Roberts v. Jackson Hole Mountain Resort Corp., 17-8018

• Decision Date: 05 March 2018
• Docket Number: No. 17-8018,17-8018
• Citation: 884 F.3d 967
• Parties: Michael L. ROBERTS; Jessica E. Waybright, Husband & Wife, Plaintiffs–Appellants, v. JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

884 F.3d 967

Michael L. ROBERTS; Jessica E. Waybright, Husband & Wife, Plaintiffs–Appellants,

v.JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming corporation, Defendant–Appellee.

No. 17-8018

United States Court of Appeals, Tenth Circuit.

FILED March 5, 2018

Robert E. Schroth, Sr. (Robert E. Schroth, Jr. with him on the briefs), Jackson, Wyoming, appearing for the appellants.

James K. Lubing, Lubing Law Group, LLC (Nathan D. Rectanus with him on the brief), Jackson, Wyoming, appearing for the appellee.

Before BRISCOE, EBEL, and MATHESON, Circuit Judges.

EBEL, Circuit Judge.

In 2014, while skiing an untamed and ungroomed run inside the boundaries of Jackson Hole Ski Resort, Plaintiff Michael Roberts skied into a lightly covered pile of boulders, falling between two of them, and severely injuring himself. He sued Jackson Hole Mountain Resort ("JHMR") to recover for his injuries, and his wife joined his lawsuit alleging loss of consortium.

JHMR moved for summary judgment on the basis of the Wyoming Recreation Safety Act ("WRSA") which limits a recreational activity provider’s liability for so-called "inherent risks" of the activity. The district court granted summary judgment, holding that Roberts's injuries were the result of an "inherent risk" of alpine skiing. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now AFFIRM the district court in full.

I. BACKGROUND

Located within the boundaries of the world-famous Jackson Hole Ski Resort, Saratoga Bowl is an adventurous skier’s dream hill. The off-piste¹ bowl is dotted with trees, rocks, and vast swaths of open, often-untouched snow that weave throughout these natural obstacles unguided by the ministrations of JHMR’s tree-cutters.

On February 14, 2014, with this winter paradise rendered even more inviting by roughly a foot of fresh, fluffy, Wyoming powder, Michael Roberts—an experienced skier and ski instructor at his local mountain in California—and four friends headed for the Bowl. Once there, they began to pick their way down the hill, stopping frequently due to the many obstacles and heavy snow. One member of Roberts's group, Nick Parsell, was wearing a GoPro video camera on which he captured the group’s descent into the bowl and the many trees and visible rocks and rock formations throughout the hill.²

After skiing through the trees at the top of the run, Nick Parsell skied down below the rest of the group so that he could film them skiing toward him. As Parsell stops to look up at his companions, an exposed rock formation is clearly visible off to his left. GoPro video 3:05. The skiers head toward Parsell one-by-one, and Roberts is the second to angle down the mountain. As he passes Parsell, the video shows Roberts taking a sweeping left turn perpendicular to the Bowl’s fall line. Id. at 3:33. As the camera turns back uphill, a vague commotion can be heard from below.

According to Roberts, "as [he] was initiating [his] right hand turn into the fall line, [he] clipped a rock and started to tumble[,] [ultimately] end[ing] up in a hole, up to [his] neck in snow." Aplt. App. at 193. Another member of the group testified that Roberts "smashed" into a hole between several rocks. Aplt. App. at 315. This same member later clarified that where Roberts fell

there were two very large boulders side by side that there was a—like a crevice in—between them so they were separated. So when he skied—he skied over the—over the top of one of the rocks and then he hit the wall of the second rock and then disappeared down into that crevice. So that was one of the structures. And so see that was where he fell in, but there were a number of other very hazardous deep holes including the one that the ski instructor [who stopped to help] fell down into and we had to pull out, and including the one that I fell [into] when I tried to get within 15 meters of Mr. Roberts at the accident.

Aplt. App. at 312.³

After the fall, one of Roberts's companions called ski patrol, whose members soon arrived and were able to evacuate Roberts from the mountain. He was taken first to an emergency room in Jackson before later being flown to Salt Lake City for emergency surgery. As a result of his fall, Roberts "fractured his pelvis, broke seven (7) ribs, lacerated his liver, punctured a lung, and incurred various less serious injuries." Aplt. Br. at 10.

