Kopeikin v. Moonlight Basin

SKI AREA OPERATOR LIABILITY: Failure to warn/negligence claims by skier injured in crash into boulder field obscured by unmarked cat track survive summary judgment notwithstanding statutory definition of “inherent dangers and risks of skiing”… Christensen.

The facts are derived from Brian Kopeikin’s complaint allegations.

On 2/5/12 Kopeikin, MD, of California, was skiing at Moonlight Basin in Madison Co. Conditions were excellent and he is a very experienced skier. After lunch he and a friend boarded the Six Shooter lift and began skiing the intermediate “Fast Lane” which accessed the slightly more difficult“Upper Elkhorn.” While skiing Upper Elkhorn he encountered an unmarked “cat track” cut into the mountain or groomed so as to “slope downward in the uphill direction.” It was lined with boulders to delineate its path. It prevented him from seeing a boulder field of “large, craggy, and sharp rocks” which stretched downhill for 50 and had been created by the construction and/or grading of the cat track. There was no warning of any kind. Kopeikin was skiing well under control and at medium speed. As he crossed the cat track he saw, with no time to take evasive action, the boulder field immediately below the cat track. He tucked his shoulder and rolled to avoid head injury. He landed on his back in the rocks, sustaining serious injuries. Moonlight requests Rule 12(b)(6) dismissal because the complaint alleges an injury resulting from “the inherent dangers and risks of skiing” as defined in MCA 23-2-702:

(2) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including:

…

(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(e) collisions with lift towers, signs, posts, fences, enclosures, hydrants, water pipes, or other artificial structures and their components;

(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;

…

(i) the failure of a skier to ski within that skier’s ability;

Moonlight contends that one or all of these are applicable. The Court finds that, at this stage at least, (d), (e), and (i) are inapplicable. Moonlight argues in its reply brief that Kopeikin’s claims are barred by §§ 23-2-736(1) & 736(2)(a). The Court will not address these arguments because they were not raised in its initial motion. Further, they raise obvious questions of fact about causation and comparative negligence.

Kopeikin’s complaint consistently alleges that the hazards were unnatural. Thus, even if the rocks he collided with are natural objects, the complaint alleges that the boulder field was not a “natural surface or subsurface condition” pursuant to (d). Even though the complaint alleges that it was not a natural condition, it also cannot be regarded as an “artificial structure” pursuant to (e). The vague term “other artificial structures” is to be interpreted by reference to the specific listed items, ejusdem generis, and thus “other artificial structures” should not encompass a boulder field resulting from construction of a cat track. (i) is inapplicable because the complaint alleges that Kopeikin was a very experienced skier who was skiing “well under control at a medium speed.” Pursuant to (f), a skier must “accept all legal responsibility for injury or damage of any kind” resulting from variations in steepness or terrain.

Moonlight contends that the Court should simply determine whether the complaint alleges injury from one of the listed items and dismiss because the case involves a catwalk, which is listed in (f). (The complaint refers to a “cat track” while the statute refers to a “catwalk;” the Court regards these terms as synonymous.) This has simplistic appeal, but the Court is not persuaded that such analysis is appropriate in light of Montana case law and federal decisions applying similar statutes in other states. Further, this issue is presented pursuant to a motion to dismiss as opposed to summary judgment following a fully developed record.

Mead (Mont. 1994) held that under the 1989 version of 23-2-733 a ski area operator’s duties were not limited to those listed in the statute but included any duties “consistent with the duty of reasonable care.” The Legislature amended skier responsibility statutes twice since Mead, but the operative provisions remain largely unchanged. §733 still provides a non-exclusive list of duties for operators which, as underscored in Mead, are to be performed “consistent with the duty of reasonable care owed by a ski area operator to a skier.” While the definition of “risks inherent in the sport of skiing” has been modified, the changes are generally minimal and do not affect the analysis here. For instance, what was earlier referred to as “risks inherent in the sport of skiing” has been amended slightly more broadly to “inherent dangers and risks of skiing.” Also, under the current version “inherent dangers and risks” need not be “integral” to the sport of skiing, but only “part of the sport of skiing,” and “ski” no longer modifies “terrain in “variations in steepness or terrain.” These changes make no difference here because the Court concludes, particularly as to the last modification, that the cat track and boulder field are clearly part of the “ski terrain.” Regardless, some of Kopeikin’s contentions can be resolved by applying the plain language of the statute. For instance, his insistence that inherent risks include only “a list of natural conditions over which a ski-area operator has no control” is clearly mistaken. The current definition of inherent dangers and risks of skiing includes a variety of “unnatural” and potentially hazardous conditions on ski mountains, including roads, cat walks, ski jumps, and “other terrain modifications.” The current definition also includes collisions with lift towers, signs, posts, fences, water pipes, and “other artificial structures.” Thus it does not follow that because the cat track and boulder field were “man-made” the conditions are per se beyond the scope of “inherent dangers and risks of skiing.” Also, the principles in Mead and Brewer (Mont. 1988) remain binding to the extent that the cases are applicable. However, they involved different factual situations and legal contentions are therefore do not fully resolve the issues here. Finally, the Court rejects Kopeikin’s contention that Mead stands for the proposition that all hazards on a ski mountain present questions of fact not suitable for summary disposition. Kumar (10th Cir. 2011) (applying similar Colorado skier responsibility statutes and granting summary judgment to the resort for a claim by a plaintiff who fell off an unmarked natural cornice).

