Riley v. Brook
| Decision Date | 24 November 2015 |
| Docket Number | Case No. 2:15-cv-00150 |
| Court | U.S. District Court — District of Vermont |
| Parties | KATHLEEN RILEY, Plaintiff, v. JONATHAN BROOK, Defendant. |
(Docs. 6, 24)
Plaintiff Kathleen Riley brings this action against Defendant Jonathan Brook to recover for injuries she sustained as a result of Defendant allegedly colliding with her on a ski slope at Mt. Snow in Dover, Vermont. Pending before the court is Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), wherein Defendant argues that Plaintiff's claim is barred by the one-year statute of limitations set forth in 12 V.S.A. § 513. Also pending is Defendant's motion to strike Plaintiff's Sur-Reply on the basis that Plaintiff improperly raised new issues therein. Plaintiff opposes both motions. After oral argument on October 23, 2015, the court took these matters under advisement.
Plaintiff is represented by Sharon L. Annis, Esq. and Bettina V. Buehler, Esq. Defendant is represented by Harry R. Ryan, III, Esq. and Eric J. Morgan, Esq.
Plaintiff alleges that on December 31, 2012, she was skiing down a beginner's trail called "Long John" while Defendant was skiing uphill of her, in what Plaintiff describes as "a tucked position[.]" (Doc. 13 at 1, ¶¶ 5, 9.) She alleges that Defendant crashed into her "at such a speed and force that the impact thrust[ed] her approximately four feet away from the point of the initial impact." Id. at 1, ¶ 10. As a result of the collision, Plaintiff claims to have suffered "serious and grievous physical injuries[,] as well as mental anguish, past, present and future." Id. at 1, ¶ 11. She asserts damages for "loss of wages, and loss of enjoyment of life as well as hospital expenditures as a result of the collision, past, present and future." Id. at 2, ¶ 12.
In her two count complaint, Plaintiff asserts claims of negligence and gross negligence. She contends that Defendant failed to control his speed, look out for other skiers, warn Plaintiff of the impending collision, and take proper precautions to limit the risk of collision. She further claims that Defendant skied in a reckless manner and disregarded the safety hazards he imposed on other skiers.
On June 8, 2015, more than two years after the alleged collision, Plaintiff filed this action in the Vermont Superior Court, Windham Unit. Defendant removed this case to the District of Vermont pursuant to 28 U.S.C. §§ 1332, 1441, 1446. Plaintiff then moved to remand the case to state court for lack of subject matter jurisdiction, arguing that Defendant failed to establish that the amount in controversy exceeded $75,000, exclusive of interest and costs, as required by 28 U.S.C. § 1332(a). The court denied Plaintiff's motion, concluding that Defendant sustained his burden of proving by a "preponderance of the evidence . . . that the amount in controversy exceeds" the jurisdictional threshold. (Doc. 23 at 3.) In doing so, the court noted that Plaintiff did not stipulate to damages below the amount required by 28 U.S.C. § 1332(a).
Defendant's motion to dismiss was filed on July 1, 2015. In the course of opposing Defendant's motion to dismiss, Plaintiff moved for leave to file a sur-reply. She sought to discuss "how the Vermont Supreme Court would likely rule on the statute of limitations issue[.]" (Doc. 20 at 1.) She also sought to discuss "an unpublished, non-precedential Vermont Supreme Court case that [Defendant] urge[d] this court to rely on [in his reply]." Id. The court granted Plaintiff leave to file a sur-reply on this basis, and she thereafter filed her Sur-Reply.1 On September 2, 2015, Defendant moved to strike Plaintiff's Sur-Reply.
Defendant moves to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6), asserting that Plaintiff's claim is barred by the one-year statute of limitations in 12 V.S.A. § 513, which provides: "[a]n action to recover for injuries sustained while participating in the sport of skiing shall be commenced within one year after the cause of action accrues, and not after."
"Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint." Ellul v. Congregation of Christian Bros., 114 F.3d 791, 798 n.12 (2d Cir. 2014). "[D]ismissal is appropriate only if a complaint clearly shows the claim is out of time." Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999). "[T]he survival of a Rule 12(b)(6) motion to dismiss on statute of limitations grounds requires only allegations consistent with a claim that would not be time-barred." Id. at 251.
