MICHAEL L. ROBERTS; JESSICA E. WAYBRIGHT, Husband & Wife, Plaintiffs - Appellants, v. JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming corporation, Defendant - Appellee.
No. 17-8018
United States Court of Appeals for the Tenth Circuit
March 5, 2018
Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:16-CV-00024-KHR)
Robert E. Schroth, Sr. (Robert E. Schroth, Jr. with him on the briefs), Jackson, Wyoming, appearing for the appellants.
James K. Lubing, Lubing Law Group, LLC (Nathan D. Rectanus with him on the brief), Jackson, Wyoming, appearing for the appellee.
Before BRISCOE, EBEL, and MATHESON, Circuit Judges.
EBEL, Circuit Judge.
In 2014, while skiing an untamed and ungroomed run inside the boundaries of Jackson Hole Ski Resort, Plaintiff Michael Roberts skied into a lightly covered pile of boulders, falling between two of them, and severely injuring himself. He sued
JHMR moved for summary judgment on the basis of the Wyoming Recreation Safety Act (WRSA) which limits a recreational activity provider‘s liability for so-called inherent risks of the activity. The district court granted summary judgment, holding that Roberts‘s injuries were the result of an inherent risk of alpine skiing. Exercising jurisdiction pursuant to
I. BACKGROUND
Located within the boundaries of the world-famous Jackson Hole Ski Resort, Saratoga Bowl is an adventurous skier‘s dream hill. The off-piste1 bowl is dotted with trees, rocks, and vast swaths of open, often-untouched snow that weave throughout these natural obstacles unguided by the ministrations of JHMR‘s tree-cutters.
On February 14, 2014, with this winter paradise rendered even more inviting by roughly a foot of fresh, fluffy, Wyoming powder, Michael Roberts—an experienced skier and ski instructor at his local mountain in California—and four friends headed for the Bowl. Once there, they began to pick their way down the hill, stopping frequently due to the many obstacles and heavy snow. One member of Roberts‘s group, Nick Parsell, was wearing a GoPro video camera on which he
After skiing through the trees at the top of the run, Nick Parsell skied down below the rest of the group so that he could film them skiing toward him. As Parsell stops to look up at his companions, an exposed rock formation is clearly visible off to his left. GoPro video 3:05. The skiers head toward Parsell one-by-one, and Roberts is the second to angle down the mountain. As he passes Parsell, the video shows Roberts taking a sweeping left turn perpendicular to the Bowl‘s fall line. Id. at 3:33. As the camera turns back uphill, a vague commotion can be heard from below.
According to Roberts, as [he] was initiating [his] right hand turn into the fall line, [he] clipped a rock and started to tumble[,] [ultimately] end[ing] up in a hole, up to [his] neck in snow. Aplt. App. at 193. Another member of the group testified that Roberts smashed into a hole between several rocks. Aplt. App. at 315. This same member later clarified that where Roberts fell
there were two very large boulders side by side that there was a – like a crevice in–between them so they were separated. So when he skied – he skied over the – over the top of one of the rocks and then he hit the wall of the second rock and then disappeared down into that crevice. So that was one of the structures. And so see that was where he fell in, but there were a number of other very hazardous deep holes including the one that the ski instructor [who stopped to help] fell down into and we had to pull out, and including the one that I fell [into] when I tried to get within 15 meters of Mr. Roberts at the accident.
Aplt. App. at 312.3
In 2016 Roberts and his wife Jessica Waybright brought this diversity suit, governed by Wyoming law, against JHMR in the District of Wyoming alleging premises liability, personal injury, negligence, negligent training and supervision, and loss of consortium. Following discovery, JHMR moved for summary judgment on the grounds that the Roberts’ claims were barred by the WRSA. The district court granted JHMR‘s motion and the plaintiffs timely appealed.
II. DISCUSSION
We review de novo a district court‘s grant of summary judgment, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
In this diversity suit we apply the substantive law of Wyoming, endeavoring to ascertain and apply state law to reach the result the Wyoming Supreme Court would reach if faced with the same question. Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). To do so we rely foremost on decisions of the Wyoming Supreme Court, and then on other state court decisions, federal decisions, and the general weight and trend of authority. Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002).
