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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.