White v. Deseelhorst

• Decision Date: 16 August 1994
• Docket Number: No. 920328,920328
• Citation: 879 P.2d 1371
• Parties: Corey WHITE, Plaintiff and Appellant, v. Gary L. DESEELHORST, NP Ski Corporation, LL Ski Corporation, and Bravo Ski Corporation dba Solitude Ski Resort Company, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1371

879 P.2d 1371

Corey WHITE, Plaintiff and Appellant, v. Gary L. DESEELHORST, NP Ski Corporation, LL Ski Corporation and Bravo Ski Corporation dba Solitude Ski Resort Company, Defendants and Appellees.

No. 920328.

Supreme Court of Utah.

Aug. 16, 1994.

Mitchell R. Jensen, John Farrell Fay, J. Craig Swapp, Jim Mouritsen, Salt Lake City, for plaintiff.

Jay E. Jensen, Robert K. Hilder, Salt Lake City, for defendants.

DURHAM, Justice:

Plaintiff Corey White appeals the Third District Court's grant of summary judgment in favor of defendant Solitude Ski Resort. ¹ White contends that the trial court erroneously dismissed his negligence claim on the basis of Utah's inherent risks of skiing statute. Utah Code Ann. §§ 78-27-51 to -54. We reverse.

Because the trial court dismissed White's claim on summary judgment, we relate the facts and all reasonable inferences arising therefrom in the light most favorable to him. Christensen v. Swenson, 874 P.2d 125, 127 (Utah 1994). On April 22, 1988, White was injured in a skiing accident at Solitude Ski Resort. At the time of the accident, White was twenty-two years old and characterized himself as an advanced skier, although he was not skilled in ski jumping or mogul skiing. He generally skied three or more times per season and had already skied twice that winter. White was somewhat familiar with Solitude, having skied there roughly seven times in prior seasons.

On the day of the accident, White and a skiing companion arrived at Solitude around noon. The weather was warm, the skies were clear, and the snow was heavy and wet. Both White and his companion purchased a half-day lift ticket and then rode the Powder Horn lift to the top of the mountain. From there, they skied on a groomed trail to the top of the Paradise run. Paradise is an ungroomed, mogul-filled run that Solitude has designated "most difficult."

White and his companion began skiing down Paradise. White's companion had difficulty with the run, and it became apparent that she needed an easier route down the mountain. White skied to a point near the bottom of Paradise and directed her toward a gentler slope. He told her to meet him in a flat area near the bottom of the run.

White then began his final descent. He skied roughly thirty feet on a moderately steep slope toward a natural ridge or knoll. As he came over the ridge, he noticed a trail that cut directly across the Paradise run. He had been unable to see the trail earlier because it fell within a blind spot created by the ridge. The last thing White remembers is attempting to make an evasive maneuver to his left, apparently to avoid the trail.

The trail that White saw as he came over the ridge had been formed early in the season by novice skiers traversing the slope to negotiate an easier route down the mountain. To prevent it from becoming too rough, Solitude occasionally smoothed the trail with its snow grooming equipment. Such trails are commonly called "cat tracks."

Teresa Gates was skiing on the cat track as White came down Paradise. She testified that she heard someone on the trail above her and, as she looked up, saw White in the air roughly ten to fifteen feet ahead of her. She stated that he was upright and seemed to be in control as he passed over the cat track but gradually rotated backward as he flew through the air. White landed on his neck and upper back approximately fifty feet below the cat track. He fractured his spine and now suffers permanent total paralysis of his lower extremities.

In November 1988, White filed this negligence action against Solitude. White claims that Solitude negligently designed and maintained the cat track and that it failed to adequately warn skiers of the cat track's location. White supports his position with expert testimony indicating that the run was improperly designed and should have been marked. In his deposition, White's expert testified that ski industry safety standards require that ski resorts locate cat tracks where they can be seen by skiers as they descend the mountain or, where this is not possible, that resorts adequately warn skiers of the cat track's location. Solitude's corps of experts strongly disagreed. They testified that the cat track was properly designed and that no warning of its location was necessary. ²

In June 1992, the trial court granted Solitude's motion for summary judgment. According to the trial court, White failed to raise a material issue concerning the appropriate standards for designing and maintaining ski runs. The court therefore concluded that White's accident resulted from an inherent risk of skiing and was barred by Utah's inherent risks of skiing statute. White appeals.

