Inherent Risk is the part of any sport and is assumed by participants when undertaking the activity.

A 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

Thomas 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.


Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming

The plaintiff became a quadriplegic after her fall skiing which almost guaranty’s litigation because of the amount of money for past and future medical bills as well as lost wages.

Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608

State: Wyoming, United States Court of Appeals for the Tenth Circuit

Plaintiff: Lindy Grace Cunningham; Michael Chad Cunningham

Defendant: Jackson Hole Mountain Resort Corporation

Plaintiff Claims: negligence, premises liability, negligent training and supervision, and loss of consortium

Defendant Defenses: Release

Holding: for the Defendant Ski Area

Year: 2016

This is a simple case, and fairly simple analysis by the Tenth Circuit Court of Appeals. The plaintiff’s rented skis from a ski shop owned by the defendant ski area. The rental agreement included a release. The release specifically stated it covered negligence of the shop and the ski area.

During a January 2013 vacation to Teton Village, Wyoming, Lindy Cunningham rented ski equipment from a JHMR shop located at the base of the resort’s ski area. During the rental process, Mrs. Cunningham signed a rental agreement,….

The plaintiff was injured when she fell skiing and slid into a trail sign. The collision rendered her a quadriplegic.

On January 14, while skiing at JHMR, Mr. Cunningham followed behind Mrs. Cunningham, filming her on his helmet-mounted GoPro camera. Footage from the camera shows Mrs. Cunningham fall toward the right side of the trail, slide, and then collide with a trail sign. The accident severely injured Mrs. Cunningham’s spine, rendering her a quadriplegic.

The plaintiff’s sued for negligence, premise’s liability, negligent training and supervision and loss of consortium. The district court granted a motion for summary judgment filed by the defendant based on the release. The plaintiff appealed the decision to the Tenth Circuit Court of Appeals.

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

The court first looked at the law to be applied to a diversity case. A diversity case is a case in federal court based on the parties living or residing in two different states. Federal court has limited jurisdiction. A federal court can only hear cases involving federal law or federal agencies or a case between two parties from different states.

When a diversity case arises, the law that is applied to the case is the law of the state where the lawsuit was filed. If the state law where the lawsuit was filed does not have case law on the facts as argued, then other state law and federal decisions are used to support the decision.

Because this is a diversity case, we apply the substantive law of Wyoming, the forum state.” Specifically, we “must ascertain and apply state law to reach the result the Wyoming Supreme Court would reach if faced with the same question.” If “no state cases exist on a point, we turn to other state court decisions, federal decisions, and the general weight and trend of authority.”

The court then reviewed the four –part test set out by the Wyoming Supreme Court to determine the validity of a release.

In reaching its determination a court considers . . . (1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Only exculpatory agreements meeting these requirements are enforceable.

If the release passes all four parts of the test, the release is deemed valid. In looking at the first two factors the court stated that the Wyoming Supreme court had essentially combined them.

In application, the Wyoming Supreme Court has essentially combined the first two factors, stating that “[a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.”

The plaintiff argued that a public duty did exist because the ski area was located on federal land and was subject to federal regulations. The plaintiff also argued the release was contrary to public policy as set forth in the Wyoming Recreation Safety Act and that it unlawfully barred claims for essential services.

On appeal, the Cunninghams make arguments related to the first three factors by asserting (1) JHMR owes a duty to the public because it operates on United States Forest Service land pursuant to a special use permit and is subject to federal regulation, (2) the release is contrary to public policy as expressed in the Wyoming Recreation Safety Act, and (3) the release unlawfully bars negligence actions arising from essential services such as the provision of emergency medical services at the JHMR clinic.

The court first took note of the fact that none of the arguments raised by the plaintiff had been raised at the trial court level. Consequently, there was no requirement that the appellate court review those issues. Consequently, the court did not look at these issues.

The fourth issue raised by the plaintiffs the court did review. “…whether the release agreement evidences the parties’ intent to abrogate negligence liability in clear and unambiguous language….” Reviewing this argument required close scrutiny of the release and traditional contract principles of looking at the document as a hole. That review also requires looking at the nature of the service provided and the purpose of the release.

This language broadly bars all claims related to Mrs. Cunningham’s use of facilities and services at JHMR. Although the Cunninghams argue their negligence claims should not be barred by this pro-vision, the Wyoming Supreme Court has determined on multiple occasions that exculpatory clauses “clearly and unambiguously” express the parties’ intent to release negligence liability even where the clauses do not mention negligence specifically. We conclude the Wyoming Supreme Court would reach the same result here, where the exculpatory clause expressly emphasizes that it “INCLUDE[S] NEGLIGENCE.”

The court found the language of the release met the requirements of Wyoming law. However, the court did not stop there. The plaintiff also argued the parties mutually misunderstood the release, both believing it only covered the liability issues of renting equipment.

This was broken down into four sub-issues. The release contained hidden exculpatory language, there was an internal conflict in the release; the release was overly broad and there was a mutual mistake. Again, the court shot down these arguments.

The Cunninghams first assert the exculpatory clause was too inconspicuous to be “clear and unambiguous.” We have found no case imposing a “conspicuousness” requirement to exculpatory clauses under Wyoming law. But even assuming enforcement of a sufficiently inconspicuous clause could offend public policy, the release here is not inconspicuous.

While the print is necessarily small, it is readable even in the further-shrunken form presented in the record on appeal. And as the district court observed, “there is nothing to suggest that [Mrs.] Cunningham requested larger print or indicated that she could not read the release.” For these reasons, even if conspicuousness is a requirement under Wyoming law, the release here was conspicuous.

The internal conflict argument was the release was both consistent and inconsistent with the Wyoming Recreational Safety Act. Again, the court found no inconsistency.

The WRSA does not exempt or identify specific inherent risks; it generally defines “inherent risks” as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.”

The final argument was the issue that the release was overly broad.

First, the Cunninghams argue the release is ambiguous because “it relates to all ‘activities’ and all ‘facilities’ and all ‘premises’ on ‘each and every day’ against a wide array of entities and individuals.” Because the exculpatory clause includes broad language covering all facilities and activities at the resort at any time of year, the Cunninghams conclude “[t]here is no way possible for a person to understand what this clause actually encompasses.”

The court found the release was no different than other releases previously reviewed by the Wyoming Supreme Court.

The release explicitly limits JHMR’s liability for “any and all claims, demands, causes of action, liabilities, actions . . . arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR.” Although this language is broad, there is nothing ambiguous about it. Indeed, the Wyoming Supreme Court rejected an analogous argument when it held that a release from liability for “legal claims or legal liability of any kind whether foreseen or unforeseen” meant precisely what it said and thus clearly barred a plaintiff’s negligence claims.

The mutual mistake argument means neither party thought the release was applied to anything other than renting of ski equipment. This argument was not raised at the trial court level so it was moot at the appellate court.

Finally, the court looked at the argument that the actions of the defendant were willful and wanton. Although not stated, I am assuming this argument was meant to void the release for covering more than simple negligence.

The court first defined willful and wanton under Wyoming Law.

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Under Wyoming law willful and want conduct is more aggravated than gross negligence and to prove willful and wanton conduct, there must be a demonstration of a state of mind approaching an intent to do harm.

The court found nothing in the pleadings or any evidence which showed evidence of actions that rose to this level.

Here, there is no evidence from which a reasonable jury could conclude JHMR acted willfully or wantonly when it placed the trail sign with which Mrs. Cunningham collided. It is undisputed that the sign has been in the same spot in substantially the same form for over thirty years. Yet there was no evidence presented that anyone other than Mrs. Cunningham has collided with the sign in that time. Although the Cunninghams’ experts criticized JHMR’s choices in placing and constructing the sign, as the district court concluded, “[a]t best, the alleged failings related to the placement and construction of the sign are negligent, not willful and wanton behavior.”

The Tenth Circuit Court of Appeals upheld the motion for summary judgment and dismissal of the case by the district court.

So Now What?

This case was won by the ski area because the risk manager at the ski area looked outside his or her office. When a ski area, or other resort operations, owns rental, retail and lodging, there are several different places a release can be signed. Making sure that the release covers all the activities offered by the resort can make a big difference as in this case.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608

Cunningham v. Jackson Hole Mountain Resort Corporation, 2016 U.S. App. LEXIS 22608

Lindy Grace Cunningham; Michael Chad Cunningham, Plaintiffs – Appellants, v. Jackson Hole Mountain Resort Corporation, a Wyoming corporation, Defendant – Appellee.

No. 16-8016

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

2016 U.S. App. LEXIS 22608

December 20, 2016, Filed

PRIOR HISTORY:  [*1] (D.C. No. 2:15-CV-00007-NDF). (D. Wyo.).

COUNSEL: For LINDY GRACE CUNNINGHAM, MICHAEL CHAD CUNNINGHAM, Plaintiff – Appellant: Gerard R. Bosch, Mary Alison Floyd, Law Offices of Jerry Bosch, LLC, Wilson, WY.

For JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming Corporation, Defendant – Appellee: James Kent Lubing, Lubing Law Group, Jackson, WY.

JUDGES: Before KELLY, MATHESON, and McHUGH, Circuit Judges.

OPINION BY: Carolyn B. McHugh

OPINION

ORDER AND JUDGMENT*

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Lindy and Chad Cunningham sued Jackson Hole Mountain Resort Corporation (JHMR)1 for injuries Mrs. Cunningham sustained when she collided with a trail sign while skiing. The district court granted summary judgment for JHMR, concluding the Cunninghams’ claims were barred by the terms of a release Mrs. Cunningham signed when she rented ski equipment from JHMR’s ski shop. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

1 Throughout this opinion, we use the acronym JHMR to refer to both the Jackson Hole Mountain Resort property and the corporation that owns the resort, Jackson Hole Mountain Resort Corporation.

  1. BACKGROUND

During a January 2013 vacation to Teton Village, Wyoming, Lindy Cunningham rented ski equipment from a JHMR shop located at the base of the resort’s ski area. During the rental process, Mrs. Cunningham signed a rental agreement,2 which included the following language (the release):

I [the signor] further agree to forever release, discharge, waive, [*2]  save and hold harmless, indemnify, and defend JHMR . . . from and against any and all claims, demands, causes of action, liabilities, actions, and any and all medical expenses or other related expenses, including damage to persons and property, asserted by others, by me, or on my behalf, my estate, executors, heirs, or assigns brought under any theory of legal liability, INCLUDING NEGLIGENCE, arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR, or my presence on JHMR premises.

2 The Cunninghams contend there is a genuine dispute of fact regarding whether Mrs. Cunningham actually signed the rental agreement because, in response to requests for admission, Mrs. Cunningham asserted she viewed the agreement on a computer screen and not in the form presented during discovery. But there is no dispute Mrs. Cunningham’s physical signature appears on the rental agreement. And there is no dispute JHMR provides the same agreement to every rental customer on a computer screen before printing a hard copy for the customer’s signature. Moreover, this evidence relates solely to the third factor in our analysis of the release’s enforceability, which requires consideration of “whether the agreement was fairly entered into.” Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986). As explained below, Mrs. Cunningham raised arguments only with respect to the fourth factor and therefore waived the arguments for which the signature evidence would be relevant. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011). Accordingly, the evidence does not provide a basis to reverse the district court’s grant of summary judgment.

On January 14, while skiing at JHMR, Mr. Cunningham followed behind Mrs. Cunningham, filming her on his helmet-mounted GoPro camera. Footage from the camera shows Mrs. Cunningham fall toward the right side of the trail, slide, and then collide with a trail sign. The accident severely injured Mrs. Cunningham’s spine, rendering her a quadriplegic.

The Cunninghams sued JHMR, claiming negligence, premises liability, negligent training and supervision, and loss of consortium. After limited discovery, the district court concluded the Cunninghams’ claims were barred by the release, and it therefore granted summary judgment in JHMR’s favor.

  1. DISCUSSION

[HN1] We review the district [*3]  court’s grant of summary judgment de novo. Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002). “Because this is a diversity case, we apply the substantive law of Wyoming, the forum state.” Id. Specifically, 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). If “no state cases exist on a point, we turn to other state court decisions, federal decisions, and the general weight and trend of authority.” Grand Targhee, 308 F.3d at 1100 (citation omitted). Here, the district court concluded the release signed by Mrs. Cunningham was valid and enforceable under Wyoming law and encompassed all of the Cunninghams’ claims. In addition, the district court determined JHMR did not act willfully or wantonly.3 We affirm each of the district court’s determinations.

3 JHMR also argued the claims were barred by the Wyoming Recreation Safety Act (WRSA), Wyo. Stat. Ann. §§ 1-1-121 to -123, because Mrs. Cunningham hit a trail sign, which is an inherent risk of skiing. But the district court denied summary judgment on this basis, and neither party has appealed this determination. Accordingly, we do not address it here.

  1. Enforceability and Scope of the Release

[HN2] Wyoming courts will enforce clauses releasing parties from liability for injury or damages so long as the clause is not contrary to public policy. Schutkowski v. Carey, 725 P.2d 1057, 1059 (Wyo. 1986). And as relevant here, “[g]enerally, specific agreements absolving participants and proprietors from negligence liability during hazardous recreational activities are enforceable, subject to willful misconduct limitations.” Id.; see also Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 956 (Wyo. 1999) (“Where willful and wanton [*4]  misconduct is shown, an otherwise valid release is not enforceable.”). To determine the enforceability of a particular exculpatory clause, the Wyoming Supreme Court applies a four-part test:

In reaching its determination a court considers . . . (1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Only exculpatory agreements meeting these requirements are enforceable.

