Rutherford v. Talisker

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 27
IN THE
SUPREME COURT OF THE STATE OF UTAH
PHILIP RUTHERFORD and WENDY RUTHERFORD,
Respondents,
v.
TALISKER CANYONS FINANCE, CO., LLC; ASC UTAH, LLC; and
SUMMIT SKI TEAM, INC.,
Petitioners.
No. 20140917
Filed June 27, 2019
On Certiorari to the Utah Court of Appeals
Third District, Summit County
The Honorable Todd M. Shaughnessy
No. 100500564
Attorneys:
David A. Cutt, David S. Kottler, Salt Lake City, for respondents
Justin J. Keys, Eric P. Lee, Park City, Timothy C. Houpt, Salt Lake
City, for petitioners
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUSTICE PETERSEN
joined, and which ASSOCIATE CHIEF JUSTICE LEE joined as to Part I.
ASSOCIATE CHIEF JUSTICE LEE authored an opinion dissenting in
part.
RUTHERFORD v. TALISKER
Opinion of the Court
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Young Levi Rutherford crashed and was injured when he
skied into a patch of thick, wet, machine-made snow. His parents
brought claims for negligence and premises liability on his behalf
against Talisker Canyons Finance Company and ASC Utah
(collectively, Talisker). Talisker asks us to hold that the
Rutherfords’ claims are barred by (1) a release of liability signed by
Levi’s father or, alternatively, (2) Utah’s Inherent Risks of Skiing
Act, Utah Code sections 78B-4-401 to -404 (the Act). We decline
Talisker’s invitations.
¶2 Two of our decisions compel this result. First, in Hawkins
ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, superseded by
statute as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22,
301 P.3d 984, 1 we unambiguously declared that it would violate
public policy to allow a parent to “release a minor’s prospective
claim for negligence.” Id. ¶ 10. Second, in Clover v. Snowbird Ski
Resort, 808 P.2d 1037 (Utah 1991), we unanimously held that claims
for injuries caused by “inherent risks of skiing” are barred only to
the extent that the risk was integral to the sport of skiing. Id. at
1044–45. And three years later we loudly reaffirmed our
commitment to Clover in White v. Deseelhorst, 879 P.2d 1371 (Utah
1994), abrogated on other grounds by Penunuri v. Sundance Partners,
Ltd., 2017 UT 54, 423 P.3d 1150. Today, Talisker asks us to abandon
our holding in Clover and turn turtle three decades of precedent
and the settled expectations of skiers and the ski industry in favor
of an alternate approach to interpreting the Act. But because of our
established practices in statutory construction and precedential
decisions in Clover and White, we reject this substitute construction.
¶3 Instead, we hold that Talisker has not convinced us that
Clover was wrong, much less met its heavy burden to persuade us
to overturn such weighty precedent. We therefore uphold the court
of appeals’ decision that the district court was correct to apply
Clover. We do, however, take this opportunity to streamline the
1 Hawkins has been superseded by statute—Limitations on
Liability for Equine and Livestock Activities, Utah Code sections
78B-4-201 to -203—albeit only with respect to defined equine and
livestock activities. See infra ¶¶ 21–22.
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Opinion of the Court
implementation of Clover’s holding and remand this case to the
district court with instructions to apply Clover in a manner
consistent with this opinion. We also agree with the court of
appeals’ conclusion to affirm the district court’s partial grant of
summary judgment to the Rutherfords, finding the release
unenforceable under Utah law—although we do so for reasons
other than those stated by the court of appeals.
BACKGROUND
¶4 Ten-year-old Levi Rutherford was a member of the
Summit Ski Team, an affiliate of the United States Ski and
Snowboard Association (USSA), during the 2009–2010 winter
season. Levi was an advanced skier who regularly skied “on the
double blacks, which were the expert runs.” Levi’s father signed
him up for the team online in the fall of 2009. In the process, Levi’s
father signed an “Assumption of Risk and Release of Liability” on
Levi’s behalf. The release purported to waive Levi’s right to sue
USSA, the ski team, and any ski area operator for any injury due to
any reason, including the negligence of one of the above-named
entities. 2
2 The Rutherfords argue that the “Assumption of Risk and
Release of Liability” submitted by Talisker is not the one that Levi’s
father signed. In the district court, USSA submitted an affidavit
declaring that the release submitted was the one signed by Levi’s
father. Levi’s father submitted an affidavit stating that while he
“recall[s] reading at least part of a release page on USSA’s
website,” he “do[es] not recall signing the” release submitted by
USSA. We do not find any dispute of material fact as Levi’s father
claims only that he does not remember signing this specific release,
while USSA presented evidence that he did approve the release. A
failure of memory does not create a disputed fact. See Hemphill v.
State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 541 (5th Cir. 2015)
(“Lack of memory by itself is insufficient to create a genuine
dispute of fact.”); Shiozawa v. Duke, 2015 UT App 40, ¶ 26, 344 P.3d
1174 (finding no dispute of fact when witness “testified only that
he did not remember” a specific fact). This remains true here,
particularly given that, on review of cross-motions for summary
judgment, “we view the facts in the light most favorable to
(cont.)
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Opinion of the Court
¶5 On January 15, 2010, Levi’s parents dropped him off at The
Canyons ski resort for ski team practice. 3 Levi met up with his
coaches, who told him to take a warmup run while they set up
gates for training on the Retreat run. At this time, multiple
snow-making machines were in operation on Retreat. The coaches
did not ask The Canyons to turn off the snow-making machines
because “in the past [The Canyons] kept running the snow guns
until they saw that people were up there . . . and then they would
shut them off when they saw that [the ski team] was on that run.”
The coach in charge of training that day testified in her deposition
that she would not have had the team ski through the gates if the
snow-making machines were still running by the time the course
was set up “[b]ecause of [the] bad visibility and inconsistent snow.”
¶6 Levi took his warm up on Retreat while the snow-making
machines were in operation, making visibility poor. Warning signs
were posted at the top of the run, stating: “snowmaking in
progress.” Despite the warning, Levi headed down Retreat without
making turns. He went into a tuck position with his knees bent, his
poles tucked under his arms, and his head near his knees. Near the
bottom of the run, Levi ran into a mound of sticky, wet,
machine-made snow that was roughly a foot high, which caused
him to crash. Levi sustained a brain injury from the crash.
¶7 The Rutherfords filed suit on Levi’s behalf against the ski
team and Talisker. After discovery, the parties filed multiple
cross-motions for summary judgment. At issue here are the
motions concerning whether the Rutherfords’ claims for negligence
and premises liability against Talisker are barred either by the
release signed by Levi’s father or by the Act.
¶8 Regarding the arguments for the release, the district court
read this court’s precedent in Rothstein v. Snowbird Corp., 2007 UT
96, 175 P.3d 560, as meaning that all preinjury releases for
recreational skiing are unenforceable, while, pursuant to Berry v.
Greater Park City Co., 2007 UT 87, 171 P.3d 442, abrogated on other
[Talisker, as] the losing party.” Keith v. Mountain Resorts Dev.,
L.L.C., 2014 UT 32, ¶ 16 n.10, 337 P.3d 213.
3 Both defendants Talisker Canyons Finance Company and ASC
Utah were doing business as The Canyons at the time the events in
this case took place.
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Opinion of the Court
grounds by Penunuri v. Sundance Partners, Ltd., 2017 UT 54, 423 P.3d
1150, preinjury releases for competitive skiing are enforceable.
Based on this understanding, the district court held that the
preinjury release signed by Levi’s father was unenforceable
because the type of skiing Levi was engaged in at the time he
crashed was more similar to recreational skiing than competitive
skiing. The district court alternatively held that the release was
unenforceable under Hawkins ex rel. Hawkins v. Peart, which held
that a preinjury release signed by a parent on behalf of a minor was
unenforceable for violating Utah public policy. 2001 UT 94, 37 P.3d
1062, superseded by statute as stated in Penunuri v. Sundance Partners,
Ltd., 2013 UT 22, 301 P.3d 984. 4
¶9 The district court also denied Talisker’s motion in which it
argued that the Act’s machine-made snow exemption 5 barred the
Rutherfords’ claims. The court held that, pursuant to Clover v.
Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), there was a disputed
question of material fact as to whether a skier wished to confront
sticky, wet, machine-made snow from a machine that was allegedly
4 As previously noted, supra ¶ 2 n.1, and as stated in Penunuri v.
Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984, Hawkins has been
superseded by statute, Limitations on Liability for Equine and
Livestock Activities, Utah Code sections 78B-4-201 to -203. And at
first glance, the district court’s ruling appears to be in potential
conflict with Penunuri. This is not the case. On October 15, 2012, the
district court ruled on the enforceability of the release, which relied
on our holding in Hawkins. Penunuri, which acknowledged that the
amended statute “effectively overrule[d] our conclusion in
Hawkins,” was not issued until April 9, 2013. 2013 UT 22, ¶ 21 n.43.
The Rutherfords argue that we can and should reconcile our
holdings in Hawkins and Penunuri in this case by holding that “pre-
injury releases signed by a parent on behalf of a minor are void and
unenforceable as contrary to public policy,” and that this rule is
altered only when “a statute is amended to” make such releases
enforceable. We agree. See infra ¶¶ 21–22.
5The Act’s “machine-made snow exemption” refers to Utah
Code section 78B-4-402(1)(b), which includes “machine-made
snow” in the Act’s exemplary list of the “inherent risks of skiing.”
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Opinion of the Court
“not functioning properly” and whether that risk could be
eliminated through the exercise of reasonable care.
¶10 Talisker appealed the district court’s partial grant of the
Rutherfords’ motion for summary judgment and its denial of
Talisker’s motion for summary judgment. The court of appeals
affirmed the district court’s rulings.
¶11 With respect to the preinjury release, it affirmed on the
ground that the 2006 amendment to the Act, coupled with our
analysis in Rothstein, effectively overruled Berry and eliminated the
distinction between preinjury releases for recreational and
competitive skiing, making both types of releases unenforceable.
Rutherford ex rel. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App
190, ¶¶ 34–35, 333 P.3d 1266. Additionally, the court of appeals
“reject[ed] the trial court’s determination that the . . . 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.” Id. ¶ 30. We granted certiorari to review the court of
appeals’ decision. Based on our review, we hold that the court of
appeals reached the correct result, but that its declaration that
preinjury releases signed by parents on behalf of children do not
generally offend Utah’s public policy was in error.
¶12 The court of appeals also affirmed the district court’s
ruling with respect to the Act’s machine-made snow exemption,
stating that there is a “question[] of fact regarding the applicability
of the machine-made snow exemption” in the Act. Id. ¶ 18. We
affirm the court of appeals’ and the district court’s reliance on
Clover in making this determination. However, we take this
opportunity to clarify the implementation of Clover’s core holding
and therefore remand this case to the district court to make a
determination under Clover consistent with this opinion.
¶13 We exercise jurisdiction under Utah Code section
78A-3-102(3)(a).
STANDARD OF REVIEW
¶14 On certiorari, we review the decision of the court of
appeals for correctness, “giving no deference to its conclusions of
law.” State v. Harker, 2010 UT 56, ¶ 8, 240 P.3d 780 (citation omitted)
(internal quotation marks omitted). “Additionally, [with respect to
the decision of the district court,] we ‘apply the same standard of
review used by the court of appeals.’” Energy Claims Ltd. v. Catalyst
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Opinion of the Court
Inv. Grp. Ltd., 2014 UT 13, ¶ 17, 325 P.3d 70 (citation omitted). And
when, as here, “there are cross-motions for summary judgment, we
view the facts in the light most favorable to the losing party.” Keith
v. Mountain Resorts Dev., L.L.C., 2014 UT 32, ¶ 16 n.10, 337 P.3d 213
(citation omitted).
ANALYSIS
¶15 We first examine whether the release is enforceable. It is
not. Absent a relevant, contrary expression of intent from the
legislature, we adhere to our pronouncement in Hawkins ex rel.
Hawkins v. Peart that a parent cannot release his or her minor child’s
prospective claims for negligence. 2001 UT 94, 37 P.3d 1062,
superseded by statute as stated in Penunuri v. Sundance Partners, Ltd.,
2013 UT 22, 301 P.3d 984.
¶16 Second, we turn to interpreting the Act, relying on our
time-honored tools of stare decisis and statutory interpretation. For
purposes of our opinion today, we begin with our precedential
tools. We do so because in Clover v. Snowbird Ski Resort, 808 P.2d
1037 (Utah 1991), this court has already done much of the
important work of interpreting the Act. And we find its reasoning
both reasonable and persuasive, especially in light of the ambiguity
in the Act’s construction and the historical context in which it was
enacted. With this in mind, and in accord with our case law, we see
no reason to abandon the Clover court’s core interpretation of the
Act.
¶17 We do, however, take this opportunity to clarify the test
announced in Clover in a way that implements the core holding of
Clover by simplifying Clover’s two-prong subjective–objective
inquiry into a one-step objective inquiry. We believe this
clarification respects both the core holding of Clover and the
language of the Act. Accordingly, we remand this case to the
district court for a ruling consistent with this opinion.
I. PREINJURY RELEASES SIGNED ON BEHALF OF MINOR
CHILDREN VIOLATE PUBLIC POLICY
¶18 The release signed by Levi’s father violates public policy
and is not enforceable. “Preinjury releases from liability for one’s
negligence pit two bedrock legal concepts against one another: the
right to order one’s relationship with another by contract and the
obligation to answer in damages when one injures another by
breaching a duty of care.” Rothstein v. Snowbird Corp., 2007 UT 96,
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Opinion of the Court
¶ 6, 175 P.3d 560. With this tension in mind, we have stated that
preinjury releases are enforceable unless the party challenging the
release establishes an exception to that rule. Pearce v. Utah Athletic
Found., 2008 UT 13, ¶ 14, 179 P.3d 760 (“[P]eople may contract away
their rights to recover in tort for damages caused by the ordinary
negligence of others.”) abrogated on other grounds by Penunuri v.
Sundance Partners, Ltd., 2017 UT 54, 423 P.3d 1150; Berry v. Greater
Park City Co., 2007 UT 87, ¶ 12, 171 P.3d 442 (“[A] person should
retain the power to contract away the right to recover damages for
the negligence of another” but that right is “subject to many
conditions and limitations.”), abrogated on other grounds by Penunuri,
2017 UT 54.
¶19 Preinjury releases are generally governed by contract law.
Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶ 5, 37 P.3d 1062
(“[P]arties may obtain contractual releases from liability for
negligent action . . . where one party agrees to release the other
from liability for future injuries.”); Jacobsen Constr. Co. v. Structo Lite
Eng’g, Inc., 619 P.2d 306, 310 (Utah 1980) (noting that “the field of
contract law is more than adequate to deal with” preinjury
releases). Nevertheless, preinjury releases remain subject to several
exceptions. We have previously identified three such exceptions to
preinjury release enforceability: “(1) releases that offend public
policy . . . (2) releases for activities that fit within the public interest
exception . . . and (3) releases that are unclear or ambiguous.”
Pearce, 2008 UT 13, ¶ 14 (citations omitted). And while some
jurisdictions conflate the public interest and public policy
exceptions, 6 we have expressly distinguished the two in the context
of preinjury releases. See id.; see also Penunuri v. Sundance Partners,
Ltd., 2013 UT 22, ¶ 25, 301 P.3d 984.
6 See, e.g., Brown v. Soh, 909 A.2d 43, 48 (Conn. 2006) (applying
Tunkl public interest factors to determine whether “contract[]
violate[d] public policy” (citation omitted) (internal quotation
marks omitted)); Ash v. N.Y. Univ. Dental Ctr., 564 N.Y.S.2d 308, 313
(N.Y. App. Div. 1990) (applying Tunkl public interest factors but
holding that release was “invalid as a matter of public policy”);
Olson v. Molzen, 558 S.W.2d 429, 432 (Tenn. 1977) (analyzing release
under “public interest” factors but holding that release was
“contrary to public policy”).
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Opinion of the Court
¶20 Our public interest exception applies the six-factor test
found in Tunkl v. Regents of University of California, 383 P.2d 441,
444–47 (Cal. 1963), which was adopted in Berry, 2007 UT 87, ¶ 15,
and further analyzed in Pearce, 2008 UT 13, ¶¶ 16–21. In contrast,
the public policy exception remains “a doctrine of vague and
variable quality” based on “constitutional or statutory provisions
or the common law.” Penunuri, 2013 UT 22, ¶ 26 (citations omitted)
(internal quotations marks omitted). This delineation between the
two standards is necessary to maintain the “fluid nature” of the
public policy defense, available in other contract claims, and to
avoid the conflation of that defense with the six Tunkl factors. Cf.
Wolf v. Ford, 644 A.2d 522, 527 (Md. 1994). 7
¶21 In the context of releases signed by parents on behalf of
minors, we have unambiguously held that preinjury releases for
negligence violate public policy. See Hawkins, 2001 UT 94, ¶ 13. We
based our conclusion on a number of observations, all of which
remain equally forceful today. First, Talisker “has cited no source of
law, and we are aware of none, granting parents in Utah a
general[,] unilateral right to compromise or release a child’s
existing causes of action without court approval or appointment to
that effect.” Id. ¶ 11. Quite to “the contrary, Utah law provides
various checks on parental authority to ensure a child’s interests
are protected.” Id. Indeed, “[u]nder the Uniform Probate Code, for
example, when a minor has a cause of action, the minor or another
7 To address such concerns, some of the jurisdictions that
conflate public interest and public policy do not limit their public
policy exception to the six factors laid out in Tunkl. See Brown, 909
A.2d at 48 (holding that a “totality of the circumstances” test is to
be applied, which may include analysis of the six factors); Wolf, 644
A.2d at 527 (stating that the six factors may be “considered by a
court in determining whether a given transaction involves public
interest, but the six factors are not conclusive”); Vodopest v.
MacGregor, 913 P.2d 779, 786 (Wash. 1996) (en banc) (stating that
the Tunkl factors “are not the exclusive considerations to which a
court may look in the determination of public policy”). Even Tunkl
itself states that “[n]o definition of the concept . . . can be contained
within the four corners of a formula;” rather, the six factors are
merely a “rough outline” of when an “exculpatory provision[] will
be held invalid.” 383 P.2d at 444–45.
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Opinion of the Court
person interested in the minor’s welfare may petition for the
appointment of a conservator.” Id.; see also UTAH CODE § 75-5-404.
“Significantly, a parent may act as a minor’s conservator, not as a
matter of right, but only when appointed by the court.” Hawkins,
2001 UT 94, ¶ 11; see also UTAH CODE § 75-5-410(1). Furthermore,
“we see little reason to base the validity of a parent’s contractual
release . . . on the timing of [the] injury. Indeed, the law generally
treats preinjury releases . . . with greater suspicion than postinjury
releases.” Hawkins, 2001 UT 94, ¶ 13. 8
¶22 Talisker raises but one argument in opposition. According
to Talisker, by superseding Hawkins with respect to certain equine
and livestock activities, the legislature has made clear that
preinjury releases signed by parents on behalf of their children do
not offend public policy. Talisker’s logic does not follow, and this
argument may hurt Talisker’s case more than it helps. Indeed, it is
difficult to logically conclude that the legislature’s decision to allow
for preinjury releases by parents for minors in one very narrow
area translates to a general policy that all such preinjury releases
are valid. The conclusion that the legislature meant to say that
preinjury releases signed by parents for minors are valid only in the
unique context of equine activities is equally likely. In short, the
legislature’s action sheds no light on its view of the public policy
surrounding the larger question, and, absent any positive signal
from the legislature, we are loath to forsake Hawkins and its
reasoning.
8 Just as at the time we handed down Hawkins, the view that
parental releases are not enforceable appears to continue to enjoy
the support of a large majority of jurisdictions to take up the issue.
See Hawkins, 2001 UT 94, ¶ 10 (“A clear majority of courts treating
the issue have held that a parent may not release a minor’s
prospective claim for negligence.”); see also Rosen v. B.J.’s Wholesale
Club, Inc., 51 A.3d 100, 107 (Md. Ct. Spec. App. 2012) (“[W]e find
that a substantial majority of the state courts that have squarely
considered whether a release agreement may bar future negligence
claims of a child have held that such agreements are invalid and
unenforceable on public policy grounds.”), rev’d, 80 A.3d 345 (Md.
2013).
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¶23 Having concluded that the preinjury release Levi’s father
signed on Levi’s behalf does not preclude the Rutherfords’ claims,
we turn to Talisker’s argument that the Act stands as a bar to the
Rutherfords’ claims.
II. CLOVER IS ENTITLED TO STARE DECISIS RESPECT
¶24 The district court denied Talisker’s motion for summary
judgment on the issue of negligence and premises liability based on
this court’s decision in Clover v. Snowbird Ski Resort, 808 P.2d 1037
(Utah 1991), holding that there remained an issue of disputed
material fact regarding the Act’s machine-made snow exemption
that precluded summary judgment. The court of appeals affirmed
the denial on the same grounds. See Rutherford ex rel. Rutherford v.
Talisker Canyons Fin. Co., 2014 UT App 190, ¶ 18, 333 P.3d 1266.
¶25 In a supplemental briefing order, we invited the parties to
brief the court on whether the test set forth in Clover should be
repudiated or modified in any way. We also invited the parties to
brief the court on what role stare decisis should play in
consideration of that question.
¶26 Having considered the parties’ arguments and reviewed
Clover at great length, we now hold that Clover should not be
repudiated. Instead, we offer clarification on the implementation of
Clover’s holding. Principles of stare decisis compel this result.
A. Stare Decisis Framework
¶27 “[W]e do not overrule our precedents lightly.” State v.
Guard, 2015 UT 96, ¶ 33, 371 P.3d 1 (citations omitted) (internal
quotation marks omitted). The stability and legitimacy of our legal
system requires us to undertake the review of precedents in a spirit
of deference and humility. See State v. Walker, 2011 UT 53, ¶ 68, 267
P.3d 210 (Lee, J., concurring); see also Learned Hand, The Spirit of
Liberty, in THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF LEARNED
HAND 189, 190 (Irving Dillard ed., 3d ed. 1960) (“The spirit of
liberty is the spirit which is not too sure that it is right.”).
Concomitantly, “[t]hose asking us to overturn prior precedent have
a substantial burden of persuasion.” Met v. State, 2016 UT 51, ¶ 43,
388 P.3d 447 (quoting State v. Menzies, 889 P.2d 393, 398 (Utah
1994), superseded by constitutional amendment as stated in State v. Legg,
2018 UT 12, 417 P.3d 592) (internal quotation marks omitted). And
as a result, “unless and until a party meets its burden of
establishing that our prior case law is unworthy of stare decisis
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Opinion of the Court
respect,” Waite v. Labor Comm’n, 2017 UT 86, ¶ 88, 416 P.3d 635
(Pearce, J., concurring) (emphasis added), we do not overturn
“weighty precedent[],”Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345
P.3d 553; see also Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89,
¶ 57, 416 P.3d 663 (“We . . . don’t overrule our precedents unless
they’ve proven to be unpersuasive and unworkable, create more
harm than good, and haven’t created reliance interests.”). Indeed,
“[t]o reverse course, we require as well what we have termed a
‘special justification’—over and above the belief ‘that the precedent
was wrongly decided.’ . . . What is more, stare decisis carries
enhanced force when a decision . . . interprets a statute.” Kimble v.
Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (citation omitted). 9
9 Our case law, and case law from around the country, has
engaged with the idea that a court’s interpretation of a legislative
enactment is subject to heightened stare decisis. See Hackford v. Utah
Power & Light Co., 740 P.2d 1281, 1283 (Utah 1987) (Zimmerman, J.)
(noting that in determining whether to overturn a prior decision,
“[t]he answer must take into account the fact that we are not
dealing with an interpretation of the common law . . . [;] [r]ather we
are dealing with an interpretation of a statute”); id. at 1288 (Howe,
J., concurring in result) (“The doctrine of stare decisis, weighty in
any context, is especially so in matters of statutory construction.”
(emphasis added) (citation omitted) (internal quotation marks
omitted)), superseded on other grounds by statute as stated in Benda v.
Roman Catholic Bishop of Salt Lake City, 2016 UT 37, 384 P.3d 207; see
also A.C. Fin., Inc. v. Salt Lake Cty., 948 P.2d 771, 775 (Utah 1997)
(affirming Hackford factors considered in overruling precedent
concerning statutory interpretation); Dep’t of Human Servs. v. Jacoby,
1999 UT App 52, ¶ 19, 975 P.2d 939 (noting that in interpreting a
statute, “we consider not only the legislative intent but also the
gloss judicial precedent attaches to the statute” (citing Hackford, 740
P.2d at 1283)); accord Perry v. State, 741 A.2d 1162, 1195 (Md. 1999)
(“[C]onsiderations of stare decisis weigh heavily in the area of
statutory construction, especially where the legislature is free to
change the court’s interpretation of its legislation . . . .” (citation
omitted) (internal quotation marks omitted)); Conway v. Town of
Wilton, 680 A.2d 242, 254 (Conn. 1996) (“Our decision that we
should not overrule precedent unless cogent reason and
inescapable logic require it has particular force when the precedent
involved concerns the interpretation or construction of a statute.”).
(cont.)
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To be clear, “an argument that we got something wrong—even a
good argument to that effect—cannot by itself justify scrapping
settled precedent. Or otherwise said, it is not alone sufficient that
we would decide a case differently now than we did then.” Id.
¶28 In evaluating the weight that we should afford our
precedents, we look primarily to two factors. First, we examine “the
persuasiveness of the authority and reasoning on which the
precedent was originally based.” Eldridge, 2015 UT 21, ¶ 22. In the
context of statutory interpretation, “this means we consider
whether the prior interpretation is ‘[]reasonable given the statutory
framework in existence at that time.’” State v. Robertson, 2017 UT 27,
¶ 31, 438 P.3d 491 (alteration in original) (quoting A.C. Fin., Inc. v.
Salt Lake Cty., 948 P.2d 771, 775 (Utah 1997)). Second, we determine
“how firmly the precedent has become established in the law since
it was handed down.” Eldridge, 2015 UT 21, ¶ 22; see also Robertson,
2017 UT 27, ¶ 34 (“The second factor we consider in deciding
whether to overrule a prior interpretation of a statute is ‘the degree
to which that interpretation has worked itself into the state of the
What some scholars have termed the “super stare decisis” owed
to statutory precedents promotes a close and fruitful dialogue
between the legislature and the courts. William N. Eskridge, Jr.,
Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1362 (1988)
(“Statutory precedents . . . often enjoy a super-strong presumption
of correctness.”). We have often encouraged such dialogue as a
means of enhancing the effectiveness, legitimacy, and wisdom of
our government. See, e.g., Living Rivers v. Exec. Dir. of the Utah Dep’t
of Envtl. Quality, 2017 UT 64, ¶ 31 n.1, 417 P.3d 57 (“We would
welcome clarification from the legislature . . . .”); Jones v. Barlow,
2007 UT 20, ¶ 61 n.4, 154 P.3d 808 (“[T]his court engages in a
dialogue with the legislature . . . .”). The legislature can preempt a
field in which the judiciary has interpreted ambiguous language by
enacting statutes that run contrary to our holdings. When the
legislature instead re-enacts a statute without altering the
ambiguous provisions, this conversation between the legislative
and judicial branches is strong evidence that the legislature agrees
with the court’s interpretation.
While the extent to which this doctrine exists in our law may be
somewhat of an open question, we note its general existence and
the force of the logic behind its application.
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Opinion of the Court
law.’” (quoting A.C. Fin. Inc. v. Salt Lake Cty., 948 P.2d 771, 775
(Utah 1997))). In evaluating how firmly precedent has become
established in the law, we look to a variety of factors including the
age of the precedent, the public reliance on the precedent, the
workability of the precedent, and the consistency of the precedent
with other principles of law. See Eldridge, 2015 UT 21, ¶¶ 34–40; see
also Robertson, 2017 UT 27, ¶¶ 34–38 (noting that we inquire
whether “more good than harm will come by departing from
precedent” and that this inquiry is informed by policy arguments
and “practical factors” (citations omitted) (internal quotation marks
omitted)). “Ultimately, we are concerned with whether overruling
our precedent would upend broad swaths of the legal landscape.”
Robertson, 2017 UT 27, ¶ 34. We therefore hold Talisker to a heavy
burden in this case.
B. Stare Decisis Applied to Clover
¶29 In Clover, this court unanimously rejected the notion that
the Act categorically bars recovery for injury caused by risks
enumerated in the Act’s exemplary list. 808 P.2d at 1047. Instead,
Clover held that there is a secondary inquiry required to determine
whether the injury-causing enumerated risk is truly an inherent
risk—and therefore a risk for which the skier cannot bring a
claim—under the Act. Id. at 1044–45. To implement this holding,
Clover identified two categories of risks that it considered to be
inherent risks within the meaning of the Act: (1) “risks . . . which
skiers wish to confront as an essential characteristic of skiing” and
(2) “hazards which no one wishes to confront but cannot be
alleviated by the use of reasonable care on the part of a ski resort.”
Id. at 1047. In other words, courts must undertake a secondary
inquiry—a “case-by-case” analysis informed by the two categories
of inherent risks—to determine if the injury-causing risk is properly
understood as an inherent risk of skiing within the meaning of the
Act. Id. at 1045.
¶30 While perhaps the implementation of this holding could
have been more clearly articulated, the essential holding of Clover—
that a secondary inquiry is required to determine whether risks
enumerated in the Act constitute inherent risks of skiing as the
legislature intended inherent risks to be understood—commands
deference under stare decisis given the persuasiveness of its
reasoning and the extent to which it has firmly established itself in
the law. Based on the required stare decisis analysis, we conclude
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that Talisker has been unable to meet the heavy burden necessary
for us to overturn Clover. We now address each element of our stare
decisis test.
1. Persuasiveness
¶31 We find that the Clover court’s construction of the Act is
persuasive. The Clover court correctly apprehended that the
legislature intended the exemplary risks to be understood in the
context of the Act as a whole and against the backdrop of the sport
of skiing, affording them a common sense meaning. Understood in
this way, the exemplary risks present textbook examples of the
inherent risks of skiing and are never “subject to elimination,” as
the dissent laments. Infra ¶ 114.
¶32 First, Clover’s construction ensured that the modifier
“integral part” was given effect while also avoiding the pitfall of
turning the list of enumerated risks into a nullity. Second, its
interpretation avoided a parade of absurd consequences and
comported with the codified purpose of the Act. 10 Finally, Clover’s
interpretation respected the canon of constitutional avoidance.
Clover recognized that, unless the Act was construed to allow suits
arising from the negligence of ski area operators—i.e., from any
risks that were not integral to the sport—the statute would
effectively abolish the negligence cause of action against ski area
operators. And this, in turn, could violate the Open Courts Clause
of the Utah Constitution, which would require the court to strike
down the Act.
a. Clover’s Statutory Construction Analysis
¶33 The Clover court began its statutory analysis with a plain
language puzzle posed by the Act. On the one hand, the statute
includes a non-exhaustive exemplary list of “inherent risks of
skiing.” Clover, 808 P.2d at 1044–45. But, on the other hand, the
statute defines the “inherent risks of skiing” as those “dangers or
conditions which are an integral part of the sport of skiing.” Id. at
1044 (citation omitted).
10 Clover understood that the purpose of the statute was “to
clarify the law, not to radically alter ski resort liability.” 808 P.2d at
1045 (internal quotation marks omitted).
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Opinion of the Court
¶34 The interpretive puzzle, then, is what to do with the
ambiguity generated when one of the listed risks manifests itself in
such a way that it plainly is not “an integral part of the sport of
skiing.” Talisker suggests that “integral part of the sport of skiing”
is merely a synonym for “inherent.” In Talisker’s view, if a risk
appears in the exemplary list, then the legislature has already
determined that the risk is an integral part of the sport of skiing.11
But this interpretation disrespects the structure of the statute. By
Talisker’s reasoning, the phrase “integral part of the sport of
skiing” does no work; the statute could just as easily state that ski
area operators are shielded from liability for any of the “inherent
risks of skiing, including, but not limited to,” the enumerated list of
risks. In other words, the definition of “inherent risks of skiing”
that Talisker prefers under the Act is the same as if the legislature
had entirely omitted the phrase “integral part of the sport of
skiing.” This flouts the canon against surplusage. See Turner v.
Staker & Parson Cos., 2012 UT 30, ¶ 12, 284 P.3d 600 (“Wherever
possible, we give effect to every word of a statute, avoiding ‘[a]ny
interpretation which renders parts or words in a statute inoperative
or superfluous.’” (alteration in original) (citation omitted)).
¶35 The Clover court concluded that the best way to give effect
to all terms in the statute was to hold that “the dangers listed in
[the definition of ‘inherent risks of skiing’] are modified by the term
‘integral part of the sport of skiing.’” 808 P.2d at 1044. And
“[t]herefore, ski area operators are protected from suits to recover
for injuries caused by one or more of the [enumerated risks] only to
the extent that those [risks], under the facts of each case, are
integral aspects of the sport of skiing.” Id. Clover explained that this
interpretation pays respect to the “ordinary and accepted meaning
of the term ‘inherent’” as used by the legislature by limiting
11 We note that this argument, which Talisker raises in its
supplemental briefing, differs in some respects from the arguments
that Talisker presented at oral argument, when Talisker at times
seemed to suggest that inclusion on the exemplary list may not be
dispositive. In the interest of readability, and because any
differences in Talisker’s arguments over time do not affect our
ultimate conclusion, this opinion does not differentiate between the
different arguments made by Talisker at different stages of this
litigation.
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inherent risks to “risks that are so integrally related to skiing that
the sport cannot be undertaken without confronting these risks.” Id.
at 1047. In the Clover court’s estimation, then, the legislature
intended the enumerated risks to constitute inherent risks—and
therefore bar recovery for injuries resulting therefrom—only when
those risks are encountered in such a way that the risk is an integral
part of the sport of skiing. We believe that this is a completely
reasonable interpretation of the Act.
¶36 The dissent argues that the list in section 402 is “rendered
superfluous if enumerated risks are still subject to elimination if
they are not deemed ‘integral’ to skiing.” Infra ¶ 114. We disagree.
The list still provides independent value even when subjected to
the secondary inquiry under Clover.
¶37 The list is not rendered superfluous because section 404
requires ski area operators to post warning signs that list the
inherent risks of skiing set forth in section 402. UTAH CODE
§ 78B-4-404. In this sense the list provides important, independent
value in the context of the statute because it is directly related to the
discharge of a ski area operator’s duties under the Act. See infra
¶ 52 (explaining that ski area operators discharge their duty of
reasonable care by posting signage that lists the enumerated
inherent risks of skiing). 12
12 The dissent argues that “the warning sign as imagined by the
majority is pointless” and “a ski resort would have no reason to list
[the enumerated] risks on a posted sign” if one accepts Clover and
our majority opinion here. Infra ¶ 114 n.35. But as we have
explained, this is simply not true. The legislature has explicitly
required ski resorts to post warning signs that list the enumerated
risks and explains the limitations on liability of ski area operators.
UTAH CODE § 78B-4-404. This alone is reason enough for ski area
operators to post these warning signs. Additionally, the legislature
could have had any number of reasons for requiring the warning
signs, even if the enumerated risks are subject to a secondary
inquiry under Clover. Perhaps the legislature wanted to provide
notice to patrons that ski resorts operate in a unique world of
liability. Or perhaps the legislature wanted to inform first-time
skiers—such as tourists who may be unfamiliar with the sport—of
the types of risks they could expect to encounter while skiing. In
(cont.)
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Opinion of the Court
¶38 Additionally, the list helps inform our understanding of
what kind of non-enumerated risks are inherent risks of skiing
through the canon of ejusdem generis. “In its simplest terms, ejusdem
generis posits that general catchall terms appearing at the beginning
or end of an exemplary statutory list are understood to be informed
by the content of the terms of the list.” GeoMetWatch Corp. v. Utah
State Univ. Research Found., 2018 UT 50, ¶ 26, 428 P.3d 1064 (citation
omitted) (internal quotation marks omitted). “Ejusdem generis
presumes that in order to give meaning to a general term, the
general term is understood as restricted to include things of the
same kind, class, character, or nature as those specifically
enumerated . . . .” Id. (citation omitted) (internal quotation marks
omitted). The Act uses the general catchall term of “dangers or
conditions which are an integral part of the sport of . . . skiing.”
UTAH CODE § 78B-4-402(1). If we were tasked with determining
whether a danger or condition not covered by the exemplary list
was an inherent risk of skiing, we would ask how the specifically
enumerated risks can inform our understanding of the general
“dangers or conditions which are an integral part of the sport of . . .
skiing.” One way in which the specifically enumerated risks would
inform our understanding is to consider the character and nature of
those risks. Here, the specifically enumerated risks are presented in
the “character” or “nature” in which a skier would reasonably
expect to encounter them while skiing. Instead of listing, say,
“faulty lift towers” or “improperly constructed terrain parks,” the
Act simply lists “lift towers” and “terrain parks.” Therefore, we
would only consider a non-enumerated danger or condition to
constitute an inherent risk if that danger or condition was of the
same character or nature as the enumerated risks—that is, if the
danger or condition was one that a skier would reasonably expect
to encounter while skiing. 13
any event, the list of enumerated risks is not rendered superfluous
by Clover because the enumerated risks are still important to
fulfilling a ski area operator’s duty under section 404.
13 The dissent mischaracterizes this discussion as standing for
the proposition that “we can ignore the straightforward application
of a list because its sole function might be to inform the meaning of
the catchall.” Infra ¶ 113 n.34 (emphasis added). As we have just
discussed above, the list serves the independent purpose of giving
(cont.)
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¶39 And Clover’s interpretation also makes sense in practice.
As Clover succinctly puts it, refusing to modify the list of risks by
reference to the phrase “integral part of the sport of skiing” would
“result in a wide range of absurd consequences.” 808 P.2d at 1044–
45. Under Talisker’s proposed interpretation of section 402, a
collision with a lift tower that the ski resort has intentionally
camouflaged as to be practically invisible to skiers is an “inherent
risk of skiing” because “impact with lift towers” is an enumerated
risk. That cannot be right; such an interpretation defies our
understanding of the “ordinary and accepted meaning of the term
‘inherent’” as used by the legislature in the Act. Id. at 1047. But
such results are inevitable under Talisker’s interpretation.
¶40 Indeed, the universe of potential absurd scenarios is nearly
limitless. For example, the Act includes “rocks” in the definition of
inherent risks. UTAH CODE § 78B-4-402(1)(c). Given the location of
ski resorts on mountains, skiers reasonably expect to encounter
rocks while skiing. And if a skier’s injury was caused by a rock in
the state or condition in which a skier would expect to encounter a
rock while skiing, then the Act would undoubtedly bar recovery for
that injury. But what skiers would not reasonably expect to
encounter—and what the Act could not reasonably bar recovery
for—are, for example, rocks gathered in a pile in the middle of a
blind spot on a beginner ski run waiting to be placed for
landscaping.
¶41 Fortunately, it is a common sense and long-standing canon
of construction in Utah that, as between competing interpretations
of an ambiguity in a statute, the one that avoids such nonsensical
outcomes is generally preferred. See Anderson v. Utah Cty., 368 P.2d
912, 913 n.3 (Utah 1962) (“[I]t is a general rule that where a statute
is ambiguous in terms and fairly susceptible of two constructions,
content to section 404’s requirement that ski area operators post
warning signs. See supra ¶ 37, n.12. Our discussion of ejusdem
generis exists here only to demonstrate an additional, ancillary
function of the list. In no way, shape, or form do we suggest that
application in a hypothetical ejusdem analysis is “the sole function”
of the list. Nor do we use ejusdem to interpret or “overrid[e]” the
enumerated risks, as the dissent suggests. Infra ¶ 113 n.34. Instead,
we have simply posited how the list would help inform an ejusdem
analysis of a non-enumerated risk.
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Opinion of the Court
the unreasonableness or absurdity which may follow one
construction or the other may properly be considered.
Unreasonable, absurd, or ridiculous consequences should be
avoided.” (citation omitted) (internal quotation marks omitted)); see
also Bagley v. Bagley, 2016 UT 48, ¶ 27, 387 P.3d 1000 (“[T]he absurd
consequences canon . . . merely resolve[s] an ambiguity by
choosing the reading that avoids absurd results.” (third alteration
in original) (citation omitted) (internal quotation marks omitted));
Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 46, 357 P.3d 992 (Durrant,
C.J., writing for the majority on this issue) (“Our caselaw
recognizes two different interpretive tools concerning absurdity.
We have referred to the first as the absurd consequences canon and
to the second as the absurdity doctrine. We apply the absurd
consequences canon to resolve ambiguities in a statute.”). 14
¶42 The dissent takes what it seems to view as a different tack
than Talisker, arguing that listed risks are only inherent risks to the
extent that the injury-causing risk “falls within the ordinary
meaning of the terms of the statute.” Infra ¶ 186 n.50. But it is
unclear exactly what the dissent means when it says it would
conduct an ordinary meaning analysis.
¶43 For example, the pile of rocks intended for later
landscaping placed in the middle of a beginner run is not a risk that
a skier would expect to encounter when skiing. And it seems that
the pile of rocks is certainly a “surface . . . condition[] such as . . .
rocks” within the ordinary meaning of the term. UTAH CODE § 78B-
4-402(1)(c). After all, it is a pile of rocks on the surface of a ski run.15
14 The dissent accuses us of “distort[ing] the absurdity
doctrine.” Infra ¶ 133. This criticism entirely misses the point. We
do not contend that the absurdity doctrine applies here. Because
we conclude—contra to the dissent—that section 402 is ambiguous,
“the question is not one of overriding text that is unmistakably
clear” and therefore “we view this as a case for the absurd
consequences canon, not the absurdity doctrine.” Utley, 2015 UT 75,
¶ 39 n.14 (Lee, A.C.J., concurring in the judgment on this issue).
15 It is easy to think of similar hypotheticals. For example, a
twenty-yard bare spot running through the middle of a groomed
ski run is not a risk that a skier would expect to encounter. But it is
(cont.)
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The dissent should—but fails to—own that its interpretation
inexorably leads to this absurd consequence and responds that, “at
least arguably,” this pile of rocks would not “qualify as a ‘natural’
‘surface or subsurface condition.’” Infra ¶ 131. But it is entirely
unclear why this would be the case—and the dissent’s qualification
of its conclusion with “at least arguably” suggests that it does not
know either. 16
b. Purpose of the Act
¶44 This court’s analysis in Clover was based largely on “[t]he
express purpose of the statute, codified in section [78B-4-401],
[which] is ‘to clarify the law in relation to skiing injuries and the
risk[s] inherent in the sport.’” 808 P.2d at 1045. To clarify means to
“make . . . easier to understand.” Clarify, WEBSTER’S II NEW COLLEGE
DICTIONARY (3d ed. 2005). As we stated in Clover, the legislature’s
purpose in clarifying the law does not suggest an intent to
“radically alter ski resort liability,” rather it shows an intent to
make the law of ski resort liability as it existed in 1979—when the
legislature passed the Act—easier to understand. 808 P.2d at 1045.
To determine the persuasiveness of Clover’s holding, we must look
at the law as it existed in 1979 when the Act came into effect.
¶45 To better understand the confluence of events that
culminated in the Act’s passage in 1979, it is helpful to have a basic
understanding of the doctrine of assumption of risk. There are
three distinct branches of assumption of risk: (1) primary express,
inescapable that the bare spot would be considered a “bare spot[]”
under the dissent’s analysis.
16 Although the dissent bemoans what it views as a lack of
predictability with the Clover test, it is unclear that the dissent’s
own proposed analysis lends itself to predictability. The dissent
repeatedly resorts to qualifiers such as “could reasonably be
dismissed as,” “[t]he same may hold,” and “at least arguably” when
using its ordinary meaning analysis to engage our hypotheticals.
Infra ¶ 131 (emphases added). If the dissent is actually unable to
determine whether these hypotheticals qualify as inherent risks
under its analysis then it should so indicate. Likewise, if the dissent
thinks that the risks in the hypotheticals, such as the pile of rocks or
the twenty-yard bare spot, actually would qualify as inherent risks
under its analysis, it should own up to that fact.
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Opinion of the Court
(2) primary implied, and (3) secondary. Moore v. Burton Lumber &
Hardware Co., 631 P.2d 865, 869–70 (Utah 1981). Primary express
assumption of risk “involves a contract[] . . . in which a party
expressly contracts not to sue for injury . . . which may thereafter be
occasioned by the acts of another.” Jacobsen Constr. Co. v. Structo-
Lite Eng’g, Inc., 619 P.2d 306, 310 (Utah 1980). As we have held the
preinjury liability release in this case to be unenforceable, see supra
¶¶ 18–23, this branch is not at issue here.
¶46 Primary implied, more often called primary assumption of
risk, “involves a relationship in which [the] defendant simply owes
no duty of care to the plaintiff.” Moore, 631 P.2d at 870. Because no
duty is owed, there can be no negligence. This branch of
assumption of risk applies when a person is “injured as a
consequence of being exposed to a risk which the [defendant] in the
exercise of due care could not avoid.” Tiller v. Atl. Coast Line R.R.
Co., 318 U.S. 54, 71 (1943) (Frankfurter, J., concurring); see also
Wendy A. Faber, Comment, Utah’s Inherent Risks of Skiing Act:
Avalanche from Capitol Hill, 1980 UTAH L. REV. 355, 358 (“Primary
assumption of risk involves no fault because it refers to dangers
that are ‘inherent’ in a given activity—dangers that cannot be
alleviated by reasonable care.”) [hereinafter Faber, Utah’s Inherent
Risks of Skiing Act]; Kent Feuerhelm et al., From Wright to Sunday
and Beyond: Is the Law Keeping Up With the Skiers?, 1985 UTAH L. REV.
885, 886 (“Primary assumption of risk bars a plaintiff from
recovering for injuries caused by dangers inherent in the activity.
Because the dangers are inherent, the theory assumes that no
reasonable amount of care can alleviate the risk, thus no fault is
involved.”). Primary assumption of risk is perhaps best understood
to negate the further existence of any duty on the behalf of the
defendant once the defendant has discharged its initial duty of
reasonable care. That is, once a ski area operator has taken
reasonable care to protect its patrons, it cannot be held liable for
any injuries resulting from those inherent risks that persist despite
the exercise of reasonable care.
¶47 Secondary assumption of risk applies when a person
“unreasonabl[y] encounter[s] . . . a known and appreciated risk.”
Moore, 631 P.2d at 870. This branch is treated, for all intents and
purposes, as a “phase of contributory negligence.” Jacobsen Constr.,
619 P.2d at 310. Whereas the primary assumption of risk doctrine
provides that there is no duty, thereby barring a claim for
negligence, secondary assumption of risk is an affirmative defense
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to a substantiated claim of negligence. Id. Under this branch, if a
plaintiff proves that the defendant is negligent, the defendant may
still avoid liability by establishing secondary assumption of risk. In
fact, prior to 1973, secondary assumption of risk served as a
“complete bar to recovery” for plaintiffs. Id. at 309.
¶48 In 1973, the Utah Legislature adopted the Utah
Comparative Negligence Act, 1973 Utah Laws 710–11, “to avoid the
harshness visited upon plaintiffs as a result of the all-or-nothing
nature of the former rule of law,” Jacobsen Constr., 619 P.2d at 309.
Specifically, the Comparative Negligence Act stated that
“[c]ontributory negligence shall not bar recovery in an action . . . to
recover damages for negligence . . . if such negligence was not as
great as the negligence . . . of the person against whom recovery is
sought.” 1973 Utah Laws 710–11. Additionally, the Comparative
Negligence Act provided that, for purposes of the act,
“‘contributory negligence’ includes ‘assumption of risk.’” Id. at 711.
Assumption of risk as used in this context represented the
secondary form of assumption of risk. Moore, 631 P.2d at 870; see
also Jacobsen Constr., 619 P.2d at 312 (“We thus hold that under our
comparative negligence statute ‘assumption of the risk’ . . . is to be
treated . . . in its secondary sense . . . .”). 17
¶49 Additionally, by 1979, there was broad national consensus
that the common law defense of assumption of risk was being
eroded by case law, especially with respect to ski area operators.
See Sunday v. Stratton Corp., 390 A.2d 398, 401–03 (Vt. 1978) (holding
that a snow-covered bush is not an assumed risk of skiing); Michael
J. Farrow, Comment, Ski Operators and Skiers—Responsibility and
17 Although the Comparative Negligence Act used the blanket
term “assumption of risk,” a closer examination of primary and
secondary assumption of risks confirms that, as used in this
context, only the secondary assumption of risk is in play. This
follows because the primary assumption of risk reflects the notion
that no duty was owed to the plaintiff. In those cases, there could
be no comparative negligence as between plaintiff and defendant
because defendant could never be negligent as a matter of law. See
Hale v. Beckstead, 2005 UT 24, ¶ 24, 116 P.3d 263 (“Where there is no
duty, there is no fault to compare or distribute under the
comparative fault scheme.”).
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Opinion of the Court
Liability, 14 NEW ENG. L. REV. 260, 268–70 (1978–79) (discussing the
ski industry’s reaction to the Sunday decision). Thus, when the
legislature passed the Act to “clarify the law,” by providing that
skiers “assume[] the risks inherent in the sport of skiing,” it seems
clear that the legislature intended to restore and maintain the law
of ski resort liability as it existed prior to the perceived erosion of
the defense of assumption of risk. UTAH CODE § 78B-4-401. This is
supported by the fact that the confusion in the law that the
legislature intended to clarify was only the “confusion as to
whether a skier assumes the risks inherent in the sport of skiing.” Id.
(emphasis added).
¶50 In Clover, we cited Wright v. Mt. Mansfield Lift, Inc., 96 F.
Supp. 786 (D. Vt. 1951), for the proposition that “when the [Act]
was enacted the majority of jurisdictions employed the doctrine of
primary assumption of risk” to ski area operator liability. 808 P.2d
at 1045; see also Faber, Utah’s Inherent Risks of Skiing Act at 359
(“[P]rimary assumption of the risk . . . traditionally governed ski
injury litigation.”). Relying on the doctrine of primary assumption
of risk, we concluded that the legislature was attempting to define
and clarify the duty of ski area operators under this existing
doctrine. Clover, 808 P.2d at 1045–46. This appears to be correct.
¶51 Talisker argues that the legislature actually intended to
redefine the duty of ski area operators in the Act, and that ski area
operators therefore owe no duty to skiers for any of the risks listed
in section 402 as “inherent risks of skiing.” However, such an
interpretation would amount to a radical alteration of tort law,
which is something the legislature did not intend. Rather, as we
noted in Clover, the legislature’s purpose according to section 401
was to clarify that ski area operators may still raise a defense of
primary assumption of risk against a skier’s claim for liability.18
18 While the Act appears to have conflated the two forms of
assumption of risk when it announced that “[n]otwithstanding
anything in [the Comparative Negligence Act] to the contrary, no
skier shall make any claim against . . . any ski operator for injury
resulting from any of the inherent risks of skiing,” 1979 Utah Laws
909, this is understandable given the Comparative Negligence Act’s
ambiguous use of the term “assumption of risk,” see supra ¶ 49
n.17. This confusion is even more understandable given that the
Act was passed before we issued our decisions in Jacobsen
(cont.)
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Under this doctrine, ski area operators owe a duty to exercise
reasonable care, but a skier assumes the inherent risks of skiing to
the extent that those risks persist after the ski area operator’s
exercise of reasonable care. See Wright, 96 F. Supp. at 790–91; see also
supra ¶ 46.
¶52 The legal principle that the legislature was trying to
reassert, then, is that ski area operators have the duty to exercise
reasonable care with respect to the inherent risks of skiing, but
skiers assume those risks to the extent those risks persist after a ski
area operator’s exercise of reasonable care. And in doing so, the
legislature provided the standard of reasonable care required of ski
area operators with respect to the inherent risks of skiing.
Specifically, section 78B-4-404 provides that “[s]ki area operators
shall post trail boards at one or more prominent locations within
each ski area which shall include a list of the inherent risks of
skiing . . . as defined in [the Act].” Therefore, once a ski area
operator posts trail boards warning skiers of the inherent risks of
skiing, it has discharged its duty of reasonable care—and therefore
owes no further duty—with respect to the inherent risks of skiing,
and skiers assume the risk of any injury caused by those risks to the
extent that they are inherent risks within the meaning of the Act.19
This understanding of the Act comports with the self-described
purpose of the Act to “clarify the law” by providing ski area
operators with a means to assert the defense of primary assumption
of risk while also maintaining a cause of action for skiers injured by
Construction and Moore, which delineated between the different
forms of assumption of risk and declared the Comparative
Negligence Act to apply only as to secondary assumption of risk.
See supra ¶ 48.
19 This does not mean that ski area operators are automatically
absolved from liability for injuries caused by risks listed on the trail
boards they post. Instead, the Act still requires a case-by-case
analysis to determine whether the injury-causing risk is truly an
inherent risk of skiing. If the injury-causing risk is determined to
not be an inherent risk of skiing, then the case falls outside the
purview of the Act and the ski area operator’s compliance with
section 404 becomes immaterial with respect to defining the ski
area operator’s duty.
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Opinion of the Court
risks that they do not assume, such as those risks created by ski
area operator negligence.
¶53 This interpretation is further bolstered by the fact that the
word “negligence” is mentioned nowhere in the Act.
Unlike the dissent, we find it nigh impossible to believe that the
legislature intended to completely abolish the negligence cause of
action with respect to enumerated risks when the Act itself says
nothing about negligence. It is one thing to say that the legislature
could have spoken more clearly, it is entirely another to apply that
concept when the act in question neglects to mention its alleged
core purpose. Legislatures, after all, “do[] not . . . hide elephants in
mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468
(2001). And abolishing negligence claims is one heck of a big
elephant. 20
¶54 Based on this discussion of the purpose of the Act, we hold
that the core holding of Clover continues to be persuasive in that the
Act does not demonstrate a legislative intent to categorically bar
recovery for injuries caused by risks enumerated in section 402.
Rather, the Act intended to reassert the availability of the defense
of primary assumption of risk for ski area operators—even in cases
involving one of the enumerated risks.
c. Constitutional Avoidance
¶55 The Clover court also recognized that construing the Act to
bar claims arising from the negligence of ski area operators (i.e.,
20 The dissent argues that “there is nothing elephant-ish about
the establishment of a bar on a negligence claim for injuries arising
from inherent risks of skiing.” Infra ¶ 126. We disagree. Such a
reading would directly contradict the doctrine of primary
assumption of risk because primary assumption of the risk still
presupposes a baseline exercise of reasonable care. If the Act barred
all claims for listed risks—even those risks that could have been
eliminated through the exercise of reasonable care such as the pile
of rocks or the twenty-yard bare spot—then the Act would not be
embracing the doctrine of primary assumption of risk. And this
would have represented a major departure from the status quo.
Furthermore, such a scheme would also raise some serious
constitutional questions, which we address below. See infra ¶¶ 55–
58.
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from risks that were not integral to the sport) could violate the
Open Courts Clause of the Utah Constitution. See 808 P.2d at 1044
n.38 (“Because we interpret [the Act] as not prohibiting legitimate
negligence claims, we do not reach Clover’s argument that the
statute violates . . . [the Open Courts Clause] of the Utah
Constitution . . . .”).
¶56 The Open Courts Clause “declares that an individual shall
have a right to a ‘remedy by due course of law’ for injury to
‘person, property, or reputation.’” Berry ex rel. Berry v. Beech Aircraft
Corp., 717 P.2d 670, 674 (Utah 1985) (quoting UTAH CONST. art. 1,
§ 11). We have acknowledged that we have “an obligation of
deference to legislative judgments in a Berry review.” Judd v.
Drezga, 2004 UT 91, ¶ 11, 103 P.3d 135. And while the Open Courts
Clause does not prohibit the legislature from “creat[ing],”
“defin[ing],” and “moderniz[ing]” the law, it nonetheless “acts as a
substantive check on legislative power.” Waite v. Utah Labor
Comm’n, 2017 UT 86, ¶ 18, 416 P.3d 635 (citation omitted) (internal
quotation marks omitted). In Berry, this court announced a three-
part test to determine whether legislation violates the Open Courts
Clause.
¶57 First, we look to see “whether the legislature has abrogated
a cause of action.” Waite, 2017 UT 86, ¶ 19. If the legislature has
abrogated a cause of action, “we then determine whether ‘the law
provides an injured person an effective and reasonable alternative
remedy.’” Id. (quoting Berry, 717 P.2d at 680). And finally, if there is
no alternative remedy, we look to see “if there is a clear social or
economic evil to be eliminated and [if] the elimination of an
existing legal remedy is not an arbitrary or unreasonable means for
[eliminating such evil].” Id. (quoting Berry, 717 P.2d at 680) (internal
quotation marks omitted). If no “clear social or economic evil” is
being eliminated, then the legislative act runs afoul of the Open
Courts Clause.
¶58 It is easy to see why the Clover court considered
constitutional avoidance in reaching its decision. If the Act was
interpreted to prohibit all negligence claims arising from injuries
caused by one of the Act’s enumerated risks, then it is possible that
the Act could pose a serious Open Courts issue. In reading the
ambiguity in the statute to mean that every claim requires a
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case-by-case analysis, the Clover court avoided deciding this thorny
constitutional question. 21 And because Talisker has not carried its
burden in persuading us that Clover was not well reasoned, we
need not rule on this issue either.
d. Treatment of Clover in Other Jurisdictions
¶59 Other jurisdictions have also found Clover persuasive in
analyzing their own inherent risk statutes. For example, Kopeikin v.
Moonlight Basin Management, LLC found Clover and its successor,
White v. Deseelhorst, 879 P.2d 1371 (Utah 1994), “particularly
helpful” in analyzing whether Montana’s statutory scheme—which
was “similar” to Utah’s—allowed a suit for negligent design or
maintenance of a cat track. 981 F. Supp. 2d 936, 939, 943 (D. Mont.
2013). After summarizing the core holding of Clover, Kopeikin drew
on Clover to conclude that “[Montana’s Inherent Risks of Skiing
Act] should be read in a manner that avoids constitutional
violations and gives meaning to all of its provisions,” and that
doing so would help avoid “absurd results.” Id. at 945–46.
Specifically, Kopeikin held that “Montana’s statutory definition of
‘inherent dangers and risks of skiing’ must be read in conjunction
with the ski area operator’s statutory duty of reasonable care”
because “[a] mechanical application of the statute focused solely on
the object with which the plaintiff collided would produce results
21 The dissent argues that “‘[m]ere doubts about the
constitutionality’ of the statute ‘are not enough to override the
legislature’s intent’” when the statute “lends itself to only one
reasonable interpretation.” Infra ¶ 137. While we may take no issue
with this assertion, we take issue with the premise that there is
“only one reasonable interpretation” of the Act. Because there is
not only one reasonable interpretation of the Act, see supra ¶¶ 33–
43, our acknowledgment of an Open Courts concern here is entirely
appropriate.
Furthermore, the Open Courts issue here is not a “vague
constitutional question,” as the dissent suggests. Infra ¶ 136. It
presents a discrete and cognizable constitutional question: Would a
prohibition on all suits involving injuries caused by risks
enumerated in the Act violate the Open Courts Clause of the Utah
Constitution? The existence of an exact constitutional question only
bolsters the appropriateness of considering the Open Courts issue
in our stare decisis analysis.
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that are ‘entirely arbitrary’ . . . .” Id. at 945 (quoting Clover, 808 P.2d
at 1045). In this sense, Kopeikin fully endorses Clover’s holding that a
secondary inquiry is required to determine whether a listed risk is
truly an inherent risk, even in the face of a statute that simply
provided “‘[i]nherent dangers and risks of skiing’ means those
dangers or conditions that are part of the sport of skiing, including:
[listed risks].” Id. at 939 (citing Mont. Code Ann. § 23-2-702(2)).
¶60 Additionally, the New Hampshire Supreme Court relied
on Clover in upholding New Hampshire’s Inherent Risks of Skiing
statute against a challenge alleging that it violated a provision of
the New Hampshire Constitution that guarantees all litigants a
remedy. Nutbrown v. Mount Cranmore, Inc., 671 A.2d 548, 550–52
(N.H. 1996). In so doing, it found Clover’s parallel analysis of Utah’s
Inherent Risks of Skiing Act persuasive—concluding that the New
Hampshire statute “embodie[d] the doctrine of primary
assumption of risk” and limited recovery only for injuries caused
by “dangers inherent in the sport” of skiing. Id. at 551. 22
2. Firmly Established
¶61 The question then turns to whether Clover is “firmly
established” in Utah law—including the extent to which it has
22 The dissent contends that Nutbrown does not “endorse[] the
framework of the Clover decision.” Infra ¶ 160. Instead, because the
New Hampshire code also contained a separate statute that
contained specific duties with which a ski resort is charged, the
dissent believes that “Nutbrown cites Clover only for the proposition
that ‘[t]he statute does not purport to immunize a ski area operator
for injuries caused by the operator’s own negligent or intentional
acts’” and provides no endorsement for Clover. Infra ¶ 160
(alteration in original) (quoting Nutbrown 671 A.2d at 551 ). But the
context of that quote is crucial. The immediately preceding
sentence states, “[s]ignificantly, the limitation on recovery found in
[the New Hampshire statute that defines inherent risks of skiing],
applies only to injuries caused by ‘dangers inherent in the sport’ of
skiing.” Nutbrown, 671 A.2d at 551 (citation omitted). In this
context, it is clear that Nutbrown is citing Clover for the proposition
that the limitation on recovery for “dangers inherent in the sport”
does not include immunization “for injuries caused by the
operator’s own negligent or intentional acts.” Id.
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created reliance interests and whether it has proven workable in
practice. See Eldridge, 2015 UT 21, ¶ 22. We believe that it is.
¶62 Our conclusion is informed by a number of considerations.
Clover is entitled to deference under stare decisis because the
legislature is free to change its conclusion at any time by amending
the Act. And in the years since Clover was decided, the legislature
has not amended the Act to overrule the holding of Clover. In
declining to do so, Clover has become firmly established in Utah
law. Furthermore, under the prior construction canon, by
amending and re-enacting the Act without negating Clover’s core
holding, Clover has been carried forward by the legislature as an
authoritative interpretation of the Act. As a consequence, Talisker
has not demonstrated that this history has not created a public
reliance on Clover. And finally, Talisker has not carried its burden
in convincing us that Clover has proven to be unworkable in
practice.
a. Legislative Treatment of Clover
¶63 Clover was decided in 1991 and in our 1994 opinion, White
v. Deseelhorst, we directly invited the legislature to tell us if we
incorrectly interpreted the Act in Clover. 879 P.2d 1371, 1377 (Utah
1994), abrogated on other grounds by Penunuri v. Sundance Partners,
LTD, 2017 UT 54, 423 P.3d 1150, (Zimmerman, C.J., concurring) (“If
the legislature disagrees with Clover’s construction of the inherent
risks of skiing statute, it can change it, but we should leave the
matter where it lies.”). Despite ample opportunity and an express
invitation, it has not done so.
¶64 Our legislature has had at least two opportunities to
overrule the core holding of Clover. In 1993, and again in 2006, the
legislature made changes to the definitions section of the Act—the
very same section on which Clover’s analysis turns. In 2006, for
example, the definition of skiing was expanded “to include
participation in, or practicing or training for, competitions or
special events.” Rutherford ex rel. Rutherford v. Talisker Canyons Fin.
Co., 2014 UT App 190, ¶ 35, 333 P.3d 1266 (quoting 2009 Utah Laws
549, 549) (internal quotation marks omitted).
¶65 As the court of appeals recognized, Senator Lyle Hillyard,
the 2006 amendment’s sponsor, specifically stated that the 2006
amendment was not intended “to exempt the negligence of the ski
resort” from the liability Clover had imposed. Id. ¶ 35 n.13 (quoting
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Recording of Utah Senate Floor Debates, 56th Leg., Gen. Sess. (Feb
13, 2006) (statement of Sen. Lyle Hillyard)). And “where a
legislature amends a portion of a statute but leaves other portions
unamended, or re-enacts them without change, the legislature is
presumed to have been satisfied with prior judicial constructions of
the unchanged portions of the statute and to have adopted them as
consistent with its own intent.” Christensen v. Indus. Comm’n, 642
P.2d 755, 756 (Utah 1982); see also SCALIA & GARNER, READING LAW
at 322 (noting that when a phrase has been “authoritatively
interpreted” by a jurisdiction’s highest court, “a later version of
that act perpetuating the wording [of that phrase] is presumed to
carry forward that interpretation”). 23
¶66 We are loath to embrace legislative history as an
interpretive tool for statutory interpretation without first
exhausting other interpretive tools. But it is relevant for purposes of
applying our stare decisis principles—principles that, in the
statutory context, emphasize the legislature’s ability to reverse a
court’s decision and the importance of crafting statutory stare decisis
principles in such a way that we promote, when possible,
interbranch dialog. The fact that the legislature has specifically
taken up the Act, not once, but twice, and expressly declined to
23 The dissent argues that the full text of Senator Hillyard’s
comments actually cuts against support for Clover because (1) the
example of negligence Senator Hillyard supplied was not an
enumerated inherent risk, and (2) he stated support for “the
‘policy’ that the ‘state made in the 1980s,’ not the common law
developments since that time.” Infra ¶¶ 169–171. But Senator
Hillyard—the sponsor of the bill—was clear in his comments: “I
should indicate that there’s no intention in this to exempt the
negligence of the ski resort.” Recording of Utah Senate Floor
Debates, 56th Leg., Gen. Sess. (Feb. 13, 2006) (statement of Sen. Lyle
Hillyard). His subsequent example of negligence that falls outside
the list of enumerated risks (which is not dispositive of whether it
is an inherent risk because the list is non-exhaustive) does not
undercut his statement’s value. Further, neither Senator Hillyard
nor any other legislator said anything to cast shade on Clover.
