Ski Area Liability Act now becomes a road map for plaintiffs to sue ski areas.
By James Moss
The Idaho Supreme Court just turned the Ski Area Liability Act into a plaintiff checklist for winning money from Idaho Resorts.
On November 30, 2019, Stewart Milus (“Mr. Milus”) was skiing at the Sun Valley Ski Resort when he collided with snowmaking equipment identified as Snow Gun 16, located in the middle of the Lower River Run on Bald Mountain. Mr. Milus died as a result of the collision. Snow Gun 16 was not actively discharging snow at the time of the collision.
Laura Milus (“Ms. Milus”) is the widow of Mr. Milus and D.L.J. is the stepson of Mr. Milus. Ms. Milus filed a wrongful death action on behalf of herself and D.L.J. (collectively referred to as “Milus”) against Sun Valley Company (“Sun Valley”), the operator of the Sun Valley Ski Resort. Milus alleged that Sun Valley breached its duties under Idaho Code section 6-1103(2) and (6). Idaho Code section 6-1103(2) imposes a duty on ski operators to mark with a “visible sign” or “warning implement” the location of snowmaking equipment on ski slopes and trails. Idaho Code section 6-1103(6) imposes a duty to place a conspicuous notice at or near the top of a trail or slope that is open to the public when snow-grooming or snowmaking operations are being undertaken.
Sun Valley filed a motion for summary judgment, arguing that it had satisfied its duty to warn of the snowmaking equipment under Idaho Code section 6-1103(2) because Snow Gun 16 was covered in yellow padding, which constituted a “warning implement.” Additionally, Sun Valley argued that it had no duty under Idaho Code section 6-1103(6) to place a notice at the top of the Lower River Run because no snowmaking was being actively undertaken on the day of the collision. Sun Valley further argued that, even if it did have such a duty, it complied with that duty by placing a sign that read “CAUTION SNOWMAKING IN PROGRESS” near what Sun Valley contends is the unloading area of the Lower River Run ski lift. Lastly, Sun Valley argued that, under Idaho Code section 6-1106, Mr. Milus had assumed the risk of injury while skiing.
The district court granted Sun Valley’s motion for summary judgment in part, holding that the yellow padding on Snow Gun 16 satisfied the duty under section 6-1103(2) to mark snowmaking equipment with a “warning implement.” The district court interpreted section 61103(6) as creating a duty only when snowmaking equipment is actively discharging snow and allowed discovery to take place regarding whether snow was being made on the day of the accident. Following discovery, the district court granted Sun Valley’s renewed motion for summary judgment in full regarding section 6-1103(6), holding that Sun Valley had no duty to place a notice at or near the top of the ski run because no active snowmaking was being undertaken when the accident occurred. The district court held that Milus was unable to establish that Sun Valley breached a duty owed to Mr. Milus and therefore Milus’s claim failed. Having resolved the motion on other grounds, the district court did not rule on Sun Valley’s assumption of risk defense.
Milus timely appealed the final judgment.
Analysis – making sense of the law based on these facts
The Idaho Supreme Court took a very different approach to examining the Ski Area Liability Act. They said the statute creates a list of things a ski resort must do and if they fail to do them, then they are liable. They also stated that although the Ski Area Liability Act says a skier assumes the risk of skiing, that must mean a jury must examine the risks to see if the risk was assumed. Finally, the Court looked at a prior decision and because it was not unanimous it was not valid anymore. The reason being that the majority opinion in Northcutt is only a plurality holding on this issue and is therefore not binding precedent on this Court.
Turning to the doctrine of “stare decisis”—a Latin term that means “let the decision stand” or “to stand by things decided”—is a foundational concept in the American legal system. To put it simply, stare decisis holds that courts and judges should honor “precedent” or the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable and seemingly less random.
Stare decisis is accepted and upheld by all courts across the United States, except for the Idaho Supreme Court. It is mostly unheard of in the gambit of legal opinions that since the prior decision was less than unanimous it did not count. Many decisions, even those issued by the United States Supreme Court, are hardly ever unanimous, and yet there decisions are still precedential in nature.
When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority. In Kimble v. Marvel Enterprises, the U.S. Supreme Court described the rationale behind stare decisis as “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.”
The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adhered to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. A court engages in vertical stare decisis when it applies precedent from a higher court. For example, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis. Or, additionally, if the Federal District Court for the Southern District of New York adhered to a previous ruling by the Second Circuit, that would be vertical stare decisis.
