Donovan v. Sutton , 2021 UT 58 ( 2021 )

2021 UT 58IN THE
SUPREME COURT OF THE STATE OF UTAH
STEPHANIE DONOVAN,
Petitioner,
v.
DWIGHT SUTTON and S.S., a person under eighteen years of age,
Respondents.
No. 20190914
Heard March 8, 2021
Filed September 30, 2021
On Certiorari to the Utah Court of Appeals
Third District, Silver Summit
The Honorable Kara L. Pettit
No. 160500459
Attorneys:
Judson D. Burton, W. Alexander Evans, Murray, for petitioner
Gary T. Wight, Jeremy R. Speckhals, Salt Lake City,
for respondents
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 This case arose after a nine-year-old beginner skier
collided with a woman on the “First Time” ski run in Park City.
The woman sued the child and her parents, asserting claims for,
among other things, negligence and negligent supervision. The
district court granted summary judgment in favor of the child and
her parents, and the court of appeals affirmed. The case is now
before us on certiorari. We are asked to determine first, whether
the child was negligent when she collided with the woman, and
DONOVAN V. SUTTON
Opinion of the Court
second, whether the child’s father negligently supervised the
child.
¶2 As a matter of first impression, we hold that the
applicable standard of care is simply that a person has a duty to
exercise reasonable care while skiing. We conclude that under the
circumstances here, the child was not negligent, and her father
did not negligently supervise her. We affirm.
BACKGROUND1
¶3 On a clear day in Park City on slopes of packed powder,
Dwight Sutton took his family skiing at Park City Mountain
Resort. Shortly before the resort closed for the day, the family took
a final run on “First Time,” “a green bunny hill for new skiers.”
Mr. Sutton’s wife and youngest daughter skied to the bottom of
the run, while Mr. Sutton remained with S.S., the couple’s nine-
year-old daughter. Mr. Sutton and S.S. (collectively, the Suttons)
went down the run together, with Mr. Sutton skiing backwards so
he could monitor S.S. They were moving slowly because S.S. was
“fearful” and skiing cautiously, despite having had ski lessons the
year before and “informal lessons” on the current trip.
¶4 S.S. was skiing in a “wedge,” a common maneuver taught
to beginner skiers to help them slow down, with the front tips of
her skis together. She was traveling at approximately five miles
per hour when she suddenly lost control and came out of the
wedge. Although S.S. tried to “get back into” the wedge to slow
down, she could not regain control and instead “just kind of
straightened out.” This caused her to accelerate past her father
and collide with Stephanie Donovan. Ms. Donovan had stopped
“just right of center” on the run to take a photograph of her
husband and daughter. As Ms. Donovan was putting her camera
away, she heard S.S. scream “look out!” But Ms. Donovan did not
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1 “In reviewing the evidence before the court on summary
judgment, the ‘facts and all reasonable inferences drawn
therefrom [are viewed] in the light most favorable to the
nonmoving party.’” Nixon v. Clay, 2019 UT 32, ¶ 34, 449 P.3d 11(alteration in original) (citation omitted). We recite the facts
accordingly and note that the parties agree that the material facts
are undisputed.
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have time to react, and S.S. crashed into her from behind. Ms.
Donovan suffered injuries to her arm and shoulder.
¶5 Ms. Donovan sued S.S. for negligence and Mr. Sutton2 for
negligent supervision of his daughter.3 Ms. Donovan alleged S.S.
breached a duty of care because she “failed to pay attention to her
speed, failed to maintain a proper lookout for other skiers, [and]
skied out of control and beyond her abilities.” And Ms. Donovan
alleged Mr. Sutton breached his “duty and obligation to properly
train and supervise [S.S.] . . . to avoid collisions with other skiers.”
¶6 At the close of discovery, the Suttons moved for
summary judgment. In their motion, the Suttons relied on the
court of appeals’ decision in Ricci v. Schoultz, in which the court
held that a skier owes “a duty to other skiers to ski reasonably
and within control,” but “an inadvertent fall on a ski slope, alone,
does not constitute a breach of this duty.” 963 P.2d 784, 786 (Utah
Ct. App. 1998). The Suttons argued that S.S. was skiing cautiously
before she suddenly lost control and collided with Ms. Donovan,
and she attempted to warn Ms. Donovan of the impending
collision. The Suttons asserted that the collision was simply an
accident that occurred absent any negligence on S.S.’s part.
