The Utah Ski Act was recently re-codified at Utah Code Ann. § 78B-4-401, et seq, see the statute.
Previously, under the case of Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991) the Utah Supreme Court held that the Utah Inherent Risk statute grants only limited immunity; it “does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers.” Id. at 1044. Clover also clarified the manner in which the statute is to be applied. The Court held that a trial court cannot determine that a risk is inherent in skiing simply by asking whether it happens to be one of those listed in section 78–27–52(1). That list is expressly nonexclusive and thus contemplates the inclusion of other hazards. In addition, any hazard, listed or unlisted, is limited by the phrase “integral part of the sport of skiing.”
In Clover, a ski area employee was skiing fast and decided to jump off a portion of a ski run that dropped off steeply after a crest. Due to the drop-off, it was impossible for skiers at the top of the crest to see skiers at the bottom of the crest. As the employee became airborne, another skier (the plaintiff) skied into the area below the crest and the two skiers collided. The plaintiff was injured, and sued Snowbird on a theory of negligent design and maintenance. See also, White v. Deseelhorst, 879 P.2d 1371 (Utah 1994) - Issue of fact as to whether operator could have alleviated hazard of unmarked “cat track” on blind side of ridge through exercise of ordinary care precluded summary judgment for ski area.
In 2008 the Utah legislature re-wrote the statute, arguably to limit skiers’ potential claims, particularly such as Clover’s and White’s. The current definition of “inherent risks of skiing” is different in the current statute than in the previous version cited in Clover and White. In the versions of the statute quoted in Clover and White, “variations or steepness in terrain” is a bare term in a list of various inherent risks. However, in the current version of the Act the concept of “variations in steepness and terrain” is amended to include: “variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain.” See Utah Code Ann. § 78B-4-402(1)(d) (emphasis added).
"Utah Inherent Risks of Skiing Act," provides for skier assumption of the inherent risks of skiing, together with warning and notice posting requirements of operators. Operators remain liable for negligence and must exercise reasonable care in eliminating risks that can be reasonably eliminated. Provided that proper training has been taken, any ski patrol member offering emergency services or rescue is exempt from civil liability, unless they have acted in a willful or grossly negligent fashion.
Jozewicz v. GGT Enterprises, 2:09-cv-00215-CWUnited States District Court, Tenth Circuit (2010)
On March 17, 2008, GGT rented skis to Jozewicz. On March 18, 2008, Jozewicz fell and injured her neck while skiing at Alta ski area. Jozewicz claims her fall occurred when the Marker MI Demo binding on her rental ski released unexpectedly. At the time of rental, a recall notice was in effect for the binding, but GGT did not remove the product from its rental inventory. Prior to renting her skis from GGT, Jozewicz signed an "Equipment Rental and Liability Release Agreement. GGT seeks dismissal of Jozewicz’s negligence claim on the basis that she signed a release from liability at the time she rented the skis.
The court reasoned that the implication of allowing distributors and retailers to contract away liability for noncompliance with established safety standards would increase the risk of injury and would be contrary to Congress’s express public policy concerns. Furthermore, validating the release of liability for noncompliance with Federal law would effectively reduce or eliminate the responsibility that distributors and retailers have to make sure the products they sell or rent are safe. Public policy should encourage compliance with safety laws, not disregard for such laws. Due to a strong public interest in ensuring adherence to recall alerts, the court concluded that GGT’s release is unenforceable as a matter of public policy. For this reason, GGT’s motion was denied.
Berry v. Greater Park City Co., 171 P.3d 442, Supreme Court of Utah (2007)
In February 2001, Mr. Berry, an expert skier then twenty-six years of age, entered a skiercross race promoted as the King of the Wasatch, which was constructed on one of PCMR’s ski runs. In the skiercross race format, four racers simultaneously descend a course that features difficult turns and tabletop jumps. The racers compete against each other as they ski down the mountain to complete the course first. A series of elimination heats determines the race winner. On Mr. Berry’s fourth trip over the course, he attempted to negotiate the course’s first tabletop jump. Upon landing from the jump, Mr. Berry fell and fractured his neck, an injury that resulted in permanent paralysis.
Berry was seriously injured while competing in a ski race. He sued the parties connected with the event, including Park City Mountain Resort (PCMR), the site where the race was held. The district court granted PCMR’s motions for summary judgment and dismissed Mr. Berry’s claims for ordinary negligence, gross negligence, and common law strict liability. The appeals court held that Mr. Berry’s preinjury release of PCMR was enforceable and that the district court properly determined that Mr. Berry’s strict liability claim fails as a matter of law.
But the court also found that the district court improperly awarded PCMR summary judgment on Mr. Berry’s gross negligence claim. Noting that the record was void of the appropriate standard of care applicable to the design and construction of skiercross courses appears and that where a standard of care is not "fixed by law," the determination of the appropriate standard is a factual issue to be resolved by the finder of fact: “Identification of the proper standard of care is a necessary precondition to assessing the degree to which conduct deviates, if at all, from the standard of care is the core test in any claim of gross negligence. Absent the presence of an identified, applicable standard of care to ground the analysis, we hold that the district court improperly granted PCMR summary judgment and dismissed Mr. Berry’s gross negligence claim.” Therefore the case was remanded for further proceedings.
Rothstein v. Snowbird Corp., 175 P.3d 560 Supreme Court of Utah (2007)
As he was descending Snowbird’s Fluffy Bunny run, Mr. Rothstein collided with a retaining wall constructed of stacked railroad ties and embedded partially in the mountain. The collision left Mr. Rothstein with broken ribs, an injured kidney, a bruised heart, a damaged liver, and a collapsed lung. At the time of the accident, a light layer of snow camouflaged the retaining wall from Mr. Rothstein’s view and the retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there remained a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance to the Fluffy Bunny run. Mr. Rothstein filed suit against Snowbird for its ordinary and gross negligence. Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.
The court observed that the public policy rationale for Utah’s Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp.2007), speaks to preinjury releases for negligence. The central purpose of the Act, then, was to permit ski area operators to purchase insurance at affordable rates. The insulation of ski area operators from liability for injuries caused by inherent risks of skiing was a means to that end. There is no evidence that, in the absence of a perceived insurance crisis, the Legislature would have interceded on behalf of ski area operators merely to clarify the scope of duties owed skiers who used the ski facilities. The Act is most clearly not, as Snowbird contends, intended to protect ski area operators by limiting their liability exposure generally. It is rather a statute that is intended to clarify those inherent risks of skiing to which liability will not attach so that ski resort operators may obtain insurance coverage to protect them from those risks that are not inherent to skiing.
The premise underlying legislative action to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance. By extracting a preinjury release from Mr. Rothstein for liability due to their negligent acts, Snowbird breached this public policy bargain. The Supreme Court vacated the district court’s grant of summary judgment and remand.
Prior to 2006
A skier injured when a fellow skier lost control and fell into him, causing both to slide into a tree, brought suit. Judgment notwithstanding the verdict was entered in defendant’s favor, and affirmed. Court found that absent defendant skier’s negligence, he was not liable merely because there had been a skier/skier collision. While skiers have duty to behave reasonably and remain in control, an inadvertent fall does not breach this duty. Ricci v. Schoultz., 963 P.2d 784 (Utah Ct. App. 1998).
In Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), the court declared that the legislative intent in passing the state’s inherent risk-based statute was to preserve the common law defenses available to ski resort operators, such that the courts would not extend comparative negligence to ski cases. Clover was struck by resort employee who ignored danger of a blind jump of which resort was aware and warned skiers to avoid. The court held that determination of what "inherent risks" are determined as a matter of law on a case by case basis. However, the court held that the statute did not foreclose claims of negligent design and maintenance against operators, even if an injury involves a defined "inherent risk." To the extent that bare spots, forest growth, rocks, and structures are not risks that skiers wish to confront, they are not "inherent" in the sport of skiing. Operators must eliminate those risks that can be removed by reasonable care, or warn patrons of them; the ones that cannot be eliminated are "inherent risks" from which operator is exculpated from liability. White v. Deseelhorst, 879 P.2d 1371 (Utah 1994) (skier paralyzed after encountering an unmapped "cat track"). Even where an operator had posted trail boards in compliance with statute, the court allowed a skier’s claim to proceed on a theory of negligent instruction; the court held that an operator owed a higher duty to its ski students, including the duty of its ski instructors to explicitly warn of "crud" snow that exists in the Spring in Utah.Ghionis v. Deer Valley Resort Co., Ltd., 839 F.Supp. 789 (D.Utah 1993) (also stating that a release signed by Ghionis was ambiguous, and thus not a bar to recovery).