ORDER Opinion No. 2016 DNH 027.
STEVEN J. McAULIFFE, District Judge.
Jennifer Lizzol, her husband Michael, and the couple's son, T.G., bring this action seeking to recover damages for injuries they sustained in a snowmobiling accident while vacationing at the Mountain View Grand Resort & Spa, in Whitefield, New Hampshire. Defendants move to dismiss one of plaintiffs' negligence claims, asserting that it fails to state a viable cause of action under New Hampshire common law.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader."
Accepting the factual allegations of the amended complaint as true — as the court must at this juncture — the relevant background is as follows. In January of 2013, plaintiffs were vacationing in New Hampshire. Prior to their arrival, Jennifer Lizzol went to the Mountain View Grand Internet website and registered her family for a snowmobile lesson and tour. Those lessons and the guided tour were provided by an independent contractor used by Mountain View Grand: Out Back Kayak ("OBK"). On the day in question, OBK employee Martin Welch served as the Lizzols' instructor and tour guide.
According to the amended complaint, Welch provided plaintiffs — who had never driven snowmobiles before — with only cursory instructions on the operation of the machines. The group then set off on their tour. Jennifer Lizzol operated one snowmobile, on which Michael was a passenger. T.G. operated another. The group was told to follow Welch, as he headed out on the trail. But, say plaintiffs, Welch drove too quickly for them to safely follow and Jennifer (who was in the front of the tour group) eventually lost sight of him. While trying to catch-up to Welch, Jennifer lost control of her snowmobile, which left the trail and flipped over. Jennifer, Michael, and the snowmobile on which they had been riding rolled down an embarkment that was approximately seventy-five feet high. As a result, Jennifer suffered severe injuries, including injuries to her spine.
In their multiple-count amended complaint, plaintiffs advance claims against Brothers Property Management Corporation (operator of Mountain View Grand Resort & Spa), OBK, and Martin Welch. Defendants move to dismiss one of those claims, asserting that it fails to state a viable cause of action under New Hampshire law.
In Count II(c) of their amended complaint, plaintiffs seek to impose vicarious liability on Mountain View Grand for the alleged negligence of Martin Welch — the employee of independent contractor OBK. The essence of plaintiffs' claim is as follows:
Amended Complaint (document no. 9) at para. 56 (emphasis supplied).
As plaintiffs acknowledge, New Hampshire law provides that, "[r]espondeat superior, or vicarious liability, ordinarily does not extend to torts by independent contractors because the employer reserves no control or power of discretion over the execution of the work."
In response, defendants assert that, as a matter of law, providing snowmobiling lessons and tours does not meet the definition of an inherently dangerous activity. Consequently, they say, it would be inappropriate to permit a jury to consider that issue and plaintiffs' vicarious liability claim against Mountain View Grand necessarily fails. The court agrees.
The New Hampshire Supreme Court has made clear that not every potentially dangerous activity is an "inherently dangerous" one. Rather, to constitute an inherently dangerous activity, the risk of accident or injury to a third party must arise "directly from the [activity itself], and not from the negligent manner of its performance."
More recently, the New Hampshire Supreme Court held that, in order to be "inherently dangerous," the activity:
So it is in this case. While training novices to safely operate a snowmobile and/or taking them on guided tours may involve an element of danger — particularly if done in a negligent manner — there is nothing inherently ultra-hazardous or even particularly dangerous associated with that activity. Stated slightly differently, it is not an activity "that is dangerous even when conducted with reasonable care."
The court concludes that the conduct in which Mountain View Grand's independent contractor was engaged — conducting basic operator training and providing guided snowmobile tours — was not an inherently dangerous activity, as that phrase is understood in New Hampshire's common law. Snowmobiling cannot fairly be compared to recognized inherently dangerous activities like blasting, demolition, and excavation. Consequently, Count II(c) of plaintiffs' amended complaint, seeking to impose vicarious liability on Mountain View Grand for the alleged negligence of OBK and its employee, fails to state a viable claim.
For the foregoing reasons, as well as those set forth in defendants' memorandum, defendants' motion to dismiss Count II(c) of plaintiffs' amended complaint (document no. 12) is granted.