Rutherford ex rel. Child v. Talisker Canyons Fin. Co.

• Decision Date: 14 August 2014
• Docket Number: No. 20120990–CA.,20120990–CA.
• Citation: 333 P.3d 1266,767 Utah Adv. Rep. 41
• Parties: Philip RUTHERFORD and Wendy Rutherford, On Behalf of their Minor Child, Levi RUTHERFORD, Plaintiffs and Appellees, v. TALISKER CANYONS FINANCE CO., LLC and ASC Utah, LLC, Defendants and Appellants.
• Court: Utah Court of Appeals

333 P.3d 1266

767 Utah Adv. Rep. 41

Philip RUTHERFORD and Wendy Rutherford, On Behalf of their Minor Child, Levi RUTHERFORD, Plaintiffs and Appellees,

v.TALISKER CANYONS FINANCE CO., LLC and ASC Utah, LLC, Defendants and Appellants.

No. 20120990–CA.

Court of Appeals of Utah.

Aug. 14, 2014.

Eric P. Lee, M. Alex Natt, Elizabeth Butler, and Timothy C. Houpt, for Appellants.

David A. Cutt, for Appellees.

Judge JAMES Z. DAVIS authored this Opinion, in which Judge GREGORY K. ORME and Senior Judge PAMELA T. GREENWOOD concurred.¹

Opinion

DAVIS, Judge:

¶ 1 Talisker Canyons Finance Co., LLC and ASC Utah, LLC (collectively, the Ski Resort) bring this interlocutory appeal challenging the trial court's denial of their motion for summary judgment and the trial court's grant of partial summary judgment in favor of Philip and Wendy Rutherford, on behalf of their minor child, Levi Rutherford (collectively, the Rutherfords). We affirm in part, vacate in part, and remand for further proceedings in accordance with this decision.

BACKGROUND

¶ 2 In 2010, ten-year-old Levi Rutherford was a member of the Summit Ski Team, a ski racing club that is affiliated with the United States Ski and Snowboard Association (the USSA). The Ski Team trained primarily at the Canyons, a ski resort near Park City, Utah, with the resort's permission and subject to the resort's requirement that the Ski Team carry liability insurance. The Ski Team's liability insurance was provided through its affiliation with USSA. All Summit Ski Team participants were required to become USSA members, and USSA membership required applicants to execute a release indemnifying USSA from any injury the individual may suffer in connection with his participation in USSA-associated activities, regardless of USSA's negligence. Because of Levi's age, his father, Philip Rutherford, executed the release on Levi's behalf. In that agreement, the term “USSA” is defined as including, inter alia, local ski clubs and ski and snowboard facility operators.

¶ 3 On January 15, 2010, Levi and his seven-year-old brother were at the Canyons to attend a Ski Team race-training session. The brothers rode a chairlift that carried them along the length of the “Retreat” ski run where the Ski Team was setting up for practice. Snowmaking machines along the Retreat run were actively making snow at this time. After exiting the chairlift, Levi and his brother skied down Retreat.² Levi skied down the slope maintaining a racing stance and without making any turns. Near the bottom of the run, Levi fell when he collided with a mound of man-made snow that was of a different and wetter consistency than other snow on the run. Levi sustained injuries as a result of his fall.

Rutherford v. Talisker Canyons Finance

¶ 4 The Rutherfords filed a complaint against the Ski Resort and the Ski Team, seeking damages for Levi's injuries, which they claim were caused by the defendants' negligence. As against the Ski Resort specifically, the Rutherfords alleged that 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.

¶ 5 The parties filed several motions for summary judgment. The Ski Team submitted motions for summary judgment on the basis that Utah's Inherent Risks of Skiing Act (the Act) precluded the Rutherfords' claims against it because Levi was indisputably injured when he crashed into a mound of machine-made snow, an inherent risk of skiing for which ski-area operators are exempted from liability under the Act. See generallyUtah Code Ann. §§ 78B–4–401 to –404 (LexisNexis 2012) (Inherent Risks of Skiing Act); id.§ 78B–4–402(1)(b) (machine-made snow exemption). The Ski Team also contended that it had no duty to protect Levi from a risk inherent to skiing and that it otherwise did not owe him a general duty of care as alleged by the Rutherfords. The Ski Resort joined in the Ski Team's motions, specifically arguing that the Act exempts the Ski Resort, as a ski-area operator, from any duty to protect Levi from the inherent risk of skiing posed by the mound of machine-made snow. The Ski Resort did not argue that any of the Act's exemptions other than the machine-made snow exemption applied in this case. The Rutherfords moved for partial summary judgment, arguing that the Act did not bar their claims against the Ski Resort.