A. The Wyoming Recreation Safety Act
This is not the first time we have been asked to evaluate a Wyoming recreational provider‘s liability for injuries arising from participation in a recreational activity. See, e.g., Kovnat v. Xanterra Parks & Resorts, 770 F.3d 949, 955 (10th Cir. 2014); Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145, 1148 (10th Cir. 2004); Cooperman, 214 F.3d at 1162. Liability for personal injuries is ordinarily evaluated through common-law tort doctrine, but in these cases the Wyoming legislature has limited the duty of care owed by recreational providers, including ski resorts, by enacting the WRSA. Dunbar, 392 F.3d at 1148.
[a]ny 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 . . . that results from the inherent risks in that sport or recreational opportunity.
To understand exactly how the WRSA adjusts common-law tort doctrine, it is useful to return to foundational tort principles. The basic elements of a negligence claim are: duty, breach, causation, and damages. See, e.g., Greenwalt v. Ram Restaurant Corp. of Wyo., 71 P.3d 717, 737 (Wyo. 2003) (It is elementary that the traditional elements of a negligence tort claim are duty, breach of duty, proximate cause, and damages.). By codifying the doctrine of primary assumption of the risk, the WRSA targets the first of these elements: duty. See Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995) (Under the clear and unambiguous language of the
The question under the WRSA, then, is whether the damage, injury or death suffered by the plaintiff was the result of an inherent risk of alpine skiing.
a. Inherent Risk
The WRSA defines an inherent risk as those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational activity.
When presented with a motion for summary judgment on the question of whether something qualifies as an inherent risk, then,
[t]he trial court must scrutinize the facts brought forward by the parties with great care. If the court can say that, given that evidence, this is an inherent risk and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it. On the other hand, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder).
Jackson Hole Mountain Resort Corp. v. Rohrman, 150 P.3d 167, 168 (Wyo. 2006).
1) Defining the Risk
Our first task is to define the risk to which Mr. Roberts was exposed. When defining the risk, we are taken to the level of specificity that the facts support.
Understandably, the parties in this case offer dramatically different interpretations of the risk to which Roberts was exposed. Appellants would have us decide whether skiing into a hidden 6-to-8-foot chasm on a marked trail within the ski area boundary is an inherent risk of the sport. Aplt.‘s Br. at 17. JHMR, on the other hand, would prefer we expand our inquiry to whether skiing into an unmarked, snow-covered rock formation, on a black diamond, off-piste ski run, [is] an inherent risk of alpine skiing. Aple.‘s Br. at 29.
On de novo review we supplement these suggestions with our own review of the facts in the record. The only eyewitness to the incident, Craig Parsell, testified that the scene of Roberts‘s injury involved two very large boulders side by side that
A: It was, you know a – a large rock pile, very obviously a rock pile . . . what I remember about it is – I mean, it was very, very difficult for me to even get to him . . . [t]here was a lot of new snow, and it was kind of unconsolidated over the rocks in that area and so it was – you know, the situation where there was a lot of snow but not enough to be supportable so [that] you would just punch through into the void that these – that the large talus field creates with the snow on top of it.
Q: I – describe it as, maybe, 6 to 12 feet, some of the holes?
A: Yes, I would say. . . . I don‘t know how else to describe it other than just a – a – a large pile of large rocks covered with fresh snow that was, you know, a difficult spot. . . . I don‘t really recall a depth right there. I mean, it was – if you can imagine, you know, the boulders the size of – they‘re large, they‘re – varying in size but up to very large and kind of all just stacked and so there would be areas where you could step and it was fine and then right next to it, you‘d put your foot through and there would be, you know, a hole six or eight feet kind of down, wedging into the rocks.
Aplt. App. at 373–74.
While Roberts would prefer we focus solely on the hazard he encountered, the context in which he encountered that obstacle is equally relevant. From our review of the GoPro video it is clear Saratoga Bowl is an untamed area attractive to skiers precisely because it contains natural obstacles and ungroomed terrain. The video depicts a run awash with trees and the occasional visible boulder. In fact, when Nick Parsell stops to look back up at
Accordingly, we define the risk at the level of specificity supported by this record, and ask: Whether encountering boulders, and gaps between them, in changing snow conditions in an off-piste area of a ski resort is an inherent risk of alpine skiing.
