Rayeski v. Gunstock Area/Gunstock Area Comm'n

• Court: New Hampshire Supreme Court
• Writing for the Court: NADEAU, J.
• Citation: Rayeski v. Gunstock Area/Gunstock Area Comm'n, 146 N.H. 495, 776 A.2d 1265 (N.H. 2001)
• Decision Date: 14 June 2001
• Docket Number: No. 99–305.,99–305.
• Parties: Jonathan RAYESKI v. GUNSTOCK AREA/GUNSTOCK AREA COMMISSION.

146 N.H. 495

776 A.2d 1265

Jonathan RAYESKI

v.GUNSTOCK AREA/GUNSTOCK AREA COMMISSION.

No. 99–305.

Supreme Court of New Hampshire.

June 14, 2001.

Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (Francis X. Quinn, Jr. and David C. Klingebiel on the brief, and Mr. Klingebiel orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Joseph M. McDonough, III and Margaret A. O'Brien on the brief, and Thomas Quarles orally), for the defendant.

NADEAU, J.

The plaintiff, Jonathan Rayeski, appeals the Superior Court's (Smukler , J.) order granting the defendant's, Gunstock Area/Gunstock Area Commission, motion to dismiss. We affirm.

The plaintiff's amended writ of summons alleged that at approximately 4:30 p.m. on or about January 8, 1997, while skiing at the Gunstock Recreation Area, he struck a light pole used for night skiing and was injured as a result of the defendant's failures to (1) maintain its trails properly and safely, specifically by failing to pad the light pole and (2) make the light pole visible under all foreseeable circumstances. The defendant moved to dismiss on the ground that the plaintiff's claims were barred by RSA 225–A:24 (2000). The trial court granted the motion, ruling that the plaintiff's injuries were caused by a risk inherent to skiing.

On appeal, the plaintiff argues that the trial court erred in: (1) holding that collision with a light pole is an inherent risk of skiing; (2) presuming that the plaintiff lost control before striking the light pole when that fact was not pleaded; and (3) ruling that the defendant did not owe the plaintiff a duty to pad the light pole. In reviewing the trial court's grant of a motion to dismiss, our task is to ascertain whether the allegations pleaded in the plaintiff's writ "are reasonably susceptible of a construction that would permit recovery." Williams v. O'Brien , 140 N.H. 595, 597, 669 A.2d 810 (1995) (quotation omitted). We assume all facts pleaded in the plaintiff's writ are true, and we construe all reasonable inferences drawn from those facts in the plaintiff's favor. See Provencal v. Vermont Mut. Ins. Co. , 132 N.H. 742, 745, 571 A.2d 276 (1990). We then engage in a "threshold inquiry that tests the facts in the complaint against the applicable law." Williams , 140 N.H. at 597–98, 669 A.2d 810.

The applicable law is RSA 225–A:24, I, which provides, in part:

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 [ski area] 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; lift towers and components thereof (all of the foregoing whether above or below snow surface); 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.

"On questions of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." In re Justin D. , 144 N.H. 450, 452, 743 A.2d 829 (1999) (quotation omitted). In interpreting a statute, we first look to the words used and apply their plain and ordinary meanings whenever possible. See Appeal of Astro Spectacular , 138 N.H. 298, 300, 639 A.2d 249 (1994).

Recognizing that RSA 225–A:24 essentially adopted the primary assumption of the risk doctrine, we have interpreted it to mean that ski area operators owe no duty to skiers to protect them from the inherent risks of skiing. See Nutbrown v. Mount Cranmore, Inc. , 140 N.H. 675, 680, 671 A.2d 548 (1996). The question before us, then, is whether the plaintiff's collision with the light pole was an inherent risk, danger or hazard of skiing within the contemplation of the statute.

The defendant argues that the light pole struck by the plaintiff was part of the "pole lines" specifically listed in RSA 225–A:24. The record before us, however, reveals no indication that this argument was raised before the trial court and the trial court's order makes no finding of fact or ruling of law on the issue. We therefore decline to address the argument and express no opinion as to its merit. See State v. Sterndale , 139 N.H. 445, 448, 656 A.2d 409 (1995). Rather, the issue before us is whether the trial court erred in finding that the light pole, even if not specifically enumerated in RSA 225–A:24, nevertheless constituted a risk encompassed by the statute.

The statute does not limit the risks assumed to those enumerated therein. See Nutbrown , 140 N.H. at 684, 671 A.2d 548. The plaintiff argues that his collision with the light pole differs from the risks enumerated in RSA 225–A:24 because the pole was unmarked and not visible to skiers under the lighting conditions at 4:30 p.m. He asserts that the risks enumerated in RSA 225–A:24 deal with "variations in terrain, natural objects, massive man made objects or plainly marked or visible small man made objects," and contends that a light pole is substantially similar to snow making equipment because both are "relatively small man made objects" located on or near a ski trail. He then argues that because the statute implies that collision with unmarked or invisible snow making equipment is not an inherent risk of skiing, neither is collision with an unmarked or invisible light pole. We disagree.

We discern no general intent in RSA 225–A:24 to classify potential obstacles on ski trails based upon their size or whether they are natural or man-made, or to require they be marked or their visibility enhanced accordingly. We note, for instance, that both natural snow and ice conditions and man-made components of lift towers are enumerated as inherent risks regardless of size or whether they are found above or below the snow surface. We conclude that the legislature's explicit reference to "plainly marked or visible snow making equipment" was intended to balance the immunity granted to ski area operators under RSA 225–A:24 with their duty under RSA 225–A:23, II(b) (2000) to warn skiers of snow making or grooming activities by denying immunity to ski area operators who breach a statutorily imposed safety responsibility. Cf . Nutbrown , 140 N.H. at 683, 671 A.2d 548.

RSA 225–A:23 does not, however, require ski area operators to pad, mark or otherwise ensure the visibility of light poles. We therefore conclude that light poles, like the lift towers and pole lines enumerated in RSA 225–A:24, need not be plainly marked or visible to constitute an inherent risk of skiing. We also conclude that a pole holding...