United States Court of Appeals
For the First Circuit
No. 03-1047
EILEEN GWYN, ON HER OWN BEHALF, AND AS EXECUTRIX
OF THE ESTATE OF HOWARD GWYN, and MARGARET DO,
Plaintiffs, Appellants,
v.
LOON MOUNTAIN CORPORATION,
d/b/a LOON MOUNTAIN SKI AREA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Boudin, Chief Judge,
Siler,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Kevin M. Leach with whom Nixon, Raiche, Manning, Casinghino &
Leach, P.C. was on brief for appellants.
Thomas Quarles, Jr. with whom Margaret O'Brien, Matthew R.
Johnson and Devine, Millimet & Branch, P.A. were on brief for
appellee.
November 25, 2003
*
Of the Sixth Circuit, sitting by designation.
BOUDIN, Chief Judge. In this tragic case, two
individuals were killed and a third badly injured in a skiing
accident in New Hampshire. The details are set forth in two very
able opinions by the district court. Thus, we confine ourselves to
an abbreviated description focused on the two primary issues raised
on this appeal: one is an important question of statutory
construction and the other a narrower issue turning upon the
pleadings.
Howard and Eileen Gwyn, their daughter Margaret Do, and
Margaret's fiancé Mark Goss went on a ski vacation in Lincoln, New
Hampshire. On January 25, 1999, they spent the morning together
skiing down easy trails at Loon Mountain Ski Area ("Loon").
Shortly before lunch, Howard, Margaret, and Mark--all very
experienced skiers--left Eileen and rode the chairlift up to the
Summit Lodge to ski down some more difficult trails. Unbeknownst
to them, Loon had closed one of the trails (named "Triple Trouble")
the night before because of icy conditions, a closure noted on the
trail board at the bottom of the mountain.
From the summit, it was possible to ski directly down a
trail named Big Dipper from which, part way down, Triple Trouble
branched off to the skier's right. Or, from the summit, one could
head right on a trail called Haulback, then take a left fork onto
Cant Dog, and enter Big Dipper just above the point where Triple
Trouble branched off to the right. At this branching off point
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from Big Dipper to Triple Trouble, Loon had posted a sign warning
that Triple Trouble was closed. It had also placed a rope across
the entrance to Triple Trouble.
From the summit, Howard led the group to the right down
Haulback and then took a left turn onto Cant Dog. At the
intersection of Cant Dog and Big Dipper--right above the closed
Triple Trouble trail--Howard slipped on ice, slid under the rope
blocking off Triple Trouble, and tumbled nine hundred feet down the
icy slope. He suffered severe injuries resulting in his death a
few days later. Margaret Do and Mark Goss saw Howard Gwyn fall,
removed their skis, and attempted to walk down the closed trail to
rescue him. Both fell, sliding hundreds of feet down Triple
Trouble trail. Goss died. Margaret Do suffered severe injuries
and frostbite but was rescued several hours later.
In this diversity suit, Margaret Do and Eileen Gwyn (as
executrix of Howard Gwyn's estate and on her own behalf) sued Loon
for breach of multiple common law and statutory duties. The
district court granted Loon's motion to dismiss the majority of
claims under New Hampshire's "Skiers, Ski Area, and Passenger
Tramway Safety Act," N.H. Rev. Stat. Ann § 225-A (2002) ("ski
statute"). Two claims survived the motion to dismiss, but after
discovery the district court granted summary judgment to Loon on
both counts. Plaintiffs appealed, focusing attention on one
statutory claim and one claim of common law negligence.
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At the crux of this appeal is New Hampshire's ski
statute, N.H. Rev. Stat. Ann § 225-A. In this statute several
duties are placed on ski operators--maintaining trail boards,
marking the difficulty of various slopes, making trail maps
available to all skiers--and operators can be sued for violations
of these statutory duties. § 225-A:23; Nutbrown v. Mt. Cranmore,
Inc., 671 A.2d 548, 553 (N.H. 1996). At the same time, the statute
places the risk of injury from dangers inherent in the sport of
skiing on the skiers themselves, and bars all actions against ski
operators for injuries caused by these dangers.1 § 225-A:24;
Nutbrown, 671 A.2d at 553. New Hampshire case law is slowly
filling in the gaps but uncertainties remain.
Here, most of the counts and theories pressed by
plaintiffs at the start are no longer in issue, but two major
claims remain open on this appeal. The first is that Loon did not
comply with a statutory duty relating to marking closed trails.