2) Evaluating the Risk
The answer to this question may only be decided on summary judgment if no reasonable juror could disagree as to its answer. Rohrman, 150 P.3d at 168 (Wyo.). The relevant case law, however, provides useful guidance for when the inherency of a risk can be decided on summary judgment and when it cannot.
In 1995 the Wyoming Supreme Court considered a case under the predecessor statute to section 1-1-123(a). There, a recreational provider was sued for not providing more supervision for a patron who was mounting a horse. Halpern, 890 P.2d at 566 (Wyo.). At this time, the Wyoming Code defined an inherent risk as any risk that is characteristic of or intrinsic to any sport or recreational opportunity and which cannot be reasonably eliminated, altered, or controlled.
Following this amendment, a critical distinction has emerged in the case law between a provider‘s failure to control inherent risks (which is no longer actionable), and actions that affirmatively enhance existing risks (which remain actionable). For example, in Creel, a spectator standing near the green at a golf tournament was struck by a ball hit by a player on the preceding tee box. 287 P.3d at 731 (Wyo.). The Wyoming Supreme Court agreed with the operator of the golf course that getting struck with a ball was an inherent risk of attending a golf tournament, but still found summary judgment inappropriate. Id. at 738. It reasoned that the question we must answer is whether [the defendant] did anything to increase the risk that Mr. Creel would be hit by a golf ball. Id. The court found that the defendant had increased the risk because an agent of the defendant had encouraged the golfer to hit even though the golfer was worried about hitting into the players and spectators in front of him. Id. at 743.
The court in Creel relied heavily on this Court‘s analysis in Dunbar. In that case, also at Jackson Hole Resort, the plaintiff skied into a terrain park on the mountain intending to investigate the area. 392 F.3d at 1146. The plaintiff ultimately decided she did not want to ski any of the terrain park‘s features, and so
This Court reversed the district court‘s grant of summary judgment for the Resort. Id. at 1153. The Court concluded that whatever risks [the plaintiff] assumed herself, it seems clear that she did not also assume the risk of needing to interpret the delphic statements of Jackson Hole‘s employees. Id. The Court continued: Both Jackson Hole and the district court focus on the issue of choices that Dunbar made, ignoring the choice that Jackson Hole made for her in directing her to exit the terrain park area by either hiking out the main entrance or skiing along the catwalk. Id.
Unlike Dunbar, this case does not involve JHMR affirmatively exacerbating the inherent risks of alpine skiing. Mr. Roberts was not directed to Saratoga Bowl by an employee offering delphic statements about its safety; in fact advanced skiers in search of fresh untracked and unconsolidated powder are attracted to off-piste terrain such as Saratoga Bowl because it is ungroomed, untamed, and provided the types of natural obstacles that distinguish such runs from those frequented by less talented skiers. Aplt. App. at 205. Perhaps Roberts may not have expected to encounter the type of gap into which he fell, but we cannot ignore the nature of the run on which he encountered it and the inherent risks that run presents. See
3) Expert Testimony
We recognize, however, that whether something qualifies as an inherent risk under the WRSA is generally a question for the jury. Beckwith, 277 P.3d at 722 (Wyo.). We have, in the past, affirmed summary judgment for recreational providers, see, e.g., Kovnat, 770 F.3d at 958–59, but doing so is only appropriate when reasonable persons could only conclude that an injury or death was caused by an inherent risk. Beckwith, 277 P.3d at 722 (Wyo.).
The district court held that while it may be unusual and extremely dangerous, . . . it is clear the possibility of being injured or encountering natural occurring hazards associated with rocks and rock formations are inseparably intertwined with and intrinsic to alpine skiing. Dist. Ct. Order at 11–12. While we generally agree with this statement, we need to address the fact that plaintiff offers expert testimony that reaches the opposite conclusion. Aplt. App. at 269–74 (Expert Report of Larry Heywood).
In reviewing Mr. Heywood‘s report, however, we believe his conclusions put the cart before the horse. He extensively addresses the historical practice of the
These observations are inapposite. As detailed above, the WRSA is crystal clear that if a hazard is an inherent risk of alpine skiing, JHMR is under no obligation to warn Mr. Roberts of its existence.
