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Hitting a rock while skiing in Montana is an inherent risk of the sport. Other interesting statements by the court though create an interesting decision.

Decision looks at whether rocks are an inherent risk when they have been moved by the resort and determined the plaintiff was responsible for his injuries.

Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

State: Montana, United States District Court for the District of Montana, Butte Division

Plaintiff: Brian Kopeikin, M.D.                                     

Defendant: Moonlight Basin Management, LLC, D/B/A Moonlight Ba In Resort

Plaintiff Claims: for negligence sounding in premises liability and a claim for negligent hiring, training, supervision and management

Defendant Defenses: Montana Ski Safety Act

Holding: For the Defendant

Year: 2015

This is a basic case. The guest was skiing at the resort, hit a rock and was injured. The court looked at the facts, the Montana’s Skier Responsibility Statute and dismissed the case on a motion for summary judgment. What is interesting and educational about this case are the facts the court reports in its opinion.

Near the ticket booth where Kopeikin purchased his ticket is a sign warning skiers of unmarked hazards. Kopeikin is a very experienced skier, having skied at several ski resorts throughout the Rocky Mountain West over the past 36 years, and he had seen similar signs at other ski resorts warning patrons of unmarked hazards.

Skiing conditions at Moonlight on February 5, 2012, were generally good, with clear skies, calm winds, and temperatures near thirty-two degrees. However, it was a low snow coverage year, and Kopeikin acknowledges that prior to his accident he saw uncovered rocks on the sides of the ski runs. Rocks are prevalent at Moonlight.

Immediately before the entrance to Elkhorn, there is a sign indicating, again, that Elkhorn is designated a black diamond, or “most difficult,” run. As Kopeikin began skiing down Elkhorn, plainly visible grass and rocks could be seen poking through the snow on the side of the run.

The defendant filed a motion for summary judgment based on these facts, and the court granted the motion. Here is the court’s analysis in granting the motion.

Analysis: making sense of the law based on these facts.

The court first looked at the inherent risks and dangers of skiing. “The “inherent dangers and risks of skiing” are statutorily defined as “those dangers or conditions that are part of the sport of skiing“…” The court then compared this statement with the general requirements set forth in the Montana’s Skier Responsibility Statute.

However, the court also found the Montana’s Skier Responsibility Statute did not protect ski areas from their own negligence. “Montana’s skier responsibility statutes cannot be read to immunize ski resorts from their own negligent or intentional acts, because such an interpretation would violate Montana’s constitution.”

However, the stated purpose of Montana’s skier responsibility statutes is to “discourage claims based on damages resulting from the inherent risks of skiing.”

The court also looked at the ski area’s actions in warning its guests of the risks.

Moonlight warned generally of unmarked hazards. It posted multiple signs designating the run on which Kopeikin was injured a black diamond, or most difficult, run. With respect to the cat track, Moonlight had taken efforts to remove it and return the slope back to its natural condition.

In looking at the facts, the court concluded the plaintiff was responsible for his own injuries.

Furthermore, Kopeikin failed to negotiate the terrain safely and without injury. Notwithstanding his years of experience and expertise, he failed to ski in manner that avoided injury to himself and to be aware of the inherent dangers and risks of skiing.

The rock that the plaintiff hit was a natural rock, naturally occurring. (When you figure out how to make rocks let me know?) “…the rocks that Kopeikin collided with, like all the rocks on the Elkhorn run, were naturally occurring.

The plaintiff argued the rocks were created when the ski area attempted to eliminate the cat track.

Without citation to any record evidence, Kopeikin asks the Court to infer that some of the rocks in the area where he fell unnaturally accumulated there through the process of removing the cat track back in 2007. The record evidence, however, establishes the opposite — the process of removing the cat track reduced the number of rocks in the area because many of the rocks were covered up during the cat track removal process.

The issue obviously is whether or not the Montana’s Skier Responsibility Statute. However, the statute specifically identifies rock as an inherent risk.

23-2-702  Definitions.

(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects; [Emphasize added]

Another fact pointed out by the court and obviously placed in the record were there had never been an accident at that location before. “Furthermore, with over 700,000 skier visits, there had never been another reported accident at the location of Kopeikin’s accident caused by a collision with rocks.

The court also pointed out that the plaintiff was skiing the run he was injured on because he did not want to ski the run he had originally planned because of the rocks.

Because the rock the plaintiff encountered was an inherent risk of skiing under the Montana’s Skier Responsibility Statute, the motion for summary judgment of the defendant was granted.

Because Kopeikin’s injuries resulted only from the inherent dangers and risks of skiing and because Moonlight did not breach its duty of reasonable care, Moonlight is entitled to judgment as matter of law.

So Now What?

Remember Montana is a state that does not allow the use of a release and limits most defenses in most outdoor recreation activities. See States that do not Support the Use of a Release. This prohibition is set forth in the Montana constitution.

