Rutherford Ex Rel. Rutherford v. Talisker Canyons Finance Co. , 767 Utah Adv. Rep. 41 ( 2014 )

2014 UT App 190_________________________________________________________
THE UTAH COURT OF APPEALS
PHILIP RUTHERFORD AND WENDY RUTHERFORD , ON BEHALF OF
THEIR MINOR CHILD , LEVI RUTHERFORD ,
Plaintiffs and Appellees,
v.
TALISKER CANYONS FINANCE CO ., LLC AND ASC UTAH , LLC,
Defendants and Appellants.
Opinion
No. 20120990-CA
Filed August 14, 2014
Third District Court, Silver Summit Department
The Honorable Todd M. Shaughnessy
No. 100500564
Eric P. Lee, M. Alex Natt, Elizabeth Butler, and
Timothy C. Houpt, Attorneys for Appellants
David A. Cutt, Attorney for Appellees
JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
DAVIS, Judge:
¶1 Talisker Canyons Finance Co., LLC and ASC Utah, LLC
(collectively, the Ski Resort) bring this interlocutory appeal
challenging the trial court’s denial of their motion for summary
judgment and the trial court’s grant of partial summary judgment
in favor of Philip and Wendy Rutherford, on behalf of their minor
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
Rutherford v. Talisker Canyons Finance
child, Levi Rutherford (collectively, the Rutherfords). We affirm in
part, vacate in part, and remand for further proceedings in
accordance with this decision.
BACKGROUND
¶2 In 2010, ten-year-old Levi Rutherford was a member of the
Summit Ski Team, a ski racing club that is affiliated with the United
States Ski and Snowboard Association (the USSA). The Ski Team
trained primarily at the Canyons, a ski resort near Park City, Utah,
with the resort’s permission and subject to the resort’s requirement
that the Ski Team carry liability insurance. The Ski Team’s liability
insurance was provided through its affiliation with USSA. All
Summit Ski Team participants were required to become USSA
members, and USSA membership required applicants to execute a
release indemnifying USSA from any injury the individual may
suffer in connection with his participation in USSA-associated
activities, regardless of USSA’s negligence. Because of Levi’s age,
his father, Philip Rutherford, executed the release on Levi’s behalf.
In that agreement, the term “USSA” is defined as including, inter
alia, local ski clubs and ski and snowboard facility operators.
¶3 On January 15, 2010, Levi and his seven-year-old brother
were at the Canyons to attend a Ski Team race-training session. The
brothers rode a chairlift that carried them along the length of the
“Retreat” ski run where the Ski Team was setting up for practice.
Snowmaking machines along the Retreat run were actively making
snow at this time. After exiting the chairlift, Levi and his brother
skied down Retreat.2 Levi skied down the slope maintaining a
racing stance and without making any turns. Near the bottom of
the run, Levi fell when he collided with a mound of man-made
snow that was of a different and wetter consistency than other
snow on the run. Levi sustained injuries as a result of his fall.
2. It is unclear whether the Ski Team coaches instructed Levi and
his brother to take a warm-up run down Retreat or whether the
brothers did so of their own accord. See infra note 7.
20120990-CA 2 2014 UT App 190Rutherford v. Talisker Canyons Finance
¶4 The Rutherfords filed a complaint against the Ski Resort and
the Ski Team, seeking damages for Levi’s injuries, which they claim
were caused by the defendants’ negligence. As against the Ski
Resort specifically, the Rutherfords alleged that the machine that
produced the snow mound was not functioning properly, that the
Ski Resort could have warned patrons of the hazard by marking
the mound or closing the trail, and that the Ski Resort did not
adequately monitor the snowmaking taking place on the Retreat
run that day.
¶5 The parties filed several motions for summary judgment.
The Ski Team submitted motions for summary judgment on the
basis that Utah’s Inherent Risks of Skiing Act (the Act) precluded
the Rutherfords’ claims against it because Levi was indisputably
injured when he crashed into a mound of machine-made snow, an
inherent risk of skiing for which ski-area operators are exempted
from liability under the Act. See generally Utah Code Ann. §§ 78B-4-
401 to -404 (LexisNexis 2012) (Inherent Risks of Skiing Act); id.
§ 78B-4-402(1)(b) (machine-made snow exemption). The Ski Team
also contended that it had no duty to protect Levi from a risk
inherent to skiing and that it otherwise did not owe him a general
duty of care as alleged by the Rutherfords. The Ski Resort joined in
the Ski Team’s motions, specifically arguing that the Act exempts
the Ski Resort, as a ski-area operator, from any duty to protect Levi
from the inherent risk of skiing posed by the mound of machine-
made snow. The Ski Resort did not argue that any of the Act’s
exemptions other than the machine-made snow exemption applied
in this case. The Rutherfords moved for partial summary judgment,
arguing that the Act did not bar their claims against the Ski Resort.
¶6 The trial court rejected the Ski Team’s argument that it is
entitled to protection under the Act but granted the Ski Team’s
motion for summary judgment on the negligence issue, dismissing
with prejudice the Rutherfords’ negligence claim against it. The
trial court concluded that “the Ski Team did not owe Levi a general
duty of reasonable care to protect him from harm as alleged by [the
Rutherfords]” and that even assuming that it did, “given the
undisputed facts in this case, no reasonable jury could find that the
20120990-CA 3 2014 UT App 190Rutherford v. Talisker Canyons Finance
Ski Team breached such a duty.”3 The trial court denied the Ski
Resorts’ joinder in the Ski Team’s motion for summary judgment
based on the Act, ruling that the applicability of the Act and the
machine-made snow exemption to the Ski Resort depended on the
resolution of disputed facts, namely, whether the snowmaking
equipment along Retreat was functioning properly. The trial court
granted the Rutherfords’ motion for partial summary judgment
based on their argument that the Act did not bar their claims
against the Ski Resort.
