Mead v. M.S.B., Inc., 93-322

Citation264 Mont. 465, 872 P.2d 782
Case DateApril 12, 1994
CourtUnited States State Supreme Court of Montana

Page 782

872 P.2d 782
264 Mont. 465
Zachary P. MEAD, Plaintiff and Appellant,
M.S.B., INC., a Montana corporation, d/b/a Snowbowl,
Defendant and Respondent.
No. 93-322.
Supreme Court of Montana.
Submitted Feb. 1, 1994.
Decided April 12, 1994.

Page 783

[264 Mont. 467] Peter W. Kirwan (argued), Kirwan & Barrett, Bozeman, for appellant.

Gig A. Tollefsen (argued), Berg, Lilly, Andriolo & Tollefsen, Bozeman, for respondent.

Mikel L. Moore (argued), Murphy, Robinson, Heckathorn & Phillips, Kalispell, for amicus Montana Ski Areas Ass'n.


Plaintiff Zachary P. Mead filed his complaint in the District Court for the Fourth

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Judicial District in Missoula County to recover damages for injuries he sustained while skiing at the Snowbowl ski area, which is owned by the defendant, M.S.B., Inc. The District Court granted defendant's motion for summary judgment and dismissed Mead's claim. We reverse the judgment of the District Court.

The following issues are presented for appeal:

1. Are Snowbowl's duties limited to those listed in § 23-2-733, MCA (1989), of the Montana Skier Responsibility Act?

2. Did the District Court err when it concluded as a matter of law that Mead's injury resulted from "inherent risks" of skiing, as set forth in § 23-2-736, MCA (1989), of the Montana Skier Responsibility Act?

3. Other than those "inherent risks" set forth in the Montana Skier Responsibility Act, is assumption of risk, as opposed to contributory negligence, a separate defense which can be asserted by ski area operators to claims by injured skiers?

4. Did the District Court err when it found that Mead's claim was barred by his contributory negligence?


On March 16, 1990, Zachary Mead was injured at the Snowbowl ski area while skiing down a trail known as the Bowl Outrun.

The bottom of several West-Ridge ski runs funnel into the Bowl Outrun trail, which then becomes the only means of return to Snowbowl's base area. The Bowl Outrun is a long trail, approximately 16 to 20 feet wide, cut into a steep mountainside.

While descending the Bowl Outrun Trail, Mead made turns by skiing onto the right bank of the trail and sideslipping back to the flat surface. There apparently were no markers designating the [264 Mont. 468] boundaries of the trail, and ski tracks indicated that others had used the banks of the trail in a similar fashion.

At some point on the trail, there is an abrupt right turn in combination with shale rock outcroppings on the trail's bank. Prior to the turn, the bank of the trail was exposed to the north and covered by snow. Just beyond the turn, the bank of the trail was exposed to the southeast and was either covered by less snow, or was uncovered. As Mead came around the right hand curve on the trail, he suddenly encountered the shale rock outcropping, which struck his knee, knocked him out of his skis, and caused serious injuries. Mead testified that earlier in the day he had observed bare spots on the bottom side of moguls he had skied, but that he had not skied the Outrun Trail previously that day, and that there was nothing about the trail prior to the curve which alerted him to the danger which caused his injury.

On November 14, 1991, Mead filed a complaint naming the owner of Snowbowl as the defendant. In his complaint, he alleged that while skiing at Snowbowl on March 16, 1990, he sustained serious injuries to his right leg and knee due to defendant's negligent design, construction, and maintenance of the ski trail on which he was injured.

The ski area denied that it was negligent, and for affirmative defenses asserted: (1) statutory assumption of risk; (2) secondary assumption of risk; (3) waiver of defendant's negligence; and (4) contributory negligence.

On January 14, 1993, defendant moved the District Court to dismiss Mead's claim by summary judgment. That motion was granted by the District Court on April 23, 1993. In its opinion, the District Court concluded that "plaintiff's claim is the type of claim that the Montana Skier's Responsibility Act was enacted to prevent." However, the District Court failed to specify with particularity the provisions in the Act which barred Mead's claim. The District Court did apparently conclude that, based on Mead's general knowledge that spring conditions existed at the ski area, he should have been more alert for the hazard that caused his injury. The District Court also apparently concluded as a matter of law that the shale rock outcropping was a naturally occurring condition which resulted from weather changes, and that as a matter of law, defendant could not be found negligent for failing to remove or mark the rocks that caused Mead's injury.