The decision makes sense; however, some of the statements in the decision were confusing.

Tracking where accidents happen can be good as in this case, or bad in most other cases. Remember foreseeability. If the accident which caused the injury was foreseeable, then the defendant might owe a duty to the plaintiff. Tracking accidents can prove foreseeability. If other accidents had occurred at this location, then having accident location information available would have proven that there was at least a problem and probably a place where the ski area might have owed a duty to its guests because of the number of accidents.

Tracking accidents can be good or be bad. Most times I would guess the tracking could be a problem not a help.

The argument that the rocks were not naturally occurring because they had been created in eliminating the cat track was very novel. The rock was there with, without or after the creation and removal of the cat track. A rock is a rock (I think?). Consequently, whether or not the rock was moved to the surface by actions of the ski area should not have been at issue. However, the court looked at the issue.

The final issue of interest was the statement from the court that the plaintiff had not skied the run safely. “…Kopeikin failed to negotiate the terrain safely and without injury.” Very rarely do courts state the plaintiff was at fault for their injury. Normally, the most the court states is that the defendant was not at fault and you can surmise from that statement the plaintiff was at fault.

However, to have the court state it is interesting and rare.

By the way, second post from Hawaii while on vacation. That is above and beyond for you guys, you owe me!  Smile

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Skiing, Ski Area, Inherent Risk Montana Skier Safety Act, Moonlight Basin , Montana’s skier responsibility statute,

 

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Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

Brian Kopeikin, M.D., Plaintiff, vs. Moonlight Basin Management, LLC, D/B/A Moonlight Ba In Resort, Defendant.

CV 13-C45-CBU-CDLC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BUTTE DIVISION

90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

February 9, 2015, Decided

February 9, 2015, Filed

PRIOR HISTORY: Kopeikin v. Moonlight Basin Mgmt., LLC, 981 F. Supp. 2d 936, 2013 U.S. Dist. LEXIS 160390 (D. Mont., 2013)

CORE TERMS: skier, skiing, rock, snow, elkhorn, ski, track, cat, terrain, inherent dangers, summary judgment, ski area, hazard, reasonable care, mountain, sport, hit, injuries resulted, surface, slope, skis, visible, ski resort, disputed, safely, skied, unmarked, matter of law, entitled to judgment, legal responsibility

COUNSEL: [**1] For Brian Kopeikin, M.D., Plaintiff: Edward P. Moriarity, MORIARITY BADARUDDIN & BOOKE, LLC, Missoula, MT.

For Moonlight Basin Management, LLC doing business as Moonlight Basin Resort, Defendant: Ian McIntosh, LEAD ATTORNEY, CROWLEY FLECK, Bozeman, MT.

JUDGES: Dana L. Christensen, Chief United States District Judge.

OPINION BY: Dana L. Christensen

OPINION

[*1104] ORDER

Before the Court is Defendant’s Motion for Summary Judgment. For the reasons explained, the Court grants the motion.

Synopsis

Plaintiff Dr. Brian Kopeikin (“Kopeikin”) was injured in a skiing accident in Montana. Kopeikin is a resident of California. He brought this diversity action against Defendant Montana ski area operator Moonlight Basin Management, LLC (“Moonlight”) asserting a claim for negligence sounding in premises liability and a claim for negligent hiring, training, supervision and management.

Earlier in the litigation, Moonlight moved to dismiss the Complaint asserting that it failed to state a claim under Montana’s skier responsibility statute, Montana Code Annotated § 23-2-736, because even as alleged all of Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. The Court denied the motion.

Now before the Court is Moonlight’s motion for summary judgment, and a [**2] fully-developed record in which several of Kopeikin’s key allegations from the Complaint are conclusively rebutted. On this updated evidentiary record, the Court concludes that Moonlight acted consistent with its duty of reasonable care and that all of Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. Accordingly, Moonlight is entitled to judgment as a matter of law and its motion for summary judgment is granted.

Factual Background1

1 Defendant filed its motion for summary judgment on June 23, 2014, and Kopeikin responded on July 25, 2014. In accordance with Local Rule 56.1(b), Kopeikin simultaneously filed a separate Statement of Disputed Facts with his brief in opposition to the motion for summary judgment. Then, on the afternoon of January 28, 2015, less than 24 hours prior to a hearing on the motion, Kopeikin filed a document styled as a “Supplement to Statement of Disputed Facts.” (Doc. 41.) Kopeikin did not seek leave of Court to file the “Supplement,” and the filing is not contemplated by Local Rules. Indeed, it is contrary to the Local Rule’s requirement that a Statement of Disputed Facts be filed “simultaneously with” the brief in opposition. L.R. 56.1(b). The filing is untimely by [**3] at least six months, and Kopekin has not sought leave to file it. Accordingly, its contents are not considered for purposes of deciding this motion.