¶7 The Ski Resort also filed a motion for summary judgment on
the basis that the USSA release that Mr. Rutherford signed on
behalf of his son barred Levi’s claims. The court denied the motion
based on its determinations (1) that the waiver’s Colorado choice-
of-law provision “is unenforceable and . . . Utah law applies to the
USSA release”; (2) that the release is unenforceable under Utah law
based on the Utah Supreme Court’s decision in Hawkins ex rel.
Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062; and (3) that even if the
release was enforceable under Utah or Colorado law, Levi was not
racing at the time of his injury or otherwise engaged in the
activities covered by the release because the Ski Team’s practice
had not yet begun. The Ski Resort petitioned for interlocutory
review, which was granted by our supreme court and assigned to
this court.
ISSUES AND STANDARD OF REVIEW
¶8 The Ski Resort contends that the trial court erroneously
granted the Rutherfords’ motion for partial summary judgment
after finding that Levi was not engaged in race training at the time
of his injury and that an exemption in the Act regarding
competitive skiing did not bar the Rutherfords’ claims. See Utah
Code Ann. § 78B-4-402(1)(g) (competitive-skiing exemption). The
Ski Resort also asserts that the trial court’s interpretation of the
Act’s machine-made snow exemption was incorrect and that, as a
3. The Ski Team is not a party to this interlocutory appeal.
20120990-CA 4 2014 UT App 190Rutherford v. Talisker Canyons Finance
matter of law, summary judgment should be entered for the Ski
Resort based on either the machine-made snow exemption or the
competitive-skiing exemption. Last, the Ski Resort argues that the
trial court erred in determining that the Colorado choice-of-law
provision in the USSA release was not enforceable, that the release
was not enforceable under Utah law, and that the release was
nevertheless inapplicable here, where Levi was engaged in an
activity not covered by the release when he was injured.
¶9 Summary judgment is appropriate “only when all the facts
entitling the moving party to a judgment are clearly established or
admitted” and the “undisputed facts provided by the moving party
. . . preclude[], as a matter of law, the awarding of any relief to the
losing party.” Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT
23, ¶ 24, 70 P.3d 904 (alteration in original) (citations and internal
quotation marks omitted); see also Utah R. Civ. P. 56(c). “We also
note that summary judgment is generally inappropriate to resolve
negligence claims and should be employed only in the most clear-
cut case.” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994)
(citation and internal quotation marks omitted). “An appellate
court reviews a trial court’s legal conclusions and ultimate grant or
denial of summary judgment for correctness, and views the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6,
177 P.3d 600 (citations and internal quotation marks omitted).
ANALYSIS
I. The Distinction Between Competitive Skiing and Recreational
Skiing
¶10 The Act exempts ski resorts from liability for injuries
sustained by individuals engaged in “competitive” skiing,
including injuries sustained as a result of an individual’s
“participation in, or practicing or training for, competitions or
special events.” See Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis
20120990-CA 5 2014 UT App 190Rutherford v. Talisker Canyons Finance
2012).4 Here, a determination that Levi was injured while engaged
in competitive, as opposed to recreational, skiing under the Act
could be case-determinative.5
¶11 In their complaint, the Rutherfords allege that Levi was
injured during Ski Team practice, stating, “[T]he Summit Ski Team
instructed Levi to ski down the Retreat run. . . . As Levi was skiing
down Retreat, he crashed into [a mound of snow] and sustained
serious injuries . . . .” Similarly, in the Rutherfords’ motions for
partial summary judgment as to the enforceability of the Act and
the USSA release, they state, “Levi was injured while participating
in racing practice as a member of [the Ski Team].”6 Further, the
4. Except where otherwise noted, we cite the most recent version
of the Utah Code for the convenience of the reader.
5. The applicability of the USSA release could also turn on whether
Levi was injured while engaged in one of the activities specifically
enumerated in the release; if he was not, then the release cannot
apply, rendering irrelevant the question of the release’s
enforceability under Utah or Colorado law. The release defines the
covered activities as “skiing and snowboarding in their various
forms, as well as preparation for, participation in, coaching,
volunteering, officiating and related activities in alpine, nordic,
freestyle, disabled, and snowboarding competitions and clinics” “in
which USSA is involved in any way.” Because USSA employs
different terminology to describe the competitive skiing activities
covered by the release, a determination that Levi was not injured
while competitively skiing under the terms of the Act would not
necessarily foreclose a finding that he was engaged in an activity
covered by the release. However, because we determine that the
release is unenforceable for other reasons, see infra ¶ 30, we need
not address whether Levi was injured while engaging in an activity
covered by the release.
6. On appeal, the Rutherfords assert that they “never alleged that
Levi was injured while ski racing” but only that he “was injured in
(continued...)
20120990-CA 6 2014 UT App 190Rutherford v. Talisker Canyons Finance
Rutherfords’ expert witness, whose statement was submitted with
the Rutherfords’ summary judgment filings, based his expert
report and evaluation on the premise that Levi was engaged in race
training and practice. In its response to the Rutherfords’ motions,
the Ski Resort agreed that it was an undisputed fact that “Levi was
injured while participating in racing practice as a member of the
[Ski Team].”7
¶12 The trial court, however, likened Levi to a recreational skier,
rather than a competitive skier, and determined that Levi’s accident
occurred while he was “skiing on an open run that any member of
the public could ski on” and that his accident indisputably did not
6. (...continued)
connection with Ski Team practice,” and that it was through
discovery that they learned that Levi was injured before practice
started. To the extent this sentiment is contradictory to the
allegations contained in the Rutherfords’ complaint, we note that
“[a]n admission of fact in a pleading is a judicial admission and is
normally conclusive on the party making it.” See Baldwin v. Vantage
Corp., 676 P.2d 413, 415 (Utah 1984); see also Amgen Inc. v.
Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1197 n.6 (2013)
(holding that a party was bound by an admission in its answer);
Belnap v. Fox, 251 P. 1073, 1074 (Utah 1926) (overturning a finding
entered by the trial court because the finding was “against and in
conflict with the admission in the answer of the principal
defendant”). But see Baldwin, 676 P.2d at 415 (recognizing “that an
admission may be waived where the parties treat the admitted fact
as an issue”).
7. The Ski Team, although not a party to this appeal, disputed in
part the Rutherfords’ assertion that Levi was injured during
practice, stating, “[A]lthough Levi was injured during a practice in
which the [Ski Team] had intended to conduct race training, he was
injured while free skiing and not while running gates.” The Ski
Team’s summary judgment filings imply that there is a factual
dispute as to whether a “warm-up” run can constitute part of the
Ski Team’s race training. See supra note 2.
20120990-CA 7 2014 UT App 190Rutherford v. Talisker Canyons Finance
occur during a ski race, while skiing through gates, or while
otherwise “negotiating for training purposes something that had
been specifically designated as a race course.” The trial court made
this ruling in the context of rejecting the Ski Resort’s argument that
the USSA release is enforceable under Utah law. Thus, while the
specific details in the trial court’s ruling are not entirely in conflict
with the parties’ undisputed statement of fact that Levi was injured
during race training, the court’s comparison of Levi to a
recreational skier amounts to a rejection of the parties’ undisputed
statement of fact. This ruling also implies a distinction between
injuries sustained during a competition and injuries sustained
during training for competition that is not made in the Act’s
provision that “participation in, or practicing or training for,
competitions” are all inherent risks of skiing. See Utah Code Ann.
§ 78B-4-402(1)(g). We conclude that the trial court improperly made
a finding in the summary judgment context and that its finding is
contrary to what appear to be undisputed facts. We vacate this
ruling and direct the trial court to reconsider the parties’ arguments
in light of the undisputed statements of fact as set forth in the
Rutherfords’ and the Ski Resort’s pleadings and motion filings.8 See
8. Although we often provide guidance for the trial court on
remand by addressing “[i]ssues that are fully briefed on appeal and
are likely to be presented on remand,” State v. James, 819 P.2d 781,
795 (Utah 1991), we do not address whether the competitive-skiing
exemption precludes the Rutherfords’ claims against the Ski Resort
based on the parties’ agreement that Levi was injured while
engaged in race training. That argument was not presented below,
nor was it sufficiently briefed on appeal. See McCleve Props., LLC v.
D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶ 19, 307 P.3d 650(determining that “it is better to leave” a legal issue that was not
addressed by the parties in briefing “for the district court to
address in the first instance based on appropriate briefing by the
parties” than to “endeavor to provide the district court with
guidance”); cf. Medley v. Medley, 2004 UT App 179, ¶ 11 n.6, 93 P.3d
847 (declining to provide the trial court with guidance on a legal
issue likely to arise on remand where the court of appeals had “no
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20120990-CA 8 2014 UT App 190Rutherford v. Talisker Canyons Finance
Staker v. Ainsworth, 785 P.2d 417, 419 (Utah 1990) (“Where a triable
issue of material fact exists, the cause will be remanded for
determination of that issue.”). We likewise leave for the trial court’s
determination the question of whether Levi’s engagement in race
training at the time of his injury is truly undisputed by the parties.
II. The Machine-Made Snow Exemption
¶13 The Ski Resort next argues that the trial court erroneously
denied its motion for summary judgment based on the machine-
made snow exemption under the Act, particularly where the
machine that produced the snow mound that Levi skied into “was
indisputably making snow.” (Emphasis omitted.) The Act identifies
as an inherent risk of skiing “snow or ice conditions as they exist or
may change, such as hard pack, powder, packed powder, wind
pack, corn, crust, slush, cut-up snow, or machine-made snow.”
Utah Code Ann. § 78B-4-402(1)(b); see also id. § 78B-4-402(1)(d)
(immunizing ski-area operators from injuries caused by “variations
or steepness in terrain, whether natural or as a result of slope
design, snowmaking or grooming operations”).
¶14 The Ski Resort contends that the Rutherfords’ “allegations
fall squarely into” the machine-made snow exemption given the
Rutherfords’ own assertion that Levi was injured when he came
into contact with a patch of wet, machine-made snow. As a result,
the Ski Resort argues, the trial court “erred in ruling that a mere
allegation of malfunctioning snowmaking equipment was sufficient
to force a jury trial.”9
8. (...continued)
consensus on whether [it] should offer guidance . . . and, if so, what
any such guidance should be”).
9. Because we ultimately reject the Ski Resort’s interpretation of the
Act, we do not address the Rutherfords’ argument that the Ski
Resort’s interpretation renders the Act unconstitutional.
20120990-CA 9 2014 UT App 190Rutherford v. Talisker Canyons Finance
¶15 The trial court ruled,
Solely for purposes of this Motion, the existence of
ongoing snowmaking is an inherent risk of skiing
and a type of danger that skiers wish to confront.
Among other things, plaintiff claims that the
snowmaking equipment in this particular case was
not functioning properly. That claim creates a
question of fact as to whether skiers wish to confront
this type of risk and whether that risk could be
eliminated through the exercise of reasonable care.
The trial court’s ruling recognizes the principles explained in Clover
v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991). In that case, our
supreme court expressly rejected Snowbird Ski Resort’s argument
that recovery from the resort for “any injury occasioned by one or
more of the dangers listed in [the Act] is barred by the statute
because, as a matter of law, such an accident is caused by an
inherent risk of skiing.” Id. at 1044–45. Instead, the court held that
the Act “does not purport to grant ski area operators complete
immunity from all negligence claims initiated by skiers” but
protects ski-area operators “from suits to recover for injuries
caused by one or more of the dangers listed [in the Act] only to the
extent those dangers, under the facts of each case, are integral
aspects of the sport of skiing.” Id. at 1044 (emphasis added). The
court interpreted the Act as providing a non-exclusive list of
dangers that must be analyzed on a case-by-case basis to determine
whether a given danger is “inherent” in the sport. Id. at 1044–45
(alteration in original) (quoting Utah Code Ann. § 78-27-52(1)
(current version at id. § 78B-4-402(1) (LexisNexis 2012))).
