dissenting:
Schweitzer contracted with World Wide Ski Corporation to allow Schweitzer to hold NASTAR1 amateur ski races at its ski resort near Sandpoint, Idaho. Schweitzer employees ran the NASTAR program and set up the course for the race. For several years prior to the accident in question, Schweitzer set the dual format race course2 with the finish lines in an open area to the right of the lift tower. However, for the race in which the accident happened, Schweitzer placed the finish fine to the left and above the lift tow*1496er.3 The tower was approximately 125 feet below the finish line. When two skiers were finishing the dual race, the skier on the left would turn to the left, while the skier on the right would turn to the right and be directly uphill from the tower at some point in the turn.
Although the NASTAR regulations specifically warn against the' danger of a steep finish,4 Schweitzer had placed the new finish line in an area where the slope was steeper, rather than flatter, making the right lane even more dangerous with its position above the tower.
Padding on the tower was two to four inches thick and four feet high. This padding was installed on the tower before the race to protect skiers, not necessarily ski racers.
Schweitzer placed net fencing in an “S” pattern immediately above the lift tower. Only ski poles secured the fencing. As described by John Pucci, the Ski Patrol Director at Schweitzer, who has worked on ski patrol for twenty-two years, the efficacy of the netting in stopping a fast-moving skier is questionable:
Q. Have you seen some skiers slide into [the type of netting used in front of the tower] and slow down?
A. Yes. Well, actually, you know, they’re just ski poles stuck in the snow, and if you’re going at any high rate of speed, it’s not going to slow you down a lot, but it will break the speed somewhat. Eventually, you’re going to stop because you’re going to have to pull out all these poles. You know what I mean?
If you hit the middle of that fence, say if that fence were stretched all the way out and you hit it, those poles where you impacted are going to pull out of the snow and you’re going to pull each one out as you — depending on how fast you were in the slide when you hit that fence. You may pull all the poles out before you stop or you may not, depending on the speed.
ER tab 59 at 9-10.
On the day of the race, the snow was hard-packed, which meant that a fallen skier would slide on the surface rather than sink into the snow and stop.
Collins himself summarized the adverse conditions that contributed to his accident:
The area below the finish line was steeper than the finish area itself and was not a long level runout. There was not room for two skiers finishing the race in close proximity to safely ski to the left of the lift tower. Most of the skiers that skied the race would not stop until they had skied below the lift tower that I struck. Snow conditions were such that I continued sliding at a rapid rate of speed on the snow after falling. I hit the web fencing that had been placed above the lift tower; however, the fencing did little to slow my speed, and the fencing wrapped around my body and pulled the ski poles that held the fencing in place out of the snow. I then struck the lift tower with the back of my neck, fracturing my cervical vertebrae and rendering me immediately a quadriplegic.
Id., tab 66 at 5-6.
The majority holds that because Collins was a skier, as defined in Idaho Code § 6-1102(6) (1990), and because he expressly assumed the risks that result from participating in the sport of skiing, defined to include *1497injury caused by a lift tower, he cannot recover.
I.
Idaho legislative policy is clear:
1)It recognizes that skiing is a hazardous activity even when conducted in the absence of negligence. It defines those risks which the skier expressly assumes as:
[Ijnjury to person or property which results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain;' surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth-or debris, lift towers and components thereof; utility poles, and snowmaking and snowgroom-ing equipment which is plainly visible or plainly marked in accordance with the provision of section 6-1103, Idaho Code.
Idaho Code § 6-1106.
2) It imposes a duty on the operator “[n]ot to intentionally or negligently cause injury to any person; provided, that except for” certain statutory duties “the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are not limited to those described in section 6-1106, Idaho Code.” Idaho Code § 6-1103.
3) It absolves an operator from liability provided “that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.” Id.
The Idaho statute expressly requires the skier to assume “the risks inherent in the sport of skiing” but it says nothing about assuming the risk of the operator’s negligence in laying out a dangerous race course. The statutory assumption of risk is not a defense to the operator’s negligence; rather, by force of the statute a skier assumes risks inherent in the sport of skiing “which are essentially impossible to eliminate by the ski area operation[J” Idaho Code § 6-1101. Certainly, it was not “essentially impossible to eliminate” the risk of dangerously positioning the finish line of a race course. Therefore, an operator is not absolved from liability for laying out a course that creates an unreasonable hazard. Here, the operator clearly generated the risk by the placement of a finish line that aimed one of the two racers directly at the tower.
II.
The Idaho Code provides that there is no standard of care, and thus no negligence, if the operator undertakes to diminish any risk inherent in the sport of skiing:
[T]he operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include but are' not limited to those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator, in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.
Idaho Code § 6-1103(10). However, Idaho Code § 6-1103(10) specifically imposes a duty on the operator “not to intentionally or negligently cause injury to any person[.]” See Northcutt v. Sun Valley Co., 117 Idaho 351, 354-55, 787 P.2d 1159, 1162-63 (1990) (“Without a duty, there can be no negligence.”).
