The 10th U. S. Circuit Court of Appeals has affirmed a district court’s decision, declining to consider whether the Wyoming Recreational Safety Act was unconstitutional because the plaintiffs did not sufficiently first raise the issue at the trial court level.
A jury decided after a three-day trial before a magistrate judge that the injury that Sharon Muller suffered while attempting to board a gondola was an inherent risk of skiing under the RSA, precluding any recovery for the plaintiffs under their negligence claim.
The Mullers argued on appeal that the RSA is unconstitutional, that the RSA does not apply to this case, that Sharon’s injuries did not result from an inherent risk of skiing, and that the Resort is a common carrier under the Wyoming Constitution.
On appeal, the 10th Circuit noted that the RSA provides:
(a) Any person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.
(b) A provider of any sport or recreational opportunity is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.
(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to W.S. 1-1-109.
The panel then turned back to the Muller’s specific appeal.
“We conclude the magistrate judge correctly instructed the jury on inherent risk because the exclusion clause does not apply to ‘a ski lift operated by a recreational provider.’ Muller v. Jackson Hole Mountain Resort, 2006 WY 100, 139 P.3d 1162, 1166 (Wyo. 2006). Also, we conclude the inherent risks of alpine skiing include injuries that occur ‘while boarding a ski lift.’ Id. at 1168. These conclusions render the common carrier issue moot. Id. at 1164.
“The sole issue remaining in this case is whether the RSA is unconstitutional. The Mullers argue that the RSA violates their right to equal protection, because the RSA benefits one class (recreational providers) at the expense of another class (those injured while taking part in recreational activities). Aplt. Opening Br. at 14-15. The Mullers also assert that the RSA is unconstitutionally vague, because the phrase ‘inherent risk’ is too ambiguous to give notice to skiers that their injuries on the slopes may not be compensable. Id. at 16. Although the Mullers fail to make clear whether they are contending that the RSA runs afoul of state or federal constitutional guarantees, we conclude that the Mullers’ argument focuses on the Wyoming Constitution because the authorities the Mullers cite in support of their constitutional arguments are, for the most part, Wyoming state cases.
“Before reaching the merits of the Mullers’ arguments, we must ascertain whether these constitutional issues are properly before us. Generally, we will only consider arguments on appeal that the parties have first raised before the district court. In re Walker, 959 F.2d 894, 896 (10th Cir. 1992). The State of Wyoming, an intervenor in this case, contends that the Mullers never raised their equal protection or vagueness arguments prior to their assertion of these arguments on appeal. Intervenor Br. at 19-20. After reviewing the record, we agree.”
Sharon Muller and Jeff Muller v. Jackson Hole Mountain Resort; 10th Cir.; No. 03-8072; 2006 U.S. App. LEXIS 32098; 12/28/06
Attorneys of Record: (for plaintiffs) William R. Fix, Jackson, WY. (for defendant) James K. Lubing, Jackson, WY.