On February 5, 2012, Kopeikin and his skiing partner, Sven Rose, purchased lift tickets to ski Moonlight Basin ski resort. Near the ticket booth where Kopeikin purchased his ticket is a sign warning skiers of unmarked hazards. Kopeikin is a very experienced skier, having skied at several ski resorts throughout the Rocky Mountain West over the past 36 years, and he had seen similar signs at other ski resorts warning patrons of unmarked hazards. Kopeikin knew that the presence of rocks is common at ski areas in the Rocky Mountains, such as Moonlight, and he did not expect that all hazards at Moonlight would be marked.

Skiing conditions at Moonlight on February 5, 2012, were generally good, with [*1105] clear skies, calm winds, and temperatures near thirty-two degrees. However, it was a low snow coverage year, and Kopeikin acknowledges that prior to his accident he saw uncovered rocks on the sides of the ski runs. Rocks are prevalent at Moonlight.

After skiing several easier warm-up runs, Kopeikin and Rose decided to take the Six Shooter chairlift up [**4] the mountain in an effort to access an area of more challenging, expert terrain known as Headwaters. Upon learning that hiking was required to access the terrain, and due to their concern about a lack of sufficient snow coverage, the two men decided not to ski Headwaters.

Instead, Kopeikin and Rose decided to ski a run called “Elkhorn.” At the unloading area for the Six Shooter chairlift there is a sign identifying Elkhorn as a black diamond, or “most difficult,” run. (Doc. 21-9; 30-7.) To access Elkhorn, Kopeikin and Rose began by skiing on an intermediate run called “Fast Lane.” On Fast Lane, there were plainly visible rocks above the snow surface that Kopeikin admits that he likely saw.

The two then approached the entrance to Elkhorn. Immediately before the entrance to Elkhorn, there is a sign indicating, again, that Elkhorn is designated a black diamond, or “most difficult,” run. (Doc. 21-13.) Kopeikin and Rose skied past this sign and onto Elkhorn. At this point, the terrain steepened and narrowed, and the ski run was occupied by obstacles such as moguls and snowdrifts.2 As Kopeikin began skiing down Elkhorn, plainly visible grass and rocks could be seen poking through the snow on [**5] the side of the run.

2 A snowdrift, or wind drift, is defined as “a heap of snow piled up by the wind.” Webster’s New World Dictionary (4th Ed., Wiley Publishing 2002). In his deposition, Kopeikin referred to the snowdrifts as “drift lumps.” (Doc. 25-4 at 93.)

Approximately 200 yards below the entrance of Elkhorn, there is an area where a cat track, or its remains, crosses Elkhorn. In 2007, after determining the cat track was not being used regularly, Moonlight removed the edges of the cat track where it crossed Elkhorn in an attempt to return the slope to its natural condition. The cat track, or what remains of it, partially obscures the terrain immediately below it.

Rose skied in front of Kopeikin and successfully navigated the cat track and the terrain immediately below it. Kopeikin estimates that he was skiing behind Rose at approximately 10 to 15 miles per hour. Kopeikin “came over the cat track and absorbed it[] and when [his] skis touched down both hit rocks,” and he was ejected from his skis. (Doc. 25-4 at 120.) He fell forward and landed in other rocks that were either visible or buried under the snow. As a result of his fall, Kopeikin suffered serious and disabling injuries that [**6] necessitated extensive medical care and treatment.

Kopeikin testified that he “would not have fallen because of the cat track,” id. at 124:1-2, but fell because his “skis hit rocks.” Id. at 124:2-3. The particular rock that caused him to be ejected from his ski was one that he could not see because it was under the snow and was “something you had to penetrate and hit with a little force.” Id. at 146:14-15.

From 2003, when Moonlight opened, through the end of the 2012 ski season, Moonlight had approximately 700,000 skier visits. Other than Kopeikin’s accident, there have been no other reported accidents due to rocks in the location of the subject accident.3

3 Kopeikin disputes whether any other accidents had been reported at the location of his accident, but he presents no contrary evidence. In an effort to show that the fact is disputed, Kopeikin cites to the Court three incident reports involving skiing or snowboarding accidents on the Elkhorn run generally. These include: (1) a 2013 accident that occurred somewhere on Elkhorn in which a woman with “no vision on one side” bumped into her daughter on her blind side and fell, (Doc. 25-11 at 3); (2) a 2011 accident in which a snowboarder “was [**7] going down of [sic] the second hill of elkhorn [and] rolled forward,” (Doc. 25-9 at 2-3.); and (3) a 2008 accident that occurred on the “left side on skiers L of Lower Elkhorn” in which a snowboarder “caught [his] edge on ice [and] fell forward,” (Doc. 25-10 at 2-3). None of these accident appear to have occurred at the location of Kopeikin’s accident, and all of them are, in any case, of such dissimilar nature as to be immaterial to the Court’s analysis.