¶16 The court explained, “The term ‘inherent risk of skiing,’
using the ordinary and accepted meaning of the term ‘inherent,’
refers to those risks that are essential characteristics of skiing—risks
that are so integrally related to skiing that the sport cannot be
undertaken without confronting these risks.” Id. at 1047. The court
divided these risks into two categories, the first of which represents
“those risks, such as steep grades, powder, and mogul runs, which
skiers wish to confront as an essential characteristic of skiing.” Id.
20120990-CA 10 2014 UT App 190Rutherford v. Talisker Canyons Finance
Under the Act, “a ski area operator is under no duty to make all of
its runs as safe as possible by eliminating the type of dangers that
skiers wish to confront as an integral part of skiing.” Id.
¶17 “The second category of risks consists of those hazards
which no one wishes to confront but cannot be alleviated by the use
of reasonable care on the part of a ski resort,” such as weather and
snow conditions that may “suddenly change and, without warning,
create new hazards where no hazard previously existed.” Id. For
this category of risks, “[t]he only duty ski area operators have . . .
is the requirement set out in [the Act] that they warn their patrons,
in the manner prescribed in the statute, of the general dangers
patrons must confront when participating in the sport of skiing.”
Id. However, this does not exonerate a ski-area operator from any
“duty to use ordinary care to protect its patrons”; “if an injury was
caused by an unnecessary hazard that could have been eliminated
by the use of ordinary care, such a hazard is not, in the ordinary
sense of the term, an inherent risk of skiing and would fall outside
of [the Act].” Id. The Clover court then applied its interpretation of
the Act to the facts before it, stating that because “the existence of
a blind jump with a landing area located at a point where skiers
enter the run is not an essential characteristic of an intermediate
run,” the plaintiff could “recover if she [could] prove that [the ski
resort] could have prevented the accident through the use of
ordinary care.” Id. at 1048; see also White v. Deseelhorst, 879 P.2d
1371, 1374–75 (Utah 1994) (reaffirming the approach taken by the
court in Clover and concluding that summary judgment was
precluded by the question of fact as to whether “an unmarked cat
track on the blind side of a ridge” was a risk that the ski resort
“could have alleviated . . . through the exercise of ordinary care”).
¶18 In light of how narrowly the Clover court’s ruling suggests
the inherent risk determination ought to be framed, we agree with
the trial court here that summary judgment in favor of the Ski
Resort is not appropriate on this claim. The trial court recognized
that under the facts of this case, “the existence of ongoing
snowmaking is an inherent risk of skiing and a type of danger that
skiers wish to confront” but that the Rutherfords’ allegations that
the equipment “was not functioning properly,” “[a]mong other
20120990-CA 11 2014 UT App 190Rutherford v. Talisker Canyons Finance
things,” created questions of fact as to “whether skiers wish to
confront [the] type of risk” created by malfunctioning snowmaking
equipment and “whether that risk could be eliminated through the
exercise of reasonable care.” Cf. Moradian v. Deer Valley Resort Co.,
No. 2:10-CV-00615-DN, 2012 WL 3544820, at *4 (D. Utah Aug. 16,
2012) (affirming summary judgment in favor of a ski resort based
on a provision in Utah’s Inherent Risks of Skiing Act that
immunizes ski-area operators from injuries sustained by a patron’s
collision with other patrons because “[t]his type of collision cannot
be completely prevented even with the exercise of reasonable care,
and is an inherent risk in the sport of skiing,” and rejecting the
plaintiff’s speculation that the individual that collided with him
was a Deer Valley employee as insufficient “to create a genuine
issue of material fact necessary to defeat summary judgment”).
Accordingly, we affirm the trial court’s ruling that questions of fact
regarding the applicability of the machine-made snow exemption
preclude summary judgment on this issue, and we likewise reject
the Ski Resort’s argument that the inclusion of machine-made snow
as an inherent risk of skiing in the Act is, by itself, sufficient to
immunize the resort from liability in this case.10 See White, 879 P.2d
10. It is notable, as the Ski Resort points out in its opening brief,
that the language of the Act has broadened since the issuance of
Clover. See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1044 (Utah
1991). At the time Clover was decided, the Act listed “snow or ice
conditions” as inherent risks. Id. In the current version of the Act,
those same risks are described as “snow or ice conditions, as they
exist or may change, such as hard pack, powder, packed powder,
wind pack, corn, crust, slush, cut-up snow, or machine-made
snow.” See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549,
549 (codified at Utah Code Ann. § 78B-4-402(1)(b) (LexisNexis
2012)). The Ski Resort contends that this expansion supports the
“practical” necessity of interpreting “the Act broadly when
allegations regarding the consistency of snow are in issue” because
“the consistency of the snow cannot be objectively tested,
measured, retained, analyzed, photographed, or reliably
documented.” That this element may be hard to prove, however,
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20120990-CA 12 2014 UT App 190Rutherford v. Talisker Canyons Finance
at 1374 (“Courts cannot determine that a risk is inherent in skiing
simply by asking whether it happens to be one of those listed in
[the Act].”).
