Utah courts like giving money to injured kids. This decision does clarify somewhat murky prior decisions about the defenses provided to a ski area in Utah: there are none.

A minor was hurt during ski racing practice by hitting a mound of machine-made snow. The Utah Skier Safety Act is weak and Utah Supreme Court interpretations of the act do nothing but weaken it more. This act clarified those weaknesses and what a Utah ski area can do to protect itself from lawsuits, which is not much really. This court, not finding the act weak enough, agreed with the Utah Supreme Court and eliminated releases as a defense for ski areas in the state of Utah.

Rutherford v. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

State: Utah

Plaintiff: Philip Rutherford and Wendy Rutherford, on Behalf of Their Minor Child, Levi Rutherford

Defendant: Talisker Canyons Finance Co., LLC and ASC UTAH, LLC (The Canyons Ski Area) and the U.S. Ski and Snowboard Association

Plaintiff Claims: the machine that produced the snow mound was not functioning properly, that the Ski Resort could have warned patrons of the hazard by marking the mound or closing the trail, and that the Ski Resort did not adequately monitor the snowmaking taking place on the Retreat run that day

Defendant Defenses: release, Utah Ski Act,

Holding: For the Plaintiff

Year: 2014

Utah famously does not award money for adults who are injured; however, if a minor is injured, as a defendant, be prepared to write a big check. For such a conservative state, the judgments for a minor’s injuries can be massive. In this case, the trial court bent over backwards to allow a case by a minor to proceed even with numerous valid defenses. In all but one case, the appellate court agreed with the plaintiffs.

The minor was going to a race practice. He skied down the hill without changing his position and not turning. He hit a mound of man-made snow and was hurt. His parents sued.

The plaintiff’s sued the resort, Canyons which was identified in the case citation by two different names. The plaintiff also sued the US Ski and Snowboard Association, which were not part of the appeal, but mentioned frequently.

The defendants filed an interlocutory appeal after all of their motions of summary judgment were denied. An Interlocutory appeal is one that is made to a higher court before the lower court has issued a final ruling. The appeal is based on intermediary rulings of the trial court. The appeal can only be heard upon a limited set of rules, which are set out by each of the courts. Interlocutory appeals are rare, normally, when the decision of the lower court will force a new trial because of the rulings if the case goes to trial.

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

The first issue is the application of the Utah’s Inherent Risks of Skiing Act to the case. The trial court ruled the plaintiff was not a competitor as defined by the act. Like many state ski acts the act; a competitor assumes greater risks, and the ski area owes fewer duties to competitors. The trial court based this decision on its review of the facts and determined:

…skiing on an open run that any member of the public could ski on” and that his accident indisputably did not occur during a ski race, while skiing through gates, or while otherwise “negotiating for training purposes something that had been specifically designated as a race course

However, the plaintiffs in their motions and pleadings as well as the plaintiff’s expert witness report stated the minor plaintiff was engaged in race training and practice. The appellate court reversed the trial court’s decision on this. However, instead of holding the plaintiff was a competitor and assumed more risk; the appellate court required the trial court to determine if plaintiff’s “engagement in race training at the time of his injury is truly undisputed by the parties.”

The next issue was whether the phrase machine-made snow in the act was an inherent risk or an exemption from the risks assumed. The plaintiff’s argued the snow machine was malfunctioning and because of that the resort was negligent. The statute states:

§ 78B-4-402.  Definitions

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

The appellate court agreed with the trial court because the supreme court of Utah had found the Utah act:

…does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers” but protects ski-area operators “from suits to recover for injuries caused by one or more of the dangers listed [in the Act] only to the extent those dangers, under the facts of each case, are integral aspects of the sport of skiing.

This interpretation of the act is the exact opposite of how statutes are normally interpreted and how all other courts have interpreted other state skier safety acts. Instead of providing protection, the act simply lists items the act may protect from litigation. The act is to be interpreted every time by the trial court to determine if the risk encountered by the skier in Utah was something the act my say the skier assumed.

This means most injuries will receive some money from the ski area. The injured skier can sue and the resort and its insurance company will settle for a nominal amount rather than pay the cost of going to trial to prove the injury was something that was an inherent risk as defined by the Utah’s Inherent Risks of Skiing Act.

The court as part of this analysis then looked at the phrase “inherent risk.”

The term ‘inherent risk of skiing,’ using the ordinary and accepted meaning of the term ‘inherent,’ refers to those risks that are essential characteristics of skiing–risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks.

This is a normal definition applied to inherent risk. However, the court then went on and quoted the Utah Supreme court as stating.

The court divided these risks into two categories, the first of which represents “those risks, such as steep grades, powder, and mogul runs, which skiers wish to confront as an essential characteristic of skiing.” Under the Act, “a ski area operator is under no duty to make all of its runs as safe as possible by eliminating the type of dangers that skiers wish to confront as an integral part of skiing.”

The second category of risks consists of those hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort,” such as weather and snow conditions that may “suddenly change and, without warning, create new hazards where no hazard previously existed. For this category of risks, “[t]he only duty ski area operators have . . . is the requirement set out in [the Act] that they warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront when participating in the sport of skiing.

Then the interpretation of the Supreme Court decision goes off the chart.

However, this does not exonerate a ski-area operator from any “duty to use ordinary care to protect its patrons”; “if an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside of [the Act].”

