Under Wyoming’s “Recreation Safety Act,” Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123, providers of “sport and recreational opportunities,” including skiing and snowmobiling, have no duty to eliminate, alter, or control the “inherent risks” of a particular opportunity, but are responsible for their negligence. Participants assume all “inherent risks,” defined as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational activity.” Skiing in closed or non-designated areas, skiing while intoxicated, leaving the scene of a skiing accident, or skiing with “reckless disregard” for safety are punished as misdemeanors (including jail time in all but the first situation). Wyo. Stat. Ann. §§ 6-9-201, 6-9-301.
Nodine v. Jackson Hole Mountain Resort Corp., P.3d 112, Supreme Court of Wyoming (2012)
David Nodine died in an in-bounds avalanche in the Toilet Bowl area of Jackson Hole Mountain Resort on December 27, 2008. Conditions that winter were particularly avalanche prone and the upper areas of the resort had been closed due to avalanche danger for the two days before Nodine’s death. Nodine triggered a massive slide that eventually buried him under 7 feet of snow, where he suffocated.
His widow claimed that his death was due to the resort’s negligence in choosing to open the run during a time when Toilet Bowl was an “avalanche time bomb,” according to court files. Avalanche abatement measures failed to trigger a slide in Toilet Bowl, leaving the run especially risky, the suit claimed.
The resort admitted knowing of avalanche and snowpack conditions, but denied any negligence or fault in the death. Nodine’s widow filed a wrongful death action against the resort but the District Court granted defendants summary judgment, retroactively applying In re Johnson, which held that the personal representative for purposes of bringing a Wyoming wrongful death action must be appointed within the wrongful death action by the court with jurisdiction over that action. Skier’s wife appealed.
The Court of Appeals held that In re Johnson did not apply retroactively to warrant dismissal of personal representative’s wrongful death action, and reversed the dismissal.
Ed. Note: In October, 2013 Jackson Hole settled with Nodine’s widow for an undisclosed amount.
Muller v. Jackson Hole Mountain Resort, 139 P.3d 1162 Supreme Court of Wyoming (2006)
Ms. Muller was outfitted with ski equipment, she was wearing ski boots, and was attempting to board the Bridger Gondola at Jackson Hole Mountain Resort in order to ride to the top of the hill to begin her day of skiing. While attempting to board the gondola, Sharon Muller’s ski boot became caught under the exterior rack on the Bridger Gondola and she was allegedly dragged several feet, the result of which were painful injuries to her leg and knee.” Noting its finding on a special verdict form, following a trial with the magistrate judge presiding, the jury concluded that Muller’s injuries resulted from an inherent risk of the recreational activity in which she was taking part. The Mullers argued before the trial court and before this court on appeal that the RSA was not applicable to their case.
The court concluded that conclude that the RSA does not necessarily exclude a ski lift from its protections. The inherent risks of skiing are not limited only to the act of skiing, and an injury suffered while boarding a ski lift (with skis stowed on the exterior of the lift) may be an inherent risk of skiing. Finally, the incident described in the materials provided to the Court, for the purpose of resolving these questions, may be an inherent risk of skiing.
Jackson Hole Mountain Resort, Appellant (Defendant), v. Rohrman, Appellee (Plaintiff)150 P.3d 167 , 2006 WY 156, Supreme Court of Wyoming (2006)
Plaintiff, Phillip Rohrman suffered a ski injury on March 2, 2000 at Jackson Hole Mountain Resort (JHMR). At the time of his injury, Mr. Rohrman was 24 years old and, by his own definition, an experienced skier. He attempted to jump a “table top” jump in the JHMR terrain park. He alleges that the jump was icier than he could have known from looking at it, and that because of the ice, he lost control and could not land the jump. He suffered several breaks in his left arm and injuries to his thoracic spine. Two days before this accident, another young man, Adam Harshman, died of injuries sustained after taking off from the other side of the same jump. Plaintiff alleges that JHMR had a duty to close the jump or warn of the dangers because they were not inherent risks of the sport. Defendant JHMR asserts that losing control on a table top jump is a risk inherent in skiing terrain parks and therefore, JHMR owed Rohrman no duty.