In deciding whether a statute of limitations renders a claim time-barred, "[the court] first look[s] at the statute's plain language." Dep't of Taxes v. Murphy, 2005 VT 84, ¶ 5, 178 Vt. 269, 271, 883 A.2d 779, 781. "In the absence of a plain meaning, [the court] must look to the statutory section as a whole, looking to the reason and spirit of the law and its consequences and effects to reach a fair and rational result." Weale v. Lund, 2006 VT 66, ¶ 6, 180 Vt. 551, 552, 904 A.2d 1191, 1194 (internal quotation marks omitted).
On its face, § 513 bars Plaintiff's claims because it applies to "injuries sustained while participating in the sport of skiing[.]" The Vermont Supreme Court's interpretation of § 513 underscores the conclusion that the statute applies to skier-upon-skier accidents that occur while the plaintiff is engaged in the sport of skiing. In the seminal case ofMarshall v. Town of Brattleboro, 160 A.2d 762 (Vt. 1960), the court held that "[t]he distinguishing aspect of the sport of skiing to which this statute applies pertains to the risk of injury incident to the skier's attempt to cope independently with conditions of snow and ice, terrain, weather and the activities of other skiers, while using the ski area." Id. at 765 (emphasis supplied). The Vermont Supreme Court also noted that "[t]he statute becomes purposeful when its application is restricted to activities on skis where the skier undertakes to exercise independent control of his course, direction, speed and skiing method in the skiing area furnished." Id. at 764-65.
In Lengel v. Equipe Sports, Ltd., 738 A.2d 116 (Vt. 1999),2 the Vermont Supreme Court again considered § 513, noting that "[t]here is little to quarrel with in the plain language of the statute." Id. at *1. The plaintiff in Lengel "argue[d] that the superior court erred in applying the one-year statute of limitations of 12 V.S.A. § 513 to injuries caused by allegedly defective equipment that [the plaintiff] rented from [the defendant]." Id. In doing so, the plaintiff pointed to the title of the act, "[a]n act concerning the liability of the operators of ski areas[,]" as indicative that § 513 applies only to ski area operators. Id. The Vermont Supreme Court disagreed and concluded that § 513 "is not directed at operator liability but at injuries sustained in the sport of skiing[,]" including in the Id. at *2 (emphasis supplied and internal quotation marks omitted).3
Similarly, in Ostheimer v. Stark, 2004 WL 5583276 (Vt. 2004), the Vermont Supreme Court applied § 513 to a skier-upon-skier claim, ruling that even though the plaintiff filed his complaint "three days before the expiration of the one-year statute of limitations [in § 513,]" he failed to serve the complaint on the defendant within the sixty-day period allowed for service, and thus his claim was time-barred. Id. at *1.
Plaintiff relies on an array of arguments in support of her contention that § 513 is ambiguous and the three-year statute of limitations set forth in 12 V.S.A. § 512 should apply. She contends that the phrase "the sport of skiing" is ambiguous because it may include a variety of activities, including cross-country skiing, snowboarding, and water skiing. Plaintiff admits, however, that she was engaged in downhill skiing at the time of the alleged collision. See Doc. 13 at 1, ¶ 6 (). The court therefore need not decide whether the other activities listed by Plaintiff are also subject to § 513. See Lengel, 738 A.2d at *1 ().
Plaintiff similarly argues that the phrase "participating in the sport of skiing" is ambiguous and should not apply to skier-upon-skier collisions because "[c]ontact in this context is not part of the sport itself[.]" (Doc. 18 at 5.) But in Lengel, the Vermont Supreme Court explained that actions arising from skier-upon-skier collisions are subject to § 513. 738 A.2d at *2 ( ). "[C]ourts [in other states] have also recognized that collisions between skiers are an inherent risk of skiing." Horvath v. Ish, 134 Ohio St. 3d 48, 53, 2012-Ohio-5333, ¶ 20, 979 N.E.2d 1246, 1251-52 ().
Because Plaintiff filed her claim against Defendant on June 8, 2015, more than one year after the alleged...
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