Miller v. Sunapee Difference, LLC

• Decision Date: 11 March 2019
• Docket Number: No. 18-1409,18-1409
• Citation: 918 F.3d 172
• Parties: Thomas Jackson MILLER, Plaintiff, Appellant, v. The SUNAPEE DIFFERENCE, LLC, d/b/a Mount Sunapee Resort, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

918 F.3d 172

Thomas Jackson MILLER, Plaintiff, Appellant,

v.The SUNAPEE DIFFERENCE, LLC, d/b/a Mount Sunapee Resort, Defendant, Appellee.

No. 18-1409

United States Court of Appeals, First Circuit.

March 11, 2019

Daniel Charles Perrone, with whom Cullenberg & Tensen PLLC was on brief, for appellant.

Thomas Quarles, Jr., with whom Jonathan M. Shirley and Devine, Millimet & Branch, P.A. were on brief, for appellee.

Before Barron and Selya, Circuit Judges, and Katzmann, Judge.^*

BARRON, Circuit Judge.

Thomas Jackson Miller collided with unmarked snowmaking equipment while skiing at the Mount Sunapee Resort in 2015 in Sunapee, New Hampshire. Soon thereafter, he brought a tort suit under New Hampshire law against the resort's owner, The Sunapee Difference, LLC ("Mount Sunapee"), in the District of New Hampshire. Mount Sunapee moved for a judgment on the pleadings under Federal Rule of Civil Procedure 12(c), and the District Court granted the motion after treating it, under Federal Rule of Civil Procedure 12(d), as a motion for summary judgment. Miller now appeals that judgment, which we affirm.

I.

Miller visited the Mount Sunapee Resort in 2015 following a large snowfall. Before taking to the slopes, he purchased a lift ticket. The dispute on appeal concerns the import of what was printed on that ticket.

The front of the lift ticket displayed the following text in 4.3-point font:

LIABILITY RELEASE

Skiing, snowboarding, and other winter sports are inherently dangerous and risky with many hazards that can cause injury or death. As purchaser or user of this ticket, I agree, as a condition of being allowed to use the facilities of the Mount Sunapee resort, to freely accept and voluntarily assume all risks of property damage, personal injury, or death resulting from their inherent or any other risks or dangers. I RELEASE MOUNT SUNAPEE RESORT , its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCE which may result from conditions on or about the premises, operation of the ski area or its facilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause. Further I agree that any claim which I bring against Mount Sunapee Resort, its officers, directors, employees or agents shall be brought only in Federal or State courts in the State of New Hampshire. I agree my likeness may be used for promotional purposes.

MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.

RECKLESS SKIING WILL RESULT IN LOSS OF TICKET

NON-TRANSFERRABLE: Use by a non-purchaser constitutes theft of services.

NON-REFUNDABLE. LOST TICKETS WILL NOT BE REPLACED.

(emphasis in original).

The front of the lift ticket also contained some additional text. At the bottom of the front of the ticket, the words "Mount Sunapee" were displayed in large font but upside down. A large white space appeared in between the upside down words "Mount Sunapee" and the release language set forth above, in which details about the individual ticket, such as the date and the ticket type, could be printed when each lift ticket is sold.

The lift ticket itself is essentially a large sticker with a peel-off backing. The peel-off backing of the ticket, like the peel-off backing of a sticker, is a piece of paper that keeps the ticket from adhering to anything until it is ready to be used.

Once the peel-off backing is removed, the adhesive is exposed. The skier thus may fold the ticket in half so that the adhesive side of the ticket sticks to itself around a metal tag that affixes to a zipper or other visible part of the skier's clothing.

To attach the ticket to the skier's clothing in this manner, however, the skier must first peel the backing off of the lift ticket. On the face of that peel-off backing, the following text appears in red font that is larger than the text on the front of the ticket itself:

STOP [a red octagon image similar to a traffic-control "stop sign"]

YOU ARE RELEASING THIS SKI AREA FROM LIABILITY

By removing this peel-off backing and using this ticket, you agree to be legally bound by the LIABILITY RELEASE printed on the other side of this ticket. If you are not willing to be bound by this LIABILITY RELEASE, please return this ticket with the peel-off backing intact to the ticket counter for a full refund.

