Miller v. The Sunapee Difference, LLC

United States Court of Appeals
For the First Circuit

No. 18-1409

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]

Before

Barron and Selya, Circuit Judges,
and Katzmann, 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.

March 11, 2019

* Of the United States Court of International Trade, sitting
by designation.
 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

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 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

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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.

While skiing at the Mount Sunapee resort after

purchasing such a lift ticket and affixing it to his clothing in

the manner just described, Miller struck an unmarked "snow gun

holder" that was concealed by snow. The "holder" is a mounting

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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."

Mount Sunapee moved for judgment on the pleadings,

pursuant to Federal Rule of Civil Procedure 12(c). Mount Sunapee

argued in its motion that the liability release printed on Miller's

lift ticket barred Miller's claim. Shortly thereafter, Miller

amended his complaint to include four new factual allegations. In

opposing Mount Sunapee's Rule 12(c) motion, Miller argued, among

other things, that these new factual allegations sufficed to plead

that Mount Sunapee had been not only negligent but also reckless

with respect to the presence of the covered snowmaker with which

Miller collided and that, for this reason, too, the release was

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not a bar to at least his claim that Mount Sunapee had been

reckless.

Both parties submitted documents beyond the pleadings to

support their arguments. Accordingly, the District Court

converted the motion into one for summary judgment under Federal

Rule of Civil Procedure 12(d). The District Court then ruled for

Mount Sunapee on the basis of the release. Miller now appeals.

II.

"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." Allen v. Dover Co-Recreational Softball

League, 807 A.2d 1274, 1281 (N.H. 2002). 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." Dean v. MacDonald, 786 A.2d

834, 838 (N.H. 2001).

The District Court properly characterized the

defendant's motion to dismiss under Federal Rules of Civil

Procedure 12(b)(6) and 12(c) as one under Federal Rule of Civil

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Procedure Rule 12(d), because "matters outside the pleadings

[were] presented to . . . the court." Fed. R. Civ. P. 12(d).

Under that rule, a district court must treat the motion as "one

for summary judgment under [Federal] Rule [of Civil Procedure]

56." Id.

We review the denial of such a motion de novo. McConkie

v. Nichols, 446 F.3d 258, 260 (1st Cir. 2006). In undertaking

that review, we must "constru[e] the record in the light most

favorable to the non-moving party and resolv[e] all reasonable

inferences in that party's favor." Pierce v. Cotuit Fire Dist.,

741 F.3d 295, 301 (1st Cir. 2014). If the record reveals "no

genuine dispute as to any material fact," the moving party -- here,

Mount Sunapee -- "is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a).

A.

Miller contends 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, we do not agree.

The District Court correctly rejected Miller's

contention that the mere fact that he did not sign the release

precluded the grant of summary judgment against him. As the

District Court noted, the New Hampshire Supreme Court has held

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that an unsigned insurance contract can be enforceable even though

it has not been signed. Gannett v. Merchants Mut. Ins. Co., 552

A.2d 99, 102 (N.H. 1988) (citing Barnes v. New Hampshire Karting

Ass'n, 509 A.2d 151, 154 (N.H. 1986)). Moreover, lower courts in

New Hampshire have found that liability releases on lift

tickets -- even though unsigned -- may be binding. Camire v.

Gunstock Area Comm'n, No. 11-C-337, 2013 LEXIS 30, at *8 (N.H.

Super. Ct. Mar. 22, 2013) aff'd on other grounds, 97 A.3d 250 (N.H.

2014); Reynolds v. Cranmore Mountain Resort, No. 00-C-0035, at *7-

8 (N.H. Super. Ct. Mar. 20, 2001).

Similarly, the District Court correctly rejected

Miller's contention that the fact that the record supportably

showed that he did not read the release precluded the grant of

summary judgment. As the District Court explained, New Hampshire

law does not require that the plaintiff "actually read the release,

when the release clearly and unambiguously stated the condition,

and when [the plaintiff] had the opportunity" to do so. Gannett,

552 A.2d at 102 (emphasis added).

To be sure, Miller did contend below -- as he now argues

on appeal -- that the record supportably shows that he did not

have the opportunity to read the release. But, while the record

supportably shows that he did not, as the District Court succinctly

put it, "take advantage" of the opportunity to read the release

that he did have, it indisputably shows that he did have such an

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opportunity. Thus, the fact that Miller may not have read the

release provides no basis, in and of itself, for concluding that

the District Court erred in granting summary judgment against him.

