SKIER RESPONSIBILITY: Skier who hit obscured rock in low snow conditions required to accept responsibility for injuries resulting from inherent dangers & risks… summary judgment for resort after previous denial of motion to dismiss… Christensen.
Californian Brian Kopeikin, MD, sued Moonlight Basin Management alleging premises liability negligence and negligent hiring, training, supervision, and management in connection with a skiing accident. The Court previously denied Moonlight’s motion to dismiss based on “the inherent dangers and risks of skiing” as defined in MCA 23-2-702, finding that it presented no facts to contradict Kopeikin’s allegations that its failure to warn and negligence in constructing and maintaining a cat track and boulder field caused his injuries. (MLW 11/9/13, 41 MFR 146). Moonlight now requests summary judgment. (Moonlight moved for summary judgment 6/23/14. Kopeikin responded 7/25 and, pursuant to LR 56.1(b), simultaneously filed a statement of disputed facts with his brief. Then on the afternoon of 1/28/15, less than 24 hours prior to a hearing on the motion, he filed a “Supplement to Statement of Disputed Facts.” It is untimely by at least 6 months, he did not seek leave, and it is not contemplated by the LR. Indeed, it is contrary to the LR requirement that a statement of disputed facts be filed “simultaneously with” the brief in opposition. Accordingly, it is not considered in deciding this motion.)
Kopeikin and Sven Rose purchased lift tickets at Moonlight Basin 2/5/12. Near the ticket booth is a sign warning of unmarked hazards. Kopeikin is a very experienced skier, having skied at several resorts throughout the Rocky Mountain West over the past 36 years, and he had seen similar signs at other resorts warning of unmarked hazards. He knew that rocks are common at ski areas in the Rocky Mountains, and he did not expect that all hazards at Moonlight would be marked. Conditions were generally good, with clear skies, calm winds, and temperatures near 32. However, it was a low snow coverage year, and Kopeikin acknowledges that he saw uncovered rocks on the sides of the runs. Rocks are prevalent at Moonlight. After several easier warm-up runs he and Rose decided to take the Six Shooter lift to access more challenging, expert terrain known as Headwaters. Upon learning that hiking was required to access the terrain, and due to their concern about lack of sufficient snow coverage, they decided to ski “Elkhorn.” At the unloading area for Six Shooter there is a sign identifying Elkhorn as a black diamond — “most difficult” — run. To access Elkhorn they began by skiing on the intermediate “Fast Lane,” which had plainly visible rocks above the snow that Kopeikin admits he likely saw. They then approached the entrance to Elkhorn. Immediately before the entrance is a sign indicating that it is a black diamond. They skied past this sign and onto Elkhorn. The terrain steepened and narrowed and the run was occupied by obstacles such as moguls and drifts. As he began skiing down Elkhorn, plainly visible grass and rocks could be seen poking through the snow on the side of the run. Some 200 yards below the entrance of Elkhorn a cat track or its remains crosses Elkhorn. In 2007, after determining that the cat track was not being used regularly, Moonlight had removed the edges of the track where it crossed Elkhorn in an attempt to return the slope to its natural condition. The cat track, or what remains of it, partly obscures the terrain immediately below it. Rose skied in front of Kopeikin and successfully navigated the cat track and terrain immediately below it. Kopeikin, skiing at 10-15 mph, “came over the cat track and absorbed it and when my skis touched down both hit rocks” and he was ejected from his skis. He fell forward and landed in other rocks that were either visible or buried under the snow. He suffered disabling injuries that necessitated extensive medical care and treatment.
Kopeikin testified that he “would not have fallen because of the cat track,” but fell because his “skis hit rocks.” The particular rock that caused him to be ejected was one that he could not see because it was under the snow and was “something you had to penetrate and hit with a little force.” From 2003 when Moonlight opened through the 2012 season, Moonlight had some 700,000 skier visits. There have been no other reported accidents due to rocks in the location of Kopeikin’s accident. (Kopeikin disputes this but presents no contrary evidence. In an effort to show that the fact is disputed, he cites 3 incident reports involving skiing or snowboarding accidents on the Elkhorn run generally, none of which appears to have occurred at the location of his accident, and all are of such dissimilar nature as to be immaterial to the Court’s analysis.)
Under §23-2-736(4), “a skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing. The “inherent dangers and risks of skiing” are “those dangers or conditions that are part of the sport of skiing” including, per §702(2):
(b) snow conditions as they exist or as they may change,…
(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps … and other natural objects;
(f) variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks, and other terrain modifications.
(Consistent with the Court’s 11/7/13 order, it interprets “catwalk” to be synonymous with “cat track.”)
“A skier has the duty to ski at all times in a manner that avoids injury to the skier and others and to be aware of the inherent dangers and risks of skiing.” §736(1) Also, a skier must “know the range of the skier’s ability and safely ski within the limits of that ability … so as to negotiate any section of terrain or ski slope and trail safely and without injury or damage.” §736(2)(a). A skier is also required to “know that the skier’s ability may vary because of ski slope and trail changes caused by weather, grooming change, or skier use.” Id.
A ski area operator must act “consistent with the duty of reasonable care owed by a ski area operator to a skier.” §733. Montana’s skier responsibility statutes cannot be read to immunize resorts from their own negligent or intentional acts, as that would violate Montana’s Constitution. Mead (Mont. 1994). However, the stated purpose of the skier responsibility statutes is to “discourage claims based on damages resulting from the inherent risks of skiing.” §731.