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Opinion of the Court
amend it so as to do away with Clover’s holding, is a good reason to
continue to accord Clover weighty stare decisis. 24
b. Reliance
¶67 In light of Clover’s age, the legislature’s choice to leave
Clover untouched since it was decided, and the unmistakable
importance of the ski industry to Utah’s economy, it is easy to see
how Clover has resulted in widespread public reliance.
¶68 For example, there can be no doubt that ski resorts have
invested in infrastructure and personnel to abate potential
negligence actions under Clover, with some resorts investing more
and some less, each with an eye toward getting a competitive
advantage. There can be no doubt that contracts are in place to
supply, maintain, and replace this infrastructure and that some of
the personnel forewent other employment opportunities in favor of
working at the resort. Nor can there be any doubt that insurers and
resort owners have negotiated policies and premiums against the
backdrop of Clover. And consider the potential commercial
advantage that Utah ski resorts may have obtained over other ski
resorts by virtue of Clover’s construction of the Act—which may
afford more opportunities for relief to injured skiers in Utah and
hence, at the margins, more incentive to ski in the state. We
respectfully suggest that it is naïve to think that Clover has not
generated significant reliance interests in an industry as large and
complicated as Utah’s ski industry. And again, Talisker certainly
has not met its burden of dispelling this notion. 25
24 The dissent argues that legislative inaction in this area does
not “indicate legislative acquiescence. And it is sheer speculation to
assume the contrary.” Infra ¶ 165. Under different circumstances
we might agree, but not here. The fact that we have expressly
invited the legislature to address our holding in Clover, White, 879
P.2d at 1377, coupled with a well-heeled ski industry, the
legislature revising the Act on multiple occasions, and Senator
Hillyard’s comments lead us to the conclusion that “legislative
acquiescence” is far from “sheer speculation” in this case.
25The dissent argues that the reliance interests we identify here
are “minimal.” Infra ¶ 175. We disagree. Moreover, this is beside
the point: even if the dissent was correct and the reliance on Clover
we have identified in this opinion was minimal, Talisker has not
(cont.)
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c. Workability
¶69 Additionally, Talisker has not met its burden of producing
evidence to suggest that Clover is unworkable.
¶70 For one, Clover’s workability is evidenced by the fact that,
despite being nearly thirty years old, it has not generated
substantial appellate litigation. This suggests that district courts are
able to understand and apply Clover in ski area operator liability
cases. Of course, other explanations are also possible. But it is
Talisker’s burden to show us that Clover is poorly understood. To
carry this burden of persuasion, Talisker must adduce evidence of
confusion and lack of reliance among litigants and in the lower
courts. It has not done so.
¶71 Importantly, the ski industry appears to have done nothing
to “correct” Clover in the legislature. Indeed, when asked at oral
argument, both Talisker and amicus Ski Utah stated that they were
unaware of any efforts made to lobby the legislature to alter
Clover’s core holding. Certainly, if the standard were as unworkable
as Talisker and amici suggest, Utah’s ski industry would have, at
some point in the last twenty-eight years, introduced some
evidence in the record demonstrating the industry’s confusion and
consternation. It did not.
¶72 Furthermore, other jurisdictions have drawn on Clover’s
analysis in evaluating their own liability statutes. For example, the
Supreme Court of North Dakota has adopted Clover’s core holding.
North Dakota’s version of the Act provided that “[e]ach skier
expressly assumes the risk . . . for any injury . . . caused by the
following: variations in terrain; surface or subsurface snow or ice
conditions; bare spots, rocks, trees, or other forms of forest growth
or debris.” Bouchard v. Johnson, 555 N.W.2d 81, 83 (N.D. 1996)
(citation omitted) (internal quotation marks omitted). In declining
to interpret the statute to “act as a complete bar to any recovery,”
the court stated that “the better view is contained in the Utah
Supreme Court’s decision in Clover.” Id. at 83–84. It accordingly
held that “[t]here should be no liability for a ski area operator if the
design of the ski run creates natural conditions, necessary to the
made this argument or, for that matter, demonstrated any lack of
reliance. And because Talisker is the party asking us to overturn
Clover, the burden of persuasion is Talisker’s to bear.
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Opinion of the Court
enjoyment of the sport.” Id. at 85. But “[c]onversely, if the design
problem was created by the operator’s negligence and was not an
inherent risk associated with the sport, liability for the operator
should exist.” Id.
¶73 The dissent claims that “[t]he ‘proper standard’ endorsed
by Bouchard is not the Clover framework.” Infra ¶ 156. It asserts that
Bouchard is different because the North Dakota statute “begins with
an extensive list of ‘duties’ that ‘[e]very ski operator shall have”
and then notes that because skiing is hazardous despite all feasible
safety measures, “‘[e]ach skier expressly assumes the risk of’
injuries resulting from enumerated inherent risks of skiing.” Infra
¶ 157 (alterations in original) (quoting Bouchard, 555 N.W.2d at 83 ).
But Bouchard does exactly what Clover does: it interprets the
statutorily enumerated inherent risks of skiing—those that a skier
assumes and cannot be a basis for legal recovery—to only include
those risks when they “do[] not present a danger beyond what
might be anticipated for the skier who assumes the risk inherent in
skiing.” Bouchard, 555 N.W.2d at 85. Right after setting out the
standard that the dissent claims is “not the Clover framework,” the
Bouchard court goes on to give an example that squarely fits within
Clover:
[I]f a tree exists as part of the ski run design and
does not present a danger beyond what might be
anticipated for the skier who assumes the risk
inherent in skiing, there should be no liability for
injuries caused by the tree. The risk of a collision
with a tree of this nature is an inherent risk.
However, notwithstanding the express reference to trees
in [the North Dakota statute], if a tree or tree stump
creates a risk which cannot be said to be inherent in
the sport design, the operator should be liable for
any injuries caused by this danger.
Bouchard, 555 N.W.2d at 85–86 (emphasis added). It is clear that the
North Dakota Supreme Court found no issues with the
implementation of a secondary inquiry—one very similar to the
secondary inquiry in Clover—to determine whether listed risks are
truly inherent risks in the context of the statute.
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¶74 Given the evidence of legislative approval, public reliance,
and general workability, 26 Talisker has not carried its heavy burden
to persuade us to overturn this precedent and nothing today
convinces us that we should overrule the core holding of Clover.
III. CLOVER’S TEST CLARIFIED
¶75 Our overarching goal when interpreting a statute is to
“implement the intent of the legislature.” State v. Rushton, 2017 UT
21, ¶ 11, 395 P.3d 92. In doing so, we turn first to the plain language
of the statute itself. GeoMetWatch Corp. v. Utah State Research Found.,
2018 UT 50, ¶ 15, 428 P.3d 1064. When the language of the statute is
plain and unambiguous, this court will look no further to discern
legislative intent. Savely v. Utah Highway Patrol, 2018 UT 44, ¶ 25,
427 P.3d 1174. However, “if doubt or uncertainty exists as to the
26 The dissent fails to give any credence to Clover’s favorable
out-of-state press. But the dissent does selectively cite other cases—
Glover v. Vail Corp., 955 F. Supp. 105 (D. Colo. 1997) and Hanus v.
Loon Mountain Recreation Corp., No. 13-cv-44-JL, 2014 WL 1513232
(D.N.H. Apr. 16, 2014)—for the proposition that other courts have
questioned the viability of the Clover framework. Infra ¶¶ 161–162.
These cases are not persuasive. Hanus simply states that it finds
Clover unpersuasive “for the reasons discussed in Glover,” Hanus,
2014 WL 1513232, at *5 n.5, so it is only as persuasive as Glover.
And Glover is fundamentally flawed. Its analysis of Colorado’s
analog to the Act is at odds with the Colorado Supreme Court’s
own, authoritative interpretation.
Glover held that the phrase “integral part of the sport of skiing”
in Colorado’s Inherent Risks of Skiing Act did not require the
Glover court to analyze whether each listed risk had, in fact,
manifested in a way that was “integral” to the sport of skiing. See
Glover, 955 F. Supp. at 109. But in Graven v. Vail Assocs, Inc., 909
P.2d 514 (Colo. 1995) (en banc), the Colorado Supreme Court held
that “[t]he dangers and risks detailed in [the Colorado Inherent
Risks of Skiing Act] . . . . must be read with [the phrase ‘integral
part of the sport of skiing’] in mind”—a phrase that, the Colorado
Supreme Court held, imposed a “limitation” on the extent to which
the listed risks were “inherent risks of skiing” as a matter of law. Id.
at 519. This case, which is authoritative and predates Glover,
directly contradicts Glover’s approach and therefore undermines its
persuasiveness.
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meaning or application of an act’s provisions, [we] . . . analyze the
act in its entirety and harmonize its provisions in accordance with
the legislative intent and purpose.” Id. (citation omitted) (internal
quotation marks omitted).
¶76 Having acknowledged the ambiguity in the Act’s
definition of inherent risks of skiing, see supra ¶¶ 31–43, we now
turn to the best way to resolve that ambiguity. As discussed earlier,
Clover held that inclusion of a risk in the Act’s exemplary list does
not end the inquiry into whether that risk constitutes an inherent
risk of skiing. 808 P.2d 1037, 1045 (Utah 1991). Rather, the Act
requires a case-by-case analysis to determine whether the injury-
causing risk is truly an inherent risk of skiing under the Act. Id. We
agree with this holding.
¶77 To implement this holding, Clover announced a test that
asks whether a skier “wishes (or does not wish) to confront” a
certain risk. If a skier wishes to confront a risk, then it is an inherent
risk. Id. at 1047. But if the risk is one a skier would not wish to
confront, then it is an inherent risk only if a ski area operator could
not eliminate the risk through the exercise of ordinary care. Id.
¶78 While Clover’s holding is faithful to the purpose of the Act,
see supra ¶¶ 44–54, we believe that the Clover test could be
implemented in a way that more precisely tracks the legislative
intent of the Act. In announcing this clarification, we do not aim to
overturn the results of our prior decisions in this area. Instead, we
aim to clarify the implementation of law and more clearly bring it
in line with the intent of the legislature.
¶79 The two-prong analysis under Clover in which a court first
makes a subjective determination of whether a skier wishes to
confront a risk followed by an objective determination of the ability
to eliminate the risk (in the event that the risk is one a skier does
not subjectively wish to confront), can be effectively collapsed into
a one-step objective inquiry. Specifically, this objective inquiry asks
whether a skier reasonably expects to encounter the risk when
skiing. 27 If so, then the risk is an integral part of the sport of skiing
27 The dissent argues that this clarification does more than
clarify the holding in Clover. In its view, our clarification
“completely rewrit[es]” Clover and “pays no more than lip service
to the doctrine of stare decisis.” Infra ¶ 90. We disagree.
(cont.)
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It is true, as the dissent points out, that the clarified test does
away with the two categories of inherent risks announced in Clover
and expounded on in White. Indeed, we own the fact that we are
“transforming a two-step subjective inquiry into a one-part
objective one.” Infra ¶ 149 n.44. But we are untroubled by this as a
matter of stare decisis for two reasons.
First, we do not view the creation of two categories of inherent
risks as the core holding of Clover. As explained above, see supra
¶ 29, the core holding of Clover is that there is a secondary inquiry
required when evaluating whether an enumerated risk is truly an
inherent risk of skiing. As we noted in White, “Clover . . . clarified
the manner in which the [Act] is to be applied. Courts cannot
determine that a risk is inherent in skiing simply by asking whether
it happens to be one of those listed in [section 402].” 879 P.2d at
1374. Instead, “to determine whether the [Act] applies, we must
decide whether the particular risk which allegedly caused [the]
injury was an integral part or essential characteristic of the sport of
skiing.” Id. In this sense, we do no damage to Clover because the
clarified test is indeed a secondary inquiry that we can use to
evaluate whether an injury-causing risk, enumerated or not, is an
inherent risk of skiing.
Second, the single objective inquiry of whether a skier
reasonably expects to encounter a risk does the same work as the
two categories of inherent risks announced in Clover. With respect
to the first category of inherent risks in Clover, it seems clear that a
skier reasonably expects to encounter those risks which he or she
wishes to confront. And with respect to the second category, it
seems equally clear that risks a skier does not wish to confront but
cannot be eliminated through the use of reasonable care are largely
synonymous with risks a skier reasonably expects to encounter.
While a skier may not wish to confront certain things such as rocks,
forest growth, and lift towers, a skier nonetheless reasonably
expects to encounter these things in their ordinary state—in the
context of skiing—because they are risks that cannot be eliminated
through the exercise of reasonable care and therefore inhere in the
sport.
Because our clarification today remains true to the core holding
of Clover and does the same work as the Clover test, we view it as
just that—a clarification. And we are always free to “clarif[y]
ambiguities in past opinions without overruling their holdings.” In
(cont.)
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and therefore an inherent risk of skiing. And by extension, the list
of enumerated risks captures those risks that the legislature
believed to be inherent risks of skiing when they are encountered in
the way that skiers would reasonably expect to encounter them. We
believe this test effectively captures the legislature’s intent when it
announced that skiers assume the inherent risks of skiing as a
matter of law. 28
re Adoption of Baby B., 2012 UT 35, ¶ 60 n.23, 308 P.3d 382. “Such a
decision is entirely consistent with the principle of stare decisis.” Id.
28 The dissent laments that our clarification “seems to articulate
two alternative standards,” infra ¶ 185, and “sounds alternatively as
either a question of law . . . or a fact-intensive mixed question,”
infra ¶ 91. In the dissent’s view, cases decided under this
framework are not decided “as a matter of law” because they could
be potentially “subject to a factual negligence inquiry.” Infra ¶ 106.
We see no inconsistency in the reality that a determination under
this framework may require a predicate factual inquiry in some
cases—even those involving enumerated risks. A determination
made under this framework may involve predicate factual
findings, but the ultimate conclusion is nevertheless made as a
matter of law.
It is true that the Act’s public policy section states that one
purpose of the Act is “to establish as a matter of law that certain
risks are inherent in [the] sport [of skiing].” Indeed, the Act
establishes “as a matter of law that certain risks are inherent” to
skiing. But this does not lead to the conclusion that the reference to
“certain risks” is a reference to the enumerated risks, as the dissent
suggests. Infra ¶ 114. Instead, as this court held in Clover, those
certain risks that are inherent to skiing are those risks that are
“integral part[s] of the sport of skiing.” 808 P.2d at 1044 (internal
quotation marks omitted). Therefore, under the Act, risks that are
an integral part of the sport of skiing are inherent to the sport of
skiing as a matter of law.
The potential for factual inquiry, whether it be through expert
testimony or otherwise, to determine whether a risk is an integral
part of the sport of skiing does not affect the ultimate conclusion
that any risk found to be an integral part of the sport of skiing is an
inherent risk under the Act as a matter of law. In other words, once
a risk has been shown to be an integral part of the sport of skiing—
(cont.)
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Opinion of the Court
¶80 To determine the legislature’s intent we can turn to the
Act’s definition of inherent risks of skiing in section 402. Along
with the general definition of inherent risks of skiing, the Act also
provides an exemplary list of inherent risks of skiing in section 402.
Crucial to our understanding of the legislature’s intent is the way in
which the exemplary risks are presented: the risks listed in section
402 are presented in an entirely unremarkable manner. That is, all
of the risks are presented in the manner in which a skier would
reasonably expect to encounter them. See supra ¶ 38. This is useful
for understanding exactly what types of risks for which the
legislature intended to bar recovery.
¶81 For example, the Act bars recovery for injury caused by
impact with lift towers. The relevant inquiry in a case involving an
impact with a lift tower is whether the legislature meant for the Act
to cover the kind of impact with a lift tower at issue in the case. In
deciphering what kinds of impact with lift towers the legislature
envisioned when drafting the statute, it is telling that the legislature
chose to simply use “lift towers” with no other qualifying terms.
This language conjures up images of standard lift towers as any
skier would reasonably expect to encounter them. Similarly, the use
of “impact” suggests that the types of impacts contemplated with
lift towers are those impacts that a skier could reasonably expect to
occur while skiing. Interpreting the exemplary risks in this manner
dispatches with the possibility of the kind of absurd or
unreasonable results that the legislature could not have intended
when applying the Act. See Anderson v. Utah Cty., 368 P.2d 912, 913
n.3 (Utah 1962) (“[I]t is a general rule that where a statute is
ambiguous in terms and fairly susceptible of two constructions, the
unreasonableness or absurdity which may follow one construction
or the other may properly be considered. Unreasonable, absurd, or
ridiculous consequences should be avoided.” (citation omitted)
which is done by showing that a skier would reasonably expect to
encounter that risk—there is no more discussion to be had about
whether that risk is inherent: risks that a skier would reasonably
expect to encounter are inherent risks as a matter of law. And the
import of that conclusion is that a plaintiff may not recover from a
ski area operator for any injury resulting therefrom.
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Opinion of the Court
(internal quotation marks omitted)). 29 Instead of barring recovery
for an impact with a lift tower lying on its side waiting to be
erected or painted to blend in with its alpine setting, the Act bars
recovery for impacts with lift towers as skiers reasonably expect to
encounter them. By extension, instead of barring recovery for an
injury in which the chairlift cable snaps and a skier is thrown from
a lift chair into a lift tower, the Act bars recovery for impacts as
skiers would reasonably expect them to occur, such as skiing out of
control and crashing into an ordinary lift tower. 30
29 While we have referred to this canon as the “absurd
consequences canon,” see, e.g., Utley v. Mill Man Steel, Inc., 2015 UT
75, ¶ 39 n.14, 357 P.3d 992, we note that the designation is
somewhat of a misnomer. Instead of encompassing only truly
“absurd” consequences, this interpretive canon also applies in
cases involving ambiguities that ask us to choose between two
plausible constructions. In cases presenting two plausible readings,
the absurd consequences canon, generally speaking, causes us to
prefer the more reasonable interpretation, even if the less
reasonable interpretation could not be accurately described as
“absurd.”
30 The dissent complains that our use of the adjective “ordinary”
“sounds like the framing of a legal question,” while the rest of our
framework “seems more of a factual inquiry.” Infra ¶ 188. And the
dissent views this as creating “internal tension” in our approach.
Infra ¶ 188. Not so. All that is meant here by use of the word
“ordinary” is that the lift tower is encountered in the way in which
a skier would reasonably expect to encounter it. In some cases,
such as the dissent’s proposed hypothetical about a lift tower a
plaintiff claims to be negligently designed, infra ¶ 192, a factual
inquiry may be necessary to determine whether the lift tower is one
skiers would reasonably expect to encounter—or in other words,
whether it is an ordinary lift tower.
Furthermore, we disagree with the dissent’s assertion that “we
must identify what counts as part of the relevant ‘way’” in which
risks are encountered. Infra ¶ 191. There is no reason to cabin the
analysis to the color, shape, placement, design, etc. of the risk in
determining whether a skier would reasonably expect to encounter
it. All elements of a given risk are relevant to the determination of
(cont.)
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Opinion of the Court
¶82 In addition to tracking the commonplace descriptions of
risks in section 402, requiring an analysis of whether a skier would
reasonably expect to encounter a given risk aligns with the purpose
of the Act. As section 401 states, the purpose of the Act was to
“clarify the law” as it existed in 1979. As discussed earlier, the Act
served to reassert the defense of primary assumption of risk with
respect to ski injuries. See supra ¶¶ 44–54. Under a primary
assumption of risk analysis, the question is not necessarily whether
a skier would “wish” to encounter a certain risk, but whether a risk
is inherent or essential to the sport of skiing and therefore whether
the risk is one that a skier reasonably expects to encounter when
participating in the sport. See, e.g., Hansen v. Flying J Travel Plaza, 57
Fed. App’x 214, 216 (6th Cir. 2003) (“A baseball spectator assumes
the risk of injury because it is common knowledge that hard balls
may be thrown or batted at great speeds into the stands.”); Fleury v.
IntraWest Winter Park Operations Corp., 372 P.3d 349, 355 (Colo.
2016) (Marquez, J., dissenting) (“The many hazards listed in
[Colorado’s Inherent Risks of Skiing Act] as ‘inherent dangers and
risks of skiing’ are common, everyday conditions that any skier . . .
reasonably can expect to encounter . . . .”); Morgan v. State, 685
N.E.2d 202, 207 (N.Y. 1997) (“[B]y engaging in a sport . . . a
participant consents to those commonly appreciated risks which
are inherent in and arise out of the nature of the sport generally
. . . .”); Turcotte v. Fell, 502 N.E.2d 964, 968 (N.Y. 1986) (“As a
general rule, participants properly may be held to have consented,
by their participation, to those injury-causing events which are
known, apparent or reasonably foreseeable consequences of the
participation.”). Regardless of whether a skier wishes to confront
the inherent risks of skiing, skiers nonetheless reasonably expect to
encounter those risks that inhere in the sport.31
¶83 Because the legislature described the listed risks in their
ordinary forms and the Act served to reassert the availability of the
whether it was presented in the way a skier would reasonably
expect to encounter it.
31 The dissent faults us for not quantifying the level of
expectation necessary for a risk to be considered an integral part of
the sport of skiing. Infra ¶ 193. But we repeatedly state that the
level of expectation required is a reasonable expectation. See supra
¶¶ 79–82.
