With great powder comes great responsibility. Yet according to a Wyoming district court, and later affirmed by the U.S. Court of Appeals for the Tenth Circuit, this may not actually apply in all cases. In Standish v. Jackson Hole Mountain Resort Corp., No. 20-8045 (10th Cir. May 14, 2021) the appeals court affirmed that Jackson Hole Mountain Resort Corporation ("JHMR") was not liable for the unfortunate, serious injuries sustained by Thomas Standish ("Plaintiff") after he struck a snow-covered tree stump while skiing on one of the resort's off-piste, but permitted trails, as the plaintiff was deemed to have assumed certain risks that are inherent to skiing.

In January 2017, Thomas Standish and then-fiancé Megan Keiter were enjoying the ski slopes at the Jackson Hole Mountain Resort. Being avid skiers, the couple finished a few runs on the groomed trails before deciding to take a more adventurous run on an off-piste trail. Off-piste trails are ungroomed and are typically reserved for more advanced skiers and JHMR did not represent to Standish that the particular run would be free of obstacles. Indeed, the back of their ski tickets contained explicit disclaimers stating that:

                        "By using this ticket, the holder acknowledges that    participation in any and all winter recreation activities at [JHMR], including without limitation: skiing…involves SUBSTANTIAL AND INHERENT RISKS…. The holder agrees that the following risks without limitation are "inherent" as defined in the Wyoming Recreation Safety Act  (W.S. § 1-1-121 et seq.): …dangerous and/or changing weather or snow conditions; … dangerous encounters with marked or unmarked rocks, stumps, trees…."

Plaintiff, the more experienced of the two, led the way down the trail, which was seemingly a skier's paradise covered in freshies – over the previous four days, the mountain had received almost four feet of fresh powder. This large amount of snow, however, had concealed a six and a half foot tree stump by about two inches of snow. JHMR managers had partially cut this tree down at some point in the winter, leaving a tall stump, to mitigate a falling tree hazard. Plaintiff, unaware of the hazard, collided with the top of the tree stump and suffered multiple fractures in his leg. The resulting surgery required fourteen screws, two metal plates, and a bone graft. The avalanche continued as he experienced further health issues and personal business losses due to his injuries. JHMR completely removed the tree stump following the accident. 

Two years later, in January 2019 the plaintiff (along with Ms. Keiter) filed suit in the District of Wyoming alleging negligence by JHMR. In response, JHMR moved for summary judgment, arguing that: (1) Plaintiff's injuries occurred due to the inherent risks of skiing, and therefore JHMR did not owe him a duty under the WRSA; (2) there is no evidence in the record to establish that cutting down the tree increased the inherent risk of injury so as to establish JHMR's liability; and (3) Plaintiffs' claims were barred by the exculpatory agreement on the back of the ski ticket. In July 2020, the district court granted JHMR's motion and ruled that Wyoming law provided immunity from the inherent risks of skiing, including unmarked objects on ungroomed runs—even objects like trees that have been partially cut. The plaintiff subsequently filed an appeal with the Tenth Circuit.

In order to bring a claim of negligence, a plaintiff must sufficiently assert that: (1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the duty of care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is compensable by money damages. But, at the time of this injury, the Wyoming Recreation Safety Act ("WRSA") governed and provided that recreational providers are insulated from some types of personal injury claims. Thus, as the court noted, WRSA generally codifies the common law concept of primary assumption of risk and is intended to limit the duty (the first prong of a negligence claim) that a recreational provider owes to a participant, such that if a participant has assumed certain risks that are inherent to the activity, the recreational provider typically owes no duty for such inherent risks or no duty to eliminate, alter or control the inherent risks of an activity. So the difficult question – certainly no bunny slope for the court – became, whether a tree that has been cut, left behind as a tall stump and submerged by recent snow on an off-piste trail, should be considered an inherent risk of skiing or whether JHMR's failure to completely remove the stump substantially enhanced the risk for skiers.

The WRSA defines inherent risk as, "those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity." However, it does not list examples of inherent risks, leaving it to courts to decide under a "reasonableness" standard.  When making the decision of what a reasonable person would view as an inherent risk, the court peaked at analogous statutes in the nearby states of Colorado, New Mexico, and Utah. Each of these statutes contains examples of inherent risks in skiing, including: trees and forest debris, subsurface conditions, and man-made structures.

Plaintiff had argued, among other things, that by cutting the tree down to its tall stump and not fully removing it – even on an off-piste slope – the resort had created a unreasonable hazard that was beyond the typical inherent risks of skiing. However, the Tenth Circuit agreed with the lower court and gave Thomas the cold shoulder as well, affirming the ruling of summary judgment to the resort. The Tenth Circuit recognized the multitude of dangers and weather-created hazards involved in skiing and concluded that "encountering a snow-covered stump in an ungroomed area is an inherent risk of alpine skiing." The appeals court reasoned that cutting and managing trees were necessary for the creation of ski runs and trail upkeep. While doing this, the ski-area managers need to make judgment calls about whether and how to cut a tree that has become a hazard. The court stated that whatever the reason for leaving the high tree stump (e.g., high snow-level during winter or the particular hazard of that tree), the ability to mitigate hazards and remove trees that pose a threat (or to create new terrain) is, "essential to managing a ski area."  The court also noted that the accident occurred in an off-piste area where unmarked obstacles are "inevitable" and was due in large part because of the depth of the fresh snow that shrouded the stump (any less snow and plaintiff would have seen the tree; any more snow and he would have skied over the top of it). Speaking to policy, the court stated ski-area managers simply must make judgment calls, sometimes imprecise, about whether or how to remove tree hazards in a changing winter landscape. Staying on course, the court reasoned that plaintiff, "knew that unmarked obstacles could and would exist in this off-piste area, and he chose to proceed down this more-advanced run."

The court also noted a critical distinction between JHMR's failure to control inherent risks and actions affirmatively enhancing risks that already exist, as only the latter is actionable. It found that what made the stump's height hazardous was that day's snow level (an inherent risk of mountain recreation) and plaintiff failed to offer any evidence that cutting the tree at that particular height affirmatively enhanced the risk or placed it beyond the inherent risk that already existed. The judge also pointed to the public policy implications of holding that a ski resort has a duty to fully remove stumps or cut trees to a certain level. Such a duty, he wrote, "would disincentivize recreational managers from attempting to mitigate hazards for their guests . . . if a fallen tree in an off-piste area is an inherent hazard of skiing, and cutting it off below the break creates a non-inherent risk, a ski area manager might decide to simply leave the fallen tree so as not to potentially incur liability."

The court finished its run on both skis, finding no liability: "Standish's accident was the result of an unfortunate confluence of a stump, an ungroomed run, and the spectacular snow levels of the previous days. The combination of these factors is an inherent risk of skiing, a sport as thrilling as it can be risky. And the WRSA reflects this by limiting the duty owed by an entity offering access to such a sport." As a next step, Thomas could petition for a rehearing en banc or attempt to bring the case to the Supreme Court. While those options are unlikely, plaintiff may yet decide to take one last run at an appeal before hanging up his skis.