In ruling on Moonlight’s motion to dismiss, the Court articulated an interpretation of the statutes that harmonizes the definition of the inherent dangers & risks with the requirement that an operator act consistent with its duty of reasonable care. The Court rejected the notion that a court’s only role in ski area liability cases is to inquire whether the plaintiff’s injuries resulted from a collision with a particular object appearing on the list of inherent risks because that would produce absurd results and render the statute unconstitutional. At the same time, not every case involving hazards on a ski mountain presents a genuine factual dispute appropriate for trial. Ultimately, Montana’s skier responsibility statutes make clear that the duty of reasonable care owed by an operator “must be viewed in the unique context of skiing.” Skiing is a sport in which thrill-seekers embrace its inherent dangers & risks. It is a sport that occurs on “a mighty mountain, with fluctuations in weather and snow conditions that constantly change.” Wright (D.Vt. 1951). “A ski area operator cannot be expected to expend all of its resources making every hazard or potential hazard safe, assuming such an end is even possible,” or desirable.Kopeikin. “Ski areas encompass vast and unwieldy terrain and mother nature is always at play.” Id. The act of skiing in such terrain presents an obvious array of dangers to a skier, many of which the operator has no duty to protect against under Montana law. Fundamentally, a skier bears much of the responsibility for avoiding injury — a principal that is consistent with Montana law.
In snow conditions as they existed 2/4/12, Kopeikin skied over a variation in terrain and collided with a subsurface rock that caused him to fall and collide with other surface or subsurface rocks. Thus the accident falls clearly within the definition of inherent dangers & risks that are part of the sport of skiing. §23-2-701(2)(b), (d), (f). Notwithstanding his years of experience and expertise, he failed to ski in a manner that avoided injury and to be aware of the inherent dangers & risks. §23-2-736. So long as Moonlight acted consistent with its duty of reasonable care, he must accept all legal responsibility for his injuries. §736(4). It is clear that Moonlight acted consistent with its duty of reasonable care. It warned generally of unmarked hazards. It posted multiple signs designating the run a black diamond. It had taken efforts to remove the cat track and return the slope to its natural condition. Kopeikin did not suddenly & blindly encounter an unmarked cat track. He admits that what remained of the track could be clearly seen from above. The rocks he collided with, like all rocks on the Elkhorn run, were naturally occurring. Without citation to any record evidence, he asks the Court to infer that some of the rocks unnaturally accumulated through removal of the cat track in 2007. The record establishes the opposite: the process of removing the cat track reduced rocks because many were covered during the removal process. Further, with over 700,000 skier visits there had never been another reported accident at that location caused by a collision with rocks. According to Kopeikin, the rock that he hit which caused him to fall was buried under the snow and was “something you had to penetrate and hit with a little force and then it was there.” Thus his theory that Moonlight had a duty to warn of these specific rocks is undermined by the specific accident’s unforeseeability, despite that accidents of this general nature were foreseeable to skiers in low snow conditions. To impose a duty on Moonlight to mark or remove all submerged rocks, which are not readily visible, would be to require it to undertake an impossibility. Kopeikin recognized that it was a low snow year. He had seen rocks on other runs prior to skiing Elkhorn. He elected not to ski Headwaters partly because there was “no snow.” He rightly did not expect that all hazards on the mountain would be marked. Rocks & grass were plainly visible on Elkhorn. When he approached the area of Elkhorn where the remains of the cat track obscured the terrain immediately below, he did not stop and assess what was below.
As Judge Gibson eloquently stated in Wright in directing verdict against a claim by a skier who was injured when her skis hit a stump under the snow:
Skiing is a sport; a sport that entices thousands of people; a sport that requires an ability on the part of the skier to handle himself or herself under various circumstances of grade, boundary, mid-trail obstructions, corners and varied conditions of the snow. Secondly, it requires good judgment on the part of the skier and recognition of the existing circumstances and conditions. Only the skier knows his own ability to cope with a certain piece of trail. Snow, ranging from powder to ice, can be of indefinite kinds. Breakable crust may be encountered where soft snow is expected. Roots and rocks may be hidden under a thin cover.A single thin stubble of cut brush can trip a skier in the middle of a turn. Sticky snow may follow a fast running surface without warning. Skiing conditions may change quickly. What was, a short time before, a perfect surface with a soft cover on all bumps may fairly rapidly become filled with ruts, worn spots and other manner of skier created hazards.
The Montana Legislature has recognized these truths about skiing and codified them, so that a skier has a duty to ski safely and within his abilities, and accept all responsibility for injuries resulting from the inherent dangers & risks of skiing. Because Kopeikin’s injuries resulted only from the inherent dangers & risks of skiing and because Moonlight did not breach its duty of reasonable care, Moonlight is entitled to judgment as a matter of law. The case is closed.
Kopeikin v. Moonlight Basin Resort, 42 MFR 233, 2/9/15.
Shandor Badaruddin & Edward Moriarity (Moriarity, Badaruddin & Booke), Missoula, for Kopeikin; Ian McIntosh & Whitney Kolivas (Crowley Fleck), Bozeman, for Moonlight Basin.