UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

* * * * * * * * * * * * * * * * * * * * * * * 

Christina Margaret Porter, et al. * 

 Plaintiffs * 

v. * 

 * Civil No: 07-cv-28-JL 

Dartmouth College, et al. * 

 Defendants * 

* * * * * * * * * * * * * * * * * * * * * * * 

DEFENDANT’S MOTION IN LIMINE TO EXCLUDE DEFECTIVE SKI

EQUIPMENT CLAIMS BASED UPON LIABILITY RELEASE

NOW COMES the Defendant, Dartmouth College (“Dartmouth”), by and through its 

attorneys, Devine, Millimet and Branch, P. A., and submits the following Motion in Limine to 

Exclude Opinions and Claims Based Upon Liability Release. In support thereof, the Defendant 

states as follows: 

1. On May 1, 2009, Dartmouth filed a Motion for Summary Judgment Based on 

Liability Release (Document 44 with attachments). In that motion, Dartmouth argued that the 

Plaintiffs’ claims were barred by the Liability Release signed by Ms. Porter. 

2. In its September 30, 2009 Order (Document 85), this Court (Barbadoro, J.) ruled 

that the Liability Release signed by Ms. Porter did not bar the Plaintiffs’ negligent ski instruction 

claims against Dartmouth. This Order did not rule on claims or theories relating to defective ski 

equipment. Dartmouth’s present motion addresses Plaintiffs’ claims and theories of negligence 

regarding Dartmouth’s rental of allegedly defective ski equipment to Ms. Porter. 

3. On December 31, 2009, on the eve of trial, the Plaintiff moved to amend their 

Complaint (Document 95), in part, to add claims based upon defective ski equipment which were 

not asserted in their initial Complaint, but which were belatedly raised in their liability expert’s 

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reports.1

 In their proposed Amended Complaint, filed with their Motion to Amend, the Plaintiffs 

admit that “Defendant Dartmouth afforded students, such as Decedent, the option to rent ski 

equipment for use in the Ski Class.” See Proposed Amended Complaint (Document 95-10), ¶16. 

They go on to allege that “Defendant Dartmouth was negligent in that its employees and/or 

agents failed to provide Decedent with safe ski equipment.” See id. at ¶35. 

4. As articulated herein, all of the Plaintiffs’ claims relating to Ms. Porter’s ski 

equipment are barred by the Liability Release that Ms. Porter signed before renting her 

equipment. As such, these claims should be dismissed and the Plaintiffs should be excluded 

from introducing any evidence or testimony regarding her alleged defective ski equipment. 

STATEMENT OF RELEVANT FACTS

5. At this stage in the proceedings, the parties have stated and restated the general 

facts involved in this action. For the purposes of this Motion in Limine, Dartmouth relies on 

facts as stated in its Memorandum of Law in Support of Motion for Summary Judgment Based 

Upon Liability Release (Document 44-1). 

6. For the Court’s convenience, however, the Liability Release is attached as Exhibit 

B and its relevant text is stated below. 

I understand that the sports of skiing, snowboarding, skiboarding, 

snowshoeing and other sports (collectively “RECREATIONAL SNOW 

SPORTS”) involve inherent and other risks of INJURY and DEATH. I 

voluntarily agree to expressly assume all risks of injury or death that 

may result from these RECREATIONAL SNOW SPORTS, or which relate 

in any way to the use of this equipment. 

. . . 

                                                           

1

 Dartmouth incorporates by reference its Motion in Limine to Exclude Opinions and Claims Regarding Alleged 

Defective Ski Equipment which details the Plaintiffs’ claims regarding Ms. Porters’ alleged defective ski equipment. 

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I AGREE TO RELEASE AND HOLD HARMLESS the equipment 

rental facility, its employees, owners, affiliates, agents, officers, 

directors, and the equipment manufacturers and distributors and 

their successors in interest (collectively “PROVIDERS”), from all 

liability for injury, death, property loss and damage which results 

from the equipment user’s participation in the RECREATIONAL 

SNOW SPORTS for which the equipment is provided, or which is 

related in any way to the use of this equipment, including all liability 

which results from the NEGLIGENCE of PROVIDERS, or any other 

person or cause. 

I further agree to defend and indemnify PROVIDERS for any loss or 

damage, including any that results from claims or lawsuits for personal 

injury, death, and property loss and damage related in any way to the use 

of this equipment. 

. . . 

See Ex. B (emphasis in the original). 