[*1106] Legal Standard

A party is entitled to summary judgment if it can demonstrate 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). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248. In ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The “mere existence of a scintilla of evidence in support of the plaintiff’s [**8] position” is insufficient to defeat a properly supported motion for summary judgment. Id. at 252.

Discussion

In this diversity action, the Court applies Montana substantive law. Erie R.R. v. Tompkins, 304 U.S. 64, 79, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

Pursuant to Montana statute, “[a] skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing.” Mont. Code Ann. § 23-2-736(4). The “inherent dangers and risks of skiing” are statutorily defined as “those dangers or conditions that are part of the sport of skiing,” including in pertinent part:

. . .

(b) snow conditions as they exist or as they may change, . . .

. . .

(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps . . . and other natural objects;

. . .

(f) variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks,4 and other terrain modifications.

Id. at § 702(2).

4 Consistent with its Order of November 7, 2013, the Court interprets the term “catwalk” to be synonymous with the term “cat track.” No objection to this interpretation has been raised by the parties. [**9]

Under Montana statute, “[a] skier has the duty to ski at all times in a manner that avoids injury to the skier and others and to be aware of the inherent dangers and risks of skiing.” Id. at § 736(1). Additionally, Montana statute requires a skier to “know the range of the skier’s ability and safely ski within the limits of that ability . . . so as to negotiate any section of terrain or ski slope and trail safely and [*1107] without injury or damage.” Id. at 736(2)(a). A skier is also statutorily required to “know that the skier’s ability may vary because of ski slope and trail changes caused by weather, grooming changes, or skier use.” Id.

A ski area operator must act “consistent with the duty of reasonable care owed by a ski area operator to a skier.” Id. at § 733. Montana’s skier responsibility statutes cannot be read to immunize ski resorts from their own negligent or intentional acts, because such an interpretation would violate Montana’s constitution. Mead v. M.S.B., Inc., 264 Mont. 465, 872 P.2d 782, 788 (Mont. 1994). However, the stated purpose of Montana’s skier responsibility statutes is to “discourage[] claims based on damages resulting from the inherent risks of skiing.” Mont. Code Ann. § 23-2-731.

In ruling on Defendant’s motion to dismiss, the Court articulated an interpretation of Montana’s skier [**10] responsibility statutes that harmonizes the definition of the inherent dangers and risks of skiing with the requirement that a ski area operator act consistent with its duty of reasonable care. In so doing, the Court rejected the notion that a court’s only role in ski area liability cases is to inquire whether the plaintiff’s injuries resulted from a collision with a particular object appearing on the statutory list of inherent risks of skiing, because such an application would produce absurd results and render the statute unconstitutional. Kopeikin v. Moonlight Basin Management, LLC, 981 F.Supp.2d 936, 945 (D. Mont. 2013). At the same time, not every case involving hazards on a ski mountain presents a genuine dispute of fact appropriate for trial, and summary judgment will sometimes be appropriate. Id. at 943.

Ultimately, Montana’s skier responsibility statutes make clear that the duty of reasonable care owed by a ski area operator to a skier “must be viewed in the unique context of skiing.” Id. at 945. Skiing is a sport in which thrill-seeking skiers embrace its inherent dangers and risks. It is a sport that occurs on “a mighty mountain, with fluctuation in weather and snow conditions that constantly change.” Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786, 791 (D. Vt. 1951). “[A] ski area operator cannot be expected to expend all of its resources [**11] making every hazard or potential hazard safe, assuming such an end is even possible,” or desirable. Kopeikin, 981 F.Supp.2d at 946. “Ski areas encompass vast and unwieldy terrain and mother nature is always at play.” Id. The act of skiing in such terrain presents an obvious array of dangers to a skier, many of which the ski area operator has no duty to protect against under Montana law. Fundamentally, a skier bears much of the responsibility for avoiding injury to himself, which is a principal that is consistent with Montana law.

In this case, Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. Without question, applying a plain language interpretation of Montana’s skier responsibility statutes leads to this conclusion. In snow conditions as they existed on February 4, 2012, Kopeikin skied over a variation in terrain and collided with a subsurface rock that caused him to fall and collide with other surface or subsurface rocks. Thus, the accident falls clearly within the definition of the inherent dangers and risks that are part of the sport of skiing. Mont. Code Ann. § 23-2-701(2)(b)(d)&(f). Furthermore, Kopeikin failed to negotiate the terrain safely and without injury. Notwithstanding his years of experience and expertise, [**12] he failed to ski in manner that avoided injury to himself and to be aware of the inherent dangers and risks of skiing. See id. at § 23-2-736. Accordingly, so long as Moonlight [*1108] acted consistent with its duty of reasonable care owed to Kopeikin, Kopeikin must accept all legal responsibility for his injuries. Id. at § 23-2-736(4).

