Lizzol v. Bros. Prop. Mgmt. Corp.
| Decision Date | 31 October 2016 |
| Docket Number | Case No. 15-cv-100-SM |
| Citation | 2016 DNH 199 |
| Parties | Jennifer Lizzol, Michael Lizzol, and T.G., Plaintiffs v. Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants |
| Court | U.S. District Court — District of New Hampshire |
Jennifer Lizzol, her husband Michael, and their son, T.G., filed suit to recover damages for injuries sustained as a result of a snow machine accident that occurred during a winter vacation at the Mountain View Grand Resort & Spa, in Whitefield, New Hampshire ("Mountain View Grand"). Defendants move for summary judgment based upon a liability release and covenant not to sue executed by Jennifer and Michael before the accident. Defendants also move for summary judgment on Michael Lizzol's and T.G's bystander liability claim. For the reasons discussed, defendants' motion is granted.
When ruling on a motion for summary judgment, the court must "constru[e] the record in the light most favorable to the nonmoving party and resolv[e] all reasonable inferences in that party's favor." Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In this context, "a fact is 'material' if it potentially affects the outcome of the suit and a dispute over it is 'genuine' if the parties' positions on the issue are supported by conflicting evidence." Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). See also Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). Nevertheless, if the non-moving party's "evidence is merely colorable, or is not significantly probative," no genuine dispute as to a material fact has been proved, and "summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).
Construing the record in the light most favorable to plaintiffs, and resolving all reasonable inferences in their favor, the controlling facts appear to be as follows.
The Lizzols travelled to the Mountain View Grand from Long Island, New York, on January 27, 2013, arriving in theafternoon. Prior to their arrival, Jennifer had scheduled a snowmobile lesson and tour for herself, her husband, and her son, as well as for a few of their friends, through the Mountain View Grand's website. Defs.' Mot. for Summary Judgment, Exh. C at p. 2. The lessons and guided tour were provided by Out Back Kayak, Inc. ("OBK"). Upon arrival at the resort, the Lizzols quickly put their luggage in their rooms, and then left to participate in the snowmobile activity, including a lesson and tour. Id.
The Lizzols were directed by the hotel activities desk to a small building on the grounds, where they met a Mountain View Grand employee, who told them to quickly pick out helmets and sign a two-page document that bore the following heading:
Snow Machine Tour
(the "Release"). The Lizzols felt rushed during the process, see, e.g., Defs.' Mot. for Summary Judgment, Exh. C. at p. 3, but both Jennifer and Michael had an opportunity to review the Release, and each signed and initialed it. (Jennifer executed the release on behalf of her minor son, T.G.). The Release includes the following language:
I . . . hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, property damage, wrongful death or injury, loss of services or otherwise which may arise out of my use of eques[trian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions presently or in the future for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.
Defs.' Mot. for Summary Judgment, Exh. A, p. 1. The Release includes five lettered paragraphs that provide tour participants with a designated space in which to place his or her initials, thereby confirming that he or she understands and acknowledges the following:
Id. Jennifer did not initial Paragraph B or Paragraph D, and Michael did not initial Paragraph B.
After signing the Release and obtaining their helmets, the Lizzols met their tour instructor, OBK employee Martin Welch, and his assistant, Jennifer Welch. The Lizzols had no snow machine experience. Welch provided a very brief introduction to and instruction regarding operation of the snow machines. He explained how to accelerate, brake, and turn. He told them that the tour would never travel faster than 20 miles per hour. Welch then assisted the tour members with their snowmobile selections, and the tour began.
Jennifer and Michael rode on a two-person snow machine, with Jennifer operating the vehicle. They were directly behind Welch in the line of snowmobiles. Their son, T.G., rode by himself and was farther back in the line. Welch drove rather quickly during the tour, and far exceeded the self-imposed 20 miles per hour speed limitation he had announced earlier. Jennifer did not keep pace, and, as Welch increased his speedduring the second half of the tour, Jennifer lost sight of him. Jennifer attempted to follow Welch's tracks in the snow, but, in doing so, lost control of the snowmobile, which left the path and flipped over. Jennifer, Michael, and the snow machine fell down a steep embankment that was approximately seventy-five feet high.
Both Jennifer and Michael suffered physical injuries, but Jennifer's were particularly severe. She lost consciousness, had collapsed lungs, 10 broken ribs, and multiple injuries to her spine and back.
The plaintiffs later learned that other customers may have complained that Welch drove too quickly during earlier snow machine tours. After the accident, Mountain View Grand manager, Chris Diego, asked Michael if Welch had been "going too fast again." Pls.' Opp. to Summary Judgment, Exh. 4, p. 6.
Jennifer, Michael, and their son brought suit against Brothers Property Management Corporation (which owns and operates the Mountain View Grand), OBK, and Martin Welch, asserting claims for negligence, including negligent training and supervision, vicarious liability, bystander liability, and loss of consortium. The defendants move for summary judgment,arguing that the contractual Release is both valid and enforceable.
Defendants argue that the scope of the Release plainly encompasses the claims at issue here because the complaint alleges that, as a result of the defendants' negligence, they were injured while participating in the snow machine lesson and tour activity. Plaintiffs disagree.
New Hampshire law generally prohibits exculpatory contracts. McGrath v. SNH Development, Inc., 158 N.H. 540, 542 (2009). But, there are exceptions. Exculpatory contracts are enforceable if: "(1) they do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff's] position would have understood the import of the agreement; and (3) the plaintiff's claims fall within the contemplation of the parties when they executed the contract." Id. at 542 (quoting Dean v. MacDonald, 147 N.H. 263, 266-67 (2008)).
Plaintiffs argue that the Release is not enforceable because they did not understand it to encompass claims for negligent instruction, or negligent guidance on the snow machinetour, and a reasonable person in their position would not understand the Release to bar such claims. They say that the content, structure, and organization of the Release - which plaintiffs contend is verbose, employs obfuscating language, and uses confusing sentence structure - disguised any intent to relieve the defendants of liability for their own negligence related to instruction or guidance along the trail. They point out that the words "instruction," "lesson" and "guide" are terms that do not appear in the Release. Rather, the Release focuses on terms like "services," "use of equipment," and "participation in activities." Altogether, they say, the impression is given that the Release applies only to injuries inherent to snow machine activity and the use of snow machine equipment, but not to harm resulting from an instructor's or guide's failure to act with reasonable care.
The parties' differing subjective understandings of the Release's intent is of limited relevance to the controlling analysis, however, since courts must "judge...
To continue reading
Request your trial