Further, recognizing that children in negligence actions are
judged by a different standard of care than adults, the Suttons
argued it was “not unreasonable for a 9-year-old beginner to be
frightened, lose control, and fall, even under good ski conditions,”
and that S.S. was not “skiing unreasonably for her age or for the
conditions.”
¶7 As to the negligent supervision claim, the Suttons argued
that Mr. Sutton’s supervision of S.S. was “reasonable” because S.S.
had professional lessons the year before, her parents “took [S.S.]
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2 Ms. Donovan also sued S.S.’s mother, but the district court
granted summary judgment in the mother’s favor and the court of
appeals affirmed. Donovan v. Sutton, 2019 UT App 161, ¶ 32, 452
P.3d 1189. Ms. Donovan does not claim error on certiorari with
respect to the claim against S.S.’s mother.
3 Ms. Donovan also alleged S.S.’s parents were vicariously
liable for S.S.’s negligence, but that claim was dismissed by the
district court and is not at issue before us.
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DONOVAN V. SUTTON
Opinion of the Court
to the ‘magic carpet’ area of the mountain to warm up,”4 she was
skiing on a beginner run at the time of the collision, and she gave
Mr. Sutton “no indication that she was tired, sore, or that she
could not otherwise continue to ski.” Additionally, the Suttons
argued that S.S. was never unattended and that Mr. Sutton “had
no reason to take more steps than he was taking to supervise” her.
¶8 Ms. Donovan opposed summary judgment, arguing that
Ricci was not applicable in this case and that in any event, there
was additional evidence of negligence beyond the fall itself. Ms.
Donovan asserted that the evidence showed S.S. was “out of
control”; “ignored instructions given by her father as to how to
slow down”; and violated provisions of Park City Resort’s Skier
Responsibility Code, rules of conduct from the International Ski
Federation, and Park City’s Municipal Code. Ms. Donovan argued
that S.S.’s breach of these guidelines amounted to negligence.
¶9 Ms. Donovan also argued that Mr. Sutton had negligently
supervised S.S. because: he was aware that S.S. was not only
inexperienced, but also “fearful of skiing”; it was the end of the
day, so he should have known S.S. was getting tired and “skiing
in a sloppy fashion”; his attempts to instruct S.S. were “feeble”;
and he was skiing in close proximity to S.S., so he should have
intervened to thwart the collision or warned Ms. Donovan of the
imminent crash.
¶10 The district court granted summary judgment in favor of
the Suttons. The court determined that “the only thing that the
evidence showed . . . is that [S.S.] as a nine-year-old beginner
skier, was not able to maintain her wedge . . . and then fell,”
which did not amount to a failure to use reasonable care under
the Ricci standard. The court elaborated that S.S. “inadvertently”
losing her wedge “caused her to start going faster, lean back and
fall,” and then collide with Ms. Donovan, which “simply do[es]
not state a claim for negligence.”
¶11 The district court also concluded that the undisputed
facts failed to establish that Mr. Sutton negligently supervised his
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4 A magic carpet is a conveyor belt designed to move beginner
skiers. Rita Wold, Denver’s Magic Carpet, Maker of Ski Lifts, Takes
Off, DENVER POST (May 5, 2016, 10:41 AM),
https://www.denverpost.com/2010/10/03/denvers-magic-
carpet-maker-of-ski-lifts-takes-off.
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daughter. The court noted that S.S. took ski lessons the year
before, Mr. Sutton gave her instructions about how to slow down,
and that he “taught her to fall . . . if she felt like she was losing
control.” Further, the court said it was not “a reasonable inference
that [Mr. Sutton] had some obligation to grab [S.S.,] and the facts
[did not] really show that he had time to do that.”
¶12 Ms. Donovan appealed, arguing the district court erred in
(1) its interpretation of Ricci, Donovan v. Sutton, 2019 UT App 161,
¶ 14, 452 P.3d 1189, (2) ruling that there was no evidence that S.S.
was skiing negligently other than the collision itself, id. ¶ 22, and
(3) determining that the evidence did not establish negligent
supervision, id. ¶ 27. The court of appeals affirmed, holding
(1) Ricci applied to the case, id. ¶ 21; (2) no evidence existed to
establish proof of negligence outside of the collision itself, id. ¶ 26;
and (3) the record did not support a finding of negligent
supervision, id. ¶ 31.