It is clear that Moonlight acted consistent with its duty of reasonable care as a ski area operator with respect to Kopeikin. Moonlight warned generally of unmarked hazards. It posted multiple signs designating the run on which Kopeikin was injured a black diamond, or most difficult, run. With respect to the cat track, Moonlight had taken efforts to remove it and return the slope back to its natural condition.

Kopeikin did not suddenly and blindly encounter an unmarked cat track. Rather, Kopeikin admits that what remained of the cat track could be clearly seen from above. Also, the rocks that Kopeikin collided with, like all of the rocks on the Elkhorn run, were naturally occurring. Without citation to any record evidence, Kopeikin asks the Court to infer that some of the rocks in the area where he fell unnaturally accumulated there through the process of removing the cat track back [**13] in 2007. The record evidence, however, establishes the opposite — the process of removing the cat track reduced the number of rocks in the area because many of the rocks were covered up during the cat track removal process.

Furthermore, with over 700,000 skier visits, there had never been another reported accident at the location of Kopeikin’s accident caused by a collision with rocks. According to Kopeikin, the rock that he hit with his skis, which caused him to fall, was buried under the snow and “was something you had to penetrate and hit with a little force and then it was there.” (Doc. 25-4 at 147.) Thus, Kopeikin’s theory that Moonlight had a duty to warn of these specific rocks, is undermined by this specific accident’s unforeseeability, despite the fact that accidents of this general nature were foreseeable to skiers that were skiing on the mountain in low snow conditions. To impose a duty on Moonlight to mark or remove all submerged rocks, which are not readily visible, would be to require Moonlight to undertake an impossibility.

Kopeikin himself recognized that it was a low snow year. He had seen other rocks on other runs prior to skiing Elkhorn. He elected not to ski Headwaters [**14] in part because there was “no snow.” (Doc. 25-4 at 90.) He rightly did not expect that all hazards on the mountain would be marked. On Elkhorn, rocks and grass were plainly visible. When he approached the area of Elkhorn where the remains of the cat track obscured the terrain immediately below, he did not stop and assess what was below.

It is clear that Montana’s skier responsibility statutes apply to these facts, that Kopeikin encountered the inherent dangers and risks of skiing, and that he must therefore accept all legal responsibility for his injuries and damages. As was eloquently stated by Judge Gibson in granting a directed verdict for the defendant ski area operator against a claim by a plaintiff injured when her skis unexpectedly hit a tree stump buried under the snow:

Skiing is a sport; a sport that entices thousands of people; a sport that requires an ability on the part of the skier to handle himself or herself under various circumstances of grade, boundary, mid-trail obstructions, corners and varied conditions of the snow. Secondly, it requires good judgment on the part of the skier and recognition of the existing circumstances and conditions. Only the skier knows his own [**15] ability to cope with a certain piece of trail. Snow, ranging from powder to ice, can be of infinite kinds. Breakable crust may be encountered where soft snow is expected. [*1109] Roots and rocks may be hidden under a thin cover. A single thin stubble of cut brush can trip a skier in the middle of a turn. Sticky snow may follow a fast running surface without warning. Skiing conditions may change quickly. What was, a short time before, a perfect surface with a soft cover on all bumps may fairly rapidly become filled with ruts, worn spots and other manner of skier created hazards.

Wright, 96 F.Supp. at 790-91 (emphasis added).

The Montana Legislature has recognized these truths about skiing and codified them, so that a skier has a duty to ski safely and within his abilities, and accepts all responsibility for injuries resulting from the inherent dangers and risks of skiing. Because Kopeikin’s injuries resulted only from the inherent dangers and risks of skiing and because Moonlight did not breach its duty of reasonable care, Moonlight is entitled to judgment as matter of law.

IT IS ORDERED that Moonlight’s motion for summary judgment (Doc. 20) is GRANTED. IT IS FURTHER ORDERED that all other motions are DENIED AS MOOT. The [**16] clerk shall enter judgment in favor of Defendant and against Plaintiff. This case is CLOSED.

Dated this 9th day of February 2015.

/s/ Dana L. Christensen

Dana L. Christensen, Chief District Judge

United States District Court


Summer 2015 Commercial Fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of June 1, 2015. Thanks.

Rafting, Mountaineering and other summer sports are probably still safer than your kitchen or bathroom. This information is not to scare you away from any activity but to help you understand the risks and to study.

