981 F. Supp. 2d 936
D. Mont.2013Background
- On Feb. 5, 2012, plaintiff Brian Kopeikin, an experienced skier, was skiing at Moonlight Basin (Montana) and while crossing an unmarked cat track on the Upper Elkhorn run encountered a hidden 50-foot boulder field and was seriously injured.
- Complaint alleges the cat track and boulder field were unnaturally created or caused by Moonlight’s construction/maintenance (rocks placed to line the cat track, some tumbled downhill).
- There were no warnings about the hazard; Kopeikin alleges he had no time to avoid the rocks.
- Moonlight moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing Montana’s skier-responsibility statutes bar recovery for injuries resulting from “inherent dangers and risks of skiing.”
- The court considered statutory text, Montana precedents (Brewer, Mead), and analogous out-of-state cases (Utah, North Dakota, etc.) and treated complaint allegations as true for the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kopeikin’s claim is barred by Montana’s “inherent dangers and risks of skiing” statute | Kopeikin: the cat track and resulting boulder field were unnatural, unnecessary hazards Moonlight could have eliminated or warned about | Moonlight: the injury resulted from an item listed in the statutory definition (e.g., catwalk/terrain modification), so plaintiff assumed the risk and claims must be dismissed | Denied dismissal: at pleading stage facts plausibly allege an unnecessary, man-made hazard and failure to exercise reasonable care, so immunity under the statute is not a bar now |
| Whether statutory categories (natural objects / artificial structures / skier ability) cover this hazard | Kopeikin: hazard was not a natural condition and he skied within his ability | Moonlight: collision with rocks/cat track falls within statutory categories (natural/terrain/structures or skier error) | Court: subparts (d), (e), (i) inapplicable on pleading because complaint alleges the hazard was man-made, not an ordinary listed structure, and plaintiff was experienced and in control |
| Whether subpart (f) (variations in terrain, including catwalks) compels dismissal | Kopeikin: reading (f) mechanically would immunize negligence and conflict with Montana precedents; statutes must be read with duty of reasonable care | Moonlight: (f) expressly lists catwalks/terrain modifications, so injury falls within inherent risks | Court: (f) must be read with operator’s statutory duty of reasonable care; mechanical application would be arbitrary and unconstitutional — factual inquiry required, so dismissal premature |
| Whether motion to dismiss is proper vs. factual inquiry requiring record development | Kopeikin: facts alleged raise disputed issues of negligence, causation, and whether hazard was unnecessary | Moonlight: argues statutory bar supports dismissal now | Court: on Rule 12(b)(6) pleadings are accepted as true; statutory defenses raise factual issues and cannot dispose of the claim at this stage |
Key Cases Cited
- Brewer v. Ski-Lift, Inc., 762 P.2d 226 (Mont. 1988) (state statute immunizing ski operators was overbroad and unconstitutional)
- Mead v. M.S.B., Inc., 872 P.2d 782 (Mont. 1994) (operator’s duties include those consistent with reasonable care; factual questions may preclude summary disposition)
- Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991) (statutory risks must be read with negligence law; distinguished three categories of hazards and recognized unnecessary hazards)
- White v. Deseelhorst, 879 P.2d 1371 (Utah 1994) (unmarked cat track presented a question of fact whether resort exercised reasonable care)
- Wright v. Mt. Mansfield Lift, Inc., 96 F. Supp. 786 (D. Vt. 1951) (early precedent: hidden stump on trail held within inherent risks; operator not required to make all terrain uniformly safe)