Schutkowski, 725 P.2d at 1060; see also Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987) (“An agreement passing scrutiny under these factors is valid, denying the signing party an action in negligence.”). In application, the Wyoming Supreme Court has essentially combined the first two factors, stating that “[a] duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service.” Milligan v. Big Valley Corp., 754 P.2d 1063, 1066 (Wyo. 1988). The third factor has also been discussed in conjunction with the first two. See Schutkowski, 725 P.2d at 1060 (“The service provided by appellees was not a matter of practical necessity for any member of the public. It was not an essential service, so no decisive bargaining advantage existed.”). [*5]

On appeal, the Cunninghams make arguments related to the first three factors by asserting (1) JHMR owes a duty to the public because it operates on United States Forest Service land pursuant to a special use permit and is subject to federal regulation, (2) the release is contrary to public policy as expressed in the Wyoming Recreation Safety Act, and (3) the release unlawfully bars negligence actions arising from essential services such as the provision of emergency medical services at the JHMR clinic. But the Cunninghams did not raise these arguments before the district court. In their opposition to summary judgment, the Cunninghams focused exclusively on the fourth factor: whether the intention of the parties is expressed in clear and unambiguous language. In addition, the Cunninghams failed to present evidence to the district court in support of these new arguments, which is why they ask this court to take judicial notice of the requisite facts.4 Although the Cunninghams maintain they raised the public-duty issue below, the discussion was limited to isolated references in the facts section of their memorandum to the district court, which merely recited the ownership interest of the [*6]  Forest Service and the alleged existence of a special use permit. The Cunninghams did not provide analysis or argument to the district court related to JHMR’s public duty or the other two arguments now raised on appeal. Under these circumstances, the Cunninghams have forfeited these arguments, and we do not consider them for the first time on appeal. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc., 100 F.3d 792, 798 (10th Cir. 1996) (“Vague, arguable references to a point in the district court proceedings do not preserve the issue on appeal.” (alterations, ellipsis, and citation omitted)).

4 Because the Cunninghams’ proffered evidence relates only to arguments not preserved for appeal, we deny the motion for judicial notice.

We therefore limit our review to  [HN3] the fourth factor, which “requires us to determine whether the release agreement evidences the parties’ intent to abrogate negligence liability in clear and unambiguous language.” Boehm, 748 P.2d at 711. To make this determination, we must “closely scrutinize” the exculpatory clause. Schutkowski, 725 P.2d at 1060. In doing so, we must interpret the clause “using traditional contract principles and considering the meaning of the document as a whole.” Massengill v. S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1135 (Wyo. 2000). In addition, “the nature of the service and the purpose of the release must be considered.” Schutkowski, 725 P.2d at 1062. Applying these principles, the district court concluded the rental agreement clearly and unambiguously released JHMR from liability for all of the Cunninghams’ [*7]  claims. We agree.

When Mrs. Cunningham signed the rental agreement, she released JHMR

from and against any and all claims, demands, causes of action, liabilities, actions, and any and all medical expenses or other related expenses, including damage to persons and property, asserted by others, by me, or on my behalf, my estate, executors, heirs, or assigns brought under any theory of legal liability, INCLUDING NEGLIGENCE, arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR, or my presence on JHMR premises.

.See Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1302 (D. Wyo. 1999) (“The Release blatantly and unambiguously [*8]  specifies that Plaintiff waived negligence claims against Defendant for all injuries resulting from participation in the recreational activity, making it even more clear than the exculpatory clauses found valid in Schutkowski and Milligan.” (internal cross-reference omitted)).

Nonetheless, the Cunninghams contend the release is unclear and/or ambiguous because the exculpatory language is “hidden,” the release is internally conflicted, and the release is overly broad. The Cunninghams also contend that, even if the release is clear and unambiguous, the parties mutually misunderstood the release to cover only rental-equipment-related injuries and that, by its terms, the release applies only to injuries arising from inherent hazards of skiing. We address each of these arguments in turn.

  1. “Hidden” Exculpatory Language

The Cunninghams first assert the exculpatory clause was too inconspicuous to be “clear and unambiguous.” We have found no case imposing a “conspicuousness” requirement to exculpatory clauses under Wyoming law.5 But even assuming enforcement of a sufficiently inconspicuous clause could offend public policy, the release here is not inconspicuous.

5 The only case the Cunninghams cite that identified such a requirement in the context of a liability waiver for recreational activity is  [*9] Kolosnitsyn v. Crystal Mountain, Inc., No. C08-05035-RBL, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491 (W.D. Wash. Aug. 28, 2009). There, the district court considered whether Crystal Mountain’s liability release was conspicuous, but it did so under Washington state law, which deems exculpatory clauses “enforceable unless they violate public policy, are inconspicuous, or the negligence falls below standards established by law.” 2009 U.S. Dist. LEXIS 79111, [WL] at *3 (citing Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 10 (Wash. 1992)). Unlike Washington, Wyoming deems exculpatory clauses enforceable unless they violate public policy; it does not consider the two additional exceptions to enforceability that Washington recognizes. See, e.g., Massengill v. S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1136 (Wyo. 2000).

The Cunninghams maintain the exculpatory language is buried in a long block of text, written in small typeface, and presented in the rental agreement under circumstances which make it appear as though the whole agreement pertains only to equipment rental. But the district court correctly explained, “While the Release is part of the Rental Agreement, it makes up the bulk of the agreement.” The entire rental agreement fills one side of one piece of paper, with the release provision placed front and center. The release is presented under a heading that states “RENTAL WARNING, RELEASE OF LIABILITY AND INDEMNITY AGREEMENT — PLEASE READ CAREFULLY BEFORE SIGNING.” Assumption of risk and waiver of liability are addressed in the first two paragraphs of the release, and they are clearly set apart from one another. Moreover, the first sentence of the release signals that its scope is broader than the rental of equipment, as it discusses the dangers of skiing in general. The exculpatory provision also stands out because the phrase “INCLUDING NEGLIGENCE” is written in all caps. Furthermore, the last paragraph of the release states in part, “I HAVE CAREFULLY READ THIS RELEASE, UNDERSTAND [*10]  ITS CONTENTS, AND UNDERSTAND THAT THE TERMS OF THIS DOCUMENT ARE CONTRACTUAL . . . . I AM AWARE THAT I AM RELEASING CERTAIN LEGAL RIGHTS THAT I OTHERWISE MAY HAVE . . . .” While the print is necessarily small, it is readable even in the further-shrunken form presented in the record on appeal. And as the district court observed, “there is nothing to suggest that [Mrs.] Cunningham requested larger print or indicated that she could not read the release.” For these reasons, even if conspicuousness is a requirement under Wyoming law, the release here was conspicuous.

  1. Internal Conflict

The Cunninghams next cite Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 899-900 (D. Colo. 1998), and argue the release is ambiguous because it is both consistent and inconsistent with the Wyoming Recreation Safety Act (WRSA). But the Cunninghams’ reliance on Rowan is misplaced. There, the court found a release ambiguous in part because it specifically released the resort of liability for all risks, including the use of ski lifts. Id. at 899. The release then stated the plaintiff assumed the inherent risks of skiing as set forth in Colorado’s Ski Safety Act, a statute that explicitly states that use of ski lifts does not qualify as an “inherent risk.” Id. Thus, the release conflicted [*11]  with the relevant statutory language.

Here, by contrast, there is no conflict between the WRSA and the types of risks or injuries JHMR listed in the release.  [HN4] The WRSA does not exempt or identify specific inherent risks; it generally defines “inherent risks” 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(a)(i). And the release here, unlike the release in Rowan, does not incorporate by reference the WRSA. In light of these significant differences, Rowan does not support a finding of ambiguity here.

  1. Overbreadth

Next, the Cunninghams make multiple arguments related to the alleged overbreadth of the release. First, the Cunninghams argue the release is ambiguous because “it relates to all ‘activities’ and all ‘facilities’ and all ‘premises’ on ‘each and every day’ against a wide array of entities and individuals.” Because the exculpatory clause includes broad language covering all facilities and activities at the resort at any time of year, the Cunninghams conclude “[t]here is no way possible for a person to understand what this clause actually encompasses.”

At the outset, we question whether the Cunninghams adequately [*12]  preserved this argument. The Cunninghams’ opposition to summary judgment contains only a passing reference to the issue:

The []release language appears to apply to the signator’s “presence on JHMR premises.” Theoretically, if someone left the ski hill and came back for dinner at the resort and was injured as a result of [JHMR]’s negligence this release would apply. This is not clear or unambiguous or within [the] scope of renting skis.

And the Cunninghams presented no evidence in the district court of JHMR’s ownership or operation of other facilities and activities at the resort. The Cunninghams instead attempt to introduce such evidence on appeal through their motion for judicial notice.

But even if we consider this issue, the Cunninghams’ arguments fail on the merits. The release explicitly limits JHMR’s liability for “any and all claims, demands, causes of action, liabilities, actions . . . arising directly or indirectly out of my use of the facilities, ski area or ski lifts at JHMR.” Although this language is broad, there is nothing ambiguous about it. Indeed, the Wyoming Supreme Court rejected an analogous argument when it held that a release from liability for “legal claims or legal [*13]  liability of any kind whether foreseen or unforeseen” meant precisely what it said and thus clearly barred a plaintiff’s negligence claims. Milligan, 754 P.2d at 1068.

The Cunninghams also argue the release should be deemed void because it covers a broad range of potential injuries but is presented in a rental agreement, thus leading renters to believe they are releasing only claims for injuries caused by the rental equipment, while in fact, the release covers all injuries, including those unrelated to equipment. In support of their argument, the Cunninghams cite Kolosnitsyn v. Crystal Mountain, Inc., in which the court expressed concern about a person “unwittingly” signing away his rights because the rental-agreement release might have applied to injuries related to the rental equipment alone or to injuries related to use of the ski area. No. C08-05035-RBL, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491, at *4 (W.D. Wash. Aug. 28, 2009) (unpublished).

But the decision in Kolosnitsyn was based on facts not present here. In Kolosnitsyn, the plaintiff rented equipment from a ski shop and while skiing at an adjoining resort suffered injuries not caused by his equipment. 2009 U.S. Dist. LEXIS 79111, [WL] at *1. When he sued the resort, it invoked a release the plaintiff had signed when renting his equipment, based on the resort’s ownership [*14]  of the ski shop and the release’s waiver of claims against “the ski/snowboard shop, its employees, [and its] owners.” 2009 U.S. Dist. LEXIS 79111, [WL] at *1-2 (emphasis added). The court found the release unenforceable because it did not clearly identify the adjoining resort as the ski shop’s “owner.” 2009 U.S. Dist. LEXIS 79111, [WL] at *4. Thus, the plaintiff would not have known from the release itself that he was waiving claims against the resort, including for the resort’s own negligence. Id.

Here, by contrast, the release expressly waives claims against JHMR itself–it bars “any and all claims,” including those “arising directly or indirectly” from “use of the facilities, ski area or ski lifts at JHMR.” Thus, Kolosnitsyn does not support the Cunninghams’ position. Moreover, although neither we nor Wyoming courts have addressed this precise issue, we have concluded that an exculpatory release signed in conjunction with the rental of sporting equipment can bar claims for injuries arising out of participation in the sport but unrelated to the equipment. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1108, 1109, 1112-13 (10th Cir. 2002) (applying Colorado’s four-factor test that Wyoming has since adopted and concluding a release signed in connection with a mountain-bike rental barred negligence claims against resort for biker’s injuries [*15]  unrelated to the bike or other rented equipment).

The Cunninghams also argue the release should be held invalid because it applies to skiers who rent equipment, but not to skiers who bring their own. Although this argument finds some support in the Kolosnitsyn decision, 2009 U.S. Dist. LEXIS 79111, 2009 WL 2855491, at *4, it does not fit squarely within the four-factor framework established by Wyoming law. Rather, it seems to be a general appeal to public policy. While the Wyoming Supreme Court does not enforce contracts that are contrary to public policy, it also “will not invalidate a contract entered into freely by competent parties on the basis of public policy unless that policy is well settled.” Andrau v. Mich. Wis. Pipe Line Co., 712 P.2d 372, 376 (Wyo. 1986) (internal quotation marks omitted). The Cunninghams have not shown a settled public policy in Wyoming that discourages releases like JHMR’s. Moreover, the evidence shows JHMR requires its season-pass holders to sign releases identical or similar to the one signed by Mrs. Cunningham. We therefore reject this argument.

  1. Mutual Mistake and Inherent Hazards

The Cunninghams next argue that even if the release is unambiguous, it does not bar their claims for two reasons. First, the Cunninghams maintain both they and JHMR believed the release [*16]  applied only to injuries related to rental equipment and therefore the parties were mutually mistaken as to the release’s scope. But the Cunninghams also concede they did not raise this argument before the district court. We therefore decline to address the argument because it has been forfeited and the Cunninghams did not argue plain-error review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011).

Second, the Cunninghams briefly argue that, based on the reasoning of a Wyoming state district court in Beckwith v. Weber, Civ. Action No. 14726, the exculpatory language in the second paragraph of the release must be read to apply only to injuries arising from the “inherent hazards” discussed in the first paragraph of the release. But, as the district court concluded, Beckwith is distinguishable because the release there contained only a single sentence that did not mention a release of liability for negligence. By contrast, the release here clearly and unambiguously bars negligence claims against JHMR, not just claims arising out of the inherent risks of skiing. And even if the release could be limited to the inherent risks identified in the first paragraph of the release, such risks include “collisions with . . . man-made objects [*17]  and features.” Because Mrs. Cunningham collided with a man-made trail sign, she cannot succeed on this argument, even if the release could be read to apply only to the identified inherent risks.

In sum, we agree with the district court that the release clearly and unambiguously bars the Cunninghams’ claims. And because the ambiguity of the release was the only issue preserved for our review, we conclude the release is valid and enforceable under Wyoming law.

  1. Willful and Wanton Conduct

Finally, the Cunninghams argue the release is unenforceable because JHMR engaged in willful and wanton misconduct. See Milligan v. Big Valley Corp., 754 P.2d 1063, 1068 (Wyo. 1988) ( [HN5] “Where willful and wanton misconduct is shown, an otherwise valid release is unenforceable.”). Wyoming sets a high bar for establishing willful and wanton misconduct.

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Hannifan v. Am. Nat’l Bank of Cheyenne, 2008 WY 65, 185 P.3d 679, 683 (Wyo. 2008) (emphasis omitted) (quoting Weaver v. Mitchell, 715 P.2d 1361, 1370 (Wyo. 1986)). It is “more aggravated than gross negligence.” Danculovich v. Brown, 593 P.2d 187, 191 (Wyo. 1979). “In order to [*18]  prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Cramer v. Powder River Coal, LLC, 2009 WY 45, 204 P.3d 974, 979 (Wyo. 2009) (citation omitted).

Here, there is no evidence from which a reasonable jury could conclude JHMR acted willfully or wantonly when it placed the trail sign with which Mrs. Cunningham collided. It is undisputed that the sign has been in the same spot in substantially the same form for over thirty years. Yet there was no evidence presented that anyone other than Mrs. Cunningham has collided with the sign in that time. Although the Cunninghams’ experts criticized JHMR’s choices in placing and constructing the sign, as the district court concluded, “[a]t best, the alleged failings related to the placement and construction of the sign are negligent, not willful and wanton behavior.”

Moreover, the only case to which the Cunninghams draw an analogy–Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889 (D. Colo. 1998)–is clearly inapposite. Rowan involved a skier who died after colliding with a picnic deck (1) that was at the bottom of a race course on which skiers “attained speeds in excess of 120 kilometers per hour,” id. at 892; (2) that was positioned such that skiers had “to make a hard left turn at the end of the course to avoid [*19]  the deck,” id. at 893-94; (3) that was unpadded, despite having been previously padded and despite available padding that easily could have been attached, id. at 893, 900; and (4) with which there had been several “close calls” and an actual injury on the same day the skier was killed and in the two days prior, id. at 900. In addition, the resort made the decedent and other skiers sign the release in the middle of the third day of their test runs, doing so only after receiving notice of multiple close calls and an actual injury, and claiming it routinely required releases but without producing evidence to support this claim. Id. at 898, 900. The present circumstances bear no similarity to the facts in Rowan. Where the trail sign here had been in place without known incident for over thirty years prior to Mrs. Cunningham’s accident, no reasonable jury could conclude JHMR engaged in willful and wanton misconduct by placing it there. Accordingly, the release is enforceable and bars the Cunninghams’ claims.6

6 Because Mr. Cunningham’s claim for loss of consortium is derivative of Mrs. Cunningham’s claims related to her injuries, his claim also fails. Massengill, 996 P.2d at 1137; Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment in favor of JHMR. And we DENY the Cunninghams’ motion for judicial notice.

Entered for the Court

Carolyn B. McHugh

Circuit Judge

 


Michigan appellate court supports dismissal of a case based on Michigan Ski Area Safety Act

Anderson v Boyne USA, Inc., 2012 Mich. App. LEXIS 1725

Decision is definitive about the issues identifying how the Michigan Ski Area Safety Act is to be interpreted.

This decision is recent and can still be appealed by the plaintiff. However, the decision is written well, short, and thorough. In the case, the plaintiff was paralyzed on a jump in the terrain park at Boyne Mountain Ski Area. The trial court dismissed  the plaintiff’s lawsuit based on the Michigan Ski Safety Act, (SASA), MCL 408.341 et seq.

The plaintiff had been skiing at Boyne the prior day and had boarded through the terrain park. The terrain park was marked and had warning signs posted near the entrance into the terrain park. The court stated, “The jump was not a hidden feature of the park, and plaintiff would have seen it had he heeded all posted signs and warnings, as required by the statute.”

Summary of the case

The court in the first paragraph stated the Michigan Ski Safety Act barred the plaintiff’s claims because the jump was “an inherent, obvious, and necessary danger of snowboarding.” The reasoning was based on the SASA MCL 408.342 which states:

(1) While in a ski area, each skier shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Stay clear of snow-grooming vehicles and equipment in the ski area.

(c) Heed all posted signs and warnings.

(d) Ski only in ski areas which are marked as open for skiing on the trail board described in section 6a(e).

(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 snowmaking or snow-grooming equipment.

The court then interpreted a prior Michigan Supreme Court decision Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20; 664 NW2d 756 (2003) which stated: “in the hazards is that they all inhere in the sport of skiing and, as long as they are obvious and necessary to the sport, there is immunity from suit.”

The court looked at the jump in the terrain park as a “variation of terrain” which is listed as an inherent risk of skiing in the SASA. The jump was also something the plaintiff should expect to see if one entered the terrain park. A skier or snowboarder must accept the risks associated with the sport, whether going down the slope or “performing tricks in a terrain park.”

The court also looked at the terrain park not as some special part of the ski area but as part of the ski area. The following quote should be used in every motion over terrain park injuries in the future. It shows a true understanding of what a terrain park is.

While it is true, one can snowboard without jumps, a snowboarder enters a terrain park expecting to use jumps, rails, and boxes. Without those features, there would not be a terrain park. If a snowboarder did not want to use those features, he or she would not enter a terrain park. Instead, the snowboarder would simply propel down a ski hill. Therefore, a jump is a necessary feature of a terrain park.

The court looked at the jump the plaintiff was injured jumping and found it was obvious. The plaintiff also knew of the jump, seeing it the previous day.

The court also took on the plaintiff’s expert witness. The plaintiff, through its expert argued the jump was designed or constructed incorrectly. The court found this to be irrelevant. How it was constructed does not matter because it is a risk that the plaintiff assumed as set forth in the statute. The Michigan legislature removed this argument from the case when it passed the law.

So Now What?

Finally, a decision concerning a terrain park from a court that understands what a terrain park is, part of a ski area. However, as stated above, this decision could still be appealed, which may result in a different decision.

This case shows an evolution of the courts understanding of snowboarding and terrain parks. Decisions in the past either failed to comprehend what a terrain park was or held the resort liable because the terrain park was outside the protection of the statute and obviously dangerous. See Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807 where the court found the half pipe to be a high-risk  feature when the plaintiff fell into it (not fell while in it, but fell from the berm into it.)

Here the court saw the park as just another part of the ski area. Like a roller or a bump made by grooming outside of the terrain park, whether or not the injury was caused in or out of the terrain, park does not matter. The jump is part of the resort as such covered by the definitions in the Michigan Ski Area Safety Act.

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Attorney and client do not understand how ski bindings work

English: Alpine ski binding Polski: Wiązanie d...

Complaint alleges that a binding failed during a slow fall.

Torque, pressure is the reason why ski bindings release. If there is not enough torque, then the binding will not release. Slow falls do not produce enough torque to release a binding. The overall pressure may be enough; however, the pressure is over a longer period of time which never meets the limits that release the binding.

Consequently, slow falls may not release a ski binding.

The plaintiff was skiing slowly when she fell according to the article. Her binding failed to release resulting in a knee injury and a severely broken leg. The plaintiff’s complaint alleges that skiing slowly should have prevented the injuries. Consequently, the rented binding was at fault.

Because plaintiff was skiing at such a low rate of speed on an easy run, the injuries she suffered could not have been caused in the absence of the negligence of the defendants.

The plaintiff rented the skis and bindings from the Four Seasons Resort at Jackson Hole Resort.

This is going to be interesting.

See Ski rental sparks suit.

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Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807

Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807

Camie R. Dunbar and Douglas Dunbar, Plaintiffs-Appellants, v. Jackson Hole Mountain Resort Corporation, a Wyoming Corporation, Defendant-Appellee.

No. 03-8057

United States Court of Appeals for the Tenth Circuit

2004 U.S. App. LEXIS 25807

December 14, 2004, Filed

Prior History: [*1] Appeal from the United States District Court for the District of Wyoming. (D.C. No. 02-CV-123D).

Disposition: Reversed.

Counsel: Robert E. Schroth Sr. (Robert E. Schroth Jr. and W. Keith Goody, with him on the briefs), Jackson, Wyoming, for Plaintiff-Appellant.

Mikel L. Moore (James K. Lubing, Jackson, Wyoming, with him on the brief), Christensen, Moore, Cockrell, Cummings & Axelberg, P.C., Kalispell, Montana, for Defendant-Appellee.