¶13 We granted Ms. Donovan’s petition for certiorari. The
question before us is whether the court of appeals erred in
affirming the district court’s grant of summary judgment on Ms.
Donovan’s negligence claim against S.S. and her negligent
supervision claim against Mr. Sutton.
¶14 We exercise jurisdiction under Utah Code section 78A-3-
102(3)(a).
STANDARD OF REVIEW
¶15 “On certiorari, this court reviews the decision of the court
of appeals for correctness, giving no deference to its conclusions
of law.” State v. Marquina, 2020 UT 66, ¶ 24, 478 P.3d 37 (citation
omitted).
ANALYSIS
¶16 Summary judgment shall be granted when “there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.” UTAH R. CIV. P. 56(a). In
a negligence action, summary judgment is appropriate “only in
the clearest [of] instances,” although “[b]are allegations of
negligence unsupported by facts . . . are insufficient to withstand a
motion for summary judgment.” Dwiggins v. Morgan Jewelers, 811
P.2d 182, 183 (Utah 1991). The parties agree there are no disputes
of material fact here, although they disagree upon what inferences
can be drawn from the undisputed facts.
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DONOVAN V. SUTTON
Opinion of the Court
I. THE NEGLIGENCE CLAIM AGAINST S.S.
¶17 We first address Ms. Donovan’s negligence claim against
S.S. To maintain such a claim, the “plaintiff must establish that
(1) defendant owed plaintiff a duty of care, (2) defendant
breached that duty, and . . . (3) the breach was the proximate
cause of (4) plaintiff’s injuries or damages.” B.R. ex rel. Jeffs v. West,
2012 UT 11, ¶ 5 n.2, 275 P.3d 228. We first articulate the standard
of care owed by a skier to others in the vicinity and then explain
that the undisputed facts do not establish S.S. breached that
standard.
A. The Applicable Standard of Care
¶18 S.S. does not dispute that while skiing, she owed a duty
of care to those around her.5 Ms. Donovan argues that the Park
City Municipal Code creates the applicable duty of care here. The
Code proscribes skiing or snowboarding “in a reckless or
negligent manner so as to endanger the life, limb, or property of
any person” and places the primary duty on the uphill skier or
snowboarder “to avoid collision with any person or object below
him.” PARK CITY, UTAH, MUN. CODE § 8-2-8(B). A plaintiff
asserting that a statute or ordinance establishes the applicable
standard of care in a tort claim must demonstrate “that the purpose
of the statute [or ordinance] was to protect a class of persons of
which [the plaintiff in the case] is a member and to protect [such
plaintiff] against injury or death resulting from the kind of harm
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5 The Suttons argue that our opinion in Nixon v. Clay, 2019 UT
32, 449 P.3d 11, fully disposes of this case. In Nixon, we held that
“voluntary participants in a sport cannot be held liable for injuries
arising out of any contact that is ‘inherent’ in the sport.” Id. ¶ 21.
In other words, “there is no duty to lower or eliminate risks that
are inherent in an activity.” Id. We decline to apply Nixon here.
First, Nixon was issued after this case was submitted on oral
argument to the court of appeals, so the Suttons did not have the
opportunity to present this argument to the district court or the
court of appeals. Donovan v. Sutton, 2019 UT App 161, ¶ 20 n.4,
452 P.3d 1189. Second, the arguments in the prior proceedings
focused on whether Ms. Donovan had established that S.S.
breached the applicable duty of care. But Nixon’s focus is whether
a duty applies at all. 2019 UT 32, ¶¶ 10, 39. Because the parties
neither briefed nor argued this point, we do not apply Nixon here.
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contemplated by the legislature.” Colosimo v. Gateway Cmty.
Church, 2018 UT 26, ¶ 45, 424 P.3d 866 (alterations in original)
(citations omitted) (internal quotation marks omitted). Further, a
plaintiff must show that “the ordinance was intended to protect
persons in the plaintiff’s shoes from the type of harm that befell
the plaintiff.” Id.¶19 But Ms. Donovan did not preserve this issue in the
district court. And she inadequately briefed the issue in the court
of appeals. Accordingly, we decline to address it here.
