Rutherford v. Talisker Canyons Fin., Co.

Decision Date27 June 2019
Docket NumberNo. 20140917,20140917
Citation445 P.3d 474
Parties Philip RUTHERFORD and Wendy Rutherford, Respondents, v. TALISKER CANYONS FINANCE, CO., LLC ; ASC Utah, LLC ; and Summit Ski Team, Inc., Petitioners.
CourtUtah Supreme Court

On Certiorari to the Utah Court of Appeals

Justice Himonas, opinion of the Court:


¶1 Young Levi Rutherford crashed and was injured when he skied into a patch of thick, wet, machine-made snow. His parents brought claims for negligence and premises liability on his behalf against Talisker Canyons Finance Company and ASC Utah (collectively, Talisker). Talisker asks us to hold that the Rutherfords’ claims are barred by (1) a release of liability signed by Levi’s father or, alternatively, (2) Utah’s Inherent Risks of Skiing Act, Utah Code sections 78B-4-401 to -404 (the Act). We decline Talisker’s invitations.

¶2 Two of our decisions compel this result. First, in Hawkins ex rel. Hawkins v. Peart , 2001 UT 94, 37 P.3d 1062, superseded by statute as stated in Penunuri v. Sundance Partners, Ltd. , 2013 UT 22, 301 P.3d 984,1 we unambiguously declared that it would violate public policy to allow a parent to "release a minor’s prospective claim for negligence." Id. ¶ 10. Second, in Clover v. Snowbird Ski Resort , 808 P.2d 1037 (Utah 1991), we unanimously held that claims for injuries caused by "inherent risks of skiing" are barred only to the extent that the risk was integral to the sport of skiing. Id. at 1044–45. And three years later we loudly reaffirmed our commitment to Clover in White v. Deseelhorst , 879 P.2d 1371 (Utah 1994), abrogated on other grounds by Penunuri v. Sundance Partners, Ltd. , 2017 UT 54, 423 P.3d 1150. Today, Talisker asks us to abandon our holding in Clover and turn turtle three decades of precedent and the settled expectations of skiers and the ski industry in favor of an alternate approach to interpreting the Act. But because of our established practices in statutory construction and precedential decisions in Clover and White , we reject this substitute construction.

¶3 Instead, we hold that Talisker has not convinced us that Clover was wrong, much less met its heavy burden to persuade us to overturn such weighty precedent. We therefore uphold the court of appeals’ decision that the district court was correct to apply Clover . We do, however, take this opportunity to streamline the implementation of Clover ’s holding and remand this case to the district court with instructions to apply Clover in a manner consistent with this opinion. We also agree with the court of appeals conclusion to affirm the district court’s partial grant of summary judgment to the Rutherfords, finding the release unenforceable under Utah law—although we do so for reasons other than those stated by the court of appeals.


¶4 Ten-year-old Levi Rutherford was a member of the Summit Ski Team, an affiliate of the United States Ski and Snowboard Association (USSA), during the 20092010 winter season. Levi was an advanced skier who regularly skied "on the double blacks, which were the expert runs." Levi’s father signed him up for the team online in the fall of 2009. In the process, Levi’s father signed an "Assumption of Risk and Release of Liability" on Levi’s behalf. The release purported to waive Levi’s right to sue USSA, the ski team, and any ski area operator for any injury due to any reason, including the negligence of one of the above-named entities.2

¶5 On January 15, 2010, Levi’s parents dropped him off at The Canyons ski resort for ski team practice.3 Levi met up with his coaches, who told him to take a warmup run while they set up gates for training on the Retreat run. At this time, multiple snow-making machines were in operation on Retreat. The coaches did not ask The Canyons to turn off the snow-making machines because "in the past [The Canyons] kept running the snow guns until they saw that people were up there ... and then they would shut them off when they saw that [the ski team] was on that run." The coach in charge of training that day testified in her deposition that she would not have had the team ski through the gates if the snow-making machines were still running by the time the course was set up "[b]ecause of [the] bad visibility and inconsistent snow."

¶6 Levi took his warm up on Retreat while the snow-making machines were in operation, making visibility poor. Warning signs were posted at the top of the run, stating: "snowmaking in progress." Despite the warning, Levi headed down Retreat without making turns. He went into a tuck position with his knees bent, his poles tucked under his arms, and his head near his knees. Near the bottom of the run, Levi ran into a mound of sticky, wet, machine-made snow that was roughly a foot high, which caused him to crash. Levi sustained a brain injury

from the crash.