Red is a probable death due to medical issues unrelated to the activity

Dark blue is a death of an employee while working

Date

Activity

State

Location

What

Age

Sex

Location 2

Reference

Company

3/2

Backcountry Skiing

AK

Chugach Mountains

Calving Glacier

28

M

 

http://rec-law.us/1CpcDtI

Chugach Powder Guides

5/23

Whitewater Rafting

CO

Clear Creek

Raft Flipped

47

F

M258.5

rec-law.us/1I3HWx7

All American Adventures

5/31

Whitewater Rafting

MT

Gallatin River

Raft Flipped

43

M

House Rock

rec-law.us/1GhQpwm

Geyser Whitewater Expedition

If you are unable to read the chart, email me at jim@rec-law.us and I’ll send it to you as a PDF.

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

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Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Fatality, Summer, 2015, Whitewater Rafting, Glacier, Calving, Flipped, Chugach Powder Guides, All American Adventures, Geyser Whitewater Expedition,

 

 


Montana Statute Prohibits Use of a Release

TITLE 27  CIVIL LIABILITY, REMEDIES, AND LIMITATIONS

CHAPTER 1  AVAILABILITY OF REMEDIES — LIABILITY

PART 7  LIABILITY

Mont. Code Anno., § 27-1-701 (2012)

27-1-701  Liability for negligence as well as willful acts.

   Except as otherwise provided by law, each person is responsible not only for the results of the person’s willful acts but also for an injury occasioned to another by the person’s want of ordinary care or skill in the management of the person’s property or person except so far as the person has willfully or by want of ordinary care brought the injury upon the person.

28-2-702  Contracts that violate policy of law — exemption from responsibility.

   All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

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Montana Ski Statues

TITLE 23  PARKS, RECREATION, SPORTS, AND GAMBLING

CHAPTER 2  RECREATION

PART 7  PASSENGER ROPEWAYS — SKI AREAS

Mont. Code Anno., § 23-2-701 (2012)

23-2-701  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-702  Definitions.

As used in this part, the following definitions apply:

(1)  “Freestyle terrain” means terrain parks and terrain features, including but not limited to jumps, rails, fun boxes, half-pipes, quarter-pipes, and freestyle bump terrain, and any other constructed features.

(2)  “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including:

(a)  changing weather conditions;

(b)  snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut-up snow, and machine-made snow;

(c)  avalanches, except on open, designated ski trails;

(d)  collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(e)  collisions with lift towers, signs, posts, fences, enclosures, hydrants, water pipes, or other artificial structures and their components;

(f)  variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks, and other terrain modifications;

(g)  collisions with clearly visible or plainly marked equipment, including but not limited to lift equipment, snowmaking equipment, snow grooming equipment, trail maintenance equipment, and snowmobiles, whether or not the equipment is moving;

(h)  collisions with other skiers;

(i)  the failure of a skier to ski within that skier’s ability;

(j)  skiing in a closed area or skiing outside the ski area boundary as designated on the ski area trail map; and

(k)  restricted visibility caused by snow, wind, fog, sun, or darkness.

(3)  “Passenger” means any person who is being transported or conveyed by a passenger ropeway.

(4)  “Passenger ropeway” means a device used to transport passengers by means of an aerial tramway or lift, surface lift, surface conveyor, or surface tow.

(5)  “Ski area operator” or “operator” means a person, firm, or corporation and its agents and employees having operational and administrative responsibility for ski slopes and trails and improvements.

(6)  “Ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for skiing.

(7)  “Skier” means a person who is using any ski area facility for the purpose of skiing, including but not limited to ski slopes and trails.

(8)  “Skiing” means any activity, including an organized event, that involves sliding or jumping on snow or ice while using skis, a snowboard, or any other sliding device.

23-2-703  Ropeways not common carriers or public utilities.

Passenger ropeways may not be construed to be common carriers or public utilities for the purposes of regulation within the meaning of the laws of the state of Montana.

23-2-704  Unlawful to endanger life or cause damage.

(1)  It is unlawful for a passenger riding or using a passenger ropeway to endanger the life and safety of other persons or cause damage to passenger ropeway equipment.

(2)  A person who purposely or knowingly violates this section is guilty of a misdemeanor.

23-2-705  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-706  through 23-2-710 reserved.

23-2-711  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-712  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-713  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-714  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-715  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-716  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-717  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-718  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-719  and 23-2-720 reserved.

23-2-721  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-722  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-723  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-724  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-725  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-726  through 23-2-730 reserved.

23-2-731  Purpose.

The legislature finds that skiing is a major recreational sport and a major industry in the state and recognizes that among the attractions of the sport are the inherent dangers and risks of skiing. The state has a legitimate interest in maintaining the economic viability of the ski industry by discouraging claims based on damages resulting from the inherent dangers and risks of skiing, defining the inherent dangers and risks of skiing, and establishing the duties of skiers and ski area operators.

23-2-732  Repealed.

Sec. 4, Ch. 346, L. 1997.

23-2-733  Duties of operator regarding ski areas.

