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New Hampshire Court Enforces Unsigned Ski Waiver

by Doyice Cotten

The enforceability of waivers on the back of tickets has been addressed on Sportwaiver.com on several occasions. We know that, in general, waivers that are signed are safer and more likely to be enforced; however, it seems that ski lift ticket waivers are enforced in a number of states. We have found that the answer to the question depends upon the state in which the incident occurs. Most recently, we examined the issue in Colorado. Today, we look at New Hampshire law in a case, Miller v. The Sunapee Difference (2019).

Thomas Miller collided with unmarked snowmaking equipment while skiing at the Mount Sunapee Resort and brought a tort suit under New Hampshire law against the resort’s owner, The Sunapee Difference, LLC (“Mount Sunapee”). Mount Sunapee moved for a judgment on the pleadings and the District Court granted the motion after treating it as a motion for summary judgment.

Circumstances

Miller purchased a lift 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

At the heart of Miller’s claim was that the waiver was not conspicuous. In addition to the waiver language,  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 way the lift ticket works was described as:

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.

The Incident & Claim

Later, while skiing at the Mount Sunapee resort 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.”

Some Aspects of New Hampshire Law

  1. 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.”
  2. 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.”

The District Court granted the resort’s motion for judgment.

The Appeal

On appeal, Miller contended 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, the appellate court did not agree, indicating the the mere fact that he did not sign the release was not sufficient to preclude the waiver.  The court noted that the New Hampshire Supreme Court has held that an unsigned insurance contract can be enforceable even though it has not been signed. It added that lower courts in New Hampshire have found that liability releases on lift tickets — even though unsigned — may be binding.

There were other issues, but the heart of the ruling was that unsigned waivers in New Hampshire may be enforceable.

 

Photo Credit: Thanks to Barney Moss via Flickr.

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