FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph Laplante, U.S. District Judge]
Charles Perrone, with whom Cullenberg & Tensen PLLC was
on brief, for appellant.
Quarles, Jr., with whom Jonathan M. Shirley and Devine,
Millimet & Branch, P.A. were on brief, for appellee.
Barron and Selya, Circuit Judges, and Katzmann, Judge.
BARRON, CIRCUIT JUDGE.
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
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.
front of the lift ticket displayed the following text in
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
MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.
RECKLESS SKIING WILL RESULT IN LOSS OF
NON-TRANSFERRABLE: Use by a non-purchaser constitutes theft
NON-REFUNDABLE. LOST TICKETS WILL NOT BE REPLACED.
(emphasis in original).
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.
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.
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
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 ...