JUDGES: Before SEYMOUR, HENRY, and LUCERO, Circuit Judges.

OPINION BY: LUCERO

OPINION: LUCERO, Circuit Judge.

While skiing at the Jackson Hole Mountain Ski Resort, Camie Dunbar fell approximately twelve feet into a snowboard half-pipe, suffering severe injuries for which she alleges negligence on the part of Jackson Hole. At the time of her accident, Dunbar was attempting to exit a specially designated ski and snowboard terrain park. Finding that Jackson Hole did not owe Dunbar a duty of care for risks inherent to her chosen recreational activity under the Wyoming Recreational Safety Act, the district court granted summary judgment for the resort. Dunbar now appeals, arguing that the risks inherent to alpine skiing do not include the risk of falling into the side of a snowboard [*2] half-pipe when following a Jackson Hole employee’s instructions on how to exit the terrain park. We exercise jurisdiction under 28 U.S.C. § 1291 and REVERSE.

I

In March 2001, Camie Dunbar suffered the stated injuries when she skied off a snow ledge in a specially designed “terrain park” at the Jackson Hole Mountain Resort in Jackson Hole, Wyoming. A 33-year-old self-described intermediate skier from South Florida, Dunbar skied into the terrain park area with other members of her group who were part of a promotional ski trip sponsored by her employer Clear Channel Communications.

Containing various man made features such as a table top jump and a snowboard half-pipe, the Jackson Hole terrain park is designed for advanced skiers and snowboarders who choose to recreate in a very challenging risk-filled environment. The terrain park is separated by a fence and a boundary rope from an intermediate ski run. To enter the terrain park, skiers must pass through a gate marked with a warning sign, alerting them that they are entering an advanced ski area where “serious injuries, death, and equipment damage can occur.” At the time of the accident, the terrain [*3] park had been relocated to its position in an intermediate ski run, and did not appear on the Resort’s trail maps.

On the last day of her trip, Dunbar, along with Dave Dresher and Mike Jennings, went up the mountain intending to “investigate” the terrain park. In proceeding down an intermediate ski run, they skied through an initial gate providing a warning sign that they were entering a double black diamond “terrain feature trail.” After stopping adjacent to a red tram car which served as the office for the “pipe and park” crew who were responsible for maintenance of the terrain park, Dunbar observed other skiers and snowboarders maneuver various features in the terrain park.

Based on their observations, Dunbar and her companions decided that they did not want to try any of the features. In her deposition, Dunbar attested to thinking “this is my last day [and] I want to go home in one piece.” She stated that she did not know that there was a snowboard half-pipe in the terrain park, and believed instead that the area included only the jumps she observed from the red gondola. There is no suggestion by either party that Dunbar intended to jump any of the terrain jumps or intended [*4] to try her hand at stunts as a skier in a snowboard half-pipe. Having decided that she did not want to ski any of the double-black diamond features, she asked a Jackson Hole employee how to exit that area “if you don’t want to take this terrain park.” She was told either to take off her skis and hike back to the gate through which she had entered or to proceed in the direction of a “catwalk” to which the employee pointed.

Unbeknownst to Dunbar, the “catwalk” led to a side entrance to the snowboard half-pipe.

Ms. Dunbar along with her companions skied along the “catwalk.” Although it is a matter of some dispute between the parties, in order to proceed down the catwalk, skiers had to pass warning signs indicating that they were approaching a snowboard half-pipe area. Both Dunbar and her companions claim not to have noticed the signs. Dunbar and Jennings went along the catwalk, up an incline, across a flat deck, and fell approximately twelve feet into the half-pipe.

Jennings managed to maneuver his snowboard in such a way as to avoid injury.

Dunbar was not so fortunate. As a consequence of her fall into the half-pipe, she suffered severe injuries to her pelvis and thigh requiring surgery [*5] and intensive physical therapy. Dunbar testified that she will neither be able to return to her pre-injury range of motion, nor will she be capable of having a natural childbirth as a result of the injury to her hip.

Asserting that Jackson Hole’s negligence caused her injuries, Dunbar filed suit in district court. Jackson Hole filed a motion for summary judgment and a motion to strike portions of Dunbar’s affidavits as attempts to create sham factual issues in order to survive summary judgment. The district court granted both motions for Jackson Hole on the basis that portions of Dunbar’s affidavit were inconsistent with her deposition testimony. Dunbar now appeals.

II

We review a grant of summary judgment de novo, applying the same legal standards as the district court pursuant to Fed. R. Civ. P. 56(c). Chickasaw Nation v. United States, 208 F.3d 871, 875 (10th Cir. 2000). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled [*6] to judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must look carefully to determine if existing factual disputes are material, because “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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A court may not grant summary judgment when “a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. When the moving party has informed the district court of the basis for its motion, however, a nonmoving party may not stand merely on its pleadings, but must set forth “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (citing Fed.R.Civ.P. 56(e)). In our application of this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. Simms v. Oklahoma ex rel. Department of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). [*7] Furthermore, as a federal court sitting in diversity, we must ascertain the applicable Wyoming law as announced by the Wyoming Supreme Court so that the substantive law applied in federal court does not differ from what would apply in state court. Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir. 1994).

A

To protect providers of recreational sports and activities from liability for alpine skiing, equine activities, and other outdoor pursuits in the state, the Wyoming legislature limited their duty of care by enacting the Wyoming Recreation Safety Act. Wyo. Stat. Ann. § 1-1-121 et. seq.; see Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1101 (10th Cir. 2002). As a matter of common law, in order to prevail in a negligence action, a plaintiff would first have to demonstrate that the defendant owed her a duty to act with reasonable care. See, e.g., Erpelding v. Lisek, 2003 WY 80, 71 P.3d 754, 757 (Wyo. 2003). The Safety Act is designed to limit the duty a provider of recreational sports and activities owes to participants.

Under the Safety Act, a provider of a recreational opportunity has no duty [*8] to protect participants from “inherent risks” of the particular sport or recreational opportunity. Wyo. Stat. Ann. § 1-1-123. In relevant part, the act provides:

(a) Any 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.

(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.

§ 1-1-123. Wyoming defines inherent risks 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(a)(i). Wyoming further defines “Sport or recreational opportunity” as meaning “commonly understood sporting activities,” which include “alpine skiing.” § 1-1-122(a)(iii). Thus, for example, a provider of an [*9] alpine skiing opportunity will not be liable for a duty of care with regard to dangers that are “characteristic of” or “intrinsic to” or “an integral part” of the sport of alpine skiing. However, the act does provide for a cause of action based on the negligence of the recreational opportunity provider when the injury is not the result of an inherent risk of the sport or recreational opportunity: “Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved.

. . .” § 1-1-123(c). Thus, whether a recreation provider owes its patrons a duty of care depends entirely on whether the specific risks can be characterized as inherent to the sport or activity.