III. Enforceability of the USSA Release
¶19 To the extent our analysis of the issues raised under the Act
may not be dispositive of this case on remand, we next address the
parties’ arguments related to the USSA release. See State v. James,
819 P.2d 781, 795 (Utah 1991) (“Issues that are fully briefed on
appeal and are likely to be presented on remand should be
addressed by [the appellate] court.”). The Ski Resort challenges the
trial court’s determination that the Colorado choice-of-law
provision in the USSA release was not enforceable in this case and
the court’s subsequent application of Utah law. The Ski Resort
contends that the USSA release is enforceable under both Utah and
Colorado law and that as a result, the release immunizes it from the
Rutherfords’ claims.11 We address each argument in turn.
A. The Colorado Choice-of-Law Provision
¶20 The Ski Resort contends that the trial court erred in ruling
that the Colorado choice-of-law provision in the USSA release was
10. (...continued)
is not a persuasive reason to otherwise repudiate our supreme
court’s precedent rebuffing the notion that the presence of a risk on
the list in the Act is necessarily the end of the inquiry. See White v.
Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994); Clover, 808 P.2d at
1044. We likewise reject the Ski Resort’s argument that the post-
Clover amendment to the statute adding the competitive-skiing
exemption conflicts with the Clover analysis in a manner that
“would render the statutory language nonsensical.”
11. Because of the manner in which we resolve the issues under this
heading, we decline to address what impact, if any, the fact that the
Ski Resort is not a signatory to the USSA release may have on the
applicability of the release to the Ski Resort.
20120990-CA 13 2014 UT App 190Rutherford v. Talisker Canyons Finance
not enforceable based on the court’s determination that “Utah is
the only state that has an interest in the outcome of the case.” The
Ski Resort explains that USSA’s operation as a national
organization justifies the need for the choice-of-law provision. It
also explains that the USSA designated Colorado law because the
USSA holds “more major events in Colorado than any other state”
and “more USSA athletes compete in Colorado than any other
state,” thereby giving Colorado “a particular interest in the
outcome of this case.” We review the trial court’s choice-of-law
analysis for correctness. See One Beacon Am. Ins. Co. v. Huntsman
Polymers Corp., 2012 UT App 100, ¶ 24, 276 P.3d 1156.
¶21 “Since Utah is the forum state, Utah’s choice of law rules
determine the outcome of” whether Utah law or Colorado law
applies. See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 14,
54 P.3d 1054. To determine whether the choice of Colorado law will
govern our substantive interpretation of the USSA release, we must
determine first whether “‘two or more states have an interest in the
determination of the particular issue’” in this case and, if so, we
then analyze whether Colorado has a “‘substantial relationship to
the parties or the transaction’” or there is a “‘reasonable basis for
the parties[’] choice.’” Prows v. Pinpoint Retail Sys., Inc., 868 P.2d
809, 811 (Utah 1993) (quoting Restatement (Second) of Conflict of
Laws § 187(2)(a) & cmt. d (Supp. 1988)).
¶22 In Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Utah
1993), a Canadian company that conducted business throughout
the United States sought to enforce a New York choice-of-law
provision contained in a contract it entered into with a Utah-based
business. Id. at 810–11. The Utah Supreme Court recognized that
although “New York has no substantial relationship to the parties
or the transaction, there is a reasonable basis for [the Canadian
company’s] choosing New York law to govern the [contract]”—“to
limit the number of forums in which it may be required to bring or
defend an action.” Id. at 811 (internal quotation marks omitted).
Nonetheless, the court concluded that “[t]he existence of that
‘reasonable basis,’ . . . [was] without effect” because “New York
[had] no interest in the determination of [the] case.” Id. The court
identified various “relevant contacts” that Utah had with the case
20120990-CA 14 2014 UT App 190Rutherford v. Talisker Canyons Finance
and concluded that Utah was “the only state with an interest in the
action.” Id. (internal quotation marks omitted). Specifically, the
court noted that a “Utah plaintiff brought this suit against a Utah
defendant and a Canadian defendant,” that the contract “was to be
performed in Utah,” that the contract “was signed in Utah, and
[that] the alleged breach and tortious conduct occurred [in Utah].”
Id. In other words, without any similar relevant contacts, New York
had no interest in the case for the choice-of-law provision to be
enforceable. Id.
¶23 Besides analyzing what contacts a state may have with the
case, Prows does not provide much guidance for our analysis of
whether Colorado has an interest in this case. Indeed, Prows
appears to use the terms “interest in,” “substantial relationship,”
and “relevant contacts” interchangeably. Accordingly, we look to
the Restatement for guidance. See American Nat’l Fire Ins. Co. v.
Farmers Ins. Exch., 927 P.2d 186, 190 (Utah 1996) (noting that Utah
courts should apply the test “explained in Restatement of Conflict
section 188” to resolve “a conflict of laws question in a contract
dispute”). The Restatement lists several factors a court might
consider in analyzing the significance of a state’s relationship to the
parties and transaction at issue, including, “(a) the place of
contracting, (b) the place of negotiation of the contract, (c) the place
of performance, (d) the location of the subject matter of the
contract, and (e) the domicil, residence, nationality, place of
incorporation and place of business of the parties.” Restatement
(Second) of Conflict of Laws § 188(2) (1971).
¶24 Here, any interest the state of Colorado may have in this
case arises out of the possibility that Levi could have competed in
Colorado at some point during the relevant ski season as a USSA
member because USSA holds most of its competitions in Colorado
and that is where most USSA athletes compete. According to the
Ski Resort, “at the time they entered the contract, the parties did
not know and could not have known the full geographic scope of
where the [USSA] contract was to be performed.” All of these
factors, however, relate to the reasonableness of USSA’s choice of
Colorado law, not Colorado’s interest in or substantial relationship
with the parties in this case or the transaction at issue. As dictated
20120990-CA 15 2014 UT App 190Rutherford v. Talisker Canyons Finance
by Prows, USSA’s interest in having one state’s laws apply to its
contracts with its members located throughout the country, and the
logic behind its choice of Colorado law specifically, does not vest
in the state of Colorado a “substantial relationship” or “interest in”
the parties or the transaction before us. See Prows, 868 P.2d at 811.
