the Agreement, HCT operated snowmobile tours, which originated from Mount Snow's ski resort. On February 20, 2010, Ms. Mitchell and Ms. Antonio participated in a HCT snowmobile tour at or near the Mount Snow resort. Ms. Mitchell alleges that she had no prior experience operating a snowmobile. Ms. Antonio, who was then fifteen years old, road on the back of Ms. Mitchell's snowmobile.

Ms. Mitchell weighed approximately 234 pounds, and Ms. Antonio weighed approximately 120 pounds. HCT owned and provided the snowmobiles and helmets used on the tour. The Mitchells allege that the snowmobile that HCT provided Ms. Mitchell and Ms. Antonio was not adequate for the aggregate weight of the passengers and that it was defectively maintained.

Prior to beginning the tour, Ms. Mitchell executed the HCT Release, which states:

I understand and accept that all forms of snowmobiling are hazardous with many inherent risks and resulting injuries or death. In consideration of being allowed to participate in the High Country Snowmobile Tours at the Mount Snow Ski Area I freely and expressly assume all risk of property damage, personal injury, or death which occurs on the Mount Snow Ski Area premises or other lands resulting from my participation in these snowmobile tours and the inherent risks of such activities as they are defined herein.

I agree that these inherent risks include but are not limited to ... surface and/or subsurface snow conditions as they may from time to time exist and may change or be affected by weather, or snowmobile usage; other conditions including ... stumps and trees, stream beds[,] other natural objects and/or collisions with such objects ... variations in steepness of terrain or variations in terrain.

Therefore, in consideration of being allowed to participate in these tours I agree that I will not make any claim nor bring any suit for any damages, injury or death to myself, which results from any such inherent risks, as agreed they are defined herein. I also agree, that in the event that anyone makes a claim against High Country [and/or] Mount Snow Ltd.... as a result of my activities surrounding these tours, that I will indemnify and hold harmless High Country and Mount Snow from such claims.

(Doc. 46–1 at 1.) The parties agree that by virtue of the HCT Release, Ms. Mitchell released any claims she may have against HCT and Mount Snow arising out of the inherent risks of snowmobiling. They disagree as to whether the HCT Release also bars her negligence claims.

The tour set out at night, “under the then-existing snow conditions.” (Doc. 43 at ¶ 17.) There was one guide, stationed at the front of the line of snowmobiles, who set the speed of and chose the location for the tour. Ms. Mitchell and Ms. Antonio rode the last snowmobile in the line. During the tour, Ms. Mitchell rounded an icy corner and the snowmobile she was operating slid off the trail and collided with a rock and a tree. As previously noted, Ms. Mitchell was injured, and Ms. Antonio died as a result of the collision. The Mitchells allege that Mr. Mitchell “has suffered a partial loss of the company, society, cooperation and affection of his wife.” (Doc. 43 at ¶ 40.)

II. Conclusions of Law and Analysis.

The court has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332(a)(1) and is thus required to apply Vermont law to the substantive issues. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Woodstock Resort Corp. v. Scottsdale Ins. Co., 927 F.Supp. 149, 153 (D.Vt.1996).

A. Standard of Review.

In deciding the pending motions, the court must apply divergent standards of review. Although in many cases, this may result in divergent outcomes, here, where both motions ask the court to construe a single release and determine whether it applies to the Mitchells' negligence claims, both standards of review yield the same outcome. With regard to the remaining grounds of Mount Snow's and HCT's motion to dismiss, the court will apply the standard of review for a Fed.R.Civ.P. 12(b)(6) motion to dismiss.

When assessing a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, the court takes the complaint's “factual allegations to be true and draw[s] all reasonable inferences in the plaintiff's favor.” Harris v. Mills, 572 F.3d 66, 71 (2d Cir.2009). The court need not credit “legal conclusions” in the complaint or [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 72 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal quotation marks and alteration omitted). In its analysis, the court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Allen v. WestPoint–Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). “Consideration of materials outside the complaint is not entirely foreclosed on a 12(b)(6) motion[,] Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006), however such materials must be ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document[,] and there must be “no material disputed issues of fact regarding the relevance of the document.” Id. (citation omitted).1

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