Page 785

On appeal, Mead contends that whether or not the rock outcropping which caused his injury was the kind of condition designated as [264 Mont. 469] an "inherent risk" of skiing in the Montana Skier Responsibility Act was a question of fact, and that whether defendant and Mead were negligent, and if so, the degree of their comparative negligence, also presents issues of fact which precluded summary judgment.

Pursuant to our review of the District Court file, we note at this point that extensive discovery was apparently accomplished. Mead submitted at least three sets of discovery requests, including written interrogatories, requests for admission, and requests for production. Defendant, likewise, submitted written requests for discovery; and it appears that responses to both parties' discovery requests were served.

In addition, numerous depositions were scheduled, and apparently taken, by both parties. These include the depositions of Art Wear, the ski patrol member who investigated Mead's accident, and Don Bachman, an expert on ski area construction and design who was retained by Mead.

While the parties' briefs make frequent reference to the deposition testimony of Mead, Bachman, Wear, and Ralph Lasache, as well as to documents which were produced in response to requests for production, none of those fruits of discovery, other than the deposition of Mead, were filed in the District Court, nor have they been filed with this Court. Neither were any affidavits, either in support of or in opposition to defendant's motion for summary judgment filed in the District Court. Therefore, the facts, as set forth in this opinion, are necessarily limited to those which can be gleaned from Mead's deposition.

In order to avoid confusion about the meaning of this opinion, we note that the result would be the same, even if we assume that the parties' representations in their briefs about the various witnesses' testimony are correct. However, we wish to make it clear that it is not permissible on appeal to this Court to quote from discovery that has not been filed in the District Court and sent to the Clerk of the Supreme Court.

Based on the record before us, defendant has presented no evidence to controvert Mead's claim in his complaint that it was negligent. However, defendant does argue that Mead's claim is barred as a matter of law, and that the District Court's summary judgment should be affirmed for several reasons. Defendant contends that: (1) a ski area's only duties to its paying guests are those which are set forth in § 23-2-733, MCA (1989), and since Mead's complaint did not allege a breach of any of those duties, he has not set forth a viable [264 Mont. 470] claim as a matter of law; (2) Mead's claim is barred by § 23-2-736(4), MCA (1989), because it resulted from conditions or activities which are designated as "risks inherent in the sport of skiing;" and (3) even if Mead's claim is not barred for either of the two previous reasons, the common law defense of assumption of risk should be available to ski area operators, and pursuant to that defense and the undisputed facts, Mead's claim is barred as a matter of law.


Our standard of review in appeals from summary judgment is de novo. We review a summary judgment utilizing the same criteria used by the District Court initially under Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214.

Brinkman and Lenon v. P & D Land Enterprises (Mont.1994), --- Mont. ----, ----, 867 P.2d 1112, 1114, 51 St.Rep. 36, 37.

We also noted in Brinkman that:

It is clear that a party moving for summary judgment bears the initial burden of establishing the absence of any genuine issue of material fact and its entitlement to judgment as a matter of law....


... Put another way, the nonmoving party has no obligation to establish that genuine issues of fact exist until the moving party has shown an absence of such

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issues of fact; unless that initial burden is met by the moving party, the nonmoving party may rest on its pleading. Minnie, 849 P.2d at 214.

Brinkman, 867 P.2d at 1115.

It is the exceptional negligence case that may be properly disposed of by summary judgment. Brohman v. State (1988), 230 Mont. 198, 202, 749 P.2d 67, 70. Negligence involves questions of fact, and where a factual controversy exists, summary judgment is never to be used as a substitute for trial. Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341. Only where reasonable minds cannot differ may the court, as a matter of law, decide the cause of an accident. Brohman, 749 P.2d at 70.

The Montana Ski Areas Association, which has appeared in this case as amicus curiae, asks that we abandon our rule for summary judgment and adopt the modern federal rule which, according to the [264 Mont. 471] Association, would allow the Court to evaluate the evidence and determine whether a "reasonable jury" could find in favor of the party opposing the motion. However, this rule would present a substantial erosion...

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