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Opinion of the Court
defense of primary assumption of risk, we hold today that the
inherent risks of skiing are those risks which a skier would
reasonably expect to encounter while skiing. And with respect to
the risks enumerated in section 402, those risks are inherent risks of
skiing only to the extent that a skier could reasonably expect to
encounter them. We believe that this clarification of Clover remains
true to the core holding of that case while simultaneously
interpreting the language of the Act in a way that comports with
the intent of the legislature. And although we expect the outcomes
under this clarified standard to be the same as the outcomes under
the old standard, we nonetheless remand this case to the district
court to determine whether a skier would reasonably expect to
encounter the wet, sticky snow that Levi encountered at The
Canyons.
¶84 The legislature, of course, retains the power to amend the
Act and overrule our interpretation, which it has thus far declined
to do. To the extent our current holding is not in line with the
legislature’s actual intent, “we [continue to] invite the Utah
Legislature to revisit the [Act] to provide clarity in this area.” State
v. McNearney, 2011 UT App 4, ¶ 10 n.2, 246 P.3d 532.
CONCLUSION
¶85 We affirm the court of appeals with respect to the
preinjury release. The preinjury release executed by Levi’s father on
his behalf is void as against public policy. We also affirm the court
of appeals to the extent that it chose to apply Clover to these facts.
We remand, however, for a determination in accordance with our
clarified implementation of Clover’s holding as to whether there
exists a disputed issue of material fact with respect to the
machine-made snow exemption.
ASSOCIATE CHIEF JUSTICE LEE, dissenting in part:
I. INTRODUCTION
¶86 The Inherent Risks of Skiing Act is simple and
straightforward. It provides a detailed but non-exclusive list of
“inherent risks” of skiing, UTAH CODE § 78B-4-402(1)—a list that
includes “snow or ice conditions” of all kinds, including
“machine-made snow.” Id. § 78B-4-402(1)(b). And it bars claims
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Lee, A.C.J., dissenting in part
against ski resorts for injuries resulting from these and other
“inherent risks” enumerated by the legislature. Id. § 78B-4-403.
¶87 Our case law has distorted the clear terms of this statute. In
Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), we erased
the categorical bar on recovery for inherent risks of skiing listed in
the statute and introduced negligence into the equation. In so doing
we nullified the statutory list of inherent risks and redefined that
term in accordance with a new liability regime of our own making.
Clover conditions statutory immunity on proof that the risk in
question (even one listed in the statute) is one that “no one wishes
to confront” and that “cannot be alleviated by the use of reasonable
care on the part of a ski resort.” Clover, 808 P.2d at 1047.
¶88 This standard has never been elucidated in any workable
detail. We have never explained how a court is to decide whether a
risk is one that a skier may “wish[] to confront,” or what sort of
evidence may be permitted or required to prove this threshold
element. The closest we have come to an explanation is a set of
categorical statements in White v. Deseelhorst—that risks such as
“steep grades, powder, and mogul runs” are risks that skiers wish
to confront (and that ski resorts are thus “relieved of any obligation
to eliminate”), and that risks like “bare spots, forest growth, rocks,
stumps, . . . lift towers and other structures” are risks that skiers do
not wish to confront (and thus that are inherent only if they cannot
be “eliminated by reasonable care”). 879 P.2d 1371, 1375 (Utah
1994) (alteration in original) abrogated on other grounds by Penunuri v.
Sundance Partners Ltd., 2011 UT 54, 423 P.3d 1150. We have never
offered any clarification on our methods of devising these
categories, however. And we have never prescribed a standard or
means of proving that a risk is one that “cannot be alleviated by the
use of reasonable care on the part of a ski resort.” Clover, 808 P.2d at
1047. Our opinions in this field, moreover, have been deeply
divided—with various members of the court questioning the
compatibility of the Clover framework with the text of the statute.1
1See White v. Deseelhorst, 879 P.2d 1371, 1377 (Utah 1994)
(Zimmerman, C.J., concurring) (noting that he “may not agree”
(cont.)
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Lee, A.C.J., dissenting in part
¶89 These and other concerns prompted us to invite the parties
to submit supplemental briefs on whether we should reformulate
the Clover standard of liability. The petitioners responded with an
extensive showing of the basis for repudiating the Clover standard
under our doctrine of stare decisis. They have highlighted the degree
to which Clover distorts the legal framework enacted by the
legislature—depriving the statutory list of inherent risks of any
meaning, and replacing the statutory grant of immunity with a
vague inquiry into negligence. And they have questioned the
workability of the existing framework by noting the difficulty of
(and lack of any guidance in our cases on) deciding whether a risk
is one that a skier “wishes to confront.” The respondents, for their
part, asked us to retain the Clover framework. They urged a
reaffirmation of this precedent under the doctrine of stare decisis.
But they offered little or no help in prescribing a workable means of
applying Clover to a case like this one.
¶90 The majority rejects the petitioners’ request that we
repudiate Clover. It opines at length about the importance of the
doctrine of stare decisis. And it purports to “clarify” and
“streamline” the Clover standard in a way that renders it more
transparent and workable. Supra ¶¶ 3, 12. For all its fulmination,
however, the court pays no more than lip service to the doctrine of
stare decisis—stating a patriotic commitment to Clover as super
precedent in one breath while completely rewriting the Clover
standard in the next. The rewriting is substantial. The majority
replaces the two-part standard from Clover with a one-part
standard of its own making. Under the majority opinion we ask
only what a “reasonable skier” would “expect to confront.” We
have reframed the first step and eliminated the second. And we
apparently have abandoned the two categories of risks set forth in
White—with “steep grades, powder, and mogul runs” on the “wish
to confront” side and “’bare spots, forest growth, rocks, stumps, . . .
lift towers and other structures’” on the “prefer to avoid” side.
with Clover); id., (Russon, J., dissenting) (asserting that Clover
“contradicts the plain language” of the statute).
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Lee, A.C.J., dissenting in part
¶91 Despite this reformulation, the court does nothing to solve
the workability problems that have plagued our courts for decades
and that prompted our supplemental briefing order and multiple
oral arguments in this court. The court relabels the standard—
replacing the verb “wish” with “expect.” And it frames the
question in objective terms. But the court’s opinion never answers
any of the practical questions that we posed to the parties in our
supplemental briefing order. In fact, it compounds the
unworkability of Clover by presenting a standard that sounds
alternatively as either a question of law (as to whether the risk in
question is presented in a manner that falls within the ordinary
meaning of the terms of the statutory list) or a fact-intensive mixed
question (as to whether a reasonable skier would expect to
encounter the type of risk that is presented in the relevant
circumstances). See infra Part II.D (discussing this problem). And
the majority never tells us how either of these standards is to be
established—by the court as a matter of law, or by a fact-finder
weighing evidence. Nor does the court clarify what it means for a
given risk to be “expected,” or how expectation is to be proven
(through expert testimony, etc.). See infra Part II.D.
¶92 We can do better. Once we own up to the fatal workability
problems with Clover we should do more than just rearrange deck
chairs. We should state a clear, workable standard that gives voice
to the statutory scheme enacted by our legislature. I would do so. I
would apply the Inherent Risks of Skiing Act as written and hold
that the petitioners are entitled to immunity under the statute if
they can establish that the plaintiff’s injuries in this case resulted
“from any of the inherent risks of skiing,” UTAH CODE § 78B-4-403,
listed in the statute, such as “snow or ice conditions as they exist or
may change,” including “machine-made snow,” and “variations . . .
in terrain” resulting from “snowmaking or grooming operations.”
Id. § 78B-4-402(1)(b),(d). I would interpret the listed “[i]nherent
risks of skiing” in their ordinary sense. And I would reverse and
remand to allow the parties to present evidence and argument to
the district court on the question whether the injury in question
resulted from these or other inherent risks of skiing.
¶93 This approach respects the independent meaning canon
and related canons cited by the majority. See supra ¶¶ 33-38. The
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Lee, A.C.J., dissenting in part
cited canons all emphasize a central point—that the statutory
definition of “[i]nherent risks of skiing” includes a phrase (“an
integral part of the sport of . . . skiing”) that should be given
independent meaning as a modifier of the statutory “[i]nherent
risks.” But that is common ground. Everyone agrees that the
“integral part of the sport” clause has this independent meaning as
a modifier. The question is how the modifier works—in particular,
whether it calls for a court to make an independent assessment of
whether even a listed risk of skiing is “integral” to the sport, or
whether listed risks are deemed categorically “integral” by being
listed. I see no basis for the former approach. It fails because it
completely nullifies the detailed statutory list of inherent risks. My
reading, by contrast, gives meaning both to the statutory list and to
the “integral part of the sport” clause.
¶94 Under my reading, listed risks are categorically included
as “[i]nherent risks of skiing.” That is the whole point of the
statutory list. See UTAH CODE § 78B-4-401 (emphasizing that the
statute’s purpose is to “establish as a matter of law that certain risks
are inherent in th[e] sport” (emphasis added)); id. § 78B-4-402(1)
(indicating that listed risks are “includ[ed]” in the “dangers or
conditions which are an integral part of the sport of . . . skiing”).
And that list can be treated as categorical without depriving the
“integral to the sport” clause of its own meaning. The statutory
definition, after all, also encompasses unlisted risks—the list is only
exemplary. So for an unlisted risk a court must make its own
independent assessment of whether it is an “integral part of the
sport” of skiing. That is the independent meaning of this clause.
¶95 My approach also leaves room for the majority’s concerns
about “absurd” applications. If a ski area operator were ever to
stoop to the folly of constructing a “lift tower” that is “practically
invisible to skiers,” supra ¶ 39, an injured skier could simply assert
that such a tower does not fall within the ordinary meaning of the
sort of “lift tower” that is “includ[ed]” as an “[i]nherent risk[] of
skiing.” Or, alternatively, the injured skier could seek resort in the
doctrine of absurdity—a safety valve built into our law of
interpretation that is designed specifically to deal with the kinds of
absurd problems that the majority has imagined. If and when these
sorts of outliers come to the court, we could then decide whether to
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override clear statutory text on the ground that “no rational
legislator could possibly have intended” such an application.
Garfield Cty. v. United States, 2017 UT 41, ¶ 23 n.55, 424 P.3d 46. But
that is not what the majority is doing here. It is not saying that the
circumstance before us in this case is so absurd as to justify an
isolated departure from the statutory text on the facts of this case. It
is conjuring absurd possibilities to support the sweeping
conclusion that the statute can never mean what it says. That is not
how the doctrine of absurdity works. Or at least it is not how it has
ever worked before today. See John F. Manning, The Absurdity
Doctrine, 116 HARV. L. REV. 2387, 2388 (2003) (noting that the
absurdity doctrine operates to override the text when a “given
application” would produce absurd results).
¶96 I respectfully dissent. I would hold that the Inherent Risks
of Skiing Act means what it says. And I would reverse and remand
to allow the district court and the parties to assess the question of
liability in this case in accordance with the statutory standard.
II. ANALYSIS
¶97 In enacting the Inherent Risks of Skiing Act, the legislature
found that the sport of skiing “significantly contribut[es] to the
economy of this state” and concluded that insurance “premiums”
for “ski area operators” “have risen sharply in recent years due to
confusion as to whether a skier assumes the risks inherent in the
sport of skiing.” UTAH CODE § 78B-4-401. With these concerns in
mind, the legislature also adopted a statement of “purpose”: “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.” Id. The
operative terms of the statute effectuate this purpose. But Clover
overrides those statutory terms. And it does so in a manner that is
unworkable and thus unworthy of deference under our doctrine of
stare decisis.
¶98 I set forth the basis for my conclusions and my response to
the majority in the paragraphs below. First I highlight the
incompatibility of Clover with the text of the Inherent Risks of
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Lee, A.C.J., dissenting in part
Skiing Act. Second, I explain the basis for my conclusion that Clover
is not only wrong but so clearly wrong and so unworkable that the
usual presumption of stare decisis is rebutted. Third, I articulate a
legal standard that is dictated by the text and structure of the
Inherent Risks of Skiing Act and describe the grounds on which I
would reverse and remand the case to the district court. Fourth, I
highlight problems and unanswered questions with the majority’s
reformulation of the Clover test, emphasizing that the new test
represents a substantial departure from the old one while also
managing not to answer any of the practical problems highlighted
by the parties in their briefing in this case.
A. Clover is Incompatible with the Statute
¶99 The text of the Inherent Risks of Skiing Act is clear,
straightforward, and categorical. It says that “no skier may make
any claim against, or recover from, any ski area operator for injury
resulting from any of the inherent risks of skiing.” Id. § 78B-4-403.
¶100 The statute also prescribes a comprehensive definition of
the “inherent risks of skiing.” It says that “‘[i]nherent risks of
skiing’ means those dangers or conditions which are an integral
part of the sport of recreational, competitive, or professional
skiing.” Id. § 78B-4-402(1). And it sets forth a list of risks that are
“includ[ed]” in the statutory definition. Id. The non-exclusive
statutory list includes “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.” Id. § 78B-
4-402(1)(b) It also includes “variations or steepness in terrain,
whether natural or as a result of slope design, snowmaking or
grooming operations, and other terrain modifications.” Id. § 78B-4-
402(1)(d) These terms, as noted, should be interpreted in
accordance with their ordinary meaning.
¶101 The Clover framework overrides the categorical
immunity called for by the statute. It does so by obliterating the
concept of statutory immunity for enumerated risks “establish[ed]
as a matter of law,” Id. § 78B-4-401, and “includ[ed]” in the
definition of “[i]nherent risks of skiing,” id. § 78B-4-402(1), and
substituting instead an assessment of whether any given risk
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should qualify for statutory protection “under the facts of each
case.” Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1044 (Utah 1991).
¶102 Under Clover the statutory list of “inherent risks of
skiing” is superfluous. Infra ¶¶ 114–18. Instead of embracing the
statutory list the Clover court replaces it with two new tiers of “risks
of skiing”—those risks skiers “wish to confront” and those they do
not. Clover, 808 P.2d at 1046–47. Under Clover, “[t]he inherent risks
of skiing are those dangers that skiers wish to confront as essential
characteristics of the sport of skiing or hazards that cannot be
eliminated by the exercise of ordinary care on the part of the ski
area operator.” Id. In other words, Clover divides the “inherent risks
of skiing” into “two categories”: (1) those “risks, such as steep
grades, powder, and mogul runs, which skiers wish to confront as
an essential characteristic of skiing”; and (2) those risks “which no
one wishes to confront but cannot be alleviated by the use of
reasonable care on the part of a ski resort.” Id. at 1047.
¶103 These “categories” bear no relation to the text and
structure of the Inherent Risks of Skiing Act. The statute makes no
mention of the inquiry into the skier’s mindset—of wishing, or not
wishing, to confront certain risks. And the statutory list of
“inherent risks” leaves no room for the Clover court’s formulation.
The statute treats all listed risks equally. All are identified as
“inherent risks of skiing.” And all are on parallel statutory terms.
¶104 The Clover court overrides this structure. It says that
some of the listed risks qualify for statutory immunity but others
do not. And it says that the dividing line depends on a criterion
nowhere listed in the statute—on whether it is a risk skiers “wish to
confront.”
¶105 The Clover opinion provides no definition of this crucial
criterion. But it does identify some of the risks listed in the statute
that purportedly qualify for statutory protection: “steep grades,
powder, and mogul runs.” Id. This only highlights the
incompatibility of the Clover standard with the terms and structure
of the Inherent Risks of Skiing Act. Perhaps there are good policy
reasons for treating risks like “steep grades, powder, and mogul
runs” differently from other, more treacherous risks identified by
the legislature—like “bare spots, forest growth, rocks, stumps,
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Lee, A.C.J., dissenting in part
streambeds, cliffs, trees, and other natural objects,” or “impact with
lift towers and other structures and their components such as signs,
posts, fences or enclosures, hydrants, or water pipes.” UTAH CODE
§ 78B-4-402(1)(c),(e). And maybe the intuition behind this policy is
that skiers generally “wish [or expect] to confront” only the former
risks as a necessary part of skiing. But this policy is not the one
embraced by the legislature.
¶106 The Inherent Risks of Skiing Act also affords categorical
immunity to enumerated risks of skiing “as a matter of law.” Id.
§ 78B-4-401. But Clover reintroduces a negligence standard, asking
whether the risk can “be alleviated by the use of reasonable care.”
Clover, 808 P.2d at 1047. If so, the ski resort can be held liable. With
that in mind, I cannot think of a single “inherent risk” that would
not be subject to a factual negligence inquiry, and thus actually be
decided “as a matter of law” as contemplated by the statute. 2 Infra
¶ 145. Both prongs of the Clover framework are thus incompatible
with the statute because they override the clear terms and structure
of the Act.
¶107 The majority offers a series of defenses of the merits of
the Clover framework—arguing that it: (1) is consistent with the
“structure” of the statute and certain canons of construction, supra
¶¶ 33–38; (2) better advances the stated legislative goal of
“‘clarify[ing] the law,’” supra ¶ 44 (quoting Clover, 808 P.2d at
1045); (3) avoids absurd or arbitrary consequences, supra ¶ 41; and
(4) furthers the interests of the doctrine of constitutional avoidance,
2 My point is not that legal questions are never subject to a
“predicate factual inquiry.” Supra ¶ 79 n. 28. It is that the legal
standards prescribed by this statute—in a list of risks deemed
“inherent” as a matter of law—cannot properly be subject to such
an inquiry. In subjecting it to a fact-intensive negligence inquiry,
the majority deprives the statutory list of its expressly intended
effect (of establishing inherent risks as a matter of law). The
problem here, moreover, is that the standard articulated by the
majority does not just “require a predicate factual inquiry in some
cases.” Supra ¶79 n.28 (emphasis added). It requires such an inquiry
in every case—as to listed statutory risks and unlisted risks alike.
This makes the list entirely ineffectual.
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supra ¶¶ 55-58. None of these points is persuasive. I respond to
each below.
1. Statutory Structure and Canons of Construction
¶108 The majority claims that Clover respects the “structure” of
the Inherent Risks of Skiing Act. It cites a series of canons that it
views as reinforcing the framework set forth in that decision. Supra
¶¶ 33-38.
¶109 The “structure” cited by the majority is the phrase
“integral part of the sport of . . . skiing.” The majority hangs its
textual defense of Clover on this clause. It notes that this clause is an
element of the definition of the “[i]nherent risks of skiing.” And it
cites the independent meaning canon to emphasize the
independent function of this provision in the statutory definition of
the “[i]nherent risks of skiing.” The majority’s insistence on the
independent role of the “integral part of the sport” clause is
unassailable. But it is also unhelpful to the defense of Clover.
¶110 I have no quarrel with the proposition that the “integral
part of the sport” clause “provides important, independent value”
in the statute. Supra ¶ 37. This provision, moreover, surely
“modifies the ‘dangers’ and ‘conditions’” that count as an
“[i]nherent risk[] of skiing.” It does not follow, however, that the
question whether a danger—be it listed or not—is covered by the
statute requires a “case-by-case analysis” of whether that risk is an
integral part of the sport. Supra ¶ 29.
¶111 That is a premise of Clover. But that premise overrides
and completely discredits the statutory list of inherent risks—
treating it as an exercise in futility. That cannot be the right way to
interpret this statute. The statutory list of risks must have some
meaning. And we can preserve independent meaning for the list
while also crediting the “integral part of the sport” clause.
¶112 There is a straightforward way to preserve independent
meaning for both the “integral part of the sport” clause and the
statutory list of “inherent risks.” All we have to do is recognize the
dual nature of the statutory definition. By statute, both listed and
unlisted risks may qualify as “inherent risks of skiing.” The
operative provision thus consists of a general definition of
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“[i]nherent risks of skiing” and a list of risks that are “includ[ed]”
in that definition:
(1) “Inherent risks of skiing” means those dangers or
conditions which are an integral part of the sport
of recreational, competitive, or professional skiing,
including, but not limited to:
(a) changing weather conditions;
(b) 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;
(c) surface or subsurface conditions such as bare
spots, forest growth, rocks, stumps,
streambeds, cliffs, trees, and other natural
objects;
(d) variations or steepness in terrain, whether
natural or as a result of slope design,
snowmaking or grooming operations, and
other terrain modifications such as terrain
parks, and terrain features such as jumps, rails,
fun boxes, and all other constructed and
natural features such as half pipes, quarter
pipes, or freestyle-bump terrain;
(e) impact with lift towers and other structures
and their components such as signs, posts,
fences or enclosures, hydrants, or water pipes;
(f) collisions with other skiers;
(g) participation in, or practicing or training for,
competitions or special events; and
(h) the failure of a skier to ski within the skier’s
own ability.
UTAH CODE § 78B-4-402. The “integral part of the sport of . . .
skiing” clause is significant. This clause states the general
precondition for a risk to qualify as “inherent.” It makes clear that
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any risk may qualify as “inherent” if it is an “integral part of the
sport” of skiing.
¶113 This is a clear, independent function of the “integral part
of the sport of skiing” clause. It forms the backbone of the statute’s
generally applicable definition of “inherent risks of skiing.” For
unlisted risks it is the controlling inquiry.3
3 For unlisted risks I agree with the majority’s invocation of the
ejusdem generis canon of construction. See supra ¶ 38. In defining
risks “not covered” by the statutory list we should undoubtedly
look to the “character and nature” of the listed risks. Supra ¶ 38.
But the majority takes this canon a couple of puzzling steps further.
First is the assertion that the statutory list is useful (and not
superfluous) simply because it can inform the meaning of the
catchall definition of risks not included in the express list. Supra
¶ 38. This is a distortion of the canon, or a use of ejusdem that
would invoke a wholesale override of the independent meaning
canon. Statutory lists certainly inform ambiguities in catchall
fallbacks. But I have never encountered the idea that that is the
whole point of a statutory list—or that we can ignore the
straightforward application of a list because its sole function might
be to inform the meaning of the catchall. This use of ejusdem would
do more than override the canon of independent meaning; it would
defy common sense. And it would give us a license to ignore clear
statutory lists—lists clearly intended to have independent
meaning—because the only meaning of the list may be to inform a
catchall term.