The standard for reviewing a grant of summary judgment is well established. Summary judgment is proper when there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Christensen, 874 P.2d at 127; Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1039 (Utah 1991). Because summary judgment is granted as a matter of law, we review the trial court's ruling for correctness. Christensen, 874 P.2d at 127; Hunsaker v. State, 870 P.2d 893, 896 (Utah 1993).

We also note that summary judgment is generally inappropriate to resolve negligence claims and should be employed "only in the most clear-cut case." Ingram v. Salt Lake City, 733 P.2d 126, 126 (Utah 1987) (per curiam); see also Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991); Hunt v. Hurst, 785 P.2d 414, 415 (Utah 1990); Apache Tank Lines, Inc. v. Cheney, 706 P.2d 614, 615 (Utah 1985) (per curiam); Williams v. Melby, 699 P.2d 723, 725 (Utah 1985); Wycalis v. Guardian Title, 780 P.2d 821, 825 (Utah Ct.App.1989), cert. denied, 789 P.2d 33 (Utah 1990). "Ordinarily, whether a defendant has breached the required standard of care is a question of fact for the jury." Jackson v. Dabney, 645 P.2d 613, 615 (Utah 1982); see also Dwiggins, 811 P.2d at 183. "Accordingly, summary judgment is inappropriate unless the applicable standard of care is 'fixed by law,' and reasonable minds could reach but one conclusion as to the defendant's negligence under the circumstances." Wycalis, 780 P.2d at 825 (citations omitted); see also Butler v. Sports Haven Int'l, 563 P.2d 1245, 1246 (Utah 1977).

We first examine the applicability of Utah's inherent risks of skiing statute. The statute provides that "no skier may make any claim against, or recover from, any ski area operator for injury resulting from any of the inherent risks of skiing." Utah Code Ann. § 78-27-53. ³ The statute defines inherent risks of skiing as

those dangers or conditions which are an integral part of the sport of skiing, including, but not limited to: changing weather conditions, variations or steepness in terrain; snow or ice conditions; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, impact with lift towers and other structures and their components; collisions with other skiers; and a skier's failure to ski within his own ability.

Id. § 78-27-52(1).

In Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), we explained that the statute grants only limited immunity; it "does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers." Id. at 1044. Clover also clarified the manner in which the statute is to be applied. Courts cannot determine that a risk is inherent in skiing simply by asking whether it happens to be one of those listed in section 78-27-52(1). That list is expressly nonexclusive and thus contemplates the inclusion of hazards other than those specifically set forth. In addition, any hazard, listed or unlisted, is limited by the phrase "integral part of the sport of skiing." Utah Code Ann. § 78-27-52(1). Accordingly, to determine whether the statute applies, we must decide whether the particular risk which allegedly caused White's injury was an integral part or essential characteristic of the sport of skiing. See Clover, 808 P.2d at 1044, 1047; see also Paige Bigelow, Development, Ski Resort Liability for Negligence Under Utah's Inherent Risks of Skiing Statute, 1992 Utah L.Rev. 311, 317.

As explained in Clover, risks that are inherent in skiing, or essential characteristics of skiing, can be divided into two categories. Clover, 808 P.2d at 1047. The first consists of risks that skiers wish to confront while skiing, for example, steep grades, powder, and mogul runs. Under the statute, the ski resort is relieved of any obligation to eliminate these types of dangers. Id. ⁴ The second category includes risks that skiers do not wish to confront, such as "bare spots, forest growth, rocks, stumps, ... lift towers and other structures." Utah Code Ann. § 78-27-52(1). Such risks are also generally deemed inherent in skiing. If they can be eliminated by reasonable care, however, they are not considered an inherent risk and the statute does not apply. Clover, 808 P.2d at 1047. ⁵ If the risk cannot be eliminated by the use of reasonable care, then the statute simply requires ski resorts to "warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront when participating in the sport of skiing." Id.

The risk at issue in this case falls into the second category outlined in Clover. An unmarked cat track on the blind side of a ridge is not the type of risk that a skier proceeding down the Paradise run would wish to confront. Rather, it is analogous to a bare spot, rock, or tree stump. The question then becomes whether Solitude could have alleviated this risk through the exercise of ordinary care. Because White's claim was dismissed on summary judgment, we must determine whether reasonable minds could disagree on this issue. If so, summary judgment on the basis of the inherent risks of skiing statute was inappropriate; if not, summary judgment was proper.

It is undisputed that cat...