Great Colorado Sun article about skiing and board injuries over the past five years
Posted: April 15, 2024 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Collisions, Law Enforcement, Ski Patrol, Skier Collisions, skier v. skier Leave a commentHowever, there is an inference from the interviews that is incorrect. The ski patrol is not trained, licensed, or allowed to chase down people in skier v. skier collisions.
Analyzing 5 years of injuries, crashes and hit-and-runs at Colorado ski areas by Jason Blevins
Skier v. Skier collision is the term used to describe any collision between a skier, snowboarder, ski bike, or any other form of sliding down the slopes at a ski area. That term has grown in use over the past twenty years because there are more skier v. skier collisions.
It has also taken on more prominence in our lives and the media because the plaintiff’s lawyers who used to sue ski areas for injuries now sue the negligent party in a skier v. skier collision. Most ski areas are protected by some form of ski area safety statute and most use a release. Those attorneys who used to sue ski areas are now suing skiers. You can tell from the billboards on, I-70 leaving the mountains. They used to say if you had been injured at a ski area to call an 800 number. Now they ask if you were hit at a ski area.
There is a quote in the article that can be misleading if you do not understand the entire legal complex around collision injuries occurring on the mountain.
The woman was describing what happened when she went to the ski patrol after her friend had been hit by a snowboarder.
She snapped a photo and brought it into the ski patrol headquarters at the top of the lift, wondering if maybe they would want to find the man and talk to him about the accident.
“They were completely indifferent,” she says. “I was like the weird old lady.”
I can tell you they were not indifferent. They just did not want to go to jail or be sued for helping. Probably they have been told to record the information at the scene from the witnesses, including the skier causing the collision if that person is still around.
Why don’t they do more?
- They are not law enforcement. They do not have the authority, without seeing the collision, to do anything else.
- If they did find the alleged perpetrator, and they held that person for law enforcement to arrive, they could be charged with false imprisonment or sued for it. False imprisonment does not require bars and a door; it only means you restricted someone’s movement without the right to do so.
- And who would you detain someone? If you touch the person, you are committing a battery—both a civil and criminal act.
Everything the patroller, does that could result in a lawsuit against the patroller will result in a lawsuit against the ski resort he was working or volunteering at.
The article also looked into why people who are injured or more specifically their friends or family members can’t get that information from the ski patrol if they collect it.
The police are required to get a subpoena to collect information from non-parties in a criminal investigation. Just watch any cop show on TV, and you’ll learn that. Friends and family are no different from law enforcement to some extent. There must also be a nexus between the person asking and the information they want to the victim.
And those are not the only legal issues involved. HIPPA and medical confidentially laws control who has access to medical information. Just because your son or daughter was injured in a collision, if they are over the age of 18 you as a sibling, parent or friend cannot legally access that information without written consent from the person whose information you are requesting; The injured party.
There are also limits on how much information you can find on ski area injuries. If the incident is not reported to the Colorado Department of Public Health and Environment — or CDPHE or U.S. National Trauma Data Bank can’t be found to research. Twenty years ago, broken wrists were not reported. Yet snowboarders at one resort were suffering a broken wrist for every 1000 skiers and boarders at the resort. So, unless the injury falls into the class that is reported, any article is going to lack a total look at what is happening.
The article is good, but it is limited in what can be collected, more by circumstances than anything else.
What is the problem is this belief that the Ski Patrol is the sheriff on the mountain. They are not; they are not trained, and they do not have the legal authority to do anything except collect information in a skier v. skier collision.
They do have the authority to take your pass away for violating ski area rules. However, if you read your season pass or lift ticket, the ski area owns both the pass and ticket and you are using them with their permission. The ski patrol is just the lucky one to yank the permission.
Think about it, you are injured and lying in the snow. Who do you want to show up, a friendly ski patroller trained in first aid and how to get you off the slopes or a deputy asking you questions about who hit you? Later, after you are home and feeling better you might wish it had been a deputy, but right then you are looking for that cross on the back of a jacket and a reassuring look from a patroller.
What can you do?
Skiing and boarding have changed. No longer are you able to take off from the lift and bomb the slope? Ski Areas are two crowded; few skiers take lessons anymore, and the equipment has evolved so that learning to ski takes less time and patience than ever before.
That lack of time in learning to ski, or great instruction from ski instructors also means a lack of experience for a lot of people on the slopes. The old saying was it skiing was easier to learn, usually in one day. Snowboarding was harder to learn, but by day three, you could be headed to the Olympics.
At the same time, as a skier or boarder, you are responsible for yourself. Skiing and Boarding means knowing where you are and who is around you. If you are skiing on the edge of a run, you better include the trees as part of your scan area.
Always stop in a safe place, which nowadays is harder to find. Never stop under a rise, lip, or jump. Make sure you can be seen when you stop and stop so you can look uphill for any problems. If you see someone coming, be prepared to get out of the way.
Take a half-day lesson to make sure you know what you are doing, where you should be doing it, what to do if you screw up, and how to survive on the slopes.
Resorts are worried about the issues, finally, and are trying to figure out what that means to them and how they can deal with it.
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers, avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about legal issues in the outdoor recreation world; the latest is
Outdoor Recreation Insurance, Risk Management, and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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If you like this let your friends know or post it on FB, Twitter or LinkedIn
If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.
Author: Outdoor Recreation Insurance, Risk Management, and Law To Purchase Go Here:
Email: Jim@Rec-Law.US
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@2008-2024 Summit Magic Publishing, LLC
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2024 Summit Magic Publishing, LLC
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Release validity was based on whether brother had authorized brother to sign electronic release for him.
Posted: January 29, 2024 Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Electronic Release, Release, Rental Release, Ski Rental, Wachusett Mountain Ski Area, Waiver Leave a commentThe issue revolved around the authority of one brother to sign the electronic release on behalf of the other brother.
Marken v. Wachusett Mountain Ski Area, Inc., 21-P-667 (Mass. App. May 02, 2022)
State: Massachusetts; Appeals Court of Massachusetts
Plaintiff: Charles Marken
Defendant: Wachusett Mountain Ski Area, Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Release
Holding: Ski Area Defendant
Year: 2022
Summary
One brother signed the release for himself and his other brother when renting ski equipment at the resort. The non-signing brother was injured and sued. The release was upheld because the non-injured brother stated during his deposition that he had the authority to sign for his brother.
Facts
On January 7, 2017, the plaintiff, a beginner skier, met his brother, Anthony Marken, at Wachusett Mountain for a day of skiing. When Charles arrived, Anthony was at the rental shop. Anthony had already rented ski equipment for both of them by the time Charles arrived.
In order to rent equipment, a renter must agree to the terms of a rental agreement using a digital kiosk system. After reviewing the rental agreement, which contains a release from “any legal liability,” renters must click “I agree” on the screen. The renter then enters personal information including height, weight, age, boot size, and skier type. The system uses this information to calculate the appropriate ski binding release setting. Once the rental agreement is signed, the system prints a sticker with the renter’s information, including the binding release setting. The ski technician uses the information on the sticker to select ski boots that are fitted to match the renter’s boot size and binding release setting. Charles and Anthony obtained their equipment consistent with the foregoing process, and began to ski. Charles, an admitted beginner, fell twice while skiing prior to the injury at issue; on both occasions, his bindings released properly. At some point, Charles decided to ski a black diamond trail which is for expert skiers. During that run, Charles tried to slow down. He fell, sustained serious injuries to his left leg, and was transported to a hospital. Thereafter, the defendants tested the equipment that Charles had used. The equipment passed inspection and testing, and was returned to the rental inventory.
Analysis: making sense of the law based on these facts.
Releases in Massachusetts are supported and normally upheld.
Generally, we will enforce a release disposing of all claims and demands arising out of any transactions between parties. Indeed, “Massachusetts law favors the enforcement of releases. This is true even where, as here, the party signing the release either does not read it or does not understand it.
Since the non-suing brother signed the release for the brother who was injured, the issue became one of authority. Did the brother that got injured authorize his brother to sign the release for him.
The non-injured brother said unequivocally yes his brother gave him the authority to sign. The injured brother argued on appeal he had not given his brother the authority to sign the release.
Charles does not challenge the validity or enforceability of the release itself. Instead, he claims that the release is unenforceable because he did not sign it, and did not authorize Anthony to sign it on his behalf. However, this claim is belied by Charles’s sworn deposition testimony. Charles was asked, “Had you authorized your brother to [complete the rental agreement] for you?” He answered, “Yes.” He did not equivocate and did not amend his deposition answers. Charles cannot now create an issue of material fact by claiming that he did not authorize Anthony to sign the release on his behalf.
Since the non-injured brother was so firm with his answer, that testimony was accepted by the courts and the release was valid.
So Now What?
This is a tough situation that resorts, outfitters, and rental programs face every day. More so with releases being signed online. Who is signing the release.
Your options for solving this problem are multiple, however none of them lend themselves to great customer service.
You can have each person complete their information and sign the release for themselves and only themselves.
You could have the person signing on the computer state they have the legal authority to sign for the other people listed on the release at that point.
To verify who is signing the release, you need to make sure you know who is signing the release. The secure way of doing this is to have the person fill out their credit card information first and then agree to the release. Their contract with the credit card company states that since it is their credit card they are the ones that are using it.
Either way, it is a mess. However, for your releases to be valid, you need to know who has signed the release when they enter your establishment and those who have not signed, complete the information and sign the release.
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If you like this let your friends know or post it on FB, Twitter or LinkedIn
If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.
Author: Outdoor Recreation Insurance, Risk Management and Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2024 Summit Magic Publishing, LLC
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Marken v. Wachusett Mountain Ski Area, Inc., 21-P-667 (Mass. App. May 02, 2022)
Posted: January 29, 2024 Filed under: Massachusetts, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Electronic Release, Release, Rental Equipment, skiing, Wachusett Mountain Associates, Wachusett Mountain Ski Area Leave a commentTo Read an Analysis of this decision see: Release validity was based on whether brother had authorized brother to sign electronic release for him.
CHARLES MARKEN
v.
WACHUSETT MOUNTAIN SKI AREA, INC., & another.[1]
No. 21-P-667
Appeals Court of Massachusetts
May 2, 2022
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Charles Marken, filed a complaint in the Superior Court against Wachusett Mountain Ski Area, Inc. and Wachusett Mountain Associates, Inc. (the defendants or Wachusett) for injuries he sustained while skiing.[2] On cross motions for summary judgment, the judge allowed the defendants’ motion and dismissed the complaint. This appeal followed. We affirm.
Background.
As the party against whom summary judgment entered, we recite the facts in the light most favorable to the plaintiff. See Cesso v. Todd, 92 Mass.App.Ct. 131, 132 (2017). On January 7, 2017, the plaintiff, a beginner skier, met his brother, Anthony Marken, at Wachusett Mountain for a day of skiing. When Charles arrived, Anthony was at the rental shop. Anthony had already rented ski equipment for both of them by the time Charles arrived.[3]
In order to rent equipment, a renter must agree to the terms of a rental agreement using a digital kiosk system. After reviewing the rental agreement, which contains a release from “any legal liability,” renters must click “I agree” on the screen. The renter then enters personal information including height, weight, age, boot size, and skier type. The system uses this information to calculate the appropriate ski binding release setting. Once the rental agreement is signed, the system prints a sticker with the renter’s information, including the binding release setting. The ski technician uses the information on the sticker to select ski boots that are fitted to match the renter’s boot size and binding release setting. Charles and Anthony obtained their equipment consistent with the foregoing process, and began to ski. Charles, an admitted beginner, fell twice while skiing prior to the injury at issue; on both occasions, his bindings released properly. At some point, Charles decided to ski a black diamond trail which is for expert skiers. During that run, Charles tried to slow down. He fell, sustained serious injuries to his left leg, and was transported to a hospital. Thereafter, the defendants tested the equipment that Charles had used. The equipment passed inspection and testing, and was returned to the rental inventory.
Discussion.
“We review a motion for summary judgment de novo. … In doing so, we must determine ‘whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.'” Psychemedics Corp. v. Boston, 486 Mass. 724, 731 (2021), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, the defendants claim that the release of liability in the rental agreement is valid and enforceable against the plaintiff. Generally, we will enforce a release disposing of all claims and demands arising out of any transactions between parties. See Leblanc v. Friedman, 438 Mass. 592, 597-598 (2003). Indeed, “Massachusetts law favors the enforcement of releases.” Sharon v. Newton, 437 Mass. 99, 105 (2002). This is true even where, as here, the party signing the release either does not read it or does not understand it. See Id. at 103.
Charles does not challenge the validity or enforceability of the release itself. Instead, he claims that the release is unenforceable because he did not sign it, and did not authorize Anthony to sign it on his behalf.[4] However, this claim is belied by Charles’s sworn deposition testimony. Charles was asked, “Had you authorized your brother to [complete the rental agreement] for you?” He answered, “Yes.”[5] He did not equivocate and did not amend his deposition answers. See Tarn v. Federal Mgt. Co., 99 Mass.App.Ct. 41, 46-50 (2021). Charles cannot now create an issue of material fact by claiming that he did not authorize Anthony to sign the release on his behalf. See O’Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 90 6 (1993) (party cannot create disputed issue of fact by contradicting statements previously made under oath at deposition). As such, summary judgment was properly granted to the defendants.[6] See Tarn, supra (summary judgment proper where plaintiff was bound by deposition testimony and where binding admission established she could not prevail at trial).
Request for attorney’s fees and costs.
The defendants’ request for attorney’s fees and costs is allowed. The defendants may submit a petition for appellate attorney’s fees to this court in the manner prescribed in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within twenty days of the issuance of this memorandum and order. The plaintiff may respond to the petition within twenty days of said filing.
Judgment affirmed.
Blake, Lemire & Hershfang, JJ. [7]
———
Notes:
[1] Wachusett Mountain Associates, Inc. All claims against third-party defendant Head USA, Inc. were voluntarily dismissed prior to the entry of summary judgment, and it is not a party to this appeal.
[2] The complaint asserted claims for negligence, breach of express and implied warranty, breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation.
[3] Because the plaintiff and his brother share a surname, we use their first names to avoid confusion.
[4] Charles testified that on previous ski trips he had signed a release, and therefore he expected to sign a release at Wachusett.
[5] To the extent that Charles argues that this question and answer must be viewed in context with the entire line of questioning, we agree. In so doing, we conclude that Charles authorized Anthony to sign the rental agreement containing the release on his behalf. See Fergus v. Ross, 477 Mass. 563, 567 (2017) (“Apparent authority exists when the principal, by his . . . words or conduct, causes a third person to reasonably believe that the principal consents to the agent acting on the principal’s behalf”).
[6] Because of the result we reach, we do not consider Charles’s spoliation of evidence claim.
[7] The panelists are listed in order of seniority.
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Vladichak v. Mountain Creek Ski Resort, Inc., A-1367-20 (N.J. Super. App. Div. Apr 13, 2022)
Posted: January 22, 2024 Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: Adhesion Contract, Bright Line, Inc., Indemnification, Indemnification Clause, Mountain Creek, Mountain Creek Ski Resort, Release, Strictly Construed Leave a commentTo Read an Analysis of this decision see: New Jersey ski area pushes “indemnification” clause in release too far and gets told by court its release is an adhesion contract.
ANDREA VLADICHAK, Plaintiff-Respondent,
v.
MOUNTAIN CREEK SKI RESORT, INC., Defendant-Appellant,
and MICHAEL LAVIN, Defendant-Respondent.
No. A-1367-20
Superior Court of New Jersey, Appellate Division
April 13, 2022
This opinion shall not “constitute precedent or be binding upon any court .” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued April 4, 2022
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0590-18.
Samuel J. McNulty argued the cause for appellant (Hueston McNulty, PC, attorneys; Samuel J. McNulty, of counsel and on the briefs; Edward J. Turro, on the briefs).
Matthew E. Kennedy argued the cause for respondent Michael Lavin (Leary Bride Mergner & Bongiovanni, PA, attorneys; Matthew E. Kennedy, of counsel and on the brief).
Before Judges Fasciale and Sumners.
PER CURIAM
Defendant Snow Creek, LLC d/b/a Mountain Creek Resort, Inc. (Mountain Creek) appeals from a November 9, 2020 order denying its motion for summary judgment and granting summary judgment to defendant Michael Lavin (Lavin) dismissing Mountain Creek’s cross-claims for defense costs and contractual indemnification. Judge David J. Weaver (motion judge) concluded in a thorough opinion that the contractual language was ambiguous and therefore Mountain Creek was not entitled to indemnification from Lavin or defense costs incurred to defend plaintiff’s allegations that Mountain Creek itself was negligent. We affirm.
On December 21, 2017, plaintiff sustained personal injuries while skiing at a ski area owned and operated by Mountain Creek in Vernon Township, New Jersey. Plaintiff was struck from behind by Lavin, another skier. Plaintiff filed a complaint alleging Mountain Creek and Lavin were negligent. Plaintiff’s complaint alleged Mountain Creek was independently negligent for failing to provide appropriate warnings to skiers, failing to appropriately designate the difficulty of ski trails, failing to provide skiers with appropriate information about trail conditions, failing to timely remove obvious manmade hazards, and/or otherwise failing to establish adequate procedures to provide a safe skiing environment. The complaint alleged Lavin was negligent for breaching his duty to others to ski in a reasonably safe manner by skiing in a reckless manner and/or intentionally colliding into plaintiff and causing her injuries.
Prior to the incident, Lavin signed an equipment rental agreement (Rental Agreement) and lift ticket agreement (Release Agreement) in which he agreed to defend and indemnify Mountain Creek from any claims related to his own conduct and use of the property’s equipment facilities. On August 7, 2019, Mountain Creek filed an answer and cross-claims seeking defense and indemnification from Lavin based on the executed Rental and Release Agreements. Mountain Creek previously tendered the defense to Lavin on July 16, 2019.
Plaintiff’s counsel served a report from plaintiff’s liability expert, who concluded that Lavin violated the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -12, and the Skier’s Responsibility Code by failing to control his speed and course and by failing to yield to the skiers ahead of him. The expert opined that Lavin’s reckless conduct caused the accident. On March 27, 2020, Judge Stephan C. Hansbury entered an order granting Mountain Creek’s motion for summary judgment dismissing plaintiff’s claims that Mountain Creek was negligent. Lavin and plaintiff settled and filed a stipulation of dismissal with prejudice dated May 29, 2020.
After plaintiff’s settlement with Lavin, Mountain Creek filed its motion seeking reimbursement from Lavin for defending plaintiff’s allegations and indemnification from Lavin.[1] Lavin filed a cross-motion for summary judgment on September 1. That led to the order under review.
The judge concluded that, as a matter of law, the indemnification provisions were ambiguous and thus unenforceable to compel indemnification in favor of Mountain Creek for claims of its own negligence. The motion judge denied Lavin’s cross-motion for summary judgment in part and granted it in part. The motion judge requested the parties submit the detail and extent of defense costs incurred by Mountain Creek for costs incurred for which liability was only vicarious.
Mountain Creek’s attorneys stipulated that there were no fees or costs incurred from defending vicarious liability claims. On December 14, 2020, Judge Robert J. Brennan entered a consent order resolving all remaining issues as to all parties.
Mountain Creek raises the following arguments on appeal:
POINT I
STANDARD OF REVIEW-DE NOVO[.]
POINT II
THE [MOTION JUDGE] CORRECTLY RULED THAT THE TWO AGREEMENTS WERE NOT CONTRACTS OF ADHESION NOR WERE THEY CONTRARY TO PUBLIC POLICY.
POINT III
THE [MOTION JUDGE] ERRED IN FINDING THAT THE LANGUAGE IN THE AGREEMENTS SIGNED BY . . . LAVIN IS AMBIGUOUS AND INSUFFICIENT TO COMPEL . . . LAVIN TO INDEMNIFY AND DEFEND MOUNTAIN CREEK FOR CLAIMS OF ITS OWN NEGLIGENCE.
A. Special Status Of A Ski Operator.
B. The Two Agreements Were Unambiguous And Should Be Enforced.[2]
Mountain Creek raises the following points in reply, which we have renumbered:
POINT IV
. . . LAVIN’S REQUEST THAT THE APPELLATE DIVISION REVERSE THE [MOTION JUDGE]’S JUDGMENT THAT THE CONTRACTS WERE NOT UNCONSCIONABLE SHOULD BE REJECTED AS NO CROSS-APPEAL WAS FILED.
POINT V
THE AGREEMENTS IN QUESTION ARE ENFORCEABLE AND NOT UNCONSCIONABLE CONTRACTS OF ADHESION.
POINT VI
THE INDEMNIFICATION LANGUAGE IS SUFFICIENT AND EXPRESSLY PROVIDES FOR INDEMNIFICATION FOR CLAIMS ASSERTING MOUNTAIN CREEK’S OWN NEGLIGENCE.
We review the motion judge’s grant of a motion for summary judgment de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We apply the same standard as the motion judge and consider “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
I.
Mountain Creek contends the motion judge erred in ruling the indemnification provisions in the Release and Rental Agreements were ambiguous and unenforceable to compel Lavin to indemnify Mountain Creek for Mountain Creek’s own negligence. Mountain Creek also contends that it should be permitted to obtain indemnification from Lavin based on its special status as a ski area operator under the Ski Statute.
The judge’s role “in construing a contractual indemnity provision is the same as in construing any other part of a contract-it is to determine the intent of the parties.” Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). Generally, courts give contractual provisions “their plain and ordinary meaning.” Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep’t of Transp., 171 N.J. 378, 396 (2002)). “However, indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.'” Ibid. (quoting Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001)).
We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.” Azurak v. Corp. Prop. Invs., 347 N.J.Super. 516, 523 (App. Div. 2002). Azurak involved a contract between a janitorial company (PBS) and a shopping mall owner (the Mall) that contained the following provision:
Contractor [PBS] shall indemnify, defend and hold harmless each Indemnitee [the Mall] from and against any claim (including any claim brought by employees of Contractor), liability, damage or expense (including attorneys’ fees) that such Indemnitee may incur relating to, arising out of or existing by reason of (i) Contractor’s performance of this Agreement or the conditions created thereby (including the use, misuse or failure of any equipment used by Contractor or its subcontractors, servants or employees) or (ii) Contractor’s breach of this Agreement or the inadequate or improper performance of this Agreement by Contractor or its subcontractors, servants or employees.
[Azurak v. Corp. Prop. Invs., 175 N.J. 110, 111 (2003) (alterations in original).]
The plaintiff sued the Mall and PBS for injuries she sustained when she slipped on the Mall’s floor. Ibid. The trial judge granted the Mall’s summary judgment motion on the issue of indemnification based on the contract provision. Ibid. At trial, the jury determined “that plaintiff was 30% negligent; the Mall, 30%; and PBS, 40%.” Ibid. This court disagreed with the trial judge, finding that the indemnification provision did not encompass the Mall’s negligence because the provision’s language was neither explicit nor unequivocal as to claims of the Mall’s own negligence. Id. at 111-12. Our Court affirmed and held that “in order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnification agreement, we reiterate that the agreement must specifically reference the negligence or fault of the indemnitee.” Id. at 112-13.
Mountain Creek’s Release Agreement contained a provision that states:
INDEMNIFICATION. To the fullest extent permitted by law, I agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees asserted against Mountain Creek by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities WHETHER OR NOT MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.
One provision of the Rental Agreement states:
To the fullest extent permitted by law, I also agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees for personal injury, death or property damage against it by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities or the use of this equipment whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.
We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence. See Nester v. O’Donnell, 301 N.J.Super. 198, 210 (App. Div. 1997) (noting that a contract is ambiguous if it is “susceptible to at least two reasonable alternative interpretations” (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F.Supp. 275, 283 (D.N.J. 1992), aff’d, 993 F.2d 877 (3d Cir. 1993))).
An indemnitor may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence. That is the case here, as plaintiff’s complaint alleged Mountain Creek was separately negligent for failing to provide adequate instructions to skiers and a safe ski environment. A better-and likely enforceable-provision would explicitly state that the indemnitor indemnifies Mountain Creek for claims arising out of indemnitor’s conduct and for claims of Mountain Creek’s independent negligence.
The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence. Thus, the provisions are ambiguous and must be strictly construed against Mountain Creek. The same reasoning and standards apply with equal force to Mountain Creek’s defense costs. The provisions’ ambiguity precludes their enforcement against Lavin for recovery of the costs incurred by Mountain Creek for defending its own negligence claims.
We also conclude Mountain Creek’s argument that the Ski Statute supports enforcement of the indemnification provisions is without merit. While the Ski Act may emphasize the inherent risk that skiers assume when skiing, the Act provides separate duties to the ski operator, which include establishing and posting a system for identifying slopes and their difficulty, ensuring the availability of information to skiers, and removing hazards as soon as practicable. N.J.S.A. 5:13-3(a). The allegations in plaintiff’s complaint, which include failing to provide adequate signage and failing to instruct skiers properly, do not fall under the risks that “are essentially impractical or impossible for the ski area operator to eliminate” defined in the statute. N.J.S.A. 5:13-1(b). In fact, plaintiff’s complaint addressed the responsibilities of a ski area operator as prescribed by the Act. Requiring indemnification in favor of a ski resort for claims of its own independent negligence does not further the Ski Act’s purpose of allocating the inherent risk of skiing between the skier and ski resort. Moreover, the public policy of the Ski Act has no bearing on our interpretation of the indemnity provisions and our conclusion that the provisions are ambiguous.
II.
Lavin argues, on an alternative basis, that the Rental and Release Agreements are unconscionable contracts of adhesion. Lavin was not required to file a Notice of Cross-Appeal to preserve this argument for appeal because “appeals are taken from judgments, not opinions, and, without having filed a cross-appeal, a respondent can argue any point on the appeal to sustain the trial [judge’s] judgment.” Chimes v. Oritani Motor Hotel, Inc., 195 N.J.Super. 435, 443 (App. Div. 1984). Even if Lavin were required to file a cross-appeal, we will address the merits of his argument.
As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992). An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Vitale v. Schering-Plough Corp., 231 N.J. 234, 246 (2017) (quoting Rudbart, 127 N.J. at 355). “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.” Ibid.
We agree with the motion judge that “the Agreements at issue evidence characteristics of contracts of adhesion.” The Release and Rental Agreements were standardized form contracts that fit our Court’s definition as “take-it-or-leave-it” adhesion contracts. See ibid. All potential skiers at Mountain Creek’s resort are obligated to sign the Release Agreement, and there is little to no negotiating done before the agreements’ execution. However, an agreement found to be an adhesion contract may nevertheless be enforced if it is not unconscionable. See ibid.
When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) (quoting Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 367 (2016)). Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” Rudbart, 127 N.J. at 356. The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. See Rodriguez, 225 N.J. at 367. We consider these factors using a “sliding scale analysis.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).
The motion judge correctly relied on Stelluti in determining the agreements are not procedurally unconscionable. In Stelluti, the plaintiff was injured in a spinning class at a private fitness center and argued that the pre-injury waiver of liability she signed was unenforceable on unconscionability grounds. Id. at 291, 300. The Court found that although the pre-printed form was an adhesion contract, it was not procedurally unconscionable. Id. at 301-02. The Court reasoned the plaintiff was not in a position of unequal bargaining power, despite being a layperson and not being fully informed of the legal effect of an adhesion contract, when she had the ability to take “her business to another fitness club,” to find a form of exercise different than joining a private gym, or to contemplate the agreement for some time before joining the gym and using its equipment. Id. at 302.
Under the Court’s reasoning in Stelluti and applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.
As for the remaining factor-the impact on public interest-Mountain Creek points to the “strong public policy of protecting ski operators and allocating the risks and costs of inherently dangerous recreational activities” under the Ski Statute. The Act’s purpose
is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers, recognizing that the sport of skiing and other ski area activities involve risks which must be borne by those who engage in such activities and which are essentially impractical or impossible for the ski area operator to eliminate. It is, therefore, the purpose of this act to state those risks which the skier voluntarily assumes for which there can be no recovery.
We agree that the Agreements are not substantively unconscionable. The agreements do not contain terms that are so “harsh” or “one-sided” to render them unconscionable and unenforceable. See Muhammad v. Cnty. Bank of
Rehoboth Beach, Del., 189 N.J. 1, 15 (2006). Construing the indemnity provision against Mountain Creek due to its ambiguity, the provision requires that Lavin indemnify and defend Mountain Creek for claims arising out of Lavin’s conduct while using Mountain Creek’s equipment and facilities, even when Mountain Creek is partially at fault. This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators” and that our Legislature has enacted statutes to address the allocation of risk in those circumstances. 203 N.J. at 308. It would not be against public policy to require indemnification of Mountain Creek by Lavin for claims of vicarious liability due to Lavin’s reckless conduct; however, Mountain Creek stipulated that it did not incur any costs in defending claims of vicarious liability.
Affirmed.
———
Notes:
[1] Mountain Creek did not contribute towards plaintiff’s settlement with Lavin.
[2] To comport with our style conventions, we altered the capitalization of Mountain Creek’s Points A and B but omitted the alterations for readability.
———.
G-YQ06K3L262
Idaho Supreme Court blows the Idaho Skier Safety Act up.
Posted: January 15, 2024 Filed under: Assumption of the Risk, Idaho, Ski Area, Skiing / Snow Boarding | Tags: Idaho Responsibilities and Liabilities of Skiers and Ski Area Operators Act, Idaho Ski Area Liability Act, Idaho Supreme Court, Responsibilities and Liabilities of Skiers and Ski Area Operators Act, Ski Area Liability Act, Sun Valley, Sun Valley ski resort 3 CommentsSki Area Liability Act now becomes a road map for plaintiffs to sue ski areas
Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)
State: Idaho; Supreme Court of Idaho
Plaintiff: Laura Milus, in her individual capacity and as Guardian of the Minor Child Plaintiff, D.L.J., Plaintiff-Appellant
Defendant: Sun Valley Company, a Wyoming corporation
Plaintiff Claims: 1. Whether the district court erred in holding that the yellow padding on Snow Gun 16 constituted a warning implement.
2. Whether the district court erred in holding that Sun Valley had no duty to provide a conspicuous notice at the top of Lower River Run because no snow was being actively discharged from the snowmaking equipment.
3. Whether Mr. Milus assumed the risk of his ski accident under Idaho Code section 6-1106.
4. Whether Sun Valley is entitled to attorney fees on appeal.
Defendant Defenses: Responsibilities and Liabilities of Skiers and Ski Area Operators Act, (“Ski Area Liability Act“). See I.C. §§ 6-1101 through 6-1109
Holding: for the Plaintiff
Year: 2023
Summary
The Idaho Supreme Court just turned the Ski Area Liability Act into a plaintiff checklist for winning money from Idaho Resorts.
Facts
On November 30, 2019, Stewart Milus (“Mr. Milus”) was skiing at the Sun Valley Ski Resort when he collided with snowmaking equipment identified as Snow Gun 16, located in the middle of the Lower River Run on Bald Mountain. Mr. Milus died as a result of the collision. Snow Gun 16 was not actively discharging snow at the time of the collision.
Laura Milus (“Ms. Milus”) is the widow of Mr. Milus and D.L.J. is the stepson of Mr. Milus. Ms. Milus filed a wrongful death action on behalf of herself and D.L.J. (collectively referred to as “Milus”) against Sun Valley Company (“Sun Valley”), the operator of the Sun Valley Ski Resort. Milus alleged that Sun Valley breached its duties under Idaho Code section 6-1103(2) and (6). Idaho Code section 6-1103(2) imposes a duty on ski operators to mark with a “visible sign” or “warning implement” the location of snowmaking equipment on ski slopes and trails. Idaho Code section 6-1103(6) imposes a duty to place a conspicuous notice at or near the top of a trail or slope that is open to the public when snowgrooming or snowmaking operations are being undertaken.
Sun Valley filed a motion for summary judgment, arguing that it had satisfied its duty to warn of the snowmaking equipment under Idaho Code section 6-1103(2) because Snow Gun 16 was covered in yellow padding, which constituted a “warning implement.” Additionally, Sun Valley argued that it had no duty under Idaho Code section 6-1103(6) to place a notice at the top of the Lower River Run because no snowmaking was being actively undertaken on the day of the collision. Sun Valley further argued that, even if it did have such a duty, it complied with that duty by placing a sign that read “CAUTION SNOWMAKING IN PROGRESS” near what Sun Valley contends is the unloading area of the Lower River Run ski lift. Lastly, Sun Valley argued that, under Idaho Code section 6-1106, Mr. Milus had assumed the risk of injury while skiing.
The district court granted Sun Valley’s motion for summary judgment in part, holding that the yellow padding on Snow Gun 16 satisfied the duty under section 6-1103(2) to mark snowmaking equipment with a “warning implement.” The district court interpreted section 61103(6) as creating a duty only when snowmaking equipment is actively discharging snow and allowed discovery to take place regarding whether snow was being made on the day of the accident. Following discovery, the district court granted Sun Valley’s renewed motion for summary judgment in full regarding section 6-1103(6), holding that Sun Valley had no duty to place a notice at or near the top of the ski run because no active snowmaking was being undertaken when the accident occurred. The district court held that Milus was unable to establish that Sun Valley breached a duty owed to Mr. Milus and therefore Milus’s claim failed. Having resolved the motion on other grounds, the district court did not rule on Sun Valley’s assumption of risk defense.
Milus timely appealed the final judgment.
Analysis: making sense of the law based on these facts.
The Idaho Supreme Court took a very different approach to examining the Ski Area Liability Act. They said the statute creates a list of things a ski resort must do and if they fail to do them they are liable. They also stated that although the Ski Area Liability Act says a skier assumes the risk of skiing, that must mean a jury must examine the risks to see if the risk was assumed. Finally, the court looked at a prior decision and because it was not unanimous it was not valid anymore.
Let’s start with the change in how a prior decision is held by later courts.
Because the majority opinion in Northcutt is only a plurality holding on this issue, it is not binding precedent on this Court.
Stare Decisis —a Latin term that means “let the decision stand” or “to stand by things decided”—is a foundational concept in the American legal system. To put it simply, stare decisis holds that courts and judges should honor “precedent”—or the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable—and less seemingly random.
Stare Decisis is accepted and upheld by all courts across the United States, except for the Idaho Supreme Court. Nowhere have I read a decision that states that since the prior decision was less than unanimous it did not count. I would suspect that 90% of the decisions of any court are unanimous.
Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means “to stand by things decided” in Latin.
When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority. In Kimble v. Marvel Enterprises, the U.S. Supreme Court described the rationale behind stare decisis as “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.”
The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adhered to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. A court engages in vertical stare decisis when it applies precedent from a higher court. For example, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis. Or, additionally, if the Federal District Court for the Southern District of New York adhered to a previous ruling by the Second Circuit, that would be vertical stare decisis.
Although courts seldom overrule precedent, the U.S. Supreme Court in Seminole Tribe of Florida v. Florida explained that stare decisis is not an “inexorable command.” When prior decisions are “unworkable or are badly reasoned,” then the Supreme Court may not follow precedent, and this is “particularly true in constitutional cases.” For example, in deciding Brown v. Board of Education, the U.S. Supreme Court explicitly renounced Plessy v. Ferguson, thereby refusing to apply the doctrine of stare decisis.
This change by the Idaho Supreme Court is without precedence and will mean that there is no decision from a multi-panel court you can rely on unless that decision is unanimous. This will create havoc in the law in Idaho.
The next issue the court addressed is how sections of the Ski Area Liability Act are to be applied
See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.
Every other court has interpreted this statute to mean the ski area operator owes no duty to the skier. So, the Idaho Supreme Court interpreted the statute so that it creates a duty.
The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, we hold that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9). [emphasize added]
So, what was a safe harbor for ski areas, is now a list of ways they can be sued and stated as such by the court.
The question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” superseded by statute on other grounds as recognized in Therefore, we hold that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9). [emphasize added]
From protection to the standard of care of an ordinarily prudent person.
Next, the court looked at the statute affecting snow-making equipment and the definition of snow-making warning: warning implement. I.C. § 6-1103(2). In this case, Sun Valley had placed yellow padding around the snow-making equipment. As defined by the statute the lower court held that yellow padding was a warning implement. The Supreme Court did not see it that way and held that whether or not yellow padding constituted a warning implement is a question for the jury.
We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.
Now based on a broad definition in the statute, warning implement, every case must go to trial so the jury can decide what is a warning implement. This means the cost of insurance for ski areas is going to skyrocket because there is no way to win without a trial. That means larger settlements.
The next two issues were whether Sun Valley placed a warning notice concerning the snow-making equipment where a skier could see it. The court first held that the statute required a warning whether snow-making was going or not.
We are persuaded by Milus’s argument that subsection (6) creates a duty to warn skiers at the top of a ski slope or run of snowmaking equipment located further down the slope. Warning skiers of dangerous obstacles on the ski run or slope gives a skier the opportunity to choose a different ski run or to ski in a more cautious manner.
Then the court looked at whether or not Sun Valley had placed a warning and found it had not. Sun Valley supplied affidavits, pictures, and statements showing that the warning was there. The plaintiff supplied an affidavit stating there was no sign. The court went with the plaintiff.
As screwy as the prior decisions of the court have been, this one is over the top.
Sun Valley argues that, under the plain language of Idaho Code section 6-1106, Mr. Milus expressly assumed the risk and legal responsibility of an injury that occurred from his participation in the sport of skiing at Sun Valley Ski Resort, including any injury caused by snowmaking equipment. In response, Milus argues that the issue is not appropriately before this Court because it was not sufficiently addressed by the district court. Because the district court determined that Sun Valley had no duty or had fulfilled its duties under section 6-1103(2) and (6), the district court did not rule on the applicability of Idaho Code section 6-1106.
The court took the assumption of the risk defense off the table and stated a skier, skiing in Idaho only assumes the risk IF the ski area has met all of its requirements under the act.
For the reasons discussed previously in this opinion, there is a genuine issue of material fact concerning whether the snowmaking equipment was plainly visible or plainly marked in accordance with section 6-1103(2). Because the defense is only available if the equipment was marked in accordance with section 6-1103(2), a jury will have to determine whether the snowmaking equipment met the requirements of that section before Sun Valley may avail itself of this defense. Therefore, Sun Valley is not entitled to summary judgment under section 6-1106.
Again, every ski injury lawsuit is not going to trial. Only the trier of fact, the jury in most cases can determine if a skier assumed the risk causing his injuries.
So Now What?
Either the Idaho legislature has to re-write the Ski Area Liability Act or Idaho ski areas are going to pay. Once moderately priced lift tickets in Idaho are going to climb to cover the increased cost of signage and insurance.
Look for signs, permanent signs, at the tops of all lists and runs stating that skiers might encounter snow-making on a run. Look for larger warning signs and notices around all snow-making equipment, wherever it may be located. Sitting in the maintenance yard I would still pad it now.
Even more interesting, there are five justices on the Idaho Supreme Court and only four justices agreed with this decision. Does that mean it is non-binding?
Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.
What a mess.
What do you think? Leave a comment.
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Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)
Posted: January 15, 2024 Filed under: Assumption of the Risk, Idaho, Ski Area, Skiing / Snow Boarding | Tags: Idaho, Idaho Ski Safety Act, Idaho Supreme Court, Sun Valley, Sun Valley ski resort, Supreme Court Leave a commentLAURA MILUS, in her individual capacity and as Guardian of the Minor Child Plaintiff, D.L.J., Plaintiff-Appellant,
v.
SUN VALLEY COMPANY, a Wyoming corporation, Defendant-Respondent.
No. 49693-2022
Supreme Court of Idaho, Boise
December 19, 2023
Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Blaine County. Ned C. Williamson, District Judge.
The decision of the district court is reversed.
Rossman Law Group, PLLC, Boise, for Appellant.
Mathew G. Gunn argued.
Lake City Law Group PLLC, Coeur d’Alene, for Respondent.
Katharine B. Brereton argued.
ZAHN, JUSTICE
This case concerns the interpretation of the Responsibilities and Liabilities of Skiers and Ski Area Operators Act. Appellant Laura Milus brought a wrongful death action on behalf of herself and her minor child against Respondent Sun Valley Company after her husband’s death following his collision with snowmaking equipment while skiing at Sun Valley Ski Resort.
Milus alleged that Sun Valley Company had breached a duty arising under Idaho Code section 6-1103(2) and (6). The district court granted Sun Valley’s summary judgment motion, holding that Sun Valley (1) fulfilled its duty under Idaho Code section 6-1103(2) to mark snowmaking equipment by surrounding the snowmaking equipment with yellow padding, and (2) did not have a duty under Idaho Code section 6-1103(6) to place a conspicuous notice at the top of the ski trail because the snowmaking equipment was not actively discharging snow. We reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2019, Stewart Milus (“Mr. Milus”) was skiing at the Sun Valley Ski Resort when he collided with snowmaking equipment identified as Snow Gun 16, located in the middle of the Lower River Run on Bald Mountain. Mr. Milus died as a result of the collision. Snow Gun 16 was not actively discharging snow at the time of the collision.
Laura Milus (“Ms. Milus”) is the widow of Mr. Milus and D.L.J. is the stepson of Mr. Milus. Ms. Milus filed a wrongful death action on behalf of herself and D.L.J. (collectively referred to as “Milus”) against Sun Valley Company (“Sun Valley”), the operator of the Sun Valley Ski Resort. Milus alleged that Sun Valley breached its duties under Idaho Code section 6-1103(2) and (6). Idaho Code section 6-1103(2) imposes a duty on ski operators to mark with a “visible sign” or “warning implement” the location of snowmaking equipment on ski slopes and trails. Idaho Code section 6-1103(6) imposes a duty to place a conspicuous notice at or near the top of a trail or slope that is open to the public when snowgrooming or snowmaking operations are being undertaken.
Sun Valley filed a motion for summary judgment, arguing that it had satisfied its duty to warn of the snowmaking equipment under Idaho Code section 6-1103(2) because Snow Gun 16 was covered in yellow padding, which constituted a “warning implement.” Additionally, Sun Valley argued that it had no duty under Idaho Code section 6-1103(6) to place a notice at the top of the Lower River Run because no snowmaking was being actively undertaken on the day of the collision. Sun Valley further argued that, even if it did have such a duty, it complied with that duty by placing a sign that read “CAUTION SNOWMAKING IN PROGRESS” near what Sun Valley contends is the unloading area of the Lower River Run ski lift. Lastly, Sun Valley argued that, under Idaho Code section 6-1106, Mr. Milus had assumed the risk of injury while skiing.
The district court granted Sun Valley’s motion for summary judgment in part, holding that the yellow padding on Snow Gun 16 satisfied the duty under section 6-1103(2) to mark snowmaking equipment with a “warning implement.” The district court interpreted section 61103(6) as creating a duty only when snowmaking equipment is actively discharging snow and allowed discovery to take place regarding whether snow was being made on the day of the accident. Following discovery, the district court granted Sun Valley’s renewed motion for summary judgment in full regarding section 6-1103(6), holding that Sun Valley had no duty to place a notice at or near the top of the ski run because no active snowmaking was being undertaken when the accident occurred. The district court held that Milus was unable to establish that Sun Valley breached a duty owed to Mr. Milus and therefore Milus’s claim failed. Having resolved the motion on other grounds, the district court did not rule on Sun Valley’s assumption of risk defense.
Milus timely appealed the final judgment.
II. ISSUES ON APPEAL
1. Whether the district court erred in holding that the yellow padding on Snow Gun 16 constituted a warning implement.
2. Whether the district court erred in holding that Sun Valley had no duty to provide a conspicuous notice at the top of Lower River Run because no snow was being actively discharged from the snowmaking equipment.
3. Whether Mr. Milus assumed the risk of his ski accident under Idaho Code section 6-1106.
4. Whether Sun Valley is entitled to attorney fees on appeal.
III. STANDARD OF REVIEW
“The standard of review on appeal from an order granting summary judgment is the same standard that is used by the district court in ruling on the summary judgment motion.” Berglund v. Dix, 170 Idaho 378, 384, 511 P.3d 260, 266 (2022) (quoting Hoke v. Neyada, Inc., 161 Idaho 450, 453, 387 P.3d 118, 121 (2016)). The trial court “must grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a). “All disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party.” Manning v. Micron Tech., Inc., 170 Idaho 8, 12, 506 P.3d 244, 248 (2022). “A mere scintilla of evidence or only slight doubt as to the facts is not sufficient to create a genuine issue of material fact for the purposes of summary judgment.” Finholt v. Cresto, 143 Idaho 894, 897, 155 P.3d 695, 698 (2007) (quoting Jenkins v. Boise Cascade Corp., 141 Idaho 233, 238, 108 P.3d 380, 385 (2005)). “If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review.” Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012).
IV. ANALYSIS
A. Ski area operators are held to an ordinarily prudent person standard of care when undertaking the duties enumerated in Idaho Code section 6-1103(1) through (9).
Before addressing the district court’s order dismissing Milus’s claim, we must first discuss the duties in tort and the corresponding standards of care encompassed by Milus’s claim. Milus’s negligence claim is premised on duties arising under the Responsibilities and Liabilities of Skiers and Ski Area Operators Act (“Ski Area Liability Act”). See I.C. §§ 6-1101 through 6-1109.
Idaho Code section 6-1103 is titled, “Duties of ski area operators with respect to ski areas,” and contains ten subsections. Subsections (1) through (9) each state a specific duty that a ski area operator has with respect to its operation of the ski area. Subsection (10) differs from the first nine because, after stating a duty, it then describes exceptions to that duty:
Every ski area operator shall have the following duties with respect to their operation of a skiing area:
….
(10) Not to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include, but are not limited to, those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.
I.C. § 6-1103(10).
This Court interpreted section 6-1103(10) in Northcutt v. Sun Valley Company, 117 Idaho 351, 787 P.2d 1159 (1990). We held that the Ski Area Liability Act limits the liability of ski operators to only the enumerated duties in section 6-1103(1) through (9) when acting to eliminate, alter, control or lessen the inherent risks of skiing. See id. at 354-55, 787 P.2d at 1162-63. Significantly, we also held that the Act eliminates any standard of care for a ski operator when undertaking any of the duties found in subsections (1) through (9). See id. (“We construe the last clause of this portion of [Idaho Code section] 6-1103(10) to eliminate any standard of care for a ski area operator in carrying out any of the duties described in [Idaho Code sections] 6-1103 and 6-1104.”). In other words, even though ski operators owe a duty to perform certain tasks, there is no standard of care applicable to how they perform those tasks.
Sun Valley argues that, under this Court’s holding in Northcutt, if a ski area operator takes any step to fulfill the duties enumerated under Idaho Code section 6-1103(1) through (9), any potential plaintiffs are barred from recovery. Milus argues that this Court’s interpretation in Northcutt makes it nearly impossible to hold a ski area operator liable, in contradiction with the legislature’s intent to “define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury ….” I.C. § 6-1101. We agree with Milus and hold that the ordinarily prudent person standard applies to the duties set forth in Idaho Code section 6-1103(1) through (9).
A careful reading of Northcutt reveals that the standard of care portion of the decision failed to draw a majority of votes and therefore is only a plurality holding. Justice Bakes’s special concurrence in Part II of the Northcutt opinion explains his disagreement with the plurality’s holding eliminating any standard of care for the duties enumerated in subsections (1) through (9):
Had appellant Northcutt’s injury been proximately caused by an inaccurate description of the relative degree of difficulty of the slope, or had the sign not been sufficiently “conspicuous” so that it could not reasonably have been observed, and as a result Northcutt descended a slope which exceeded his ability to negotiate, then in my view there would have been a violation of the duty provided in [section] 61103(3) for which liability would be imposed under [Idaho Code section] 6-1107, and which would not have been excused by [Idaho Code section] 6-1103(10).
117 Idaho at 358, 787 P.2d at 1166 (Bakes, J., specially concurring) (emphasis added). Because the majority opinion in Northcutt is only a plurality holding on this issue, it is not binding precedent on this Court.
A close reading of the separate clauses contained in section 6-1103(10) demonstrates that it does not eliminate any standard of care for the duties set forth in subsections (1) through (9):
Every ski area operator shall have the following duties with respect to their operation of a skiing area:
….
(10) Not to intentionally or negligently cause injury to any person;
• provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code,
• the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include, but are not limited to, those described in section 6-1106, Idaho Code; and,
• that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.
See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.
The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, we hold that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9).
The question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” Brooks v. Logan, 127 Idaho 484, 490-91, 903 P.2d 73, 79-80 (1995) (citations omitted), superseded by statute on other grounds as recognized in Stoddart v. Pocatello Sch. Dist. #25, 149 Idaho 679, 239 P.3d 784 (2010). Therefore, we hold that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9).
B. Whether the yellow padding surrounding Snow Gun 16 constitutes a “warning implement” under Idaho Code section 6-1103(2) is a question of fact for the jury.
Having determined the applicable standard of care, we turn to the merits of Milus’s appeal. Milus filed a wrongful death action alleging Sun Valley breached its duty arising under Idaho Code section 6-1103(2). That section requires that ski area operators mark snowmaking equipment located on ski slopes and trails with a visible sign or warning implement. I.C. § 6-1103(2).
Sun Valley concedes that it did not mark Snow Gun 16 with a visible sign. Sun Valley argues that the yellow padding that surrounded Snow Gun 16 constitutes a warning implement under Idaho Code section 6-1103(2) Milus argued that whether the yellow padding constituted a warning implement was a question for the jury. The district court held that interpreting the phrase “warning implement” and whether it included the yellow padding was a question of statutory interpretation for the court and concluded that the yellow padding around Snow Gun 16 met the statutory requirement. We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.
The elements of a negligence action are “(1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage.” Black Canyon Racquetball Club, Inc. v. Idaho First Nat’l Bank, N.A., 119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991). The district court treated the question of whether the yellow padding constitutes a warning implement as an issue of duty. “The existence of a duty is a question of law for this Court.” Harrigfeld v. Hancock, 140 Idaho 134, 138, 90 P.3d 884, 888 (2004); see Udy v. Custer County, 136 Idaho 386, 389, 34 P.3d 1069, 1072 (2001).
However, whether the yellow padding effectively constitutes a “warning implement” is not an issue of duty, but rather one of breach. By enacting section 6-1103(2), the legislature imposed on Sun Valley a duty “[t]o mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations ….” In light of our holding that ski area operators are held to an “ordinarily prudent person” standard of care when performing the duties enumerated in subsections (1) through (9), it is a question of fact for the jury whether the yellow padding met the ordinarily prudent person standard of care to mark the gun with a visible sign or other warning implement. In this instance, breach is a question of fact for the jury. See Stephens v. Stearns, 106 Idaho 249, 256, 678 P.2d 41, 48 (1984) (holding that “it is a jury question as to whether [a] duty was breached”); Freeman v. Juker, 119 Idaho 555, 557, 808 P.2d 1300, 1302 (1991) (reversing the district court’s grant of summary judgment because whether the highway district had breached its duty by not maintaining the runaway escape ramp was a disputed question of fact); Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 530, 887 P.2d 1034, 1037 (1994) (concluding that summary judgment should have been denied solely because triable disputed factual issues existed whether a duty was breached).
“[I]f the evidence reveals no disputed issues of material fact, the trial court should grant the motion for summary judgment.” Duncan v. Long, 167 Idaho 853, 856, 477 P.3d 907, 910 (2020). Sun Valley put forth an Incident Report describing the accident and an Incident Photo Log with pictures of the yellow padding on Snow Gun 16 as evidence that the yellow padding constituted a warning implement. Milus presented a declaration by a ski area safety expert that snowmaking equipment should not be placed in the middle of a beginner level trail such as Lower River Run. There is a genuine issue of material fact whether Sun Valley breached its duty under section 6-1103(2) by wrapping Snow Gun 16 with yellow padding, and this question should go to a jury. Therefore, the district court’s grant of summary judgment is reversed.
C. Idaho Code section 6-1103(6) imposes a duty on ski area operators to place a conspicuous notice at or near the top of the trail or slope when snowmaking equipment is placed on the ski run or slope.
Milus claims Sun Valley also breached its duty under Idaho Code section 6-1103(6), which requires ski operators to place a “conspicuous notice” at or near the top of a ski trail or slope under certain circumstances:
Every ski area operator shall have the following duties with respect to their operation of a skiing area:
….
(6) To place, or cause to be placed, whenever snowgrooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope[.]
(Emphasis added.)
The district court held that the statutory language “snowmaking operations are being undertaken” is unambiguous and means “when snow is being made.” The district court concluded that the purpose of subsection (6) is to warn skiers of changed snow conditions or reduced visibility due to active snowmaking operations. Because no snow was actively being discharged from Snow Gun 16 on the day of Mr. Milus’s collision, the district court held that Sun Valley had no duty under section 6-1103(6) to place a notice at or near the top of the Lower River Run. Milus argues that the district court’s interpretation is too narrow because snowmaking equipment is dangerous both when actively shooting snow and when not actively shooting snow if the snowmaking equipment is in the middle of a beginner ski run.
“Statutory interpretation is a question of law over which this Court exercises free review.” Est. of Stahl v. Idaho State Tax Comm’n, 162 Idaho 558, 562, 401 P.3d 136, 140 (2017) (quoting Carrillo v. Boise Tire Co., 152 Idaho 741, 748, 274 P.3d 1256, 1263 (2012)). “Statutory interpretation begins with the literal language of the statute. If the statutory language is unambiguous, we need not engage in statutory construction and are free to apply the statute’s plain meaning.” Nordgaarden v. Kiebert, 171 Idaho 883, 890, 527 P.3d 486, 493 (2023) (alteration omitted) (quoting Callies v. O’Neal, 147 Idaho 841, 847, 216 P.3d 130, 136 (2009)). However, if the statutory language is ambiguous, this Court must “look to rules of construction for guidance and consider the reasonableness of proposed interpretations.” Id. (quoting City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho 579, 582, 416 P.3d 951, 954 (2018)). “Statutory language is ambiguous where reasonable minds might differ or be uncertain as to its meaning.” Id. (alteration omitted) (quoting H-K Contractors, Inc., 163 Idaho at 582, 416 P.3d at 954).
The phrase “snowmaking operations are being undertaken” is ambiguous. The phrase “snowmaking operations” is broad and encompasses more than the discharge or production of snow. Interpreting subsection (6) as only applying when the snow was being actively discharged would effectively eliminate the word “operations” from the statute. But the statute does not impose the duty when “snowmaking is being undertaken,” rather the duty applies when “snowmaking operations are being undertaken.” When interpreting a statute, this Court has an obligation to give effect to all the words and provisions so that none are rendered superfluous. Moser v. Rosauers Supermarkets, Inc., 165 Idaho 133, 136, 443 P.3d 147, 150 (2019).
We are persuaded by Milus’s argument that subsection (6) creates a duty to warn skiers at the top of a ski slope or run of snowmaking equipment located further down the slope. Warning skiers of dangerous obstacles on the ski run or slope gives a skier the opportunity to choose a different ski run or to ski in a more cautious manner. The district court reasoned that this interpretation of section 6-1103(6) would be redundant because it would require two warnings for snowmaking equipment-one on the equipment itself, as required by subsection (2), and one at the top of the ski run, as required by our interpretation of subsection (6). This is not redundant- both warnings serve a purpose. Providing a warning at or near the top of the ski run or trail gives a skier the opportunity to choose a different ski run or to ski more cautiously, while a warning on or near the snowmaking equipment itself informs and warns the skier of the actual location of the snowmaking equipment on the ski run.
D. There is a genuine issue of material fact whether Sun Valley placed a conspicuous notice at or near the top of the Lower River Run trail on the day of the accident.
In light of our holding that the duty to place a notice at or near the top of the ski run or trail under section 6-1103(6) applies even when snow is not being actively discharged from snowmaking equipment, the question now becomes whether there is a genuine issue of material fact as to whether Sun Valley complied with that duty.
In support of its motion for summary judgment, Sun Valley submitted evidence that it placed a sign that read “CAUTION SNOWMAKING IN PROGRESS” at what it claims was the top of the River Run lift on the day of the accident. Sun Valley also submitted a declaration by Peter Stearns, the Director of Mountain Operations of Sun Valley Ski Resort, stating that, at all times during the ski season, the CAUTION SNOWMAKING IN PROGRESS sign is posted at the top of each ski lift. Additionally, Sun Valley presented a photograph showing the sign located at what it claims is the unloading area of the Lower River Run lift and a ski trail map showing the location of the sign relative to the top of Lower River Run.
In opposition to the motion, Ms. Milus submitted a declaration stating she did not see the sign on the day the accident occurred. Milus argued that it was possible the sign had been knocked down on the day of the accident. Milus additionally argued that the picture of the sign presented by Sun Valley does not show that the sign was “at or near the top” of Lower River Run.
The district court concluded that Ms. Milus’s statement that she did not personally observe a sign against Mr. Stearns’s declaration that a sign was posted at the top of every ski lift all season at Sun Valley only created a scintilla of evidence that would not preclude summary judgment.
On appeal, Milus argues that the district court erred because the evidence submitted was sufficient to establish a genuine issue of material fact concerning whether Sun Valley breached its duty under section 6-1103(6). We agree with Milus and reverse the district court’s grant of summary judgment on this claim.
For the reasons previously discussed, Sun Valley is held to the standard of care of an ordinarily prudent person when complying with subsection (6). We hold there is a genuine issue of material fact as to whether the “CAUTION SNOWMAKING IN PROGRESS” sign met the applicable standard of care. Sun Valley did not present sufficient evidence that its sign is at or near the top of the Lower River Run. The picture presented by Sun Valley shows the loading area of the Lookout Express lift, not the top of the Lower River Run. The trail map presented by Sun Valley does not show the location of the sign or an accurate distance between the River Run ski lift unloading area and the top of the Lower River Run. Moreover, Ms. Milus testified in her deposition that she did not see the sign on the day of the accident. As a result, there is a genuine issue of material fact whether Sun Valley’s sign complied with the requirements of subsection (6). We reverse the district court’s grant of summary judgment on this issue.
E. There is a genuine issue of material fact whether Sun Valley may avail itself of the assumption of the risk defense provided in Idaho Code section 6-1106.
Sun Valley argues that, under the plain language of Idaho Code section 6-1106, Mr. Milus expressly assumed the risk and legal responsibility of an injury that occurred from his participation in the sport of skiing at Sun Valley Ski Resort, including any injury caused by snowmaking equipment. In response, Milus argues that the issue is not appropriately before this Court because it was not sufficiently addressed by the district court. Because the district court determined that Sun Valley had no duty or had fulfilled its duties under section 6-1103(2) and (6), the district court did not rule on the applicability of Idaho Code section 6-1106.
However, the district court’s failure to address the argument does not prevent us from considering it in this instance.
Idaho formerly required an appealing party to obtain an adverse ruling on an issue to preserve the issue for appeal. However, we have now rejected the adverse ruling requirement in favor of a broader standard where “[i]t is not mandatory for a party-appellant to obtain an adverse ruling from the trial court to preserve an issue for appellate review, so long as the party’s position on that issue was presented to the trial court with argument and authority and noticed for hearing.”
Rich v. Hepworth Holzer, LLP, 172 Idaho 696, 703 n.4, 535 P.3d 1069, 1076 n.4 (2023) (internal citations omitted). Both parties presented their positions to the district court with argument and authority. Therefore, Sun Valley’s assumption of risk argument was preserved for appeal. Additionally, because we apply the same standard as the district court on a motion for summary judgment, we can consider this argument in the first instance because “[w]e review a district court’s grant of summary judgment de novo, and apply the same standard used by the district court in ruling on the motion.” Mattson v. Idaho Dep’t of Health &Welfare, 172 Idaho 66, 529 P.3d 731, 737 (2023) (quoting Marek v. Hecla, Ltd., 161 Idaho 211, 214, 384 P.3d 975, 978 (2016)).
Sun Valley contends that, even if we reverse the district court’s grant of summary judgment on its duties under section 6-1103, it is still entitled to summary judgment under section 6-1106, which describes the duties of skiers and provides that Mr. Milus expressly assumed the risk of injury resulting from skiing, and specifically the risk of injury from snowmaking equipment that was clearly marked in accordance with the provisions of section 6-1103:
Each skier expressly assumes the risk of and legal responsibility for any injury to person or property that results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain; any movement of snow including, but not limited to, slides, sloughs or avalanches; any depths of snow, including tree wells, or any accumulations of snow, whether natural or man made, including snowmaking mounds; freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 61103, Idaho Code. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.
I.C. § 6-1106 (emphasis added). Sun Valley argues that the plain language of section 6-1106 bars recovery by Milus as a matter of law because the snowmaking equipment that Mr. Milus collided with was plainly visible or plainly marked in accordance with Idaho Code section 6-1103.
For the reasons discussed previously in this opinion, there is a genuine issue of material fact concerning whether the snowmaking equipment was plainly visible or plainly marked in accordance with section 6-1103(2). Because the defense is only available if the equipment was marked in accordance with section 6-1103(2), a jury will have to determine whether the snowmaking equipment met the requirements of that section before Sun Valley may avail itself of this defense. Therefore, Sun Valley is not entitled to summary judgment under section 6-1106.
F. Sun Valley is not entitled to attorney fees.
Sun Valley requests attorney fees on appeal pursuant to Idaho Code section 12-121, which permits the prevailing party to recover its reasonable attorney fees if the Court finds that the nonprevailing party brought, defended, or pursued the case frivolously, unreasonably, or without foundation. However, Sun Valley is not the prevailing party on appeal and, therefore, is not entitled to an award of attorney fees under the statute.
V. CONCLUSION
We reverse the district court’s grant of summary judgment in favor of Sun Valley and remand for further proceedings consistent with this opinion. As the prevailing party, Milus is awarded costs on appeal pursuant to Idaho Appellate Rule 40.
Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.
Snowmobiles are an inherent risk on ski slopes in California.
Posted: September 25, 2023 Filed under: Assumption of the Risk, California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Collision, Inherent Risk, LLC., Mammoth Mountain Ski Area, Release, Snowmobile, Waiver Leave a commentAppellate court decision finds release stopped claims & plaintiff assumed the risk of hitting a stopped snowmobile on the slope.
Citation: Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)
State: California, California Court of Appeals, Third District, Mono
Plaintiff: JOHN VALTER
Defendant: MAMMOTH MOUNTAIN SKI AREA, LLC
Plaintiff Claims: improperly drove the snowmobile up the mountain & defendant was grossly negligent
Defendant Defenses: doctrine of primary assumption of risk, and assumed the risk of colliding with a snowmobile when he signed Mammoth’s liability waiver.
Holding: For Defendant
Year: 2023
Summary
A season pass holder at Mammoth ski area was injured when he hit a snowmobile that was parked on the slopes. The California appellate court held the season pass stopped the plaintiff’s claims and also found that a snowmobile on the slopes is an inherent risk of skiing.
Facts
Mammoth is a ski resort in Mammoth Lakes. As is common in the ski industry, it uses snowmobiles in its operations and has taken certain steps to reduce the chance of collisions with guests. It has, for instance, created a snowmobile training program and developed training materials that, among other things, require its snowmobile drivers to limit their speed in congested areas, to ride on the side of the run providing the best visibility, to yield to guests, and to use flags and headlights when driving in public areas. It has additionally posted signs at the top of ski lifts warning that snowmobiles “may be encountered at any time,” included the same warning in its trail map, and, in its liability waiver for season-pass holders, required season-pass holders to acknowledge that “Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”
Mammoth has also established preferred routes for its snowmobile drivers with the intent to limit collision risks. One of these routes formerly covered two ski runs called St. Moritz and Stump Alley. Stump Alley is a larger, popular run that ends at the base of the resort; St. Moritz is a smaller run that branches off Stump Alley. To provide a rough visualization of these runs, think of a rotated lowercase y-as in, A-with the longer line representing Stump Alley and the shorter line representing St. Moritz. For the designated route covering these runs, snowmobile drivers were instructed to stay to their left when going up St. Moritz; then, where St. Moritz meets Stump Alley, to make a slight right turn onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, to travel across Stump Alley and then stay to their left when going up Stump Alley. A map of Mammoth’s preferred snowmobile routes shows the St. Moritz-to-Stump Alley route. As depicted in the map, the route crosses Stump Alley at an upward diagonal from right to left and then goes up the left of Stump Alley. Mammoth began developing this route at some time before 1989 and used it until late 2016.
In early 2016, one of Mammoth’s lift maintenance employees, Joshua Peters, drove his snowmobile up St. Moritz on his way to a lift maintenance station. Peters- who had completed Mammoth’s snowmobile safety training-drove up St. Moritz at about 15 miles per hour, slowed to about five miles per hour before exiting St. Moritz, and then continued at this speed on Stump Alley as he looked to cut across the run. Valter, an expert skier, was skiing down the left side of Stump Alley at the same time and began decelerating from about 30 miles per hour to make a left turn onto St. Moritz. Peters said he saw Valter from a distance of about 80 to 120 feet, slowed further, and then stopped. But Valter never saw Peters. Valter made three or four controlled turns a after Peters first saw him, and he then collided with Peters’s snowmobile on Stump Alley. Valter suffered significant injuries as a result.
Two other witnesses saw the accident. One was another Mammoth employee who was driving a snowmobile behind Peters. He afterward told an officer that Peters had stopped and that Valter was looking over his left shoulder just before the collision- though Valter told the same officer that he never looked over his shoulder. Another witness saw the accident from above on a ski lift. In a written statement, he said the snowmobile was driving slowly up Stump Alley diagonally from “skier[‘]s left to right”-as in, from the left side to the right side of the run from the perspective of a skier going downhill. He added that the snowmobile had slowed almost to a stop at the time of impact. But, he wrote, it was “almost as though [the] skier never saw [the] snow mobile”; the skier traveled in a “controlled line but it was directly into [the] snow mobile.”
Several photographs taken immediately after the collision show the snowmobile’s appearance and position at the time of the accident. The snowmobile is dark blue and flies an orange flag at its back. It is not obstructed by any apparent obstacles. Another photograph taken after the accident, which the parties marked up during Peters’s deposition, shows Peters’s path from St. Moritz to Stump Alley. Both parties accept that the photograph accurately depicts his path. The photograph (together with other photographs of the scene) shows Peters entered Stump Alley from the far left of St. Moritz near a sign describing different runs and then headed up Stump Alley at a sharp diagonal. According to a diagram that Mammoth personnel made after the accident, the distance between this sign and Peters’s snowmobile at the place of the collision was 44 feet.
Before the accident, and as a condition of holding a season pass, Valter signed a liability waiver. In the waiver, Valter agreed he “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles,” “agree[d] that these risks and dangers are necessary to the sports of Skiing and Snowboarding,” “AGREE[D] TO EXPRESSLY ASSUME ANY AND ALL RISK OF INJURY OR DEATH which might be associated with [his] participation in the SPORTS,” and “AGREE[D] NEVER TO SUE, AND TO RELEASE FROM LIABILITY, Mammoth . . . for any . . . injury . . . which arises in whole or in part out of [his] . . . participation in the SPORTS . . ., including without limitation those claims based on MAMMOTH’S alleged or actual NEGLIGENCE ….”
Analysis: making sense of the law based on these facts.
The defendant was a season pass holder at Mammoth Mountain ski area. In obtaining the season pass, the plaintiff signed a release.
As a condition of receiving a season pass for Mammoth, Valter expressly agreed to assume the risk of Mammoth’s negligence. In the context of sports, including for skiing, courts have consistently found these types of agreements are valid when they excuse liability for ordinary negligence-that is, for “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.”
Releases in California stop all claims for ordinary or simple negligence. In order to defeat a release, the plaintiff must prove that the defendant was grossly negligent.
… Valter’s signing of the liability waiver bars him from suing Mammoth for ordinary negligence-which Valter does not dispute. We further conclude Valter cannot show Mammoth’s conduct rose to the level of gross negligence. The undisputed facts show, among other things, that snowmobiles are common at ski resorts, that Mammoth posted signs warning guests that snowmobiles could be encountered at any time, that Valter expressly acknowledged the risk of colliding with a snowmobile and agreed to assume the risk of Mammoth’s negligence, that Mammoth trained Peters on snowmobile safety, that Peters drove his snowmobile slowly and stopped or almost stopped before the collision, that his snowmobile flew an orange flag, and that, in the photographs taken immediately after the accident, no obstacles are shown obstructing a downhill skier’s ability to see Peters and his snowmobile in the area of the collision.
The plaintiff attempted to argue that several of the actions that Mammoth did were gross negligence, however, the court did not accept any of those arguments.
Although Valter argues Mammoth’s conduct here could be found grossly negligent for several reasons, we find none of his arguments persuasive. He first contends Mammoth could be found grossly negligent because the presence of snowmobiles is not an inherent part of skiing. But whether or not the presence of snowmobiles is an inherent part of skiing, we are at least satisfied that no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles. The undisputed facts, again, show that snowmobiles are common at ski resorts. Mammoth’s former health and safety manager, for instance, explained that in the ski industry, snowmobiles are used “on a daily basis for lift maintenance, lift operations, and for ski patrol emergency transport.” Valter, who said he had skied about a 1,000 days in his lifetime on various mountains, never alleged differently. He instead acknowledged he commonly saw snowmobiles on ski runs that were open to the public. The undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety. Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response. Again, Valter never alleged differently and, on appeal, states he does not disagree “that snowmobiles are very useful and efficient in the operation of a ski resort.” On these undisputed facts, we cannot say that Mammoth’s decision to use snowmobiles evidenced “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct,'” ‘” even though, as Valter asserts elsewhere in his brief, snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers.
What is significant here is another court, based on the plaintiff’s facts has held that the plaintiff failed to prove enough issues to prove gross negligence. In the past, the plaintiff simply had to claim gross negligence, and the courts would throw out the release and proceed to trial. Nowadays, the courts are tired of every claim arguing gross negligence and taking it upon themselves to find the facts the plaintiff is arguing cannot rise to the level of gross negligence.
On top of that, the arguments set forth by the court can now be used by other defendants to prove they were not grossly negligent. Those arguments are:
- The presence of snowmobiles is not an inherent part of skiing.
- no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles
- undisputed facts, again, show that snowmobiles are common at ski resorts
- undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety
- Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response
The next section of the decision is where the plaintiff stretched the facts to far. The plaintiff argued that Mammoth never told skiers where the designated snowmobile routes were. However, the court found the routes were not as important as all the warnings that Mammoth put in front of its guests about snowmobiles.
Second, Valter suggests Mammoth could be found grossly negligent because it never shared its designated snowmobile routes with its guests. But Mammoth repeatedly cautioned guests about snowmobiles and explained they could be encountered at any time. Signs at the top of the lifts at Mammoth, for instance, explain that snowmobiles “may be encountered at any time.” The Mammoth trail map says the same: Snowmobiles “may be encountered at any time.” And the liability waiver that Valter signed further warned about the presence of snowmobiles and the risk of collisions, stating that Valter “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”
And failing to share the routes with the skiers at Mammoth did not rise to the level of gross negligence.
But we conclude no reasonable person could find Mammoth grossly negligent simply because it failed to share these maps-a practice that no ski resort, as far as Valter has shown, has adopted.
The arguments then descended into arguments about distance. Was the snowmobile, which was stopped at the time, off the route, not known by the plaintiff and if so by inches or yards.
Third, Valter argues Mammoth could be found grossly negligent because Peters failed to follow Mammoth’s preferred snowmobile route for St. Moritz. According to the preferred snowmobile route, again, Peters should have stayed to his left when going up St. Moritz; then, where St. Moritz meets Stump Alley, made a slight right onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, traveled across Stump Alley and up the left side of Stump Alley. But according to Valter, Peters instead “drove up near the middle of St. Moritz” (rather than the left), “made a looping right turn near the top of St. Moritz at its intersection with Stump Alley” (rather than a slight right), and “intend[ed] to drive up the right side of Stump Alley” (rather than drive across Stump Alley and up the left side of the run). As a result, Valter asserts, Peters was “several yards from where he was supposed to be before trying to cross Stump Alley” at the time of the accident.
However, the court found this really did not matter because the plaintiff could not show his statements were valid. There was nothing in the evidence that showed the plaintiff’s allegations were true. “But much of Valter’s alleged facts lack evidentiary support.“ Then the court held that even if the snowmobile driver was “off route” it did not matter because the plaintiff could not prove that being off route made any difference.
The plaintiff argued Mammoth was grossly negligent for designating the snowmobile route in question as being grossly negligent.
He reasons that Mammoth should have chosen a different route because it knew Stump Alley was a popular run, knew skiers “coming down Stump Alley ‘hug’ the tree line on the left in order to turn left onto St. Moritz,” acknowledged that these trees would have grown substantially since the snowmobile routes were initially established around 1989, knew snowmobiles on St. Moritz pose a potential danger to skiers, knew other routes were available, and never conducted any safety, feasibility, or visibility studies for the route. He adds that Mammoth’s new snowmobile routes no longer use St. Moritz (though he says the “change was not made in response to Valter’s injury”) and that Mammoth now uses snowmobile corridors that are marked off with stakes and ropes.
The court rejected that argument on two different grounds. The first was the ski area still inundated its guests with warnings about snowmobiles being on the runs. The second was the plaintiff could not prove that selecting that run for a snowmobile route was done incorrectly, without planning or in any way increased the risk to skiers.
Finally, the plaintiff was shot down because the stretches in the facts went too far for the court. “But Valter’s allegations cannot be squared with the undisputed facts.”
First, in his own telling, he was traveling at a speed less than 30 miles per hour, as he was decelerating from 30 miles per hour at the time of the collision. And second, according to Peters’s undisputed testimony, Valter managed to make three or four controlled turns after Peters saw him- demonstrating that the issue is more that Valter failed to notice Peters than that he lacked time to avoid Peters. At any rate, because Valter raised this argument for the first time in his reply brief, and without good cause, we find the argument forfeited.
The court said the arguments made by the plaintiff, individually or as a group failed to show any gross negligence on the part of the defendant ski area.
So Now What?
The definition of inherent, is changing either by statute or by law. California has no ski area safety statute. However, the courts have expanded the definition of inherent risk to include snowcats, Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344
and now snowmobiles. California now joins Colorado in finding a parked snowmobile is an inherent risk of skiing, see A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.
Inherent risk used to be those risks that were part and parcel of the activity, without the activity of man. Now, in skiing at least by statute or law, the inherent risks of skiing have expanded. You go skiing or boarding you assume the risk of hitting something on the slopes that is either natural or manmade.
For other articles about the inherent risks see:
Inherent Risk is the part of any sport and is assumed by participants when undertaking the activity.
Plaintiff cannot assume a risk which is not inherent in the activity or which he does not know.
What do you think? Leave a comment.
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
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Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)
Posted: September 25, 2023 Filed under: Assumption of the Risk, Colorado, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Collision, Inherent Risk Release, Mammoth Mountain Ski Area, ski area, skiing, Snowmobile, Waiver Leave a commentTo Read an analysis of this case see:
Snowmobiles are an inherent risk on ski slopes in California.
Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)
JOHN VALTER, Plaintiff and Appellant,
v.
MAMMOTH MOUNTAIN SKI AREA, LLC, Defendant and Respondent.
C096036
California Court of Appeals, Third District, Mono
September 18, 2023
NOT TO BE PUBLISHED
Super. Ct. No. CV170111
BOULWARE EURIE, J.
Mammoth Mountain Ski Area, LLC, is a ski resort that, like many ski resorts, uses snowmobiles in its operations. John Valter sued Mammoth after colliding with one of these snowmobiles while skiing. He alleged that a Mammoth employee improperly drove the snowmobile up the mountain and then stopped in his path. On Mammoth’s motion for summary judgment, the trial court found his claims failed as a matter of law for two reasons. First, it found Valter’s claims barred under the doctrine of primary assumption of risk, reasoning that a collision with a plainly visible snowmobile is a risk inherent in skiing and that Mammoth had not increased this risk. Second, it found Valter’s claims barred because he expressly assumed the risk of colliding with a snowmobile when he signed Mammoth’s liability waiver. In the waiver, Valter acknowledged the risks of colliding with snowmobiles and excused Mammoth for liability for its negligence.
On appeal, Valter contends neither ground for granting summary judgment is valid. Starting with the doctrine of primary assumption of risk, he asserts the doctrine is inapplicable because the risk of colliding with a snowmobile is not a risk inherent in skiing and, even it were, Mammoth improperly increased this risk. Turning to express assumption of risk, he asserts Mammoth’s conduct was grossly negligent and so exceeded the scope of the liability waiver. We limit our discussion to Valter’s second argument. Because we conclude the trial court properly granted summary judgment on the ground of express assumption of risk, we affirm on that basis.
BACKGROUND
I
Factual Background
Mammoth is a ski resort in Mammoth Lakes. As is common in the ski industry, it uses snowmobiles in its operations and has taken certain steps to reduce the chance of collisions with guests. It has, for instance, created a snowmobile training program and developed training materials that, among other things, require its snowmobile drivers to limit their speed in congested areas, to ride on the side of the run providing the best visibility, to yield to guests, and to use flags and headlights when driving in public areas. It has additionally posted signs at the top of ski lifts warning that snowmobiles “may be encountered at any time,” included the same warning in its trail map, and, in its liability waiver for season-pass holders, required season-pass holders to acknowledge that “Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”
Mammoth has also established preferred routes for its snowmobile drivers with the intent to limit collision risks. One of these routes formerly covered two ski runs called St. Moritz and Stump Alley. Stump Alley is a larger, popular run that ends at the base of the resort; St. Moritz is a smaller run that branches off Stump Alley. To provide a rough visualization of these runs, think of a rotated lowercase y-as in, A-with the longer line representing Stump Alley and the shorter line representing St. Moritz. For the designated route covering these runs, snowmobile drivers were instructed to stay to their left when going up St. Moritz; then, where St. Moritz meets Stump Alley, to make a slight right turn onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, to travel across Stump Alley and then stay to their left when going up Stump Alley. A map of Mammoth’s preferred snowmobile routes shows the St. Moritz-to-Stump Alley route. As depicted in the map, the route crosses Stump Alley at an upward diagonal from right to left and then goes up the left of Stump Alley. Mammoth began developing this route at some time before 1989 and used it until late 2016.
In early 2016, one of Mammoth’s lift maintenance employees, Joshua Peters, drove his snowmobile up St. Moritz on his way to a lift maintenance station. Peters- who had completed Mammoth’s snowmobile safety training-drove up St. Moritz at about 15 miles per hour, slowed to about five miles per hour before exiting St. Moritz, and then continued at this speed on Stump Alley as he looked to cut across the run. Valter, an expert skier, was skiing down the left side of Stump Alley at the same time and began decelerating from about 30 miles per hour to make a left turn onto St. Moritz. Peters said he saw Valter from a distance of about 80 to 120 feet, slowed further, and then stopped. But Valter never saw Peters. Valter made three or four controlled turns a after Peters first saw him, and he then collided with Peters’s snowmobile on Stump Alley. Valter suffered significant injuries as a result.
Two other witnesses saw the accident. One was another Mammoth employee who was driving a snowmobile behind Peters. He afterward told an officer that Peters had stopped and that Valter was looking over his left shoulder just before the collision- though Valter told the same officer that he never looked over his shoulder. Another witness saw the accident from above on a ski lift. In a written statement, he said the snowmobile was driving slowly up Stump Alley diagonally from “skier[‘]s left to right”-as in, from the left side to the right side of the run from the perspective of a skier going downhill. He added that the snowmobile had slowed almost to a stop at the time of impact. But, he wrote, it was “almost as though [the] skier never saw [the] snow mobile”; the skier traveled in a “controlled line but it was directly into [the] snow mobile.”
Several photographs taken immediately after the collision show the snowmobile’s appearance and position at the time of the accident. The snowmobile is dark blue and flies an orange flag at its back. It is not obstructed by any apparent obstacles. Another photograph taken after the accident, which the parties marked up during Peters’s deposition, shows Peters’s path from St. Moritz to Stump Alley. Both parties accept that the photograph accurately depicts his path. The photograph (together with other photographs of the scene) shows Peters entered Stump Alley from the far left of St. Moritz near a sign describing different runs and then headed up Stump Alley at a sharp diagonal. According to a diagram that Mammoth personnel made after the accident, the distance between this sign and Peters’s snowmobile at the place of the collision was 44 feet.
Before the accident, and as a condition of holding a season pass, Valter signed a liability waiver. In the waiver, Valter agreed he “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles,” “agree[d] that these risks and dangers are necessary to the sports of Skiing and Snowboarding,” “AGREE[D] TO EXPRESSLY ASSUME ANY AND ALL RISK OF INJURY OR DEATH which might be associated with [his] participation in the SPORTS,” and “AGREE[D] NEVER TO SUE, AND TO RELEASE FROM LIABILITY, Mammoth . . . for any . . . injury . . . which arises in whole or in part out of [his] . . . participation in the SPORTS . . ., including without limitation those claims based on MAMMOTH’S alleged or actual NEGLIGENCE ….”
II
Procedural Background
Following the accident, Valter sued Mammoth for premises liability and negligence, alleging that Mammoth failed to maintain the ski area in a safe condition and failed to provide adequate warning of the alleged unsafe condition. He reasoned that Peters improperly stopped his snowmobile in front of his path without providing adequate warning.
Mammoth later filed a motion for summary judgment, asserting that Valter’s claims failed as a matter of law for two reasons. It contended his claims were barred under the doctrine of primary assumption of risk because a potential collision with a snowmobile is a risk inherent in skiing and it had not unreasonably increased this risk. It also asserted his claims were barred because, in signing the liability waiver, he had expressly agreed to assume the risk of its negligence. Although Mammoth acknowledged that the waiver would not cover its gross negligence, it argued that Valter could not prove gross negligence here.
Valter opposed the motion. To Mammoth’s argument concerning primary assumption of risk, he contended snowmobiles have nothing to do with skiing and, even if they did, Mammoth increased the risk inherent in skiing in two ways: first, because Mammoth selected a dangerous snowmobile route, as skiers traveling down the popular Stump Alley run are unable to see snowmobiles traveling up St. Moritz and lack adequate warning of snowmobiles; and second, because Peters dangerously deviated from the snowmobile route when he traveled up the center of St. Moritz and up the right (skier’s left) of Stump Alley. To Mammoth’s argument concerning express assumption of risk, Valter contended Mammoth’s conduct rose to the level of gross negligence and so fell outside the scope of the liability waiver. He reasoned that Mammoth was grossly negligent because it failed to provide adequate warnings about snowmobiles, it chose a dangerous snowmobile route, and Peters dangerously deviated from this route.
The trial court granted Mammoth’s motion, agreeing with both of Mammoth’s arguments. Starting with the facts, the court found the undisputed facts showed Mammoth warned skiers about the potential risk of colliding with snowmobiles, adopted a snowmobile safety manual, and required training for employees operating snowmobiles. The court further, among other things, found the undisputed facts showed Peters slowed and then stopped on Stump Alley after exiting St. Moritz, Peters’s snowmobile was in plain view before the collision on a clear and sunny day, snowmobiles are regularly used at ski resorts, and Valter had expressly agreed to assume the risk of colliding with snowmobiles when he signed a liability waiver for his season pass.
The court then turned to Mammoth’s arguments. Beginning with Mammoth’s argument grounded on primary assumption of risk, it found a collision with a plainly visible snowmobile is a risk inherent in skiing, adding “that a snowmobile is a commonly used and essential piece of equipment necessary for the practical operation of a ski mountain.” It further found Mammoth had not increased this inherent risk. While it accepted that Peters might have deviated from the snowmobile route by several feet, it found this detail immaterial and noted that Peters had attempted to yield to downhill skier traffic on Stump Alley, slowed to five miles per hour as he looked for a safe opportunity to cross, and stopped in a plainly visible location before the collision. Turning to Mammoth’s argument premised on express assumption of risk, the court found Valter expressly excused Mammoth for liability for its ordinary negligence. Although it found the waiver would not excuse Mammoth for liability for gross negligence, it concluded Valter could not show gross negligence here.
After the court entered judgment in Mammoth’s favor, Valter timely appealed.
DISCUSSION
I
Standard of Review
A trial court may grant a motion for summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) To meet its burden on summary judgment, a moving defendant must show either that one or more elements of the plaintiff’s causes of action cannot be established or that there is a complete defense to the plaintiff’s case. (Id., subd. (p)(2).) If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists. (Ibid.) A factual issue is material if it could make a difference in the disposition of the motion. (Cal. Rules of Court, rule 3.1350(a)(2).) And a factual issue is triable if “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)
” ‘” ‘We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'” ‘” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.) We also” ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.'” (Ibid.)
II
Express Assumption of Risk
Valter contends neither of the trial court’s grounds for granting Mammoth’s motion for summary judgment are valid. He first asserts the trial court wrongly granted summary judgment on the ground that the risk of colliding with a snowmobile is an inherent risk of skiing. He reasons that the risk of a snowmobile collision is not an inherent risk of skiing and, even if it were, Mammoth’s misconduct increased this risk. He further asserts the court wrongly granted summary judgment on the additional ground that he expressly agreed to assume the risk of Mammoth’s negligence, reasoning that Mammoth’s conduct was grossly negligent and so exceeded the scope of the agreement. Because we conclude no reasonable person could find Mammoth’s conduct rose to the level of gross negligence, we reject Valter’s challenge to the latter ground for granting summary judgment and affirm on that basis.
As a condition of receiving a season pass for Mammoth, Valter expressly agreed to assume the risk of Mammoth’s negligence. In the context of sports, including for skiing, courts have consistently found these types of agreements are valid when they excuse liability for ordinary negligence-that is, for “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754, 759 (City of Santa Barbara) [“a number of cases have upheld agreements insofar as they release liability for future ordinary negligence in the context of sports and recreation programs”]; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [finding Mammoth’s liability waiver valid].) But our Supreme Court has explained that these agreements generally cannot excuse liability for gross negligence-that is, for conduct evidencing “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct.'” ‘” (City of Santa Barbara, at p. 754.)
Applying these principles here, we conclude Valter’s signing of the liability waiver bars him from suing Mammoth for ordinary negligence-which Valter does not dispute. We further conclude Valter cannot show Mammoth’s conduct rose to the level of gross negligence. The undisputed facts show, among other things, that snowmobiles are common at ski resorts, that Mammoth posted signs warning guests that snowmobiles could be encountered at any time, that Valter expressly acknowledged the risk of colliding with a snowmobile and agreed to assume the risk of Mammoth’s negligence, that Mammoth trained Peters on snowmobile safety, that Peters drove his snowmobile slowly and stopped or almost stopped before the collision, that his snowmobile flew an orange flag, and that, in the photographs taken immediately after the accident, no obstacles are shown obstructing a downhill skier’s ability to see Peters and his snowmobile in the area of the collision. Considering the undisputed facts here, we conclude that Mammoth met its burden to show that it is entitled to judgment on the ground of express assumption of risk. We also conclude that Valter has failed to raise any triable issue of material fact to preclude summary judgment. (See Joshi v. Fitness Internat., LLC (2022) 80 Cal.App.5th 814, 828 [“although the existence of gross negligence is a matter generally for the trier of fact [citation], it may be determined as a matter of law on summary judgment in an appropriate case”].)
Although Valter argues Mammoth’s conduct here could be found grossly negligent for several reasons, we find none of his arguments persuasive. He first contends Mammoth could be found grossly negligent because the presence of snowmobiles is not an inherent part of skiing. But whether or not the presence of snowmobiles is an inherent part of skiing, we are at least satisfied that no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles. The undisputed facts, again, show that snowmobiles are common at ski resorts. Mammoth’s former health and safety manager, for instance, explained that in the ski industry, snowmobiles are used “on a daily basis for lift maintenance, lift operations, and for ski patrol emergency transport.” Valter, who said he had skied about a 1,000 days in his lifetime on various mountains, never alleged differently. He instead acknowledged he commonly saw snowmobiles on ski runs that were open to the public. The undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety. Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response. Again, Valter never alleged differently and, on appeal, states he does not disagree “that snowmobiles are very useful and efficient in the operation of a ski resort.” On these undisputed facts, we cannot say that Mammoth’s decision to use snowmobiles evidenced “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct,'” ‘” even though, as Valter asserts elsewhere in his brief, snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers. (City of Santa Barbara, supra, 41 Cal.4th at p. 754.)
Second, Valter suggests Mammoth could be found grossly negligent because it never shared its designated snowmobile routes with its guests. But Mammoth repeatedly cautioned guests about snowmobiles and explained they could be encountered at any time. Signs at the top of the lifts at Mammoth, for instance, explain that snowmobiles “may be encountered at any time.” The Mammoth trail map says the same: Snowmobiles “may be encountered at any time.” And the liability waiver that Valter signed further warned about the presence of snowmobiles and the risk of collisions, stating that Valter “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.” Even Valter agreed “Mammoth provide[d] [him] a warning that [he] may encounter snowmobiles,” though he said Mammoth never mentioned moving snowmobiles. Considering the undisputed facts on this topic, we accept that Valter would have had more information about the potential for encountering snowmobiles had Mammoth shared its snowmobile routes with its guests. But we conclude no reasonable person could find Mammoth grossly negligent simply because it failed to share these maps-a practice that no ski resort, as far as Valter has shown, has adopted. (See Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1028-1030 [no gross negligence as a matter of law, in a case involving a student’s concussion playing football, even though the school district “could have done more to educate students and family” about concussions].)
Third, Valter argues Mammoth could be found grossly negligent because Peters failed to follow Mammoth’s preferred snowmobile route for St. Moritz. According to the preferred snowmobile route, again, Peters should have stayed to his left when going up St. Moritz; then, where St. Moritz meets Stump Alley, made a slight right onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, traveled across Stump Alley and up the left side of Stump Alley. But according to Valter, Peters instead “drove up near the middle of St. Moritz” (rather than the left), “made a looping right turn near the top of St. Moritz at its intersection with Stump Alley” (rather than a slight right), and “intend[ed] to drive up the right side of Stump Alley” (rather than drive across Stump Alley and up the left side of the run). As a result, Valter asserts, Peters was “several yards from where he was supposed to be before trying to cross Stump Alley” at the time of the accident.
But much of Valter’s alleged facts lack evidentiary support. He claims Peters “intend[ed] to drive up the right side of Stump Alley” based on the statements of an officer who spoke with Peters after the accident. But according to the officer, Peters characterized his route before the accident, not the route he intended to follow afterward. Valter further claims Peters ended up several yards off the snowmobile route. But he cites nothing in support and appears to rely only on speculation. He also cites a photograph to show Peters drove near the middle of St. Moritz. But the cited photograph shows Peters’s route along the left side of St. Moritz. Valter appears to characterize the photograph differently because it shows open snow to the left on part of Peters’s path. But as the Mammoth trail map and snowmobile route map show, snowmobile drivers going up St. Moritz will-even if they stay to their far left on St. Moritz-have open snow to their left as they approach Stump Alley. This area, however, is not part of St. Moritz. It is instead part of a different run, Patrolmen’s, that branches off St. Moritz immediately after St. Moritz branches off Stump Alley. As the photograph of Peters’s path shows, moreover, because of trees, Peters could not have driven farther to the left at the point where St. Moritz meets Stump Alley.
In any event, even if Peters deviated from the snowmobile route and ended up “several yards” off the route, we find no reasonable person could find his conduct demonstrated gross negligence. Even assuming that Peters’s driving left him somewhat off the designated route, the undisputed facts still show he exercised a degree of caution: He traveled slowly up the mountain, reduced his speed to five miles per hour as he exited St. Moritz, continued at five miles per hour on Stump Alley, and, after seeing Valter, slowed further and either stopped or almost stopped. Valter does not dispute these facts. The photograph depicting Peters’s path, moreover, shows, if nothing else, that Peters could not have driven farther to the left at the point where St. Moritz meets Stump Alley. And photographs taken immediately after the collision show that Peters’s snowmobile flew an orange flag and that no apparent obstacle obstructed a downhill skier’s ability to see Peters and his snowmobile while on Stump Alley. On these undisputed facts, we conclude no reasonable person could find that Peters’s conduct evidenced either a want of even scant care or an extreme departure from the ordinary standard of conduct, even if, as Valter asserts, Peters was “several yards” off the designated route at the time of the collision.
We find that true even though Valter suggests that Mammoth could be found grossly negligent even if Peters were “mere inches” off the designated route. Valter bases his point on our court’s opinion in Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546. In that case, a gym deliberately placed a piece of exercise equipment less than four feet behind a treadmill, even though it knew the treadmill manufacturer’s manual said to provide a minimum six-foot clearance behind the treadmill for user safety. (Id. at pp. 549, 551, 558.) A gym member later sued the gym for negligence after falling off the treadmill and hitting her head on the equipment behind it. (Id. at pp. 548-549.) But the trial court found her claims failed as a matter of law on summary judgment, reasoning that the gym member had signed a liability waiver and the gym’s conduct could not constitute gross negligence. (Id. at p. 553.) On appeal, we reversed. We found a jury reasonably could find the facts demonstrated gross negligence, including by finding that it is standard practice in the industry to provide a minimum six-foot safety zone behind treadmills, that the gym failed to follow this standard practice to accommodate more members to make more money, that the gym took no mitigation measures, and that, as an expert implied, the gym’s failure to provide the standard safety zone was an extreme departure from the ordinary standard of conduct. (Id. at pp. 557-558, 567.)
Attempting to apply Jimenez‘s reasoning here, Valter suggests that if “mere inches” could support a claim of gross negligence in that case, then surely several yards could support a claim of gross negligence here. We find differently. To start, as noted, Valter cites no facts showing that Peters was several yards off the designated route at the time of the accident. But even setting that aside, we find Jimenez is distinguishable on several levels. First, unlike the plaintiff there, Valter cites no expert opinion suggesting that a “mere inches” deviation-or even a “several yards” deviation-from a designated snowmobile path is an extreme departure from the ordinary standard of conduct. And second, unlike the defendant in Jimenez, Mammoth implemented various safety precautions to limit collision risks, including by warning guests about snowmobiles, training snowmobile operators, and using designated snowmobile routes. We find Jimenez of limited help to Valter for these reasons.
Next, Valter asserts Mammoth could be found grossly negligent in using St. Moritz as one of its designated snowmobile routes. He reasons that Mammoth should have chosen a different route because it knew Stump Alley was a popular run, knew skiers “coming down Stump Alley ‘hug’ the tree line on the left in order to turn left onto St. Moritz,” acknowledged that these trees would have grown substantially since the snowmobile routes were initially established around 1989, knew snowmobiles on St. Moritz pose a potential danger to skiers, knew other routes were available, and never conducted any safety, feasibility, or visibility studies for the route. He adds that Mammoth’s new snowmobile routes no longer use St. Moritz (though he says the “change was not made in response to Valter’s injury”) and that Mammoth now uses snowmobile corridors that are marked off with stakes and ropes.
But although we accept that Mammoth could have taken more precautions to ensure skier safety before Valter’s injury, its failure to do so cannot support a claim for gross negligence here. Mammoth, again, had taken several steps to limit potential collisions on St. Moritz before Valter’s injury, including warning guests about snowmobiles, requiring training for its snowmobile drivers, and requiring these drivers to yield to guests, to fly an orange flag and use headlights, and to stay to their left while driving up St. Moritz-which would place them on the opposite side of the run from skiers who were (as Valter puts it) hugging the tree line coming down Stump Alley to St. Moritz. And while Valter claims Mammoth should have used a route other than St. Moritz, he has not shown, or even alleged, that any alternate route would have been safer.
Nor has Valter shown that Mammoth’s process for selecting St. Moritz as one of its snowmobile routes was inadequate. Mammoth may not have conducted formal studies about the use of St. Moritz, but its personnel still considered potential routes that would, in their view, maximize safety and then tested their conclusions about best routes. For the St. Moritz-to-Stump Alley route, for example, Mammoth personnel skied down Stump Alley while a snowmobile was on St. Moritz and “determined that it was very easy to see the snowmobile.” And in the decades before Valter’s injury, nothing in the record shows the use of St. Moritz harmed a single skier or snowboarder. Indeed, the record shows only one other snowmobile collision in the previous 40 years at Mammoth, with the other collision occurring on a hill after a beginner skier lost control and hit a ski school’s snowmobile.
Mammoth, to be sure, could have taken even more precautions to ensure skier safety before Valter’s injury. As Valter notes, for example, Mammoth could have enhanced safety further through the earlier adoption of snowmobile corridors. But he cites not one ski resort that used snowmobile corridors before the time of his injury, and we find this limited consideration insufficient to support a potential claim for gross negligence. Considering the undisputed facts here, we conclude no reasonable juror could find Mammoth’s use of St. Moritz in its snowmobile route evidenced either a want of even scant care or an extreme departure from the ordinary standard of conduct. And we find that so even though we accept, as Valter argues, that Mammoth did not pursue all possible options for limiting collision risks. (See Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 361 [no gross negligence as a matter of law even though the city did not “pursue all possible options” when attempting to save a swimmer].)
Lastly, Valter contends several triable issues of material fact preclude summary judgment. He starts with the visibility of the snowmobile. He asserts Peters’s deviation from the route and failure to be “at the left side of St. Moritz when he reached the top of that run” endangered skiers “turning left around a blind corner onto St. Moritz.” Explaining the blind corner, he states a skier coming down Stump Alley cannot see “down much of St. Moritz” because of the angle at which St. Moritz meets Stump Alley, trees, and other obstacles. He adds that Peters’s snowmobile was dark blue and so could be “easily lost in the shadows covering the run [St. Moritz] at the time.”
But Valter’s allegations cannot be squared with the undisputed facts. Although Valter claims Peters failed to be at the left side of St. Moritz at the top of that run, the photograph showing Peters’s route-which Valter relies on-shows Peters could not have been farther to the left at that location. Although Valter further claims Peters’s snowmobile could have been lost in the shadows present at the time, the photograph he cites purportedly showing these shadows shows clear skies and white snow, with the only shadow depicted being the photographer’s own. And although Valter notes some obstacles may prevent a skier from seeing “down much of St. Moritz” while coming down Stump Alley, Peters’s snowmobile was not on St. Moritz at the time of the accident. Nor was it “coming around a blind corner when it struck him,” as Valter repeatedly asserts in his reply brief. The photograph of Peters’s route, again, shows Peters entered Stump Alley from the far left of St. Moritz and then traveled up Stump Alley before the accident. Other photographs show Peters’s snowmobile was on Stump Alley at the time of the accident and not obstructed by any apparent obstacles. And all witnesses who described Peters’s speed explained that he traveled slowly up Stump Alley and then stopped or almost stopped before Valter skied into him. Valter has failed to show a triable issue of material fact in these circumstances.
Nor are we persuaded to find differently merely because, as Valter notes, snowmobiles are not as loud and massive as certain other snow equipment-namely, snowcats. Valter discusses snowcats in an attempt to distinguish our court’s earlier decision in Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, a case involving a skier who was injured after colliding with a snowcat that was 30 feet long and 18 feet wide and had a safety beacon, warning lights, and an audible alarm. (Id. at pp. 348, 362.) Although the snowcat in that case turned without using a turn signal before the collision, we ultimately found other warnings about the snowcat’s presence (including the snowcat’s large size and loud sound) barred the skier from claiming that Mammoth was grossly negligent as a matter of law. (Id. at p. 363.) Attempting to distinguish the case, Valter asserts a snowmobile is not as obvious as a snowcat. But while that is true, our standard is not whether a snowmobile is comparable to a snowcat. And on the undisputed facts here-which, among other things, show that snowmobiles are common at ski resorts, that Peters drove his snowmobile slowly and stopped (or almost stopped) before the collision, that the snowmobile flew an orange flag, and that no apparent obstacle obstructed a downhill skier’s ability to see Peters and his snowmobile on Stump Alley-we conclude that no reasonable person could find Mammoth grossly negligent.
Valter alternatively, in his reply brief, argues he lacked sufficient time to avoid Peters even if Peters and his snowmobile were plainly visible. That is so, he reasons, because he was skiing at about 30 miles per hour (or about 44 feet per second)[1] and Peters testified that he saw Valter when he was about 80 to 120 feet away-which would mean Valter only had two to three seconds to adjust to avoid Peters. But Valter fails to account for several facts that undercut his argument. First, in his own telling, he was traveling at a speed less than 30 miles per hour, as he was decelerating from 30 miles per hour at the time of the collision. And second, according to Peters’s undisputed testimony, Valter managed to make three or four controlled turns after Peters saw him- demonstrating that the issue is more that Valter failed to notice Peters than that he lacked time to avoid Peters. At any rate, because Valter raised this argument for the first time in his reply brief, and without good cause, we find the argument forfeited. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
In the end, none of Valter’s arguments-whether considered individually or collectively-potentially show Mammoth was grossly negligent. Again, we accept that snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers. We accept too that Mammoth could have done more to protect skiers from potential snowmobile collisions. But the question is not simply whether a reasonable person could find that Mammoth could have done more. Of course it could have. And no matter the precautions Mammoth implements, someone could always imagine some additional precaution or some additional study that could prove helpful. But that is not the relevant inquiry. It is instead whether a reasonable person could find that Mammoth’s conduct demonstrated “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct.'” “‘ (City of Santa Barbara, supra, 41 Cal.4th at p. 753.) And on this question, we find the answer is no as a matter of law. (See Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, supra, 25 Cal.App.5th at pp. 363-365 [no gross negligence as a matter of law even though the snowcat operator failed to use a turn signal before turning]; Brown v. El Dorado Union High School Dist., supra, 76 Cal.App.5th at p. 1030 [no gross negligence as a matter of law even though the school district “could have done more”]; Decker v. City of Imperial Beach, supra, 209 Cal.App.3d at p. 361 [no gross negligence as a matter of law even though the city did not “pursue all possible options”].)
DISPOSITION
The judgment is affirmed. Mammoth is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
We concur: DUARTE, Acting P. J., MESIWALA, J.
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Notes:
[1] One mile is 5,280 feet. Someone traveling 30 miles per hour is traveling 158,400 feet per hour, 2,640 feet per minute, and 44 feet per second.
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Brigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397
Posted: August 17, 2023 Filed under: Colorado, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Chairlift, Colorado Premises Liability Act, Colorado Skier Safety Act, Keystone, Keystone Mountain Resort, Negligence, Negligence per se, Negligent Hiring, Negligent Supervision and Training, Release, Respondeat Superior, Ski boot, Ski School Waiver, skiing, Vail, Waiver Leave a commentBrigance, v. Vail Summit Resorts, Inc., 2018 U.S. App. LEXIS 397
Teresa Brigance, Plaintiff – Appellant, v. Vail Summit Resorts, Inc., Defendant – Appellee.
No. 17-1035
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
2018 U.S. App. LEXIS 397
January 8, 2018, Filed
PRIOR HISTORY: [*1] Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:15-CV-01394-WJM-NYW).
Brigance v. Vail Summit Resorts, Inc., 2017 U.S. Dist. LEXIS 5447 (D. Colo., Jan. 13, 2017)
COUNSEL: Trenton J. Ongert (Joseph D. Bloch with him on the briefs), Bloch & Chapleau, LLC, Denver, Colorado, for Plaintiff – Appellant.
Michael J. Hofmann, Bryan Cave LLP, Denver, Colorado, for Defendant – Appellee.
JUDGES: Before PHILLIPS, KELLY, and McHUGH, Circuit Judges.
OPINION BY: McHUGH
OPINION
McHUGH, Circuit Judge.
During a ski lesson at Keystone Mountain Resort (“Keystone”), Doctor Teresa Brigance’s ski boot became wedged between the ground and the chairlift. She was unable to unload but the chairlift kept moving, which caused her femur to fracture. Dr. Brigance filed suit against Vail Summit Resorts, Inc. (“VSRI”), raising claims of (1) negligence, (2) negligence per se, (3) negligent supervision and training, (4) negligence (respondeat superior), (5) negligent hiring, and (6) violation of the Colorado Premises Liability Act (the “PLA”), Colo. Rev. Stat. § 13-21-115. The district court dismissed Dr. Brigance’s negligence and negligence per se claims at the motion to dismiss stage. After discovery, the district court granted VSRI’s motion for summary judgment on the remaining claims, concluding the waiver Dr. Brigance signed before participating [*2] in her ski lesson, as well as the waiver contained on the back of her lift ticket, are enforceable and bar her claims against VSRI. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background
Keystone is a ski resort located in Colorado that is operated by VSRI. In March 2015, Dr. Brigance visited Keystone with her family and participated in a ski lesson. At the time, ski lesson participants, including Dr. Brigance, were required to sign a liability waiver (the “Ski School Waiver”) before beginning their lessons. The Ski School Waiver signed1 by Dr. Brigance contained, among other things, the following provisions:
RESORT ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNITY AGREEMENT
THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.
. . .
2. I understand the dangers and risks of the Activity and that the Participant ASSUMES ALL INHERENT DANGERS AND RISKS of the Activity, including those of a “skier” (as may be defined by statute or other applicable law).
3. I expressly acknowledge and assume all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers [*3] and risks of the Activity, including but not limited to: Falling; free skiing; following the direction of an instructor or guide; . . . equipment malfunction, failure or damage; improper use or maintenance of equipment; . . . the negligence of Participant, Ski Area employees, an instructor . . . or others; . . . lift loading, unloading, and riding; . . . . I UNDERSTAND THAT THE DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT COMPLETE AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.
4. Participant assumes the responsibility . . . for reading, understanding and complying with all signage, including instructions on the use of lifts. Participant must have the physical dexterity and knowledge to safely load, ride and unload the lifts. . . .
. . .
6. Additionally, in consideration for allowing the Participant to participate in the Activity, I AGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION [*4] IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON [VSRI’s] ALLEGED OR ACTUAL NEGLIGENCE . . . .
Aplt. App’x at 117 (emphasis in original).
1 Although VSRI did not produce an original or copy of the Ski School Waiver signed by Dr. Brigance, it provided evidence that all adults participating in ski lessons at Keystone are required to sign a waiver and that the Ski School Waiver was the only waiver form used by VSRI for adult ski lessons during the 2014-15 ski season. Before it was clear that VSRI could not locate its copy of the signed waiver, Dr. Brigance indicated in discovery responses and deposition testimony that she signed a waiver before beginning ski lessons. See Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4 (D. Colo. Jan. 13, 2017). Based on this evidence and Dr. Brigance’s failure to argue “that a genuine question remains for trial as to whether she did in fact sign the Ski School Waiver in the form produced or whether she agreed to its terms,” 2017 U.S. Dist. LEXIS 5447, [WL] at *4, the district court treated her assent to the Ski School Waiver as conceded and concluded that “there is no genuine dispute as to whether [Dr. Brigance] consented to the terms of the Ski School Waiver,” id.
On appeal, Dr. Brigance offers no argument and points to no evidence suggesting that the district court’s conclusion was erroneous in light of the evidence and arguments before it. Instead, she merely denies having signed the Ski School Waiver and reiterates that VSRI has yet to produce a signed copy of the waiver. But in response to questioning at oral argument, counsel for Dr. Brigance conceded that this court could proceed with the understanding that Dr. Brigance signed the Ski School Waiver. Oral Argument at 0:41-1:23, Brigance v. Vail Summit Resorts, Inc., No. 17-1035 (10th Cir. Nov. 13, 2017). Three days later, counsel for Dr. Brigance filed a notice with the court effectively revoking that concession.
Dr. Brigance’s assertion that she did not execute the Ski School Waiver is forfeited because she failed to adequately raise it as an issue below. Avenue Capital Mgmt. II, L.P. v. Schaden, 843 F.3d 876, 884 (10th Cir. 2016); see also Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4 (“[N]otwithstanding the absence of a signed copy of the [Ski School Waiver], [Dr. Brigance] does not argue that this issue presents a genuine dispute requiring trial.”). But even if we were to entertain the argument, it would fail to defeat summary judgment. Despite her obfuscation, VSRI’s inability to produce the signed Ski School Waiver and Dr. Brigance’s assertions that she did not sign the waiver–which contradict her discovery responses and deposition testimony–are insufficient to establish that the district court erred in concluding that no genuine dispute exists as to whether Dr. Brigance agreed to the terms of the waiver. [HN1] “Although the burden of showing the absence of a genuine issue of material fact” rests with the movant at summary judgment, “the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts.” Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1084 (10th Cir. 2006) (internal quotation marks omitted). Indeed, the
party asserting that a fact . . . is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . ; or (B) showing that the materials cited do not establish the absence . . . of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)–(B). Dr. Brigance made no such showing below, nor does she attempt to do so on appeal.
In addition, Dr. Brigance’s husband purchased a lift ticket enabling her to ride the ski lifts at Keystone. Dr. Brigance received the ticket from her husband and used it to ride the Discovery Lift. The lift ticket contained a warning and liability waiver (the “Lift Ticket Waiver”) on its back side, which provides in pertinent part:
HOLDER AGREES AND UNDERSTANDS THAT SKIING . . . AND USING A SKI AREA, INCLUDING LIFTS, CAN BE HAZARDOUS.
WARNING
Under state law, the Holder of this pass assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from the [*5] ski area operator for any injury resulting from any of the inherent dangers and risks of skiing. Other risks include cliffs, extreme terrain, jumps, and freestyle terrain. Holder is responsible for having the physical dexterity to safely load, ride and unload the lifts and must control speed and course at all times. . . . Holder agrees to ASSUME ALL RISKS, inherent or otherwise. Holder agrees to hold the ski area harmless for claims to person or property. . . .
. . .
NO REFUNDS. NOT TRANSFERABLE. NO RESALE.
Id. at 121 (emphasis in original).
After receiving some instruction during her ski lesson on how to load and unload from a chairlift, Dr. Brigance boarded the Discovery Lift. As Dr. Brigance attempted to unload from the lift, her left ski boot became wedged between the ground and the lift. Although she was able to stand up, she could not disengage the lift because her boot remained squeezed between the ground and the lift. Eventually, the motion of the lift pushed Dr. Brigance forward, fracturing her femur.
B. Procedural Background
Dr. Brigance filed suit against VSRI in the United States District Court for the District of Colorado as a result of the injuries she sustained while attempting to unload [*6] from the Discovery Lift.2 In her amended complaint Dr. Brigance alleged that the short distance between the ground and the Discovery Lift at the unloading point–coupled with the inadequate instruction provided by her ski instructor, the chairlift operator’s failure to stop the lift, and VSRI’s deficient hiring, training, and supervision of employees–caused her injuries. She consequently asserted the following six claims against VSRI: (1) negligence; (2) negligence per se; (3) negligent supervision and training; (4) negligence (respondeat superior); (5) negligent hiring; and (6) liability under the PLA.
2 The district court properly invoked diversity jurisdiction because Dr. Brigance is a citizen of Florida and VSRI is a Colorado corporation with its principal place of business in Colorado, and the amount in controversy exceeds $75,000. See 28 U.S.C. §§ 1332(a), (c)(1)(B)–(C).
VSRI moved to dismiss all claims raised by Dr. Brigance with the exception of her respondeat superior and PLA claims. The district court granted in part and denied in part VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance I“), No. 15-cv-1394-WJM-NYM, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *1-5 (D. Colo. Mar. 11, 2016). It dismissed Dr. Brigance’s negligence claim as preempted by the PLA. 2016 U.S. Dist. LEXIS 31662, [WL] at *3-4. It also dismissed her negligence per se claim, concluding that she “fail[ed] to identify any requirement” of the Colorado Ski Safety Act of 1979 (the “SSA”), Colo. Rev. Stat. §§ 33-44-101 to -114, that VSRI had allegedly violated. Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2. In dismissing this claim, the district court also held that the [*7] provisions of the Passenger Tramway Safety Act (the “PTSA”), Colo. Rev. Stat. §§ 25-5-701 to -721, relied upon by Dr. Brigance “do[ ] not provide a statutory standard of care which is adequate to support [a] claim for negligence per se.” Brigance I, 2016 U.S. Dist. LEXIS 31662, 2016 WL 931261, at *2 (emphasis omitted). But the district court refused to dismiss Dr. Brigance’s claims regarding negligent supervision and training and negligent hiring. 2016 U.S. Dist. LEXIS 31662, [WL] at *4-5.
Upon completion of discovery, VSRI moved for summary judgment on the basis that the Ski School Waiver and Lift Ticket Waiver completely bar Dr. Brigance’s remaining claims. In the alternative, VSRI argued that summary judgment was appropriate because (1) Dr. Brigance failed to satisfy the elements of her PLA claim and (2) her common-law negligence claims are preempted by the PLA and otherwise lack evidentiary support. Dr. Brigance opposed the motion, contending in part that the waivers are unenforceable under the SSA and the four-factor test established by the Colorado Supreme Court in Jones v. Dressel, 623 P.2d 370 (Colo. 1981). Dr. Brigance also asserted that her common-law negligence claims are not preempted by the PLA and that she presented sufficient evidence to allow her claims to be heard by a jury.
The district court granted VSRI’s motion. Brigance v. Vail Summit Resorts, Inc. (“Brigance II“), No. 15-cv-1394-WJM-NYW, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *10 (D. Colo. Jan. 13, 2017) [*8] . It determined that the Ski School Waiver and Lift Ticket Waiver are enforceable under the factors established by the Colorado Supreme Court in Jones and that the SSA and PTSA do not otherwise invalidate the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *5-9. It then determined that all of Dr. Brigance’s remaining claims fall within the broad scope of the waivers and are therefore barred. 2017 U.S. Dist. LEXIS 5447, [WL] at *10. This appeal followed.
II. DISCUSSION
Dr. Brigance challenges the district court’s enforcement of both the Ski School Waiver and Lift Ticket Waiver, as well as the dismissal of her negligence and negligence per se claims. [HN2] “[B]ecause the district court’s jurisdiction was based on diversity of citizenship, [Colorado] substantive law governs” our analysis of the underlying claims and enforceability of the waivers. Sylvia v. Wisler, 875 F.3d 1307, 2017 WL 5622916, at *3 (10th Cir. 2017) (internal quotation marks omitted). We “must therefore ascertain and apply [Colorado] law with the objective that the result obtained in the federal court should be the result that would be reached in [a Colorado] court.” Id. (internal quotation marks omitted). In doing so, “we must defer to the most recent decisions of the state’s highest court,” although “stare [*9] decisis requires that we be bound by our own interpretations of state law unless an intervening decision of the state’s highest court has resolved the issue.” Id. (internal quotation marks omitted).
Although the substantive law of Colorado governs our analysis of the waivers and underlying claims, [HN3] federal law controls the appropriateness of a district court’s grant of summary judgment and dismissal of claims under Federal Rule of Civil Procedure 12(b)(6). See Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). We therefore review the district court’s grant of summary judgment and dismissal of claims pursuant to Rule 12(b)(6) de novo, applying the same standards as the district court. Id.; see also Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *4, 16. “However, we may affirm [the] district court’s decision[s] on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.” Stickley, 505 F.3d at 1076 (internal quotation marks omitted).
“Summary judgment should be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Sylvia, 875 F.3d 1307, 2017 WL 5622916, at *16 (internal quotation marks omitted). Because it is undisputed that all of Dr. Brigance’s claims–including those dismissed pursuant [*10] to Rule 12(b)(6)–fall within the broad scope of either waiver if they are deemed enforceable under Colorado law, the first, and ultimately only, question we must address is whether the Ski School Waiver and Lift Ticket Waiver are enforceable.
[HN4] Under Colorado law, “exculpatory agreements have long been disfavored,” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and it is well-established that such agreements cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010). See also Espinoza v. Ark. Valley Adventures, LLC, 809 F.3d 1150, 1152 (10th Cir. 2016) (“Under Colorado common law, it’s long settled that courts will not give effect to contracts purporting to release claims for intentional, knowing, or reckless misconduct.”). “But claims of negligence are a different matter. Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence.” Espinoza, 809 F.3d at 1152; accord Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Neither does it always preclude exculpatory agreements as to claims of negligence per se. Espinoza, 809 F.3d at 1154-55.
Accordingly, [HN5] the Colorado Supreme Court has instructed courts to consider the following four factors when determining the enforceability of an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the [*11] contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” J/ones, 623 P.2d at 376. It appears that if an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable. Although consideration of these factors is generally sufficient to determine the enforceability of exculpatory agreements, the Colorado Supreme Court has clarified that “other public policy considerations” not necessarily encompassed in the Jones factors may invalidate exculpatory agreements. See Boles, 223 P.3d at 726 (“[M]ore recently, we have identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.”); see, e.g., Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232-37 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107.
The district court examined each of the Jones factors and concluded that none of them preclude enforcement of the Ski School Waiver or Lift Ticket Waiver. Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *5-8. It also determined that the provisions of the SSA and PTSA “have no effect on the enforceability” of the waivers. 2017 U.S. Dist. LEXIS 5447, [WL] at *9. We agree.
A. The Jones Factors
1. Existence of a Duty to the Public
[HN6] The first Jones factor requires us to examine whether there is an “existence of a duty to the public,” Jones, 623 P.2d at 376, or, described another way, “whether [*12] the service provided involves a duty to the public,” Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1109 (10th Cir. 2002). The Colorado Supreme Court has not specified the precise circumstances under which an exculpatory agreement will be barred under this factor, but it has explained that unenforceable exculpatory agreements
generally involve businesses suitable for public regulation; that are engaged in performing a public service of great importance, or even of practical necessity; that offer a service that is generally available to any members of the public who seek it; and that possess a decisive advantage of bargaining strength, enabling them to confront the public with a standardized adhesion contract of exculpation.
Chadwick, 100 P.3d at 467. The Colorado Supreme Court has expressly “distinguished businesses engaged in recreational activities” from the foregoing class of businesses because recreational activities “are not practically necessary” and therefore “the provider[s of such activities] owe[ ] no special duty to the public.” Id.; see also Espinoza, 809 F.3d at 1153 (“Though some businesses perform essential public services and owe special duties to the public, the [Colorado Supreme] [C]ourt has held that ‘businesses engaged in recreational activities’ generally do not.” (quoting Chadwick, 100 P.3d at 467)).
And, indeed, [*13] Colorado courts examining exculpatory agreements involving recreational activities under Colorado law have almost uniformly concluded that the first Jones factor does not invalidate or render unenforceable the relevant agreement. See, e.g., Chadwick, 100 P.3d at 467-69; Jones, 623 P.2d at 376-78; Stone v. Life Time Fitness, Inc., No. 15CA0598, 2016 COA 189M, 2016 WL 7473806, at *3 (Colo. App. Dec. 29, 2016) (unpublished) (“The supreme court has specified that no public duty is implicated if a business provides recreational services.”), cert. denied, No. 17SC82, 2017 Colo. LEXIS 572, 2017 WL 2772252 (Colo. Jun. 26, 2017); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 949 (Colo. App. 2011) (“Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty.”); see also Espinoza, 809 F.3d at 1153-56; Mincin, 308 F.3d at 1110-11; Patterson v. Powdermonarch, L.L.C., No. 16-cv-00411-WYD-NYW, 2017 U.S. Dist. LEXIS 151229, 2017 WL 4158487, at *5 (D. Colo. July 5, 2017) (“Businesses engaged in recreational activities like [defendant’s ski services] have been held not to owe special duties to the public or to perform essential public services.”); Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (“Providing snowmobile tours to the public does not fall within” the first Jones factor.); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (holding white-water rafting is recreational in nature and is therefore “neither a matter of great public importance nor a matter of practical necessity” (internal quotation marks omitted)), aff’d sub nom., Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997).
The relevant services provided by VSRI–skiing and ski lessons–are [*14] clearly recreational in nature. Like horseback riding and skydiving services, see Chadwick, 100 P.3d at 467; Jones, 623 P.2d at 377, skiing and ski lessons are not of great public importance or “matter[s] of practical necessity for even some members of the public,” Jones, 623 P.2d at 377. They therefore do not implicate the type of duty to the public contemplated in the first Jones factor. Although it appears the Colorado Supreme Court and Colorado Court of Appeals have yet to address the first Jones factor within the context of skiing or ski lesson services, the few courts that have considered similar issues have reached the unsurprising conclusion that ski-related services are recreational activities and do not involve a duty to the public. See, e.g., Rumpf v. Sunlight, Inc., No. 14-cv-03328-WYD-KLM, 2016 U.S. Dist. LEXIS 107946, 2016 WL 4275386, at *3 (D. Colo. Aug. 3, 2016); Potter v. Nat’l Handicapped Sports, 849 F. Supp. 1407, 1409 (D. Colo. 1994); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992).
Dr. Brigance fails to address the principle “that businesses engaged in recreational activities that are not practically necessary . . . do not perform services implicating a public duty.” Hamill, 262 P.3d at 949. Instead, she contends VSRI owes a duty to the public because the ski and ski lesson services provided by VSRI implicate a number of additional factors the California Supreme Court relied upon in Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 444-46 (Cal. 1963), to determine whether an exculpatory agreement should be deemed invalid as affecting [*15] public interest.3 Specifically, Dr. Brigance contends VSRI owes a duty to the public because the Colorado ski industry is subject to express regulation under the SSA and PTSA, VSRI is willing to perform its services for any member of the public who seeks them, VSRI maintains an advantage in bargaining strength, and skiers are placed under the complete control of VSRI when riding their lifts.
3 Dr. Brigance separately argues that the waivers are invalid under the provisions and public policies contained within the SSA, PTSA, and PLA. Although she incorporates these arguments in her analysis of the first Jones factor, we address them separately in Section II.B, infra.
The Colorado Supreme Court has cited Tunkl and noted its relevance in determining whether a business owes a duty to the public. Jones, 623 P.2d at 376-77. But when analyzing the first Jones factor, particularly within the context of recreational services, courts applying Colorado law focus on and give greatest weight to whether the party seeking to enforce an exculpatory agreement is engaged in providing services that are of great public importance or practical necessity for at least some members of the public. See, e.g., Espinoza, 809 F.3d at 1153-54; Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 896-97 (D. Colo. 1998); Potter, 849 F. Supp. at 1409; Jones, 623 P.2d at 376-77; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. And the additional factors listed by Dr. Brigance are insufficient to establish that the recreational services offered by VSRI are of great public importance or practically necessary. An activity does not satisfy the first Jones factor simply because it is subject to state regulation. [*16] As we have explained, the first Jones factor does not
ask whether the activity in question is the subject of some sort of state regulation. Instead, [it] ask[s] whether the service provided is of “great importance to the public,” a matter of “practical necessity” as opposed to (among other things) a “recreational one. [Jones,] 623 P.2d at 376-77. And the distinction the Jones factors draw between essential and recreational services would break down pretty quickly if the presence of some state regulation were enough to convert an otherwise obviously “recreational” service into a “practically necessary” one. After all, state law imposes various rules and regulations on service providers in most every field these days–including on service providers who operate in a variety of clearly recreational fields.
Espinoza, 809 F.3d at 1154; see also Chadwick, 100 P.3d at 467-68. Furthermore, Dr. Brigance’s argument regarding VSRI’s bargaining strength is more properly addressed under the third Jones factor, and her remaining arguments concerning VSRI’s willingness to provide services to the public and its control over skiers are not sufficiently compelling to sway us from departing from the principle “that [HN7] no public duty is implicated if a business provides recreational services.” [*17] Stone, 2016 COA 189M, 2016 WL 7473806, at *3.
The district court therefore did not err in concluding that the first Jones factor does not render the Ski School Waiver and the Lift Ticket Waiver unenforceable.
2. Nature of the Service Performed
[HN8] Under the second Jones factor, we examine “the nature of the service performed.” Jones, 623 P.2d at 376. Analysis of this factor is linked to and in many respects overlaps the analysis conducted under the first Jones factor, as it calls for an examination of whether the service provided is an “essential service” or a “matter of practical necessity.” See Espinoza, 809 F.3d at 1153; Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 949. As is evident from our discussion of the first Jones factor, Colorado “courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3; see also Chadwick, 100 P.3d at 467 (noting “recreational activities . . . are not practically necessary”); Jones, 623 P.2d at 377-78 (holding the skydiving service provided by defendants “was not an essential service”); Hamill, 262 P.3d at 949 (acknowledging recreational camping and horseback riding services are not essential or matters of practical necessity). And as previously established, the ski and ski lesson services offered by VSRI are recreational in nature and therefore, like other recreational activities examined by this and other [*18] courts, cannot be deemed essential or of practical necessity. See, e.g., Mincin, 308 F.3d at 1111 (“[M]ountain biking is not an essential activity.”); Squires ex rel. Squires v. Goodwin, 829 F. Supp. 2d 1062, 1073 (D. Colo. 2011) (noting the parties did not dispute that skiing “is a recreational service, not an essential service”); Rowan, 31 F. Supp. 2d at 897 (“[S]kiing is not an essential service.”); Potter, 849 F. Supp. at 1410 (disagreeing with plaintiff’s argument that “ski racing for handicapped skiers rises to the level of an essential service [as] contemplated by Colorado law”); Bauer, 788 F. Supp. at 474 (noting “free skiing[, equipment rentals, and ski lessons] for travel agents do[ ] not rise to the level of essential service[s] contemplated by Colorado law.”).
Dr. Brigance raises no argument specific to this factor other than asserting that “the ski industry is a significant revenue generator for the State of Colorado” and the services provided by VSRI are “public [in] nature.” Aplt. Br. 47. Dr. Brigance cites no authority suggesting that either factor would render the recreational services provided by VSRI essential in nature. And given Colorado courts’ assertion that “recreational services [are] neither essential nor . . . matter[s] of practical necessity,” Stone, 2016 COA 189M, 2016 WL 7473806, at *3, we conclude the district court did not err in determining that the second Jones factor also does not dictate that the waivers be [*19] deemed unenforceable.
3. Whether the Waivers Were Fairly Entered Into
[HN9] The third Jones factor requires us to examine “whether the contract was fairly entered into.” Jones, 623 P.2d at 376. “A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.” Hamill, 262 P.3d at 949 (citing Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989)). When engaging in this analysis, we examine the nature of the service involved, Espinoza, 809 F.3d at 1156, the circumstances surrounding the formation of the contract, id., and whether the services provided are available from a source other than the party with which the plaintiff contracted, see Stone, 2016 COA 189M, 2016 WL 7473806, at *3; Hamill, 262 P.3d at 950.
The Colorado Court of Appeals has identified “[p]ossible examples of unfair disparity in bargaining power [as] includ[ing] agreements between employers and employees and between common carriers or public utilities and members of the public.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. It has also expressly acknowledged an unfair disparity in bargaining power in residential landlord-tenant relationships, presumably based in part on its holding “that housing rental is a matter of practical necessity to the public.” Stanley v. Creighton Co., 911 P.2d 705, 708 (Colo. App. 1996). But the Colorado Court of Appeals has also held that “this type of unfair disparity [*20] is generally not implicated when a person contracts with a business providing recreational services.” Stone, 2016 COA 189M, 2016 WL 7473806, at *3. This is because recreational activities are not essential services or practically necessary, and therefore a person is not “at the mercy” of a business’s negligence when entering an exculpatory agreement involving recreational activities. Hamill, 262 P.3d at 949-50. As we have previously explained, “Colorado courts have repeatedly emphasized that . . . because recreational businesses do not provide ‘essential’ services of ‘practical necessity[,]’ individuals are generally free to walk away if they do not wish to assume the risks described” in an exculpatory agreement. Espinoza, 809 F.3d at 1157; see also Mincin, 308 F.3d at 1111 (noting that a disparity of bargaining power may be created by the “practical necessity” of a service, but that no such necessity existed because “mountain biking is not an essential activity” and therefore the plaintiff “did not enter into the contract from an inferior bargaining position”).
We reiterate, at the risk of redundancy, that the ski and ski lesson services offered by VSRI are recreational in nature and do not constitute essential services or matters of practical necessity. As a result, Dr. Brigance did not enter the Ski [*21] School Waiver or Lift Ticket Waiver from an unfair bargaining position because she was free to walk away if she did not wish to assume the risks or waive the right to bring certain claims as described in the waivers. This conclusion is supported by a number of cases involving similar recreational activities, including those we have previously addressed under the first two Jones factors. See, Jones, 623 P.2d at 377-78 (holding an exculpatory release related to skydiving services was not an unenforceable adhesion contract “because the service provided . . . was not an essential service” and therefore the defendant “did not possess a decisive advantage of bargaining strength over” the plaintiff); see also Squires, 829 F. Supp. 2d at 1071 (“Where, as here, the service provided is a recreational service and not an essential service, there is no unfair bargaining advantage.”); Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993) (“[T]he recreational services offered by [defendant] were not essential and, therefore, [it] did not enjoy an unfair bargaining advantage.”); Bauer, 788 F. Supp. at 475 (“Here, defendants’ recreational services were not essential and, therefore, they did not enjoy an unfair bargaining advantage.”).
Moreover, the circumstances surrounding Dr. Brigance’s entry into the exculpatory agreements indicate she [*22] did so fairly. Dr. Brigance does not identify any evidence in the record calling into question her competency, ability to comprehend the terms of the agreements, or actual understanding of the agreements. Nor does she point to anything in the record reflecting an intent or attempt by VSRI to fraudulently induce her to enter the agreements or to conceal or misconstrue their contents. In addition, there is nothing in the record to suggest Dr. Brigance’s agreement to the terms of the Ski School Waiver was not voluntary. See Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *3-4.
Notwithstanding the well-established law that exculpatory agreements involving businesses providing recreational services do not implicate the third Jones factor, Dr. Brigance argues her assent to the terms of the Lift Ticket Waiver was obtained unfairly and that VSRI had an advantage in bargaining strength. This is so, she contends, because she “did not have a chance to review the exculpatory language contained on the back of the non-refundable [lift] ticket before she purchased it” and that “[o]nce the ticket was purchased, she was forced to accept the exculpatory language or lose the money she invested.” Aplt. Br. 47. Dr. Brigance’s argument fails to account for her [*23] voluntary acceptance of the Ski School Waiver. And although Dr. Brigance asserts she “did not have a chance to review” the Lift Ticket Waiver before purchasing it, she does not identify any evidence that VSRI prevented her from reviewing the Lift Ticket Waiver before she used it to ride the Discovery Lift, and “Colorado courts have repeatedly emphasized that individuals engaged in recreational activities are generally expected to read materials like these.” Espinoza, 809 F.3d at 1157. Most importantly, Dr. Brigance did not raise this argument below and does not provide a compelling reason for us to address it on appeal.4
See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”).
4 In fact, the district court noted that Dr. Brigance “neither disputes the relevant facts nor counters VSRI’s argument that she accepted the contractual terms of the Lift Ticket Waiver by skiing and riding the lifts.” Brigance II, 2017 U.S. Dist. LEXIS 5447, 2017 WL 131797, at *4. As a result, the district court concluded Dr. Brigance had agreed to the terms of the Lift Ticket Waiver and would be bound to its terms to the extent it was otherwise enforceable. Id.
For these reasons, the district court did not err in concluding that the third Jones factor does not render the Ski School Waiver or the Lift Ticket Waiver unenforceable.
4. Whether the Parties’ Intent Was Expressed Clearly and Unambiguously
[HN10] The fourth and final Jones factor is “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. The inquiry conducted under this factor “should be whether the intent of the parties was to extinguish liability and [*24] whether this intent was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785. The Colorado Supreme Court has explained that “[t]o determine whether the intent of the parties is clearly and unambiguously expressed, we [may] examine[ ] the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick, 100 P.3d at 467. We may also take into account a party’s subsequent acknowledgement that it understood the provisions of the agreement. Id. In addition, it is well-established that the term “negligence” is not invariably required for an exculpatory agreement to be deemed an unambiguous waiver or release of claims arising from negligent conduct. Id.
The Ski School Waiver contains approximately a page and a half of terms and conditions in small, but not unreadable, font.5 It prominently identifies itself as, among other things, a “RELEASE OF LIABILITY . . . AGREEMENT”–a fact that is reiterated in the subtitle of the agreement by inclusion of the statement “THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS.” Aplt. App’x 117. The provisions of the waiver include the signer’s express acknowledgment [*25] and assumption of “ALL INHERENT DANGERS AND RISKS of the Activity, including those of a ‘skier’ (as may be identified by statute or other applicable law),” as well as “all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a lengthy list of specific events and circumstances that includes “lift loading, unloading, and riding.” Id. In addition to this assumption-of-the-risk language, the Ski School Waiver provides that the signer
AGREE[S] TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE [VSRI] FOR ANY . . . INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY CONTRACT AND/OR EXPRESS OR IMPLIED WARRANTY.
Id.
5 Although Dr. Brigance denies that she signed the Ski School Waiver, see supra note 1, she has not made any arguments regarding the readability or font size of the terms and conditions.
The Lift Ticket Waiver–approximately two paragraphs in length–is not as detailed as the Ski School Waiver, but contains somewhat similar language regarding the ticket holder’s assumption of risk and waiver of claims. After detailing [*26] some of the inherent dangers and risks of skiing that the holder of the ticket assumes, as well as identifying other risks and responsibilities, the Lift Ticket Waiver provides that the “Holder agrees to ASSUME ALL RISKS, inherent or otherwise” and “to hold the ski area harmless for claims to person and property.” Id. at 121.
Neither waiver is unduly long nor complicated, unreadable, or overburdened with legal jargon. Most importantly, the intent of the waivers is clear and unambiguous. In addition to the language indicating Dr. Brigance’s assumption of all risks of skiing, inherent or otherwise, both waivers contain clear language stating that Dr. Brigance agreed to hold VSRI harmless for injuries to her person as a result of skiing at Keystone. Moreover, the Ski School Waiver clearly and unambiguously provides that Dr. Brigance agreed to “RELEASE, INDEMNIFY, AND NOT TO SUE” VSRI for personal injuries arising in whole or in part from her participation in ski lessons, including claims based on VSRI’s “ALLEGED OR ACTUAL NEGLIGENCE.” Id. at 117. Dr. Brigance does not argue that any of the language regarding her agreement to hold harmless, indemnify, release, or not to sue VSRI is ambiguous or confusing. [*27] And like this and other courts’ examination of similarly worded provisions, we conclude the relevant release language of the Ski School Waiver and Lift Ticket Waiver cannot be reasonably understood as expressing anything other than an intent to release or bar suit against VSRI from claims arising, in whole or in part, as a result of Dr. Brigance’s decision to ski and participate in ski lessons at Keystone, including claims based on VSRI’s negligence. See Espinoza, 809 F.3d at 1157-58; Mincin, 308 F.3d at 1112-13; Chadwick, 100 P.3d at 468-69; B & B Livery, 960 P.2d at 137-38; Hamill, 262 P.3d at 950-51.
Dr. Brigance’s argument on appeal regarding the fourth Jones factor centers on the assumption-of-the-risk language contained in both waivers. Specifically, Dr. Brigance contends the intent of the waivers is ambiguous because the provisions providing that she assumes all risks of skiing, “inherent or otherwise,” conflict with the SSA because the statute’s provisions only bar a skier from recovering against a ski area operator “for injury resulting from any of the inherent dangers and risks of skiing.” Colo. Rev. Stat. § 33-44-112; see also id. at 33-44-103(3.5). Because of this alleged conflict, Dr. Brigance asserts that she could not know whether she was “releasing [VSRI] of all liability as indicated by the [waivers], or only for the inherent risks of skiing as [*28] mandated by the SSA.” Aplt. Br. 50-51.
Dr. Brigance’s argument is unavailing for a number of reasons. First, it only addresses the assumption-of-the-risk language contained in each waiver. But the more pertinent provisions of the waivers are those regarding Dr. Brigance’s agreement to hold harmless, release, indemnify, and not to sue VSRI. These provisions appear independent from the assumption-of-the-risk language and therefore their plain meaning is unaffected by any potential ambiguity in the “inherent or otherwise” clauses. Dr. Brigance does not contest the clarity of the release provisions and, as previously described, we believe those provisions unambiguously reflect the parties’ intent to release VSRI from claims arising from Dr. Brigance’s participation in ski lessons at Keystone.
Second, the Lift Ticket Waiver’s “assumes all risks, inherent or otherwise” phrase, as well as a similar phrase contained in the Ski School Waiver, are not ambiguous. Rather, their meanings are clear–the signer of the agreement or holder of the ticket is to assume all risks of skiing, whether inherent to skiing or not. The term “otherwise,” when “paired with an adjective or adverb to indicate its contrary”–as [*29] is done in both waivers–is best understood to mean “NOT.” Webster’s Third New Int’l Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. Dr. Brigance offers no alternative reading of the phrases and does not specify how “inherent or otherwise” could be understood as only referring to the inherent risks identified in the SSA. And while the Ski School Waiver contains a provision in which the signer agrees to assume all inherent dangers and risks of skiing as may be defined by statute or other applicable law, the next provision of the agreement clearly expands that assumption of risk, stating that the signer “expressly acknowledge[s] and assume[s] all additional risks and dangers that may result in . . . physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to” a rather extensive list of circumstances or events that may occur while skiing, including “lift loading, unloading, and riding.” Aplt. App’x at 117. That same provision continues, indicating that the signer understands the description of risks in the agreement is “NOT COMPLETE,” but that the signer nevertheless [*30] voluntarily chooses to “EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.” Id. Reading the “inherent or otherwise” phrase in context clearly indicates that, at a minimum, the Ski School Waiver includes an assumption of risk above and beyond the inherent risks and dangers of skiing as defined in the SSA. See Ringquist v. Wall Custom Homes, LLC, 176 P.3d 846, 849 (Colo. App. 2007) (“In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.”); Moland v. Indus. Claim Appeals Office of State, 111 P.3d 507, 510 (Colo. App. 2004) (“The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.”).
Third, the Colorado Supreme Court rejected a similar argument in B & B Livery, Inc. v. Riehl, 960 P.2d 134 (Colo. 1998). There, the Colorado Supreme Court examined an exculpatory agreement that included a statutorily mandated warning that equine professionals are not liable to others for the inherent risks associated with participating in equine activities, “as well as a broader clause limiting liability from non-inherent risks.” Id. at 137-38. It concluded that “the [*31] insertion of a broader clause further limiting liability does not make the agreement ambiguous per se” and instead “merely evinces an intent to extinguish liability above and beyond that provided” in the statute. Id. at 137; see also Hamill, 262 P.3d at 951 (upholding enforcement of an exculpatory agreement that purported to cover “inherent and other risks,” as well as claims against “any legal liability,” and noting that “[t]o hold . . . that the release did not provide greater protection than the release from liability of inherent risks provided by the equine act . . . would render large portions of the agreement meaningless”). Furthermore, the waivers do not conflict with the SSA merely because they purport to cover a broader range of risks than those identified by the statute as inherent to skiing. See Fullick v. Breckenridge Ski Corp., No. 90-1377, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3 (10th Cir. Apr. 29, 1992) (unpublished) (“If one could never release liability to a greater degree than a release provided in a statute, then one would never need to draft a release, in any context.”); Chadwick, 100 P.3d at 468 (“[T]his court has made clear that parties may, consistent with the [equine] statute, contract separately to release sponsors even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.”).
Finally, the single [*32] case relied upon by Dr. Brigance that applies Colorado law is distinguishable. In Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899-900 (D. Colo. 1998), the district court determined an exculpatory agreement was ambiguous and therefore unenforceable in part because it first recited “the risks being assumed in the broadest possible language,” expressly including risks associated with the use of ski lifts, and then later addressed the assumption of risk in terms of the inherent risks and dangers of skiing as defined in the SSA, which indicates the use of ski lifts does not fall within its definition of inherent risks. The release therefore conflicted with itself and the relevant statutory language. See Cunningham v. Jackson Hole Mountain Resort Corp., 673 F. App’x 841, 847 (10th Cir. Dec. 20, 2016) (unpublished). But unlike the waiver at issue in Rowan, the Ski School Waiver and Lift Ticket Waiver do not define the inherent risks of skiing in a manner contrary to the SSA. Nor do they contain conflicting provisions. The non-exhaustive list of inherent risks identified in the Lift Ticket Waiver appears to be drawn directly from the SSA, while the Ski School Waiver indicates inherent risks include those “as may be defined by statute or other applicable law.” Aplt. App’x at 117, 121. In addition, after referencing the inherent risks of skiing and providing that the signer [*33] of the agreement assumes those risks, the Ski School Waiver goes on to identify other, non-inherent risks associated with skiing and ski lessons and expressly provides that the signer assumes those risks. Specifically, the waiver makes clear that the risks assumed by Dr. Brigance include “all additional risks and dangers . . . above and beyond the inherent dangers and risks” of skiing and ski lessons, whether described in the waiver or not, known or unknown, or inherent or otherwise. Id. at 117. Unlike the provisions at issue in Rowan that provided conflicting statements regarding the risks assumed, the waivers here unambiguously provide that Dr. Brigance agreed to not only assume risks and dangers inherent to skiing, but also those risks and dangers not inherent to skiing.
Accordingly, the district court did not err in concluding that the fourth Jones factor does not invalidate the waivers.
***
Based on the foregoing analysis, we agree with the district court that application of the Jones factors to the Ski School Waiver and Lift Ticket Waiver do not render them unenforceable.
B. The SSA and PTSA
Although analysis of the Jones factors is often sufficient to determine the validity of an exculpatory [*34] agreement, the Colorado Supreme Court has “identified other public policy considerations invalidating exculpatory agreements, without regard to the Jones factors.” Boles, 223 P.3d at 726. At various points on appeal, either as standalone arguments or embedded within her analysis of the Jones factors, Dr. Brigance contends the Ski School Waiver and the Lift Ticket Waiver are unenforceable as contrary to Colorado public policy because they conflict with the SSA, PTSA, and the public policies announced therein.6 The district court considered these arguments and determined that the statutes do not affect the enforceability of either waiver as to Dr. Brigance’s claims. We find no reason to disagree.
6 Dr. Brigance also argues that the PLA prohibits use of exculpatory agreements as a defense to claims raised under its provisions and that the Ski School Waiver and Lift Ticket Waiver conflict with the public policies set forth in its provisions. But Dr. Brigance forfeited these arguments by failing to raise them in the district court. Avenue Capital Mgmt. II, 843 F.3d at 884. Although we may consider forfeited arguments under a plain-error standard, we decline to do so when, as here, the appellant fails to argue plain error on appeal. Id. at 885; see also Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011). We decline to address Dr. Brigance’s argument that the waivers are unenforceable because their language is broad enough to encompass willful and wanton behavior for the same reason.
In 1965, the Colorado General Assembly enacted the PTSA with the purpose of assisting “in safeguarding life, health, property, and the welfare of the state in the operation of passenger tramways.” Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70, 73 (Colo. 1998). [HN11] The PTSA provides that “it is the policy of the state of Colorado to establish a board empowered to prevent unnecessary mechanical hazards in the operation of passenger tramways” and to assure that reasonable design and construction, periodic inspections, and adequate devices and personnel are provided with respect to passenger [*35] tramways. Colo. Rev. Stat. § 25-5-701. The General Assembly empowered the board “with rulemaking and enforcement authority to carry out its functions,” including the authority to “conduct investigations and inspections” and “discipline ski area operators.” Bayer, 960 P.2d at 73-74; see also Colo. Rev. Stat. §§ 25-5-703 to -704, -706 to -707. With its authority, the board adopted the standards, with some alterations, utilized by the American National Standards Institute for passenger tramways. Bayer, 960 P.2d at 73-74.
The General Assembly enacted the SSA fourteen years later. The SSA “supplements the [PTSA]’s focus on ski lifts, but its principal function is to define the duties of ski areas and skiers with regard to activities and features on the ski slopes.” Id. at 74. [HN12] The provisions of the SSA indicate that “it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them” and that the SSA’s purpose is to supplement a portion of the PTSA by “further defin[ing] the legal responsibilities of ski area operators . . . and . . . the rights and liabilities existing between the skier and the ski area operator.” Colo. Rev. Stat. § 33-44-102. [HN13] In addition to the SSA’s provisions defining various responsibilities and duties of skiers and ski area operators, [*36] the 1990 amendments to the SSA limited the liability of ski area operators by providing that “no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” Id. at 33-44-112. The SSA also provides that any violation of its provisions applicable to skiers constitutes negligence on the part of the skier, while “[a] violation by a ski area operator of any requirement of [the SSA] or any rule or regulation promulgated by the passenger tramway safety board . . . shall . . . constitute negligence on the part of such operator.” Id. at 33-44-104. “The effect of these statutory provisions is to make violations of the [SSA] and [the rules and regulations promulgated by passenger tramway safety board] negligence per se.” Bayer, 960 P.2d at 74. [HN14] Ultimately, the SSA and PTSA together “provide a comprehensive . . . framework which preserves ski lift common law negligence actions, while at the same time limiting skier suits for inherent dangers on the slopes and defining per se negligence for violation of statutory and regulatory requirements.” Id. at 75.
Dr. Brigance contends the waivers conflict with the public policy objectives of the SSA and PTSA because enforcing [*37] either waiver would allow VSRI to disregard its statutorily defined responsibilities and duties. We find Dr. Brigance’s argument unpersuasive.
At the outset, it is worth reiterating that [HN15] under Colorado law exculpatory agreements are not invalid as contrary to public policy simply because they involve an activity subject to state regulation. Espinoza, 308 F.3d at 1154; see also id. at 1155 (acknowledging the Colorado Supreme Court has allowed enforcement of exculpatory agreements with respect to equine activities despite the existence of a statute limiting liability for equine professionals in certain circumstances, while still allowing for liability in other circumstances); Mincin, 308 F.3d at 1111 (“The fact that the Colorado legislature has limited landowner liability in the contexts of horseback riding and skiing is relevant to the question of whether landowner liability might be limited in other circumstances absent a contract.”). Similarly, exculpatory agreements do not conflict with Colorado public policy merely because they release liability to a greater extent than a release provided in a statute. See Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3; Chadwick, 100 P.3d at 468; B & B Livery, 960 P.2d at 137-38.
[HN16] It is true that the SSA and PTSA identify various duties and responsibilities that, if violated, may subject a ski area operator to [*38] liability. But the acts establish a framework preserving common law negligence actions in the ski and ski lift context, Bayer, 960 P.2d at 75, and do nothing to expressly or implicitly preclude private parties from contractually releasing potential common law negligence claims through use of an exculpatory agreement. While “a statute . . . need not explicitly bar waiver by contract for the contract provision to be invalid because it is contrary to public policy,” Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996), Dr. Brigance does not identify a single provision in either the SSA or PTSA suggesting the enforcement of exculpatory agreements in the ski and ski lift context is impermissible or contrary to public policy. Moreover, “Colorado law has long permitted parties to contract away negligence claims in the recreational context” and we “generally will not assume that the General Assembly mean[t] to displace background common law principles absent some clear legislative expression of that intent.” Espinoza, 809 F.3d at 1154, 1155. This principle is particularly relevant in the context of exculpatory agreements because “[t]he General Assembly . . . has shown that–when it wishes–it well knows how to displace background common law norms and preclude the release of civil claims.” Espinoza, 809 F.3d at 1154-55.
Our conclusion that [*39] the SSA and PTSA do not bar exculpatory agreements is supported by the Colorado Supreme Court’s regular enforcement of exculpatory agreements involving recreational activities, particularly in the context of equine activities, as well as the General Assembly’s relatively recent pronouncements regarding the public policy considerations involved in a parent’s ability to execute exculpatory agreements on behalf of its child with respect to prospective negligence claims. In 2002, the Colorado Supreme Court concluded that Colorado public policy prohibits a parent or guardian from releasing a minor’s prospective claims for negligence. See Cooper, 48 P.3d at 1237. The Colorado Supreme Court’s broad holding appeared to apply even within the context of recreational activities, as the relevant minor had injured himself while skiing. Id. at 1231-35. The following year, the General Assembly enacted Colo. Rev. Stat. § 13-22-107, which expressly declared that the General Assembly would not adopt the Colorado Supreme Court’s holding in Cooper. Colo. Rev. Stat. § 13-22-107(1)(b). Instead, the General Assembly explained that, among other things, it is the public policy of Colorado that “[c]hildren . . . should have the maximum opportunity to participate in sporting, recreational, educational, and other activities [*40] where certain risks may exist” and that “[p]ublic, private, and non-profit entities providing these essential activities to children in Colorado need a measure of protection against lawsuits.” Id. at 13-22-107(1)(a)(I)-(II). Accordingly, the General Assembly established that “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Id. at 13-22-107(3). The General Assembly’s enactment of § 33-22-107 reaffirms Colorado’s permissive position on the use of exculpatory agreements in the recreational context, and its authorization of parental releases and waivers suggests it did not intend and would not interpret the SSA as barring such agreements for adults.
Notwithstanding the lack of any statutory suggestion that the SSA and PTSA prohibit the enforcement of exculpatory agreements as a matter of public policy, Dr. Brigance contends two Colorado Court of Appeals decisions support her assertion to the contrary. In Stanley v. Creighton, the Colorado Court of Appeals analyzed an exculpatory clause in a residential rental agreement under the Jones factors and concluded that the agreement involved a public interest sufficient to invalidate the exculpatory [*41] clause. 911 P.2d at 707-08. The Stanley court reached this conclusion because, among other things, Colorado has long regulated the relationship between landlords and tenants, the PLA “confirms that landowner negligence is an issue of public concern,” and “a landlord’s services are generally held out to the public and . . . housing rental is a matter of practical necessity to the public.” Id. Although the Stanley court’s partial reliance on the existence of state regulations tends to support Dr. Brigance’s assertion that the existence of the SSA and PTSA render the Ski School Wavier and Lift Ticket Waiver either contrary to public policy or sufficient to satisfy the first Jones factor, the circumstances here are readily distinguishable. Unlike residential housing, skiing is not essential nor a matter of practical necessity. Among other considerations not present here, the Stanley court “placed greater emphasis on the essential nature of residential housing” and “alluded to a distinction between residential and commercial leases, implying that an exculpatory clause might well be valid in the context of a commercial lease.” Mincin, 308 F.3d at 1110.
Similarly, Dr. Brigance’s reliance on Phillips v. Monarch Recreation Corp., 668 P.2d 982 (Colo. App. 1983), does not alter our conclusion. In Phillips [*42]
, the Colorado Court of Appeals stated that “[s]tatutory provisions may not be modified by private agreement if doing so would violate the public policy expressed in the statute.” Id. at 987. Applying this principle, the Phillips court concluded that because the SSA “allocate[s] the parties’ respective duties with regard to the safety of those around them, . . . the trial court correctly excluded a purported [exculpatory] agreement intended to alter those duties.” Id. But apparently unlike the agreement at issue in Phillips, the Ski School Waiver and Lift Ticket Waiver do not appear to alter the duties placed upon VSRI under the SSA. See, Fullick, 1992 U.S. App. LEXIS 9988, 1992 WL 95421, at *3. And the court’s application of this principle to the SSA appears to be inconsistent with the more recent pronouncements by the Colorado Supreme Court and General Assembly regarding Colorado policies toward the enforceability of exculpatory agreements in the context of recreational activities. Moreover, as detailed above, the SSA and PTSA do not express a policy against exculpatory agreements.
“Given all this,” particularly the SSA’s and PTSA’s silence with respect to exculpatory agreements, “we do not think it our place to adorn the General Assembly’s handiwork with revisions to [*43] the [SSA, PTSA, and] common law that it easily could have but declined to undertake for itself.” Espinoza, 809 F.3d at 1155.
In summary, Colorado’s “relatively permissive public policy toward recreational releases” is one “that, no doubt, means some losses go uncompensated.” Espinoza, 809 F.3d at 1153. And the Colorado Supreme Court and General Assembly may someday “prefer a policy that shifts the burden of loss to the service provider, ensuring compensation in cases like this.” Id. But “that decision is their decision to make, not ours, and their current policy is clear.” Id. As a result, for the reasons stated above, we conclude the Ski School Waiver and Lift Ticket Waiver are enforceable and accordingly bar Dr. Brigance’s claims.
III. CONCLUSION
We AFFIRM the district court’s grant of summary judgment in favor of VSRI and, on this alternative basis, its partial grant of VSRI’s motion to dismiss.
Case sent back to trial court to determine liability when a rider improperly load’s a chairlift at a ski area and eventually falls, incurring no injuries.
Posted: May 15, 2023 Filed under: Arizona, Ski Area, Skiing / Snow Boarding | Tags: Arizona, Arizona Skier Safety Act, Business Invitee, Chair Lift, duty, Duty of care, mental anguish, Negligence, Physical Injury, Skier Safety Act Leave a commentArizona allows lawsuits for mental anguish when there is no physical injury.
McCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)
State: Arizona; Court of Appeals of Arizona, Division 1.
Plaintiff: Vincent MCCAW; Carly McCaw; Andrew McCaw
Defendant: Arizona Snowbowl Resort
Plaintiff Claims: Negligence causing emotional distress” and “psychiatric injuries
Defendant Defenses: Arizona Ski Safety Act
Holding: For the Plaintiffs
Year: 2022
Summary
Arizona appellate court holds that the Arizona Skier Safety Act does not protect ski areas from claims for injuries from chair lifts. The act covers the inherent risks of skiing/boarding but those acts are under the control of the ski area, and the rider has no control over a chair lift.
Facts
In December 2016, Vincent and his two children, 17-year-old Andrew and 14-year-old Carly, visited Snowbowl for a day of skiing and snowboarding. While they waited to load the ski chair lift, Andrew’s snowboard crossed Carly’s skis, causing her skis to “[go] out [from] underneath her.” Unable to steady herself and sit properly, Carly’s arms caught the approaching lift chair, leaving her “in a very severe slouch” position. With the skis and snowboard still entangled and believing she “would be able to get back on” properly, Carly did not attempt to maneuver away from the chair as it proceeded five to ten feet along a cable wire before beginning its ascent.
Upon realizing Carly’s precarious position, Vincent and Andrew grabbed her arms, turned toward the ski lift operator, and yelled for him to “stop” the ski lift. As other ski lift passengers became aware of the situation, they also began shouting at the operator for help. By that time, however, the operator was attending to other skiers in the load line and could not hear the passengers’ pleas over the sound of blaring music. Andrew and Vincent tried to hold onto Carly, but as she began to slip from their grasp, they determined they would have to let her go. When their chair traveled over powdered snow, Vincent and Andrew dropped Carly, hoping the unpacked snow would provide a safe landing. Carly fell over 34 feet but “popped right up” and waved to Vincent and Andrew upon landing.
After the ski lift incident, the McCaws resumed their normal lives and activities. However, Carly, Vincent, and Andrew began having recurring nightmares.
Alleging the ski lift incident caused them “emotional distress” and “psychiatric injuries,” the McCaws filed a negligence complaint against Snowbowl. Snowbowl answered, denying liability, and moved for summary judgment. Specifically, Snowbowl asserted that it “owed no duty” to the McCaws under the Act. Snowbowl also claimed that the McCaws failed to present evidence they sustained emotional distress “result[ing] in the kind of bodily manifestation of physical injury or illness cognizable under Arizona law.”
Analysis: making sense of the law based on these facts.
The court started out looking at Negligence as defined by Arizona’s law.
To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.”
Arizona’s law is no different than the majority of state laws in the US. The court then looked at duty. Too many times, defendant’s ski “duty” in their review of what the lawsuit is all about. Did you owe a duty to the injured person.
A duty is an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. “The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case.”
“As a legal matter, the issue of duty involves generalizations about categories of cases.” “Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.”
Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant,” as well as from public policy considerations. “Foreseeability of harm is not a relevant consideration in determining the threshold legal issue of whether a duty exists, nor are case-specific facts.”
The plaintiff argued that the defendant ski area owed them a duty because they were business invitees of the defendant. A business invitee as defined by Arizona’s law is:
In this case, the McCaws assert that Snowbowl owed them a duty of care based on their special relationship and status as Snowbowl’s business invitees. “A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Under the common law, a business owner has a duty to both maintain its premises in a reasonably safe condition and conduct its business in a reasonably safe manner to avoid causing injury to invitees.
It is undisputed that the McCaws were Snowbowl’s business invitees at the time of the ski lift incident. The question is whether the Act abrogates common-law negligence principles, relieving ski area operators of a duty of care they would otherwise owe to ski lift passengers.
Business invitee is a term used to describe the legal relationship between an injured person on the land and the land owner. Because the resort received value from the plaintiff’s they were a business invitee.
The court then turned to the Arizona Skier Safety Act which was being reviewed for the first time by the courts.
Under the first tier, or “primary assumption of risk,” a ski area operator owes no duty to a skier as a matter of law, and a negligence action cannot stand. (“[P]rimary assumption of the risk is an alternative expression for the proposition that the defendant … owed no duty to the plaintiff.”). The primary assumption of the risk principle applies only when the plaintiff has engaged in a sport, or other activity regarded as dangerous and “the injury suffered arises from an inherent risk in the activity.” (“[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.”); (“To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.”). Determining what constitutes an “inherent risk” presents a legal question for the court.
In contrast, under the secondary assumption of the risk tier, both the ski area operator and the skier have reciprocal responsibilities.
Using these definitions and applying the Arizona Skier Safety Act the court differentiated the duties owed to a skier versus those of a rider of the chair lift.
Applied to the Act, the primary assumption of risk tier governs any injury arising from the “inherent dangers and risks of skiing,” as statutorily defined. A.R.S. §§ 5-705(1), -701(5). Because a ski area operator owes no duty to eliminate or guard against risks inherent to skiing, it is only liable for a plaintiff’s injuries arising out of the dangers inherent to skiing if it breached its posting and equipment requirements as delineated in A.R.S. §§ 5-702 through -704, thereby contributing to the injuries sustained.
Because riding a chairlift is not an inherent risk of skiing, a different set of duties arises.
When an injury does not arise out of a risk inherent to skiing, common-law negligence principles apply, including a duty of care owed to business invitees. Because an operational failure with a ski lift is not an “inherent risk” of skiing, as that term is statutorily defined, the Act does not immunize a ski area operator from liability for ski lift negligence.
The rider of a chair lift is a business invitee, and the ski area owes that person different setup duties then someone who wonders upon their land. This analysis was supported by the argument that on the slopes and trails the rider had free will and could control their actions. On a chair lift, the rider was at the control and mercy of the chair lift operator.
This, too, is a rational solution because, unlike the slopes and trails, where a skier has “freedom of movement and choice,” a skier has no control over the movement of a ski lift.
This argument was summed up by the court as follows:
In sum, the Act provides a liability framework that generally maintains common-law negligence principles while immunizing ski area operators from lawsuits for injuries arising from the inherent risks of skiing. By its clear terms, the Act imposes a duty on skiers to have the knowledge and ability to safely load, ride, and unload from a ski lift, but it does not identify passage on a ski lift as an inherent risk of skiing.
After making this determination as to what part of the Arizona Skier Safety Act applied to what parts of skiing and riding, the court made this determination.
Having determined that ski area operators owe a duty of care to maintain and operate ski lifts safely and that passengers owe a duty of care to safely board, ride, and disembark ski lifts, whether Snowbowl or the McCaws, or both, breached their respective duties presents a question of fact.
If you are a skier or boarder, this decision might cause some issues. Was the resort at fault for not stopping the chair lift on time or was the skier at fault for not loading correctly. That question is now in the hands of the trial court again.
So Now What?
The Arizona court did not rule outside the parameters of any other court in a state that has a skier safety act. A higher degree of care is owed to clients in those situations where the act does not protect the ski area and/or the clients have no control of their situation.
One interesting note in the Arizona Skier Safety Act is § 5-706. Release of liability. This section specifically states that a release is valid under Arizona’s law and will take precedence in determining the liability of the ski area.
Another area the court did not touch on, but must be the law in Arizona is the lawsuit is about mental injury with no corresponding physical injury. Very few states allow this type of claim. Normally, there can be no damages for pain and suffering unless the claimant has suffered a physical injury.
For more Arizona decisions see:
Arizona limited right for parent to waive child’s right to sue
For more decisions concerning lift accidents see:
People including children fall off chair lifts.
Nevada family settles lawsuit over death of son swept off Nevada chair lift by Avalanche
Good record keeping proves defendant ski area did not operate lift improperly
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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McCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)
Posted: May 15, 2023 Filed under: Arizona, Legal Case, Ski Area, Skiing / Snow Boarding | Tags: Arizona, Arizona Snowbowl, Business Invitee, Chair Lift, duty, Duty Owed, rider, Skier, Skier Safety Act, Snowbowl Leave a commentMcCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)
84 Arizona Cases Digest 9
521 P.3d 381
Vincent MCCAW; Carly McCaw; Andrew McCaw, Plaintiffs/Appellants,
v.
ARIZONA SNOWBOWL RESORT, Defendant/Appellee.
No. 1 CA-CV 21-0585
Court of Appeals of Arizona, Division 1.
Filed November 22, 2022
Fuller Law Group PC, San Diego, CA, By Craig D. Fuller, Counsel for Plaintiffs/Appellants
Jones Skelton & Hochuli, Phoenix, By Jack Klecan, Kristin W. Basha, Eileen Dennis GilBride, Elizabeth B.N. Garcia, Co-Counsel for Defendant/Appellee
McClaugherty and Silver PC, Santa Fe, NM, By Joe L. McClaugherty, admitted pro hac vice, Co-Counsel for Defendant/Appellee
Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.
CAMPBELL, Judge:
¶1 Vincent, Carly, and Andrew McCaw (the McCaws) appeal from the superior court’s ruling granting summary judgment in favor of Arizona Snowbowl Resort (Snowbowl). Because the Arizona Ski Safety Act (the Act) does not shield a ski area operator from liability for injuries arising from ski lift accidents, it does not bar the McCaws’ negligence claims. Accordingly, we vacate the superior court’s summary judgment ruling and remand for proceedings consistent with this opinion.
BACKGROUND
¶2 In December 2016, Vincent and his two children, 17-year-old Andrew and 14-year-old Carly, visited Snowbowl for a day of skiing and snowboarding. While they waited to load the ski chair lift, Andrew’s snowboard crossed Carly’s skis, causing her skis to “[go] out [from] underneath her.” Unable to steady herself and sit properly, Carly’s arms caught the approaching lift chair, leaving her “in a very severe slouch” position. With the skis and snowboard still entangled and believing she “would be able to get back on” properly, Carly did not attempt to maneuver away from the chair as it proceeded five to ten feet along a cable wire before beginning its ascent.
¶3 Upon realizing Carly’s precarious position, Vincent and Andrew grabbed her arms, turned toward the ski lift operator, and yelled for him to “stop” the ski lift. As other ski lift passengers became aware of the situation, they also began shouting at the operator for help. By that time, however, the operator was attending to other skiers in the load line and could not hear the passengers’ pleas over the sound of blaring music. Andrew and Vincent tried to hold onto Carly, but as she began to slip from their grasp, they determined they would have to let her go. When their chair traveled over powdered snow, Vincent and Andrew dropped Carly, hoping the unpacked snow would provide a safe landing. Carly fell over 34 feet but “popped right up” and waved to Vincent and Andrew upon landing.
¶4 After the ski lift incident, the McCaws resumed their normal lives and activities. However, Carly, Vincent, and Andrew began having recurring nightmares.
¶5 Alleging the ski lift incident caused them “emotional distress” and “psychiatric injuries,” the McCaws filed a negligence complaint against Snowbowl. Snowbowl answered, denying liability, and moved for summary judgment. Specifically, Snowbowl asserted that it “owed no duty” to the McCaws under the Act. Snowbowl also claimed that the McCaws failed to present evidence they sustained emotional distress “result[ing] in the kind of bodily manifestation of physical injury or illness cognizable under Arizona law.”
¶6 After oral argument on the motion, the superior court granted summary judgment in favor of Snowbowl, agreeing that the ski area operator owed no duty to the McCaws. The superior court found that the Act “comprehensively defines the duties of skiers and the duties of a ski area operator.” Construing the Act’s provisions, the court determined that “the duty to safely (1) load, (2) ride, and (3) unload a chair lift is the skier’s exclusive duty and not a duty of the ski area operator.” Without ruling on Snowbowl’s alternative argument regarding insufficient evidence of cognizable damages, the superior court dismissed the matter with prejudice.1
¶7 Over the McCaws’ objection, the superior court awarded Snowbowl its requested costs and entered a final judgment in its favor. The McCaws timely appealed.
DISCUSSION
¶8 The McCaws challenge the superior court’s summary judgment ruling, contending Snowbowl owed them a duty to monitor the ski lift and promptly intercede when the misloading occurred. Disagreeing with the superior court’s determination that the Act assigns all duties related to ski lift safety “exclusively” to skiers, the McCaws argue that the Act provides ski area operators the affirmative defenses of contributory negligence and assumption of the risk. As a corollary, and for the first time on appeal, the McCaws assert that the superior court’s ruling violated Article 18, Section 5, of the Arizona Constitution by infringing on their right to have a jury determine the existence or extent of their contributory negligence and assumption of risk.
¶9 In reviewing a grant of summary judgment, we view the facts and the reasonable inferences drawn from those facts in the light most favorable to the non-moving party and affirm “if the evidence produced in support of the defense or claim has so little probative value that no reasonable person could find for its proponent.” State Comp. Fund v. Yellow Cab Co. of Phx. , 197 Ariz. 120, 122, ¶ 5, 3 P.3d 1040, 1042 (App. 1999). We review de novo the superior court’s application of the law. Id. ; see also Ariz. R. Civ. P. 56(a) (“The court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.”).
¶10 “To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey , 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). “Whether the defendant owes the plaintiff a duty of care is a threshold issue[,]” subject to our de novo review. Id. at ¶¶ 9, 11 ; Guerra v. State , 237 Ariz. 183, 185, ¶ 7, 348 P.3d 423, 425 (2015). To survive a motion for summary judgment, the plaintiff must show a duty exists; “absent some duty, an action for negligence cannot be maintained.” Quiroz v. ALCOA Inc. , 243 Ariz. 560, 563, ¶ 2, 416 P.3d 824, 827 (2018) ; Gipson , 214 Ariz. at 143, ¶ 11, 150 P.3d at 230.
¶11 A duty is an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Gipson , 214 Ariz. at 143, ¶ 10, 150 P.3d at 230 (quotation and citation omitted). “The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case.” Id. ; Markowitz v. Ariz. Parks Bd. , 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985) (noting the existence of a duty must not “be confused with details of the standard of conduct” required to satisfy the duty); see also
Stephens v. Bashas’ Inc. , 186 Ariz. 427, 431, 924 P.2d 117, 431 (App. 1996) (explaining that the existence of a duty must be determined “on the basis of the parties’ relationship, not on the details of their conduct”).
¶12 “As a legal matter, the issue of duty involves generalizations about categories of cases.” Gipson , 214 Ariz. at 143, ¶ 10, 150 P.3d at 230. “Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.” Id. at 143-44, ¶ 11, 150 P.3d at 230–31.
¶13 “Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant,” as well as from public policy considerations. Id. at 145, ¶¶ 18, 23, 150 P.3d at 232. “Foreseeability of harm is not a relevant consideration in determining the threshold legal issue of whether a duty exists, nor are case-specific facts.” Guerra , 237 Ariz. at 185, ¶ 8, 348 P.3d at 425 ; see also
Quiroz , 243 Ariz. at 563, ¶ 2, 416 P.3d at 827 ; Gipson , 214 Ariz. at 144, ¶ 15, 150 P.3d at 231.
¶14 In this case, the McCaws assert that Snowbowl owed them a duty of care based on their special relationship and status as Snowbowl’s business invitees. “A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Nicoletti v. Westcor, Inc. , 131 Ariz. 140, 143, 639 P.2d 330, 333 (1982) (internal quotations and citations omitted). Under the common law, a business owner has a duty to both maintain its premises in a reasonably safe condition and conduct its business in a reasonably safe manner to avoid causing injury to invitees. Stephens , 186 Ariz. at 430-31, 924 P.2d at 120–21 ; see also Restatement (Second) of Torts § 343 cmt. b (1965) (stating that “an invitee enters [land] upon an implied representation or assurance that [it] has been prepared and made ready and safe for his reception”).
¶15 It is undisputed that the McCaws were Snowbowl’s business invitees at the time of the ski lift incident. The question is whether the Act abrogates common-law negligence principles, relieving ski area operators of a duty of care they would otherwise owe to ski lift passengers.
¶16 “When interpreting a statute, our primary goal is to give effect to the legislature’s intent.” Wilks v. Manobianco , 237 Ariz. 443, 446, ¶ 8, 352 P.3d 912, 915 (2015) (quotation and citation omitted). To derive that intent, we consider the “statutory language in view of the entire text, considering the context and related statutes on the same subject.” Nicaise v. Sundaram , 245 Ariz. 566, 568, ¶ 11, 432 P.3d 925, 927 (2019). “If the language is clear and unambiguous,” we follow the text as written and “need not resort to other methods of statutory construction.” Indus. Comm’n of Ariz. v. Old Republic Ins. Co. , 223 Ariz. 75, 77, ¶ 7, 219 P.3d 285, 287 (App. 2009). Only if a statute is ambiguous will we examine “the statute’s history, context, consequences, and purpose.” Wilks , 237 Ariz. at 446, ¶ 8, 352 P.3d at 915. When statutes relate to the same subject or general purpose, they “should be read in connection with, or should be construed with other related statutes, as though they constituted one law.” Pinal Vista Props., L.L.C. v. Turnbull , 208 Ariz. 188, 190, ¶ 10, 91 P.3d 1031, 1033 (App. 2004) (quotation and citation omitted). “Further, each word or phrase of a statute must be given meaning so that no part is rendered void, superfluous, contradictory or insignificant.” Id.
¶17 “If the legislature seeks to preempt a cause of action[,] … the law’s text or at least the legislative record should say so explicitly.” Orca Commc’ns Unlimited, LLC v. Noder , 236 Ariz. 180, 182, ¶ 10, 337 P.3d 545, 547 (2014) (quotation and citation omitted). “Absent a clear manifestation of legislative intent to displace a common-law cause of action, we interpret statutes with every intendment in favor of consistency with the common law.” Id. (quotation and citation omitted); see also A.R.S. § 1-201 (“Adoption of common law; exceptions”). To be clear, “it is not the function of the courts to rewrite statutes,” and we will not “interpret a statute in favor of denial or preemption of tort claims – even those that are not or may not be constitutionally protected – if there is any reasonable doubt about the legislature’s intent.” Id. at ¶¶ 10-11 (quotations and citations omitted).
¶18 In 1997, the legislature enacted the Act, A.R.S. §§ 5-701 through -707, which regulates ski areas and delineates the responsibilities of both operators and skiers. Section 5-702 requires ski area operators to “prominently display signs” outlining “pertinent information for the protection and instruction” of ski lift passengers. A.R.S. § 5-702(A), (B). As relevant here, ski area operators must post a sign at the loading point of each ski lift admonishing “any person not familiar with the operation” of the ski lift to “ask ski area personnel for assistance and instruction .” A.R.S. § 5-702(B)(1) (emphasis added). In addition, ski area operators must place a sign on the interior of each ski lift chair “that gives instructions for procedures in the case of emergencies .” A.R.S. § 5-702(B)(3) (emphasis added). Similarly, A.R.S. § 5-703 requires ski area operators to display signs containing “pertinent information for the protection and instruction of skiers.” Among the required postings, ski area operators must display signs indicating the difficulty level of each slope and trail. A.R.S. § 5-703(B), (C). Ski area operators must also clearly mark the ski area boundaries and either place a warning sign or rope off closed areas. A.R.S. § 5-703(D), (F). Apart from posting signs at designated areas, ski area operators must maintain certain equipment, A.R.S. § 5-704, and mark all ski lift tickets and passes with the following admonition:
Warning: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing, including changing weather conditions, existing and changing snow surface conditions, surface or subsurface conditions, whether marked or unmarked, collisions with natural or man-made objects, whether marked or unmarked and the failure of skiers to ski within their own abilities.
A.R.S. § 5-703(G). This mandatory warning derives from A.R.S. § 5-701(5) ‘s definition of “[i]nherent dangers and risks of skiing”:
[T]hose dangers or conditions that are an integral part of the sport of skiing, excluding acts of ordinary or gross negligence, or reckless or intentional conduct on the part of the ski area operator . Inherent dangers and risks of skiing include:
(a) Changing weather conditions.
(b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.
(c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.
(d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.
(e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.
(f) Collisions with other skiers.
(g) The failure of skiers to ski within their own abilities.
(Emphasis added.)
¶19 In turn, A.R.S. § 5-705 outlines the “duties of a skier” for purposes of “any civil action brought by a skier against a ski area operator.” First and foremost, A.R.S. § 5-705(1) provides that “[a] skier expressly accepts the total risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing .” (Emphasis added.) Specific to this appeal, subsection (2) states: “Before using a chair lift … a skier shall have the knowledge and ability to safely load, ride and unload from the device,” and subsection (5) states: “A skier shall heed all posted information, signs and other warnings and shall refrain from acting in a manner that may cause or contribute to the injury of the skier or other persons or property.” A.R.S. § 5-705(2), (5). The remaining enumerated duties pertain to skiers’ conduct on slopes and trails. A.R.S. § 5-702(3), (4), (6)-(12).
¶20 Reading these related provisions together, the legislature adopted an analytical framework under which skiers assume all legal responsibility for injuries arising out of the inherent dangers of skiing while ski area operators retain common-law liability for both ordinary and gross negligence . As part of this framework, the legislature also imposed duties on ski area operators and skiers. Sections 5-702 to -704 impose certain posting and equipment maintenance duties on ski area operators, the breach of which constitutes negligence per se. Likewise, A.R.S. § 5-705 imposes certain responsibilities on skiers, the violation of which constitutes a defense to a civil action. This reading is consistent with the plain language of the Act.
¶21 While no previous Arizona case has interpreted the Act, courts in numerous other jurisdictions have construed similar ski safety acts enacted by their legislatures. Although not controlling, we find the two-tier assumption of risk analysis conceptualized in many of these out-of-state cases persuasive.
¶22 Under the first tier, or “primary assumption of risk,” a ski area operator owes no duty to a skier as a matter of law, and a negligence action cannot stand. Van Dyke v. S.K.I. Ltd. , 67 Cal.App.4th 1310, 79 Cal. Rptr. 2d 775, 778 (1998) ; see also
Lopez v. Ski Apache Resort , 114 N.M. 202, 836 P.2d 648, 653 (N.M. Ct. App. 1992) (“[P]rimary assumption of the risk is an alternative expression for the proposition that the defendant … owed no duty to the plaintiff.”). The primary assumption of the risk principle applies only when the plaintiff has engaged in a sport, or other activity regarded as dangerous and “the injury suffered arises from an inherent risk in the activity.” Van Dyke , 79 Cal. Rptr. 2d at 778 (emphasis added); see also
Jagger 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)); Horvath v. Ish , 134 Ohio St.3d 48, 979 N.E.2d 1246, 1251 (2012) (“To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.” (citation omitted)). Determining what constitutes an “inherent risk” presents a legal question for the court. Van Dyke , 79 Cal. Rptr. 2d at 778.
¶23 In contrast, under the secondary assumption of the risk tier, both the ski area operator and the skier have reciprocal responsibilities. See
Horvath , 979 N.E.2d at 1251 (determining the duties of operators and skiers “are reciprocal,” with “skiers ow[ing] ski-area operators certain enumerated responsibilities”); see also
Jagger , 849 A.2d at 828 (“For those hazards which are not an innate part of the sport of skiing, or over which an operator can act reasonably to eliminate or minimize the potential for harm, operators owe skiers a duty of reasonable care.”). Whether the parties breached their respective duties of care, and the comparative negligence of the parties, if any, present questions of fact for a jury. See
Jagger , 849 A.2d at 829.
¶24 Applied to the Act, the primary assumption of risk tier governs any injury arising from the “inherent dangers and risks of skiing,” as statutorily defined. A.R.S. §§ 5-705(1), -701(5). Because a ski area operator owes no duty to eliminate or guard against risks inherent to skiing, it is only liable for a plaintiff’s injuries arising out of the dangers inherent to skiing if it breached its posting and equipment requirements as delineated in A.R.S. §§ 5-702 through -704, thereby contributing to the injuries sustained. “This is a rational solution for limiting ski area operators’ liability and promoting safety.” Grieb v. Alpine Valley Ski Area, Inc. , 155 Mich.App. 484, 400 N.W.2d 653, 656 (1986) ; see also
Gipson , 214 Ariz. at 146, ¶ 29, 150 P.3d at 233 (“When a court or legislature adopts a no-duty rule, it generally does so based on concerns that potential liability would chill socially desirable conduct or otherwise have adverse effects.”).
¶25 When an injury does not arise out of a risk inherent to skiing, common-law negligence principles apply, including a duty of care owed to business invitees. See
Horvath , 979 N.E.2d at 1251. Because an operational failure with a ski lift is not an “inherent risk” of skiing, as that term is statutorily defined, the Act does not immunize a ski area operator from liability for ski lift negligence. See
Pietruska v. Craigmeur Ski Area , 259 N.J.Super. 532, 614 A.2d 639, 641 (1992) (“Improper operation of a ski lift is not an inherent risk of skiing since, with due care, it can be eliminated. While the [ski safety act] imposes certain duties on a skier who uses a lift, it does not identify proper usage thereof as an inherent risk.”). This, too, is a rational solution because, unlike the slopes and trails, where a skier has “freedom of movement and choice,” a skier has no control over the movement of a ski lift. See
Mannhard v. Clear Creek Skiing Corp. , 682 P.2d 64, 66 (Colo. Ct. App. 1983).
¶26 In sum, the Act provides a liability framework that generally maintains common-law negligence principles while immunizing ski area operators from lawsuits for injuries arising from the inherent risks of skiing. By its clear terms, the Act imposes a duty on skiers to have the knowledge and ability to safely load, ride, and unload from a ski lift, but it does not identify passage on a ski lift as an inherent risk of skiing. Indeed, other provisions in the Act demonstrate that a ski area operator owes a duty of care to ski lift passengers. For example, A.R.S. § 5-702(B)(1) requires ski area operators to assist inexperienced passengers in loading ski lifts, and A.R.S. § 5-702(B)(3) requires ski lift operators to have predetermined emergency procedures in place in the event of a ski lift mishap. While the Act charges a ski lift passenger with a duty of care to safely ride a ski lift,2 it does not relieve a ski area operator of the common-law duty to maintain and operate ski lifts with care for its business invitees. Had the legislature intended to foreclose a passenger from bringing a negligence claim against a ski area operator for an injury arising out of passage on a ski lift, it was required to do so by expressly abrogating the common law and including passage on a ski lift within the enumerated inherent risks of skiing. Young v. Beck , 227 Ariz. 1, 4, ¶ 13, 251 P.3d 380, 383 (2011) (“We generally do not find that a statute changes common law unless the legislature clearly and plainly manifests an intent to have the statute do so.” (cleaned up)). Absent express preemption language, we will not construe the Act as barring common-law negligence claims. See
Bayer v. Crested Butte Mountain Resort, Inc. , 960 P.2d 70, 72 (Colo. 1998) (“A ski lift operator must exercise the highest degree of care commensurate with the lift’s practical operation ….”); D’Amico v. Great Am. Recreation, Inc. , 265 N.J.Super. 496, 627 A.2d 1164, 1166-67 (1992) (concluding ski lift operators “should be held to the highest standard of care” because a “skier has no ability to stop the cable from moving” and cannot “exit the chair once it has begun its ascent”).
¶27 Having determined that ski area operators owe a duty of care to maintain and operate ski lifts safely and that passengers owe a duty of care to safely board, ride, and disembark ski lifts, whether Snowbowl or the McCaws, or both, breached their respective duties presents a question of fact.3
See
Wilks , 237 Ariz. at 447, ¶ 15, 352 P.3d at 916. Therefore, the superior court erred by granting summary judgment in Snowbowl’s favor on the basis that it owed no duty as a matter of law.4
CONCLUSION
¶28 For the foregoing reasons, we vacate the superior court’s summary judgment ruling and award of costs and remand for proceedings consistent with this opinion. In their briefing, the McCaws requested their attorneys’ fees incurred on appeal, failing to cite any supporting legal authority, but withdrew their request at oral argument. We award the McCaws their costs incurred on appeal, conditioned upon compliance with ARCAP 21.
——–
Notes:
1 Contrary to Snowbowl’s assertion, the superior court did not enter a “ruling” regarding the legal sufficiency of the McCaws’ damages evidence.
2 The McCaws posit that A.R.S. § 5-705(2) requires ski lift passengers only to possess the requisite knowledge to safely ride a ski lift, without requiring them to conform to that knowledge for both their protection and the safety of others. Stated differently, the McCaws argue that ski lift passengers have no duty to safely ride ski lifts under the Act. We reject this construction as nonsensical. See
Walgreen Ariz. Drug Co. v. Ariz. Dep’t of Revenue , 209 Ariz. 71, 73, ¶ 12, 97 P.3d 896, 898 (App. 2004) (explaining courts “interpret statutes to give them a fair and sensible meaning and to avoid absurd results”).
3 In this case, the extent of the plaintiffs’ contributory negligence, if any, must be determined individually.
4 Given our resolution of the duty issue, we need not address the McCaws’ constitutional claim.
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Ski Area not liable when skiers leave the ski run and collide with snow making equipment in Michigan.
Posted: October 2, 2022 Filed under: Assumption of the Risk, Michigan, Ski Area | Tags: fatality, Michigan Michigan Ski Area Safety Act, Michigan SASA, SASA, Schuss Mountain, ski run, Snow Making, Snow Making Equipment Leave a commentLitigation ensued because an important term in the Michigan’s Ski Area Safety Act was not defined in the act. What is a ski run?
Round v. Trinidad Resort & Club, LLC (Mich. App. 2022)
State: Michigan; Court of Appeals of Michigan
Plaintiff: Cheryle A. Round, as Personal Representative of the Estate of Charles R. Round
Defendant: Trinidad Resort & Club, LLC, Schuss Mountain
Plaintiff Claims: negligence action, alleging that defendant failed to comply with duties imposed under the SASA
Defendant Defenses: Release
Holding: For the defendant ski area
Year: 2022
Summary
Lawsuit against a ski area was based on a term in the statute that was not defined, forcing the court to define the term. What is a ski run? The decedent skied into snow making equipment and died. If on the ski run, the equipment must be marked. The equipment was not marked. The court also ruled over and embankment, not on snow and 15-25 feet from the edge of the run, the snow making equipment was not on the ski run.
Facts
On December 21, 2019, plaintiff’s decedent, Charles R. Round, died after allegedly sustaining fatal injuries when he collided with snow-making equipment at Schuss Mountain, a ski area owned and operated by defendant. At the time, Round was participating in an event called the Tannenbaum Blitzen parade whereby volunteer skiers ski down an unlit hill-known as Kingdom Come-at night while carrying lighted torches, eventually getting to the bottom of the hill to light the ski resort’s Christmas tree. Round was leading the parade of skiers-as he had for several years-when he suddenly veered to his left and skied beyond the edge of the ski run. A ski lift was located on the edge of the ski run and, underneath the ski lift, were four permanent snow-making machines installed at various points up the hill. At about the half-way point of the ski hill, Round crossed into this area, collided with a snow-making machine, and sustained severe injuries that proved fatal.
Analysis: making sense of the law based on these facts.
Pursuant to Michigan’s Ski Area Safety Act, a ski area is not liable for injuries to its patrons for collisions with snow making equipment if the snow making equipment is “properly marked or plainly visible.”
§ 408.342. Duties of skier in ski area; acceptance of dangers.
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.
The plaintiff argued the snow making equipment was not marked and had to be marked because it was located on the ski run. The defendant argued that the snow making equipment was not on the ski run. Ski run is not defined by the Michigan’s Ski Area Safety Act. The Michigan Appellate Court then had to use the plain meeting of the terms to derive a definition.
At minimum, the plain meaning of the phrase “ski run” for purposes of the SASA must include a path or route expected to be used for skiing down a hill. Indeed, ski runs are named, designed, constructed, groomed, and designated as the route skiers are to use for skiing down a particular hill. As this Court similarly noted in Rhoda v O’Dovero, Inc, unpublished per curiam opinion of the Court of Appeals: “Although the SASA does not define the terms ‘run,’ ‘slope’ or ‘trail,’ the plain, ordinary and common meanings of these terms encompass the paths a skier or snowboarder takes to get down a hill, including those paths designed and constructed by the ski operator for precisely that purpose.”
The court then went into the depositions presented by the defendant, witnesses who described the location of the snow making equipment when the deceased hit it.
The decedent was found 22′ off the run, over an embankment under the snow gun. It took several repetitions to move the deceased in a toboggan from where he was back up to the ski run.
The court reasoned if the snow gun which the deceased collided with was located on the trail, the other skiers following him would have hit the snow gun also.
The Appellate court sent the case back to the trail court with an order to grant the defendant’s motion to dismiss the case.
So Now What?
Short and sweet, but educational because of the issues the statute left out. Michigan’s Ski Area Safety Act is a combination of a skier safety act and a tramway act. Consequently, it is quite long with little have much to do with how the ski area is to operate. The act has definitions but most deal with the structure of the tramway issues.
When one term, as in this case ski run is used to defined part of a statute, that term needs to be defined, or we end up in a position like this, litigation to define what is a ski run.
What do you think? Leave a comment.
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Round v. Trinidad Resort & Club, LLC (Mich. App. 2022)
Posted: October 2, 2022 Filed under: Assumption of the Risk, Michigan, Ski Area | Tags: fatality, Michigan SASA, Michigan Ski Area Safety Act, Schuss Mountain, ski run, Snow Making Equipment Leave a commentRound v. Trinidad Resort & Club, LLC (Mich. App. 2022)
CHERYLE A. ROUND, as Personal Representative of the ESTATE OF CHARLES R. ROUND, Plaintiff/Counterdefendant-Appellee,
v.
TRINIDAD RESORT & CLUB, LLC,Defendant/Counterplaintiff-Appellant.
No. 357849
Court of Appeals of Michigan
September 15, 2022
UNPUBLISHED
Antrim County Circuit Court LC No. 20-009218-NO
Before: Cavanagh, P.J., and Garrett and Yates, JJ.
Per Curiam
Defendant appeals by leave granted[1] an order denying its motion for summary disposition which asserted that it was entitled to immunity under Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., because plaintiff could not demonstrate noncompliance with a statutory duty; the snow-making equipment that plaintiff’s decedent collided with was not located on the ski run so a warning sign was not required. We agree and reverse.
On December 21, 2019, plaintiff’s decedent, Charles R. Round, died after allegedly sustaining fatal injuries when he collided with snow-making equipment at Schuss Mountain, a ski area owned and operated by defendant. At the time, Round was participating in an event called the Tannenbaum Blitzen parade whereby volunteer skiers ski down an unlit hill-known as Kingdom Come-at night while carrying lighted torches, eventually getting to the bottom of the hill to light the ski resort’s Christmas tree. Round was leading the parade of skiers-as he had for several years-when he suddenly veered to his left and skied beyond the edge of the ski run. A ski lift was located on the edge of the ski run and, underneath the ski lift, were four permanent snow-making machines installed at various points up the hill. At about the half-way point of the ski hill, Round crossed into this area, collided with a snow-making machine, and sustained severe injuries that proved fatal.
On June 24, 2020, Round’s wife, Cheryle A. Round, filed this negligence action, alleging that defendant failed to comply with duties imposed under the SASA, including by:
a. Failing to ensure that the snow-making equipment was properly marked or plainly visible to skiers;
b. Failing to properly light the ski area during the event;
c. Failing to mark the snow-making machine with a visible sign or other warning device to warn approaching skiers;
d. Failing to construct or maintain physical barriers to prevent skiers from colliding with the snow-making machine; and
e. Failing to install protective padding around the snow-making machine to prevent serious injuries from collisions.
In response to plaintiff’s complaint, defendant asserted affirmative defenses, including that it was immune and plaintiff’s claim was barred by the SASA. Defendant also filed a counterclaim alleging breach of contract, indemnification, and other claims based on the release Round had signed.
On November 2, 2020, plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(9) and (C)(10) as to defendant’s defense of immunity under the SASA. Plaintiff argued that her decedent collided with a snow-making machine that was neither properly marked nor plainly visible during the nighttime event; thus, the SASA did not presume-as set forth under MCL 408.342(2)-that her decedent assumed the risk of being injured in this situation. Defendant responded to plaintiff’s motion arguing, in relevant part, that plaintiff’s decedent assumed the risk of skiing in the event and signed a release to that effect. But, further, defendant owed no duty to mark or make plainly visible the snow-making machine at issue because it was 10 feet tall and was not located on the ski run.
On January 4, 2021, the trial court rendered its decision and order granting plaintiff’s motion for summary disposition holding, in relevant part, that “the injury causing hazard (e.g. the snow-making equipment) was neither properly marked nor plainly visible, [and thus], the Decedent cannot be said to have assumed the inherent risk of the hazard and recovery is not precluded by SASA.”
Defendant filed its application for leave to appeal the trial court’s order which was denied “for failure to persuade the Court of the need for immediate appellate review.” See Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered May 18, 2021 (Docket No. 356123).
On April 27, 2021, defendant filed a motion for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), arguing that defendant strictly complied with its duties mandated by the SASA. And contrary to plaintiff’s claims, defendant had no duty under the SASA to light, mark, or pad the snow-making machine at issue because it is undisputed that (1) the ski run was not open to the public when plaintiff’s decedent was fatally injured, (2) the snow-making machine extended more than six feet above the snow surface; it was ten feet above the snow surface, and (3) the snow-making machine was located off of the ski run; it was nine feet away from the groomed edge of the ski run known as Kingdom Come. Moreover, plaintiff’s decedent breached his duties under the SASA to “maintain reasonable control of his or her speed and course at all times.” MCL 408.341(1). The video evidence showed that plaintiff’s decedent abruptly departed from the ski run without effort to correct his course before striking the snow-making machine. Defendant supported its motion with numerous exhibits, including deposition testimony transcripts, affidavits, an incident report, and photographs.
Plaintiff responded to defendant’s motion for summary disposition arguing, in relevant part, that the trial court already decided that plaintiff’s decedent did not assume the risk in this case, and thus, defendant was not entitled to immunity under the SASA. Further, plaintiff argued, (1) the ski run was open to the public when this incident occurred, (2) the snow-making machine was less than 6 feet above the snow surface when plaintiff’s expert, Stanley Gale, performed a site visit on March 6, 2021, and (3) the snow-making machine was located on the skiable portion of the trail, as Gale also determined, but, in any case, “it is the snow-making operations that must be located on the ski run-not the snow-making equipment itself.” Plaintiff supported her response with exhibits, including Gale’s investigative report.
Defendant replied to plaintiff’s response to its motion for summary disposition, arguing that (1) the ski run was not open to the public at the time of the accident, a fact supported by the deposition testimony of witnesses, the incident report, and even the deposition testimony of plaintiff’s purported expert, Stanley Gale; (2) the snow-making machine extended more than six feet above the snow surface at the time of the accident and Gale’s measurement using only his ski to gauge the distance more than one year after the accident was incompetent to refute defendant’s evidence; and (3) the snow-making machine was not located on the ski run, as even plaintiff’s decedent’s wife, son, and daughter admitted, and as testified to by other witnesses. Defendant supported its response with exhibits, including deposition testimony transcripts.
On June 1, 2021, the trial court heard oral argument on defendant’s motion and the parties argued consistently with their briefs. On June 27, 2021, the trial court entered an order denying defendant’s motion for summary disposition, holding that (1) whether the ski run was open to the public at the time of the accident is irrelevant but, in any case, was a question of fact for the jury considering that not just employees participated in the event; (2) whether the height of the snow-making machine at issue was six feet above the snow surface was a question of fact for the jury because plaintiff’s expert found it to be less than six feet and the machine had been manipulated; and (3) whether the snow-making equipment was located on the ski run was a question of fact for the jury because plaintiff’s expert stated that it was on a skiable portion of the trail. The court did not address defendant’s claim that plaintiff’s decedent breached his duties under MCL 408.341(1) of the SASA to “maintain reasonable control of his or her speed and course at all times.” Accordingly, the court concluded that genuine issues of material fact existed that must be decided by a jury, and thus, defendant’s motion was denied.
On July 16, 2021, defendant filed its application for leave to appeal arguing that preemptory reversal was required but, at minimum, leave to appeal should be granted. The snow-making equipment at issue in this case was not located on a ski run, and thus, defendant owed no duty to mark the snow-making equipment and cannot be held liable for plaintiff decedent’s accident. This Court granted leave to appeal. Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered September 1, 2021 (Docket No. 357849). On November 8, 2021, while this appeal was pending, plaintiff filed a motion to affirm which this Court denied. Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered November 24, 2021 (Docket No. 357849).
On appeal, defendant argues that it was entitled to summary disposition because the snow-making equipment at issue was not located on a ski run; thus, defendant had no duty to place a warning sign on that equipment and defendant cannot be held liable for plaintiff’s decedent’s accident. We agree.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Hughes v Region VII Area Agency on Aging, 277 Mich.App. 268, 273; 744 N.W.2d 10 (2007). Defendant’s motion for summary disposition was brought under MCR 2.116(C)(7) (immunity), (C)(8) (failure to state a claim), and (C)(10) (no material factual issue), but was supported by numerous exhibits. Although the trial court did not indicate under which subrule it denied defendant’s motion, the court considered matters outside of the pleadings and so we review the motion as having been denied under MCR 2.116(C)(10). See id.; see also Patterson v Kleiman, 447 Mich. 429, 434; 526 N.W.2d 879 (1994).
Further, issues of statutory interpretation are reviewed de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich. 20, 23; 664 N.W.2d 756 (2003). Our purpose in reviewing questions of statutory construction is to discern and give effect to the Legislature’s intent. Echelon Homes, LLC v Carter Lumber Co, 472 Mich. 192, 196; 694 N.W.2d 544 (2005). Our analysis begins by examining the plain language of the statute; if the language is unambiguous, no judicial construction is required or permitted and the statute must be enforced as written, giving its words their plain and ordinary meaning. Id. (citation omitted).
The SASA was enacted in 1962 “in an effort to provide some immunity for ski-area operators from personal-injury suits by injured skiers.” Anderson, 469 Mich. at 23. It delineates duties applicable to ski-area operators and to skiers. As to the duties imposed on skiers, and their acceptance of the associated risks of skiing, MCL 408.342 of the SASA provides, in part:
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare sports; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.
This provision has been referred to as an “assumption-of-risk provision,” and means that a skier has assumed the risk of being injured by these and similar dangers as inherent in the sport of skiing. Rusnak v Walker, 273 Mich.App. 299, 301, 304; 729 N.W.2d 542 (2007). Thus, when a skier’s injury arises from one of these dangers considered to be inherent in the sport of skiing, the ski-area operator is immune from liability unless the ski-area operator violated a specific duty imposed by the SASA that resulted in injury. Id. at 304-305, 313-314; see also Kent v Alpine Valley Ski Area, Inc, 240 Mich.App. 731, 742-744; 613 N.W.2d 383 (2000).
Relevant to this case is the immunity related to snow-making equipment. Under MCL 408.342(2), ski-area operators are immune from liability for collisions with snow-making equipment, if that equipment is “properly marked or plainly visible.” Plaintiff filed a motion for partial summary disposition which addressed SASA’s immunity provision, MCL 408.342(2). Specifically, plaintiff argued that defendant was not entitled to immunity because plaintiff’s decedent did not assume the risk of skiing into the unmarked and not plainly visible snow-making equipment at issue in this case. The trial court agreed and granted plaintiff’s motion, holding that the snow-making equipment was neither properly marked nor plainly visible, and thus, plaintiff’s decedent cannot be charged with assuming this risk as inherent in the sport of skiing so liability was not precluded under the SASA.
Thereafter, defendant filed the motion for summary disposition at issue here, arguing that the snow-making equipment at issue in this case actually did not have to be “properly marked or plainly visible” because it was not on the ski run; rather, plaintiff’s decedent skied off of the ski run and into an area that was not meant for skiing where he collided with the snow-making equipment. In other words, defendant argued that it breached no duty imposed by the SASA with regard to the snow-making equipment, and thus, could not be held liable for plaintiff’s decedent’s accident.
The duty provision pertaining to snow-making equipment is codified in MCL 408.326a(b) and Mich. Admin Code, R 408.80(2). These provisions address the issue that was not decided by plaintiff’s motion for summary disposition, i.e., whether defendant, as the ski-area operator, had a duty to mark the snow-making equipment in this case. If SASA did not require marking this equipment with a warning sign or other device, defendant did not breach any statutory duty to plaintiff and summary disposition in favor of defendant would be appropriate.
MCL 408.326a provides in relevant part:
Each ski area operator shall, with respect to operation of a ski area, do all of the following:
* * *
(b) Mark with a visible sign or other warning device the location of any hydrant or similar fixture or equipment used in snow-making operations located on a ski run, as prescribed by rules promulgated [by the Ski Area Safety Board].
The corresponding administrative rule, Mich. Admin Code, R 408.80, prescribes the conditions under which snow-making equipment must be marked, stating:
(1) When a ski run, slope, or trail is open to the public, the ski area operator shall mark snowmaking devices as stated in this rule.
(2) A ski area operator shall mark the location of any hydrant, snow gun, or similar fixture or equipment which is used in snowmaking operations located on a ski run and which extends less than 6 feet above the snow surface with a caution sign that has contrasting colors. An orange marking disc, with a minimum diameter of 8 inches, may be used as a caution sign. One sign is adequate for all devices within an area 3 feet on either side of the sign and 10 feet in the downhill direction of the ski run from the sign.
The dispositive issue here is whether the snow-making equipment at issue was “located on a ski run,” as set forth in MCL 408.326a(b) and R 408.80(2).[2] We conclude that it was not. Accordingly, defendant was not in violation of the SASA, and thus, could not be held liable for plaintiff’s decedent’s accident.
The SASA does not define the phrase “ski run.” When a statute does not define a term, it is construed in accordance with its ordinary and generally accepted meaning. Popma v Auto Club Ins Ass’n, 446 Mich. 460, 470; 521 N.W.2d 831 (1994). At minimum, the plain meaning of the phrase “ski run” for purposes of the SASA must include a path or route expected to be used for skiing down a hill. Indeed, ski runs are named, designed, constructed, groomed, and designated as the route skiers are to use for skiing down a particular hill. As this Court similarly noted in Rhoda v O’Dovero, Inc, unpublished per curiam opinion of the Court of Appeals, issued March 24, 2016 (Docket No. 321363), unpub op at 8: “Although the SASA does not define the terms ‘run,’ ‘slope’ or ‘trail,’ the plain, ordinary and common meanings of these terms encompass the paths a skier or snowboarder takes to get down a hill, including those paths designed and constructed by the ski operator for precisely that purpose.”[3]
In this case, no genuine issue of material fact exists-the snow-making equipment at issue was not located on the path or route expected to be used for skiing down Kingdom Come. The evidence presented by defendant in support of its argument included deposition testimony from witnesses. Plaintiff admitted during her deposition that she saw a video taken the night of the accident and she saw that her decedent actually veered the wrong way before striking the equipment-that had been in the same place for years-which was located off of the ski trail. Rick Van Tongeren, the snow sports school manager at the Shanty Creek Resort, testified that he watched a video taken the night of the incident and plaintiff’s decedent was skiing out of control in the wrong direction, i.e., not on the expected path, and was skiing very fast before the accident.
Mike Moreen, the director of the ski patrol at the Shanty Creek Resort, testified that he was skiing in the parade and was at the back of the lineup when he received a radio call from Fred Hunt that ski patrol was needed “skier’s left off of ski run about halfway down the hill.” When Moreen arrived to help Round, he saw that Round was “in a difficult location down off of the skiing surface, underneath the snow gun, underneath the structure, the stanchion of the snow gun . . . .” Moreen noted that they were “in deep snow” and “were off of the skiing surface quite a ways, several feet.” Round was down an embankment; about 10 to 15 feet away. And after they got Round on the toboggan to remove him from the accident site, “it probably took four or five repetitions to get him from the snow gun up to the skiing surface.”
Mark Durance, a member of the ski patrol at the Shanty Creek Resort, testified that he was skiing in the parade and was the second person from the last in the lineup. When the radio call came in, Durance followed Moreen to the accident site. Round was located about “ten feet or so off the ski run so it’s not a run.” Durance could not really determine Round’s condition “because he was so far off the existing run” that he could barely make observations. Ted Ewald, a ski instructor at Shanty Creek Resort, testified that he was skiing in the parade about 10 people from the front and he saw that “somebody went into the woods . . . .” But he did not see precisely what happened, the actual event; “I saw something in the woods when I skied by there.”
The evidence presented by defendant in support of its motion for summary disposition also included an incident report. The incident report included witness statements. One witness, Michael Casey, who was the third person from the front skiing in the parade, reported that he saw that Round-who was the leader of the parade-at one point seemed to be a lot further away than he should have been, indicating increased speed. He then saw Round “go off the ski hill into the woods.”
The incident report included a drawing of the snow-making machine at issue and depicted measurements taken the day after the accident. The drawing shows that the snow-making machine was located nine feet from the groomed trail; the machine sat between the groomed trail and trees, i.e., a “woods,” that was located 22 feet from the groomed trail; and the machine stood ten feet tall above the snow surface. The drafter of the drawing, Tom Murton, averred in an affidavit that he drew the diagram after the accident and the precise measurements were accurate. Murton also testified in a deposition about his investigation of the accident-including the measurements taken-that occurred the day after the accident. He testified that the snow-making equipment at issue is not part of Kingdom Come’s groomed ski surface or the ski run itself and had been in the same location permanently since at least the mid-1990s when he began working there. Photographs were also submitted in support of defendant’s motion for summary disposition and they show the scene of the accident, including the snow-making machine at issue, and it is clear that the machine was very close to the wooded area and not on the ski run known as Kingdom Come.
In opposition to defendant’s claim that it had no duty to mark the snow-making equipment at issue in this case because it was “not located on a ski run,” plaintiff argued that the machine was located on a skiable portion of the trail. Plaintiff supported that argument with a report from her purported expert, Gale, which stated that the snow-making machine was located on the skiable portion of the trail. But it is unclear as to what Gale considered a “skiable portion of the trail.” At issue here was the path or route expected to be used for skiing down Kingdom Come. Any area where there is snow is likely to be considered by some people as “skiable,” or able to be skied on-even areas that are not expected to be skied on and areas not designed or designated for skiing. We cannot agree with the trial court that Gale’s statement, alone-and which is unsupported by precise measurements or other evidence-is sufficient to establish a genuine issue of disputed fact that warrants a trial. The party filing a motion for summary disposition has the initial burden of supporting its position with documentary evidence and the party opposing that motion must then establish by evidentiary materials that a genuine issue of disputed fact exists. Quinto v Cross & Peters Co, 451 Mich. 358, 362; 547 N.W.2d 314 (1996). Defendant provided a plethora of evidence establishing that plaintiff’s decedent did not encounter and collide with the snow-making equipment on the path or route expected to be used for skiing down Kingdom Come. Gale’s claim that the snow-making equipment was located on a “skiable portion of the trail” is not sufficient to establish that it was “located on a ski run,” which would give rise to a duty for defendant to mark that equipment with a caution sign or other warning device.
And most obviously in this case, if the snow-making machine at issue was, in fact, located on the path or route expected to be used for skiing down Kingdom Come-within the contemplation of R 408.80(2), other skiers in the Tannenbaum Blitzen parade would likely have collided with-or at least seen and avoided-that equipment. There is no such evidence. The SASA imposes certain and specific duties on ski-area operators, one of which is to mark the location of snow-making equipment “located on a ski run and which extends less than 6 feet above the snow surface . . . .” Mich. Admin Code, R 408.80(2); see also MCL 408.326a(b). Clearly, snow-making equipment that is located on a ski run and which extends more than 6 feet above the snow surface need not be marked. This balancing of responsibilities recognizes that skiers are charged with exercising care for their own safety by avoiding obvious hazards they might encounter skiing down a hill, and ski-area operators are charged with providing warnings when a hazard that a skier might encounter skiing down a hill is less likely to be obvious. A ski-area operator is not charged by law with the impossible task of making its ski runs or every allegedly “skiable” area at its facility “accident proof.” Ski-area operators are not absolute insurers of safety, particularly with regard to those skiers who intentionally or inadvertently ski off the path or route expected to be used for skiing down a particular hill. This conclusion is consistent with the SASA’s purpose of “promoting safety, reducing litigation and stabilizing the economic conditions in the ski resort industry,” Grieb v Alpine Valley Ski Area, Inc, 155 Mich.App. 484, 487; 400 N.W.2d 653 (1986), while at the same time ensures that ski-area operators stay vigilant and responsible for providing reasonably safe skiing conditions in the areas their patrons are invited, and expected, to ski.
In this case, the trial court erred in denying defendant’s motion for summary disposition because defendant had no duty under the SASA to mark the location of the snow-making equipment that plaintiff’s decedent collided with, allegedly causing his fatal injuries. There is no genuine issue of fact that the snow-making equipment was not located on the ski run, i.e., the path or route expected to be used for skiing down Kingdom Come. Therefore, we reverse the trial court’s decision. This matter is remanded to the trial court for entry of an order granting defendant’s motion for summary disposition and dismissing this case.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
———
Notes:
[1]
Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered September 1, 2021 (Docket No. 357849).
[2] To the extent plaintiff argues that it was the snow-making operations that must be on the ski run and not the snow-making equipment itself, we reject that argument as inconsistent with the plain language of MCL 408.326a(b) and R 408.80(2).
[3] Although not binding precedent, a court may consider unpublished opinions for their instructive or persuasive value. Cox v Hartman, 322 Mich.App. 292, 307; 911 N.W.2d 219 (2017).
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Round v. Trinidad Resort & Club, LLC (Mich. App. 2022)
Posted: September 26, 2022 Filed under: Assumption of the Risk, Michigan, Ski Area | Tags: fatality, Michigan, Michigan Ski Area Safety Act, SASA, ski area, ski run, Snow Making, Snow Making Equipment Leave a commentRound v. Trinidad Resort & Club, LLC (Mich. App. 2022)
CHERYLE A. ROUND, as Personal Representative of the ESTATE OF CHARLES R. ROUND, Plaintiff/Counterdefendant-Appellee,
v.
TRINIDAD RESORT & CLUB, LLC,Defendant/Counterplaintiff-Appellant.
No. 357849
Court of Appeals of Michigan
September 15, 2022
UNPUBLISHED
Antrim County Circuit Court LC No. 20-009218-NO
Before: Cavanagh, P.J., and Garrett and Yates, JJ.
Per Curiam
Defendant appeals by leave granted[1] an order denying its motion for summary disposition which asserted that it was entitled to immunity under Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., because plaintiff could not demonstrate noncompliance with a statutory duty; the snow-making equipment that plaintiff’s decedent collided with was not located on the ski run so a warning sign was not required. We agree and reverse.
On December 21, 2019, plaintiff’s decedent, Charles R. Round, died after allegedly sustaining fatal injuries when he collided with snow-making equipment at Schuss Mountain, a ski area owned and operated by defendant. At the time, Round was participating in an event called the Tannenbaum Blitzen parade whereby volunteer skiers ski down an unlit hill-known as Kingdom Come-at night while carrying lighted torches, eventually getting to the bottom of the hill to light the ski resort’s Christmas tree. Round was leading the parade of skiers-as he had for several years-when he suddenly veered to his left and skied beyond the edge of the ski run. A ski lift was located on the edge of the ski run and, underneath the ski lift, were four permanent snow-making machines installed at various points up the hill. At about the half-way point of the ski hill, Round crossed into this area, collided with a snow-making machine, and sustained severe injuries that proved fatal.
On June 24, 2020, Round’s wife, Cheryle A. Round, filed this negligence action, alleging that defendant failed to comply with duties imposed under the SASA, including by:
a. Failing to ensure that the snow-making equipment was properly marked or plainly visible to skiers;
b. Failing to properly light the ski area during the event;
c. Failing to mark the snow-making machine with a visible sign or other warning device to warn approaching skiers;
d. Failing to construct or maintain physical barriers to prevent skiers from colliding with the snow-making machine; and
e. Failing to install protective padding around the snow-making machine to prevent serious injuries from collisions.
In response to plaintiff’s complaint, defendant asserted affirmative defenses, including that it was immune and plaintiff’s claim was barred by the SASA. Defendant also filed a counterclaim alleging breach of contract, indemnification, and other claims based on the release Round had signed.
On November 2, 2020, plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(9) and (C)(10) as to defendant’s defense of immunity under the SASA. Plaintiff argued that her decedent collided with a snow-making machine that was neither properly marked nor plainly visible during the nighttime event; thus, the SASA did not presume-as set forth under MCL 408.342(2)-that her decedent assumed the risk of being injured in this situation. Defendant responded to plaintiff’s motion arguing, in relevant part, that plaintiff’s decedent assumed the risk of skiing in the event and signed a release to that effect. But, further, defendant owed no duty to mark or make plainly visible the snow-making machine at issue because it was 10 feet tall and was not located on the ski run.
On January 4, 2021, the trial court rendered its decision and order granting plaintiff’s motion for summary disposition holding, in relevant part, that “the injury causing hazard (e.g. the snow-making equipment) was neither properly marked nor plainly visible, [and thus], the Decedent cannot be said to have assumed the inherent risk of the hazard and recovery is not precluded by SASA.”
Defendant filed its application for leave to appeal the trial court’s order which was denied “for failure to persuade the Court of the need for immediate appellate review.” See Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered May 18, 2021 (Docket No. 356123).
On April 27, 2021, defendant filed a motion for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), arguing that defendant strictly complied with its duties mandated by the SASA. And contrary to plaintiff’s claims, defendant had no duty under the SASA to light, mark, or pad the snow-making machine at issue because it is undisputed that (1) the ski run was not open to the public when plaintiff’s decedent was fatally injured, (2) the snow-making machine extended more than six feet above the snow surface; it was ten feet above the snow surface, and (3) the snow-making machine was located off of the ski run; it was nine feet away from the groomed edge of the ski run known as Kingdom Come. Moreover, plaintiff’s decedent breached his duties under the SASA to “maintain reasonable control of his or her speed and course at all times.” MCL 408.341(1). The video evidence showed that plaintiff’s decedent abruptly departed from the ski run without effort to correct his course before striking the snow-making machine. Defendant supported its motion with numerous exhibits, including deposition testimony transcripts, affidavits, an incident report, and photographs.
Plaintiff responded to defendant’s motion for summary disposition arguing, in relevant part, that the trial court already decided that plaintiff’s decedent did not assume the risk in this case, and thus, defendant was not entitled to immunity under the SASA. Further, plaintiff argued, (1) the ski run was open to the public when this incident occurred, (2) the snow-making machine was less than 6 feet above the snow surface when plaintiff’s expert, Stanley Gale, performed a site visit on March 6, 2021, and (3) the snow-making machine was located on the skiable portion of the trail, as Gale also determined, but, in any case, “it is the snow-making operations that must be located on the ski run-not the snow-making equipment itself.” Plaintiff supported her response with exhibits, including Gale’s investigative report.
Defendant replied to plaintiff’s response to its motion for summary disposition, arguing that (1) the ski run was not open to the public at the time of the accident, a fact supported by the deposition testimony of witnesses, the incident report, and even the deposition testimony of plaintiff’s purported expert, Stanley Gale; (2) the snow-making machine extended more than six feet above the snow surface at the time of the accident and Gale’s measurement using only his ski to gauge the distance more than one year after the accident was incompetent to refute defendant’s evidence; and (3) the snow-making machine was not located on the ski run, as even plaintiff’s decedent’s wife, son, and daughter admitted, and as testified to by other witnesses. Defendant supported its response with exhibits, including deposition testimony transcripts.
On June 1, 2021, the trial court heard oral argument on defendant’s motion and the parties argued consistently with their briefs. On June 27, 2021, the trial court entered an order denying defendant’s motion for summary disposition, holding that (1) whether the ski run was open to the public at the time of the accident is irrelevant but, in any case, was a question of fact for the jury considering that not just employees participated in the event; (2) whether the height of the snow-making machine at issue was six feet above the snow surface was a question of fact for the jury because plaintiff’s expert found it to be less than six feet and the machine had been manipulated; and (3) whether the snow-making equipment was located on the ski run was a question of fact for the jury because plaintiff’s expert stated that it was on a skiable portion of the trail. The court did not address defendant’s claim that plaintiff’s decedent breached his duties under MCL 408.341(1) of the SASA to “maintain reasonable control of his or her speed and course at all times.” Accordingly, the court concluded that genuine issues of material fact existed that must be decided by a jury, and thus, defendant’s motion was denied.
On July 16, 2021, defendant filed its application for leave to appeal arguing that preemptory reversal was required but, at minimum, leave to appeal should be granted. The snow-making equipment at issue in this case was not located on a ski run, and thus, defendant owed no duty to mark the snow-making equipment and cannot be held liable for plaintiff decedent’s accident. This Court granted leave to appeal. Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered September 1, 2021 (Docket No. 357849). On November 8, 2021, while this appeal was pending, plaintiff filed a motion to affirm which this Court denied. Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered November 24, 2021 (Docket No. 357849).
On appeal, defendant argues that it was entitled to summary disposition because the snow-making equipment at issue was not located on a ski run; thus, defendant had no duty to place a warning sign on that equipment and defendant cannot be held liable for plaintiff’s decedent’s accident. We agree.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Hughes v Region VII Area Agency on Aging, 277 Mich.App. 268, 273; 744 N.W.2d 10 (2007). Defendant’s motion for summary disposition was brought under MCR 2.116(C)(7) (immunity), (C)(8) (failure to state a claim), and (C)(10) (no material factual issue), but was supported by numerous exhibits. Although the trial court did not indicate under which subrule it denied defendant’s motion, the court considered matters outside of the pleadings and so we review the motion as having been denied under MCR 2.116(C)(10). See id.; see also Patterson v Kleiman, 447 Mich. 429, 434; 526 N.W.2d 879 (1994).
Further, issues of statutory interpretation are reviewed de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich. 20, 23; 664 N.W.2d 756 (2003). Our purpose in reviewing questions of statutory construction is to discern and give effect to the Legislature’s intent. Echelon Homes, LLC v Carter Lumber Co, 472 Mich. 192, 196; 694 N.W.2d 544 (2005). Our analysis begins by examining the plain language of the statute; if the language is unambiguous, no judicial construction is required or permitted and the statute must be enforced as written, giving its words their plain and ordinary meaning. Id. (citation omitted).
The SASA was enacted in 1962 “in an effort to provide some immunity for ski-area operators from personal-injury suits by injured skiers.” Anderson, 469 Mich. at 23. It delineates duties applicable to ski-area operators and to skiers. As to the duties imposed on skiers, and their acceptance of the associated risks of skiing, MCL 408.342 of the SASA provides, in part:
(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare sports; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.
This provision has been referred to as an “assumption-of-risk provision,” and means that a skier has assumed the risk of being injured by these and similar dangers as inherent in the sport of skiing. Rusnak v Walker, 273 Mich.App. 299, 301, 304; 729 N.W.2d 542 (2007). Thus, when a skier’s injury arises from one of these dangers considered to be inherent in the sport of skiing, the ski-area operator is immune from liability unless the ski-area operator violated a specific duty imposed by the SASA that resulted in injury. Id. at 304-305, 313-314; see also Kent v Alpine Valley Ski Area, Inc, 240 Mich.App. 731, 742-744; 613 N.W.2d 383 (2000).
Relevant to this case is the immunity related to snow-making equipment. Under MCL 408.342(2), ski-area operators are immune from liability for collisions with snow-making equipment, if that equipment is “properly marked or plainly visible.” Plaintiff filed a motion for partial summary disposition which addressed SASA’s immunity provision, MCL 408.342(2). Specifically, plaintiff argued that defendant was not entitled to immunity because plaintiff’s decedent did not assume the risk of skiing into the unmarked and not plainly visible snow-making equipment at issue in this case. The trial court agreed and granted plaintiff’s motion, holding that the snow-making equipment was neither properly marked nor plainly visible, and thus, plaintiff’s decedent cannot be charged with assuming this risk as inherent in the sport of skiing so liability was not precluded under the SASA.
Thereafter, defendant filed the motion for summary disposition at issue here, arguing that the snow-making equipment at issue in this case actually did not have to be “properly marked or plainly visible” because it was not on the ski run; rather, plaintiff’s decedent skied off of the ski run and into an area that was not meant for skiing where he collided with the snow-making equipment. In other words, defendant argued that it breached no duty imposed by the SASA with regard to the snow-making equipment, and thus, could not be held liable for plaintiff’s decedent’s accident.
The duty provision pertaining to snow-making equipment is codified in MCL 408.326a(b) and Mich. Admin Code, R 408.80(2). These provisions address the issue that was not decided by plaintiff’s motion for summary disposition, i.e., whether defendant, as the ski-area operator, had a duty to mark the snow-making equipment in this case. If SASA did not require marking this equipment with a warning sign or other device, defendant did not breach any statutory duty to plaintiff and summary disposition in favor of defendant would be appropriate.
MCL 408.326a provides in relevant part:
Each ski area operator shall, with respect to operation of a ski area, do all of the following:
* * *
(b) Mark with a visible sign or other warning device the location of any hydrant or similar fixture or equipment used in snow-making operations located on a ski run, as prescribed by rules promulgated [by the Ski Area Safety Board].
The corresponding administrative rule, Mich. Admin Code, R 408.80, prescribes the conditions under which snow-making equipment must be marked, stating:
(1) When a ski run, slope, or trail is open to the public, the ski area operator shall mark snowmaking devices as stated in this rule.
(2) A ski area operator shall mark the location of any hydrant, snow gun, or similar fixture or equipment which is used in snowmaking operations located on a ski run and which extends less than 6 feet above the snow surface with a caution sign that has contrasting colors. An orange marking disc, with a minimum diameter of 8 inches, may be used as a caution sign. One sign is adequate for all devices within an area 3 feet on either side of the sign and 10 feet in the downhill direction of the ski run from the sign.
The dispositive issue here is whether the snow-making equipment at issue was “located on a ski run,” as set forth in MCL 408.326a(b) and R 408.80(2).[2] We conclude that it was not. Accordingly, defendant was not in violation of the SASA, and thus, could not be held liable for plaintiff’s decedent’s accident.
The SASA does not define the phrase “ski run.” When a statute does not define a term, it is construed in accordance with its ordinary and generally accepted meaning. Popma v Auto Club Ins Ass’n, 446 Mich. 460, 470; 521 N.W.2d 831 (1994). At minimum, the plain meaning of the phrase “ski run” for purposes of the SASA must include a path or route expected to be used for skiing down a hill. Indeed, ski runs are named, designed, constructed, groomed, and designated as the route skiers are to use for skiing down a particular hill. As this Court similarly noted in Rhoda v O’Dovero, Inc, unpublished per curiam opinion of the Court of Appeals, issued March 24, 2016 (Docket No. 321363), unpub op at 8: “Although the SASA does not define the terms ‘run,’ ‘slope’ or ‘trail,’ the plain, ordinary and common meanings of these terms encompass the paths a skier or snowboarder takes to get down a hill, including those paths designed and constructed by the ski operator for precisely that purpose.”[3]
In this case, no genuine issue of material fact exists-the snow-making equipment at issue was not located on the path or route expected to be used for skiing down Kingdom Come. The evidence presented by defendant in support of its argument included deposition testimony from witnesses. Plaintiff admitted during her deposition that she saw a video taken the night of the accident and she saw that her decedent actually veered the wrong way before striking the equipment-that had been in the same place for years-which was located off of the ski trail. Rick Van Tongeren, the snow sports school manager at the Shanty Creek Resort, testified that he watched a video taken the night of the incident and plaintiff’s decedent was skiing out of control in the wrong direction, i.e., not on the expected path, and was skiing very fast before the accident.
Mike Moreen, the director of the ski patrol at the Shanty Creek Resort, testified that he was skiing in the parade and was at the back of the lineup when he received a radio call from Fred Hunt that ski patrol was needed “skier’s left off of ski run about halfway down the hill.” When Moreen arrived to help Round, he saw that Round was “in a difficult location down off of the skiing surface, underneath the snow gun, underneath the structure, the stanchion of the snow gun . . . .” Moreen noted that they were “in deep snow” and “were off of the skiing surface quite a ways, several feet.” Round was down an embankment; about 10 to 15 feet away. And after they got Round on the toboggan to remove him from the accident site, “it probably took four or five repetitions to get him from the snow gun up to the skiing surface.”
Mark Durance, a member of the ski patrol at the Shanty Creek Resort, testified that he was skiing in the parade and was the second person from the last in the lineup. When the radio call came in, Durance followed Moreen to the accident site. Round was located about “ten feet or so off the ski run so it’s not a run.” Durance could not really determine Round’s condition “because he was so far off the existing run” that he could barely make observations. Ted Ewald, a ski instructor at Shanty Creek Resort, testified that he was skiing in the parade about 10 people from the front and he saw that “somebody went into the woods . . . .” But he did not see precisely what happened, the actual event; “I saw something in the woods when I skied by there.”
The evidence presented by defendant in support of its motion for summary disposition also included an incident report. The incident report included witness statements. One witness, Michael Casey, who was the third person from the front skiing in the parade, reported that he saw that Round-who was the leader of the parade-at one point seemed to be a lot further away than he should have been, indicating increased speed. He then saw Round “go off the ski hill into the woods.”
The incident report included a drawing of the snow-making machine at issue and depicted measurements taken the day after the accident. The drawing shows that the snow-making machine was located nine feet from the groomed trail; the machine sat between the groomed trail and trees, i.e., a “woods,” that was located 22 feet from the groomed trail; and the machine stood ten feet tall above the snow surface. The drafter of the drawing, Tom Murton, averred in an affidavit that he drew the diagram after the accident and the precise measurements were accurate. Murton also testified in a deposition about his investigation of the accident-including the measurements taken-that occurred the day after the accident. He testified that the snow-making equipment at issue is not part of Kingdom Come’s groomed ski surface or the ski run itself and had been in the same location permanently since at least the mid-1990s when he began working there. Photographs were also submitted in support of defendant’s motion for summary disposition and they show the scene of the accident, including the snow-making machine at issue, and it is clear that the machine was very close to the wooded area and not on the ski run known as Kingdom Come.
In opposition to defendant’s claim that it had no duty to mark the snow-making equipment at issue in this case because it was “not located on a ski run,” plaintiff argued that the machine was located on a skiable portion of the trail. Plaintiff supported that argument with a report from her purported expert, Gale, which stated that the snow-making machine was located on the skiable portion of the trail. But it is unclear as to what Gale considered a “skiable portion of the trail.” At issue here was the path or route expected to be used for skiing down Kingdom Come. Any area where there is snow is likely to be considered by some people as “skiable,” or able to be skied on-even areas that are not expected to be skied on and areas not designed or designated for skiing. We cannot agree with the trial court that Gale’s statement, alone-and which is unsupported by precise measurements or other evidence-is sufficient to establish a genuine issue of disputed fact that warrants a trial. The party filing a motion for summary disposition has the initial burden of supporting its position with documentary evidence and the party opposing that motion must then establish by evidentiary materials that a genuine issue of disputed fact exists. Quinto v Cross & Peters Co, 451 Mich. 358, 362; 547 N.W.2d 314 (1996). Defendant provided a plethora of evidence establishing that plaintiff’s decedent did not encounter and collide with the snow-making equipment on the path or route expected to be used for skiing down Kingdom Come. Gale’s claim that the snow-making equipment was located on a “skiable portion of the trail” is not sufficient to establish that it was “located on a ski run,” which would give rise to a duty for defendant to mark that equipment with a caution sign or other warning device.
And most obviously in this case, if the snow-making machine at issue was, in fact, located on the path or route expected to be used for skiing down Kingdom Come-within the contemplation of R 408.80(2), other skiers in the Tannenbaum Blitzen parade would likely have collided with-or at least seen and avoided-that equipment. There is no such evidence. The SASA imposes certain and specific duties on ski-area operators, one of which is to mark the location of snow-making equipment “located on a ski run and which extends less than 6 feet above the snow surface . . . .” Mich. Admin Code, R 408.80(2); see also MCL 408.326a(b). Clearly, snow-making equipment that is located on a ski run and which extends more than 6 feet above the snow surface need not be marked. This balancing of responsibilities recognizes that skiers are charged with exercising care for their own safety by avoiding obvious hazards they might encounter skiing down a hill, and ski-area operators are charged with providing warnings when a hazard that a skier might encounter skiing down a hill is less likely to be obvious. A ski-area operator is not charged by law with the impossible task of making its ski runs or every allegedly “skiable” area at its facility “accident proof.” Ski-area operators are not absolute insurers of safety, particularly with regard to those skiers who intentionally or inadvertently ski off the path or route expected to be used for skiing down a particular hill. This conclusion is consistent with the SASA’s purpose of “promoting safety, reducing litigation and stabilizing the economic conditions in the ski resort industry,” Grieb v Alpine Valley Ski Area, Inc, 155 Mich.App. 484, 487; 400 N.W.2d 653 (1986), while at the same time ensures that ski-area operators stay vigilant and responsible for providing reasonably safe skiing conditions in the areas their patrons are invited, and expected, to ski.
In this case, the trial court erred in denying defendant’s motion for summary disposition because defendant had no duty under the SASA to mark the location of the snow-making equipment that plaintiff’s decedent collided with, allegedly causing his fatal injuries. There is no genuine issue of fact that the snow-making equipment was not located on the ski run, i.e., the path or route expected to be used for skiing down Kingdom Come. Therefore, we reverse the trial court’s decision. This matter is remanded to the trial court for entry of an order granting defendant’s motion for summary disposition and dismissing this case.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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Notes:
[1]
Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered September 1, 2021 (Docket No. 357849).
[2] To the extent plaintiff argues that it was the snow-making operations that must be on the ski run and not the snow-making equipment itself, we reject that argument as inconsistent with the plain language of MCL 408.326a(b) and R 408.80(2).
[3] Although not binding precedent, a court may consider unpublished opinions for their instructive or persuasive value. Cox v Hartman, 322 Mich.App. 292, 307; 911 N.W.2d 219 (2017).
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Sometimes you can go too far and in this case Mountain Creek Ski Resort went stupid far.
Posted: August 1, 2022 Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area, Skier v. Skier | Tags: Indemnification, Indemnification Clause, Mountain Creek Ski Resort, Release, Rental Agreement, Ski Equipment Rental Agreement, skier collision, Skier v. Skier Collision Leave a commentIn attempting to recover their defense costs and attorney’s fees based on a rental agreement, they court found the agreement was a contact of adhesion.
Vladichak v. Mountain Creek Ski Resort, Inc. (N.J. Super. App. Div. 2022)
State: New Jersey
Plaintiff: Andrea Vladichak
Defendant: Mountain Creek Ski Resort, Inc., and Michael Lavin
Defendant Lavin Claims: indemnity clause is ambiguous
Defendant Defenses: Indemnity Clause is valid
Holding: For the defendant Lavin & against Mountain Creek Ski Resort
Year: 2022
Summary
The ski area one the lawsuit when brought into a skier v. skier collision lawsuit. Afterwards, they attempted to sue the plaintiff in the skier v. skier case for their costs in defending based on the “indemnification” clause in the rental agreement he signed when the plaintiff rented ski equipment.
The court tore through the release holding for the original plaintiff. The court’s interpretation will not affect this case; however, the interpretation will have a negative bearing on any future case.
Facts
On December 21, 2017, plaintiff sustained personal injuries while skiing at a ski area owned and operated by Mountain Creek in Vernon Township, New Jersey. Plaintiff was struck from behind by Lavin, another skier. Plaintiff filed a complaint alleging Mountain Creek and Lavin were negligent. Plaintiff’s complaint alleged Mountain Creek was independently negligent for failing to provide appropriate warnings to skiers, failing to appropriately designate the difficulty of ski trails, failing to provide skiers with appropriate information about trail conditions, failing to timely remove obvious manmade hazards, and/or otherwise failing to establish adequate procedures to provide a safe skiing environment. The complaint alleged Lavin was negligent for breaching his duty to others to ski in a reasonably safe manner by skiing in a reckless manner and/or intentionally colliding into plaintiff and causing her injuries.
Prior to the incident, Lavin signed an equipment rental agreement (Rental Agreement) and lift ticket agreement (Release Agreement) in which he agreed to defend and indemnify Mountain Creek from any claims related to his own conduct and use of the property’s equipment facilities. On August 7, 2019, Mountain Creek filed an answer and cross-claims seeking defense and indemnification from Lavin based on the executed Rental and Release Agreements. Mountain Creek previously tendered the defense to Lavin on July 16, 2019.
The co-defendant Lavin rented skis from the ski area Mountain Creek. The rental agreement included a release and an indemnification clause. Like 99% of the indemnification clauses in releases it was written badly, but Mountain Creek tried to sue Lavin for their costs in defending the lawsuit by the original plaintiff and lost!
Analysis: making sense of the law based on these facts.
Indemnification agreements are not understood by 95% of the outdoor industry. 99% of them when attempted to be used by the courts have been thrown out, but you still find the language in releases.
Get rid of that language, it does not work and only makes judges mad!
In this case, the indemnification language was in the rental agreement signed by the co-defendant when he rented skis. The language was the general “I don’t know what this means, but I’ll stick it in a release” language.
After the ski area had won its lawsuit, and the co-defendant had settled with the plaintiff, the ski area sued the co-defendant to recover their attorney fees and costs they spent in defending the lawsuit.
The court, in this case, started by looking at New Jersey state law covering indemnification agreements. Because they are such of a particular type of contracts, each state has evolved its own set of laws on how an indemnification agreement is going to be interpreted. New Jersey:
… indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.
Meaning the courts interpreted the agreement strictly. “We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.”
The court then looked at the indemnification language in the ski equipment rental agreement and said the language fails.
We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence.
The court then proceeded to destroy the entire idea that an indemnity agreement in this case would ever work.
An indemnitor may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence.
Simply stated the court found “The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence.”
The ski area then argued the New Jersey Skier Safety Act supported the indemnification. The court struck this down with one sentence.
This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators”
The court went into the entire issue of the release that contained the indemnification provision and found the release was a contract of adhesion.
As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.”
The court reviewed under New Jersey law what a contract of adhesion was and how it was determined to be one.
When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. We consider these factors using a “sliding scale analysis.”
The court then applied the test for an adhesion contract to the rental agreement.
applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.
The court found the rental agreement was a contract of adhesion. However, in this situation it was not void on its face.
However, that creates a ruling that all other courts in New Jersey must rely upon in reviewing the rental agreement of Mountain Creek Ski Resort. By pushing the issue, they created a lower step for the plaintiff’s bar to overcome in the future.
So Now What?
If you have indemnification language in your release, and it was not written by me, have an attorney remove it. It is a waste of space on the paper and only can be used to make judges mad.
Indemnification agreements must be written in a special way to cover very specific circumstances that must be outlined in the agreement.
If you want to understand an indemnification agreement, read your automobile insurance policy. (Think about shrinking that to fit into your release…..)
That does not mean indemnification agreements in releases are all bad. They can be used, IF WRITTEN PROPERLY, to indemnify the outfitter for their actions if backed up by other documents or contracts. Meaning if you live in a state that charges for rescue, you can require your guests to indemnify you for any rescue costs you may incur on their behalf.
What do you think? Leave a comment.
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Vladichak v. Mountain Creek Ski Resort, Inc. (N.J. Super. App. Div. 2022)
Posted: August 1, 2022 Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area, Skier v. Skier | Tags: equipment rental, Indemnification, Indemnification Clause, Mountain Creek Ski Resort, New Jersey, Release, Rental, Ski Rental, Skier v. Skier Collision, Waiver Leave a commentANDREA VLADICHAK, Plaintiff-Respondent,
v.
MOUNTAIN CREEK SKI RESORT, INC., Defendant-Appellant,
and MICHAEL LAVIN, Defendant-Respondent.
No. A-1367-20
Superior Court of New Jersey, Appellate Division
April 13, 2022
This opinion shall not “constitute precedent or be binding upon any court .” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued April 4, 2022
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0590-18.
Samuel J. McNulty argued the cause for appellant (Hueston McNulty, PC, attorneys; Samuel J. McNulty, of counsel and on the briefs; Edward J. Turro, on the briefs).
Matthew E. Kennedy argued the cause for respondent Michael Lavin (Leary Bride Mergner & Bongiovanni, PA, attorneys; Matthew E. Kennedy, of counsel and on the brief).
Before Judges Fasciale and Sumners.
PER CURIAM
Defendant Snow Creek, LLC d/b/a Mountain Creek Resort, Inc. (Mountain Creek) appeals from a November 9, 2020 order denying its motion for summary judgment and granting summary judgment to defendant Michael Lavin (Lavin) dismissing Mountain Creek’s cross-claims for defense costs and contractual indemnification. Judge David J. Weaver (motion judge) concluded in a thorough opinion that the contractual language was ambiguous and therefore Mountain Creek was not entitled to indemnification from Lavin or defense costs incurred to defend plaintiff’s allegations that Mountain Creek itself was negligent. We affirm.
On December 21, 2017, plaintiff sustained personal injuries while skiing at a ski area owned and operated by Mountain Creek in Vernon Township, New Jersey. Plaintiff was struck from behind by Lavin, another skier. Plaintiff filed a complaint alleging Mountain Creek and Lavin were negligent. Plaintiff’s complaint alleged Mountain Creek was independently negligent for failing to provide appropriate warnings to skiers, failing to appropriately designate the difficulty of ski trails, failing to provide skiers with appropriate information about trail conditions, failing to timely remove obvious manmade hazards, and/or otherwise failing to establish adequate procedures to provide a safe skiing environment. The complaint alleged Lavin was negligent for breaching his duty to others to ski in a reasonably safe manner by skiing in a reckless manner and/or intentionally colliding into plaintiff and causing her injuries.
Prior to the incident, Lavin signed an equipment rental agreement (Rental Agreement) and lift ticket agreement (Release Agreement) in which he agreed to defend and indemnify Mountain Creek from any claims related to his own conduct and use of the property’s equipment facilities. On August 7, 2019, Mountain Creek filed an answer and cross-claims seeking defense and indemnification from Lavin based on the executed Rental and Release Agreements. Mountain Creek previously tendered the defense to Lavin on July 16, 2019.
Plaintiff’s counsel served a report from plaintiff’s liability expert, who concluded that Lavin violated the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -12, and the Skier’s Responsibility Code by failing to control his speed and course and by failing to yield to the skiers ahead of him. The expert opined that Lavin’s reckless conduct caused the accident. On March 27, 2020, Judge Stephan C. Hansbury entered an order granting Mountain Creek’s motion for summary judgment dismissing plaintiff’s claims that Mountain Creek was negligent. Lavin and plaintiff settled and filed a stipulation of dismissal with prejudice dated May 29, 2020.
After plaintiff’s settlement with Lavin, Mountain Creek filed its motion seeking reimbursement from Lavin for defending plaintiff’s allegations and indemnification from Lavin.[1] Lavin filed a cross-motion for summary judgment on September 1. That led to the order under review.
The judge concluded that, as a matter of law, the indemnification provisions were ambiguous and thus unenforceable to compel indemnification in favor of Mountain Creek for claims of its own negligence. The motion judge denied Lavin’s cross-motion for summary judgment in part and granted it in part. The motion judge requested the parties submit the detail and extent of defense costs incurred by Mountain Creek for costs incurred for which liability was only vicarious.
Mountain Creek’s attorneys stipulated that there were no fees or costs incurred from defending vicarious liability claims. On December 14, 2020, Judge Robert J. Brennan entered a consent order resolving all remaining issues as to all parties.
Mountain Creek raises the following arguments on appeal:
POINT I
STANDARD OF REVIEW-DE NOVO[.]
POINT II
THE [MOTION JUDGE] CORRECTLY RULED THAT THE TWO AGREEMENTS WERE NOT CONTRACTS OF ADHESION NOR WERE THEY CONTRARY TO PUBLIC POLICY.
POINT III
THE [MOTION JUDGE] ERRED IN FINDING THAT THE LANGUAGE IN THE AGREEMENTS SIGNED BY . . . LAVIN IS AMBIGUOUS AND INSUFFICIENT TO COMPEL . . . LAVIN TO INDEMNIFY AND DEFEND MOUNTAIN CREEK FOR CLAIMS OF ITS OWN NEGLIGENCE.
A. Special Status Of A Ski Operator.
B. The Two Agreements Were Unambiguous And Should Be Enforced.[2]
Mountain Creek raises the following points in reply, which we have renumbered:
POINT IV
. . . LAVIN’S REQUEST THAT THE APPELLATE DIVISION REVERSE THE [MOTION JUDGE]’S JUDGMENT THAT THE CONTRACTS WERE NOT UNCONSCIONABLE SHOULD BE REJECTED AS NO CROSS-APPEAL WAS FILED.
POINT V
THE AGREEMENTS IN QUESTION ARE ENFORCEABLE AND NOT UNCONSCIONABLE CONTRACTS OF ADHESION.
POINT VI
THE INDEMNIFICATION LANGUAGE IS SUFFICIENT AND EXPRESSLY PROVIDES FOR INDEMNIFICATION FOR CLAIMS ASSERTING MOUNTAIN CREEK’S OWN NEGLIGENCE.
We review the motion judge’s grant of a motion for summary judgment de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We apply the same standard as the motion judge and consider “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
I.
Mountain Creek contends the motion judge erred in ruling the indemnification provisions in the Release and Rental Agreements were ambiguous and unenforceable to compel Lavin to indemnify Mountain Creek for Mountain Creek’s own negligence. Mountain Creek also contends that it should be permitted to obtain indemnification from Lavin based on its special status as a ski area operator under the Ski Statute.
The judge’s role “in construing a contractual indemnity provision is the same as in construing any other part of a contract-it is to determine the intent of the parties.” Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). Generally, courts give contractual provisions “their plain and ordinary meaning.” Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep’t of Transp., 171 N.J. 378, 396 (2002)). “However, indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.'” Ibid. (quoting Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001)).
We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.” Azurak v. Corp. Prop. Invs., 347 N.J.Super. 516, 523 (App. Div. 2002). Azurak involved a contract between a janitorial company (PBS) and a shopping mall owner (the Mall) that contained the following provision:
Contractor [PBS] shall indemnify, defend and hold harmless each Indemnitee [the Mall] from and against any claim (including any claim brought by employees of Contractor), liability, damage or expense (including attorneys’ fees) that such Indemnitee may incur relating to, arising out of or existing by reason of (i) Contractor’s performance of this Agreement or the conditions created thereby (including the use, misuse or failure of any equipment used by Contractor or its subcontractors, servants or employees) or (ii) Contractor’s breach of this Agreement or the inadequate or improper performance of this Agreement by Contractor or its subcontractors, servants or employees.
[Azurak v. Corp. Prop. Invs., 175 N.J. 110, 111 (2003) (alterations in original).]
The plaintiff sued the Mall and PBS for injuries she sustained when she slipped on the Mall’s floor. Ibid. The trial judge granted the Mall’s summary judgment motion on the issue of indemnification based on the contract provision. Ibid. At trial, the jury determined “that plaintiff was 30% negligent; the Mall, 30%; and PBS, 40%.” Ibid. This court disagreed with the trial judge, finding that the indemnification provision did not encompass the Mall’s negligence because the provision’s language was neither explicit nor unequivocal as to claims of the Mall’s own negligence. Id. at 111-12. Our Court affirmed and held that “in order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnification agreement, we reiterate that the agreement must specifically reference the negligence or fault of the indemnitee.” Id. at 112-13.
Mountain Creek’s Release Agreement contained a provision that states:
INDEMNIFICATION. To the fullest extent permitted by law, I agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees asserted against Mountain Creek by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities WHETHER OR NOT MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.
One provision of the Rental Agreement states:
To the fullest extent permitted by law, I also agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees for personal injury, death or property damage against it by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities or the use of this equipment whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.
We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence. See Nester v. O’Donnell, 301 N.J.Super. 198, 210 (App. Div. 1997) (noting that a contract is ambiguous if it is “susceptible to at least two reasonable alternative interpretations” (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F.Supp. 275, 283 (D.N.J. 1992), aff’d, 993 F.2d 877 (3d Cir. 1993))).
An indemnitor may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence. That is the case here, as plaintiff’s complaint alleged Mountain Creek was separately negligent for failing to provide adequate instructions to skiers and a safe ski environment. A better-and likely enforceable-provision would explicitly state that the indemnitor indemnifies Mountain Creek for claims arising out of indemnitor’s conduct and for claims of Mountain Creek’s independent negligence.
The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence. Thus, the provisions are ambiguous and must be strictly construed against Mountain Creek. The same reasoning and standards apply with equal force to Mountain Creek’s defense costs. The provisions’ ambiguity precludes their enforcement against Lavin for recovery of the costs incurred by Mountain Creek for defending its own negligence claims.
We also conclude Mountain Creek’s argument that the Ski Statute supports enforcement of the indemnification provisions is without merit. While the Ski Act may emphasize the inherent risk that skiers assume when skiing, the Act provides separate duties to the ski operator, which include establishing and posting a system for identifying slopes and their difficulty, ensuring the availability of information to skiers, and removing hazards as soon as practicable. N.J.S.A. 5:13-3(a). The allegations in plaintiff’s complaint, which include failing to provide adequate signage and failing to instruct skiers properly, do not fall under the risks that “are essentially impractical or impossible for the ski area operator to eliminate” defined in the statute. N.J.S.A. 5:13-1(b). In fact, plaintiff’s complaint addressed the responsibilities of a ski area operator as prescribed by the Act. Requiring indemnification in favor of a ski resort for claims of its own independent negligence does not further the Ski Act’s purpose of allocating the inherent risk of skiing between the skier and ski resort. Moreover, the public policy of the Ski Act has no bearing on our interpretation of the indemnity provisions and our conclusion that the provisions are ambiguous.
II.
Lavin argues, on an alternative basis, that the Rental and Release Agreements are unconscionable contracts of adhesion. Lavin was not required to file a Notice of Cross-Appeal to preserve this argument for appeal because “appeals are taken from judgments, not opinions, and, without having filed a cross-appeal, a respondent can argue any point on the appeal to sustain the trial [judge’s] judgment.” Chimes v. Oritani Motor Hotel, Inc., 195 N.J.Super. 435, 443 (App. Div. 1984). Even if Lavin were required to file a cross-appeal, we will address the merits of his argument.
As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992). An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Vitale v. Schering-Plough Corp., 231 N.J. 234, 246 (2017) (quoting Rudbart, 127 N.J. at 355). “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.” Ibid.
We agree with the motion judge that “the Agreements at issue evidence characteristics of contracts of adhesion.” The Release and Rental Agreements were standardized form contracts that fit our Court’s definition as “take-it-or-leave-it” adhesion contracts. See ibid. All potential skiers at Mountain Creek’s resort are obligated to sign the Release Agreement, and there is little to no negotiating done before the agreements’ execution. However, an agreement found to be an adhesion contract may nevertheless be enforced if it is not unconscionable. See ibid.
When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) (quoting Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 367 (2016)). Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” Rudbart, 127 N.J. at 356. The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. See Rodriguez, 225 N.J. at 367. We consider these factors using a “sliding scale analysis.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).
The motion judge correctly relied on Stelluti in determining the agreements are not procedurally unconscionable. In Stelluti, the plaintiff was injured in a spinning class at a private fitness center and argued that the pre-injury waiver of liability she signed was unenforceable on unconscionability grounds. Id. at 291, 300. The Court found that although the pre-printed form was an adhesion contract, it was not procedurally unconscionable. Id. at 301-02. The Court reasoned the plaintiff was not in a position of unequal bargaining power, despite being a layperson and not being fully informed of the legal effect of an adhesion contract, when she had the ability to take “her business to another fitness club,” to find a form of exercise different than joining a private gym, or to contemplate the agreement for some time before joining the gym and using its equipment. Id. at 302.
Under the Court’s reasoning in Stelluti and applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.
As for the remaining factor-the impact on public interest-Mountain Creek points to the “strong public policy of protecting ski operators and allocating the risks and costs of inherently dangerous recreational activities” under the Ski Statute. The Act’s purpose is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers, recognizing that the sport of skiing and other ski area activities involve risks which must be borne by those who engage in such activities and which are essentially impractical or impossible for the ski area operator to eliminate. It is, therefore, the purpose of this act to state those risks which the skier voluntarily assumes for which there can be no recovery.
[N.J.S.A. 5:13-1(b).]
We agree that the Agreements are not substantively unconscionable. The agreements do not contain terms that are so “harsh” or “one-sided” to render them unconscionable and unenforceable. See Muhammad v. Cnty. Bank of
Rehoboth Beach, Del., 189 N.J. 1, 15 (2006). Construing the indemnity provision against Mountain Creek due to its ambiguity, the provision requires that Lavin indemnify and defend Mountain Creek for claims arising out of Lavin’s conduct while using Mountain Creek’s equipment and facilities, even when Mountain Creek is partially at fault. This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators” and that our Legislature has enacted statutes to address the allocation of risk in those circumstances. 203 N.J. at 308. It would not be against public policy to require indemnification of Mountain Creek by Lavin for claims of vicarious liability due to Lavin’s reckless conduct; however, Mountain Creek stipulated that it did not incur any costs in defending claims of vicarious liability.
Affirmed.
———
Notes:
[1] Mountain Creek did not contribute towards plaintiff’s settlement with Lavin.
[2] To comport with our style conventions, we altered the capitalization of Mountain Creek’s Points A and B but omitted the alterations for readability.
———
@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com
G-YQ06K3L262
Headline is more than Misleading, it is plain Wrong
Posted: December 29, 2021 Filed under: Colorado, Ski Area | Tags: Colorado Skier Safety Act, Journalish, Risk, Westword 1 CommentState: Colorado
This is the headline about skiing in Colorado “Why Colorado’s Slopes Are More Dangerous This Year” I checked; the mountains did not get taller; the slopes did not get steeper; no one planted more trees on the slopes. How could the risk of skiing change?
The article is not about the risks of skiing. The article is about the chances of recovering if you are injured at a ski area and want to sue a ski area. The entire article is a rehash of prior Colorado case law concerning ski areas an attempt by several Plaintiff’s attorneys to make changes to the Colorado Skier Safety Act to make it easier to sue ski areas.
Honestly, a couple of the recent decisions concerning skiing in Colorado caught me off guard. However, the law is the law, and if you are injured skiing in Colorado, you will not have a chance of successfully suing the ski area for your injuries. Either accept the risk or go somewhere else to ski.
And using the media to try to get your point across in an attempt, to change the law has been around since the first person reported the news. Nothing new there.
However, the reporter writing the article, or maybe the person putting their name on the article, whomever wrote it, should at least have some journalistic integrity to be honest within the article.
More so from Westword, which for the 37 years I’ve lived in Colorado has earned a reputation for standing up and speaking the truth. Unless it has been the last ten years when Westword has been writing about ski areas. I don’t pick up the paper anymore because of that.
Why Is This Interesting?
Cause I hate it when people are misled. There is enough of a story to put an honest headline on the article. This one is just crap.
@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry @DenverWestword #SkiAreaLaw #SkiLaw
Who am I
Jim Moss
I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry
I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses
What do you think? Leave a comment below.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com
G-YQ06K3L262
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Inherent Risk is the part of any sport and is assumed by participants when undertaking the activity.
Posted: May 31, 2021 Filed under: Assumption of the Risk, Ski Area, Skiing / Snow Boarding, Wyoming | Tags: Fresh Snow, Inherent Risk, Jackson Hole Mountain Resort, skiing, Stump, Wyoming, Wyoming Recreation Safety Act Leave a commentA ski trunk just beneath the surface of fresh snow is an inherent risk of skiing in Wyoming.
Standish v. Jackson Hole Mountain Resort Corporation
State: Wyoming, 10th Circuit Court of Appeals
Plaintiff: Thomas A. Standish, IV; Meghan Keiter
Defendant: Jackson Hole Mountain Resort Corporation
Plaintiff Claims: Negligence and Loss of Consortium
Defendant Defenses: Inherent Risk as identified under the Wyoming Recreation Safety Act
Holding: For the Defendant Ski Area
Year: 2021
Summary
While skiing in an ungroomed area at Jackson Hole Mountain Resort, Thomas Standish was injured when his right ski struck a six-and-a-half-foot stump covered with freshly fallen snow. Standish and his wife brought a negligence lawsuit against Jackson Hole Mountain Resort (“Jackson Hole”) to recover for his injuries.
Jackson Hole moved for summary judgment, contending the Wyoming Recreation Safety Act (WRSA) limited Jackson Hole’s liability because Standish’s injury was a result of an “inherent risk” of alpine skiing. The district court granted summary judgment, finding that a tree stump covered by fresh snow was an inherent risk of skiing for which the WRSA precludes liability. We agree with that conclusion. Thus, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Facts
In January 2017, California residents Thomas Standish and his then-fiancée, Megan Keiter, traveled to Jackson Hole Mountain Resort as part of a “bucket list” ski trip. From January 8 through 10-the three days prior to Standish’s arrival-Jackson Hole had received about 27 inches of new snow, and on the morning of January 11, Jackson Hole received an additional 18 inches of snow. Over these four days, the mid-mountain depth of the snow increased from 56 to 80 inches.
On January 11, the couple purchased ski passes for Jackson Hole. The backs of these “J Cards” bear language indicating that the pass-holder “acknowledges that participation in any and all winter recreation activities at [Jackson Hole], including . . . skiing . . . involves SUBSTANTIAL AND INHERENT RISKS, HAZARDS, AND DANGERS THAT MAY RESULT IN SERIOUS INJURY, DEATH or damages to property.” Aplt. App. 41. The couple first skied a few groomed runs. They then ventured down an off-piste run near the Thunder Chairlift line, with Standish-the more experienced skier-leading the way. “Off-piste” is a term for a ski run or area that is ungroomed and left in its natural state. See Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 970 (10th Cir. 2018). About halfway down the mountain, Standish’s right ski hit the top of a six-and-a-half-foot-tall tree stump that was covered with about two inches of fresh snow. His ski came off on impact, and he broke multiple bones in his right leg.
Standish underwent surgery, receiving fourteen screws, two metal plates, and a bone graft. After returning to California a few days later, Standish suffered a pulmonary embolism, a common complication resulting from serious fractures. This required anti-coagulation injections in his abdomen for several months. Because of Standish’s long recovery, he and Keiter pushed their wedding back from June to September 2017. They also sold their business because Standish was unable to work during his recovery.
Analysis: making sense of the law based on these facts.
This is a simple case that explains the issues between the two major types of risk as identified under the law, inherent and non-inherent risks. The Wyoming Recreation Safety Act defines for Wyoming what is an inherent risk.
“Inherent risk” with regard to any sport or recreational opportunity means those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity;
An inherent risk is a risk that if removed from the activity, would change the activity such that it would not be the same. Or looking at inherent risks another way, remove the inherent risks and the sport would not really exist.
Hitting things under the snow, no matter how they look when the snow is gone, is an inherent risk of skiing.
When a statute defines the inherent risks of an activity, the judge is able to determine in advance if the defendant owes a duty to the injured plaintiff. If the inherent risks are not defined by statute, then a jury decides whether the risk incurred by the plaintiff was inherent, unless the risk is obviously inherent.
Most states that have specific statutes covering outdoor recreation activities do so by listing the risks of the activity and by law makes those inherent so an injured party cannot sue for their injuries. As an example, the Colorado Skier Safety Act has a long list of what is an inherent risk of skiing in Colorado.
(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.
Obviously, since jumps, machine made snow, extreme terrain, lift towers, signs, posts, fences, hydrants, etc. are natural and only on the slope because of the acts of man, those risks are not naturally, inherent. However, since the act defines them as inherent, they now are and cannot be used by an injured plaintiff to make a claim.
The Wyoming Recreation Safety Act covers a multitude of sports, not just skiing and does not list the risks that are inherent. Consequently, the act does not do anything to provide any greater protection than existed in the common law. Therefore, each judge or jury makes the determination if the risk complained of by the plaintiff was inherent in the sport.
Under Wyoming law and the Wyoming Recreation Safety Act removes any duty, the first element to prove negligence, of the defendant to the plaintiff if the risk is inherent.
In other words, because the WRSA provides that a participant has assumed certain risks that are inherent to the activity, the recreational provider typically owes no duty for inherent risks of an activity. In sum, a recreational “provider has no duty to eliminate, alter, or control the inherent risks of an activity, and any person who chooses to take part in a sport or recreational opportunity assumes all inherent risks [that] are associated with that opportunity.”
Under the WRSA, a reasonableness standard is applied to determine if the risk complained of is inherent.
I]f reasonable minds cannot differ as to whether or not a given set of factual circumstances involve an ‘inherent risk’ of skiing (in this particular instance, we are concerned with skiing, or fill in the blank as the case might be), then the protections of the [W]RSA apply, and the litigation of that controversy must come to an end.
Applying that reasonableness standard, the courts looked at the uncontested facts.
Here, the operative facts are undisputed. The mountain had received 45 inches of fresh snow in the four days prior to the accident. The accident took place in an off-piste-and therefore ungroomed-area. Standish’s injury was caused by a collision with the top of the stump, which was lightly covered with the fresh snow and thus not visible to Standish. The stump had been cut to a height of six-and-a-half feet at some point in the past to mitigate some problem.
The court found that the stump was an inherent risk of skiing “…we conclude that encountering a snow-covered stump in an ungroomed area is an inherent risk of alpine skiing.”
A key component of this analysis was the run was off-piste and ungroomed. If the stump was located on a groomed run, the review and conclusion would have been different. The conclusion would have also been different if an employee of the defendant had told the plaintiff’s that the run was safe or free from hazards.
The court concluded:
Standish’s accident was the result of an unfortunate confluence of a stump, an ungroomed run, and the spectacular snow levels of the previous days. The combination of these factors is an inherent risk of skiing, a sport as thrilling as it can be risky. And the WRSA reflects this by limiting the duty owed by an entity offering access to such a sport. Accordingly, we affirm the district court’s grant of summary judgment in favor of Jackson Hole on the basis of the WRSA.
So Now What?
The great thing about this article is the courts clear expression of what constitutes an inherent risk. If the risk is inherent, you cannot sue the defendant because you automatically assume those risks when you engage in the sport.
The second is the risk might not have been inherent if the run was not off-piste. The risk would definitely not have been inherent if the plaintiff had been told by an employee of the defendant that there were no risks.
This second issue is, the cause of many lawsuits when the statements of the employee changes or removes any risk management issues the defendant has in place. Marketing makes promises Risk Management has to pay for.
What do you think? Leave a comment.
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Standish v. Jackson Hole Mountain Resort Corporation
Posted: May 31, 2021 Filed under: Assumption of the Risk, Ski Area, Skiing / Snow Boarding, Wyoming | Tags: assumption of the risk, Inherent Risk, Jackson Hole Mountain Resort, skiing, WRSA, Wyoming, Wyoming Recreation Safety Act 1 CommentThomas A. Standish, IV; Meghan Keiter, Plaintiffs – Appellants,
v.
Jackson Hole Mountain Resort Corporation, Defendant-Appellees.
No. 20-8045
United States Court of Appeals, Tenth Circuit
May 14, 2021
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WYOMING (D.C. NO. 1:19-cv-00004-KHR)
Gary L. Shockey, Gary Shockey Law, Casper, Wyoming, for Appellants.
James K. Lubing (Nathan D. Rectanus with him on the brief), Lubing Law Group, Jackson, Wyoming, for Appellee.
Before TYMKOVICH, KELLY, and PHILLIPS, Circuit Judges.
TYMKOVICH, Chief Judge.
While skiing in an ungroomed area at Jackson Hole Mountain Resort, Thomas Standish was injured when his right ski struck a six-and-a-half-foot stump covered with freshly fallen snow. Standish and his wife brought a negligence lawsuit against Jackson Hole Mountain Resort (“Jackson Hole”) to recover for his injuries.
Jackson Hole moved for summary judgment, contending the Wyoming Recreation Safety Act (WRSA) limited Jackson Hole’s liability because Standish’s injury was a result of an “inherent risk” of alpine skiing. The district court granted summary judgment, finding that a tree stump covered by fresh snow was an inherent risk of skiing for which the WRSA precludes liability. We agree with that conclusion. Thus, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
In January 2017, California residents Thomas Standish and his then-fiancee, Megan Keiter, traveled to Jackson Hole Mountain Resort as part of a “bucket list” ski trip. From January 8 through 10-the three days prior to Standish’s arrival-Jackson Hole had received about 27 inches of new snow, and on the morning of January 11, Jackson Hole received an additional 18 inches of snow. Over these four days, the mid-mountain depth of the snow increased from 56 to 80 inches.[ 1]
On January 11, the couple purchased ski passes for Jackson Hole. The backs of these “J Cards” bear language indicating that the pass-holder “acknowledges that participation in any and all winter recreation activities at [Jackson Hole], including . . . skiing . . . involves SUBSTANTIAL AND INHERENT RISKS, HAZARDS, AND DANGERS THAT MAY RESULT IN SERIOUS INJURY, DEATH or damages to property.” Aplt. App. 41. The couple first skied a few groomed runs. They then ventured down an off-piste run near the Thunder Chairlift line, with Standish-the more experienced skier-leading the way. “Off-piste” is a term for a ski run or area that is ungroomed and left in its natural state. See Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 970 (10th Cir. 2018). About halfway down the mountain, Standish’s right ski hit the top of a six-and-a-half-foot-tall tree stump that was covered with about two inches[ 2] of fresh snow. His ski came off on impact, and he broke multiple bones in his right leg.
Standish underwent surgery, receiving fourteen screws, two metal plates, and a bone graft. After returning to California a few days later, Standish suffered a pulmonary embolism, a common complication resulting from serious fractures. This required anti-coagulation injections in his abdomen for several months. Because of Standish’s long recovery, he and Keiter pushed their wedding back from June to September 2017. They also sold their business because Standish was unable to work during his recovery.
In January of 2019, Standish and Keiter brought this diversity suit in the District of Wyoming against Jackson Hole, alleging negligence and loss of consortium, respectively. During discovery, the parties were unable to ascertain when, why, or by whom the tree had been cut. In a deposition, Jackson Hole’s risk safety and environmental manager agreed that the stump had been cut at some point in the past, but no individuals or departments he talked to had any recollection or knowledge of cutting that tree. When asked why it was cut in the way it had been-that is, over six feet high-the manager suggested “it had been cut down during the winter to mitigate a hazard, like the tree blowing over or growing in a particular way that may have been identified to be a hazard.” Aple. App. 63. In October 2019, the stump was cut down completely, apparently as a result of the accident and the ongoing litigation.
Jackson Hole moved for summary judgment, which the district court granted. The district court concluded that Wyoming law provided immunity from the inherent risks of skiing, including unmarked objects on ungroomed runs-even objects like trees that have been partially cut.
II. Analysis
Standish makes two arguments about why the district court erred in granting summary judgment. First, he contends that the question of whether a subsurface, cut tree in an off-piste area is an inherent risk of alpine skiing should have been submitted to a jury. Second, Standish argues the district court improperly considered inadmissible facts in granting summary judgment. We address each in turn.
A. Inherent Risk
1. Standard of Review
We review a district court’s grant of summary judgment de novo. Roberts, 884 F.3d at 971. Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
Because this diversity suit arises out of Wyoming, we “must ascertain and apply state law to reach the result the Wyoming Supreme Court would reach if faced with the same question.” Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). In doing so, “we rely foremost on decisions of the Wyoming Supreme Court, and then on ‘other state court decisions, federal decisions, and the general weight and trend of authority.'” Roberts, 884 F.3d at 972 (quoting Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002)). We review the district court’s determination of state law de novo. Cooperman, 214 F.3d at 1164.
2. The Wyoming Recreation Safety Act
Common-law tort principles typically guide our analysis of personal-injury claims brought on the basis of negligence. When bringing a negligence claim, a plaintiff must sufficiently assert that “(1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the duty of care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is compensable by money damages.” Dimickv. Hopkinson, 422 P.3d 512, 521 (Wyo. 2018) (internal quotation marks omitted).
But in enacting the WRSA, the Wyoming legislature chose to insulate recreational providers from some types of personal-injury claims. In relevant part, the WRSA[ 3] provides that [a]ny person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.
Wyo. Stat. Ann. § 1-1-123(a). And a recreational provider “is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-123(b).
a. Duty Under the WRSA
The WRSA limits the first negligence element: duty. Specifically, the WRSA “codifies the common-law concept of primary assumption of the risk,” which limits the recreational provider’s duty to a participant. Roberts, 884 F.3d at 972; see also Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995) (“[T]he assumption-of-risk terminology [in the WRSA] is intended to limit the duty which a provider owes to a participant.”). “When primary assumption of the risk applies, as it does under the WRSA, ‘the legal result is that the defendant is simply relieved of the duty which would otherwise exist.'” Roberts, 884 F.3d at 972 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 481 & n.lO (5th ed. 1984)). In other words, because the WRSA provides that a participant has assumed certain risks that are inherent to the activity, the recreational provider typically owes no duty for inherent risks of an activity. In sum, a recreational “provider has no duty to eliminate, alter, or control the inherent risks of an activity, and any person who chooses to take part in a sport or recreational opportunity assumes all inherent risks [that] are associated with that opportunity.” Halpern, 890 P.2d at 565.
The district court generally decides whether the defendant owed a duty as a matter of law, see Halpern, 890 P.2d at 565, but the jury typically decides whether a particular risk is an inherent one, see Beckwith v. Weber, 277 P.3d 713, 722 (Wyo. 2012). In the context of whether a hazard is an inherent risk, the “level of factual specificity required . . . will often but not always preclude summary judgment on the duty question.” Creel v. L &L, Inc., 287 P.3d 729, 737 (Wyo. 2012). So “when genuine issues of material fact exist, it is proper to present the issue to the jury of whether a risk is inherent to a particular activity.” Halpern, 890 P.2d at 566. But in the absence of genuine issues of material fact, “the district court may decide as a matter of law that the provider does not owe a duty to the participant.” Roberts, 884 F.3d at 973 (quoting Halpern, 890 P.2d at 566); see also Jackson Hole Mountain Resort Corp. v. Rohrman, 150 P.3d 167, 168 (Wyo. 2006) (“If the court can say that, given that evidence, this is an ‘inherent risk’ and reasonable minds cannot differ about that, then summary judgment is appropriate.”).
b. Inherent Risk
The central question here is whether the plaintiff’s injury was the result of an inherent risk of a particular activity. If the injury was caused by an inherent risk, then the recreational provider owes no duty to “eliminate, alter, or control it[, ]” and the entry of summary judgment is appropriate. Rohrman, 150 P.3d at 168.
The WRSA defines “inherent risk” as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-122; see also Cooperman, 214 F.3d at 1166 (discussing definitions of “characteristic,” “intrinsic,” and “integral”). But the WRSA-unlike some other states’ recreational liability statutes-does not list examples of inherent risks. Rather, “[w]hat an ‘inherent risk’ means in any given set of circumstances is a variable that the Wyoming Legislature included in the statute by design.” Muller v. Jackson Hole Mountain Resort, 139 P.3d 1162, 1166 (Wyo. 2006), opinion after certified question answered sub nom. Muller v. Jackson Hole Mountain Resort Corp., 210 Fed.Appx. 792 (10th Cir. 2006).
In order to determine what is an inherent risk under the WRSA, the Wyoming Supreme Court has explained a “reasonableness” inquiry should guide courts. Rohrman, 150 P.3d at 170. So, the “central concern … is what ‘reasonable persons’ will view as inherent risks.” Id. “[I]f reasonable minds cannot differ as to whether or not a given set of factual circumstances involve an ‘inherent risk’ of skiing (in this particular instance we are concerned with skiing, or fill in the blank as the case might be), then the protections of the [W]RSA apply, and the litigation of that controversy must come to an end.” Id.
The Wyoming Supreme Court has pointed to several sources of guidance for determining what reasonable persons would view as inherent risks of an activity. One is, of course, jury deliberations on the particular facts of a case. See Rohrman, 150 P.3d at 170. Others are safety experts and experienced skiers.[ 4]Id. But the sources most discussed by the Court in this context are analogous statutes from similarly-situated states. See Rohrman, 150 P.3d at 170-72; Muller, 139 P.3d at 1166-67. In Rohrman, the Court held that reference to analogous statutes-for example, from Colorado, New Mexico, and Utah-is “a meaningful source of guidance in explaining the inherent risks of skiing to any fact finder.” Rohrman, 150 P.3d at 172.
The explicit citation to these statutes, and the reference to other similar state statutes, is meant to be an expansive guide for courts considering the inherent risk question. For one, the texts of all three analogous state statutes included in Rohrman have non-exhaustive lists of inherent risks of skiing. Each of the three has broad language that includes, for example, trees and forest debris, subsurface conditions, and man-made structures. See Colo. Rev. Stat. § 33-44-103(3.5) (2021); N.M. Stat. § 24-15-10 (2021); Utah Code Ann. § 78B-4-402 (2021). For another, the court expressly did not constrain itself to these lists, stating “those statutes are not the exclusive source of guidance and the factual variations are, in some senses, infinite.” Rohrman, 150 P.3d at 172.[ 5]
In particular, the court’s reference to analogous statutes is significant at the summary judgment stage. In situations with novel or contested facts, of course, the question of reasonableness-that is, whether reasonable minds cannot differ over what is an inherent risk-is appropriate for consideration by the fact-finder, not for determination as a matter of law by the court. But when there are no genuine disputes of material fact, the Wyoming Supreme Court has explicitly held that “[u]nder Wyoming’s statutory construct, which is much broader than that of Colorado, such items as those included in Colorado’s statute may, as a matter of law, be inherent risks of the recreational activity of skiing.” Muller, 139 P.3d at 1167 (emphasis added). “[I]n such cases[, ] a trial court may grant a motion to dismiss or a motion for summary judgment based on the [W]RSA.” Id. In other words, a court may look to the enumerated inherent risks in Colorado’s statute to hold that a particular risk is an inherent one as a matter of law. 3. The Risk to Standish
The district court determined that skiing into an unmarked six-and-a-half-foot-tall tree on an off-piste run-which had been previously altered by Jackson Hole and which was submerged and made invisible by recent, heavy snow fall-was an inherent risk of skiing. We agree with both the framing of the inherent risk and the district court’s conclusion.
With regard to the risk’s framing, we have previously acknowledged “we can not look at the risk in a vacuum.” Cooperman, 214 F.3d at 1167. Rather, “we must evaluate the risk at the greatest level of specificity permitted by the factual record.” Id. Here, the operative facts are undisputed. The mountain had received 45 inches of fresh snow in the four days prior to the accident. The accident took place in an off-piste-and therefore ungroomed-area. Standish’s injury was caused by a collision with the top of the stump, which was lightly covered with the fresh snow and thus not visible to Standish. The stump had been cut to a height of six-and-a-half feet at some point in the past to mitigate some problem. The district court’s inherent-risk framing did not employ any disputed facts and accurately captures the facts of the case. Neither party appears to contest this framing on appeal. We therefore adopt this framing of the risk.
With this specific factual scenario in mind, we conclude that encountering a snow-covered stump in an ungroomed area is an inherent risk of alpine skiing. Everyone familiar with the sight of the intertwining runs of a ski area knows that cutting and otherwise managing trees is necessary for the runs’ creation and upkeep. The vast majority of ski-able terrain simply could not exist in the first instance without the ministrations of sawyers and forest managers. And the forested setting of ski areas means that trees may sometimes fall or otherwise present hazards. As the risk safety and environmental manager for Jackson Hole indicated in his deposition, trees can be altered or “removed for various reasons.” Aple. App. 63. These can include creating more space for skiing in a particular run or glade or mitigating a hazard, such as a “tree blowing over or growing in a particular way that may have been identified to be a hazard.” Aple. App. 63. The height at which the tree in this case was cut could have been a function of a high snow-level during winter, or it could have resulted from a decision to cut just below a particular hazard in any season (i.e., the tree broke or became unstable above that height). Whatever the reason, the ability to act to mitigate hazards and cut trees that pose a risk to skiers-or to create new runs or vary the terrain-is essential to effectively managing a ski area.
Moreover, this accident occurred in an off-piste area, in which unmarked obstacles are frequent and inevitable. “[W]e cannot ignore the nature of the run on which he encountered [the stump] and the inherent risks that run presents.” Roberts, 884 F.3d at 976 (discussing an accident in an off-piste area). And a changing level of the snow-which here was, by chance, just enough to render the stump invisible-is another inherent risk of skiing. Variable snow conditions are intrinsic to the mountainous setting of ski resorts in the American West. See, e.g., Kopeikin v. Moonlight Basin Mgmt., LLC, 981 F.Supp.2d 936, 945 (D. Mont. 2013) (“Skiing presents a multitude of dangers and hazards. Notwithstanding an operator’s efforts to tame it, skiing takes place on essentially wild terrain, on a mighty mountain, with fluctuation in weather and snow conditions that constantly change.” (internal quotation marks omitted)). Consequently, all reasonable people understand that the combination of encountering the remnant stumps of forest-management practices and of changing snow levels at a ski area is an inherent risk of alpine skiing.
Furthermore, the Wyoming Supreme Court has explicitly held that because the WRSA is a broader statutory scheme than Colorado’s analogous law, “such items as those included in Colorado’s statute may, as a matter of law, be inherent risks of the recreational activity of skiing.” Muller, 139 P.3d at 1167 (emphasis added). Colorado’s statute expressly includes stumps-whether snow-covered or not-as inherent risks. See Colo. Rev. Stat. § 33-44-103(3.5) (‘”Inherent dangers and risks of skiing’ means those dangers or conditions that are part of the sport of skiing, including . . . surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects . . . .”).[ 6] And other states include subsurface stumps or forest debris as inherent risks in their analogous statutes, including Utah, see Utah Code Ann. § 78B-4-402 (stumps); New Mexico, see N.M. Stat. § 24-15-10 (“trees or other forms of forest growth or debris”); Idaho, see Idaho Code § 6-1106 (2021) (same); and Montana, see Mont. Code Ann. § 23-2-702 (2021) (stumps).[ 7]
Similarly, Colorado’s statute-as well as, for example, Utah’s, Idaho’s, and Montana’s-also includes changing snow conditions and levels as inherent risks. See Colo. Rev. Stat. § 33-44-103; Mont. Code Ann. § 23-2-702; Utah Code § 78B-4-402; Idaho Code § 6-1106; see also Fleury v. IntraWest Winter Park Operations Corp., 372 P.3d 349, 351 (Colo. 2016) (holding an in-bounds avalanche qualifies as an inherent risk of skiing because it is a “changing condition” of snow). The depth of the snow in this case is as integral to the accident as the height of the stump. Any less snow, and the stump would have been visible; any more, and Standish would have passed over the top unharmed. Given that there are no genuine disputes of material facts in this case, holding that a snow-covered stump in an off-piste area is an inherent risk of alpine skiing comports with Wyoming Supreme Court precedent.
This conclusion aligns with both our precedent and public policy. In Cooperman, a Tenth Circuit panel considered whether a slipping saddle that was loosely cinched by the recreational provider is an inherent risk of horseback riding. See Cooperman, 214 F.3d at 1168. Cinching a saddle, explained the panel, “is done by hand, and not with scientific precision,” so “a provider must make a judgment call as to how tight or loose to cinch the saddle.” Id. “This imprecision in the cinching of the saddle is characteristic or typical of and therefore inherent in the sport of horseback riding.” Id. (internal quotation marks omitted). The same is true for managing forests. Ski-area managers must make judgment calls about whether and how to cut a tree that has become a hazard. In winter, the height at which a tree is cut is as imprecise and judgment-based as cinching a saddle: it can be cut too tall or too short, and the risk of its being covered lightly with the next snow fall-or being exposed by snow melt-is characteristic of ever-changing mountain conditions at ski areas. So, too, in the summer: a tree could be cut at any height to mitigate a hazard, and a forest manager could decide to leave the stump remnant for a variety of reasons (e.g., impossibility of removal based on terrain, concerns about slope destabilization or damage, or ecological concerns about surrounding flora or fauna). Forest management, just as the saddle-cinching in Cooperman, is based on best practices-not exact practices-and the resulting risks are inherent to skiing in a forested ski area.
In a more recent case, this court held that encountering subsurface boulders-and the gaps between them-in an off-piste ski area in changing snow conditions is an inherent risk of skiing. See Roberts, 884 F.3d at 976. The panel in Roberts noted that a “critical distinction has emerged in the case law between a provider’s failure to control inherent risks (which is no longer actionable)[] and actions that affirmatively enhance existing risks (which remain actionable).” Id. at 975. Because subsurface boulders are an inherent risk of skiing in an off-piste area, and because Jackson Hole had done nothing to affirmatively enhance the existing risk of the boulders, the panel reasoned, the WRSA limited Jackson Hole’s liability, and summary judgment was appropriate. See id. at 977.
To reach this conclusion, the Roberts panel relied on Creel and Dunbar. See id. at 975-76. The outcomes in both Creel and Dunbar rest on the actions of the employees or agents of the recreational provider affirmatively enhancing existing risks. In Creel, the Wyoming Supreme Court held that the danger of being struck with a golf ball is an inherent risk of attending a golf tournament-but the employee who encouraged the golfer to hit despite the golfer’s concern about spectators in the way affirmatively enhanced the existing risk of stray golf balls. See Creel, 287 P.3d at 739. In Dunbar, the Tenth Circuit panel concluded encountering a half-pipe in a terrain park is an inherent risk of skiing-but the “delphic statements” of the employee on how to safely exit the terrain park affirmatively enhanced the existing risks posed by the terrain park features. Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145, 1153 (10th Cir. 2004).
Not so here. Had a Jackson Hole employee represented to Standish that this particular run was groomed or free of obstacles, Jackson Hole might have created a jury question that the resort somehow enhanced the risk of an accident. See, e.g., Roberts, 884 F.3d at 976 (The plaintiff “was not directed to [the area where the accident occurred] by an employee offering ‘delphic statements’ about its safety; in fact advanced skiers in search of fresh untracked and unconsolidated powder are attracted to off-piste terrain . . . because it is ungroomed, untamed, and provided the types of natural obstacles that distinguish such runs from those frequented by less talented skiers.” (quoting Dunbar, 392 F.3d at 1153; emphasis in original)).
But there are no facts in this case to suggest anything of the sort. “[T]here is a difference between the consequences of conduct chosen by [the skier], and risks that are inherent to that choice.” Dunbar, 392 F.3d at 1151. Standish knew that unmarked obstacles could and would exist in this off-piste area, and he chose to proceed down this more-advanced run. Nor did Standish present any evidence that cutting the tree at this particular height affirmatively enhanced the risk or took it “outside the realm of inherent risk.” Creel, 287 P.3d at 737. What made the stump’s height hazardous was the snow level on January 11-and changing snow levels are undoubtedly an inherent risk of mountain recreation. Consequently, the district court properly found that Jackson Hole did not enhance the already-existing risk of the stump.
The outcome in Roberts further supports our decision here. In that case, Roberts’s expert-who had concluded that subsurface boulders were not an inherent risk of off-piste skiing-“put the cart before the horse” by faulting Jackson Hole for not placing warning signs above the area. Roberts, 884 F.3d at 976-77′. But this targeted the element of breach without establishing the existence of a duty in the first place. Id. at 977. Conclusory statements that the boulders that had caused Roberts’s injuries were not inherent risks of skiing were insufficient to preclude summary judgment. Id.
The same is true of the expert testimony Standish presents. As the district court noted, Standish’s expert addressed how Jackson Hole breached the duty it supposedly owed Standish by not removing the remnant stump. But a snow- covered stump is itself an inherent risk of alpine skiing, and the expert’s testimony does not address what action by Jackson Hole takes the stump “outside the realm of inherent risk.” Creel, 287 P.3d at 737. The expert’s claim that “[t]he act of removing the top part of the tree was an affirmative act by the Resort which created the risk encountered by Mr. Standish” is unavailing. Aplt. App. 33. If that were true, then every tree cut by Jackson Hole’s forest managers would present a non-inherent risk to skiing-depending on the snow level on a particular day. And the expert’s claim that Jackson Hole’s “failure to finish the job . . . substantially enhanced the risk created by the Resort” improperly imposes a duty on Jackson Hole to remove completely the stumps made by its forest management. Neither the Wyoming legislature nor any court has imposed such a duty on ski areas. And given the Wyoming Supreme Court’s express embrace of the inherent risks in Colorado’s statute, including stumps, the expert testimony fails to preclude summary judgment.[ 8]
This conclusion also aligns with public policy. To hold that Jackson Hole has a duty to cut trees to a particular level or to remove stumps entirely would disincentivize recreational managers from attempting to mitigate hazards for their guests. If a fallen tree in an off-piste area is an inherent hazard of skiing, and cutting it off below the break creates a non-inherent risk, a ski area manager might decide to simply leave the fallen tree so as not to potentially incur liability. The WRSA is meant to limit the liability of recreational providers so that they can, in their judgment, both manage and offer sometimes-risky recreational opportunities.
Moreover, the standard that would arise from the opposite conclusion here would be untenable. Suppose a tree falls in an off-piste ski area during the winter and needs to be cut. The tree is cut to just above the current snow level, 70 inches. For the next week, the snow melts, leaving about 10 inches of the stump exposed and clearly visible to skiers. But then 11 inches of fresh snow falls, just covering the exposed stump. To conclude that the ski area is then liable for a skier’s collision with that stump would expose the ski area to liability the WRSA is clearly meant to limit. In other words, to hold that the WRSA does not preclude liability in this case would impose a duty on ski areas to never allow a tree stump be the same height as the current level of the snow-even in off-piste areas. We decline to reach such a conclusion.
* * *
Standish’s accident was the result of an unfortunate confluence of a stump, an ungroomed run, and the spectacular snow levels of the previous days. The combination of these factors is an inherent risk of skiing, a sport as thrilling as it can be risky. And the WRSA reflects this by limiting the duty owed by an entity offering access to such a sport. Accordingly, we affirm the district court’s grant of summary judgment in favor of Jackson Hole on the basis of the WRSA.
B. Consideration of Inadmissible Facts
Standish also argues that, in evaluating the motion for summary judgment, the district court improperly considered facts that would be inadmissible before a jury. His argument is based on the district court’s discussion of the factual context of analogous and precedential cases-including, for example, Creel, Dunbar, Cooperman, and Roberts. See Aplt. Br. at 12-14.
While we review a district court’s evidentiary rulings for abuse of discretion, see, e.g., Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998), we review a district court’s findings of law and entry of summary judgment de novo. See Roberts, 884 F.3d at 971. It is true that a district court may consider only admissible evidence from a record in ruling on a motion for summary judgment. See Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (“[I]t is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.” (quoting Wright-Simmons, 155 F.3d at 1268)).
But in discussing these cases, the district court here was not making an evidentiary ruling about whether the facts of cases like Creel and Cooperman would be presented to a jury at trial. Rather, it was making a determination of law. In discussing the facts of these analogous cases, the district court was engaging in classic legal analysis: comparing the facts of Standish’s case with the factual context of other inherent-risk cases under the WRSA. See, e.g., Aplt. App. 54 (discussing the facts of Roberts to evaluate Standish’s claims); Aplt. App. 58 (discussing Dunbar to determine Standish’s claim of risk-creation).
To have erred here, the district court would have had to consider facts about Standish ‘s case that were not in the record or would have been otherwise inadmissible before a jury. The district court did not do so, and we reject Standish’s argument.
III. Conclusion
Thomas Standish’s injuries from his accident were severe and painful. This case provides a somber reminder of skiing’s risks to those who enjoy the sport. But Wyoming law does not provide recourse against Jackson Hole for Standish’s accident. We therefore AFFIRM the district court’s entry of summary judgment.
———
Notes:
[ 1] Though the numbers do not add up precisely, this fact is undisputed. The discrepancy may be due to the variance in measurements between lift-base depth and mid-mountain depth, as well as other environmental factors like wind.
[ 2] The district court came to this number by subtracting the height of the tree (78 inches) from the approximate depth of snow (80 inches). Neither party contests this finding on appeal.
[ 3] On July 1, 2017, Wyoming’s Ski Safety Act went into effect. See Wyo. Stat. Ann. § 1-1-123.2 (2020). This Act takes ski-area skiing out of the purview of the WRSA. In other words, now the Ski Safety Act, rather than the WRSA, sets out the statutory scheme for actions based on skiing at a ski area. But as the district court found, the parties in this case agree the Ski Safety Act is inapplicable to this case because the accident occurred before the law became effective.
[ 4] Though the WRSA is not limited to skiing, many of the precedential cases in this context are results of skiing accidents. Any reference in this opinion to skiing, as opposed to other recreational activities, is merely a reflection of this body of precedent and the particular facts of this case.
[ 5] Though Wyoming’s recent Ski Safety Act is not applicable to this case, see note 3, the Wyoming legislature, in passing the Act, has since provided a definition of “inherent risks” of skiing in a ski area. In doing so, Wyoming’s law now more closely resembles these analogous state statutes. The Ski Safety Act provides that “Inherent risk” with regard to skiing in a ski area means those dangers or conditions which are part of the sport of skiing, including: (A) Changing weather conditions; (B) Falling or surface snow conditions, whether natural or man-made, as they exist or change; (C) Surface or subsurface conditions including bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, trees or other natural objects; (D) Collisions or impacts with natural objects such as the objects specified in subparagraph (C) of this paragraph including encounters with wildlife; (E) Impact with ski lift towers, signs, posts, fences or enclosures, hydrants, water pipes or other man-made structures and their components . . .; (F) Variations in steepness or terrain, whether natural or as a result of ski trail or feature design, or snowmaking or grooming operations such as roads, freestyle terrain, jumps and catwalks or other terrain modifications; and (G) Collisions with other skiers.
Wyo. Stat. Ann. § 1-1-123.2 (2020) (emphasis added).
[ 6] While the other items in this list are all generally natural, the plain meaning of stump indicates a tree that has been cut. See, e.g., Stump, Merriam-Webster, https://www.merriam-webster.com/dictionary/stump (defining “stump” as “the part of a plant and especially a tree remaining attached to the root after the trunk is cut”); Stump, Oxford English Dictionary, https://www.oed.com/view/ Entry/192144 (defining “stump” as “[t]he portion of the trunk of a felled tree that remains fixed in the ground; also, a standing tree-trunk from which the upper part and the branches have been cut or broken off). And the remainder of Colorado’s inherent-risks list includes man-made items, including “impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components,” and “terrain modifications.” Colo. Rev. Stat. § 33-44-103(3.5).
[ 7] So, too, does Wyoming’s new Ski Safety Act, which went into effect about six months after Standish’s accident. See Wyo. Stat. Ann. § 1-1-123.2 (including “stumps” as inherent risks of skiing).
[ 8] Standish’s argument that the expert represented the views of at least “one reasonable person” and thus precluded summary judgment, is similarly unavailing. The reasonableness inquiry to determine whether something is an inherent risk of an activity requires, of course, consideration of the inherent risk itself. But, again, Standish’s expert does not discuss or espouse any non-conclusory opinion on the inherent risk of a subsurface stump in an off-piste area; rather, his conclusion is based on Jackson Hole’s failure to remove it. This merely assumes that such a stump is not an inherent risk. Further, the mere existence of a contrary expert opinion-particularly a conclusory expert opinion-does not preclude summary judgment. See Roberts, 884 F.3d at 977.
Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?
Posted: May 18, 2021 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentThese and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.
Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.
This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.
This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.
This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.
You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.
Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Artwork by Don Long donaldoelong@earthlink.net
Convoluted procedural issues at the trial court, created a ripe field for confusion, but the appellate court held the release bard the claims of the plaintiff in the skier v. skier collision where the ski resort was also sued.
Posted: April 20, 2020 Filed under: Assumption of the Risk, California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: active sport, answered, Assumption of risk, assumption of the risk, Collision, complete defense, Damages, defense counsel, Express Assumption of risk, Express Assumption of the Risk, fault, Gross negligence, Inherent Risk, jurors, jury instructions, matter of law, Ordinary Negligence, parties, plaintiffs', Primary Assumption of the Risk, Public Policy, questions, recreational activity, Release, releases, Risks, secondary assumption, Secondary Assumption of the Risk, Skier, skier v. skier, skiing, snow skiing, snowboarding, special verdict, special verdict form, Sport, Trial court, verdict form Leave a commentOnce the jury found there was no gross negligence on the part of the plaintiff, the release stopped all other claims of the plaintiff.
Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604
State: California Court of Appeals, Fourth District, Third Division
Plaintiff: Grant Tuttle et al
Defendant: Heavenly Valley, L.P.
Plaintiff Claims: negligence
Defendant Defenses: …implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.
Holding: For the Defendant
Year: 2020
Summary
Reading the case is confusing. A lot of the decision revolves around stipulated jury special verdict form and how the case was decided at the trial level after the jury rendered a verdict. The verdict was sort of in favor of the plaintiff; however, the stipulated part of the proceedings were used by the judge to hold for the defendant.
The plaintiff, deceased, season pass holder was hit on the slopes by a snowboarder. Her family sued the snowboarder and the ski area. The jury held the ski area was negligent but not grossly negligent. Because the deceased plaintiff had signed a release, the release stopped the negligence claims.
Facts
The jury found the plaintiff negligent, but not grossly negligent. The judge then ruled the release removed the duty on the party of the defendant so therefore the defendant was not liable.
The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.
Analysis: making sense of the law based on these facts.
The appellate court first looked at the release. The first analysis is what made this case stand out.
Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all.
You cannot sue, because you assume the inherent risks of a sport. Therefore, a release that only protects the defendant from the inherent risks is worthless, as stated by the court.
To help everyone understand the statement above made by the court, the court reviewed Assumption of the Risk under California law.
The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight) and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing. Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.
[Emphasize added]
A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk.
[Emphasize added]
If a defendant increases the risk to participants, then the defendant is liable for any injury to a participant that occurs because of the increase in risk caused by the defendant. However, a participant may still choose to participate and may still be stopped from suing for injuries received from the increased risk if the participants know of the risks and voluntarily assumes the risk. This is called Secondary Assumption of the Risk.
Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.
Secondary Assumption of the risk is part of the defenses a release provides to a defendant. However, a release provides broader and more defenses then Secondary Assumption of the risk provides. On top of that, by signing a written document, the risk outlined in the release, if any, are assumed by the participant because the document is (and should be) a release and an Express Assumption of the Risk document.
A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.
Not all court think exactly along these lines when reviewing releases. However, many do and all courts reach the same conclusion, just by different legal analysis.
However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. The legal issue in an express assumption of the risk case is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.’
[Emphasize added]
Assumption of the risk is a great defense. However, a release provides a greater defense, a better defense and should, if properly written to incorporate the defenses available in all types of assumption of the risk.
Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ ([courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)
There is one caveat with all of this. If they actions of the defendant in changing the risk, increase the risk to the level of gross negligence, a release in most states does not act to bar gross negligence.
As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence.
The court then summed up its review of the defenses of assumption of the risk and release.
To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.
[Emphasize added]
In reviewing the release the appellate court found it stopped the negligence claims of the plaintiff.
Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence.
The court then applied its ruling on the release to the plaintiff’s argument that the defendant was grossly negligent.
A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment.
The rest of the case then goes on to evaluate the appellate court’s findings and the different way the court came to its ruling at the trial court level.
We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; however, the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law.
The defendant won because the jury did not find the defendant was grossly negligent, and the release stopped all other claims of the plaintiff.
So Now What?
There are several things to learn from this case. The first is the intricacies, procedures and rulings that the trial system has, make any trial a nightmare now days. It is nothing like TV, more like a game of war played out on a board with dozens of books or rules that must be consulted before every move.
The second is the value and power of a release. Even after the plaintiff won the trial, the release came back into to play to defeat the claims of the plaintiff.
Thirdly the education the court provided and copies into this post about assumption of the risk as a defense, the different types of assumption of the risk and how your release should incorporate assumption of the risk.
Make sure your release incorporates assumption of the risk language and is written to protect you in the state where you are doing business for the business you are running.
What do you think? Leave a comment.
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Author: Outdoor Recreation Insurance, Risk Management and Law
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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