¶7 The Rutherfords filed suit on Levi’s behalf against the ski team and Talisker. After discovery, the parties filed multiple cross-motions for summary judgment. At issue here are the motions concerning whether the Rutherfords’ claims for negligence and premises liability against Talisker are barred either by the release signed by Levi’s father or by the Act.

¶8 Regarding the arguments for the release, the district court read this court’s precedent in Rothstein v. Snowbird Corp. , 2007 UT 96, 175 P.3d 560, as meaning that all preinjury releases for recreational skiing are unenforceable, while, pursuant to Berry v. Greater Park City Co. , 2007 UT 87, 171 P.3d 442, abrogated on other grounds by Penunuri v. Sundance Partners, Ltd. , 2017 UT 54, 423 P.3d 1150, preinjury releases for competitive skiing are enforceable. Based on this understanding, the district court held that the preinjury release signed by Levi’s father was unenforceable because the type of skiing Levi was engaged in at the time he crashed was more similar to recreational skiing than competitive skiing. The district court alternatively held that the release was unenforceable under Hawkins ex rel. Hawkins v. Peart , which held that a preinjury release signed by a parent on behalf of a minor was unenforceable for violating Utah public policy. 2001 UT 94, 37 P.3d 1062, superseded by statute as stated in Penunuri v. Sundance Partners, Ltd. , 2013 UT 22, 301 P.3d 984.4

¶9 The district court also denied Talisker’s motion in which it argued that the Act’s machine-made snow exemption5 barred the Rutherfords’ claims. The court held that, pursuant to Clover v. Snowbird Ski Resort , 808 P.2d 1037 (Utah 1991), there was a disputed question of material fact as to whether a skier wished to confront sticky, wet, machine-made snow from a machine that was allegedly "not functioning properly" and whether that risk could be eliminated through the exercise of reasonable care.

¶10 Talisker appealed the district court’s partial grant of the Rutherfords’ motion for summary judgment and its denial of Talisker’s motion for summary judgment. The court of appeals affirmed the district court’s rulings.

¶11 With respect to the preinjury release, it affirmed on the ground that the 2006 amendment to the Act, coupled with our analysis in Rothstein , effectively overruled Berry and eliminated the distinction between preinjury releases for recreational and competitive skiing, making both types of releases unenforceable. Rutherford ex rel. Rutherford v. Talisker Canyons Fin. Co. , 2014 UT App 190, ¶¶ 34–35, 333 P.3d 1266. Additionally, the court of appeals "reject[ed] the trial court’s determination that the ... release is unenforceable because it was signed by a parent on behalf of a minor; rather, the release is unenforceable based on the Act’s policy statement." Id . ¶ 30. We granted certiorari to review the court of appeals’ decision. Based on our review, we hold that the court of appeals reached the correct result, but that its declaration that preinjury releases signed by parents on behalf of children do not generally offend Utah’s public policy was in error.

¶12 The court of appeals also affirmed the district court’s ruling with respect to the Act’s machine-made snow exemption, stating that there is a "question[ ] of fact regarding the applicability of the machine-made snow exemption" in the Act. Id. ¶ 18. We affirm the court of appeals’ and the district court’s reliance on Clover in making this determination. However, we take this opportunity to clarify the implementation of Clover ’s core holding and therefore remand this case to the district court to make a determination under Clover consistent with this opinion.

¶13 We exercise jurisdiction under Utah Code section 78A-3-102(3)(a).


¶14 On certiorari, we review the decision of the court of appeals for correctness, "giving no deference to its conclusions of law." State v. Harker , 2010 UT 56, ¶ 8, 240 P.3d 780 (citation omitted) (internal quotation marks omitted). "Additionally, [with respect to the decision of the district court,] we ‘apply the same standard of review used by the court of appeals.’ " Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd. , 2014 UT 13, ¶ 17, 325 P.3d 70 (citation omitted). And when, as here, "there are cross-motions for summary judgment, we view the facts in the light most favorable to the losing party." Keith v. Mountain Resorts Dev., L.L.C. , 2014 UT 32, ¶ 16 n.10, 337 P.3d 213 (citation omitted).


¶15 We first examine whether the release is enforceable. It is not. Absent a relevant, contrary expression of intent from the legislature, we adhere to our pronouncement in Hawkins ex rel. Hawkins v. Peart that a parent cannot release his or her minor child’s prospective claims for negligence. 2001 UT 94, 37 P.3d 1062, superseded by statute as stated in Penunuri v. Sundance Partners, Ltd. , 2013 UT 22, 301 P.3d 984.

¶16 Second, we turn to interpreting the Act, relying on our time-honored tools of stare decisis and statutory interpretation. For purposes of our opinion today, we begin with our precedential tools. We do so because in Clover v....

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