In Northcutt, the operator attempted to diminish a risk inherent in skiing by posting a warning sign at the confluence of several runs, as required by the statute.5 Northcutt hit the sign after a collision with another skier. Because the operator was engaged in an activity to fulfill a duty described in section 6-1103, the Idaho Supreme'Court held there was ho negligence in constructing a sign made from rigid wooden materials rather than materials that would have given way *1498when Northeutt hit it. 117 Idaho at 355, 787 P.2d at 1163.6
I do not argue with the proposition that under the Idaho Code, if a skier in the normal course of skiing hits a tower and there is no other issue of the operator’s negligence, the operator is not liable. The skier assumes that inherent risk of skiing. I do not believe, however, that the Idaho legislature intended to protect from liability an operator who places the finish line of a race course near an inadequately padded tower, so that ski racers are on a direct course toward the tower on a steep slope with only the flimsiest of nets to protect them. Certainly, the operator had control over where to put the finish line and what kind of net to erect to protect the racers. If the operator acted negligently, the racer did not assume the new risk.
This position is not inconsistent with Northeutt. In Northeutt, the Idaho Supreme Court said that the duties enumerated in Idaho Code § 6-1103(l)-(9) and Idaho Code § 6-1104 contained all of the duties of an operator to eliminate, alter, control, or lessen the inherent risks of skiing. Those duties are:
(1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights which shall be in operation whenever the vehicles are working or are in movement in the skiing area;
(2) To mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snow-making operations and located on ski slopes and trails;
(3) To mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty; and those slopes, trails, or areas which are closed, shall be so marked at the top or entrance;
(4) To maintain one or more trail boards at prominent locations at each ski area displaying that area’s network of ski trails and slopes with each trail and slope rated thereon as to it [its] relative degree of difficulty;
(5) To designate by trail board or otherwise which trails or slopes are open or closed;
(6) To place, or cause to be placed, whenever snowgrooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope;
(7) To post notice of the requirements of this chapter concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices;
(8) To provide a ski patrol with qualifications meeting the standards of the national ski patrol system;
(9) To post a sign at the bottom of all aerial passenger tramways which advises the passengers to seek advice if not familiar with riding the aerial passenger tramway.
Idaho Code § 6-1103(l)-(9).
Every ski area operator shall have the duty to construct, operate, maintain and repair any aerial passenger tramway in accordance with the American national standards safety requirements for aerial passenger tramways.
Idaho Code § 6-1104.
According to the court, not only does the operator have no other duties to eliminate, alter, control, or lessen the inherent risks of skiing, but if a ski operator undertakes to discharge any of the duties described, it may not be held to be negligent since the operator has no duty to accomplish the activity to any standard of care. Northcutt, 117 Idaho at 355, 787 P.2d at 1163.
The court also held that an operator could be negligent and thus liable when engaged in *1499an activity that does not relate to eliminating, altering, controlling, or lessening the inherent risks of skiing: “Construing all the provision of the Act together to give meaning to each portion, we interpret the duty of a ski area operator not to cause injury negligently to refer to that failure to follow ... any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing.” Id.
The negligence complained of here is not that the appellees violated any duty imposed by Idaho Code § 6-1108(l)-(9) or § 6-1104. If activities other than those enumerated in section 6-1103 and section 6-1104 are undertaken, the operator has a duty not to cause injury negligently, unless those activities are undertaken to eliminate, alter, control, or lessen the inherent risks of skiing. Schweitzer was not trying to fulfill a duty imposed by section 6-1103 or section 6-1104 nor do appellants claim that Schweitzer violated any of those statutory duties.7
Therefore, there is a material issue of fact as to whether Schweitzer, in setting up the race course, was otherwise attempting to eliminate, alter, control, or lessen the inherent risks of skiing. A jury could find that the setting up of the course, including the establishment of the location of the finish line and the deployment of a net, was not done to eliminate, alter, control, or lessen the inherent risks of skiing. If a jury found that the race course was not set up for that purpose, then according to the Idaho statutes and Northcutt, the ski area operator had a duty not to negligently cause injury to the appellant. I would reverse and remand for trial.
. NASTAR is the acronym for “National Standard Race."
. The dual format race involves two courses set side by side and set close to each other with two skiers skiing at the same time. The dual course allows the skier to compete with his own time as well as the other skier.
. Collins states:
On the date of the accident, January 31, 1988, the lower portion of the dual NASTAR slalom race course had been moved from the location where it had historically been located for the past three ski seasons and earlier that ski season. The remaining portion of the ski race course had not been changed. I looked at the course on the way up the hill; however, I presumed the race course was in the same location as in the past and did not notice that the end of the race course was different. The small hut located at the finish line which was used by the Schweitzer employees to time the finish appeared to be located in the same area.... There were no signs advising that the run had been changed.
Appellant’s Excerpt of Record ("ER") tab 66, para. 8 at 3-4.
. NASTAR regulations state:
Make sure that the finish area has a long, level, well marked and fenced off "runout” to avoid collisions. Continually remind racers to move out of the finish area.
ER tab 67, para. 8 at 16 (emphasis added).
. Idaho Code § 6-1103(3) requires that the operator "mark conspicuously the top or entrance, to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty.”
. Likewise, two other cases the majority cites, Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 428 N.W.2d 742, 744 (1988), appeal denied, 432 Mich. 865 (1989) (skier struck a tree on the ski slope) and Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4 (1st Cir.1991) (skier struck netting on the side of a trail used to mark hazards), are distinguishable because they involve inherent risks of skiing, not operator negligence.
. The appellees state: "Appellants do hot claim that Schweitzer violated any of the duties listed in subsections (1) through (9).” Appellees’ Brief at 10.