The Court has looked for guidance to decisions from other States with similar skier responsibility statutes. For example, White (Utah 1994) held that “the unmarked cat track on the blind side of a ridge” was the type of risk that a skier would not wish to confront, and that fact questions existed as to whether the resort exercised reasonable care in eliminating or alleviating the hazard. It noted:

It is undisputed that cat tracks are a common and necessary feature at ski resorts. They allow novice skiers an easier route down the mountain and provide access to upper portions of the mountain for grooming machines and other maintenance equipment. Because cat tracks are so pervasive and important to the sport, it is unlikely that ski resorts could alleviate all of the possible harms that may result from them. Thus, in most cases they would constitute an inherent risk of skiing.

In light of the case law and Montana’s statutory scheme, the Court adopts the following framework in resolving Moonlight’s motion to dismiss. 1st, Montana’s skier responsibility statutes do not immunize operators from their own negligence. The statute provides a non-exclusive list of duties which an operator must perform “consistent with the duty of reasonable care owed by a ski area operator to a skier.” §23-2-733(1). Mead underscores this. 2nd, Montana’s statutory definition of “inherent dangers and risks of skiing” must be read in conjunction with the operator’s statutory duty of reasonable care. A mechanical application of the statute focused solely on the object with which the plaintiff collided would produce results that are “entirely arbitrary,” Clover (Utah 1991), and undermine Brewer‘s holding that an operator is not immune from liability for its own negligence. The statutes should be read in a manner that avoids constitutional violations and gives meaning to all provisions. Mead. 3rd, the duty of reasonable care required of an operator must be viewed in the unique context of skiing as made clear by §§ 23-2-702(2) & 736(1)-(2). Notwithstanding an operator’s efforts to tame it, skiing takes place on essentially wild terrain, on “a mighty mountain, with fluctuation in weather and snow conditions that constantly change.” Wright (D.Vt. 1951). It is engaged in by thrill-seeking experts and novices alike. It is impossible and undesirable to eliminate all hazards. In many cases an operator eliminates natural hazards at the risk of compromising appeal to skiers who embrace the thrill and challenge of more challenging conditions. Skiing demands that a skier exercise appropriate caution and good judgment or be responsible for the consequences. Some inherent hazards like cat tracks exist as a necessary result of accommodating and managing the infrastructure and moving skiers from one part of the mountain to another. Thus not all inherent risks result from “natural” conditions. To remain economically viable, courts cannot hold operators to the same safety standards generally demanded of owners of simpler business premises. The Legislature requires restraint when assessing that which, as a matter of law, constitutes reasonable care by an operator, mindful of the economic impact on ski areas of lengthy and expensive litigation. Indeed, it is the stated purpose of the Montana skier responsibility statutes to maintain economic viability of the industry “by discouraging claims based on damages resulting from the inherent dangers and risks of skiing.” §23-2-731.

Moonlight’s motion to dismiss is denied. At this very early stage all alleged facts must be treated as true and construed in the light most favorable to the plaintiff. According to the complaint allegations, the hazard which Kopeikin encountered was of a type that no skier wishes to confront: an unmarked and arguably ill-designed and boulder-lined cat track that hid a 50 boulder field in the middle of a groomed run. He alleges that the hazards were unnecessary and could have been eliminated or alleviated through ordinary care. Moonlight presents no facts to contradict Kopeikin’s allegations that its failure to warn and negligence in constructing and maintaining the cat track and boulder field caused his injuries.

Kopeikin v. Moonlight Basin, 41 MFR 146, 11/7/13.

Edward Moriarity (Moriarity, Badaruddin & Booke), Missoula, for Kopeikin; Ian McIntosh (Crowley Fleck), Bozeman, for Moonlight Basin.