Wyoming’s High Court Looks at Inherent Risks of Skiing

Mar 2, 2007

The Supreme Court of Wyoming has addressed questions put before it about the inherent risks of skiing in a case where a skier, who was injured while attempting a jump, claimed a resort should have warned him about a previous incident.
The incident occurred on March 2, 2000 when plaintiff Phillip Rohrman attempted to jump a “table top” jump at Jackson Hole Mountain Resort (JHMR). Rohrman, who claimed to be an experienced skier, alleged that the jump was icier than he expected and that he lost control and could not land the jump. He suffered several breaks in his left arm and injuries to his thoracic spine.
Two days before this accident, another young man, Adam Harshman, died of injuries sustained after taking off from the other side of the same jump. The plaintiff alleged that JHMR had a duty to close the jump or warn of the dangers because they were not inherent risks of the sport.
The high court began its analysis by reviewing the Wyoming Recreational Safety Act (RSA) and a particularly relevant case in its state Muller v. Jackson Hole Mt. Resort, 2006 WY 100, P14, 139 P.3d 1162, 1167 (Wyo. 2006). The court summarized that the facts must be clear that the plaintiff engaged in activity that was an inherent risk of the sport for the court to decide such a case, and not a jury. It then invoked the concept of “reasonableness.”
Elaborating, it wrote that, “We do not expect that all reasonable persons will carry around a complete knowledge of what the ‘inherent risks’ of skiing are. We set out below several statutory sources that may assist in understanding what is intended by the phrase. We do not make reference to these statutes in an effort to construe Wyoming’s statute under the traditional rules of statutory construction. Rather, we view them as a source of evidence to ascertain what the ‘inherent risks of skiing’ are. The central concern here is what ‘reasonable persons’ will view as inherent risks. Definitions of the ‘inherent risks of skiing’ enacted by the legislators of states similarly situated to Wyoming are a potential source of guidance for both trial courts in acting on motions to dismiss/summary judgment, as well as for juries in their deliberations as to what is reasonable under the circumstances of any given case. These statutes are just one of many sources of such evidence, including safety experts and experienced skiers.
“We note as well that there are a significant number of cases that have as their central concern the meaning of “the inherent risks of skiing” (or fill in the blank, e.g., golf, judo, boxing, horseback riding). See, e.g., Yoneda v. Tom, 110 Hawai’i 367, 133 P.3d 796, 801-08 (Hawai’i 2006) (inherent risks of golf, but also collecting cases on a variety of recreational activities); Maddocks v. Whitcomb, 2006 ME 47, PP4-10, 896 A.2d 265, 267-8 (Me. 2006); Barrett v. Mount Brighton, Inc., 474 Mich. 1087, 712 N.W.2d 154 (Mich. 2006); Dunbar v. Jackson Hole Mt. Resort Corp., 392 F.3d 1145, 1151 (10th Cir. 2004); Gwyn v. Loon Mountain Corp., 350 F.3d 212, 215-17 (1st Cir. 2003).
“In Muller we made reference to the applicable Colorado statute and we set it out in detail here:
(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, [**13] stream beds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area as set forth in section 33-44-104(2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.
It went on to review statutes from Colorado, Utah and New Mexico.
“The statutes set out above are a meaningful source of guidance in explaining the ‘inherent risks of skiing’ to any fact finder,” it wrote. “We have not attempted to exhaustively cite all statutes of other states that define or otherwise enlarge upon the ‘inherent risks of skiing’ (the same goes for exhaustively citing pertinent case law). Nothing was intended by citing the statutes of neighboring states, other than that they are neighboring. Statutes from Alaska, Maine, and Oregon may also be of value in revealing what ‘reasonable persons’ have perceived to be the ‘inherent risks of skiing.’ Wyoming does not have any meaningful sources of legislative history and so we cannot ascertain with certainty what exactly was in our legislators’ minds. However, we are comfortable that the definitions set out above are a source of reliable guidance in this regard and that the legislature would quickly respond if it concluded that our reference to the above-cited statutes was inaccurate. Of course, those statutes are not the exclusive source of guidance and the factual variations are, in some senses, infinite.”
Phillip Rohrman v. Jackson Hole Mountain Resort Corporation; S.Ct.Wyoming; No. 05-290, 2006 WY 156; 2006 Wyo. LEXIS 177; 12/19/06
Attorneys of Record: (for appellant) Mikel L. Moore of Christensen, Moore, Cockrell, Cummings & Axelberg, P.C., Kalispell, MT; and James K. Lubing and Carter Wilkinson of Jackson, Wyoming. (for appellee) W. Keith Goody of Alpine, Wyoming; and Robert E. Schroth of Jackson, Wyoming.
The attorney speaks: “Basically, the Supreme Court said that inherent risk was a jury question, except in circumstances where reasonable people cannot disagree. The opinion was not at all helpful to anyone, as far as I am concerned.” (W. Keith Goody)


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