The court performed a lengthy analysis of “inherent risks” of the sport of skiing, answering the question: When faced with motions for summary judgment in which there are no genuine issues of material fact, how should a court differentiate, as a matter of law, between “inherent risks” as defined in Wyo. Stat. Ann. §1-1-122(a)(i) and employed in § 1-1-123(a) and (b), and non-inherent risks in order to determine whether a recreational provider has a duty to eliminate, alter or control the risk at issue?
The general answer to the question is that if such a motion is filed, the trial court must scrutinize the facts brought forward by the parties with great care. If the court can say that, given that evidence, this is an “inherent risk” and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it. On the other hand, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder).
Prior to 2006
Harshman v. Jackson Hole Mountain Resort, 200 F.Supp.2d 1329 ( 2002)
On February 28, 2000, sixteen year old Adam Harshman (“Decedent”), a life long resident of Jackson Hole, Wyoming, and holder of a season pass at the Jackson Hole Mountain Resort, was fatally injured while snowboarding over a jump in the man-made terrain park at the Jackson Hole Mountain Resort Ski Area. The fatal injury occurred when Decedent, after snowboarding off the twenty-five foot high man-made tabletop jump landed on his upper back and head. The Terrain Park was a specially designated and roped-off area at Jackson Hole Mountain Resort, which contained man-made obstacles including the tabletop jump in question, and a half pipe for use by skiers and snowboarders.
The US District Court found that the decisions of the Defendant United States regarding the regulation of snowboarding as well as its regulation of Defendant JHMRC’s duties of operating and safely maintaining the ski area and terrain park, were matters of judgment and choice based upon public policy considerations which are protected by the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). Further, the court found there are no genuine issues of material fact as to whether the fatal injuries suffered by the Decedent from his failed landing attempt while snowboard jumping and riding over a man-made jump at a specially designated terrain park were caused by an inherent risk of such a sport. The court granted both Defendant United States’ Motion to Dismiss and Defendants’ Motion for Summary Judgment.
Prior to 2006
The leading case addressing the question of who determines inherent risks under the Act is Halpern v. Wheeldon, 890 P.2d 562 (Wyo. 1995); this case, involving a guest who was thrown from a horse at a dude ranch, noted that, unlike other states, Wyoming did not provide a statutory list of assumed risks. While a participant assumes “inherent risks” as a matter of law, when a genuine issue of material fact exists as to what those particular risks were, such an issue belongs before the jury. Where a skier sustained permanent injury after falling 12 feet into a snowboard half-pipe, the court determined that questions of fact remained for the jury regarding what risks Dunbar had personally assumed. Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145 (10th Cir. 2004). Dunbar came upon a specially-designed “terrain park” with expert features, while she was skiing at her level of expertise on an intermediate run. She asked resort staff to direct her away from the features, as she did not want to participate at that level. While moving along a catwalk and ramp as directed by resort staff, Dunbar fell into the half-pipe feature. The court’s decision suggests a sliding-scale approach to inherent risk analysis under the Act, based not on skiing as a whole, but the particular factual setting of each case, and the choices made by the plaintiff.
In a case upholding the general validity of waivers, the court in Milligan v. Big Valley Corp., 754 P.2d 1063 (Wyo. 1998) affirmed summary judgment in favor of a resort. Plaintiffs were the widow and son of a certified ski instructor who was found unconscious on a course during an “ironman decathlon,” for which he had signed a release to be allowed to participate. The event was to include various activities, the first among them being downhill skiing. Organizers had run the course a few times and marked a few hard, icy spots with skis, but no hay bales, speed nets, gates, or other measures were taken. No one was required to wear a helmet. Although a few other participants had lost control at the same location where decedent was believed to have lost control and hit a tree, the court found no willful or wanton disregard for participant safety by the resort from which to justify setting aside the releases.