¶20 To preserve an issue for appeal, a party must give the
district court an opportunity to rule on it. “To provide the court
with this opportunity, the issue must be specifically raised [by the
party asserting error], in a timely manner, and must be supported
by evidence and relevant legal authority.” State v. Johnson, 2017
UT 76, ¶ 15, 416 P.3d 443 (alteration in original) (citations omitted)
(internal quotation marks omitted). Although Ms. Donovan
attempts to couch this as merely an argument within the overall
issue of S.S.’s negligence, she is advancing a new legal theory (that
Park City’s ordinance imposes the applicable duty of care), so it
must have been both preserved in the district court and
adequately presented to the court of appeals. See id. ¶ 14 n.2
(explaining that new arguments such as “citing new authority or
cases supporting an issue” need not be preserved but new legal
theories, which amount to “entirely new issues,” are subject to our
preservation requirements).
¶21 Ms. Donovan did neither. In her brief in opposition to
summary judgment in the district court, Ms. Donovan did not
provide a legal basis for adopting the Park City ordinance as the
applicable standard of care. She did quote the relevant section of
the code in full (in addition to the ski resort’s Skier Responsibility
Code and rules from the International Ski Federation). And she
stated that “[S.S.]’s failure to control her speed and failure to
maintain control is a breach of these guidelines and standards
applicable to skiing and hence she was negligent.” But at no point
did Ms. Donovan provide any analysis or identify any relevant
legal authority, e.g., Colosimo, 2018 UT 26, ¶ 45, in support of her
assertion.
¶22 And we agree with the court of appeals that Ms.
Donovan also inadequately briefed this issue in that court.
Donovan, 2019 UT App 161, ¶ 25 (noting “Donovan only cursorily
grapples with th[e] ‘preliminary question of whether the
legislative standard imposes a duty recognizable in tort,’” and
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DONOVAN V. SUTTON
Opinion of the Court
determining she failed to meet “her burden of persuasion on this
subject” (citation omitted)).
¶23 Accordingly, we reject Ms. Donovan’s invitation to use
the Park City ordinance as the applicable standard of care. To be
clear, we do not foreclose a future argument that a local ordinance
or statute imposes a duty of care on skiers. We simply do not
reach the argument here, because it was not properly preserved.
¶24 The district court and the court of appeals concluded that
a court of appeals case, Ricci v. Schoultz, 963 P.2d 784 (Utah Ct.
App. 1998), established the applicable standard of care here. In
Ricci, Schoultz, a downhill skier, unexpectedly lost control and
collided with Ricci, an uphill skier. Id. at 785. Ricci was injured
and sued Schoultz for negligence, arguing “that since Schoultz’s
fall took place on one of the easiest runs . . . under near perfect
conditions, there was no possible reason for Schoultz to have
fallen except for his own negligence.” Id. Despite the jury finding
for Ricci, the district court entered judgment notwithstanding the
verdict. Id. On appeal, the court of appeals affirmed and held that
a skier has “a duty to other skiers to ski reasonably and within
control,” but that “an inadvertent fall on a ski slope, alone, does
not constitute a breach of this duty.” Id. at 786. Because “Ricci
failed to introduce any competent evidence that Schoultz was
skiing negligently before his sudden and unexpected fall,” the
court determined the claim failed. Id.¶25 We have not previously articulated the standard of care
for skiers. We hold today that the applicable standard of care is a
somewhat streamlined version of the one articulated by the court
of appeals in Ricci: it is simply that a person has a duty to exercise
reasonable care while skiing.
¶26 Here, the skier was a nine-year-old child. When a child is
accused of negligence, the standard of care is measured by “that
degree of care which ordinarily would be observed by children of
the same age, intelligence and experience under similar
circumstances.” Donohue v. Rolando, 400 P.2d 12, 14 (Utah 1965)
(citation omitted).
¶27 Accordingly, S.S. had a duty to exercise reasonable care
while she was skiing. The standard of care required of her is
measured by the degree of care that ordinarily would be observed
by a nine-year-old child of the same intelligence and experience
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under similar circumstances. There is no evidence in the record
concerning S.S.’s intelligence, so we do not consider this factor.6
Otherwise, the record shows that S.S. was a beginner skier who
had taken a professional ski lesson the year before and was being
informally instructed by her father on a beginner ski run in
normal conditions.
B. Breach of the Duty of Care
¶28 Once the applicable duty of care has been established, the
inquiry moves to whether the defendant breached that duty.