That leaves, then, only Miller's contention -- to the

extent that he raised it below, which is not altogether

clear -- that the District Court erred in granting summary judgment

because the release was not "sufficiently conspicuous to

communicate its existence." In so arguing, Miller relies on a New

Hampshire Superior Court case, Reynolds, No. 00-C-0035, which he

contends shows that, in circumstances like those presented here,

the question of whether there was a meeting of the minds is one of

fact that was for the jury to resolve.

But, Reynolds held that the release in that case was not

conspicuous -- and thus that the question of whether it was binding

was one of fact for the jury -- only because the court determined

that the presentation on the lift ticket of the text that set forth

the release was not "sufficiently conspicuous" to require the

conclusion "that a reasonable person in [the plaintiff's] position

would have known of the exculpatory provision." Id. at *7 (quoting

Barnes, 509 A.2d at 107). Here, however, the District Court noted

that Miller testified in his deposition that the lift ticket

containing the release in his case was handed to him face up and

that Miller's counsel conceded at argument that Miller would have

"recognize[d] [the release] as a release." As Miller does not

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dispute that characterization of his testimony or his counsel's

concessions at argument, we see no basis for rejecting the District

Court's conclusion that

"[b]ased on the summary judgment record, the
plaintiff's concessions at oral argument and
his supplemental deposition testimony sua
sponte ordered by the court in an abundance of
caution, . . . the undisputed facts
demonstrate that [Miller] purchased the lift
ticket, peeled it from its backing before
attaching it to his clothing, had the
opportunity to read both sides of it, and that
'a reasonable person in plaintiff's position'
would have 'known of the exculpatory
provision.'" 1

B.

Having dispensed with the meeting of the minds issue, we

now move on to consider Miller's next ground for challenging the

District Court's ruling, in which he contends that the release's

scope is so limited that it is no bar to his suit. The portion of

the release that is in question reads: "[a]s purchaser or user of

this ticket, I agree, as a condition of being allowed to use the

1 Miller invokes our recent decision in Cullinane v. Uber
Techs., Inc., 893 F.3d 53 (1st Cir. 2018), which was decided after
the District Court had made its ruling on Mount Sunapee's motion
for judgment on the pleadings. But, nothing about that
case -- which interpreted Massachusetts rather than New Hampshire
law and did not deal with a similar release -- bears on the
correctness of the District Court's ruling. See id. at 61. We
note, too, that Miller made no argument below that, even if the
text of the lift ticket was sufficiently conspicuous to make the
exculpatory language known, the release was still not enforceable
because it failed to alert a reasonable person that peeling off
the peel-off backing of the ticket would suffice to manifest assent
to the terms of the release.

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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."

Miller argues that the general interpretive rule that

the specific governs the general requires that this text be read

to release Mount Sunapee only as to the risks inherent in skiing.

Miller further argues that the inherent risks of skiing do not

include running into unmarked snowmaking equipment on the slopes.

Miller relies for this argument on Wright v. Loon

Mountain Recreation Corp., 663 A.2d 1340 (N.H. 1995), in which the

release included several "paragraphs preceding the exculpatory

clause" that "emphasize[d] the inherent hazards of horseback

riding." Id. at 1343; see id. at 1341. The exculpatory clause

then read:

I therefore release Loon Mountain Recreation
Corporation, its owners, agents and employees
FROM ANY AND ALL LIABILITY FOR DAMAGES AND
PERSONAL INJURY TO MYSELF OR ANY PERSON OR
PROPERTY RESULTING FROM THE NEGLIGENCE OF LOON
MOUNTAIN RECREATION CORPORATION TO INCLUDE
NEGLIGENCE IN SELECTION, ADJUSTMENT OR ANY
MAINTENANCE OF ANY HORSE, accepting myself the
full responsibility for any and all damages or
injury of any kind which may result. (PLEASE
SIGN: Brenda Wright/s)

Id.

But, in finding that release to be limited to the inherent

risks of horseback riding, the New Hampshire Supreme Court in

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Wright first noted that "[t]he paragraphs preceding the

exculpatory clause emphasize[d] the inherent hazards of horseback

riding" and that "[b]ecause the exculpatory clause is prefaced by

the term 'therefore,' a reasonable person" might read the release

language to relate back to those inherent hazards. Id. at 1343.

The New Hampshire Supreme Court found that the exculpatory clause

in that case was "further clouded by the qualifying language that

follows," which stated that the release "include[d] negligence in

selection, adjustment or maintenance of any horse." Id. (quoting

release).

The release at issue here contains neither of these two

features. In fact, Miller's reading of the release -- as Mount

Sunapee points out -- necessarily renders the phrase "or any other

risks or dangers" to be meaningless. See Commercial Union

Assurance Co. v. Brown Co., 419 A.2d 1111, 1113 (N.H. 1980)

(disfavoring constructions that render contractual terms

superfluous). Moreover, as Mount Sunapee also rightly emphasizes,

a sentence in the release that Miller ignores but that immediately

follows the one on which Miller rests his scope argument expressly

states:

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

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 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.

(emphasis in original). Yet, as Mount Sunapee contends, this

language "very clearly encompasses and bars Plaintiff's claims of

negligence and renders his limiting interpretation wholly

inconsistent with the plain language and import of the Liability

Release."

We thus do not find Miller's attempt to equate his case

with Wright persuasive. And, accordingly, we decline to construe

the scope of the release to be as limited as Miller suggests it

is.

C.

We turn, then, to Miller's contention that the release

is unenforceable because it is against public policy. Under New

Hampshire law, "[a] defendant seeking to avoid liability must show

than an exculpatory agreement does not contravene public policy;

i.e., that no special relationship existed between the parties and

that there was no other disparity in bargaining power." McGrath

v. SNH Dev., Inc., 969 A.2d 392, 396 (N.H. 2009)(quoting Barnes,

509 A.2d at 106). Moreover, as the New Hampshire Court explained

in McGrath, an exculpatory agreement has been found to be against

public policy "if, among other things, it is injurious to the

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interests of the public, violates some public statute, or tends to

interfere with the public welfare or safety." Id.

But, McGrath explains that "[t]he fact that an

exculpatory agreement waives the right to bring a negligence action

arising out of an activity that is regulated by statute is not

determinative of a public policy violation." Id. And while Miller

attempts to argue that this liability release is against public

policy -- and thus unenforceable -- because it would free Mount

Sunapee from what he contends is a statutorily imposed duty on

operators of ski areas to warn skiers of snowmaking equipment on

the slopes,2 we are not persuaded.

Miller does point to N.H. Rev. Stat. Ann. § 225-A:23,

but that statute's plain terms make clear that it does not, on its

own, impose any such duty. The statute refers only to a different

set of duties on ski area operators, including marking trail

difficulty levels and warning skiers "by use of a trail board"

located at the base of the mountain of "snow grooming or snow

making operations [that] are routinely in progress." N.H. Rev.

Stat. Ann. § 225-A:23. Nor is there any merit to Miller's strained

2 Miller also challenges the enforceability of the liability
release on the ground that it violates public policy because ski
area operators have a common law duty to protect skiers from the
non-inherent risks of skiing. But Miller did not raise this
argument below, nor does he explain how he can show plain error.
See Sony BMG Music Entm't v. Tenenbaum, 660 F.3d 487, 503 (1st
Cir. 2011).

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contention that the expressly enunciated statutory duties set

forth in N.H. Rev. Stat. Ann. § 225-A:23 must be understood to

include one that is not mentioned at all -- namely, a duty of

reasonable care with respect to any risk that is not identified in

a different statute, N.H. Rev. Stat. Ann. § 225-A:24. In fact,

that statute does not purport to set forth any duties of ski area

operators, as it instead by its terms sets forth only the risks

that skiers assume. N.H. Rev. Stat. § 225-A:24.

Miller separately contends that the liability release is

unenforceable on public policy grounds because Mount Sunapee

operates the Mount Sunapee resort on New Hampshire state land and,

"unlike the operator of a private ski area, is charged with a duty

of public service, pursuant to which it must allow public access

to the Mount Sunapee Ski resort." Miller then notes that, per the

commentary to the Restatement (Second) of Torts § 496B, liability

releases that "relate[] to the . . . performance of any part of [a

public] duty . . . will not be given effect." Restatement (Second)

of Torts § 496B, cmt. g.

But, under New Hampshire law, "the fact that [a] ski

area is available for public use is not dispositive of a special

relationship" that might give rise to the sort of public duty

contemplated by § 496B. McGrath, 969 A.2d at 397; see Barnes, 509

A.2d at 154 (explaining that the public duties contemplated by the

commentary to § 496B of the Restatement arise out of the existence

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of a special relationship). And Miller identifies no authority to

suggest that the rule is otherwise applicable simply because a

privately-run ski area that is open to the public is also on

publicly owned land. We thus agree with the District Court that

Miller supplies no basis for concluding that the special

relationship he must identify under McGrath exists.