¶ 6 The trial court rejected the Ski Team's argument that it is entitled to protection under the Act but granted the Ski Team's motion for summary judgment on the negligence issue, dismissing with prejudice the Rutherfords' negligence claim against it. The trial court concluded that “the Ski Team did not owe Levi a general duty of reasonable care to protect him from harm as alleged by [the Rutherfords]” and that even assuming that it did, “given the undisputed facts in this case, no reasonable jury could find that the Ski Team breached such a duty.” ³ The trial court denied the Ski Resorts' joinder in the Ski Team's motion for summary judgment based on the Act, ruling that the applicability of the Act and the machine-made snow exemption to the Ski Resort depended on the resolution of disputed facts, namely, whether the snowmaking equipment along Retreat was functioning properly. The trial court granted the Rutherfords' motion for partial summary judgment based on their argument that the Act did not bar their claims against the Ski Resort.

¶ 7 The Ski Resort also filed a motion for summary judgment on the basis that the USSA release that Mr. Rutherford signed on behalf of his son barred Levi's claims. The court denied the motion based on its determinations (1) that the waiver's Colorado choice-of-law provision “is unenforceable and ... Utah law applies to the USSA release”; (2) that the release is unenforceable under Utah law based on the Utah Supreme Court's decision in Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062; and (3) that even if the release was enforceable under Utah or Colorado law, Levi was not racing at the time of his injury or otherwise engaged in the activities covered by the release because the Ski Team's practice had not yet begun. The Ski Resort petitioned for interlocutory review, which was granted by our supreme court and assigned to this court.

ISSUES AND STANDARD OF REVIEW

¶ 8 The Ski Resort contends that the trial court erroneously granted the Rutherfords' motion for partial summary judgment after finding that Levi was not engaged in race training at the time of his injury and that an exemption in the Act regarding competitive skiing did not bar the Rutherfords' claims. SeeUtah Code Ann. § 78B–4–402(1)(g) (competitive-skiing exemption). The Ski Resort also asserts that the trial court's interpretation of the Act's machine-made snow exemption was incorrect and that, as a matter of law, summary judgment should be entered for the Ski Resort based on either the machine-made snow exemption or the competitive-skiing exemption. Last, the Ski Resort argues that the trial court erred in determining that the Colorado choice-of-law provision in the USSA release was not enforceable, that the release was not enforceable under Utah law, and that the release was nevertheless inapplicable here, where Levi was engaged in an activity not covered by the release when he was injured.

¶ 9 Summary judgment is appropriate “only when all the facts entitling the moving party to a judgment are clearly established or admitted” and the “undisputed facts provided by the moving party ... preclude[ ], as a matter of law, the awarding of any relief to the losing party.” Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 24, 70 P.3d 904 (alteration in original) (citations and internal quotation marks omitted); see alsoUtah R. Civ. P. 56(c). “We also note that summary judgment is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994) (citation and internal quotation marks omitted). “An appellate court reviews a trial court's legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).

ANALYSIS

I. The Distinction Between Competitive Skiing and Recreational Skiing

¶ 10 The Act exempts ski resorts from liability for injuries sustained by individuals engaged in “competitive” skiing, including injuries sustained as a result of an individual's “participation in, or practicing or training for, competitions or special events.” SeeUtah Code Ann. § 78B–4–402(1)(g) (LexisNexis 2012).⁴ Here, a determination that Levi was injured while engaged in competitive, as opposed to recreational, skiing under the Act could be case-determinative.⁵

¶ 11 In their complaint, the Rutherfords allege that Levi was injured during Ski Team practice, stating, “[T]he Summit Ski Team instructed Levi to ski down the Retreat run.... As Levi was skiing down Retreat, he crashed into [a mound of snow] and sustained serious injuries....” Similarly, in the Rutherfords' motions for partial summary judgment as to the enforceability of the Act and the USSA release, they state, “Levi was injured while participating in racing practice as a member of [the Ski Team].” ⁶ Further, the Rutherfords' expert witness, whose statement was submitted with the Rutherfords' summary judgment filings, based his expert report and evaluation on the premise that Levi was engaged in race training and practice. In its response to the Rutherfords' motions, the Ski Resort agreed that it was an undisputed fact that “Levi was injured while participating in racing practice as a member...