Hitting a rock while skiing in Montana is an inherent risk of the sport. Other interesting statements by the court though create an interesting decision.
Posted: November 23, 2015 Filed under: Assumption of the Risk, Montana, Ski Area, Skiing / Snow Boarding | Tags: Inherent Risk Montana Skier Safety Act, Montana's skier responsibility statute, Moonlight Basin, ski area, skiing Leave a commentDecision looks at whether rocks are an inherent risk when they have been moved by the resort and determined the plaintiff was responsible for his injuries.
Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348
State: Montana, United States District Court for the District of Montana, Butte Division
Plaintiff: Brian Kopeikin, M.D.
Defendant: Moonlight Basin Management, LLC, D/B/A Moonlight Ba In Resort
Plaintiff Claims: for negligence sounding in premises liability and a claim for negligent hiring, training, supervision and management
Defendant Defenses: Montana Ski Safety Act
Holding: For the Defendant
Year: 2015
This is a basic case. The guest was skiing at the resort, hit a rock and was injured. The court looked at the facts, the Montana’s Skier Responsibility Statute and dismissed the case on a motion for summary judgment. What is interesting and educational about this case are the facts the court reports in its opinion.
Near the ticket booth where Kopeikin purchased his ticket is a sign warning skiers of unmarked hazards. Kopeikin is a very experienced skier, having skied at several ski resorts throughout the Rocky Mountain West over the past 36 years, and he had seen similar signs at other ski resorts warning patrons of unmarked hazards.
Skiing conditions at Moonlight on February 5, 2012, were generally good, with clear skies, calm winds, and temperatures near thirty-two degrees. However, it was a low snow coverage year, and Kopeikin acknowledges that prior to his accident he saw uncovered rocks on the sides of the ski runs. Rocks are prevalent at Moonlight.
Immediately before the entrance to Elkhorn, there is a sign indicating, again, that Elkhorn is designated a black diamond, or “most difficult,” run. As Kopeikin began skiing down Elkhorn, plainly visible grass and rocks could be seen poking through the snow on the side of the run.
The defendant filed a motion for summary judgment based on these facts, and the court granted the motion. Here is the court’s analysis in granting the motion.
Analysis: making sense of the law based on these facts.
The court first looked at the inherent risks and dangers of skiing. “The “inherent dangers and risks of skiing” are statutorily defined as “those dangers or conditions that are part of the sport of skiing“…” The court then compared this statement with the general requirements set forth in the Montana’s Skier Responsibility Statute.
However, the court also found the Montana’s Skier Responsibility Statute did not protect ski areas from their own negligence. “Montana’s skier responsibility statutes cannot be read to immunize ski resorts from their own negligent or intentional acts, because such an interpretation would violate Montana’s constitution.”
However, the stated purpose of Montana’s skier responsibility statutes is to “discourage claims based on damages resulting from the inherent risks of skiing.”
The court also looked at the ski area’s actions in warning its guests of the risks.
Moonlight warned generally of unmarked hazards. It posted multiple signs designating the run on which Kopeikin was injured a black diamond, or most difficult, run. With respect to the cat track, Moonlight had taken efforts to remove it and return the slope back to its natural condition.
In looking at the facts, the court concluded the plaintiff was responsible for his own injuries.
Furthermore, Kopeikin failed to negotiate the terrain safely and without injury. Notwithstanding his years of experience and expertise, he failed to ski in manner that avoided injury to himself and to be aware of the inherent dangers and risks of skiing.
The rock that the plaintiff hit was a natural rock, naturally occurring. (When you figure out how to make rocks let me know?) “…the rocks that Kopeikin collided with, like all the rocks on the Elkhorn run, were naturally occurring.”
The plaintiff argued the rocks were created when the ski area attempted to eliminate the cat track.
Without citation to any record evidence, Kopeikin asks the Court to infer that some of the rocks in the area where he fell unnaturally accumulated there through the process of removing the cat track back in 2007. The record evidence, however, establishes the opposite — the process of removing the cat track reduced the number of rocks in the area because many of the rocks were covered up during the cat track removal process.
The issue obviously is whether or not the Montana’s Skier Responsibility Statute. However, the statute specifically identifies rock as an inherent risk.
23-2-702 Definitions.
(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects; [Emphasize added]
Another fact pointed out by the court and obviously placed in the record were there had never been an accident at that location before. “Furthermore, with over 700,000 skier visits, there had never been another reported accident at the location of Kopeikin’s accident caused by a collision with rocks.”
The court also pointed out that the plaintiff was skiing the run he was injured on because he did not want to ski the run he had originally planned because of the rocks.
Because the rock the plaintiff encountered was an inherent risk of skiing under the Montana’s Skier Responsibility Statute, the motion for summary judgment of the defendant was granted.
Because Kopeikin’s injuries resulted only from the inherent dangers and risks of skiing and because Moonlight did not breach its duty of reasonable care, Moonlight is entitled to judgment as matter of law.
So Now What?
Remember Montana is a state that does not allow the use of a release and limits most defenses in most outdoor recreation activities. See States that do not Support the Use of a Release. This prohibition is set forth in the Montana constitution.
The decision makes sense; however, some of the statements in the decision were confusing.
Tracking where accidents happen can be good as in this case, or bad in most other cases. Remember foreseeability. If the accident which caused the injury was foreseeable, then the defendant might owe a duty to the plaintiff. Tracking accidents can prove foreseeability. If other accidents had occurred at this location, then having accident location information available would have proven that there was at least a problem and probably a place where the ski area might have owed a duty to its guests because of the number of accidents.
Tracking accidents can be good or be bad. Most times I would guess the tracking could be a problem not a help.
The argument that the rocks were not naturally occurring because they had been created in eliminating the cat track was very novel. The rock was there with, without or after the creation and removal of the cat track. A rock is a rock (I think?). Consequently, whether or not the rock was moved to the surface by actions of the ski area should not have been at issue. However, the court looked at the issue.
The final issue of interest was the statement from the court that the plaintiff had not skied the run safely. “…Kopeikin failed to negotiate the terrain safely and without injury.” Very rarely do courts state the plaintiff was at fault for their injury. Normally, the most the court states is that the defendant was not at fault and you can surmise from that statement the plaintiff was at fault.
However, to have the court state it is interesting and rare.
By the way, second post from Hawaii while on vacation. That is above and beyond for you guys, you owe me! 
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