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Miller v. The Sunapee Difference, LLC

United States Court of Appeals, First Circuit

March 11, 2019

THOMAS JACKSON MILLER, Plaintiff, Appellant,
v.
THE SUNAPEE DIFFERENCE, LLC, d/b/a Mount Sunapee Resort, Defendant, Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph Laplante, U.S. District Judge]

          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 ...


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