October 31 & November 1, 1996

The principal legal issues pertaining to ski safety, is the scope, effect and/or constitutionality of the so-called "inherent danger" statutes which have proliferated throughout the country. Colorado, Vermont, California, Utah, and other states have construed the inherent danger statutes, to require a jury to determine the nature and extent of the duty. Other states, notably Idaho, simply hold that as a matter of law any injury, not caused by a breach of a specific duty imposed on the ski area by the state's ski act, is a risk inherent in the sport. Several states, such as New York, impose either by statute or common law, a reasonable standard of care.

Second, there is a brewing dispute about the duty of care owed by skiers, to each other, particularly, whether the negligence or recklessness of one skier is a risk assumed by another skier, in the context of a skier/skier collision. The trend here is to hold that skiers do not assume the risk of another skier's negligence; skiing is not a contact sport. This standard has been adopted by statute in Colorado and Alaska. However, some states, such as California, allow juries to determine whether this is a risk assumed. A minority of jurisdictions hold that skier/skier collisions are a risk assumed by skiers.

Third, state laws vary as to the level of care owed by the ski area operator, to passengers of ski lifts. Is it ordinary care, or the highest duty of care?

State laws vary to such a degree, and, court decisions are often so muddled that identical accidents can occur, and the legal ramifications will be entirely differently from one state to another.

This outline surveys the statutes, case law, and commentary regarding skiing, in the United States. It updates our last review of the subject which was published in our Winter 1993-1994 issue of Ski Safety News

To go directly to a particular State, select from the following:

ALASKA: Inherent dangers are those natural and inescapable risks. Statute: Alaska Statutes Sections 05.45.010 et seq. A person engaged in the sport of skiing may not recover from a ski area operator for injuries resulting from the inherent risks of skiing. Inherent risks are defined to include weather, steepness, snow, surface or subsurface conditions, collisions with other skiers or with manmade objects. Ski area operators are obliged to post signs warning of their limited liability and of the inherent risks. The risk of a skier/skier injury is not a risk assumed in an action by one skier against another. AS 05.45.100(a). AS 18.60.822 requires ski areas to operate under a snow safety and operation plan approved by either the commissioner of public safety or the United States agency managing the land upon which the area is operated.

Cases: In Hibschman v. City of Valdez, 821 P.2d 1354 (Alaska 1991) the court held that it was a question for the jury whether a manmade jump was a dangerous artificial condition or an inherent danger, and reversed a summary judgment; further, that when an injury is caused by a combination of skier negligence, and an inherent danger, then comparative negligence applies, and the inherent danger serves to reduce, rather than bar recovery. In University of Alaska v. Shanti, 835 P.2d 1225 (Alaska 1992), sledders were entitled to jury trial as to whether the University had a duty to warn that the hill's terrain would propel sledders into trees.

ARIZONA: No ski safety act.

Case: Miller v. Arnal Corp., 632 P.2d 987 (Ariz. App. 1981). This is the only ski rescue case, and it is an extraordinary opinion. Plaintiffs were on the mountain, after hiking up without lift passes. A blizzard moved in, rescue attempts failed, but were reasonably attempted and therefore the patrol was exonerated of liability.

CALIFORNIA: Mixed - inherent danger, common law negligence. Statute: California does not have a state ski safety act, however Ski Area lobbyists have prevailed upon five counties to write "inherent danger" ordinances. Alpine Co. Ord. No. 562-94; Amador Co.Code, Sect.ion12.48.101 et seq.; El Dorado Co. Code, Section 9.20.010; Nevada Co.Code, Section G-IV,art. 19; Placer County Code Section 12.130 et seq. See also, Cal. Penal Code Section 602(q) provides that it is a misdemeanor to ski on a closed ski trail: Section 653(i) makes leaving the scene of a skiing accident punishable by up to a $1,000.00 fine. Aerial passenger tramways are governed by Cal. Labor Code Section 7340 - 7357. Trams are subject to regulation by the Division of Labor. Personnel employed to operate ski lifts must be qualified in accord with administrative standards set by regulations issued by the Division. Cal. Public Utilities Code Section 212(c) excludes ski lifts from the definition of "common carrier."

Recent Cases:

Collision Cases: The Skier Responsibility Code of Placer County establishes duties of skiers, a breach of which raises a presumption of negligence. A skier does not assume the risk of another skier's negligence in a skier vs. skier collision case. Zubrick v. Ford, 56 Cal. Rptr.2d 494, 96 Daily Journal 10,853, 1996 WL 498126 (Cal. Ct. App. 3rd Dist. 1996). In another skier vs. skier case, the plaintiff had been paralyzed by defendant skier who had fallen on the plaintiff. The evidence showed that the defendant had been drinking. Nevertheless, the trial judge had dismissed the case, finding that the risk of collision was inherent, and thus assumed, in the sport. The appellate court reversed, and held that consumption of alcoholic beverages is not within the range of activities involved in the sport of downhill snow skiing, and to the extent the consumption of alcohol increases the risk of collision between the drinking skier and other skiers, that increased risk is not one which is inherent in the sport and was not assumed merely by participating in the sport. Freeman v. Hale, 30 Cal. App.4th 1388, 36 Cal.Rptr.2d 418 (Cal. Ct. App. 4th Dist. 1994).

Waivers in binding cases: Olsen v. Breeze, 55 Cal.Rptr.2d. 818, 48 Cal. App. 4th 608 (Cal. Ct. App. 3rd Dist. 1996). Waivers obtained at the time of the rental, purchase or servicing of ski bindings, do not violate state unfair competition laws. Such releases are enforceable, and may also release the distributor and manufacturer. Compare, Westyle v. Look Sports, Inc., 93 Daily Journal D.A.R. 10825 (No. C013447 Cal. Ct. App. 3rd Dist. 8/23/93) which held that a waiver did bar an action against ski rental shop, but, on its express terms, did not bar claim for strict products liability in tort.

Downhill skiing/inherent risks: Striking a lift tower is an inherent risk of skiing. Connelly v. Mammoth Mountain Ski Area, 45 Cal.Rptr. 2d 855, 95 Daily Journal 13,977 (CAL. APP. 3 DIST. 1995); so is a skier's collision with a tree. Daniely v. Goldmine Ski Associates, 266 Cal. Rptr. 749 (Ct. App. 1990); and a trip into a ravine also meets with a finding of no liability. O'Donoghue v. Bear Mtn., 30 Cal.App.4th 188, 35 Cal.Rptr.2d 467 (Cal. Ct. App. 4th Dist. 1994).

Ski Lifts: Ski areas, in the operation of their lifts, are not common carriers but are nevertheless subject to "common carrier" status for tort liability purposes. Squaw Valley Ski Corp. v. Superior Court of Placer County, 2 Cal.App.4th 1499, 3 Cal.Rptr.2d 897 (1992).

Commentary: Fagan, Avalanche Control: Negligence Over Strict Liability, 20 U. San Francisco L. R. 719 (1986).

COLORADO: Mixed: inherent danger and statutory duty. Definition of inherent danger may be a question of fact for the jury. Statute: C.R.S. Sections 33-44-101 to -114. Skiers assume the risks of the inherent dangers of skiing. Inherent dangers are defined to include weather, snow, surface and subsurface conditions, collisions with natural and manmade objects, skiers and the failure of skiers to ski within their own ability. Ski area operators have specific duties to mark trails, boundaries, manmade objects not otherwise visible from 100 feet away. There is no statutory duty to pad lift towers. Skiers do not assume the risk of a skier/skier collision in an action between two skiers for damages. The primary duty to avoid collision is on the uphill skier. Limitations are imposed on damages collectible against ski area operators for downhill skiing accidents, but there is no limitation on damages for ski lift accidents. A tramway board is formed by C.R.S. 24-34-101 et seq. Violation of tramway standards is negligence per se. Ski lift operators must also exercise the highest degree of care.

Recent Cases of Note: In Graven v. Vail Associates, Inc. 909 P. 2d 514 (Colo. 1995) the Colorado Supreme Court adopted a narrow construction of the inherent danger provisions of the Colorado Ski Act. C.R.S. Section 33-44-101 et seq. This precedent will allow some skiers, who are injured while skiing, to advance a claim for injuries against a ski area operator if the injury results not from a ski area operator's breach of a specific duty set out in the Ski Act, but, rather from a danger or risk which is found to be not "integral" to the sport. Followed: Dovey et al v. Victoria Breckenridge et al., 95 CV 1153, District Court, City and County of Denver, State of Colorado (Order denying Motion to Dismiss, 1/3/96). Bobsledder is subject to Ski Act. Cuny v. Vail Assoc., 902 P.2d 881 (Colo. App. 1995) cert. denied 8/21/95

Collision: Ulissey v. Shvartsman, 61 F. 3rd 805 (10th Cir. 1995) skier/ skier collision case, the uphill skier is presumed to have the better opportunity to avoid. Skiers have the duty to maintain a lookout so as to avoid collisions, to ski within their ability, to remain in control, and to refrain from acting in a manner which may cause or contribute to injury of the skier or others. C.R.S. Section 33-44-109(1), (2) & (5). The 1990 amendments explicitly abolished the defense that the risk of being hit by an out of control or unobservant skier is a risk inherent in the sport.

Lift: Baer v. Crested Butte, 94 M 2958 (1996) appeal pending, the 1990 amendments to the Ski Act repealed the common law duty of highest duty of care in the operation and maintenance of ski lifts. The court indiciated that the applicable standards were pre-empted by the Ski Act, and the Colorado Passenger Tramway Safety Act, C.R.S. Section 25-5-701 et seq. (Which incorporates and the design criteria of ANSI B-77 for aerial tramways). Good faith settlement, protects settling joint tort feasor from contribution action. Copper Mtn. v. Poma of America, Inc., 890 P.2d 100 (Colo. 1995).

Avalanche: Holland v. United States Forest Service & Ralston-Purina, 95-S-346, ___ F. Supp. ___ (Order dated 5/10/96) plaintiff's decedent, Sheila Marquez, had skied out of the A-Basin ski area, into the "Beavers," on USFS land. An avalanche killed her. Held, that the ski area had no duty to skiers once that left the area, and conspicuous signs at USFS access points were adequate under the ski act to absolve A-Basin of any) liability.

Duty of Ski Patrol to use reasonable care: Spence v. Aspen Skiing Company, F. Supp. 542 (D. Colo. 1993) Ski area owes a duty of due care when rendering medical care to skiers, even if they are first injured through the skier's own negligence, or by an "inherent danger". A comparative negligence instruction, based upon the skier's own conduct in getting injured in the first place, is inappropriate.

Cases decided before the 1990 "inherent danger" amendments are of some value in determining which dangers, even natural hazards, could be mitigated in the exercise of reasonable care. See, Rosen v. LTV Development, Inc., 569 F. 2d 1117 (10th Cir. 1978) establishing that Colorado ski areas were obliged to exercise due care, in a case involving a secondary collision with an unpadded steel post set in the midst of a busy intersection near two ski lifts; Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671 (Colo. 1985) holding that the former version of the Ski Safety Act was constitutional, involving a skier who lost control when he went over an unmarked road cut; Phillips v. Monarch Recreation Corp., 668 P. 2d 982 (Colo. App. 1983) where the plaintiff was injured in a skier vs. snowcat collision, and which held that statutory standards of care could not be limited by more stringent assumption of risk language printed on a ski lift ticket. Summit County Development Corp. v. Bagnoli, 441 P.2d 658 (1968), imposes the highest standard of care commensurate with the safe operation of the lift, but compare Baer, supra. Trigg v. City and County of Denver, 784 F. 2d 1058 (10th Cir. 1986) held that it was proper for a trial court to give both the negligence per se instruction, under the statute, and the common law instruction that the ski area operator must exercise the highest duty of care. Bauer v. Aspen Highlands Skiing Corp, 788 F.Supp. 472 (D.Colo.1992) held that a release contained within rental agreement was enforceable.

Racing cases - Stratton v. Vail Associates, unpublished disposition, 961 F. 2d 220 (10th Circ. 1992), A Colorado College ski team member was practicing the slalom at Ski Broadmoor, under an arrangement between the College and the ski area; skier fell and slid into an unpadded steel post; held that the skier was not a competitor at the time, and the strict assumption of risk language of C.R.S. Section 33-44-110 was inapposite. Note: 33-44-110 was not changed by the 1990 amendments. Fullick v. Breckenridge Ski Corporation, unpublished disposition, 962 F.2d 17 (10th Circ. 1992) waiver, signed by speed ski racer, barred negligence claim; Del Bosco v. United States Ski Association, 839 F. Supp. 1470 (D. Colo. 1993) held release signed by parent, on behalf of a child, was voidable under Colorado law, sponsor was not ski area operator as defined by Colorado Ski Act, summary judgment improper when racer did not have prior opportunity to inspect course as is required under Colorado Ski Act. Potter v. National Handicapped Sports, 849 F. Supp. 1407 (D. Colo. 1994) Potter was an experienced handicapped ski racer A race official was standing at or near the finish line, causing Potter to fall. Prior to the race Potter had signed two release agreements containing waivers of liability. The court held that the waivers effectively barred any claims by Potter.

Commentary: Chalat , Colorado Narrows Construction of the Inherent Danger Rule 45 Trial Talk 10 (Colo. Trial Law. Assn., April 1996) Chalat, Ski Tips-A Review of Colorado's Ski Safety Act, 9 Colo. Law. 453 (1980); Chalat, Continuing Changes in Colorado's Ski Law, 13 Colo. Law. 407 (1984); Chalat, The Development of the Standard of Care in Colorado Ski Cases, 15 Colo. Law. 373 (1986); Ferguson, Allocation of the Risks of Skiing, 67 Den. U. L. Rev. 165 (1990); Lisman, Ski Injury Liability, 43 U. Colo. L. Rev. 262 (1972).See also, Eichstadt, Release Me Not: Products Liability and Ski Bindings Injuries -- A Source for Model Sports Principles, 19 T. Marshall L. Rev. 551 (Thurgood Marshall Law Review, Symposium: Current Trends in U.S. Sporting Arena, 1994).

CONNECTICUT: Mixed: Statutory duties and negligence. Statute: C.G.S.A. Sections 29-201 to -214 provides for concomitant duties of skiers and ski area operators. Skiers accept the risks inherent in the sport including variations in the slope and trail (except when caused by snow making, grooming or rescue operations), trees or other objects not within the confines of a trail or slope, and bare spots which do not require the closing of the trail. C.G.S.A. Section 29-212(1) - (5). Passenger tramways must be operated in accord with regulations adopted by the Commissioner of Public Safety. Section 29-202.

Cases: Skier/skier collision is a risk assumed in an action by a skier against the ski area operator, Sklar v. Okemo Mt., 877 F. Supp. 85 (D. Conn. 1995). Action against ski area operator A guest who fell over a 34 inch high guard rail at a deck into a stair well while making a phone call, and was paralyzed; obtained a $7 million award against the phone company. The accident occurred at the Mohawk Mountain Ski Area. Sable v. Mohawk Mountain Ski Area, N84-626, 9 N.L.J. 2/16/87 at p. 30. Skier vs. skier, Wilkins v. Fox, 1995 WL 384614 (Conn. Super. 1995), Funaro v. Mt. Mansfield, 1994 WL 386075 (1994); lift loading accident, Morrow v. Killington, 1995 WL 506074 (Conn. Super. 1995); waiver and release in a ski binding case, Sylvain v. Madison's, 1992 WL 339856 (Conn. Super. 1992.)

IDAHO: Inherent danger Statute: Idaho Code Sections 6-1101 to -1109. Duties of ski area operators are strictly limited to those set out in Sections 6-1103(1) to - (10) including posting signs, and providing a ski patrol. Tramways must be operated in conformity with the American National Standards Institute. Section 6-1104. Skiers are liable to others for unsafe skiing. Section 6-1109. Cases: The Idaho statute immunizes ski areas from liability for dangers "inherent" in the sport. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P. 2d 1159 (1990). Skier assumes risk of striking lift tower. Collins v. Schweitzer, 774 F.Supp., aff'd 21 F. 3d 1491, cert. denied 115 S. Ct. 422 (1994). Ski area to exercise highest degree of care in the operation of its lifts and tows. Hunt v. Sun Valley Inc., 561 F.2d 744 (9th Cir. 1977). Defendant's verdict in night lighting on a ski slope. Rowett v. Kelly Canyon Ski Hill, Inc., 102 Idaho 708, 639 P. 2d 6 (1981). Only duties imposed upon ski area are those enumerated in the Skier Statute. Long v. Bogus Basin, 869 P. 2d 230 (Idaho 1994).

Commentary: Frakt & Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 Idaho L. Rev. 227 (1991-1992).

ILLINOIS: No Ski Safety Act. Case: Novak v. Virene, 224 Ill. App. 3d 317, 586 N.E. 2d 578 (1991), skiers owe duty of care to each other; the parties collided on a Wisconsin ski slope. Skiing is not a contact sport.

INDIANA: No Ski Safety Act. Statute: No ski safety statute as such. But see, IN. ST. Section 22-12-1-19.1 referring to ski lifts as "regulated amusement devices."

Cases: Moore v. Sitzmark Corporation and Salomon of North America, 555 N.E.2d 1305 (Ind. App. 1990).

MAINE: Inherent danger, limited to dangers which cannot be eliminated regardless of feasible safety measures. Statute: 26 M.R.S.A. Sections 471 - 490-G. "Except as otherwise [specified] each skier who participates in the sport of skiing shall be deemed to have assumed the risk of the dangers inherent in the sport and assumed the legal responsibility for any injury to his person or property arising out of his participation in the sport of skiing, unless the injury or death was actually caused by the negligent operation or maintenance of the ski area by the ski area operator..." Skiers must refrain from "harmful conduct" and must ski in bounds and stay off closed trails. Tramways are regulated and licensed under the statute. Statute of limitations for any ski or lift related claim is 2 years. 14 M.R.S.A. Section 752-B.

Case: Skier fell and was injured in a mogul field which lay just behind a break-over. Held, ski area is immune from such a claim. Swenson v. Sunday River Skiway Corp., 79 F. 3d 204 (1st Circ. 1996). Sanchez v. Sunday River Skiway Corp., 802 F.Supp. 539 (D. Maine 1992) held that: actions for negligent operation or maintenance may be brought. Two year statute barred parents' claims.

MASSACHUSETTS: Negligence/inherent danger, short notice and statute of limitations. Statute: Mass. Gen. L. ch. 143 Sections 71H to - 71S. The Massachusetts statute provides for a one year statute of limitations and a 90 day notice period. The statute requires ski area operators to warn of snow making or trail maintenance equipment, mark and identify vehicles on the slopes, mark the location of snow making hydrants, maintain a sign system in accordance with administrative regulations and "shall be responsible for the maintenance and operation of ski areas...in a reasonably safe condition or manner ...however ski area operators shall not be liable for damages to [skiers] which arise out of the risks inherent in the sport of skiing." Mass. Gen. L. ch. 143 Section 71N (Supp. 1987).

Cases: Saldarini v. Wachusett Mtn. Ski Area, 665 N.E.2d 79 (Mass. 1996) held that the Ski Safety Act barred a claim against a ski area for ice conditions which caused collision with another skier. In McHerron v. Jiminy Peak, 665 N.E. 2d 26 (Mass. 1996) the court held that a bare spot was an unavoidable risk, inherent in the sport, and a skier injured after skiing over the bare spot, could not recover. Grass v. Catamount Dev. Corp., 390 Mass. 551, 457 N.E. 2D 627 (1983). Atkins v. Jiminy Peak, 401 Mass. 81, 514 N.E.2d 850 (1987). Statute of limitations of one year and 90 day notice requirement was applicable in an action by a skier against a ski area operator for negligent adjustment of rental bindings. Tilley v. Brodie Mountain Ski Area, Inc., 412 Mass. 1009, 591 N.E. 2D 202 (Mass. 1992), ski area can be held liable when its ski patroller collides into another skier.

Commentary: Murphy, Ski Operator's Liability Under the Massachusetts Ski Area Safety Act, 22 Suffolk U.L. Rev. 909 (1988).

MICHIGAN: Inherent danger and statutory duty Statute: MCLA 408.321 to 408.344. This is the nation's oldest ski safety act. It was amended in 1981 to add an "inherent danger" provision. Each person accepts the dangers that inhere in the sport insofar as the dangers are "obvious and necessary." A ski area safety board is created for the regulation of lifts. Ski areas and skiers are each assigned duties and responsibilities.

Cases: Michigan has emerged as one of the most reactive states, barring practically all claims arising from skiing. In Barr v. Mt. Brighton, 546 N.W. 2d 273 ( Mich. App. 1996) plaintiff skied through a grove of trees which was not roped off, or marked as closed. Plaintiff struck what he referred to as a "uniquely shaped" tree, and was paralyzed. Held, that the collision was a risk assumed by the skier, notwithstanding statutory requirements that the ski area mark its slopes or trails, and post as "closed" that portion of the trail onto which he skied. Marietta v. Cliffs Ridge, Inc., 20 Mich. App. 449, 174 N.W.2d 164, affirmed, 385 Mich. 364, 189 N.W.2d 208 (1971), pre-dated the "inherent danger" amendments of 1981. Evidence supported verdict in favor of a racer who was impaled by a sharpened, thick maple slalom pole; standard of care of a Michigan ski area operator was that of a reasonably prudent person. "Inherent danger" provisions of the 1981 amendments are constitutional, Grieb v. Alpine Valley Ski Area, 155 Mich. App. 484, 400 N.W.2d 653 (1986). Skiers accept the obvious and necessary dangers of skiing, including those enumerated such as a skier/skier collision wholly the fault of one skier. Schmitz v. Cannonsburg Skiing Corp., 170 Mich. App. 692, 428 N.W.2d 742 (1988), skier vs. tree collision was risk wholly assumed by skier.

Commentary: Chalat, Ski Law in Michigan, 63 Mich. B.J. 355 (1984).

MINNESOTA: No Ski Safety Act. Statute: None relating to downhill skiing. A user fee is charged for cross-county skiing. M.S.A. Section 85.41

Cases: Martin v. Spirit Mtn., 527 N.W. 2d 167 (Minn. App. 1995) held that a municipal ski area was virtually immune from suit brought by skier. Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58 (Minn.App. 1989). Skier/skier collision, resort had no duty to supervise slopes against intoxicated skiers without actual or constructive notice of the hazard. The hitter escaped the scene, and the Court held that the resort had no duty to protect the victim's "litigation interests" by detaining the hitter. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 232 N.W.2d 236 (1975). Collision between skiers, is basis for action.

MONTANA: Mixed: inherent danger and statutory duty. Statute: MCA 2-15-1896 Establishes a tramway board. MCA 23-2-732 to -736 recites the inherent risks in skiing that are essentially impossible to eliminate. The statute defines those areas of responsibility and affirmative acts for which the ski area operator is liable and those risks for which the skier assumes the risk.

Cases: Ski area operators' duties are not limited exclusively to those set out in the Skier's Responsibility Act. Skier struck shale outcropping on a narrow trail. Held, it was a question for the jury whether skier assumed this risk. Mead v. M.S.B., 872 P.2d 782 (Mont. 1994). Montana reasoned that it was unconstitutional to place the entire risk upon skiers. Irrespective of the importance of the economic vitality of the ski industry to Montana's economy, there is no rational relationship between this purpose and placing the burden of all risks upon skiers. Brewer v. Ski-Lift, Inc., 762 P.2d 226 (1988). The present statute was amended in 1989 to correct the deficiencies noted in Brewer. As to ski lifts, a ski area was held to duty of reasonable care, not the higher standard of a common carrier. Pessl v. Bridger Bowl, 524 P.2d 1101 (Mont. 1974). Kelleher v. Big Sky of Montana, 642 F.Supp. 1128 (D. Mont. 1986) In Childers v. United States, 40 F. 3d 973 (9th Circ. 1995) the Court held that the National Park Service was immune from liability for the death of a child who was killed in a winter hiking accident in Yellowstone National Park.

Comment: DeWolf & Hander, Assumption of Risk and Abnormally Dangerous Activities: A Proposal, 51 Mont. L. Rev. 161 (Winter 1990).

NEVADA: Negligence. Statute: N.R.S. 455A.060 to -.190. "A skiing operator shall take reasonable steps to minimize dangers and conditions within his control." N.R.S. 455A.160(3). The statute further provides a skier shall conduct himself in a manner to avoid injury, maintain a lookout, ski in control, avoid skiers already in motion and heed warnings and signs.

NEW HAMPSHIRE: Inherent Danger. Statute: NH.R.S.A. 225-A:1 to - A:25. The Passenger Tramway Safety Board has jurisdiction over trams and ski jumps. Skiing involves risks and hazards which must be assumed as a matter of law, regardless of the safety measures taken by ski area operators. Skiing as a sport, and the use of passenger tramways may be hazardous to skiers or passengers.

Cases: Adie v. Temple Mountain Ski Area, Inc., 108 N.H. 480, 238 A.2d 738 (1968), holding the risk of injury is upon the skier, except in cases of negligent instruction; accord, Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4 (1st Cir. 1991), which held skiers could not hold the ski area responsible for injuries resulting from inherent risks of skiing. Bolduc v. Herbert Schneider Corp., 117 NH 566, 374 A.2d 1187 (1977), held New Hampshire ski lifts are not common carriers. Gonzalez v. Temple Mountain Ski Resort, 613 F. Supp. 354 (D. Mass. 1985), interpreting the New Hampshire statute of limitations;

Commentary: Farrow, Ski Operators and Skiers - Responsibility and Liability, 14:2 New England L. Rev. 262 (1978).

NEW JERSEY: Inherent dangers are dangers which are "essentially impractical or impossible for the ski area operator to eliminate." N.J.S.A. 5:13-1(b). Statute: N.J.S.A.5:13-1 to -11. A 90 day notice period, may be extended to 1 year. There is a two year statute of limitations for actions against ski area operators. Otherwise, the statute imposes a negligence standard as the operator is under a duty to reasonably remove obstacles and to correct conditions within a reasonable time. Skiers must control their speed and course and to ski within their ability. Skiers assume the risks inherent in the sport. Ski Lift Safety Act N.J.S.A. 34:4A-1.

Cases: Tobogganing accident, New Jersey Ski Statute applied, verdict for plaintiffs, affirmed. Brett v. Great American Recreation, 144 N.J. 479, 677 A. 2d 705 (Sup. Ct. N.J. 1996). In this well written opinion, the court succinctly distinguishes between the pure assumption of risk regimes of some states, compared to the view that certain hazards, manmade and natural, can, in the exercise of due care, be reduced or eliminated. Brett and five others slid down a slope, at night, lost control, went off an embankment and into a utility pole. Sledding at night on the hill was a common practice, known to the defendants. Under the New Jersey Ski Act ski areas have a duty to remove or lessen, obvious, manmade hazards. A breach of any statutory duty is the equivalent of negligence. The New Jersey statute is characterized by the court as a codification of the respective duties and liabilities of skiers and resort operators and an attempt to identify the inherent risks of skiing by listing examples of risks that the skier assumes or that the area operator has no duty to correct. See also, Pietruska v. Craigmeur Ski Area, 259 N.J.Super. 532, 614 A.2d 639 (1992). Goss v. Allen, 70 N.J. 442, 360 A.2d 388 (1976), skier/skier collision.

Commentary: McCaffery, Skiers Find the "Fall Line" in Challenging the Constitutionality of Modern Ski Legislation, 1 Seton Hall J. Sport L. 269 (1991); Lorell, The New Ski Law: Are Downhill Injury Claims Headed Downhill?, 103 N.J.L.J. 197 (3/8/79).

NEW MEXICO: Negligence. Statute: NMSA 24-15-1 to -14. The primary responsibility for the safety of operation of lifts rests with the operators. The primary responsibility for the safety of the individual skier while skiing rests with the skier himself. Skiers accept the inherent risks of skiing. Actions are barred for skiing injuries except when it is shown that the injuries result from a breach of the enumerated duties set out in the act, including the duty "to warn or correct particular hazards or dangers known to the operator where feasible to do so." NMSA 24-15-7(I.)

Cases: Kidd v. Taos Ski Valley, 88 F.3d 848 (10th Circ. 1996). Kidd alleged that she did not see a diversionary, single strand bumblebee rope, and skied into an out of bounds area, sustaining numerous severe injuries. The plaintiff failed to timely designate experts, and the court found that she failed to create a triable issue of fact as to whether the ski area breached its duty to "warn of or correct particular hazards or dangers known to the operator where feasible to do so." NMSA 24-15-7(I). Wood v. Angel Fire Ski Corp., 774 P.2d 447 (N.M. App. 1989), question of fact whether unloading skier was passenger or skier and therefore if there was a negligence claim as to the operation of the lift. In Lopez v. Ski Apache Resort, 836 P.2d 648 (N.M. App. 1992) cert. denied 833 P.2d 1181 (1992) the skier had fallen and then slid into an unpadded lift tower. The trial court had dismissed the case on summary judgment. The Court of Appeals reversed, holding that although the Act was the skier's exclusive remedy against a ski area operator it did not control her claim against the company that designed, manufactured and installed the ski lift tower with which skier collided. The statute further did not bar the claim against the ski area as if the collision with the tower was controlled by the doctrine of primary assumption of risk. The doctrine of comparative negligence could nevertheless save the action against the ski area operator when both skier and ski area operator were alleged to have breached statutory duties. Compare, Philippi v. Sipapu, Inc., 961 F.2d 1492 (10th Cir. 1992) affirming a summary judgment in favor of ski area operator. DeFeo v. Ski Apache Resort, ___P.2d___ 1995 WL 628010 (N.M. App. 1995) held that the Apache Tribe of the Mescalero Reservation (which operates the ski area) is immune in state courts from a negligence action arisiing from a lift unloading accident.

NEW YORK: Negligence Statute: NY GEN OBLIG Sections 18-101 to -108, "Safety in Skiing Code." The statute is designed to promote ski safety and although inherent risks are recognized, and duties are meted out between skiers and ski area operators, the ski area operator is not immunized from negligence actions. The preamble acknowledges the inherent risks of skiing. The code imposes duties upon skiers and ski area operators. Ski Area operators must conduct inspections, pad lift towers and other man made objects on slopes and trails, and must post signs and notices. NY GEN OBLIG Section 18-103. Skiers must ski in control and stay in-bounds. The overtaking skier must yield the right of way. NY GEN OBLIG Section 18-105. Ski area operators must inspect the conditions on each run, twice each day. Lift towers must be padded with hay bales or shock absorbent nets or cushions. Skiers must ski in control, avoid skiers whom they are overtaking, and ski within their ability. The code states that: "Unless otherwise specifically provided in this article, the duties of skiers, passengers, and ski area operators shall be governed by common law." NY GEN OBLIG Section 18-107.

Cases: Ice sheet and bare patch, on a beginner run are not necessarily risks inherent in the sport. Sytner v. State, ___ N.Y.S.2d ___, 1996 WL 417583 (N.Y.A.D. 1996). Sytner exemplifies New York's policy of allowing claims. Rigano v. Coram Bus Service & Ski Winham, 641 N.Y.S.2d 285 (Sup.Ct.App. 1996); Roberts v. Ski Roundtop, 623 N.Y.S.2d 264, 212 A.D.2d 768 (Sup.Ct.App. 1995). Woods v. New York State Olympic Dev. Auth., 640 N.Y.S.2d 1012 (NY Ct. Cl. 1996) held that a ski area operator has no duty to secure another skier's identify so as to protect the injured skier's litigation interests against another skier. See also, Voges v. West Mountain Corp., 97 A.D.2d 46, 470 N.Y.S.2d 475 (N.Y.App. Div. 1983), Grauer v. State of New York, 181 NYS2d 994 (1959); Blanc v. Windham Mtn. Club, 454 N.Y.S. 2d 383 (N.Y. Sup. Ct. 1982); Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 410, 271 N.E.2d 515 rev'd 324 N.Y.S.2d 852 (1971). A plainly visible dip in the trail which causes a loss of control and injury is a risk the skier assumes. Calabro v. Plattekill Mt. Ski Center, Inc., 602 N.Y.S. 2d 655 (Sup. Ct. App. Div. 1993). In a similar case, Giordano v. Shanty Hollow Corporation, 617 N.Y.S. 2d 984 (1994), the court granted summary judgment, finding that the skier assumed the risk of injury. Accord, Atwell v. State, ___N.Y.S.2d ___, 1996 WL 417595 (Sup. Ct. App. 1996)

A slalom course set close to edge of a ski trail is a risk assumed. Dicruttalo v. Blaise Enterprises, 621 N.Y.S.2d 199, 211 A.D.2d 858 (Sup.Ct.App. 1995).

Dana Basilone, age 15, hit a post of a split rail fence near a triple chairlift at Burch Hill. Dana's mother sued, alleging that Burch Hill should have padded the pole. Basilone v. Burch Hill Operations Inc., 605 N.Y.S. 2d 423 (Sup. Ct. App. Div. 1993). The defendant moved for summary judgment, stating that there was no duty to pad poles or fences which are off skiable terrain, and are located away from slopes or trails. The court noted that there was an unresolved issue of fact: whether the post would be considered on or off the skiable trail. Implicit in the decision is the conclusion that the plaintiff could make out a case for padding the post, if the post was within the confines of the trail. "On the record before us, we cannot conclude as a matter of law that the infant, an inexperienced skier, assumed the risk related to this type of man-made obstacle located within the confines of the ski trail." Basilone, 605 N.Y.S. 2d at 424.

At Hunter Mountain there is a trail named Eisenhower Drive. On Christmas eve 1988, Mary Younger found herself on the wrong side of a berm of manmade snow. The trail narrowed and she was thrown into the woods, separated from the piste by the berm. Younger fractured both legs. She contended that the berm of manmade snow was unmarked, and that she never had skied over it. Hunter claimed the berm was obvious, and that Younger had assumed the risk. The court held that it was for the jury to decide if the berm created a reasonable or unreasonable risk of harm to the skiers on Eisenhower Drive. Memorandum Decision and Order, Younger v. Hunter Mt. Ski Bowl, Inc., 90-CV-654, 1994 WL 568527 (N.D.N.Y. 10/5/94).

Skier v. skier case can go to the jury. Martin v. Luther, 642 N.Y.S.2d 728 (Sup.Ct.App. 1996).

Commentary: Sanders & Gayner, The Cold Truth: Have Attorneys Really Chilled the Ski Industry? 2 Fordham Ent. Media & Intell. Prop. L.F. 125 (1992); Bernstein, Snowballing Cost of Skiing, 7 Cardozo Arts & Entertainment L. J. 153 (1988).

NORTH CAROLINA: Negligence. Statute: NC ST Sections 99C-1 to -5. Ski lifts must be registered with the Commissioner of Labor who is to establish safety standards of design and operation, and inspect lifts regularly. Skiers have extensive duties in regard to their safe conduct, including the duty to ski under control and within the range of their ability, to heed posted information, to ride lifts safely and to not engage wilfully or negligently in any conduct that contributes to injury. Ski areas are to mark trails, manmade objects, post signs, provide ski patrol and to mark clearly hidden rocks, stumps and hazards known by the ski area operator to exist, and further not to engage wilfully or negligently in conduct that contributes to injury. A violation of any provision of the statute by a skier, tramway operator, or, a ski area operator constitutes negligence. The operation of a passenger tramway does not constitute the operation of a common carrier.

NORTH DAKOTA: Inherent Danger. Statute: ND ST 53-09-01 to -10. Skiers assume the inherent risks of skiing. Ski area operators must post signs and mark snow making hydrants. Ski area operators have the duty to construct, operate and maintain tramways in a safe and responsible manner. Skiers assume all other hazards as risks inherent in the sport. All ski areas must post signs which say "WARNING TO USERS North Dakota law severely limits your right to compensation for injuries caused by the negligence of the owner or operator."

OHIO: Inherent danger. Statute: OH Sections 4169.01 to -4169.99. Establishes a safety board to regulate tramways. The operation of a tramway does not constitute the operation of a common carrier. Skiers and operators have duties. Provided the ski area operator has complied with the marking and signs, the area operator has no further duty.

Cases: Rental of defective equipment is not an inherent risk. Otterbacher v. Brandywine Ski Center, Inc., No. 14269 (9th Dist. Ohio 1990).

OREGON Modified inherent danger. Statute: ORS 30.970 to 30.990. The skier assumes the inherent risks of skiing in so far as they are as they are reasonably obvious, expected and necessary. 180 day notice period, 2 year Statute of Limitations. Skiers have duties to yield to other skiers, to ski within their ability and to stay in control.

Cases: Farina v. Mt. Bachelor, Inc., 66 F. 3d 233 (9th Circ. 1995) A season pass skier skied into an unmarked boulder which was hidden behind the crest of a rise. He sued, and the case was dismissed on the basis of the waiver and release contained within the season pass agreement. Held, that the waiver was unenforceable, because the waiver purported to release Mt. Bachelor for gross negligence as well as ordinary negligence. In Jessup v. Mt. Bachelor, Inc. 101 Or. App. 670, 792 P. 2d 1232, rev. den. 310 Or 475, 799 P. 2d 646 (1990) recovery was barred for an injury caused solely by an inherent risk of skiing. If, however, the injury is caused by a combination of an inherent risk of skiing and operator negligence, then the doctrine of comparative negligence applies. Accord: Nolan v. Mt. Bachelor, Inc., 115 Or.App. 27, 836 P. 2d 770 (1992). Negligent ski instruction not waived by ski rental agreement. Pierce v. Mt. Hood Meadows, 847 P.2d 909 (Or. App. 1993).

PENNSYLVANIA: Inherent Danger, Assumption of Risk. Statute: 42 Pa.C.S.A. Section 7102(c) provides that the doctrine of assumption of risk is not modified by the adoption of the comparative negligence. There are inherent risks of skiing which are left undefined.

Cases: Exculpatory agreements and releases executed by ski racers are enforceable. Kotovsky v. Ski Liberty Operating Corporation, 412 Pa. Super 442, 603 A.2d 663 (1992). Zimmer v. Mitchell & Ness, 253 Pa Super. 473, 385 A.2d 437 (Super. Ct. 1978) held that an exculpatory clause in a ski equipment rental agreement was valid. Effect of assumption of risk to bar recovery, Burke v. Ski America, 940 F.2d 95 (D. Penn. 1991). Reasonableness of skier's conduct. Elder v. Orluck, 511 Pa 402, 515 A.2d 517 (1986).

RHODE ISLAND: Inherent Danger, Primary Duty. Statute: RI Gen. Laws Sections 41-8-2 to -3 Provides that the skier has the primary duty to avoid collision.

Cases: Salk v. Alpine Ski Shop, 115 R.I. 309, 342 A.2d 622 (1975).

TENNESSEE: Inherent Danger. Statute: T.C.A. Sections 68-114-102 et seq. requires skiers to accept all risks of dangers and relieves area operators of any duties except as specified in the statute. Regulates the operation of tramways.

UTAH: Mixed inherent danger & duties of skiers. Statute: Utah Code Ann. Sections 78-27-51 to -54 (1992 & Supp.1994) Utah's Inherent Risks of Skiing Statute imposes upon skiers the risk of hazards inherent to the sport. Inherent dangers include changing weather conditions, impact with lift towers, collisions with other skier's, losing control. Section 78-27-52(1).

Case law: The jury had to decide whether in the exercise of ordinary care, the ski area could have alleviated the risk of losing control when skiing over an unmarked cat track on the blind side of a ridge. White v. Deseelhorst, 879 P. 2d 1371 (Utah 1994) note, on remand, the jury found that Corey White's injuries were caused by inherent risks, and he recovered no damages. Clover v. Snowbird Ski Resort, 808 P. 2d 1037 (1991), Utah's act requires a case by case determination to decide whether any particular hazard truly is integral to the sport. An injury caused by an unnecessary hazard which could have been eliminated in the exercise of ordinary care is not "inherent" and the skier may recover from the area operator. Meese v. Brigham Young University, 639 P.2d 720 (Utah 1981) regarding whether a skier assumes the risk of negligent binding adjustment.

Commentary: Bigelow, Ski Resort Liability for Negligence Under Utah's Inherent Risks of Skiing Statute 1992 Utah L. Rev. 311-320 (Winter 1992) in which the author notes that the Utah legislative history indicates that the bill in no way "restricts the right to bring suit in legitimate negligence cases. Id. at note 55, p. 320. Faber, Utah's Inherent Risks of Skiing Act: Avalanche from Capitol Hill, 1980 Utah L. Rev. 355. Feuerhelm, Lund, Chalat & Kunz, From Wright to Sunday, 1985 Utah L. Rev. 885.

VERMONT: Inherent danger. Statute:12 V.S.A. Section 1037 provides that "Notwithstanding the provisions of [the comparative negligence statute] a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary." The legislative intent explicitly referred with approval to the precedent of Wright v. Mt. Mansfield, Inc. and Leopold v. Okemo and referred with disapproval to Sunday v. Stratton, see below.

Cases: Exculpatory agreements which skiers are forced to sign are void as contrary to public policy. Dalury v. S-K-I Ltd., and Killington, 670 A.2d 795 (Vt. 1995); Frant v. Haystack Group, Inc., 641 A. 2d 765 (Vt. 1994). In Frant the Vermont Supreme Court found that a 4" X 4" fence post supporting a rope lift maze was not a danger inherent in the sport, and that a jury should have been permitted to hear evidence of safer alternatives to the post such as "forgiving" plastic or padded posts to reduce the hazard. O'Connell v. Killington, 665 A.2d 39 (Vt. 1993) held that a ski area has no duty to identify skier who collides with the plaintiff.

Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786 (D. Vt. 1951), the most widely cited case in support of the inherent danger rule, which nevertheless stated, in dicta, that the ski area operator could be held liable if there was evidence of dangers existing on the trail which reasonable prudence would have foreseen and corrected. Leopold v. Okemo Mountain, Inc., 420 F.Supp. 781 (D. Vt. 1976), held that a collision with unpadded lift tower was a risk assumed by skier. The most important case in the literature to read is Sunday v. Stratton Corporation, 390 A. 2d 398 (Vt. 1978) in which the Vermont Supreme Court, on facts almost identical to the facts in Wright held that not every risk or fall was necessarily inherent in the sport. Although cases in other states (i.e. MI and CO) had previously held that area operators and skiers would both be held to a standard of reasonable care, Sunday ignited the industry to make claims (often unsubstantiated) that insurance costs and lawsuits would put them out of business unless sympathetic legislators gave ski areas the special protection of the "inherent danger" rules found in so many post-Sunday statutes. The height of the assumption of risk craze is epitomized by Dillworth v. Gambardella, 970 F.2D 1113 ( 2d Circ. 1992) which held that the Vermont sports injury statute providing for assumption of risks by the participants, applied in an action by one skier against another for a skier/skier collision, although this was a well-intentioned effort to allow the jury to determine which risks in a sport are inherent, obvious, or necessary to its participation. Green v. Sherburne Corp., 137 Vt. 310, 403 A.2d 278 (1979). Compare, Pitasi v. Stratton Corp., 968 F.2d 1558 (2d. Cir. 1992), which held that the jury was not barred from finding resort liable for injuries caused by negligent failure to warn.

Commentary: Manby, Assumption of Risk after Sunday v. Stratton Corporation: The Vermont Sports Injury Liability Statute and Injured Skiers, 3 Vermont L. Rev. 129 (1978). The author interprets the statute to allow negligence actions against area operators when the operator was negligent.

WASHINGTON: Negligence, primary duty is on the person skiing downhill. Statute: RCW 70.117.010 to -.040.

Cases: An exculpatory clause executed by parents on behalf of a child in a racing program is void as against public policy and did not bar child's cause of action. Scott v. Pacific West Mountain Resort, 834 P.2d 6 (Wash. 1992). Washington's ski statute imposes duties on skiers and ski area operators but does not relieve ski operators from all liability for their own negligence. Egede-Nissen v. Crystal Mtn. Inc., 606 P.2d 1214 (Wash. 1980); Codd v. Stevens Pass, Inc., 725 P.2d 1008 (Wash. App. 1986).

WEST VIRGINIA: Mixed negligence and inherent danger. Statute: W.Va.Code, 20-3A-1 to 20-3A-8(1984).

Cases: Hardin v. Ski Venture, Inc., 50 F. 3d 1291 (4th Circ. 1995). Hardin was skiing at Snowshoe Ski Resort. He skied through a plume of manufactured snow being sprayed by a snowmaking gun pointed up the hill. The artificial snow iced his goggles and he hit a tree, leaving him quadriplegic. He claimed that it was negligent for the ski area to point the snowmaking guns uphill. His claims were supported by Snowshoe's policy manual. The jury found there was no negligence. The verdict was affirmed. In the first Hardin opinion, the trial court sets out in detail the basis for allowing the jury to hear the trial, and denies summary judgment. Hardin v. Ski Venture, Inc., 1994 WL 113655 (N.D.W.V.a. 1994). Compare, Pinson v. Canaan Valley Resorts, ___ S.E.2d ___, 1996 WL 328356 (Sup. Ct. App. W. Va. 1996) in which the Supreme Court of Appeals of West Virginia held that, as a matter of law, a fall on an ungroomed slope was not actionable under the West Virginia ski act. In Lewis v. Canaan Valley Resorts, Inc., 408 S.E.2d 634 (W. Va. 1991) the court reviewed the West Virginia Skiing Responsibility Act. In view of the requirement of reasonable maintenance, the legislature did not intend to immunize ski area operators from liability for intentional torts or negligence, where either of these involves a violation of an operator's duty to maintain the ski areas in a reasonably safe condition. The legislature intended to immunize ski area operators only for the "inherent risks" of skiing which are essentially impossible to eliminate.

Commentary: With apologies to Virginia, for accrediting this to West Virginia, but to the author's knowledge, there is no skiing in Virginia. McKinzie, Ski Area Development after the National Forest Ski Area Permit Act of 1986: Still an Uphill Battle, 12 VA. ENVTL. L.J. 299 (Virginia Environmental Law Journal Association, 1993).

WISCONSIN: Inherent dangers reduce recovery as if contributory negligence. Statute: W.S.A. 895.525. A participant in a recreational activity (including skiing) accepts the inherent risks of which the ordinary prudent person is or should be aware. The risks so accepted reduce recovery as if it were comparative negligence. Recreational participants must control their persons and conduct themselves within the limits of their ability.

Cases: Yauger v. Skiing Enterprises, Inc., 196 Wis.2d 485, 538 N.W.2d 834 (Wisc. Ct. App. 1995). Child was killed while skiing after colliding with the concrete base of a lift tower. Previously, the child's father purchased a season pass that permitted his family to ski at the ski area for a discount price. The season pass contained an exculpatory clause in the ski pass application that relieved the ski area operator from liability for injuries that resulted from inherent risks of skiing. The Appellate court held that the exculpatory clause was valid and not against public policy. An exculpatory clause was enforceable as a matter of public policy even though the father was not aware of the exculpatory clause when he signed the ski pass application. The discount the family received by the season pass was sufficient consideration to support the exculpatory clause.

WYOMING: Inherent dangers are those which are inherent, obvious, or necessary to its participation. This is a question that ordinarily must be resolved by the jury. Statute: Recreation Safety Act, WYO.STAT. Sections 1-1-121 to -123 (Amended 1993). Section 1-1-123 provides:

(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, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

(b) 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.

(c) Actions based upon negligence of the provider wherein the damage, injury or death is not the result of an inherent risk of the sport or recreational opportunity shall be preserved pursuant to (the applicable comparative negligence statutes). WYO. STAT. Sections 1-1-109, 6-9-201. It is a misdemeanor to ski on a trail or slope marked as closed. W.S. 6-9-301(a) provides that skiers may not ski when impaired by alcohol or drugs. Section 301(b) provides that no person shall ski in reckless disregard of his safety or the safety of others.

Cases: Halpern v. Wheeldon, 890 P.2d 562 (Wyo. 1995) Inexperienced horseback rider was guest at a dude ranch; he was thrown from a horse and injured. Summary judgment for defendants reversed. The Supreme Court held that the then applicable version of the Recreation Safety Act provides that a person who takes part in any sport or recreational activity assumes the inherent risk of injury invokes the doctrine of primary assumption of risk, but when genuine issues of material fact exist, as to what dangers the participant assumed, then it is proper to present the question of the extent of defendant's duty, to jury. "We note that Wyoming's Recreation Safety Act is more concise than similar statutes in other states are. Many of our sister states' inherent risk statutes provide nonexclusive lists of risks which the Legislatures have determined are inherent to certain activities . . . When a court is presented with a case under that type of statute, it may compare the facts of the case to the list of legislatively defined inherent risks and decide, as a matter of law, whether the plaintiff's injury resulted from an inherent risk . . . The Wyoming Legislature did not provide the courts with that type of guidance. . . To that inherent risks are assumed by sports participants "as a matter of law" is of little solace to defendants when the question remains: what risks in a sport are inherent, obvious, or necessary to its participation, a question that ordinarily must be resolved by the jury. See also, Milligan v. Big Valley Corporation, 754 P.2d 1063 (Wyo. 1988). This wrongful death case was brought by the widow and son of a certified ski instructor who entered a winter "ironman" decathlon. The event included a race down a run at Grand Targhee. There were no hay bales, speed nets, gates, or race course preparations. Each participant signed a release. Milligan was found dead on the course, at the same place on the course where three other skiers lost control. It was thought that he lost control and hit a tree. Summary judgment was entered on behalf of the ski area, as the release was held to bar the claim. On appeal, the summary judgment was affirmed. The court held that the release form was a valid and enforceable agreement, and that the ski area operator had not acted with willful and wanton disregard for the safety of the participants. Worker's compensation applicable to ski area employees, member of race crew. Lerch, V. State of Wyoming ex Rel. Wyoming Worker's Compensation Division,714 P.2d 754 (Wyo. 1986).

Commentary: Hansen & Duerr, Recreational Injuries & Inherent Risks: Wyoming's Recreation Safety Act, 28 Land & Water L. Rev. 149(1993) (this article was explicitly discredited by the Court in Halpern).