And, as in Prows, the state of Utah clearly has an interest in the
determination of this case; the Rutherfords entered into the USSA
release while domiciled in Utah, they remained domiciled in Utah
at the time of Levi’s injury, Levi’s injury occurred in Utah, USSA is
a Utah entity, and the Ski Resort’s principal place of business is in
Utah. See id. Accordingly, the choice-of-law provision does not
control in this case and we rely on Utah law to determine the
enforceability of the release.
B. Enforceability of the USSA Release under Utah Law
¶25 The Ski Resort argues that even if the Colorado law
provision does not apply here, the USSA release is enforceable
under Utah law. The trial court determined that the release was
unenforceable under Utah law based on case law describing a
general policy in Utah rejecting pre-injury releases signed by
parents on behalf of minors and, alternatively, based on its
determination that Levi was a recreational skier and pre-injury
releases executed by recreational skiers are not valid under the Act.
We agree with the trial court that the release, as it may apply to the
Ski Resort, is unenforceable under Utah law, but we reach this
conclusion based on somewhat different reasoning. See Bailey v.
Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 (“[A]n appellate court may
affirm the judgment appealed from if it is sustainable on any legal
ground or theory apparent on the record.” (emphasis, citation, and
internal quotation marks omitted)).
1. Enforceability of the USSA Release Based on Levi’s Status as
a Minor
¶26 The trial court ruled that Utah law rejects pre-injury releases
signed by a parent on behalf of a minor, rendering the USSA
release invalid in Utah. The trial court interpreted Utah case law as
“prevent[ing] enforcement of the USSA release,” relying
20120990-CA 16 2014 UT App 190Rutherford v. Talisker Canyons Finance
specifically on one Utah Supreme Court case in which the court
rejected as against public policy a pre-injury release signed by a
parent on behalf of a minor as a prerequisite to the minor’s
participation in a recreational horseback ride. See Hawkins ex rel.
Hawkins v. Peart, 2001 UT 94, ¶¶ 2, 13–14, 37 P.3d 1062, superseded
by statute, Utah Code Ann. § 78B-4-203(2)(b) (LexisNexis 2012), as
recognized in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 21
n.43, 301 P.3d 984.
¶27 In Hawkins, a minor was injured when she was thrown off
of a horse during a guided trail ride. Id. ¶ 3. She filed suit against
the company that provided the horses and trail guides based on
various claims of negligence. Id. The guide company argued that a
release signed by the minor’s mother prior to the horseback ride
precluded her suit. Id. In addressing the parties’ arguments, the
supreme court recognized that releases for liability are, in general,
permitted in most jurisdictions “for prospective negligence, except
where there is a strong public interest in the services provided.” Id.
¶ 9. The court recognized various standards and criteria employed
in other jurisdictions to aid in “determining public policy
limitations on releases” but declined to specifically adopt any one
standard. Id. ¶¶ 9–10. Instead, the Hawkins court held that “[i]n the
absence of controlling statutes or case law,” “general statements of
policy found in statutes detailing the rights of minors and the
responsibilities of guardians” demonstrate a public policy in Utah
disfavoring “contracts releasing individuals or entities from
liability for future injuries to minors.” Id. ¶¶ 7, 11–13. The court
was also persuaded by the “clear majority of courts treating the
issue” that “have held that a parent may not release a minor’s
prospective claim for negligence.” Id. ¶ 10 (collecting cases). Most
notably, the court adopted the holding expressed by the
Washington Supreme Court that “‘[s]ince a parent generally may
not release a child’s cause of action after injury, it makes little, if
any, sense to conclude a parent has authority to release a child’s
cause of action prior to an injury.’” Id. ¶¶ 10, 13 (alteration in
original) (quoting Scott ex rel. Scott v. Pacific W. Mountain Resort, 834
P.2d 6, 11–12 (Wash. 1992)). The Hawkins court affirmed the trial
court’s ruling that because “the general rule permitting release of
20120990-CA 17 2014 UT App 190Rutherford v. Talisker Canyons Finance
liability did not apply where a parent signs the contract on behalf
of a minor,” the release signed by Hawkins’s mother on her behalf
was unenforceable. Id. ¶¶ 6, 13.
¶28 Since the Utah Supreme Court’s decision in Hawkins, the
statute applicable in that case—the Limitations on Liability for
Equine and Livestock Activities Act (the Equine Act)—has been
amended to specifically “permit[] a parent to sign a release on
behalf of a minor.” See Penunuri, 2013 UT 22, ¶ 21 n.43; see also Utah
Code Ann. §§ 78B-4-201 to -203 (LexisNexis 2012) (Equine Act); id.
§ 78B-4-203(2)(b) (permitting a parent to sign a release). Our
supreme court recently recognized that Hawkins remains a valid
example of how to determine whether a contract offends public
policy when the public policy is not clearly discernible in the
applicable statutes or case law. See Penunuri, 2013 UT 22, ¶ 28 &
n.43. The court also explained that a public policy statement
arrived at in the manner undertaken in Hawkins does not take
precedence over express policy language in a controlling statute.
See id. (indicating that, to the extent Hawkins conflicts with the
amended Equine Act, the Equine Act controls and the conclusion
in Hawkins is overruled).
¶29 Here, the Act includes a clear “legislative expression[] of
public policy” regarding the specific industry and activities at issue;
thus, we need not undertake a Hawkins-like public policy analysis.
See Rothstein v. Snowbird Corp., 2007 UT 96, ¶¶ 11, 19, 175 P.3d 560.