Breach of duty is “determined on a case-specific basis,” Jeffs, 2012
UT 11, ¶ 25, generally by the fact finder. And summary judgment
is appropriate only where “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.” UTAH R. CIV. P. 56(a). The court of appeals
affirmed the district court’s grant of summary judgment,
concluding that this is a case “in which no reasonable jury could
find S.S. negligent,” Donovan, 2019 UT App 161, ¶ 9 n.3, even
when viewing the undisputed facts in the light most favorable to
Ms. Donovan as the nonmoving party, id. ¶ 26.
¶29 We agree with the court of appeals that the undisputed
facts here simply do not establish that S.S. breached her duty to
ski with reasonable care. Those facts are that S.S., a nine-year-old
beginner skier, was skiing slowly in a wedge on a green run for
beginner skiers. She inadvertently lost control, and her legs came
out of the wedge position. S.S. tried to “get back into the wedge,”
but she was unable to do so. Instead, she “just kind of
straightened out,” which caused her to accelerate down the
mountain. Ms. Donovan had stopped on the run, just right of
center, to take photos. When S.S. saw Ms. Donovan, she shouted a
warning. But Ms. Donovan did not have enough time to get out of
the way. S.S. collided into Ms. Donovan from behind, and Ms.
Donovan was injured.
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6 We have said, in considering the contributory negligence of a
child under fourteen, that “the question hinges on a number of
factors such as age, intelligence, experience, and education of the
child, which cannot be determined in a vacuum, but must be related
to the child itself.” Carr v. Bradshaw Chevrolet Co., 464 P.2d 580, 581
(Utah 1970) (emphasis added). Thus, the significance of each
factor will vary from case to case and child to child.
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Opinion of the Court
¶30 Ms. Donovan argues that she has demonstrated a breach
of duty because, despite S.S.’s formal and informal ski lessons,
“S.S. did not attempt to draw upon th[at] experience in a timely
manner, even where the circumstances permitted her to do so.”
(Emphasis omitted.) But these are merely conclusory assertions,
not reasonable inferences. S.S. was skiing cautiously at a slow
speed, under the supervision of her father on a beginner run,
when she inadvertently lost control. Ms. Donovan has not
identified any conduct by S.S. that departed from her duty to ski
reasonably, other than the fact of her loss of control itself. This is
insufficient.
¶31 To be clear, we do not establish a categorical rule that an
inadvertent fall, by itself, can never establish negligence. And we
overturn Ricci to the extent that it established such a rule. See Ricci,
963 P.2d at 786–87. While it is difficult to imagine the factual
scenario, we leave open such a possibility. But Ms. Donovan has
not produced evidence that is sufficient to place negligence in
dispute here. The court of appeals correctly affirmed the district
court’s grant of summary judgment on this claim.
II. THE NEGLIGENT SUPERVISION CLAIM AGAINST MR.
SUTTON
¶32 We now turn to Ms. Donovan’s negligent supervision
claim against Mr. Sutton. At both parties’ request, the court of
appeals applied the standard for negligent supervision articulated
in section 316 of the Second Restatement of Torts, although it
stopped short of adopting the Restatement standard. See Donovan
v. Sutton, 2019 UT App 161, ¶¶ 29, 31, 452 P.3d 1189. And it
affirmed the district court’s grant of summary judgment on Ms.
Donovan’s negligent supervision claim. Id. ¶ 32.
¶33 We have yet to articulate a standard for claims of
negligent supervision, and Ms. Donovan urges us to adopt section
316. But she has not carried her burden of persuading us that
section 316 applies here even if we decided to adopt it. So we do
not resolve whether to adopt section 316 in this case, and we
affirm the court of appeals’ rejection of Ms. Donovan’s negligent
supervision claim.
¶34 In general, parents are not liable for the torts of their
children. See 59 AM. JUR. 2D Parent & Child § 88 (2021) (“At
common law, the mere fact of paternity or maternity does not
make a parent liable for the torts of his or her minor child.”). But
the Restatement recognizes a distinct tort of negligent parental
supervision, in which a parent’s failure to adequately supervise
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and control a child can lead to liability for the parent. See, e.g.,
Keener v. Hribal, 351 F. Supp. 3d 956, 965 (W.D. Pa. 2018)
(explaining that liability is imposed “where negligence on the part
of the parents makes the injury possible” (citation omitted)).
Under section 316,
A parent is under a duty to exercise reasonable care
so to control his [or her] minor child as to prevent it
from intentionally harming others or from so
conducting itself as to create an unreasonable risk of
bodily harm to them, if the parent
(a) knows or has reason to know that he [or she] has
the ability to control his [or her] child, and
(b) knows or should know of the necessity and
opportunity for exercising such control.