D.

We turn, finally, to Miller's contention that the

release does not bar his claim under New Hampshire law that Mount

Sunapee's conduct vis-à-vis the snowmaker with which he collided

was not merely negligent but reckless.3 To support this

contention, Miller points to Perry v. SNH Development, No. 2015-

CV-00678, 2017 N.H. Super. LEXIS 32 (N.H. Sup. Ct. Sept. 13, 2017),

a New Hampshire Superior Court case that held that liability

releases do not bar claims of recklessness under New Hampshire

law. But, even assuming that Perry correctly states New Hampshire

law, we find, like the District Court, that Miller has failed to

provide a basis upon which a jury could supportably find Mount

Sunapee to have been reckless.

3
Even though Miller's claim is nominally one for "negligence"
he may still, under New Hampshire law, have adequately pled a claim
for recklessness if the factual allegations support such a claim.
See Migdal v. Stamp, 564 A.2d 826, 828-29 (N.H. 1989) (finding
factual allegations to be "sufficient to establish a claim of
reckless or wanton conduct, even though the plaintiffs use[d] the
term 'negligence' in their complaint").

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 Conduct rises to the level of "recklessness" under New

Hampshire law "if it 'would lead a reasonable man to realize, not

only that his conduct creates an unreasonable risk of physical

harm to another, but also that such risk is substantially greater

than that which is necessary to make his conduct negligent.'"

Boulter v. Eli & Bessie Cohen Found., 97 A.3d 1127, 1132 (N.H.

2014) (quoting Restatement (Second) of Torts § 500 (1965)). Thus,

conduct is "reckless" where "the known danger ceases to be only a

foreseeable risk which a reasonable person would avoid, and becomes

in the mind of the actor a substantial certainty." Thompson v.

Forest, 614 A.2d 1064, 1068 (N.H. 1992) (quoting W.P. Keeton et

al., Prosser & Keeton on the Law of Torts § 8, at 36 (5th ed.

1984)).

Miller argues that Mount Sunapee's conduct meets this

high bar because "Mount Sunapee knew, or should have known, in

light of receiving thirty-five inches of snow in the weeks leading

up to the accident, that unmarked snowmaking equipment, such as

that with which he collided, had become covered, and concealed

from view, by snow." To support the contention that Mount Sunapee

had "actual notice that unmarked snowmaking equipment was covered

with snow," he points to a grooming report prepared two weeks

before his accident. Miller then characterizes the grooming report

as "directing that snow be removed from the snowmaking equipment

it knew was covered." Miller thus contends that this report

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"demonstrates that Mount Sunapee knew of the 'danger to life or

safety of others' presented by unmarked, concealed snowmaking

equipment."

But, as Mount Sunapee points out, the grooming report

refers to an entirely different trail, on a different part of the

mountain, nearly two weeks before Miller's accident. In addition,

the affidavit from Alan Ritchie, the Mountain Operations Manager

at Mount Sunapee and the report's author, states that he does not,

in the grooming report, instruct groomers to uncover the referenced

hydrants because "[t]hey are not in the skiable terrain." Nor

does Miller point to anything else in the record that could permit

a jury to find that Mount Sunapee was aware that there were covered

snow gun holders on skiable terrain, let alone that Mount Sunapee

was aware that the snowmaking equipment with which Miller collided

was covered in snow.

Thus, the District Court was correct to conclude that

Miller failed to identify evidence in the record that could suffice

to support the conclusion that the "known danger" posed by the

snowmaking equipment was a "substantial certainty" rather than

merely a "foreseeable risk." Thompson, 614 A.2d at 1068. Nor are

the cases that Miller cites to support his argument for overturning

the District Court's ruling to the contrary. Each found that the

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defendant was reckless because they were, in fact, aware of the

risk that they subsequently disregarded.4

III.

For the foregoing reasons, the judgment below is

affirmed.

4 See Migdal, 564 A.2d at 828 (finding defendants to be
reckless where they were "aware of the fact that their minor son
had ransacked and vandalized their home, was suffering from mental
and emotional instabilities and exhibited dangerous propensities,
[and] nevertheless failed to seek recommended medical treatment
for him and allowed him access to an array of firearms and
ammunition"); Perry, 2017 N.H. Super. LEXIS 32, at *33-34 (holding
that a jury could reasonably find ski lift operators to be reckless
where operators did not stop the chair lift after observing a child
who was improperly loaded dangling from the lift).

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