The public policy statement in the Act provides,
The Legislature finds that the sport of skiing is
practiced by a large number of residents of Utah and
attracts a large number of nonresidents, significantly
contributing to the economy of this state. It further
finds that few insurance carriers are willing to
provide liability insurance protection to ski area
operators and that the premiums charged by those
carriers have risen sharply in recent years due to
confusion as to whether a skier assumes the risks
inherent in the sport of skiing. It is the purpose of
20120990-CA 18 2014 UT App 190Rutherford v. Talisker Canyons Finance
this act, therefore, to clarify the law in relation to
skiing injuries and the risks inherent in that sport, to
establish as a matter of law that certain risks are
inherent in that sport, and to provide that, as a
matter of public policy, no person engaged in that
sport shall recover from a ski operator for injuries
resulting from those inherent risks.
Utah Code Ann. § 78B-4-401 (LexisNexis 2012). Our supreme court
has interpreted this public policy statement as prohibiting pre-
injury releases of liability for negligence obtained by ski-area
operators from recreational skiers. Rothstein, 2007 UT 96, ¶¶ 16–17.
And the court has outright rejected the notion that releases of
liability serve the purpose of the Act—to immunize ski-area
operators from liability generally—stating,
This reasoning fails to account for the Legislature’s
inescapable public policy focus on insurance and
ignores the reality that the Act’s core purpose is not
to advance the cause of insulating ski area operators
from their negligence, but rather to make them better
able to insure themselves against the risk of loss
occasioned by their negligence.
Id. ¶ 17.
¶30 In other words, the Act prohibits pre-injury releases of
liability for negligence entirely, regardless of the age of the skier
that signed the release or whether the release was signed by a
parent on behalf of a child. The Act does not differentiate among
the “large number” of residents and nonresidents engaged in the
sport of skiing that “significantly contribut[e] to the economy of
this state” based on the participant’s age. Accordingly, we reject the
trial court’s determination that the USSA release is unenforceable
because it was signed by a parent on behalf of a minor; rather, the
release is unenforceable based on the Act’s policy statement.
20120990-CA 19 2014 UT App 190Rutherford v. Talisker Canyons Finance
2. Enforceability of the USSA Release Based on Levi’s Status as
a Competitive or Recreational Skier
¶31 The trial court also determined that the USSA release was
unenforceable in this case based on its determination that Levi was
injured while engaging in recreational skiing, rather than
competitive skiing. Utah courts have interpreted the Act’s policy
statement as prohibiting pre-injury releases signed by recreational
skiers, see Rothstein, 2007 UT 96, ¶¶ 3, 16, while permitting pre-
injury releases signed by competitive skiers, see Berry v. Greater Park
City Corp., 2007 UT 87, ¶¶ 18, 24, 171 P.3d 442. Here, the trial court
rejected the release’s enforceability by likening Levi to the
recreational skier in Rothstein.
¶32 As previously discussed, our supreme court in Rothstein v.
Snowbird Corp., 2007 UT 96, 175 P.3d 560, explained that the Act
was enacted in recognition that the ski industry, which plays a
“prominent role in Utah’s economy,” was in the midst of an
“insurance crisis.” Id. ¶ 14. To achieve the Act’s goal of ensuring
that ski-area operators had access to “insurance at affordable
rates,” the Act prohibited “skiers from recovering from ski area
operators for injuries resulting from the inherent risks of skiing.”
Id. ¶¶ 13, 15. The court explained that the Act was designed to
strike a “bargain” with ski-area operators by freeing them “from
liability for inherent risks of skiing so that they could continue to
shoulder responsibility for noninherent risks by purchasing
insurance.” Id. ¶ 16. Accordingly, the Rothstein court concluded that
“[b]y extracting a preinjury release from Mr. Rothstein for liability
due to [the ski resort’s] negligent acts, [the resort] breached [the
Act’s] public policy bargain.” Id.
¶33 However, not long before Rothstein, our supreme court in
Berry v. Greater Park City Corp., 2007 UT 87, 171 P.3d 442, deemed
a pre-injury release enforceable based on the type of skiing
involved in that case. Id. ¶¶ 18, 24. The pre-injury release in that
case was signed in favor of a ski resort by an adult prior to, and as
prerequisite for, his participation in a skiercross race. Id. ¶¶ 2–3.
The Berry court recognized that the vitality of Utah’s ski industry
20120990-CA 20 2014 UT App 190Rutherford v. Talisker Canyons Finance
is a matter of public interest, as evidenced by the enactment of the
Act, and “that most jurisdictions that permit [pre-injury] releases
draw the line [of enforceability of those releases] at attempts to
limit liability for activities in which there is a strong public
interest.” Id. ¶¶ 12, 17. The court then applied a six-part test to
determine whether skiercross racing is an activity “in which there
is strong public interest.” Id. ¶¶ 12, 15 (citing Tunkl v. Regents of the
Univ. of Cal., 383 P.2d 441, 445–46 (Cal. 1963) (in bank)). The Berry
court determined that “skiercross racing” “has simply not
generated sufficient public interest either through its popularity or
because of hazards associated with it to generate a call for
intervention of state regulatory authority” and that it is therefore
“subject to a separate analysis for the purpose of evaluating the
enforceability of preinjury releases,” even though “the services
provided by a business operating a recreational ski area and the
services provided by a business sponsoring a competitive ski race
may be covered by the provisions of the Act.” Id. ¶¶ 17–18.
Accordingly, the supreme court held “that the release Mr. Berry
executed in favor of [the ski resort was] enforceable.” Id. ¶ 24.
¶34 Here, the Ski Resort asserted, and the trial court agreed,
“that the critical distinction between Berry and Rothstein is that the
plaintiff in Berry signed a release as a condition of participating in
a competitive skiercross racing event, while the plaintiff in Rothstein
was simply a recreational skier who signed a release when he
purchased a ski pass.” Based on that distinction and the seemingly
undisputed fact as between the Ski Resort and the Rutherfords that
Levi was injured during race training, the Ski Resort argued that
the USSA release was enforceable under Utah law because this case
“more closely resembles Berry than Rothstein.”