Under the ski statute, operators are not required to close a trail
because of hazardous conditions, but if they do close a trail they
must mark "the beginning of, and designated access points to" the
1
The statute provides that "[e]ach 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 operator for any injuries which result from such
inherent risks, dangers, or hazards." § 225-A:24; see also
Nutbrown, 671 A.2d at 553 ("By participating in the sport of
skiing, a skier assumes this inherent risk and may not recover
against a ski area operator for resulting injuries.").
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closed trail with a sign, § 225-A:23 (III)(b), and note the closure
on a permanent trail board at the base of the mountain, § 225-A:23
(II)(a). Here, it is undisputed that Loon properly noted the
closure on the trail board and properly marked "the beginning" of
Triple Trouble at the point that it branched off Big Dipper.
Nevertheless, the plaintiffs say that a closed sign for
Triple Trouble was also required by the statute at the uphill
juncture where Cant Dog forked off Haulback--a point where a sign
pointed the way to Big Dipper and Triple Trouble. This, they say,
was itself an "access point" to Triple Trouble. Their causation
theory is less clear: the implication is that such an early warning
of a closed trail further downhill might have made Howard Gwyn
decide to lead the group straight down Haulback instead of taking
Cant Dog so they could avoid the entire region around the closed
trail.
The district court ruled as a matter of law that "access
points" as used in the New Hampshire statute referred to points of
direct entry onto a trail, and did not include points above the
start of the closed trail. Thus, the start of Cant Dog might
conceivably be treated as an access point to Big Dipper since the
former merged into the latter; once on Cant Dog, entry onto Big
Dipper was inevitable. By contrast, nothing compelled one who took
the fork to Big Dipper necessarily to take the fork from Big Dipper
onto Triple Trouble.
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We agree readily with the district court's reading of the
statute. True, as a matter of dictionary definition a remote fork
to an intermediate trail that can lead eventually to the closed
trail could be described as a way to "access" the later trail; but
on this theory the summit itself would be an access point to every
connected trail on the mountain below. Indeed, on plaintiffs'
reading, warning signs might have to be posted at a variety of
different points wherever existing trail signs indicated that the
closed trail could be reached somewhere downhill. Conceivably,
plaintiffs' position could also require ski operators to construct
such directional signs even if they did not already exist in order
to mark every downhill closure.
It would not be literally impossible to comply with such
requirements--apparently some ski slopes do so mark their closed
trails, at least where existing signs mention the trails--but it
could involve fairly complex compliance measures. In fact, the
Loon trail map indicates that from some trails one could reach
nearly 30 different trails below--some of them through open
intermediate trails branching off into other open forks. The
simplicity of the statute's requirements argue against an
interpretation requiring ski operators to mark every one of those
possibilities, and this interpretation is unnecessary to carry out
what we perceive to be the rationale of the warning requirement.
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In our view, the statute aims to give the skier warning
of a trail closure at any point where the skier might otherwise
commit himself to traverse the closed trail. This is a complete
scheme of protection giving the skier both a comprehensive overview
of all closures on the base trailboard, and specific notice of each
closure at any point on the mountain where the skier has a last
chance to avoid the closed trail.
This reading may leave some open issues, but it
forecloses plaintiffs' central claim in this case. Here, the
plaintiffs argue that a sign should have been placed at the
Haulback-Cant Dog junction, since Cant Dog led onto Big Dipper
which in turn led onto Triple Trouble. But a skier does not commit
himself to taking Triple Trouble merely by turning left onto Cant
Dog. Big Dipper was an open trail which a skier could continue
down without branching off onto Triple Trouble, so no warning sign
as to Triple Trouble was required by the statute at the Haulback-
Cant Dog fork, even though one could have been voluntarily
provided.
The second claim on appeal is that the district court
should not have rejected an alternative theory of the plaintiffs
having nothing to do with notice. The plaintiffs said that the
defendant had placed the rope across Triple Trouble somewhat below
the entrance itself and that the placement was negligent because it
could lure a skier closer to the icy entrance than one would go
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otherwise. Admittedly, there was no duty to use any closing rope
at all (the statute made the signs sufficient) but the plaintiffs
argue that a voluntarily assumed duty negligently performed is not
immunized by the statute.
There are obvious risks in penalizing efforts to provide
help or care beyond an existing duty, but the common law rule
sometimes permits a claim for negligent performance of a voluntary
act where the negligence "increases the risk" of harm, or harm is
caused by the victim's "reliance upon the undertaking" to provide
help or care. Restatement (Second) of Torts § 323 (1965); see also
Prosser & Keaton on Torts 378-82 (5th ed. 1984). The New Hampshire
Supreme Court has not decided how far this doctrine may apply in
the face of the state statute providing protection to ski
operators. See Rayeski v. Gunstock Area/Gunstock Area Comm'n, 776
A.2d 1265, 1269 (N.H. 2001).