Although courts seldom overrule precedent, the U.S. Supreme Court in Seminole Tribe of Florida v. Florida explained that stare decisis is not an “inexorable command.” When prior decisions are “unworkable or are badly reasoned,” then the Supreme Court may not follow precedent, and this is “particularly true in constitutional cases.” For example, in deciding Brown v. Board of Education, the U.S. Supreme Court explicitly renounced Plessy v. Ferguson, thereby refusing to apply the doctrine of stare decisis.
This change by the Idaho Supreme Court in this case is without precedence and will mean that there is no decision from a multi-panel court a party can rely on unless that decision is unanimous. This will create havoc in the law in Idaho.
The next issue the court addressed is how sections of the Ski Area Liability Act are to be applied:
“See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.”
Every other court has interpreted this statute to mean the ski area operator owes no duty to the skier. So, the Idaho Supreme Court interpreted the statute so that it creates a duty.
“The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, the Court found that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9).”
So, what was a safe harbor for ski areas, is now a list of ways they can be sued as stated as such by the Court.
As a result, the question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” Therefore, the Court further found that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9).
Next, the Court looked at the statute affecting snow-making equipment and the definition of snow-making warning: warning implement. I.C. § 6-1103(2). In this case, Sun Valley had placed yellow padding around the snow-making equipment. As defined by the statute, the lower court held that yellow padding was a warning implement. The Supreme Court did not see it that way and held that whether or not yellow padding constituted a warning implement is a question for the jury.
In its decision, the Court wrote, “We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.”
Now based on a broad definition in the statute, “warning implement”, every case must go to trial so the jury can decide what constitutes a warning implement. This means the cost of insurance for ski areas is going to skyrocket because there is no way to win without a trial, which also means larger settlements.
The next two issues faced by the Court were whether Sun Valley placed a warning notice concerning the snow-making equipment where a skier could see it. The Court first held that the statute required a warning whether snow-making was going on or not.
The Court wrote, “We are persuaded by Milus’s argument that subsection (6) creates a duty to warn skiers at the top of a ski slope or run of snowmaking equipment located further down the slope. Warning skiers of dangerous obstacles on the ski run or slope gives a skier the opportunity to choose a different ski run or to ski in a more cautious manner.”
Then, the Court looked at whether or not Sun Valley had placed a warning and found it had not. Sun Valley supplied affidavits, pictures, and statements showing that the warning was there. The plaintiff supplied an affidavit stating there was no sign. Here, the Court sided with the plaintiff.
As unbalanced as the prior decisions of the Court have been, this one is over the top.
Sun Valley argued that, under the plain language of Idaho Code section 6-1106, Mr. Milus expressly assumed the risk and legal responsibility of an injury that occurred from his participation in the sport of skiing at Sun Valley Ski Resort, including any injury caused by snowmaking equipment. In response, Milus argued that the issue is not appropriately before this Court because it was not sufficiently addressed by the district court. Because the district court determined that Sun Valley had no duty or had fulfilled its duties under section 6-1103(2) and (6), the district court did not rule on the applicability of Idaho Code section 6-1106.
The court took the assumption of the risk defense off the table and stated a skier, skiing in Idaho only assumes the risk if the ski area has met all of its requirements under the act.
For the reasons discussed previously in this opinion, there is a genuine issue of material fact concerning whether the snowmaking equipment was plainly visible or plainly marked in accordance with section 6-1103(2). Because the defense is only available if the equipment was marked in accordance with section 6-1103(2), a jury will have to determine whether the snowmaking equipment met the requirements of that section before Sun Valley may avail itself of this assumption of the risk defense. Therefore, Sun Valley, according to the Court is not entitled to summary judgment under section 6-1106.
Again, every ski injury lawsuit is not going to trial. Only the trier of fact, who is the jury in most cases, can determine if a skier assumed the risk causing his injuries.
So Now What?
Either the Idaho legislature has to re-write the Ski Area Liability Act or Idaho ski areas are going to pay. Once moderately priced lift tickets in Idaho are going to climb to cover the increased cost of signage and insurance.
Look for signs, permanent signs, at the tops of all lifts and runs stating that skiers might encounter snow-making on a slope. Look for larger warning signs and notices around all snow-making equipment, wherever it may be located.
Even more interesting, there are five justices on the Idaho Supreme Court and only four justices agreed with this decision. Does that mean this decision is non-binding?
What a mess.
Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)