¶35 However, the Act was amended in 2006 to expand the
definition of “the sport of skiing to include participation in, or
practicing or training for, competitions or special events.”12 See Act
12. Although both Rothstein and Berry were decided in 2007, long
after the May 1, 2006 effective date of the amendment to the Act,
(continued...)
20120990-CA 21 2014 UT App 190Rutherford v. Talisker Canyons Finance
of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at
Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012)). This
amendment indicates the legislature’s intent that competitive
skiing, including practicing and training for competitions, should
be treated the same way as recreational skiing.13 Cf. Collins v.
Schweitzer, Inc., 21 F.3d 1491, 1493–94 (9th Cir. 1994) (holding that
Idaho’s similar act precludes claims brought by competitive skiers
against ski resorts, particularly in light of the fact that the statute
“does not distinguish between injuries suffered during racing and
injuries suffered during other types of skiing”); Brush v. Jiminy Peak
Mountain Resort, Inc., 626 F. Supp. 2d 139, 148–49 (D. Mass. 2009)
(determining that a USSA waiver was valid under Colorado law
and also concluding that a Massachusetts statute requiring ski-area
12. (...continued)
neither case acknowledges the amended text; the only reference to
the amendment was in the Berry court’s inclusion of the 2007
supplement as part of its general citation to where the Act was
codified. See Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171
P.3d 442.
13. During the Senate floor debates on the 2006 amendment to the
Act, Senator Lyle Hillyard, the sponsor of the bill amending the
Act, explained that the “dramatic change[s] of our skiing” industry
since the Act’s initial passage required that the Act be updated to
“also include[] the sports of recreational, competitive, or
professional skiing so that we cover not just the sport, but also the
competitive and professional part.” Recording of Utah Senate Floor
Debates, 56th Leg., Gen. Sess. (Feb. 13, 2006) (statements of Sen.
Lyle Hillyard). This and other proposed changes were intended “to
make [the Act] more compatible with what the ski industry is now
doing.” Id. (Feb. 14, 2006). Senator Hillyard also noted that “there
is no intention in [the proposed 2006 amendment] to exempt the
negligence of the ski resort,” clarifying, “We are just talking about
the inherent risks when people go skiing. . . . It’s just bringing the
statute . . . up to date and clarify[ing its] policy and so that’s what
we’ve done is taken those words and given better definitions and
more specificity.” Id. (Feb. 13, 2006).
20120990-CA 22 2014 UT App 190Rutherford v. Talisker Canyons Finance
operators to operate their ski areas “in a reasonably safe manner”
does not impose on ski-area operators a “greater duty to racing
skiers than to other, perhaps less experienced, recreational skiers”
because [c]ompetitive skiers . . . have the same responsibility to
avoid collisions with objects off the trail as other skiers”); Rowan v.
Vail Holdings, Inc., 31 F. Supp. 2d 889, 901 (D. Colo. 1998)
(explaining that Colorado law defines “[c]ompetitor” as “a skier
actually engaged in competition or in practice therefor with the
permission of the ski area operator on any slope or trail or portion
thereof designated by the ski area operator for the purpose of
competition” (citation and internal quotation marks omitted));
Lackner v. North, 37 Cal. Rptr. 3d 863, 869, 875 (Cal. Ct. App. 2006)
(holding that a ski resort has no duty to eliminate or protect a
recreational skier from a collision with a participant in a
snowboarding race and that the resort had no duty to supervise the
race participants as they warmed up on a designated training run
prior to a competition). In conjunction with Rothstein, the
amendment supports the conclusion that pre-injury releases
extracted by ski-area operators from competitive skiers are also
contrary to public policy.
¶36 To the extent our interpretation of the Act and its 2006
amendment may seem to be in conflict with the holding in Berry,
we note that the plaintiff in that case was injured in February 2001,
long before the Act contained the competitive-skiing exemption.
Accordingly, because the Act does not contain a specific provision
permitting the retroactive application of the 2006 amendment, we
presume the Berry court abided by “[t]he well-established general
rule . . . that statutes not expressly retroactive should only be
applied prospectively.” In re J.P., 648 P.2d 1364, 1369 n.4 (Utah
1982); see also Utah Code Ann. § 68-3-3 (LexisNexis 2011) (“A
provision of the Utah Code is not retroactive, unless the provision
is expressly declared to be retroactive.”). Therefore, we construe
Berry as applying an older version of the Act and interpreting the
Act as it existed prior to the insertion of the competitive-skiing
exemption at issue in this case. As it applies to the Ski Resort, we
determine that the USSA release is unenforceable because it is
contrary to the holding in Rothstein, to the purpose of the Act’s 2006
20120990-CA 23 2014 UT App 190Rutherford v. Talisker Canyons Finance
amendment, and to the public policy statement in the Act, all of
which reject pre-injury releases executed by competitive and
recreational skiers of all ages in favor of ski-area operators.
CONCLUSION
¶37 The trial court’s determination that Levi was not engaged in
race training at the time of his injury, especially in the face of the
fact, apparently undisputed by the parties, that he was injured
during racing practice, was improper in the context of the Ski
Resort’s motions for summary judgment. The trial court correctly
denied the Ski Resort’s joinder in the Ski Team’s motion for
summary judgment based on the Act and correctly granted the
Rutherfords’ related partial motion for summary judgment, based
on the court’s determination that there were disputed issues of
material fact regarding the applicability of the machine-made snow
exemption. We affirm the trial court’s denial of the Ski Resort’s
motion for summary judgment based on the USSA release and the
court’s determination that the Colorado choice-of-law provision in
the USSA release is inapplicable here. We agree with the trial court
that the release, as it pertains to the Ski Resort, is unenforceable
under Utah law, but base this conclusion on different grounds than
the trial court. We remand this case for further proceedings
consistent with this decision.
20120990-CA 24 2014 UT App 190