What is inherent to a sport or activity, however, is far from self-evident. In Sapone, we defined “inherent” under the Wyoming Safety Act as either “’those risks which are essential characteristics of a sport and those which participants desire to confront,’ or they are undesirable risks which are simply a collateral part of the recreation activity.” Sapone, 308 F.3d at 1103 (citation omitted). We [*10] have further defined a risk that is not inherent as “a risk that was atypical, uncharacteristic, [and] not intrinsic to the recreational activity. . . .” Id. at 1104. Although equine activities are among those the Wyoming legislature clearly meant to protect, and although horseback riding indubitably involves inherent risks, we have concluded, following the Wyoming Supreme Court, that not all risks of horseback riding are inherent risks. Cooperman v. David, 214 F.3d 1162, 1167 (10th Cir. 2000); Halpern v. Wheeldon, 890 P.2d 562, 566 (Wyo. 1995). Some risks may occur from the choices a recreation provider makes on behalf of the participant and from the conditions in which the recreational opportunity is provided. Thus, atypical or uncharacteristic risks can arise even in those specific sports the Wyoming legislature clearly intended to exempt from liability for inherent risks.

Following the Wyoming Supreme Court in Halpern, we have held that “where genuine issues of material fact exist, the determination of whether something is or is not an inherent risk is a factual question that must be sent to the jury for determination.” [*11] Sapone, 308 F.3d at 1102.

As a preliminary matter, what sport or activity characterizes Camie Dunbar’s behavior is a matter of considerable dispute. Most generally, she was engaged in alpine skiing – a sport clearly covered by the Safety Act. If we were to analyze the risk at this level of generality, then it would certainly appear that falling twelve feet into a trench in the middle of an intermediate ski-run would decidedly not constitute an inherent risk of alpine skiing. Such a level of generality, however, is not appropriate. To determine what risk is inherent to Dunbar’s activity, we must go beyond a broad characterization and inquire into the specific circumstances of both her actions and those of the recreation provider.

When the Cooperman court examined the risks of horseback riding in the context of the specific facts of that case, for example, it employed a different analytical framework than if it had merely asked the abstract question whether falling off a horse is an inherent risk of horseback riding. Cooperman, 214 F.3d at 1167. Because a determination of what risks are inherent to a sport or activity may change by descriptive [*12] differences, we have stated that “when attempting to determine whether a risk is inherent to a sport, we can not look at the risk in a vacuum, apart from the factual setting to which the [participant] was exposed.” Cooperman, 214 F.3d at 1167. Instead, we must analyze the risk “at the greatest level of specificity permitted by the factual record.” Id. As an example of this principle, we have explained:

If the only fact presented to the court is that the horse bucked while the rider was properly sitting on the horse, we would frame the duty question as whether a bucking horse is an inherent risk of horseback riding. However, if the facts established that the owner of the horse lit firecrackers next to the horse and the horse bucked, we would ask whether a horse bucking when firecrackers are lit next to the horse is an inherent risk of horseback riding. Id.

For instance, in Cooperman, we determined that the risk of a slipping saddle, in light of the lack of scientific precision in hand cinching, is inherent to horseback riding. Id. at 1168. However, in Sapone, we concluded that a child sustaining injuries when falling [*13] from the saddle during a trail-riding lesson was not an inherent risk when there was evidence that the horse was too large, that the instructions were inadequate, that no headgear was provided, and that the route was too dangerous. Sapone, 308 F.3d at 1104. Similarly, in Madsen v. Wyoming River Trips, Inc., 31 F. Supp. 2d 1321, 1329 (D. Wyo. 1999), the district court determined that the risks inherent to white-water rafting did not include risks of injury resulting from the recreation provider’s overcrowding the boat. See also Carden v. Kelly, 175 F. Supp. 2d. 1318, 1329 (2001) (finding a genuine issue of material fact whether, given the actions and inactions of the recreation provider, a horse’s stumbling and falling was an inherent risk of horseback riding).

In the present case, the district court’s order hinged on a determination of where Ms. Dunbar was located when she made her choice to proceed down the catwalk. Thus, not simply a question of alpine skiing, but of alpine skiing in a designated terrain park became the significant “factual setting” the district court used to examine the inherent risks to which Dunbar was exposed. [*14]

In its order granting Jackson Hole’s motion for summary judgment, the district court stressed, and Jackson Hole urges on appeal, the need to focus on the choices that Dunbar made when entering the terrain park. Reasoning that an inherent risk analysis could not properly be conducted without considering Dunbar’s choices, the district court focused on the facts of Dunbar’s conduct as the recreational participant. Central to the district court’s determination of inherent risk was the simple fact of Dunbar’s choice to enter the terrain park.

The court found that “a terrain feature such as a half-pipe located within a fenced terrain park is an inherent risk to a skier that voluntarily and knowingly enters that park.” Dunbar v. Jackson Hole, No. 02-CV-123-D, slip op. at 14-15 (D. Wyo. June 16, 2003). Furthermore, the court concludes that having entered the terrain park, Dunbar “decided to enter the [metaphorical] ‘rodeo’ and thus assumed the risk associated with that activity.” Id. at 15. We disagree.

First, we note that the plain language of the Safety Act focuses on “any person who takes part in any sport or recreational opportunity,” Wyo. Stat. Ann. § 1-1-123 [*15] , and does not mention the location of the sport or activity.

We fail to see how simply being present in the terrain park redefines the sport or activity in which Dunbar is engaged, especially absent further choices to take part in any of the terrain park features. No doubt location may have a bearing on how to characterize a participant’s activity, but it is not automatically determinative as the district court suggests. n1 Indeed, from the record, it is not clear whether the double black diamond designation applied to the area of the intermediate ski run from the putative entrance to the terrain park to the red tram car and from the tram car to the catwalk. There seems to be no dispute that in the areas Dunbar traversed a skier would not confront any unusual risks or features that differed from those elsewhere on the intermediate ski run (at least until the point where Dunbar fell into the half-pipe). Thus it would seem to be an open question whether the warning signs and double black designation properly applied to the area that Dunbar actually traversed or if they were limited to the physical space containing the dangerous terrain features. If the double black diamond designation [*16] applies only to the specific terrain features and if the warnings apply only to those skiers and snowboarders who attempt to maneuver over and among the trail features down the fall line of the mountain, then it may be difficult to conclude that Dunbar assumed a double black diamond risk simply by skiing across the fall line on an intermediate slope to the tram car and then proceeding, as directed, by way of the catwalk. Proper resolution of these factual questions concerning the impact of Dunbar’s specific location on Jackson Hole’s duty, however, are for a jury, not for the court, to decide.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 As to the issue of whether or not Dunbar had actually entered the park, we note that the district court is itself not descriptively clear, stating at one point that “she had misgivings about entering and asked a JHMR employee how to get out of the terrain park.” Dunbar, slip op. at 13. Of course, if she had not “entered” she could not ask how to “get out.” We conclude from this only that mere presence in the terrain park may be too fine a reed to hang a determination that Dunbar was engaged in a categorically different recreational activity which contained greater inherent risks than does ordinary alpine skiing.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*17]

Second, we conclude that there is a difference between the consequences of conduct chosen by Dunbar, and risks that are inherent to that choice. It does not necessarily follow, as the district court finds, that having entered the terrain park, Dunbar also chose to confront all the features and conditions present within it. Although the district court emphasized the choices and conduct of the plaintiff in determining what risks she assumed, the court makes no distinction between the risks that are inherent to her actual choices – to ski into the terrain park area, but not to “take” any of the features – and risks that are inherent to choices one would make when actually intending to ski over the specific features.