Expert testimony may, in some instances, be particularly persuasive on the issue of inherent risk in the WRSA context. For example, in Sapone v. Grand Targhee, Inc., a six-year-old rider had fallen from a horse when the horse suddenly bolted down the trail. 308 F.3d 1096, 1098 (10th Cir. 2002). The Court acknowledged that it is an inherent risk that a horse might bolt, but also that Cooperman required it to address the question in greater specificity. Id. at 1104. There, expert testimony that the provider had offered inadequate instructions, too large of a horse, and poor headgear was relevant in assessing whether the particular risk to which this plaintiff was exposed as a result of the provider‘s activity was inherent in the activity of horseback riding. Id.; see also Dunbar, 392 F.3d at 1153 (We have made clear that a duty of care may arise from choices made for the participant by the recreation provider.).
But where, as here, the provider did nothing to exacerbate the inherent risk posed by the hazard, conclusory expert testimony is not itself enough to preclude summary judgment. Mr. Heywood‘s testimony contains no analysis about the inherent risk of encountering covered boulders on off-piste trails, or whether this
Accordingly, we AFFIRM the district court‘s grant of summary judgment in favor of JHMR on the basis of the WRSA.
B. The Forest Service Contract
Appellants argue in the alternative that even if JHMR did not owe Roberts a duty pursuant to the WRSA, the Resort‘s contract with the United States Forest Service (USFS) obligated it to assume a higher duty of care than the statutory requirement. Aplt.‘s Br. at 30.
JHMR, like many ski resorts, has a permit from the USFS to operate a ski resort on National Forest Land. As a condition of this permit, JHMR is required to submit a Winter Operating Plan (WOP) to the USFS for approval, and that WOP incorporates by reference the JHMR ski patrol manual. Appellants note that the manual contains an express requirement that [u]nusual hazards on ski trails will be marked by members of the Ski Patrol. Aplt. App. at 491. Their argument, then, while far from clear, seems to be that this manual, as incorporated into JHMR‘s contract with the USFS, establishes JHMR‘s liability with regard to Roberts‘s injuries.8
On one hand, it almost sounds as if Appellants are now trying to advance a contract claim under the theory that they are a third-party beneficiary of JHMR‘s contract with the USFS, and that JHMR breached that contract by failing to adhere to the letter of their ski patrol manual. It would be improper for us to consider such a claim, however, because the Complaint sounded in tort, rather than contract, law. See Aplt. App. at 1-9. Furthermore, if we were to consider a contract claim arising from JHMR‘s contract with the USFS, nothing in that agreement establishes a private right of action. Perhaps, if JHMR violated the terms of its agreement with the USFS by not marking this hazard then the USFS could revoke JHMR‘s permit or seek other remedies under the contract, but that is not the case before us today.
To the extent, however, that Appellants rely on the USFS contract to establish a standard of care in their tort action, that argument too must fail. As we have discussed at length above, the question of whether a recreational provider met the applicable standard of care is only relevant if we first determine the existence of a duty. Because we conclude that, under the WRSA, JHMR owes no duty to Appellants to mark hazards such as the one into which Roberts fell, we have no occasion to determine whether the USFS contract imposes a standard of care beyond mere negligence.
Finally, even if the contract did impose a heightened duty, the manual itself expressly disclaims any reliance on its language that [u]nusual hazards . . . will be
III. CONCLUSION
When Mr. Roberts entered Saratoga Bowl on February 14, 2014, he expected to find steep terrain, natural obstacles, and untouched powder. We accept that he did not expect to encounter the particular hole or void between rocks into which he ultimately fell and injured himself. But under the WRSA when a tragic accident—regardless how severe the consequences—is the result of an inherent risk of alpine skiing, recreational providers are immune from liability. When a skier drops into an off-piste run littered with visible obstacles including trees and rocks, it is an inherent
Notes
214 F.3d at 1167.For example, if the only fact presented to the court is that the horse bucked while the rider was properly sitting on the horse, we would frame the duty question as whether a bucking horse is an inherent risk of horseback riding. However, if the facts established that the owner of the horse lit firecrackers next to the horse and the horse bucked, we would ask whether a horse bucking when firecrackers are lit next to the horse is an inherent risk of horseback riding.