(1)  Consistent with the duty of reasonable care owed by a ski area operator to a skier, a ski area operator shall:

(a)  mark all trail grooming vehicles by furnishing the vehicles with flashing or rotating lights that must be in operation whenever the vehicles are working or are in movement in the ski area;

(b)  mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails;

(c)  maintain one or more trail boards at prominent locations at each ski area displaying a map of that area’s network of ski slopes and trails, the boundaries of the ski area, and the relative degree of difficulty of the ski slopes and trails at that area;

(d)  post a notice requiring the use of ski-retention devices;

(e)  designate at the start of each day, by trail board or otherwise, which ski slopes and trails are open or closed and amend those designations as openings and closures occur during the day;

(f)  post in a conspicuous location the current skier responsibility code that is published by the national ski areas association;

(g)  post a copy of 23-2-736 in a conspicuous location; and

(h)  mark designated freestyle terrain with a symbol recognized by the national ski areas association.

(2)  Nothing in this part may be construed to impose any duty owed by a ski area operator to a trespasser or an unauthorized user of a ski area.

23-2-734  Duties of operator with respect to passenger ropeways.

A ski area operator shall construct, operate, maintain, and repair any passenger ropeway. An operator has the duty of taking responsible actions to properly construct, operate, maintain, and repair a passenger ropeway in accordance with current standards.

23-2-735  Duties of passenger.

A passenger may not:

(1)  board or disembark from a passenger ropeway except at an area designated for those purposes;

(2)  throw or expel any object from a passenger ropeway;

(3)  interfere with the running or operation of a passenger ropeway;

(4)  use a passenger ropeway unless the passenger has the ability to use it safely without any instruction on its use by the operator or requests and receives instruction before boarding;

(5)  embark on a passenger ropeway without the authority of the operator.

23-2-736  Duties of skier.

(1)  A skier has the duty to ski at all times in a manner that avoids injury to the skier and others and to be aware of the inherent dangers and risks of skiing.

(2)  A skier:

(a)  shall know the range of the skier’s ability and safely ski within the limits of that ability and the skier’s equipment so as to negotiate any section of terrain or ski slope and trail safely and without injury or damage. A skier shall know that the skier’s ability may vary because of ski slope and trail changes caused by weather, grooming changes, or skier use.

(b)  shall maintain control of speed and course so as to prevent injury to the skier or others;

(c)  shall abide by the requirements of the skier responsibility code that is published by the national ski areas association and that is posted as provided in 23-2-733;

(d)  shall obey all posted or other warnings and instructions of the ski area operator; and

(e)  shall read the ski area trail map and must be aware of its contents.

(3)  A person may not:

(a)  place an object in the ski area or on the uphill track of a passenger ropeway that may cause a passenger or skier to fall;

(b)  cross the track of a passenger ropeway except at a designated and approved point; or

(c)  if involved in a skiing accident, depart from the scene of the accident without:

(i)  leaving personal identification; or

(ii)  notifying the proper authorities and obtaining assistance when the person knows that a person involved in the accident is in need of medical or other assistance.

(4)  A skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing. Nothing in this part may be construed to limit a skier’s right to hold another skier legally accountable for damages caused by the other skier.

23-2-737  Repealed.

Sec. 5, Ch. 429, L. 1989.

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Equine laws stop suit against horse, outfitter still sued.

Those familiar with the legal system are more likely to sue, and physicians are very familiar with the system.

The plaintiff and her family went to Montana to vacation and rented horses from the defendant. During the ride, the plaintiff fell off her horse. The article describes numerous damages and loss of income claims before getting to the legal issues of the case. I suspect the plaintiff’s attorney is pushing this issue or even issued a press release to validate to the jury pool how valuable this claim is. (Jury Pool is the group of potential jurors who could be called for a trial.)

Before the trail ride the plaintiff told the guide she had previous experience. Allegedly, she told the guide before the start that her horse was difficult to control. During the ride, her horse “crowded” the horse in front of her. “Eventually, the horse in front of Plaskon [plaintiff] got tired of being crowded and kicked at her horse, which started bucking and threw her off.” The allegations went on to claim:

She claims the lodge, and outfitters were negligent and displayed “willful or wanton disregard” for her safety. Along with seeking actual damages for her medical costs and loss of income, [plaintiff] is asking to be awarded punitive damages.

The defense attorney responded to the reporter by stating that the plaintiff “…signed a waiver of liability and indemnity agreement prior to going on the horseback ride.”

The first problem not brought up in this article is Montana has two statutes that seem to prohibit the use of a release, Mont. Code Anno., § 27-1-701 Liability for negligence as well as willful acts. Which states:

Except as otherwise provided by law, each person is responsible not only for the results of the person’s willful acts but also for an injury occasioned to another by the person’s want of ordinary care or skill in the management of the person’s property or person except so far as the person has willfully or by want of ordinary care brought the injury upon the person.