Indeed, a reasonable person who entered the general area of the terrain park would stop first to view the features and decide whether or not to attempt to maneuver over or through any of them. In fact, Jackson Hole’s warning signs, the presence of which figure prominently in this dispute, direct skiers and snowboarders to “please observe terrain features, their risks, and their degree of difficulty before using.” That is precisely what Ms. Dunbar did. She chose to enter [*18] the area of the terrain park – if not the terrain park itself – but specifically chose not to “use” or “take” any of the terrain park features after doing exactly what Jackson Hole’s signs advised her to do: “observe . . . before using.” Presumably, Jackson Hole does not wish to claim that it operates like the Hotel California – where you can check in any time you like but you can never leave. Accordingly, it was error for the district court to conclude that having followed Jackson Hole’s instructions, having assessed the risks and decided not to use the terrain features, that there is no material issue of fact concerning whether a skier could leave without accruing those very risks. Having “entered” the terrain park, Dunbar did not “use” the terrain park as a terrain park—viz., she did not attempt to jump the table top jump nor did she attempt to do stunts in the snowboard half-pipe. She attempted to exit the terrain park without “taking” any of the features, and followed instructions from a Jackson Hole employee on how to exit the park. Given the specific factual setting of this case, what risks are associated with Dunbar’s actual choices and what duty Jackson Hole owed her are [*19] properly questions for the jury.

Accordingly, we conclude that the district court erred when it found that the risk of falling twelve feet into a snowboard half-pipe was an inherent risk of Dunbar’s alpine skiing when she had stopped and observed double diamond terrain features and had chosen not to “take” those features. When, as is here, genuine issues of material fact exist, it is properly a question for the jury to determine whether dangers that are “characteristic of” or “intrinsic to” or “an integral part” of the sport of alpine skiing evaluated under the specific factual circumstances of this case include those encountered by Dunbar in skiing from the main intermediate run to the tram car and from the tram car along the catwalk. Sapone, 308 F.3d at 1102 (“whether something is or is not an inherent risk is a factual question that must be sent to the jury for determination”); see also, Dillworth v. Gambardella, 970 F.2d 1113, 1123 (2d Cir. 1992) (holding under a Vermont statute similar to Wyoming’s, that determination of inherent danger “is a question of fact properly submitted to the jury”).

B

As we have observed, inquiry into what [*20] dangers constitute an inherent risk under the Safety Act is inextricably intertwined with an inquiry into what duty the recreation provider owes to the participant, and whether that question is properly one for the judge or jury. If Dunbar’s accident was not the product of an inherent risk of her recreational activity, then a question remains for the fact finder concerning what duty was owed her and whether Jackson Hole fulfilled that duty. We conclude that the district court improperly analyzed the issue of Jackson Hole’s duty.

When the issue of duty involves questions of fact, as is the case with “inherent risks,” the Wyoming Supreme Court has held that the question of a defendant’s duty should be resolved by a jury. Halpern, 890 P.2d at 565. However, in certain instances where no material questions of fact exist – e.g., if the risk is clearly one inherent to the sport – the district court may decide as a matter of law that a provider does not owe a duty to the participant under the Safety Act. Halpern, 890 P.2d at 566 (noting that “in appropriate cases where no genuine issues of material fact exist, the district court may decide as a matter of [*21] law that the provider does not owe a duty to the participant.“). Such was not the case here.

How the district court framed the statement of Jackson Hole’s duty is crucial to a proper disposition of this case. It has become something of a standard analysis in this line of cases for a district court to frame the question of duty, in addition to the question of inherent risk, in the form of a fact-specific inquiry. Indeed, as the district court noted in another Safety Act case, “the Court cannot stress how important it is to frame the duty question correctly. If the duty question is framed incorrectly, the legislature’s intent to allow a cause of action for negligence will be lost.” Madsen, 31 F. Supp. 2d. at 1329.

In the present case, the district court framed the question of duty as follows:

Whether Camie Dunbar’s injuries occurred as a result of the inherent risk of alpine skiing when this thirty-three year-old experienced skier knowingly entered a specially designated terrain park, skied past five warning signs, made the choice not to exit by way of the gate she entered understanding that she would encounter expert and double expert terrain features, [*22] skied up the visible half-pipe wall, and across a fourteen-foot platform.

Dunbar, slip op. at 14. We have already concluded that Dunbar’s mere presence in the entrance area of the terrain park does not give rise as a matter of law to a heightened risk above what is normal to alpine skiing. We now conclude that the question of Jackson Hole’s duty was improperly framed because it employs facts in dispute, and does not view the facts in the light most favorable to the non-moving party.

Specifically, the district court’s finding that Dunbar chose not to exit the terrain park area via the gate by which she entered understanding that she would encounter expert and double expert terrain features is itself a fact open to dispute. Whether or not her choice was made with that understanding is a disputed fact, and read in the light most favorable to the plaintiff, the district court improperly incorporated a disputed fact in a light favoring the defendant. Second, the district court frames the duty question by stating that Dunbar “skied up the visible half-pipe wall.” Id. Whether or not what she skied up was in fact visibly a half-pipe wall is itself a disputed fact, and inclusion [*23] of this fact in a light most favorable to the defendant was improper.

Finally, the district court states that Dunbar “skied past five warning signs,” which although perhaps true (though contested), shades the “duty question” in a way that ignores the factual issues of the content and import of each of those signs in the context of the Jackson Hole employee’s instructions on how to exit the park. Given the fact that we have previously held that the question of a provider’s duty is partially determined by a fact-specific framing of inherent risk, we conclude that the district court erred in making factual findings that are properly findings for a jury. See Sapone, 308 F.3d at 1102.

Finally, we note that whatever risks Dunbar assumed herself, it seems clear that she did not also assume the risk of needing to interpret the delphic statements of Jackson Hole’s employees. Both Jackson Hole and the district court focus on the issue of choices that Dunbar made, ignoring the choice that Jackson Hole made for her in directing her to exit the terrain park area by either hiking out the main entrance or skiing along the catwalk. We have made clear that a duty of care may arise [*24] from choices made for the participant by the recreation provider. Sapone, 308 F.3d at 1104; see also, Madsen, 31 F. Supp. 2d at 1328-29; Carden, 175 F. Supp. 2d. at 1328-29. Absent from the district court’s order is any recognition that once Dunbar asked a Jackson Hole employee how to exit the terrain park area without “taking” any of the features, Jackson Hole owed a duty to provide her with appropriate instructions, which might have included a specific warning to beware of the drop into the half-pipe at the end of the catwalk. Whether or not they fulfilled that duty is a question for the jury. Accordingly, the district court erred when it framed the question of Jackson Hole’s duty by incorporating facts in dispute and when it failed to submit the question of duty to the fact finder pursuant to Wyoming Supreme Court precedent.

On appeal, Dunbar also raises as error the district court’s granting Jackson Hole’s motion to strike portions of her affidavit as creating sham factual issues to survive summary judgment. Those supposed sham facts dealt with Dunbar ‘s understanding of whether she had entered the actual terrain park (the [*25] area including the jumps) when located at the tram car. Because we conclude that summary judgment was inappropriate, the issue of Dunbar’s affidavit is now moot.

III

For the reasons set forth above, we REVERSE the district court and REMAND for further proceedings consistent with this opinion.