ARGUMENT

I. THE LIABILITY RELEASE BARS ANY DEFECTIVE SKI EQUIPMENT 

CLAIMS 

7. The parties have briefed issues relating to the Liability Release in detail in the 

pleadings on Dartmouth’s previously filed Motion for Summary Judgment Based on Liability 

Release. Dartmouth’s pleadings (Documents 44 (with attachments) and 56 (with attachment)) 

are incorporated herein by reference. This Court (Barbadoro, J.) denied that motion for two 

reasons. First, based upon the evidence presented in those pleadings, the Court found that that 

Liability Release did not release Dartmouth because it was not clear that Ms. Porter “would have 

understood that Dartmouth, rather than some other entity with whom Dartmouth had contracted, 

was the equipment rental facility.” See Order (Document 85), p. 12. Second, the Court found 

that the Liability Release was not sufficiently explicit so as to release claims for negligent ski 

instruction. Id. In that Order, the Court did not issue an opinion as to claims regarding alleged 

defective ski equipment. Dartmouth asks this Court to reconsider the first holding and rule for 

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the first time that the Plaintiffs’ defective ski equipment claims are barred by the Liability 

Release. 

8. In the Liability Release, Ms. Porter released “the equipment rental facility, its 

employees, owners, [and] affiliates” from “all liability for injury, death, property loss and 

damage which results from the equipment user’s participation in the RECREATIONAL SNOW 

SPORTS for which the equipment is provided, or which is related in any way to the use of this 

equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any 

other person or cause.” See Ex. B. 

9. As this Court (Barbadoro, J.) noted, “[a]n exculpatory contract need not 

specifically identify the defendant by name.” Order (Document 85), p. 9 (citing Dean v. 

McDonald d/b/a Lee USA Speedway, 147 N.H. 263, 270 (2001). The Liability Release in the 

present case releases “the equipment rental facility, its employees, owners, affiliates, agents, 

officers, directors, and the equipment manufacturers and distributors and their successors in 

interest.” See Ex. B. 

10. In its September 30, 2009 Order, the Court expressed uncertainty as to the identity 

of “the equipment rental facility.” 

Dartmouth asserts in its Reply Memorandum that “there is no entity, other 

than Dartmouth, that can reasonably be considered the ‘equipment rental 

facility.’” (Def.’s Reply Mem. in Supp. of Mot. for Summ. J., Doc. No. 

56, at 4.) However, Dartmouth provides absolutely no support for this 

proposition. Without such support, I cannot conclude that a reasonable 

person in Porter’s position would have understood that Dartmouth, rather 

than some other entity with whom Dartmouth had contracted, was the 

equipment rental facility. 

Order, p. 12. 

11. The Plaintiffs have never contended that any entity other than Dartmouth rented 

the ski equipment to Ms. Porter. In addition, the Plaintiffs’ have now affirmatively 

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acknowledged that Ms. Porter rented her equipment from Dartmouth. See Proposed Amended 

Complaint, ¶¶16, 35 (“Defendant Dartmouth afforded students, such as Decedent, the option to 

rent ski equipment for use in the Ski Class. . . . Defendant Dartmouth was negligent in that its 

employees and/or agents failed to provide Decedent with safe ski equipment.”). Therefore, the 

Plaintiffs concede that Dartmouth is “the equipment rental facility” within the meaning of the 

Liability Release. 

12. Furthermore, on January 19, 2004, Mr. McClintock sent an email titled 

“IMPORTANT INFORMATION!!!!!!” to students in the Alpine Physical Education Program, 

including Ms. Porter, who name is found on second to last line of the first page of the printout. 

A copy of this email is attached hereto as Exhibit C. This email informs the students that: 

If you need to rent Downhill equipment, the Physical Education Department has a 

limited number of units available for the season rental fee of $150.00. Your last 

opportunity to rent is January 19th from 1:00 to 3:00 PM in Leverone Field 

House. This will be on a first come, first serve basis until quantities run out. 

Id. at p. 2, item 3a (emphasis added.) This email, together with the signed Liability Release and 

the fact that she went to a Dartmouth facility and was assisted by Dartmouth students in renting 

her ski equipment, not manufacturer representatives, show that Ms. Porter and any reasonable 

person, would be aware that they were renting ski equipment from Dartmouth through the 

Physical Education Department for her ski lessons. 