Instead of the act providing protection from a list of risks that are part and parcel of skiing, the act in Utah only provides of hazards that if not eliminated will still allow litigation. That is any injury is worth filing suit over because the cost of defending the case will exceed the cost of settling.

How does this apply in this case? The act refers to machine made snow. The complaint states the plaintiff was injured because the snow making machine was not functioning properly. There was no allegation that the snow was at issue, which is protected by the act, just the machine that makes the snow. However, this was enough for the trial court and the appellate court to say the act did not provide immunity for the ski area.

That is the defense of the tree on the side of the road scared me, so I opened the passenger-side door and knocked down the pedestrian. If the snow making machine was malfunctioning, unless it is making “bad” snow that has nothing to do with hitting a mound of snow.

The next issue is the defense of release. This part of the decision actually makes sense.

The US Ski and Snowboard Association has members sign releases. The majority of racing members of the USSA are minors, hoping to become major racers for the US. The USSA is based in Park City, Utah. Utah has always held that a parent cannot sign away a minor’s right to sue. So the USSA made its choice of law provision Colorado in an attempt to take advantage of Colorado’s laws on releases and minors and releases. (See States that allow a parent to sign away a minor’s right to sue.)

However, courts won’t and this court did not, let you get away with such a stretch. The venue and jurisdiction clause in a release must have a basis with where the defendant is located, where the activity (and as such accident) happens or where the plaintiff lives. Here the USSA is based in Park City Utah, the plaintiff lives in Utah and the accident happened in Utah; the Utah trial court and Appellate court properly held the jurisdiction and venue clause in the release was not valid.

On top of that, you need to justify why you are using a foreign state for venue and jurisdiction, in the jurisdiction and venue clause in the release. You need to state with a reasonable degree of plausibility why you are putting the venue in a certain place if it is not the location where the parties are located or the accident occurred. State in the release that in order to control litigation, the jurisdiction and venue of any action will be in the state where the defendant is located.

The release was thrown out before getting to whether a parent can sign away a minor’s right to sue, which the Utah Supreme Court has never upheld. (See States that allow a parent to sign away a minor’s right to sue.) However, the appellate court reviewed this issue and also threw the release out because Utah does not allow a parent to sign away a minor’s right to sue. (The Utah Equine and Livestock Activities Act has been amended to allow a parent to sign away a minor’s right to sue for Equine injuries.)

The court then looked at what releases are viable in the ski industry in Utah. In 90 days, the Utah Supreme Court voided a release in a ski case and then upheld a release in a ski case. (See Utah Supreme Court Reverses long position on releases in a very short period of time.) This court stated the differences where a release is void under Utah’s law for recreational skiers. “Our supreme court has interpreted this public policy statement as prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers.”

The public policy statement is the preamble of the Utah’s Inherent Risks of Skiing Act.

The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act; therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

Simply put this is an analysis of the action of the legislature, by the court, to say, the legislature gave you this, so we, the court, are going to take away releases.

In other words, the Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier who signed the release or whether the release was signed by a parent on behalf of a child.

The court explained that the Act was designed to strike a “bargain” with ski-area operators by freeing them “from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.

The court then looked at whether this release could be applied if the plaintiff was a competitive skier? (Yeah, confusing to me also.)

Following that confusing analysis this court then determined the release by a competitive skier was also invalid, contrary to what the Supreme Court had decided in Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171 P.3d 442. However, the court rationalized the analysis by saying the amendment to the ski act, which occurred before the Berry decision, but after the accident giving rise to Berry, made a competitive skier the same as a recreational skier for the purposes of the act therefore no releases were valid in Utah for skiing.

Here is the conclusion of the case.

The trial court’s determination that Levi was not engaged in race training at the time of his injury, especially in the face of the fact, apparently undisputed by the parties, that he was injured during racing practice, was improper in the context of the Ski Resort’s motions for summary judgment. The trial court correctly denied the Ski Resort’s joinder in the Ski Team’s motion for summary judgment based on the Act and correctly granted the Rutherfords’ related partial motion for summary judgment, based on the court’s determination that there were disputed issues of material fact regarding the applicability of the machine-made snow exemption. We affirm the trial court’s denial of the Ski Resort’s motion for summary judgment based on the USSA release and the court’s determination that the Colorado choice-of-law provision in the USSA release is inapplicable here. We agree with the trial court that the release, as it pertains to the Ski Resort, is unenforceable under Utah law, but base this conclusion on different grounds than the trial court.

It almost reads like it is a normal case. The court sent the issue back to the lower court, basically handing the plaintiff the decision. The only thing left to do is determine the amount.

So Now What?

It’s a kid thing in Utah. Kids get hurt the courts’ hand out money. Even the ski industry is not big enough, or organized enough, to do anything about it.

I don’t know of any other reason why this decision would come out this way.

This decision which eliminates releases as a defense for the ski area may trickle down to other recreational activities. Let’s hope not.

So we know the following about Utah and ski areas.

1.       Releases are not a valid defense unless you are racing, actually on the course for a race or practice.

2.      A competitor under the Utah’s Inherent Risks of Skiing Act is only a competitor when racing or running gates.

3.      The Utah’s Inherent Risks of Skiing Act only sets out the defenses available to a ski area if they ski area was not negligent and could not have prevented the accident or risk which caused the accident.

4.      Minor’s in Utah always win.

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