This leads to the second problem with the majority’s use of this
canon. The court is effectively turning the canon upside down.
“The ejusdem generis canon applies when a drafter has tacked on a
catchall phrase at the end of an enumeration of specifics.” ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 199 (2012). The canon tells us that the meaning of the
“catchall phrase” is informed by the character or nature of the
enumerated “specifics.” Id. But the majority isn’t interpreting the
catchall—the definition of unlisted risks. It is “interpreting” (I
would say overriding) the enumerated specifics. And it is doing so
by incorporating an element of the catchall definition—“integral
part of the sport” of skiing—to override the terms on the list. This
(cont.)
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¶114 It does not follow, however, that the statute leaves a
court free to make its own independent assessment of whether a
listed inherent risk is an “integral part of the sport of . . . skiing.”
The whole point of the statutory list is “to establish as a matter of
law that certain risks are inherent in th[e] sport” of skiing. Id.
§ 78B-4-401. And the list is rendered superfluous if enumerated
risks are still subject to elimination if they are not deemed
“integral” to skiing. 4
isn’t how it works. I know of no basis for considering the
“character and nature” of listed risks in deciding whether listed
risks count. Certainly that’s not what ejusdem generis is about. The
majority’s approach is a gross distortion of the ejusdem generis
canon.
4 In a puzzling attempt to avoid this problem the majority notes
that section 404 of the Act “requires ski area operators to post
warning signs that list the inherent risks of skiing set forth in
section 402.” Supra ¶ 37. And it suggests that the list in section 402
may function simply to tell the ski area operator which risks to list
on its warning signs. This assertion falters on two grounds. First,
the majority ignores the express, obvious function that listed risks
have under the statute—not just in establishing the components of
a warning sign but in barring skiers from asserting “any claim
against, or recover[ing] from, any ski area operator for injury
resulting from any of the inherent risks of skiing.” UTAH CODE
§ 78B-4-403. This is the heart of the Act. See id. § 78B-4-401 (stating
that the “purpose” of the statute is “to provide that, as a matter of
public policy, no person engaged in th[e] sport [of skiing] shall
recover from a ski operator for injuries resulting from th[e]
inherent risks” of the sport). The majority says that warning signs
provide “important, independent value.” Supra ¶ 37. But its
approach eliminates the express, core function of a list of “inherent
risks,” yielding no independent meaning to the independent
function of providing immunity for injuries arising from listed
risks. The court is right that the statute’s requirement of a warning
sign is a separate one. But the requirement makes no sense as
understood by the majority. Surely the point of a “warning sign[]
that list[s] the inherent risks of skiing set forth in section 402,” supra
¶ 37, is a warning sign that means something. Yet the warning sign
(cont.)
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¶115 The “integral part of the sport” clause thus plays a
central, independent role in the statutory definition. It modifies the
definition of “[i]nherent risks of skiing.” But the question is how
the modifier works—whether it calls for an independent judicial
assessment of whether even listed risks are “integral,” or whether
listed risks are categorically deemed “integral” by being listed. The
latter reading is the correct one. And it is the only one that
preserves independent meaning both for the “integral part of the
sport” clause and for the statutory list of “includ[ed]” inherent
risks.
¶116 The statutory list is extensive and detailed but non-
exhaustive. It comes on the heels of the general definition—which
consists of the “integral part of the sport” of skiing clause—as a set
of dangers that are “includ[ed]” in the definition. See id.
§ 78B-4-402(1) (stating that the “[i]nherent risks of skiing”
“includ[e]” but are “not limited to” the listed dangers). Clover also
renders that proviso superfluous. It says that listed dangers may or
may not be included—it depends on whether a court deems them
“integral” in the sense of being risks skiers “wish to confront.” This
is yet another problem with the Clover framework.
¶117 We have never clearly stated what it means for a risk to
be one that skiers “wish to confront.” But we have asserted that
some of the risks listed by the legislature are “inherent” in skiing
and that others are not. We have characterized “steep grades,
powder, and mogul runs” as “inherent” in the sport of skiing,
as imagined by the majority is pointless. If inherent risks listed by
the legislature are not controlling, as Clover and the majority
indicate, see infra Part II.D., then a ski resort would have no reason
to list those risks on a posted sign. Instead the sign should tell
skiers that skiing will subject them to risks that a reasonable skier
would “expect to confront,” however that standard may be
defined. This is the second problem with the notion that the
warning sign required by section 404 gives independent meaning
to the statutory list of inherent risks. The majority has rendered the
list irrelevant. And that also renders the required warning sign
superfluous.
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while insisting that “‘bare spots, forest growth, rocks, stumps, . . .
lift towers and other structures’” are not inherent “[i]f they can be
eliminated by reasonable care.” See White, 879 P.2d at 1375 (citation
omitted). But these propositions are utterly irreconcilable with the
clear text of the statute. By statute, all of the foregoing conditions
are “includ[ed]” as “[i]nherent risks of skiing.” See UTAH CODE
§ 78-B-4-402(1)(c)-(e) (stating “bare spots, forest growth, rocks,
stumps,” “variations or steepness in terrain,” and “impact with lift
towers and other structures” are all inherent risks). And a legal
regime that sweeps away the obvious point of this statutory list
cannot be viewed as compatible with the statute.
¶118 There is an irony in the majority’s resort to canons that
emphasize the importance of preserving independent meaning for
each provision of a statute. I endorse those canons. But they cut
against the Clover approach and in favor of the statutory framework
that I have outlined. My approach preserves meaning for each
separate clause—for the “integral part of the sport” clause and for
the enumerated list of “[i]nherent risks.” Clover, by contrast,
proffers a construction of the first of these clauses that utterly
obliterates the second. And that is incompatible with the canons
identified by the majority and thus fatal to the Clover regime.
2. The Statutory Goal of Clarifying the Law
¶119 The majority next asserts that Clover is consistent with
“the codified purpose” of the Inherent Risks of Skiing Act. Supra
¶ 32 n.10. Again citing Clover, the majority contends that “the
purpose of the statute was ‘to clarify the law, not to radically alter
ski resort liability.’” Supra ¶ 32 n.10 (quoting Clover, 808 P.2d at
1045). And it insists that the Clover court reasonably “recognized
that, unless the Act was construed to allow suits arising from the
negligence of ski area operators—i.e., from any risks that were not
integral to the sport—the statute would effectively abolish the
negligence cause of action against ski area operators.” Supra ¶ 32
The majority further claims that this “understanding of the Act
comports with the self-described purpose of the Act to ‘clarify the
law.’” Supra ¶ 52. And the court describes at great length the
clarification that it attributes to the legislature—a restoration of
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“the law of ski resort liability as it existed prior to [a] perceived
erosion of the defense of assumption of risk.” Supra ¶ 49.
¶120 The majority notes that Clover cited Wright v. Mansfield
Lift, Inc., 96 F. Supp. 786 (D. Vt. 1951), “for the proposition that
‘when the [Inherent Risks of Skiing Act] was enacted the majority
of jurisdictions employed the doctrine of primary assumption of
risk’ to ski area operator liability.” Supra ¶ 50. “Relying on the
doctrine of primary assumption of risk,” the Clover court
“concluded that the Utah legislature was attempting to define and
clarify the duty of ski area operators under this existing doctrine.”
Supra ¶ 50. And the majority today says that this “appears to be
correct.” Supra ¶ 50.
¶121 I have no quarrel with the idea that the Inherent Risks of
Skiing Act was “clarifying” our law. And I have no doubt that the
statute speaks to an area of the law previously covered by the
common law doctrines of primary and secondary assumption of
risk. But I see no basis for the conclusion that the statute was
merely restoring a body of common law cases. The statute, of
course, says nothing about restoring a ski area operator’s right to
“raise a defense of primary assumption of risk against a skier’s
claim for liability.” Supra ¶ 51. And it certainly does not say that
“ski area operators owe a duty to exercise reasonable care, but a
skier assumes the inherent risks of skiing to the extent that those
risks persist after the ski area operator’s exercise of reasonable
care.” Supra ¶51. Those might be good policies. But they are not the
policies set forth in the statute.
¶122 The statute does identify a purpose of “clarify[ing]” the
law in this area. See UTAH CODE § 78B-4-401. But that does not tell
us what clarification the legislature had in mind. It doesn’t tell us
whether the clarification involved a minor alteration of the law or a
“radical” one. See supra ¶ 51. To discern the nature and extent of the
clarification we have to look at the text of the statute. 5
5 The majority says that the Act “conflate[s]… two forms of
assumption of the risk.” Supra ¶ 51 n.18. But that highlights the
atextual nature of the Clover framework. That framework
essentially says that (a) the purpose of the law was to restore the
(cont.)
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¶123 The statute speaks of clarification after lamenting
“confusion” in the law “as to whether a skier assumes the risks
inherent in the sport of skiing.” UTAH CODE § 78B-4-401. That
suggests that the clarification accomplished by the statute is in
setting out a bright-line rule in a previously murky area. The
statutory definition of “inherent risks of skiing” does just that. It
furthers the legislature’s stated purpose of “establish[ing] as a
matter of law that certain risks are inherent in th[e] sport” of skiing.
Id. § 78B-4-401 (emphasis added). The statutory clarification is thus
enhanced by giving effect to the plain meaning of the enumerated
list of inherent risks of skiing. So the general reference to the goal of
clarification does nothing to support the obliteration of the
statutory framework established by the Clover decision.
¶124 The problem with the majority’s approach is not its
general premise that the Inherent Risks of Skiing Act “clarif[ies] the
law” by codifying the doctrine of primary assumption of risk. It is
its specific conclusion as to which risks are subject to that doctrine.
The statute says that listed risks are “inherent” and thus beyond the
defendant’s duty to discover and prevent. Yet the majority rejects
that conclusion, adopting instead a standard under which no risk is
categorically inherent—not even a risk listed in the statute.
¶125 The majority seeks to “bolster[]” its approach by noting
the absence of the word “negligence” in the statute. Supra ¶ 53. It
finds it “nigh impossible to believe that the legislature intended to
completely abolish the negligence cause of action with respect to
enumerated risks when the Act itself says nothing about
negligence.” Supra ¶ 53. And it finds the abolition of negligence
claims arising from inherent risks of skiing a large “elephant”
unlikely to be hidden in the “mousehole” of the Inherent Risks of
Skiing Act. Supra ¶ 53. I see this differently. I see neither an elephant
nor a mousehole.
doctrine of primary assumption of risk, but (b) the text of the
statute is just mistaken in the way it deals with it. I see a better way
around this tension. I would just credit the text of the statute.
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¶126 The statute, as all agree, addresses an area of our law that
had long been in a state of confusion—the applicability of the
doctrine of primary assumption of risk to the sport of skiing. We
also all agree that the statute establishes a bar on tort claims for
risks that are deemed “inherent” and an “integral part of the
sport.” With that in mind, there is nothing elephant-ish about the
establishment of a bar on a negligence claim for injuries arising
from inherent risks of skiing. Nor is there anything mousehole-ish
about the terms of the Inherent Risks of Skiing Act. The majority is
right that the statute never uses the term negligence. But it speaks
clearly, and in even more sweeping language—in expressly
establishing the “purpose” of “provid[ing] that, as a matter of
public policy, no person engaged in th[e] sport [of skiing] shall
recover from a ski operator for injuries resulting from th[e] inherent
risks” of the sport, UTAH CODE § 78B-4-401, and categorically
providing that “no skier may make any claim against, or recover
from, any ski area operator for injury resulting from any of the
inherent risks of skiing,” id. § 78B-4-403. 6
¶127 I read these provisions to sweep even more broadly—
and clearly—than a bare statement of repudiation of a “negligence”
6 The Inherent Risks of Skiing Act, as written, has some overlap
with the doctrine of primary assumption of risk. See supra ¶ 51. But
it cannot be said that the statute defines the “inherent risks of
skiing”—those for which a ski area operator is presumed unable to
discover or prevent—by means of a case-by-case inquiry into
whether the risk was encountered in an “expected” manner. Such a
regime is irreconcilable with a statute that identifies specific
categories of risks that are “inherent” in skiing and for which “no
skier may make any claim.”
A statutory list of risks that are expressly “inherent” in the sport
of skiing is thus no “major departure” from the law of primary
assumption of risk. See supra ¶ 53 n.20. The statute takes the
concept of primary assumption of risk and makes it more concrete
and predictable—by specifying which risks count as inherent. This
is no “elephant.” And the Inherent Risks of Skiing Act is no
“mousehole.” A statute by that name is precisely the place we
would expect to find a list of enumerated risks.
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claim for injuries arising from inherent risks of skiing. Granted, the
legislature never said it was abrogating a “negligence” claim
against ski resorts. But it did say that it was abrogating “any claim
against, or recover[y] from, any ski area operator for injury
resulting from any of the inherent risks of skiing.” Id. And this is no
mousehole. It’s a sweeping statement that “any” and all “claim[s]”
or attempts to “recover” are barred. This is an elephanthole (or
whatever we would call the type of large chasm an elephant might
crawl into)—and a clear statement by the legislature that the
majority has rendered meaningless.
3. “Absurd Consequences”
¶128 The majority next hypothesizes “absurd” applications of
the plain language of the statute that Clover purportedly avoids.
The majority imagines “intentionally camouflaged” lift towers that
are “practically invisible to skiers.” Supra ¶ 39. It “cannot be right,”
in the majority’s view, that a collision which such nefarious death-
traps is covered by the statute. And because the court sees such a
conclusion as “inevitable,” Supra ¶ 39., it invokes the absurd
consequences canon to justify the Clover standard.
¶129 This is problematic. Legislative line-drawing may often
seem arbitrary. But that is no license for judicial rewriting of
legislation. We may override clear statutory text only in the very
rare event that the language enacted into law is not just arbitrary
but outright absurd—“so absurd that no rational legislator could
possibly have intended it.” Garfield Cty. v. United States, 2017 UT 41,
¶ 23 n.55, 424 P.3d 46.
¶130 The list of risks in the Inherent Risks of Skiing Act is
hardly absurd. It consists of dangers that the legislature considered
to be inherent in the sport. And for those dangers the statute calls
for immunity for ski area operators. Yet the statute does not
foreclose immunity for other risks. For unlisted risks the statute
calls for a case-by-case determination of whether the risk is a
“danger[] or condition[] which [is] an integral part of the sport” of
skiing. UTAH CODE § 78B-4-402.
¶131 This is a sensible legal framework. An “impact” with a
“lift tower[]” is a listed “inherent risk.” See UTAH CODE
§ 78B-4-402(1)(e). But an invisible lift tower could reasonably be
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dismissed as a deviation from the ordinary understanding of “lift
tower,” and thus falling outside the terms of the statute. If so, the
statute’s language would not be interpreted to stretch to cover such
a deviation. See supra ¶ 39. The same may hold for the majority’s
example of the “pile of rocks intended for later landscaping placed
in the middle of a beginner run.” Supra ¶ 43. The listed risk, after
all, speaks not of “rocks” in the abstract, but of “surface or
subsurface conditions such as bare spots, forest growth, rocks,
stumps, streambeds, cliffs, trees, and other natural objects.” UTAH
CODE § 78B-4-402(1)(c). And a man-made “pile of rocks” placed
artificially on a ski run “for later landscaping” at least arguably
would not qualify as a “natural” “surface or subsurface condition.”
Natural surface or subsurface conditions presumably would be
limited to relatively permanent conditions existing in nature, and
would not extend to conditions created temporarily by human
intervention. 7
¶132 Yet we need not decide the “invisible lift tower” or “pile
of rocks” cases to resolve the one before us today. Our law of
interpretation bears tools that are suited to the resolution of the
7 My conclusions here are tentative—phrased in terms of
interpretations that arguably could hold—because the majority’s
hypotheticals are not now presented for our decision. I see no
reason to offer a conclusive answer in the absence of a specific
controversy and briefing from the parties. My tentativeness,
however, cannot reasonably be taken as an indication that my
approach “lends itself” to the same sort of unpredictability that
inheres in the majority’s standard. Supra ¶ 43 n.16. At most the
majority has observed that a statute like the Inherent Risks of
Skiing Act will present a few difficult questions of statutory
interpretation. That will always be true for any statute. But this
observation is no reason to ignore clear statutory language and to
substitute in its place an indeterminate balancing test of the court’s
own making. That test guarantees indeterminacy and
unpredictability in every case that will come before our courts. We
cannot justify that kind of test by noting that an inquiry into the
meaning of statutory language will occasionally raise some
difficulties.
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majority’s hypotheticals—and that would allow us to do so without
distorting the statute in a case that is more standard (and in no way
presents any concerns about absurdity). The principal tool is the
doctrine of absurdity.
¶133 This doctrine yields limited power for courts to override
the clear terms of a statute. We may do so, however, only in the
rare, limited circumstance in which we can conclude that “no
rational legislator could possibly have intended it.” Garfield Cty.,
2017 UT 41, ¶ 23 n.55. When we do so, moreover, we do not strike
the statute down, or distort its terms as applied to standard (non-
absurd) circumstances. We simply foreclose the application that is
deemed to satisfy the high bar of absurdity. See John F. Manning,
The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2388 (2003) (stating
that the absurdity doctrine allows departure from “clear[] statutory
text” when a “given application” would produce an absurd result).
The majority distorts the absurdity doctrine here. It employs
hypothetical circumstances that might test the limits of the
statutory text not to foreclose application of the statute to those
specific circumstances, but to rewrite the statute more generally.8
This is problematic. We have no authority (certainly not in the
doctrine of absurdity) to rewrite statutes generally just because we
8 The difficulty with the majority’s approach is evident in its
treatment of the “twenty-yard bare spot” hypothetical. See supra
¶ 43 n.15. Such a condition concededly falls within the plain terms
of the statute. A bare spot is a bare spot, and thus an inherent risk
of skiing, regardless of its size. But the bare possibility of the
statute’s application to a very large bare spot is no license for a
decision to rewrite the statute in a manner that overrides its plain
language quite generally. Perhaps this application would be the
kind of absurdity that would allow the court to decide that no
rational legislator could have intended such an application. But the
mere possibility of this kind of carve-out for this kind of unusual
application is no reason for us to override the statutory language
more generally.
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can imagine some difficult (possibly absurd) applications in future
cases. 9
4. Constitutional Avoidance
¶134 A final point raised by the majority is its assertion that
Clover is justified on constitutional avoidance grounds. Supra ¶¶ 55-
58. The constitutional concern is one flagged in Clover—that a view
of the statute that forecloses negligence claims against ski area
operators “could violate the Open Courts Clause of the Utah
Constitution.” Supra ¶ 55.
¶135 I do not see this as a basis for preserving Clover. Our
doctrine of constitutional avoidance is a limited one. It “is not a
license to rewrite statutes.” Orlando Millenia, LC, v. United Title
Servs. of Utah, Inc., 2015 UT 55, ¶ 84, 355 P.3d 965. “It is a tool for
interpreting them.” Id. Thus, “for the constitutional avoidance
canon to even apply, ‘the statute must be genuinely susceptible to
two constructions.’” Utah Dept. of Transp. v. Carlson, 2014 UT 24,
¶ 24, 332 P.3d 900 (quoting Almendarez-Torres v. United States, 523
U.S. 224, 238 (1998)). Where “one of two proposed interpretations
of a statute can be eliminated as untenable, we must reject in favor
of the one that more clearly advances the intent of the legislature.”
Id.
¶136 A more aggressive use of the canon, we have warned,
“can easily undermine legislative intent.” Id. And that would be the
effect of the use of this canon here. The legislature has spoken
clearly in delineating a list of inherent risks of skiing for which a ski
area operator is insulated from liability for negligence. We should
respect the legislature’s judgment. We cannot properly override it
9 The majority seeks to avoid this problem by insisting that it is
not applying the absurdity “doctrine” to override the clear
language of the statute but instead is just considering the absurd
consequences “canon” to inform its understanding of ambiguous
language. Supra ¶ 41 n.14. I see no way to justify that approach, as I
see no ambiguity in the statute. Because the majority is overriding
the clear import of the statutory text it should justify its decision
under the doctrine of absurdity. The majority’s inability to do so
highlights the problems with the its approach.
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just because we have identified some vague constitutional question.
See id. ¶ 24 n.4 (citing Richard L. Hasen, Constitutional Avoidance and
Anti–Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181, 189)
(noting that some invocations of the canon seem to “signal[ ] a
Court that is actively engaged in shaping law and policy, not acting
modestly”); see also United States v. Marshall, 908 F.2d 1312, 1318
(7th Cir. 1990) (“The canon about avoiding constitutional decisions
. . . must be used with care, for it is a closer cousin to invalidation
than to interpretation.”).
¶137 This is not to say that the constitution should play no role
in the disposition of this case. It is important to emphasize the
proper role for constitutional analysis in a case of this sort. Where a
statute lends itself to only one reasonable interpretation then the
court must adopt that interpretation. At that point, “[m]ere doubts
about the constitutionality” of the statute “are not enough to
override the legislature’s intent.” Carlson, 2014 UT 24, ¶ 25. “The
only viable basis for doing that would be an actual determination
of unconstitutionality.” Id.
¶138 This court may ultimately be called upon to resolve the
question of the constitutionality of the Inherent Risks of Skiing Act
as applied here. I would leave this question open to the parties and
the district court on remand, as it has not yet been presented to that
court and we have no decision before us to review. If and when
that question is raised and briefed we can consider whether the
Inherent Risks of Skiing Act raises constitutional concerns. But the
mere possibility of such concerns is not a basis for overriding the
clear text of the statute.
B. Stare Decisis
¶139 The mere conclusion that a prior decision is incorrect is
not enough to sustain a decision to set it aside. Instead we have
long held that we overrule precedent only if the usual downsides of
doing so are outweighed by significant upsides. See Utah Dep’t of
Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 36, 275 P.3d 208.
¶140 Our most recent, comprehensive statement of our
doctrine of stare decisis was in Eldridge v. Johndrow, 2015 UT 21, 345
P.3d 553. A key question under Eldridge is “how firmly” a line of
“precedent has become established in the law since it was handed
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down.” Id. ¶ 22. In evaluating this question, we consider “the age of
the precedent, how well it has worked in practice, its consistency
with other legal principles, and the extent to which people’s
reliance on the precedent would create injustice or hardship if it
were overturned.” Id. We also assess “the persuasiveness of the
authority and reasoning on which the precedent was originally
based.” Id. 10
10 The majority alludes at length to the idea of “super stare
decisis” for “statutory precedents.” Supra ¶ 27 n.9. It cites precedent
from a few state courts, a concurring opinion in this court, and a
scholarly article by a law professor—all endorsing the view that
statutory precedent is entitled to more weight than other
precedent. And while acknowledging that this matter may be “an
open question” in this court, the majority lauds the “force of the
logic behind” this view. Supra ¶ 27 n.9. This is a significant move. It
extends our law of stare decisis in a manner that a majority of this
court has never endorsed, on which there is room for substantial
disagreement. See William N. Eskridge, Jr., Overruling Statutory
Precedents, 76 GEO. L. J. 1361, 1385 (1988) (noting that the
“anchoring idea [of super stare decisis] has proven to be less than
workable”); see also Frank H. Easterbrook, Stability and Reliability in
Judicial Decisions, 73 CORNELL L. REV. 422, 429 (1988) (challenging
the “shibboleth that it should be harder to overrule a statutory
decision”). I would not endorse this notion.
This court has only ever applied a single, uniform standard. In
statutory, common law, constitutional, and other cases we have
consistently inquired into the same considerations addressed
herein. See, e.g., State v. Hansen, 734 P.2d 421, 427 (Utah 1986)
(overruling a statutory interpretation in State v. Norton, 675 P.2d
577 (Utah 1983) because it “construed the statute incorrectly and
without benefit of briefing by the parties[,]” was a “recent
[decision],” “the legislature ha[d] not relied upon it in enacting
other statutes,” and it “result[ed] in very poor public policy, policy
the legislature could not have intended”); State v. Mauchley, 2003
UT 10, ¶11, 67 P.3d 477 (analyzing the common law “corpus
delicti” doctrine under standard stare decisis standards); Utah Dep’t
of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 16, 275 P.3d 208
(cont.)
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¶141 The point of this inquiry is to balance the important goal
of maintaining stability in the law against our ongoing commitment
to getting the law “right.” The first-listed set of considerations is
aimed at assessing the downsides of overruling precedent. If a law
is working well in practice and sustains significant reliance
interests, it may be costly to reform the law by overruling
precedent. And that is a point favoring deference to precedent. The
second consideration goes to the upside of overruling an erroneous
precedent. The more clearly errant a prior decision, the greater the
need to set it aside in advancing our commitment to the rule of law.
¶142 This is what our cases mean when they speak of more
“good” than “harm” coming from overruling a prior opinion. See
Admiral Beverage, 2011 UT 62, ¶ 36. The principal “harm” is in
undermining stability of our law and reliance interests built around
our precedent. So the argument for overruling a prior decision is
strongest when the costs of overruling (from a reliance or stability
standpoint) are low and the benefits (from a rule of law standpoint)
are high. And that is the case here.
¶143 First, the usual costs of overruling precedent are
diminished here because Clover is not deeply rooted in our law, is
unworkable in practice, and does not sustain significant reliance
interests. The inquiry called for in Clover—as to whether a given
risk is one that skiers may “wish to confront”—does not lend itself
to consistent, principled application. Indeed the Clover standard
masks a latent ambiguity that invites arbitrariness. And that
renders Clover more vulnerable under our doctrine of stare decisis.
See Eldridge, 2015 UT 21, ¶ 43 (identifying the “fact-intensive”
nature of an issue, the dearth of case law guidance, and the fact that
(assessing constitutional rule of eminent domain under standard
principles of stare decisis).
There is an irony in the majority’s application of the doctrine of
stare decisis. The court is invoking the doctrine in the same case in
which it is effectively overriding our longstanding approach to
stare decisis. I would avoid that move. And I certainly wouldn’t
make it in a case in which the question is neither briefed by the
parties nor necessary to our decision.
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“trial courts and juries” are left “to make decisions that are
effectively without guidance” as grounds for overturning
precedent).
¶144 One formulation of the Clover inquiry would invite fact
testimony and lay analysis—as to whether a given risk is one that a
reasonable skier would “wish to confront.” Yet this is an invitation
for arbitrariness, and for overriding the clear terms of the statute.
Many of the risks deemed “inherent” by the legislature are unlikely
to be desired by many skiers. “[B]are spots,” for example, are listed
in the statute as an inherent risk of skiing, see UTAH CODE
§ 78B-4-402(1)(c), but many skiers likely would prefer not to
“confront” them.11 Other similar examples appear in the statute. See
UTAH CODE § 78B-4-402(1) (listing many risks that many skiers
undoubtedly would prefer not to confront, particularly when they
result in injury, such as “changing weather conditions,” “slush,”
“collisions with other skiers,” and “the failure of a skier to ski
within the skier’s own ability”). So this inquiry opens the door for
the factfinder to deem most any risk listed in the statute as one a
reasonable skier would not wish to confront. And that would
thoroughly defeat the clear terms of the statute.
11 A contrary conclusion is also conceivable. Our prior cases
have singled out “bare spots, forest growth, rocks, stumps, . . . lift
towers and other structures” as risks skiers would not wish to
confront. White v. Deselhorst, 879 P.2d 1371, 1375 (alteration in
original) (abrogated on other grounds by Penunuri v. Sundance
Partners, Ltd., 2017 UT 54, 423 P.3d 1150). But that will not hold for
all skiers. Part of the allure of skiing is to confront (and avoid) all
hazards and dangers that appear on the mountain—including trees
and rocks and stumps. The advent of the “terrain park” illustrates
that point. The whole point of the terrain park is to introduce
hazards like “towers” and “structures” that skiers and
snowboarders can confront. See Dunbar v. Jackson Hole Mountain
Resort Corp., 392 F.3d 1145, 1146 (10th Cir. 2004) (describing a
terrain park as being “designed for advanced skiers and
snowboarders who choose to recreate in a very challenging risk-
filled environment”). And this highlights the arbitrariness and
unworkability of the Clover framework.
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¶145 Perhaps the use of expert testimony regarding what
dangers are standard within the industry would remove some of
the arbitrariness in the Clover analysis. Yet it is also likely that it
would lead to the “dueling expert” trial, in which each side
presents opinion testimony on whether the ski area in question
lived up to industry standards. And that sort of inquiry would
stretch the legal framework of the Inherent Risks of Skiing Act past
its breaking point. The purpose of the statute, as noted, was “to
establish as a matter of law that certain risks are inherent in” skiing,
and to thus provide that “no person engaged in that sport shall
recover from a ski operator for injuries resulting from those
inherent risks.” UTAH CODE § 78B-4-401. Those purposes would be
thwarted by a legal framework that requires expert testimony to
determine whether the risks presented at a given ski area are in line
with an industry standard.
¶146 The “industry standard” inquiry is a matter for the law of
negligence. 12 If the liability of a ski area operator for injuries
12 See, e.g., Spafford v. Granite Credit Union, 2011 UT App 401,
¶ 34, 266 P.3d 866 (affirming the dismissal of a premises liability
negligence claim where there was “no expert testimony that the
height of the curb or the slope of the asphalt ‘violated any specific
industry standards’” (citation omitted)) abrogated on other grounds
by Coroles v. State, 2015 UT 48, 349 P.3d 739; Hilliard v. Speedway
Superamerica LLC, 766 So. 2d 1153, 1155 (Fla. Dist. Ct. App. 2000)
(“A breach of industry standards is evidence of negligence.”);
Murphy v. Conner, 646 N.E.2d 796, 798 (N.Y. 1994) (“Ordinarily, the
opinion of a qualified expert that a plaintiff’s injuries were caused
by a deviation from relevant industry standards would preclude a
grant of summary judgment in favor of the defendants.” (citation
omitted)); cf. RESTATEMENT (SECOND) OF TORTS § 295A (1965) (“In
determining whether conduct is negligent, the customs of the
community, or of others under like circumstances, are factors to be
taken into account, but are not controlling where a reasonable man
would not follow them.”).
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resulting from risks listed as “inherent” were dependent upon a
case-by-case assessment of the operator’s compliance with industry
standards, then the core premise of the Inherent Risks of Skiing Act
would be defeated.
¶147 Neither variation on the Clover inquiry is accordingly
viable. And absent some refinement or reformulation, our law
under Clover leaves parties guessing about the likely outcome of a
case filed under the Inherent Risks of Skiing Act. That is a hallmark
of unworkability—and a basis for overruling Clover despite the
deference that is normally owed to our precedent under the
doctrine of stare decisis. See Eldridge, 2015 UT 21, ¶ 43 (overruling a
legal standard in our precedent on the ground that it left fact-
finders “without guidance” to make a highly “fact-intensive”
determination).
¶148 This is one of the reasons we sought supplemental
briefing from the parties in this case. The initial briefing left us
without much guidance on the proper framework for assessing
whether and to what extent a given risk is one that skiers may
“wish to confront.” And we accordingly asked the parties to advise
us (a) on whether to retain or repudiate Clover, and (b) on how to
frame the Clover inquiry into risks that skiers “wish to confront” in
the event that we kept that standard in place. That briefing offered
little help on the latter question. And the lack of a reasoned basis
for distinguishing the two categories of risks identified in Clover is a
basis for concluding that the standard established in that case is not
just wrong but unworkable—and thus unlikely to sustain
significant reliance interests.
¶149 The majority disagrees. Yet it has not offered an answer
to the analytical puzzle left open by Clover—as to the means of
assessing whether a given risk is one that skiers “wish to confront.”
Instead, the majority relies on a simple reformulation of the Clover
test—substituting the word “expects” for “wish.” 13 Supra ¶ 79. But
13The majority claims that this switch is justified by both Clover
and the statutory text. Because the statutory list of inherent risks is
“presented in an entirely unremarkable manner,” supra ¶ 80, the
majority concludes that the proper inquiry is whether the risk the
(cont.)
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this does nothing to reduce the uncertainty generated by Clover.
Our decision today will only perpetuate the uncertainty and
continued litigation about the availability of immunity under the
Inherent Risks of Skiing Act. We still have not explained how a
court is to decide whether a given risk is one that a reasonable skier
skier encountered is one that she would “reasonably [have]
expect[ed]” to encounter. Supra ¶ 79. This is so, the majority asserts,
regardless of whether the risk is actually included in the statutory
list.
Yet this move undermines the majority’s resort to the doctrine
of stare decisis. If the majority is seeking refuge in that doctrine it is
in no position to reformulate its standards. (Once we start in that
direction we are no longer following precedent—we are returning
to first principles of statutory interpretation. And if we do that we
will hardly end up at Clover.) “Reasonably expect to encounter”
does not mean the same thing as “wish to confront.” So the
majority is substantively altering the legal framework set forth in
Clover. The court says this alteration is permissible because it
“effectively captures the legislature’s intent.” Supra ¶ 79. That may
be. But it does not accurately capture Clover’s holding. Thus,
despite much hand-wringing about the importance of precedent,
the majority does violence to the Clover standard. It does so, quite
clearly, by transforming a two-step subjective inquiry into a one-
part objective one. See supra ¶ 80. Surely an objective test is not the
same as a subjective inquiry. And a one-step test is different from a
two-step one.
I suppose there is a sense in which the majority can claim that
its entirely new formulation is a simple refinement of Clover. But
that is only because neither test has any clear substantive content.
As I explain in greater detail in Part II.D. below, the majority’s test,
like its Clover predecessor, is marked primarily by its extensive
indeterminacy. Neither test is capable of generating remotely
predictable outcomes. And in that sense I suppose we can say that
the new test “does the same work” as the Clover test. Supra ¶ 79
n.27. We cannot properly say that the test is the same, however.
Nor can we say how the test will play out in practice. The only
thing litigants and lower courts can know for sure is that the
statutory text doesn’t matter.
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might or might not “expect” to encounter on her journey down the
slopes. And this is an open invitation for courts to enact their own
judgment about what is “reasonable” into the law. The majority’s
failure to delineate an applicable rule of law based on Clover 14
further underscores the need for us to revamp our law in this
area—and to bring it in line with the statutory text.
¶150 The majority offers a series of grounds for rejecting this
conclusion. I find none of them convincing.
1. Unworkability
¶151 The majority responds to my concerns with the
unworkability of the Clover test not by unraveling the
unpredictability of the operative legal standard but by insisting that
the absence of substantial appellate litigation in this area supplies
conclusive evidence that Clover is workable. Supra ¶ 70.
¶152 But the premise of this argument is undermined by our
cases. In Eldridge we overturned a longstanding element of our law
of intentional interference with contractual relations—set forth in
Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982). In so
doing we were not deterred by the fact that our precedent in this
area had not “generated substantial appellate litigation.” 15 We
simply analyzed the legal standard we were repudiating—an
option to establish intentional interference upon proof of a
defendant’s “improper purpose”—and opined that this standard
was too unpredictable to be a workable precedent. See Eldridge,
2015 UT 21, ¶ 43. We noted, specifically, the “fact-intensive” nature
of the improper purpose standard, the lack of a predictable
14 See infra Part II.D.
15 The majority cites a lack of appellate litigation as an
indication of workability. Supra ¶ 70. But I see no reason to draw
any inference of workability from the mere lack of appellate case
law. It is easy to think of other explanations for the lack of appellate
litigation. The parties to these cases may just be generally settling,
rather than trying, their claims. And that would make sense if
the Clover standard is unpredictable and does not lend itself to
summary disposition.
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standard for implementing it in the case law, and the fact that “trial
courts and juries” are left “to make decisions that are effectively
without guidance” as grounds for overturning precedent. Id.
¶153 In a sense, moreover, we have “evidence” that the Clover
standard is unworkable—no party has been able to propose a way
to consistently apply it. We requested supplemental briefing from
the parties on how courts could determine whether a risk is one
that “skiers wish to confront.” The parties could not identify a
workable standard. And the majority has not proposed one either.
So if this court cannot identify the factors lower courts should
apply to determine whether a risk is one skiers “wish to confront,”
we cannot expect the standard to suddenly become workable in
practice on remand.
(a) Decisions in Other Jurisdictions
¶154 The majority also seeks to sustain the workability of the
Clover framework by citing decisions from other states. Supra
¶¶ 59-60, 72. The majority cites Bouchard v. Johnson, 555 N.W.2d 81
(N.D. 1996); Kopeikin v. Moonlight Basin Management, LLC, 981 F.
Supp. 2d 936 (D. Mont. 2013); and Nutbrown v. Mount Cranmore,
Inc., 671 A.2d 548 (N.H. 1996), as evidence of Clover’s workability.
¶155 None of these cases sustains the workability of the Clover
decision, however. The statutory schemes in each of these cases are
distinct from our Utah statute. And none of these cases endorses
the Clover notion of two new categories of inherent risks, framed by
a determination of whether skiers “expect to confront” them. Nor
do they, accordingly, pave a path for a workable analysis of the
“expect to confront” standard.
¶156 The Bouchard decision cites the operative standard set
forth in Clover but it does not adopt it. The “‘proper standard’”
endorsed by Bouchard is not the Clover framework. It is this:
There should be no liability for a ski area operator
if the design of the ski run creates natural conditions,
necessary to the enjoyment of the sport, and the
design is so obviously dangerous the skier assumes
the risk. Conversely, if the design problem was
created by the operator’s negligence and was not an
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inherent risk associated with the sport, liability for the
operator should exist.
555 N.W.2d at 85.
¶157 This is not Clover. This is not a decision that overrides a
statutory list of inherent risks of skiing and replaces it with a new
set of categories turning on a determination of which risks skiers
“wish to confront.” It is simply a restatement of the operative
statutory standard. The North Dakota statute is distinct from our
Utah statute. It begins with an extensive list of “‘duties’” that
“‘[e]very ski operator shall have . . . with respect to the operation of
a skiing area,’” and then proceeds to state that skiing is
“‘hazardous . . . regardless of all feasible safety measures which can
be taken,’” and thus that “‘[e]ach skier expressly assumes the risk
of’” injuries resulting from enumerated inherent risks of skiing. Id.
at 83 (quoting North Dakota statute). In context, then, the “proper
standard” endorsed in Bouchard does not at all sustain the viability
of the Clover standard. It undermines it—in the sense that Bouchard
simply follows the operative statutory framework (while Clover
overrides it).
¶158 The Kopeikin decision is similarly unhelpful to the cause
of retaining Clover. The Montana statute at issue in Kopeikin is like
the North Dakota statute in Bouchard. It not only identifies
“inherent risks” for which ski area operators are immune, but also
“provides a non-exclusive list of duties for ski area operators.”
Kopeikin, 981 F. Supp. 2d at 942 (citing statute). This statutory
provision, moreover, came about as a result of a Montana Supreme
Court decision striking down a prior statute that, like our Utah
statute, imposed a clear bar on ski area operator liability in certain
circumstances. See Brewer v. Ski-Lift, Inc., 762 P.2d 226 (Mont. 1988)
(holding that “a fair reading” of the Montana statute “prohibits the
skier from obtaining legal recourse against an operator even if the
injury is proximately caused by the negligent or even intentional
actions of the operator,” but holding that the statute was overbroad
and unconstitutional). In this sense the Montana line of cases
actually undermine Clover. If we were to follow the Montana lead,
we would give effect to the plain language of the Utah statute and
then consider a constitutional challenge to the statute. We would
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not override the terms of a clear statute with an “inherent risk”
framework of our own making.
¶159 The Kopeikin decision does cite and endorse Clover to
some degree. See Kopeikin, 981 F. Supp. 2d at 944–45. It ultimately
denied a motion to dismiss the complaint—even though the
complaint was asserting claims based on an injury that was caused
by a danger the Montana statute deemed “inherent” in skiing. Id. at
945. But the Kopeikin decision does nothing to clarify the Clover
framework or to reinforce its workability. Kopeikin just kicks the can
down the road on the operative issue under Clover—holding that at
the pleading stage “all facts alleged must be treated as true and
construed in the light most favorable to the plaintiff,” and noting
that the risk at issue was not “inherent” “[a]ccording to the
allegations in the Complaint, which is all the Court had before it at
th[at] time.” Id. Thus, Kopeikin comes as close as any of the cited
cases to supporting Clover; but it ultimately tells us nothing about
the workability of the Clover standard.
¶160 The Nutbrown decision is also unsupportive of the
viability of the Clover standard. Nutbrown cites Clover. See Nutbrown,
671 A.2d at 680. But it nowhere endorses the framework of the
Clover decision. And again the statute at issue is distinct from our
Utah statute. The New Hampshire statute at issue in Nutbrown is
like the North Dakota and Montana statutes: It begins with an
express list of duties of ski area operators, and only then provides
that “[e]ach person who participates in the sport of skiing accepts
as a matter of law, the dangers inherent in the sport.” Id. at 679-81
(citing New Hampshire statute). The Nutbrown holding, moreover,
gives express effect to the plain terms of the statute—and nowhere
endorses the gloss on statutory risks set forth in Clover. Thus,
Nutbrown cites Clover only for the proposition that “[t]he statute
does not purport to immunize a ski area operator for injuries
caused by the operator’s own negligent or intentional acts.” Id. at
680. And it ultimately gives effect to the statutory scheme. It holds
that the plaintiff stated a viable claim arising from the ski area
operator’s failure “‘to properly mark’ the beginning of a trail”
because that involved the breach of a duty set forth by statute, but
that plaintiff’s other claims all involved “allegations of fault and
causation [that] were inherent risks of skiing and thus [were] not
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actionable.” Id. at 683. Thus, if anything Nutbrown undermines
Clover; it does so by following the operative statutory scheme
instead of replacing it with a new “inherent risks” standard of a
court’s own making.
¶161 For these reasons the majority’s cited cases do nothing to
sustain the viability of the Clover framework (or the puzzling
modification made thereto today). In many ways these cases
undermine the decision we reconsider today. And other courts
have done so more forthrightly. The strongest case on point is
Glover v. Vail Corp., 955 F. Supp. 105, 108–09 (D. Colo. 1997). The
Glover court was applying a Colorado statute that is closely parallel
to our Utah Act—a statute that “states unequivocally that ‘no skier
may make any claim against or recover from any ski area operator
for injury resulting from any of the inherent dangers and risks of
skiing,” which included “collisions with other skiers.” Id. at 108. In
Glover the plaintiff sought to recover from a ski area operator for an
injury resulting from a collision with another skier. The Glover
court dismissed the claim on summary judgment, holding that the
statutory language was plain and the court had no license to “alter
its terms.” Id. at 107. In so doing the court discussed and rejected
the Clover framework. The Glover court found the Clover framework
“flawed,” noting that it “transform[ed]” a statutory standard of
“inherent risks” into “mere suggestions of what risks might be”
integral, and concluding it stemmed from this court’s apparent
“dissatisf[action] with” the effect of the statutory scheme. Id. at 108-
09.
¶162 The Glover court’s concerns are also reiterated in Hanus
v. Loon Mountain Recreation Corp., No. 13-CV-44-JL, 2014 WL
1513232, at *5 n.5 (D. N.H. Apr. 16, 2014). The Hanus court reached
the same conclusion. It rejected Clover on the basis of the Glover
critique. Id.
¶163 The majority’s approach thus finds very little support in
the precedents of other jurisdictions.
(b) Legislative “Endorsement” of Clover
¶164 The majority also asserts that there is reason to conclude
that the legislature has acquiesced in or endorsed our decision in
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Clover. In the majority’s view, our “legislature has had at least two
opportunities to overrule the core holding of Clover” in the years
since that decision. Supra ¶ 64. And because the legislature has not
acted, the majority sees “good reason to continue to accord Clover
weighty stare decisis.” Supra ¶ 66.
¶165 I see no good reason for this kind of inference.
Legislative inaction may be the result of any of a number of
factors—unawareness of a judicial decision, a lack of legislative
inertia to address such a decision, the absence of consensus on a
means of overriding such a decision, or a range of other
circumstances. None of these circumstances indicate legislative
acquiescence. And it is sheer speculation to assume the contrary.16
This legislative silence, moreover, does nothing to salvage the
unworkable Clover framework.
¶166 The decision of the legislature that enacted the Inherent
Risks of Skiing Act is entitled to respect. Subsequent legislatures,
moreover, have no authority to amend the work product of a prior
legislature except by enacting actual legislation. See Patterson v.
McLean Credit Union, 491 U.S. 164, 175 n.1 (1989) (“Congressional
inaction cannot amend a duly enacted statute.”).
¶167 U.S. Supreme Court authority reinforces these
conclusions. That court has frequently cautioned that “[w]e walk
on quicksand when we try to find in the absence of corrective
legislation a controlling legal principle.” Helvering v. Hallock, 309
U.S. 106, 121 (1940) (Frankfurter, J.). Thus, the Court has
16 The idea that legislative endorsement can be inferred from
legislative inaction has long been criticized. See, e.g., Zuber v. Allen,
396 U.S. 168, 185 & n.21 (1969) (“Legislative silence is a poor beacon
to follow in discerning the proper statutory route.”; “Congressional
inaction frequently betokens unawareness, preoccupation, or
paralysis.”); Girouard v. United States, 328 U.S. 61, 69 (1946) (“It is at
best treacherous to find in Congressional silence alone the adoption
of a controlling rule of law.”); Helvering v. Hallock, 309 U.S. 106,
119–20 (1940) (“To explain the cause of non-action by Congress
when Congress itself sheds no light is to venture into speculative
unrealities.”).
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emphasized that “[i]t does not follow . . . that Congress’ failure to
overturn a statutory precedent is reason for this Court to adhere to
it.” Patterson, 491 U.S. at 175 n.1. “It is ‘impossible to assert with any
degree of assurance that congressional failure to act represents’
affirmative congressional approval of the [courts’] statutory
interpretation.” Id. (internal citation and quotation marks omitted).
¶168 The legislative history cited by the majority, see supra ¶65,
is no answer to these concerns. At most, the majority has identified
a statement by a single member of the 2006 legislature indicating
his view that the 2006 amendment to the Inherent Risks of Skiing
Act would not “exempt the negligence of the ski resort” from
liability in certain circumstances. Supra ¶ 65. But that is insufficient
for numerous reasons. For one thing, the views of a single member
of the legislature have no power to bind the whole body. For
another, the 2006 legislature cannot override the views of the 1979
legislature (which enacted the Inherent Risks of Skiing Act) without
repealing the statute. The legislature as a body expresses its views
only by voting a bill into law. See Graves v. N. E. Servs., Inc., 2015 UT
28, ¶¶ 64, 67, 345 P.3d 619 (“Legislative history is not law. . . . [T]he
governing law is defined not by our abstract sense of legislative
purpose, but by the statutory text that survived the constitutional
process of bicameralism and presentment.”); Hooban v. Unicity Int’l,
Inc., 2012 UT 40, ¶ 17, 285 P.3d 766 (“Our evaluation of the statute’s
purpose must start with its text, not the legislative history.”). And
the statement made by Senator Hillyard on the Senate floor was
never voted into law. It accordingly tells us nothing of relevance to
the question presented.
¶169 Even if this kind of statement could tell us something of
relevance about this question, this statement actually cuts the other
way when Senator Hillyard’s comments are considered in context.
The statement reads in part:
Now, I should indicate that there’s no intention in this
to exempt the negligence of the ski resort. In other
words, if they have an employee running a trail groomer
and they run somebody over, that’s ordinary negligence.
We’re just talking about the inherent risk when
people go skiing. . . .
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Lee, A.C.J., dissenting in part
People say, you know, I’m a trial lawyer, why am I
carrying a bill like this? And the reason I am is
because I think the state made the policy in the 1980s that
this is a policy of the state of Utah. And I think for
everyone involved we should just [ ] keep up to date
and clarify that policy. And so that’s what we’ve done
is [ ] taken those words and [ ] give them better definitions
and more specificity.”
Recording of Utah Senate Floor Debates, 56th Leg., Gen. Sess. (Feb
13, 2006) (statement of Sen. Lyle Hillyard) (emphasis added).
¶170 There are two important points to highlight. First,
Senator Hillyard’s example of ski resort negligence is beyond the
bounds of the enumerated inherent risks. Senator Hillyard could
have used an example that supports the majority’s interpretation.
He could have said that even though impact with signs or fences is
listed as an inherent risk of skiing, a skier could still recover where
the ski resort had been negligent in placing that sign or fence. But
instead he used an example of negligence of an employee “running
a trail groomer.” That is not an inherent risk of skiing enumerated
in section 78B-4-402. 17
¶171 Second, not only does Senator Hillyard fail to mention
Clover; he also endorses the “policy” that the “state made . . . in the
1980s,” which he characterizes as the “policy of the state of Utah.”
Perhaps Senator Hillyard is thinking about this policy with the
Clover overhaul in mind. But there’s nothing in his statement to
suggest that. And the context of the statement cuts the other way.
Hillyard harkens back to the “policy” that the “state made in the
1980s,” not the common law developments since that time. And he
states the purpose of proposing an amendment to “take [the
statute’s] words and [ ] give them better definitions and more
specificity.” There is no real point to clarifying the definitions of the
17 Utah Code section 78B-4-402 lists as one of the inherent risks
of skiing “variations or steepness in terrain, whether natural or as a
result of slope design, snowmaking or grooming operations.” But
this does not say that grooming operations are an inherent risk;
only that variations in terrain resulting from such operations are.
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items on the statutory list under Clover; that decision renders the
statutory list irrelevant. So if anything Hillyard’s comments seem to
reinforce the statutory standard—not the Clover rewrite.
2. Reliance
¶172 The majority’s final point is the assertion that a decision
to overturn Clover might upset significant reliance interests. Here
the majority suggests that ski resorts may have “invested in
infrastructure and personnel to abate potential negligence actions
under Clover,” that “insurers and resort owners” may have
“negotiated policies and premiums against the backdrop of Clover,”
and that Utah ski resorts “may have obtained” a commercial
advantage by attracting skiers with the allure of a more friendly
tort system. Supra ¶ 68.
¶173 I cannot dispute that there may be some degree of
disruption in a decision to overturn Clover. But a decision to
overrule precedent will always have some effect. That alone cannot
be enough to sustain a precedent that is both clearly incompatible
with the controlling statute and unworkable in its application. See
State v. Robertson, 2017 UT 27, ¶¶ 31–34, 438 P.3d 491 (overturning
precedent after considering “the plausibility of the existing
interpretation” and whether the interpretation “has worked in
practice”).
¶174 This holds even when we can identify some reliance
interests built up around our precedent. A decision like this one is
always a balancing act. I acknowledge that there are some
downsides to setting aside Clover. But I would nonetheless overrule
it because the significant upsides substantially outweigh the
downsides.
¶175 Perhaps it’s true that ski resorts, insurers, and even skiers
rely to some degree on the Clover framework. But these reliance
interests are minimal. Ski resorts likely have negotiated insurance
premiums with Clover in mind, but their reliance interests cannot
be harmed by following the language of the statute, which severely
limits liability. And nothing in our opinion would inhibit a resort
from independently compensating injured skiers if in fact they
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receive more business on account of Utah’s increased “incentive[s]
to ski in the state.” See supra ¶ 68.
¶176 Rutherford’s reliance interests—as well as those of
similarly situated skiers—are minimal. This is so because an
unworkable precedent is unlikely to sustain the same kind of
reliance interests as a decision establishing a clear, bright-line rule.
When a decision is unworkable, litigants will struggle to predict its
application, and thus to rely on its operation. No one can anticipate
the effects of Clover in difficult cases because the standard is stated
in such ambiguous terms.
¶177 And overturning Clover has significant upsides. We can
be faithful to the governing statute while reducing confusion by
implementing a framework that is predictable in its application. 18
C. Remand
¶178 For all of the above reasons I would conclude that Clover
is ripe for reconsideration. And I would repudiate it on the ground
that it is clearly incompatible with the statutory scheme enacted by
the legislature.
¶179 That takes us back to square one. And square one in a
statutory case is always the statutory text. The text of the statute is
the law. See Graves v. N.E. Servs., Inc., 2015 UT 28, ¶ 67, 345 P.3d 619
(“The governing law is defined . . . by the statutory text that
survived the constitutional process of bicameralism and
18 The majority says that even if it were true that Clover had
generated minimal reliance interests, it wouldn’t matter because
“Talisker has not made this argument” and the “burden of
persuasion is Talisker’s to bear.” Supra ¶ 68 n.25. I see no relevance
to the lack of briefing on this specific argument. “It is no affront to
the adversary system for us” to engage in independent analysis on
issues preserved and presented by the parties for our decision.
State v. Rasabout, 2015 UT 72, ¶ 98, 356 P.3d 1258 (Lee, A.C.J.,
concurring in part and concurring the judgment). The judicial
enterprise would be impoverished if we were to mindlessly limit
ourselves only to the specific arguments of the parties. In this
instance I see no reason to refrain from engaging in my own
independent thinking on the reliance issue.
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presentment.”). That text governs—without any need for
elaboration or consideration of other sources—so long as it is plain.
Id. ¶ 64 (explaining that we look beyond the text to “inform[] our
construction of ambiguities in the law,” “[b]ut its utility ends
there”).
¶180 Here the statute is plain. It speaks in broad, categorical
terms. It says that “no skier may make any claim against, or recover
from, any ski area operator for injury resulting from any of the
inherent risks of skiing.” UTAH CODE § 78B-4-403.
¶181 This is the operative legal standard. Under the Inherent
Risks of Skiing Act, a skier’s tort claim is statutorily barred if it is
(a) for an “injury resulting from” (b) “any of the inherent risks of
skiing.” These are questions of causation. See Barneck v. Utah Dep’t
of Transp., 2015 UT 50, ¶¶ 36–37, 353 P.3d 140 (describing “result
from” language in a statute as a “causation standard”). The first
inquiry concerns the causal connection between the skier’s injury
and an alleged risk of skiing. The next question is whether the risk
of skiing qualifies as an “inherent risk of skiing” under the statute.
¶182 That is purely a question of statutory interpretation. The
statute defines inherent risks of skiing and includes a list of such
risks. UTAH CODE § 78B-4-402(1). If a skier’s injury is causally
connected to that risk and the risk qualifies as an “inherent risk of
skiing” under the statute then the plaintiff’s claim is statutorily
barred. The statute leaves no room for any inquiry into whether the
risk in question is one that skiers might wish to confront, or any of
the related elements of the Clover analysis. It does, however, leave
open the question whether the injuries at issue here resulted from a
risk encompassed within the ordinary meaning of the terms of the
statute.
¶183 I would remand for further proceedings under that
standard. Talisker asserts that the snow that caused Levi
Rutherford’s injury was an “inherent risk of skiing” under the
terms of the statute. It notes that the statute lists “snow or ice
conditions” as an inherent risk of skiing, Id. § 78B-4-402(1)(b), and
that “machine-made snow” counts as a “snow or ice condition[]”
that is an inherent risk. Id. Talisker also emphasizes that inherent
risks also include “variations or steepness in terrain, whether
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natural or as a result of slope design, snowmaking or grooming
operations.” Id. § 78B-4-402(1)(d).
¶184 Talisker may well be entitled to summary judgment
under the ordinary meaning of these terms of the statute. But the
Rutherfords have not had an opportunity to present an argument
that the snow and ice conditions in question do not fall within the
statutory terms. And this question has never been decided by the
district court. We should remand to allow that court to resolve this
issue in the first instance.
D. The Majority’s Standard
¶185 The majority claims to “clarify” the holding in our Clover
opinion. Supra ¶ 12. But the majority’s standard is hardly clear.
Quite the contrary. The court seems to articulate two alternative
standards—without committing itself clearly to either, and without
explaining how either should play out in practice.
¶186 At times the court seems to be thinking of an “inherent
risks of skiing” inquiry that is framed as a question of law, turning
(at least in part) on the ordinary meaning of the text of the statute.
This is arguably implied by the court’s assertion that its test
“track[s] the commonplace descriptions of risks” set forth in the
statute, supra ¶ 82, and requires a consideration of the unadorned
terms of the listed risks in the manner that a “skier would
reasonably expect to encounter [them] while skiing,” supra ¶ 81.
This seemingly legal inquiry suggests that a ski resort would be
entitled to immunity under the statute if an injury results from a
listed risk “when” it is “encountered in the way that skiers would
reasonably expect to encounter” it. 19 Supra ¶ 79.
19 At various points the majority claims confusion over the
standard that I would apply. Let me allay any possible confusion
here. My approach turns on a simple, straightforward question of
law—of statutory interpretation (of risks listed in the statute).
Thus, I would ask whether any given injury resulted from a risk
that falls within the ordinary meaning of the terms of the statute. I
would ask, for example, whether an injury results from “snow or
ice conditions,” or “impact with lift towers.” UTAH CODE
§ 78B-4-402(1). I would accordingly use our standard tools of
(cont.)
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¶187 Elsewhere, however, the court seems to speak of the
Clover inquiry in terms that contemplate a fact-intensive mixed
question. Quoting Clover, the majority says that “‘[c]ourts cannot
determine that a risk is inherent in skiing simply by asking whether
it happens to be one of those listed in’” section 402 of the statute.
Supra ¶ 79 n.27. “Instead,” the court says that we must ask (even for
injuries arising from risks listed in the statute) whether the risk
“was an integral part or essential characteristic of the sport of
skiing”—an inquiry that seems to contemplate a fact-intensive
determination of whether the particular circumstance of the injury
is one that “a skier . . . reasonably expects to encounter.” Id. This
also seems reflected in the question that the majority frames for the
district court on remand: “whether a skier would reasonably expect
to encounter the wet, sticky snow that [Rutherford] encountered at
The Canyons.” Supra ¶ 83.
¶188 The majority’s discussion of the statute’s treatment of
“impact[s] with lift towers” (a risk identified by the legislature as
“inherent,” UTAH CODE § 78B-4-402(1)(e)) highlights the internal
tension in the majority’s approach. 20 The court first says that “[t]he
statutory interpretation to resolve the question presented in a case
like this one.
20 I have no quarrel with the majority’s general premise that a
factual inquiry may sometimes be a necessary predicate to a legal
determination made by a court as a matter of law. But this does not
rehabilitate the majority opinion. The problem is not that legal
questions can never call for antecedent factual inquiries. It is that
the legal determinations prescribed by the Inherent Risks of Skiing
Act—establishing that “certain risks are inherent” in skiing “as a
matter of law,” UTAH CODE § 78B-4-401—do not call for a predicate
factual inquiry.
The majority eventually gets around to addressing this point.
But its only response is the suggestion that the statute’s reference to
“certain risks” may not be a “reference to the enumerated risks” set
forth in the statute. Supra ¶ 79 n. 28. And I see no way to defend
that conclusion here. In context, it is quite clear that the whole
point of the statutory list is to identify those risks that are
“inherent” as a matter of law. See UTAH CODE § 78B-4-401
(cont.)
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relevant inquiry in a case involving an impact with a lift tower is
whether the legislature meant for the Act to cover the kind of impact
with a lift tower at issue in the case.” Supra ¶ 81 (emphasis added).
And it says that the statute “bars recovery” for claims by skiers
who “ski[] out of control and crash[] into an ordinary lift tower.”
Supra ¶ 81 (emphasis added). This sounds like the framing of a
legal question—as to the ordinary meaning of the language of the
statute. Yet the court never establishes this as the governing legal
standard. In fact it seems to take back the framing of a legal
question in the same paragraph of the opinion, where it asserts that
the statute should be understood to “bar[] recovery for impacts as
skiers would reasonably expect them to occur.” Supra ¶ 81. This, again,
seems more of a factual inquiry.
¶189 The fact-intensive nature of the court’s standard seems
reinforced elsewhere in the opinion where the majority analyzes
the “pile of rocks” hypothetical. Supra ¶ 43. There the court
concludes (wrongly in my view—see supra ¶¶ 131-32) that a “pile of
rocks intended for later landscaping placed in the middle of a
beginner run . . . is certainly a ‘surface . . . condition[] such as . . .
rocks” within the ordinary meaning of the” statutory text. Supra
¶ 43. Yet the majority suggests that this would fall outside the
“inherent risks” covered by the statute—presumably because (in
the court’s view) a reasonable skier would not “expect to confront”
these sorts of “rocks.” This is consistent with the majority’s
assessment of another hypothetical—the “twenty-yard bare spot
running through the middle of a groomed ski run.” Supra ¶ 43 n.15.
On this hypothetical the court accepts the notion that this “is a ‘bare
spot[]’ under ordinary meaning analysis.” Supra ¶ 43 n.16. But it
again suggests that its Clover reformulation would allow our courts
(emphasizing that the statute’s purpose is to “establish as a matter
of law that certain risks are inherent in th[e] sport”); id. § 78B-4-
402(1) (indicating that listed risks are “includ[ed]” in the “dangers
or conditions which are an integral part of the sport of . . . skiing”).
The legislature certainly could have indicated that inherency is a
legal determination to be made after predicate factual findings. But
it clearly did not do so. And we should honor the framework
established by the legislature instead of formulating a new one.
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to uphold a skier’s right to sue on an injury caused by such a bare
spot—again presumably because a purportedly reasonable skier
would not “expect to confront” it.
¶190 For these reasons I read the majority opinion to eschew a
legal construct of “inherent risks” rooted in a question of statutory
interpretation and to endorse a free-ranging, fact-intensive inquiry
into what a reasonable skier would “expect to confront.” Yet I also
have no idea what either test would entail in practice. And I grieve
for the trial judge or litigant who is left to decode the tea leaves we
leave on this question in our opinion.
¶191 The court’s framing of a quasi-legal inquiry leaves
several key questions unanswered. If the law requires us to ask
whether a given injury resulted from a risk that is “encountered in
the way that skiers would reasonably expect to encounter them,”
supra ¶ 79 (emphasis added), we must identify what counts as part
of the relevant “way.” Consider the court’s lift tower analysis. The
court says we should ask whether “the legislature meant for the Act
to cover the kind of impact with a lift tower at issue in the case.”
Supra ¶ 81. But to answer that question we would have to identify
which elements of the impact with the lift tower are of relevance to
the inquiry. And we would then have to guess whether the
legislature meant to cover that risk under the immunity provided
to ski resorts.
¶192 Imagine an accident involving a collision with a lift tower
that is alleged to have been negligently designed or placed by the
ski resort (a scenario much more likely to come to pass than the
“invisible” lift tower). How is a court to decide whether this lift
tower is “encountered in the way that skiers would reasonably
expect to encounter” it? The plaintiff will inevitably say that a
reasonable skier would not expect to encounter it in this “way”
because this is a negligently designed or placed lift tower. And that
will open the door to expert testimony about lift tower design and
placement, rendering the statutory list inoperative and effectively
reinstating a negligence regime.
¶193 The court’s factual framing of the inquiry is equally
opaque. Nowhere does the majority tell us what it means for a
reasonable skier to “expect” a certain risk. In some sense no one
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“expects” to encounter any sort of mishap that occurs on the ski
hill. Any ski injury is in a very practical sense an “accident”—
something unexpected. Accident, BLACK’S LAW DICTIONARY (11th ed.
2011) (defining an accident as something “unintended and
unforeseen”). For this new test to do any work, then, we have to
identify the quantum of expectation that we have in mind—how
likely the expectation must be. The court nowhere does that.
¶194 And that is just the beginning of the problem. We also
have to identify which aspects of the risk or resulting injury must
be “expected.” And finally, and quite importantly, we must
determine whether and to what extent expert testimony is required
to satisfy our new standard of expectation.
¶195 The majority specifies none of this. It fails to identify a
clear standard. And it leaves unanswered the key questions
required to make sense of the two competing tests it has alluded to.
Instead it just frames a muddled question for remand, hoping the
district court and the parties will figure it all out later.
¶196 We can do better. The path to doing so is to return to the
plain text of the governing statute. I would take that route. I would
ask the court on remand to decide whether Levi Rutherford was
injured by an inherent risk that falls within the ordinary meaning
of the statutory text. That inquiry resolves all of the many practical
problems with the majority’s standard. And it also paves a path to
deal with the various absurd hypotheticals imagined by the
majority.
III. CONCLUSION
¶197 This case has occupied the attention of the Utah appellate
courts for the past four years. We granted certiorari because we
perceived a need to bring clarity to a legal regime that has drawn
skepticism and concern since its inception, and that has long stood
in need of clarification. And we ordered supplemental briefing and
heard oral argument on the case three times, again because we saw
a pressing need for a substantial overhaul of the law in this area.
¶198 In light of this extensive history, the bench and bar will
be justifiably disappointed in our disposition of this case. Instead of
clarification or reformulation, the majority mostly just kicks the can
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down the road. It replaces one indecipherable test with another,
and leaves our law in a state of disarray. This is what happens
when we ignore the plain language of the law and venture into the
territory of judicial rewriting of legislation. I see no reason to
condone our past endeavors of this sort. And I certainly don’t think
it’s a good idea for us to double-down on our past missteps with a
new test that is equally problematic.
¶199 I dissent. I would credit the text of the Inherent Risks of
Skiing Act. I would overrule Clover, and in so doing affirm that our
job is to interpret statutes, not rewrite them.
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