RESTATEMENT (SECOND) OF TORTS § 316 (AM. L. INST. 1965).
¶35 Ms. Donovan asserts that Mr. Sutton was negligent in his
supervision of S.S. on the ski slope because he (1) knew S.S. was
tired yet kept her on the ski run and even encouraged her to
speed up; (2) knew S.S., as a beginner skier, was fearful and prone
to falling; and (3) was skiing backward, watching S.S., instead of
watching out for downhill skiers.
¶36 But under section 316, before we consider what Mr.
Sutton knew or should have known, Ms. Donovan must show
that S.S. either intentionally harmed another or conducted herself
in a way that created “an unreasonable risk of bodily harm” to
another. Id. (emphasis added). Ms. Donovan does not claim that
S.S. intentionally collided with her. So Ms. Donovan bears the
burden of showing that a reasonable jury could conclude that a
child who accidentally fell while learning to ski on a beginner ski
slope was conducting herself in a manner that posed “an
unreasonable risk of bodily harm” to others. Id.
¶37 Ms. Donovan has not met this burden. She has not
provided us with any analysis or argument as to what
“unreasonable risk of bodily harm” means or why S.S.’s behavior
falls within it. And we did not find—nor did Ms. Donovan point
us to—any case in which section 316 was invoked after a child
accidentally injured a third party while under the tutelage of her
parent. To the contrary, most cases in which section 316 has been
applied involve egregious behavior. See, e.g., Dinsmore-Poff v.
Alvord, 972 P.2d 978 (Alaska 1999) (seventeen-year-old shot and
killed two people); Blitz v. Lovejoy, 2016 WL 7975766 (Conn. Super.
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DONOVAN V. SUTTON
Opinion of the Court
Ct. Dec. 13, 2016) (child set fire to private property); Nielsen v.
Spencer, 704 N.W.2d 390 (Wis. Ct. App. 2005) (teenager hit another
teenager over the head with a metal rod); Sinsel v. Olsen, 777
N.W.2d 54 (Neb. 2009) (teenager threw fireworks at a group of
people); Gritzner v. Michael R., 611 N.W.2d 906 (Wis. 2000) (child
sexually abused another child); Nieuwendorp v. Am. Fam. Ins. Co.,
529 N.W.2d 594 (Wis. 1995) (child pulled a teacher’s hair, causing
a herniated disc).
¶38 Instead, Ms. Donovan sidesteps Mr. Sutton’s argument
that he cannot be liable for negligent supervision because S.S.
engaged in no conduct creating an unreasonable risk of bodily
harm for him to prevent. Ms. Donovan responds that “[a] parent’s
duty . . . does not spring into existence only when a child poses an
unreasonable risk.” Rather, Ms. Donovan argues, section 316
“runs ahead of this eventuality, obligating the parent ‘to exercise
reasonable care so to control his minor child to prevent’” the child
from intentionally causing harm or creating an unreasonable risk
of bodily harm to others. (Citation omitted.)
¶39 But Ms. Donovan’s response does not dispose of Mr.
Sutton’s argument. Before a parent can be liable for negligently
supervising a child under section 316, the child must have
engaged in some sort of intentionally harmful conduct or conduct
creating an unreasonable risk of bodily injury that the parent
failed to prevent. And Ms. Donovan has made no legal argument
as to why S.S.’s behavior created an “unreasonable risk of bodily
harm” as contemplated by section 316.
¶40 Accordingly, in asking us to adopt section 316, Ms.
Donovan has not carried her burden of showing that the conduct
here even implicates the tort established in that section. We thus
need not consider whether to adopt section 316, as Ms. Donovan
has failed to show that the section’s articulation of the tort of
negligent supervision would be applicable in this case even if we
were to do so.
CONCLUSION
¶41 We hold that a person has a duty to exercise reasonable
care while skiing. And a nine-year-old beginner skier on a
beginner ski run is held to the standard of care commensurate
with children of the same age, experience, and intelligence under
similar circumstances. Here, Ms. Donovan failed to establish a
dispute of fact as to whether S.S. breached her duty to exercise
reasonable care while she skied down “First Time.” Further, Ms.
Donovan has failed to persuade us that the facts here implicate
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section 316 of the Second Restatement of Torts, even if we were to
adopt it. So we leave that question for another day.
¶42 We affirm.
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