While skiing at the Mount Sunapee resort after purchasing such a lift ticket and affixing it to his clothing in the manner just described, Miller struck an unmarked "snow gun holder" that was concealed by snow. The "holder" is a mounting post for snowmaking guns and is "essentially a steel pipe protruding from the ground." No snowmaking gun was in the holder at the time of the accident.

Miller suffered serious leg injuries in the collision. In 2016, he brought a single negligence claim against Mount Sunapee under New Hampshire law in the District of New Hampshire, invoking diversity jurisdiction under 28 U.S.C. § 1332(a), to recover for the injuries that resulted from his collision with the unmarked and unpadded piece of snowmaking equipment. Miller's complaint alleged that Mount Sunapee was liable for his injuries because, among other things, it "failed to mark or warn skiers of the pipe, or otherwise mitigate its danger to skiers, by, for example, padding it or making it visible to skiers."

Mount Sunapee moved for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). Mount Sunapee argued in its motion that the liability release printed on Miller's lift ticket barred Miller's claim. Shortly thereafter, Miller amended his complaint to include four new factual allegations. In opposing Mount Sunapee's Rule 12(c) motion, Miller argued, among other things, that these new factual allegations sufficed to plead that Mount Sunapee had been not only negligent but also reckless with respect to the presence of the covered snowmaker with which Miller collided and that, for this reason, too, the release was not a bar to at least his claim that Mount Sunapee had been reckless.

Both parties submitted documents beyond the pleadings to support their arguments. Accordingly, the District Court converted the motion into one for summary judgment under Federal Rule of Civil Procedure 12(d). The District Court then ruled for Mount Sunapee on the basis of the release. Miller now appeals.

II.

"Although New Hampshire law generally prohibits a plaintiff from releasing a defendant from liability for negligent conduct, in limited circumstances a plaintiff can expressly consent by contract to assume the risk of injury caused by a defendant's negligence." Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281 (2002). For such a contract to be enforceable, the party seeking to enforce it must show that (1) it does "not violate public policy;" (2) "the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement;" and (3) "the plaintiff's claims were within the contemplation of the parties when they executed the contract." Dean v. MacDonald, 147 N.H. 263, 786 A.2d 834, 838 (2001).

The District Court properly characterized the defendant's motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(c) as one under Federal Rule of Civil Procedure Rule 12(d), because "matters outside the pleadings [were] presented to ... the court." Fed. R. Civ. P. 12(d). Under that rule, a district court must treat the motion as "one for summary judgment under [Federal] Rule [of Civil Procedure] 56." Id.

We review the denial of such a motion de novo. McConkie v. Nichols, 446 F.3d 258, 260 (1st Cir. 2006). In undertaking that review, we must "constru[e] the record in the light most favorable to the non-moving 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). If the record reveals "no genuine dispute as to any material fact," the moving party -- here, Mount Sunapee -- "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

A.

Miller contends that the District Court erred in granting summary judgment based on the release because the question of whether there was a "meeting of the minds" with respect to the release was one of fact that had to be left to the jury to resolve. But, we do not agree.

The District Court correctly rejected Miller's contention that the mere fact that he did not sign the release precluded the grant of summary judgment against him. As the District Court noted, the New Hampshire Supreme Court has held that an unsigned insurance contract can be enforceable even though it has not been signed. Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 552 A.2d 99, 102 (1988) (citing Barnes v. New Hampshire KartingAss'n, 128 N.H. 102, 509 A.2d 151, 154 (1986) ). Moreover, lower courts in New Hampshire have found that liability releases on lift tickets -- even though unsigned -- may be binding. Camire v. Gunstock Area Comm'n, No. 11-C-337, 2013 LEXIS 30, at *8 (N.H. Super. Ct. Mar. 22, 2013) aff'd on other grounds, 166 N.H. 374, 97 A.3d 250 (2014) ; Reynolds v. Cranmore Mountain Resort, No. 00-C-0035, at *7-8 (N.H. Super. Ct. Mar. 20, 2001).

Similarly, the District Court correctly rejected Miller's contention that the fact that the record supportably showed that he did not read the release precluded the grant of summary judgment. As the District Court explained, New Hampshire law does not require that the plaintiff "actually read the release, when the release clearly and unambiguously stated the condition, and when [the plaintiff] had the opportunity" to do so. Gannett, 552 A.2d at 102 (emphasis added).

To be sure, Miller did contend below -- as he now argues on appeal -- that the record supportably shows that he did not have the opportunity to read the release. But,...