We acknowledge that some of the risks listed arguably can be characterized as inherent risks because they are innate to the activity, "are beyond the control of the [recreational] area operator and cannot be minimized by the operator's exercise of reasonable care." Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692, 849 A.2d 813 (2004). Other risks listed in the agreement, for example, "lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions" are not inherent risks.

The crux of the majority's holding regarding the common law is that skiers owe no duty to each other because collisions between skiers are one of the inherent risks of skiing. I disagree and instead would follow the reasoned approach adopted by the Supreme Court of Connecticut in Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004), in which the court held that "the standard of care implicated in the context of the sport of skiing is that of a duty to refrain from unreasonable conduct and that liability may attach for negligent behavior." Id. at 698, 849 A.2d 813.

Van Dyke , 79 Cal. Rptr. 2d at 778 (emphasis added); see alsoJagger v. Mohawk Mountain Ski Area, Inc. , 269 Conn. 672, 849 A.2d 813, 828 (2004) ("[F]or inherent hazards, ski area operators owe skiers no duty of care and skiers assume the risk of those hazards in the primary sense."); Murray v. Great Gorge Resort, Inc. , 360 N.J.Super. 395, 823 A.2d 101, 106 (2003) ("In the skiing context, an inherent risk is one that cannot be removed through the exercise of due care if the sport is to be enjoyed." (citation omitted));

See 28 U.S.C. § 1346(b)(1). The elements of a negligence cause of action under Connecticut law are duty, breach of that duty, causation and actual injury. Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004)(citations & internal quotations omitted)("essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury[]"). Although "[f]ew courts have expounded on what duty of care is owed to an inmate[,]" Dominguez v. United States, 963 F. Supp. 2d 107, 115 (D. Conn. Aug. 9, 2013), the few who "have considered the issue have treated inmates as invitees and thus subject to the highest duty of care."

As a final aside, the court notes that the plaintiffs rely upon several extrajurisdictional cases in opposing the motion to dismiss. See Opp. to Mot. to Dismiss (document no. 30) at 9-10) (citing Rusnak v. Walker, 273 Mich. App. 299 (2006); Jagger v. Mohawk Mtn. Ski Area, Inc., 269 Conn. 672 (2004); Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991)). Those cases do not affect this court's ruling, for the following reasons: • In the Rusnak case, the plaintiff did not seek to recover from a ski area, but from a fellow skier, so the court never had occasion to discuss the scope of ski area liability under Michigan's version of the Ski Statute (which, in any event, differs from the New Hampshire law). • The result in the Jagger case was based upon an exemption from the Connecticut Ski Statute's ski area immunity provision that does not exist in the New Hampshire law. That exemption denies ski area operators immunity for injuries "proximately caused by the negligent operation of the ski area by the ski area operator, his agents, or employees."

(Citations omitted.) Jagger v. Mohawk Mountain Ski Area, Inc. , 269 Conn. 672, 693 n.16, 849 A.2d 813 (2004). In contrast, "[a]s a general rule, an employer is not [vicariously] liable for the negligence of its independent contractors. ... The explanation for [this rule] most commonly given is that, [because] the employer has no power of control over the manner in which the work is to be done by the [independent] contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it."

Second, it is only the general right to control, and not the actual exercise of specific control, that must be established. See Jagger v. Mohawk Mountain Ski Area, Inc. , 269 Conn. 672, 693 n.16, 849 A.2d 813 (2004) ("a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee"); Heath v. Day Kimball Hospital , Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-11-6026678-S (December 16, 2013) (57 Conn. L. Rptr. 381, 383, 2013 WL 6989523) ("the law does not require proof that the principal look over the agent's shoulder and direct the agent in how to do his work"). Agents may be vested with considerable discretion and independence in how they perform their work for the principal's benefit, yet still be deemed subject to the principal's general right to control.

The elimination of unnecessary risks , i.e., those that can be minimized with little effort, however, should encourage, rather than dampen, enthusiasm for traveling abroad. Cf. Jagger v. Mohawk Mountain Ski Area, Inc. , 269 Conn. 672, 703, 849 A.2d 813 (2004) (recognizing that skiers had duty of care to fellow skiers because "requiring skiers to participate in the reasonable manner prescribed by the rules of the sport actually will promote participation in the sport of skiing" by remedying harms and protecting safety). For risks that cannot be fully neutralized, appropriate warnings likely will suffice to satisfy the duty of care.

(Citation omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 693 n.16, 849 A.2d 813 (2004). "Before vicarious liability can be imposed, however, there must be sufficient evidence produced to warrant a finding of agency between the parties. If there is a finding that the allegedly negligent actor is not an employee or agent, then the claim of vicarious liability must fail."

(Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n. 13, 849 A.2d 813 (2004). It is well established within the construction context that a builder must exercise "that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions.