Roberts v. Jackson Hole Mountain Resort , 884 F.3d 967 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 5, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
MICHAEL L. ROBERTS; JESSICA E.
WAYBRIGHT, Husband & Wife,
Plaintiffs - Appellants,
v.
No. 17-8018
JACKSON HOLE MOUNTAIN RESORT
CORPORATION, a Wyoming corporation,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:16-CV-00024-KHR)
_________________________________
Robert E. Schroth, Sr. (Robert E. Schroth, Jr. with him on the briefs), Jackson, Wyoming,
appearing for the appellants.
James K. Lubing, Lubing Law Group, LLC (Nathan D. Rectanus with him on the brief),
Jackson, Wyoming, appearing for the appellee.
_________________________________
Before BRISCOE, EBEL, and MATHESON, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
In 2014, while skiing an untamed and ungroomed run inside the boundaries of
Jackson Hole Ski Resort, Plaintiff Michael Roberts skied into a lightly covered pile
of boulders, falling between two of them, and severely injuring himself. He sued
Jackson Hole Mountain Resort (“JHMR”) to recover for his injuries, and his wife
joined his lawsuit alleging loss of consortium.
JHMR moved for summary judgment on the basis of the Wyoming Recreation
Safety Act (“WRSA”) which limits a recreational activity provider’s liability for so-
called “inherent risks” of the activity. The district court granted summary judgment,
holding that Roberts’s injuries were the result of an “inherent risk” of alpine skiing.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we now AFFIRM the district
court in full.
I. BACKGROUND
Located within the boundaries of the world-famous Jackson Hole Ski Resort,
Saratoga Bowl is an adventurous skier’s dream hill. The off-piste1 bowl is dotted
with trees, rocks, and vast swaths of open, often-untouched snow that weave
throughout these natural obstacles unguided by the ministrations of JHMR’s tree-
cutters.
On February 14, 2014, with this winter paradise rendered even more inviting
by roughly a foot of fresh, fluffy, Wyoming powder, Michael Roberts—an
experienced skier and ski instructor at his local mountain in California—and four
friends headed for the Bowl. Once there, they began to pick their way down the hill,
stopping frequently due to the many obstacles and heavy snow. One member of
Roberts’s group, Nick Parsell, was wearing a GoPro video camera on which he
1
The two parties use the term “off-piste” to mean terrain that is not only
“ungroomed,” but also is left in its natural state.
2
captured the group’s descent into the bowl and the many trees and visible rocks and
rock formations throughout the hill.2
After skiing through the trees at the top of the run, Nick Parsell skied down
below the rest of the group so that he could film them skiing toward him. As Parsell
stops to look up at his companions, an exposed rock formation is clearly visible off to
his left. GoPro video 3:05. The skiers head toward Parsell one-by-one, and Roberts
is the second to angle down the mountain. As he passes Parsell, the video shows
Roberts taking a sweeping left turn perpendicular to the Bowl’s fall line. Id. at 3:33.
As the camera turns back uphill, a vague commotion can be heard from below.
According to Roberts, “as [he] was initiating [his] right hand turn into the fall
line, [he] clipped a rock and started to tumble[,] [ultimately] end[ing] up in a hole, up
to [his] neck in snow.” Aplt. App. at 193. Another member of the group testified
that Roberts “smashed” into a hole between several rocks. Aplt. App. at 315. This
same member later clarified that where Roberts fell
there were two very large boulders side by side that there was a – like a
crevice in–between them so they were separated. So when he skied – he
skied over the – over the top of one of the rocks and then he hit the wall
of the second rock and then disappeared down into that crevice. So that
was one of the structures. And so see that was where he fell in, but
there were a number of other very hazardous deep holes including the
one that the ski instructor [who stopped to help] fell down into and we
had to pull out, and including the one that I fell [into] when I tried to get
within 15 meters of Mr. Roberts at the accident.
Aplt. App. at 312.3
2
The video, on which this description is based, was included in the appellate record.
Aplt. App. at 507 (“GoPro Video”). Citations to the video will be to the time stamp.
3
After the fall, one of Roberts’s companions called ski patrol, whose members
soon arrived and were able to evacuate Roberts from the mountain. He was taken
first to an emergency room in Jackson before later being flown to Salt Lake City for
emergency surgery. As a result of his fall, Roberts “fractured his pelvis, broke seven
(7) ribs, lacerated his liver, punctured a lung, and incurred various less serious
injuries.” Aplt. Br. at 10.
In 2016 Roberts and his wife Jessica Waybright brought this diversity suit,
governed by Wyoming law, against JHMR in the District of Wyoming alleging
premises liability, personal injury, negligence, negligent training and supervision,
and loss of consortium. Following discovery, JHMR moved for summary judgment
on the grounds that the Roberts’ claims were barred by the WRSA. The district court
granted JHMR’s motion and the plaintiffs timely appealed.
II. DISCUSSION
We review de novo a district court’s grant of summary judgment, “ordinarily
limiting our review to the materials adequately brought to the attention of the district
court by the parties.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir.
2015). Summary judgment is appropriate if the movant “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
3
“On an appeal from a ruling granting summary judgment, ‘we examine the record
and all reasonable inferences that might be drawn from it in the light most favorable
to the non-moving party, without making credibility determinations or weighing the
evidence.’” Lounds v. Lincare, Inc., 812 F.3d 1208, 1213 (10th Cir. 2015) (quoting
Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 953 n.2 (10th Cir. 2012)).
Accordingly, where deposition testimony differs as to the hazard Roberts
encountered, we defer to his and his witnesses’ characterization of the hazard.
4
matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is inappropriate where
there is a genuine dispute over a material fact, “that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if its determination “might
affect the outcome of the suit under the governing law.” Id.In this diversity suit we apply the substantive law of Wyoming, endeavoring to
“ascertain and apply state law to reach the result the Wyoming Supreme Court would
reach if faced with the same question.” Cooperman v. David, 214 F.3d 1162, 1164
(10th Cir. 2000). To do so we rely foremost on decisions of the Wyoming Supreme
Court, and then on “other state court decisions, federal decisions, and the general
weight and trend of authority.” Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100
(10th Cir. 2002).
A. The Wyoming Recreation Safety Act
This is not the first time we have been asked to evaluate a Wyoming
recreational provider’s liability for injuries arising from participation in a
recreational activity. See, e.g., Kovnat v. Xanterra Parks & Resorts, 770 F.3d 949,
955 (10th Cir. 2014); Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145,
1148 (10th Cir. 2004); Cooperman, 214 F.3d at 1162. Liability for personal injuries
is ordinarily evaluated through common-law tort doctrine, but in these cases the
Wyoming legislature has limited the duty of care owed by recreational providers,
including ski resorts, by enacting the WRSA. Dunbar, 392 F.3d at 1148.
5
Specifically, the WRSA codifies the common-law concept of primary
assumption of the risk. See Cooperman, 214 F.3d at 1165, 1165 n.1. Under the
WRSA,
[a]ny person who takes part in any sport or recreational opportunity
assumes the inherent risks in that sport or recreational opportunity,
whether those risks are known or unknown, and is legally responsible
for any and all damage, injury or death . . . that results from the inherent
risks in that sport or recreational opportunity.
Wyo. Stat. Ann. § 1-1-123(a). The Act further provides that “[a] provider of any
sport or recreational opportunity is not required to eliminate, alter or control the
inherent risks within the particular sport or recreational opportunity.” Id. § 1-1-
123(b). The WRSA does not, however, preclude a plaintiff from prevailing on a
negligence claim against a ski resort when he or she suffers “damage, injury or death
[that] is not the result of an inherent risk” of alpine skiing. Id. at § 1-1-123(c).
Alpine skiing is a “sport or recreational opportunity” governed by the WRSA, id. § 1-
1-122(a)(iii), and JHMR is a “provider,” id. § 1-1-122(a)(ii).
To understand exactly how the WRSA adjusts common-law tort doctrine, it is
useful to return to foundational tort principles. The basic elements of a negligence
claim are: duty, breach, causation, and damages. See, e.g., Greenwalt v. Ram
Restaurant Corp. of Wyo., 71 P.3d 717, 737 (Wyo. 2003) (“It is elementary that the
traditional elements of a negligence tort claim are duty, breach of duty, proximate
cause, and damages.”). By codifying the doctrine of primary assumption of the risk,
the WRSA targets the first of these elements: duty. See Halpern v. Wheeldon, 890
P.2d 562, 565 (Wyo. 1995) (“Under the clear and unambiguous language of the
6
[WRSA], the assumption-of-risk terminology is intended to limit the duty which a
provider owes to a participant. This type of assumption of risk is known as primary
assumption of risk.”). Primary assumption of risk is distinguishable from secondary
assumption of the risk. While the latter is an affirmative defense to be raised “after
the plaintiff has met his burden of proving that the defendant breached a legal duty
which he owed to the plaintiff,” id., the former implicates the very question of
whether a duty was “owed” altogether, id. When primary assumption of the risk
applies, as it does under the WRSA, “the legal result is that the defendant is simply
relieved of the duty which would otherwise exist.” W. Page Keeton et al., Prosser
and Keeton on the Law of Torts § 68, at 481 & n.10 (5th ed. 1984).
The question under the WRSA, then, is whether the “damage, injury or death”
suffered by the plaintiff was the result of “an inherent risk” of alpine skiing. Wyo.
Stat. Ann. § 1-1-123(a)–(c). If so, then the provider, JHMR in this instance, owes no
duty to the plaintiff, and we have no occasion to consider whether the steps taken by
the Resort were negligent in nature,4 and summary judgment is appropriate.
a. Inherent Risk
The WRSA defines an inherent risk as “those dangers or conditions which are
characteristic of, intrinsic to, or an integral part of any sport or recreational activity.”
Wyo. Stat. Ann. § 1-1-122(a)(i); see also Cooperman, 214 F.3d at 1166–67
(analyzing dictionary definitions of “characteristic,” “intrinsic,” and “integral”).
While normally the issue of duty is settled by the court as a matter of law, see
4
Subject to the affirmative creation of the risk doctrine, discussed later.
7
Halpern, 890 P.2d at 565 (Wyo.), whether something qualifies as an “inherent risk”
for the purposes of the WRSA is a question generally submitted to the jury, Beckwith
v. Weber, 277 P.3d 713, 722 (Wyo. 2012). This is because “the level of factual
specificity required to establish an inherent risk will often but not always preclude
summary judgment on the duty question.” Creel v. L & L, Inc., 287 P.3d 729, 737
(Wyo. 2012). “When, as is typically the case, ‘genuine issues of material fact exist,
it is proper to present the issue to the jury of whether a risk is inherent to a particular
activity.’” Kovnat, 770 F.3d at 955 (quoting Halpern, 890 P.2d at 566 (Wyo.)).
However, “where no genuine issues of material fact exist, the district court may
decide as a matter of law that the provider does not owe a duty to the participant.”
Halpern, 890 P.2d at 566 (Wyo.).
When presented with a motion for summary judgment on the question of
whether something qualifies as an “inherent risk,” then,
[t]he trial court must scrutinize the facts brought forward by the parties
with great care. If the court can say that, given that evidence, this is an
‘inherent risk’ and reasonable minds cannot differ about that, then
summary judgment is appropriate. If the risk is an inherent one, then
the provider has no duty to eliminate, alter, or control it. On the other
hand, if reasonable minds could differ as to whether or not the risk was
one inherent to the recreational activity, then summary judgment is not
appropriate and the answer to the question must be assigned to the jury
(or other fact finder).
Jackson Hole Mountain Resort Corp. v. Rohrman, 150 P.3d 167, 168 (Wyo. 2006).
1) Defining the Risk
Our first task is to define the risk to which Mr. Roberts was exposed. When
defining the risk, “we are taken to the level of specificity that the facts support.”
8
Cooperman, 214 F.3d at 1167.5 For example, in Cooperman we considered the case
of a plaintiff who had fallen off her horse and was alleging that the provider had not
sufficiently tightened the cinch on her saddle. Id. at 1163–64. Rather than asking
“whether being thrown from a horse is an inherent risk” of horseback riding, id. at
1167, we defined the question as “whether a slipping saddle that is loosely cinched is
an inherent risk of horseback riding,” id. at 1168.
Understandably, the parties in this case offer dramatically different
interpretations of the “risk” to which Roberts was exposed. Appellants would have
us decide whether “skiing into a hidden 6-to-8-foot chasm on a marked trail within
the ski area boundary is an inherent risk of the sport.” Aplt.’s Br. at 17. JHMR, on
the other hand, would prefer we expand our inquiry to whether “skiing into an
unmarked, snow-covered rock formation, on a black diamond, off-piste ski run, [is]
an inherent risk of alpine skiing.” Aple.’s Br. at 29.
On de novo review we supplement these suggestions with our own review of
the facts in the record. The only eyewitness to the incident, Craig Parsell, testified
that the scene of Roberts’s injury involved “two very large boulders side by side that
5
The Cooperman court explained the required level of specificity thusly:
For example, if the only fact presented to the court is that the horse
bucked while the rider was properly sitting on the horse, we would
frame the duty question as whether a bucking horse is an inherent risk
of horseback riding. However, if the facts established that the owner of
the horse lit firecrackers next to the horse and the horse bucked, we
would ask whether a horse bucking when firecrackers are lit next to the
horse is an inherent risk of horseback riding.
214 F.3d at 1167.
9
there was a – like a crevice in-between them so they were separated.” Aplt. App.
312. He continued: “So when [Roberts] skied – he skied over the – over the top of
one of the rocks and then he hit the wall of the second rock and then disappeared
down into that crevice.” Id. The first ski patrol member to arrive on the scene
described the hazard thusly:
A: It was, you know a – a large rock pile, very obviously a rock pile . . .
what I remember about it is – I mean, it was very, very difficult for me
to even get to him . . . [t]here was a lot of new snow, and it was kind of
unconsolidated over the rocks in that area and so it was – you know, the
situation where there was a lot of snow but not enough to be supportable
so [that] you would just punch through into the void that these – that the
large talus field creates with the snow on top of it.
Q: I – describe it as, maybe, 6 to 12 feet, some of the holes?
A: Yes, I would say. . . . I don’t know how else to describe it other than
just a – a – a large pile of large rocks covered with fresh snow that was,
you know, a difficult spot. . . . I don’t really recall a depth right there. I
mean, it was – if you can imagine, you know, the boulders the size of –
they’re large, they’re – varying in size but up to very large and kind of
all just stacked and so there would be areas where you could step and it
was fine and then right next to it, you’d put your foot through and there
would be, you know, a hole six or eight feet kind of down, wedging into
the rocks.
Aplt. App. at 373–74.
While Roberts would prefer we focus solely on the hazard he
encountered, the context in which he encountered that obstacle is equally
relevant. From our review of the GoPro video it is clear Saratoga Bowl is an
untamed area attractive to skiers precisely because it contains natural obstacles
and ungroomed terrain. The video depicts a run awash with trees and the
occasional visible boulder. In fact, when Nick Parsell stops to look back up at
10
the skiers above him just prior to Roberts’s accident, a large well created by a
boulder is clearly visible off to his left. GoPro video at 3:05.
Accordingly, we define the risk at the level of specificity supported by
this record, and ask: Whether encountering boulders, and gaps between them,
in changing snow conditions in an off-piste area of a ski resort is an “inherent
risk” of alpine skiing.
2) Evaluating the Risk
The answer to this question may only be decided on summary judgment
if no reasonable juror could disagree as to its answer. Rohrman, 150 P.3d at
168 (Wyo.). The relevant case law, however, provides useful guidance for
when the inherency of a risk can be decided on summary judgment and when it
cannot.
In 1995 the Wyoming Supreme Court considered a case under the predecessor
statute to section 1-1-123(a). There, a recreational provider was sued for not
providing more supervision for a patron who was mounting a horse. Halpern, 890
P.2d at 566 (Wyo.). At this time, the Wyoming Code defined an “inherent risk” as
“any risk that is characteristic of or intrinsic to any sport or recreational opportunity
and which cannot be reasonably eliminated, altered, or controlled.” Wyo. Stat. Ann.
1-1-122(a)(i) (1989) (emphasis added). The Halpern court held that the provider
could have reasonably eliminated the inherent risk of mounting a horse by providing
more adequate assistance, and so denied summary judgment for the provider. 890
P.2d at 566 (Wyo.).
11
In response, the legislature moved quickly to amend the statute. During
the next session the legislature passed what is now section 1-1-123(b), which
says that “[a] provider of any sport or recreational opportunity is not required
to eliminate, alter or control the inherent risks within the particular sport or
recreational opportunity.” Wyo. Stat. Ann. § 1-1-123(b) (emphasis added).
Following this amendment, a critical distinction has emerged in the case law
between a provider’s failure to control inherent risks (which is no longer actionable),
and actions that affirmatively enhance existing risks (which remain actionable). For
example, in Creel, a spectator standing near the green at a golf tournament was struck
by a ball hit by a player on the preceding tee box. 287 P.3d at 731 (Wyo.). The
Wyoming Supreme Court agreed with the operator of the golf course that getting
struck with a ball was an inherent risk of attending a golf tournament, but still found
summary judgment inappropriate. Id. at 738. It reasoned that “the question we must
answer is whether [the defendant] did anything to increase the risk that Mr. Creel
would be hit by a golf ball.” Id. The court found that the defendant had increased
the risk because an agent of the defendant had encouraged the golfer to hit even
though the golfer was worried about hitting into the players and spectators in front of
him. Id. at 743.
The court in Creel relied heavily on this Court’s analysis in Dunbar. In that
case, also at Jackson Hole Resort, the plaintiff skied into a “terrain park” on the
mountain intending to “investigate” the area. 392 F.3d at 1146. The plaintiff
ultimately decided she did not want to ski any of the terrain park’s features, and so
12
she asked an employee how to exit the area without having to encounter the
obstacles. Id. at 1147. One of the options she was given was to ski down the hill in
the direction of a “catwalk.” Id. The plaintiff followed those instructions, but they
actually led her to the entrance to a snowboard “half-pipe,” into which the plaintiff
fell, suffering severe injuries. Id.This Court reversed the district court’s grant of summary judgment for the
Resort. Id. at 1153. The Court concluded that “whatever risks [the plaintiff]
assumed herself, it seems clear that she did not also assume the risk of needing to
interpret the delphic statements of Jackson Hole’s employees.” Id. The Court
continued: “Both Jackson Hole and the district court focus on the issue of choices
that Dunbar made, ignoring the choice that Jackson Hole made for her in directing
her to exit the terrain park area by either hiking out the main entrance or skiing along
the catwalk.” Id.Unlike Dunbar, this case does not involve JHMR affirmatively exacerbating
the inherent risks of alpine skiing. Mr. Roberts was not directed to Saratoga Bowl by
an employee offering “delphic statements” about its safety; in fact advanced skiers
“in search of fresh untracked and unconsolidated powder” are attracted to off-piste
terrain such as Saratoga Bowl because it is ungroomed, untamed, and provided the
types of natural obstacles that distinguish such runs from those frequented by less
talented skiers. Aplt. App. at 205. Perhaps Roberts may not have expected to
encounter the type of gap into which he fell, but we cannot ignore the nature of the
run on which he encountered it and the inherent risks that run presents. See Wyo.
13
Stat. Ann. § 1-1-123(a) (“Any person who takes part in any sport or recreational
opportunity assumes the inherent risks in that sport or recreational opportunity,
whether those risks are known or unknown . . . .”) (emphasis added). Boulders and
the gaps of widely varying dimensions between them—at times exposed to the
elements and at others lightly covered by fresh snow—are an inherent risk of skiing
an off-piste run such as Saratoga Bowl.
3) Expert Testimony
We recognize, however, that whether something qualifies as an “inherent risk”
under the WRSA is generally a question for the jury. Beckwith, 277 P.3d at 722
(Wyo.). We have, in the past, affirmed summary judgment for recreational providers,
see, e.g., Kovnat, 770 F.3d at 958–59, but doing so is only appropriate “when
reasonable persons could only conclude that an injury or death was caused by an
inherent risk.” Beckwith, 277 P.3d at 722 (Wyo.).
The district court held that while “it may be unusual and extremely dangerous,
. . . it is clear the possibility of being injured or encountering natural occurring
hazards associated with rocks and rock formations are inseparably intertwined with
and intrinsic to alpine skiing.” Dist. Ct. Order at 11–12. While we generally agree
with this statement, we need to address the fact that plaintiff offers expert testimony
that reaches the opposite conclusion. Aplt. App. at 269–74 (Expert Report of Larry
Heywood).
In reviewing Mr. Heywood’s report, however, we believe his conclusions put
the cart before the horse. He extensively addresses the historical practice of the
14
Jackson Ski Patrol in marking “dangerous obstacles that are not obvious to skier
traffic,” Aplt. App. at 274, and the fact that “[t]here were no warning signs at the
lower entrance to Saratoga Bowl informing skiers of the limited snow cover and
unmarked hazards in Saratoga Bowl,” id. He then concludes that had “a warning sign
been at the entrance Micahel [sic] Roberts would not have entered Saratoga Bowl and
been injured.” Id.6
These observations are inapposite. As detailed above, the WRSA is crystal
clear that if a hazard is an “inherent risk” of alpine skiing, JHMR is under no
obligation to warn Mr. Roberts of its existence. Wyo. Stat. Ann. § 1-1-123(a)–(b).
To return to our foundational tort principles, Mr. Heywood’s report targets JHMR’s
alleged breach, the second element of Torts 101, without establishing the first
element, which is the existence of JHMR’s duty. To be sure, the “Opinions” section
of Mr. Heywood’s report does end with the phrase: “This hazard was not integral to
skiing in Saratoga Bowl and was not an inherent risk to skiing in Saratoga Bowl.”
Aplt. App. at 274. However this is nothing more than an unsupported and conclusory
statement and courts in the Tenth Circuit have held that such statements, even from
experts, are insufficient to defeat summary judgment, see, e.g., Matthiesen v. Banc
One Mortg. Corp., 173 F.3d 1242, 1247 (10th Cir. 1999), including in the context of
6
On summary judgment the Court accepts this assertion as fact because it is drawn
directly from Mr. Roberts’s deposition testimony. Aplt. App. at 295.
15
the WRSA, Cooperman v. David, 23 F. Supp. 2d 1315, 1318 (D. Wyo. 1998), aff’d,
214 F.3d 1162 (10th Cir. 2000).7
Expert testimony may, in some instances, be particularly persuasive on the
issue of inherent risk in the WRSA context. For example, in Sapone v. Grand
Targhee, a six-year-old rider had fallen from a horse when the horse suddenly
“bolted” down the trail. 308 F.3d 1096, 1098 (10th Cir. 2002). The Court
acknowledged that “it is an inherent risk that a horse might bolt,” but also that
Cooperman required it to address the question in greater specificity. Id. at 1104.
There, expert testimony that the provider had offered inadequate instructions, too
large of a horse, and poor headgear was relevant in assessing whether the particular
risk to which this plaintiff was exposed as a result of the provider’s activity was
inherent in the activity of horseback riding. Id.; see also Dunbar, 392 F.3d at 1153(“We have made clear that a duty of care may arise from choices made for the
participant by the recreation provider.”).
But where, as here, the provider did nothing to exacerbate the inherent risk
posed by the hazard, conclusory expert testimony is not itself enough to preclude
summary judgment. Mr. Heywood’s testimony contains no analysis about the
inherent risk of encountering covered boulders on off-piste trails, or whether this
7
In Cooperman, the district court rejected the conclusion of plaintiff’s expert that
“equipment failure is an ‘inherent risk’ of horseback riding” because that opinion
“reache[d] the ultimate legal conclusion without expressing how the risk is not
characteristic of, intrinsic to or an integral part of horseback riding.” Cooperman, 23
F. Supp. 2d at 1318.
16
hazard was an inherent risk of a trail littered with trees and other natural obstacles.
See Aplt. App. at 269–74.
Accordingly, we AFFIRM the district court’s grant of summary judgment in
favor of JHMR on the basis of the WRSA.
B. The Forest Service Contract
Appellants argue in the alternative that even if JHMR did not owe Roberts a
duty pursuant to the WRSA, the Resort’s contract with the United States Forest
Service (“USFS”) obligated it to assume a higher duty of care than the statutory
requirement. Aplt.’s Br. at 30.
JHMR, like many ski resorts, has a permit from the USFS to operate a ski
resort on National Forest Land. As a condition of this permit, JHMR is required to
submit a “Winter Operating Plan” (“WOP”) to the USFS for approval, and that WOP
incorporates by reference the JHMR ski patrol manual. Appellants note that the
manual contains an express requirement that “[u]nusual hazards on ski trails will be
marked by members of the Ski Patrol.” Aplt. App. at 491. Their argument, then,
while far from clear, seems to be that this manual, as incorporated into JHMR’s
contract with the USFS, establishes JHMR’s liability with regard to Roberts’s
injuries.8
8
Appellee urges us to dismiss this argument as improperly raised because of its lack
of clarity. We disagree. “Vague, arguable references” in district court proceedings
will not preserve an issue for appeal, Bancamerica Comm. Corp. v. Mosher Steel of
Kan., Inc., 100 F.3d 792, 798 (10th Cir. 1996), but here appellants arguably raised
this issue in even more detail at the district court than they do here, and certainly in
sufficient detail to preserve appellate review, see, e.g., Aplt. App. at 236–37 (“Pl.’s
17
On one hand, it almost sounds as if Appellants are now trying to advance a
contract claim under the theory that they are a third-party beneficiary of JHMR’s
contract with the USFS, and that JHMR breached that contract by failing to adhere to
the letter of their ski patrol manual. It would be improper for us to consider such a
claim, however, because the Complaint sounded in tort, rather than contract, law.
See Aplt. App. at 1-9. Furthermore, if we were to consider a contract claim arising
from JHMR’s contract with the USFS, nothing in that agreement establishes a private
right of action. Perhaps, if JHMR violated the terms of its agreement with the USFS
by not marking this hazard then the USFS could revoke JHMR’s permit or seek other
remedies under the contract, but that is not the case before us today.
To the extent, however, that Appellants rely on the USFS contract to establish
a standard of care in their tort action, that argument too must fail. As we have
discussed at length above, the question of whether a recreational provider met the
applicable standard of care is only relevant if we first determine the existence of a
duty. Because we conclude that, under the WRSA, JHMR owes no duty to
Appellants to mark hazards such as the one into which Roberts fell, we have no
occasion to determine whether the USFS contract imposes a standard of care beyond
mere negligence.
Finally, even if the contract did impose a heightened duty, the manual itself
expressly disclaims any reliance on its language that “[u]nusual hazards . . . will be
Mem. of Law in Opp. to Def.’s Mot. for Summ. J.”) (“Additionally, defendant JHMR
assumed a higher duty of care than the limited requirements of the . . . WRSA.”).
18
marked.” Aplt. App. at 491. The full statement from the manual reads: “Unusual
hazards on ski trails will be marked by members of the Ski Patrol. It is understood
that it is physically impossible to mark all hazards, as during the skiing day many
hazards are exposed by skiers, wind, or other weather conditions.” Aplt. App. at 491
(emphasis added). First, as discussed previously, there is no evidence that large
crevices, rocks, and trees are unusual hazards in off-piste terrain. Furthermore, the
language from the manual, taken in its entirety, is sufficient for us to conclude even
if a heightened standard of care was imposed by the USFS contract, it would not
require JHMR to mark all obstacles that a skier could encounter during his or her
time on the mountain, particularly in off-piste terrain.9
III. CONCLUSION
When Mr. Roberts entered Saratoga Bowl on February 14, 2014, he expected
to find steep terrain, natural obstacles, and untouched powder. We accept that he did
not expect to encounter the particular hole or void between rocks into which he
ultimately fell and injured himself. But under the WRSA when a tragic accident—
regardless how severe the consequences—is the result of an inherent risk of alpine
skiing, recreational providers are immune from liability. When a skier drops into an
off-piste run littered with visible obstacles including trees and rocks, it is an inherent
9
In considering a similar argument for provider-liability based on a WOP which
incorporates a ski patrol manual, one California court called the assertion “absurd,”
and ultimately concluded that “[t]o the extent plaintiff relies on the manual to provide
a duty, it expressly indicates that not every trail boundary can or will be marked . . . .
Plaintiff’s argument is not well taken.” O’Donoghue v. Bear Mountain Ski Resort,
30 Cal. App. 4th 188, 193–94 (Cal. Ct. App. 1994).
19
risk that he will encounter unseen obstacles as well. The WRSA reflects careful
policy judgments made by the Wyoming legislature, and it is neither our prerogative
nor our inclination to disrupt that regime. The district court is AFFIRMED in full.
20