“Want of ordinary care or skill” is a term that could be closely defined as negligence.

And Mont. Code Anno., § 28-2-702 Contracts that violate policy of law — exemption from responsibility.

All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

This statute says that releases, or waivers, are void in Montana. (See States that do not Support the Use of a Release.) And although in most states, a definition of willful injury would mean greater than normal negligence, the statute later says negligence.

Trail_riding_pic_8

Montana does have an equine liability statute that may provide a defense in this case.

Where is this going? Its litigation so that it can go anywhere. Probably, the case will settle, but possibly we may see this posted here after a trial or hearing, and the case is appealed. Either way there was a probably a lack of understanding or too much involvement in the legal profession. (See People familiar with the legal system are more likely to sue) Physicians between training and experience are very familiar with the legal system and in some surveys is the most frequent group of plaintiffs in the US. Lawyers and people with lawyers in their family are also very likely to sue. Be aware when dealing with groups of people familiar with the legal system.

Furthermore, understand what state you are in and what laws may apply to your situation.

See Chico Hot Springs, outfitter sued by surgeon who fell from horse

What do you think? Leave a comment.

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In this cycle race case, the release was void by state law, but could still be used to prove assumption of the risk.

Ganz vs. United States Cycling Federation, 1994 Mont. Dist. LEXIS 756

At trial it is too late to find out that the release you had everyone sign has no value.

This is a motion hearing in Federal District Court for the great Western Stage Race held in Missoula. Montana by statute does not allow the use of a release. See States that do not Support the Use of a Release. The plaintiff was attempting to have two issues precluded from the trail:

·        The fact the defendant was a non-profit.

·        The fact the plaintiff signed  a release which is void under Montana’s law.

To do that, you file a motion in limine. A motion in limine argues before the judge that because of a statute or the laws of evidence something the other side is going to try to say or introduce as evidence should be excluded. See Why accident reports can come back to haunt youfor more on motions in limine.

The facts that gave rise to the case are the plaintiff was a competitor in the bicycle race. During the race, a pedestrian darted out in front of him and caused him to crash. He was claiming, “alleges negligence on the part of the Defendants for failure to create, establish, follow, and/or enforce appropriate safety standards on the race course.”

The first issue, the non-profit status of the defendant was quickly granted. Because most states have statutes, which state a non-profit is the same as a for-profit corporation, the issue of the defendant being a non-profit would only prejudice the jury.

The second issue, the release is of more interest. Pursuant to Montana’s law, a release is void and against public policy.

M.C.A. § 28-2-702  Contracts that violate policy of law — exemption from responsibility.

All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.

So the release signed by the plaintiff in this case could not be used as a release. The plaintiff’s motion in limine was to exclude the release for any purpose; the jury would never know a release was signed.

So?

The court held the release could be used but only to the extent to show the portion of the release which showed that he was aware of the risks of the race.

The mention of the release form for the purpose of proving that no liability exists is prohibited.  However, the Defendants should be allowed to show that Mr. Ganz [the plaintiff] signed that portion of the release which shows that he was aware of the dangers on the race course, without actually showing the release in its entirety to the jury.

Dependent upon how the release was written and the statement of the risks in the release, this could be a powerful document showing the plaintiff knew of and assumed the risks.

So Now What?

Make sure your release is written to include the risks of the activity or program. There are several reasons for doing this.

·        Guests who have no clue will have a better time if they understand the risks.

·        Guests who read about the risks have a better understanding of the risks and decided if this is the type of opportunity they want to take.

·        If your release is thrown out, you can still use the release as proof the plaintiff assumed the risk.

You can’t write all the risks into a release. However, you can write in the following:

1.      Those injuries that are common to the activity or program.

2.    Those injuries that can cause permanent injury or death.

3.    Those risks which are different in your activity from the normal or competitive activities.

The second group is easy to identify. If it is rock climbing, it is falling or having something fall on you resulting in permanent injury or death. In paddlesports it is drowning, hypothermia, or a “near-drowning” resulting in brain injury.

The first is also easy. Look at every injury you have ever seen in your activity. Injuries from falling on the hike to the base of the climb or falling down carrying a boat to the river. After lunch on the river, people sit on a hot raft getting a burn or rope burn while belaying. Those injuries that are not life threatening but occur regularly and deplete your stock of band aids.

The third category is a little harder. How is your program or activity different from the rest of the people in your industry. If the majority of climbing walls have padding on the floor, and yours does not you should identify this as a risk. In cycling, you need to identify if you have a closed course, a race course without cars on it is critical for participants to know.

As always, you have to have your release created by someone who understands your risks, your sport your activity and knows how to write a release.

What do you think? Leave a comment.

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