13. Having overcome the Court’s concern that Ms. Porter knew that Dartmouth was 

“the equipment rental facility,” the only remaining issue is whether the language of the Liability 

Release bars the Plaintiffs’ defective ski equipment claims. In its September, 30, 2009 Order, 

the Court acknowledged that the Liability Release was intended “to insulate the ski manufacturer 

and rental facility from claims pertaining to the rental of ski equipment.” Order, p. 16. Because 

there is no dispute that Dartmouth was “the equipment rental facility,” it follows that the Release 

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Agreement “insulates” Dartmouth “from claims pertaining to the rental of ski equipment.” See

id.

14. Additionally, the Court correctly noted, “[t]he first two paragraphs [of the 

Liability Release] acknowledge that the equipment renter accepts the equipment ‘as is,’ assumes 

financial responsibility for the equipment for the duration of the rental period, and understands 

that the binding system may not guarantee the renter’s safety.” Id. at p. 5. Therefore, when she 

rented her ski equipment, Ms. Porter accepted the equipment in its present condition and released 

Dartmouth from liability for claims relating to that equipment. 

15. Finally, the Liability Release unambiguously states that Ms. Porter released 

Dartmouth from liability for injury or death resulting from her participating in “the 

RECREATIONAL SNOW SPORTS for which the equipment [was] provided or which is 

related in any way to the use of this equipment, including all liability which results from 

the NEGLIGENCE of PROVIDERS, or any other person or cause.” See Ex. B (emphasis 

and capitalization in original). 

16. This release contains the language recognized under New Hampshire law to 

effectuate a proper liability release for acts of negligence. Cf. McGrath v. SNH Development, 

Inc., et al., 158 N.H. 540, 547 (2009) (holding that the language of the liability release 

agreements clearly and specifically indicates the intent to release the defendants from liability for 

personal injury caused by the defendant’s negligence); Dean v. McDonald d/b/a Lee USA 

Speedway, 147 N.H. 263, 267-68 (2001). The language of the Liability Release “clearly and 

specifically” releases the Defendants for their negligent acts and is sufficiently “broad” to 

encompass any number of accidents that may occur while skiing, including injury and death 

sustained from leaving a trail and hitting trees. See Dean, 147 N.H. at 267-68. As shown in the 

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quotation from the Liability Release, above, word “negligence” is in capital letters and is both 

italicized and bolded, meeting the requirement that such language is featured prominently in the 

Liability Release. This language placed Ms. Porter on notice that by signing the Liability 

Release she was releasing Dartmouth for all claims of negligence regarding her ski equipment. 

17. In sum, based upon the plain language of the valid and enforceable Liability 

Release signed by Ms. Porter, the Plaintiffs’ defective ski equipment claims must fail. 

18. No Memorandum of Law is included with this Motion, as all necessary legal 

authority is cited herein. 

19. The Plaintiffs do not consent to this Motion. 

 WHEREFORE, Dartmouth College respectfully requests that this Court: 

A. Bar the Plaintiffs’ defective ski equipment claims; 

B. Exclude the Plaintiffs from making any claim or introducing any evidence of 

defective ski equipment; 

C. Order such other and further relief as may be equitable and just. 

Respectfully submitted, 

DARTMOUTH COLLEGE 

By its attorneys, 

DEVINE, MILLIMET & BRANCH, P.A. 

Dated: January 11, 2010 By: /s/ Thomas Quarles, Jr. 

Thomas Quarles, Jr., Bar #2077 

111 Amherst Street 

Manchester, NH 03101 

Phone: (603) 669-1000 

Fax: (603) 666-4288 

tquarles@devinemillimet.com 

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CERTIFICATE OF SERVICE

I, Thomas Quarles, Jr., Esquire hereby certify that on this date, I caused a copy of the 

foregoing to be served upon the following via electronic transmission in accordance with the 

Court’s Administrative Procedures for Electronic Case Filing. 

K. William Clauson, Esquire 

Clauson Atwood & Spaneas 

Ten Buck Road 

Hanover, NH 03755 

Charles J. Raubicheck 

Frommer Lawrence & Haug, LLP 

745 Fifth Avenue 

New York, NY 10151 

Kevin Murphy, Esquire 

Frommer Lawrence & Haug, LLP 

745 Fifth Avenue 

New York, NY 10151 

_______/s/ Thomas Quarles, Jr._______ 

Thomas Quarles, Jr., Bar #2077 

J:\WDOX\DOCS\CLIENTS\018067\080552\M1530762.DOC

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