The district court did not attempt to answer this
question. It rested its rejection of such a claim in this case on
the fact that the plaintiffs had not articulated any plausible
causal connection between the placement of the rope and Howard
Gwyn's fall. As the district court said:
[The] complaint is devoid of allegations
suggesting that defendant's failure to
exercise reasonable care to perform the
identified undertakings created the icy area
where the falls took place, exacerbated an
already dangerous situation, caused Howard
Gwyn and Do to enter an area they would not
have entered absent the undertakings, or
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caused Howard Gwyn and Do to suffer worse
injuries than they would have suffered absent
the undertakings.
We have read the plaintiffs' appellate briefs with care and no
persuasive answer to this summary appears.
The problem for the plaintiffs is that Howard Gwyn
evidently slipped on an ice patch on Big Dipper, and an icy and
dangerous open slope is an inherent risk of skiing that the
plaintiffs assumed as a matter of law. N.H. Rev. Stat. Ann §
225-A:24(I); Nutbrown, 671 A.2d at 553-54 (citing Fetzner v. Jiminy
Peak, The Mountain Resort, No. 94WAD16, 1995 WL 263916, at *2
(Mass. Dist. Ct. May 1, 1995) (slipping on ice is an inherent risk
of skiing)). The only duty Loon voluntarily undertook--placing a
rope across the trail--put the plaintiffs in no worse a position
than they would have been without the rope. One can think of
circumstances where a badly placed rope would cause or contribute
to an accident but this simply is not such a case.
Three remaining claims can be dealt with more swiftly.
First, plaintiffs say that as read by the district court (and now
by this court), the New Hampshire statute violates two provisions
of the New Hampshire Constitution: the right to a remedy and the
equal protection of the laws. N.H. Const. part I, arts. 2, 12, 14.
The claim is that the district court's interpretation deprives the
plaintiffs of their constitutionally guaranteed rights without
giving them a sufficient quid pro quo of a prior warning of the
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danger. This argument may be forfeited since not raised below.
Brigham v. Sun Life of Canada, 317 F.3d 72, 85 (1st Cir. 2003).
In any event the New Hampshire Supreme Court has already
concluded that the obligations that the ski statute places on ski
operators provide a sufficient quid pro quo for the statutory
restriction on skiers' legal remedies. Nutbrown, 671 A.2d at 552.
While the "access points" issue was not considered in Nutbrown,
this slight wrinkle would not be likely to alter the New Hampshire
Supreme Court's assessment. No further argument based on New
Hampshire constitutional law is sufficiently developed to merit
consideration. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar
Ass'n, 142 F.3d 26, 43 (1st Cir. 1998).
Second, plaintiffs say that the statutory reading of the
access points language and the voluntary assumption issue present
open questions of New Hampshire law that should be certified to the
state court. No such request was made in the district court, which
is ordinarily conclusive save in rare circumstances such as public
policy concerns, e.g., Pyle v. S. Hadley Sch. Comm., 55 F.3d 20, 22
(1st Cir. 1995). In any event, the access points issue is too
straightforward to deserve certification and the voluntary
assumption claim has been resolved not on the basis of statutory
preemption but simply on the pleadings and facts of this case.
Third, plaintiffs say that the district court erred by
denying them the chance to amend their complaint for the second
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time (one earlier amendment had been made) two months after the
deadline set by the district court's scheduling order. The motion
to amend was denied by the district court for failure to make any
effort to satisfy the good cause requirement for amendments after
the scheduling order deadline, Fed. R. Civ. P. 16(b)(1), and also
the disregard of Local Rule 15.1's further requirements (e.g.,
attaching all relevant documents and explaining why the change had
not been made before). D.N.H. R. 15.1.
On appeal, the plaintiffs say only that the district
court erred by applying federal standards for amending pleadings
instead of the supposedly more liberal amendment rules applicable
in New Hampshire state courts. But if anything comprises
"procedural" rulings exempt from the Erie doctrine, Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938), it is such routine issues as the
granting or denial of extensions of time, leave to amend, and
similar housekeeping concerns. The outcome determinative test
relied upon by plaintiffs has been limited, see Hanna v. Plumer,
380 U.S. 460, 471 (1965), and has no application to a clearly
procedural matter governed by explicit federal procedural rules.
This is a sad case but, despite the ingenuity and energy
of plaintiffs' counsel, it is not a close one, given the
limitations imposed by state policy. It was handled with care and
competence by the district court, and we might have said less but
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for a desire to make clear that plaintiffs' arguments have been
considered with respect.
Affirmed.
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