In 2016 Roberts and his wife Jessica Waybright brought this diversity suit, governed by Wyoming law, against JHMR in the District of Wyoming alleging premises liability, personal injury, negligence, negligent training and supervision, and loss of consortium. Following discovery, JHMR moved for summary judgment on the grounds that the Roberts' claims were barred by the WRSA. The district court granted JHMR’s motion and the plaintiffs timely appealed.

II. DISCUSSION

We review de novo a district court’s grant of summary judgment, "ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties." Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is inappropriate where there is a genuine dispute over a material fact, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if its determination "might affect the outcome of the suit under the governing law." Id.

In this diversity suit we apply the substantive law of Wyoming, endeavoring to "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). To do so we rely foremost on decisions of the Wyoming Supreme Court, and then on "other state court decisions, federal decisions, and the general weight and trend of authority." Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002).

A. The Wyoming Recreation Safety Act

This is not the first time we have been asked to evaluate a Wyoming recreational provider’s liability for injuries arising from participation in a recreational activity. See, e.g., Kovnat v. Xanterra Parks & Resorts, 770 F.3d 949, 955 (10th Cir. 2014) ; Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145, 1148 (10th Cir. 2004) ; Cooperman, 214 F.3d at 1162. Liability for personal injuries is ordinarily evaluated through common-law tort doctrine, but in these cases the Wyoming legislature has limited the duty of care owed by recreational providers, including ski resorts, by enacting the WRSA. Dunbar, 392 F.3d at 1148.

Specifically, the WRSA codifies the common-law concept of primary assumption of the risk. See Cooperman, 214 F.3d at 1165, 1165 n.1. Under the WRSA,

[a]ny 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 ... that results from the inherent risks in that sport or recreational opportunity.

Wyo. Stat. Ann. § 1-1-123(a). The Act further provides that "[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." Id. § 1-1-123(b). The WRSA does not, however, preclude a plaintiff from prevailing on a negligence claim against a ski resort when he or she suffers "damage, injury or death [that] is not the result of an inherent risk" of alpine skiing. Id. at § 1-1-123(c). Alpine skiing is a "sport or recreational opportunity" governed by the WRSA, id. § 1-1-122(a)(iii), and JHMR is a "provider," id. § 1-1-122(a)(ii).

To understand exactly how the WRSA adjusts common-law tort doctrine, it is useful to return to foundational tort principles. The basic elements of a negligence claim are: duty, breach, causation, and damages. See, e.g., Greenwalt v. Ram Restaurant Corp. of Wyo., 71 P.3d 717, 737 (Wyo. 2003) ("It is elementary that the traditional elements of a negligence tort claim are duty, breach of duty, proximate cause, and damages."). By codifying the doctrine of primary assumption of the risk, the WRSA targets the first of these elements:

duty. See Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995) ("Under the clear and unambiguous language of the [WRSA], the assumption-of-risk terminology is intended to limit the duty which a provider owes to a participant. This type of assumption of risk is known as primary assumption of risk."). Primary assumption of risk is distinguishable from secondary assumption of the risk. While the latter is an affirmative defense to be raised "after the plaintiff has met his burden of proving that the defendant breached a legal duty which he owed to the plaintiff," id., the former implicates the very question of whether a duty was "owed" altogether, id. When primary assumption of the risk applies, as it does under the WRSA, "the legal result is that the defendant is simply relieved of the duty which would otherwise exist." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 481 & n.10 (5th ed. 1984).

The question under the WRSA, then, is whether the "damage, injury or death" suffered by the plaintiff was the result of "an inherent risk" of alpine skiing. Wyo. Stat. Ann. § 1-1-123(a) – (c). If so, then the provider, JHMR in this instance, owes no duty to the plaintiff, and we have no occasion to consider whether the steps taken by the Resort were negligent in nature,⁴ and summary judgment is appropriate.

a. Inherent Risk

The WRSA defines an inherent risk as "those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational...