Brewer v. Ski-Lift, Inc.

No. 87-467
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988

RONALD J. BREWER,
Plaintiff and Appellant,
-vs-
SKI-LIFT, INC., a Montana corporation,
Defendant and Respondent.

APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Meagher,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allan M. McGarvey; McGarvey, Heberling, Sullivan and
McGarvey, Kalispell, Montana
For Respondent:
Norman L. Newhall, 111; Linnell, Newhall and Martin,
Great Falls, Montana

Submitted: May 24, 1988
Decided: September 26, 1988

Clerk
M r . J u s c i c e John Conway H a r r i s o n d e l i v e r e d c h e O p i n i o n o f c h e
Courc .
Plaintiff, Ronald Brewer (Brewer), appeals a summary
judgmenc granced in favor of defendanr, Ski-Life, Inc.
(Ski-Life) , on Occober 1 4 , 1987, i n che Fourreenrh J u d i c i a l
Discricc, Meagher Councy, Moncana. We r e v e r s e and remand.
On December 26, 1983, plaintiff Brewer suffered an
i n j u r y w h i l e s k i i n g a c "Showdown," a recrearional ski area
owned by Ski-Life, a Monrana corporation. Brewer concends
his injury was caused by che negligence of che ski area
operacor. Brewer was s k i i n g c h r o u g h powder snow when one s k i
came o f f and he f e l l . H e c l a i m s h i s f a l l was a n i n c e n c i o n a l
response afcer he realized he had losr one ski. Upon
f a l l i n g , Brewer s u s e a i n e d i n j u r i e s which h e c o n r e n d s i n c l u d e
f r a c e u r e d r i b s , a n a g g r a v a c e d d e g e n e r a c i v e back c o n d i e i o n and
a hemopneumochorax of che righr lung. Brewer scares h i s
i n j u r i e s r e s u l c e d b e c a u s e h e f e l l on a Cree srump which was
j u s c b e n e a t h t h e snow and n o t v i s i b l e . H e c o n t e n d s c h e scump
was removed from i r s n a r u r a l p o s i c i o n i n c h e c o u r s e o f s k i
hill rnaincenance and placed in a dangerous location.
Furcher, h e c o n c e n d s c h e scump was c u r n e d u p s i d e down w i r h
s h a r p r o o c s s r i c k i n g upward and c h a r p r o p e r rnaincenance would
have eliminaced such a hazard.
Following discovery proceedings, Ski-Life filed a
mocion for summary judgmenc and che mocion was granced
O c r o b e r 1 4 , 1987. The D i s r r i c r Courc c o n c l u d e d c h e judgrnenc
would favor defendanr Ski-Lifr even i f Brewer's f a c e s were
assumed r o be crue. The D i s r r i c r Courc r e a s o n e d c h a r c h e
circumscances o f che accident, as relared by Brewer, were
c o n e r o l l e d by c h e " S k i e r R e s p o n s i b i l i r y " s c a c u r e s . Secrions
23-2-731 c o -737, MCA. The D i s c r i c c C o u r t noced c h a r , by
scacuce, a skier i s barred from r e c o v e r y from a ski area
o p e r a r o r i f t h e s k i e r s u f f e r s any i n j u r y a s a r e s u l r o f " a n y
risk inherent in che spore of skiing ... " Seccion
23-2-737, MCA. Relying on S 23-2-736, MCA, che Discricc
Coure scaced such risks include:
a. Variations in cerrain, surface or
subsurface snow condicions, rocks, crees
and ocher forms of foresc growth or
debris.
b. Maineenance of che skier's concrol of
speed and course ae all cimes whi1.e
skiing.
c. Collisions wich an objecc while
skiing.
The Discricc Courc held char assuming all of Brewer's faces
were crue, che injury resulced from risks inherent in che
sporc of skiing. Therefore, no genuine issue as co any
macerial face exisced and defendanc Ski-Life was enrieled co
summary judgmene.
Three queseions are raised for our considerarion on
appeal:
1. Do che Moncana "Skier Responsibilicy" scaeuces
violace conscicucional guarancees of equal proceccion?
2. Are che Moncana "Skier Responsibilicy" statures
unconscicucionally vague?
3. Assuming the Moncana "Skier Responsibilicy"
seacuces are held conscicucional, did che Discric-c Courc
properly grant summary judgmenc in favor of defendanc?
Issue 1: Do che Moncana "Skier
Responsibilicy" scaeuces violace
conscicucional guarancees of equal
proceccion?
Brewer concends char che skier responsibility scaeuces,
5 5 23-2-731 co -737, direccly conflict wich Arcicle 11, Sec.
16 of che Moncana Conscicucion, guaranteeing che righc co
full legal redress. Brewer primarily accacks $ 23-2-736,
MCA, and assercs char, wichouc any showing of a compelling
srace inceresc, che scarure denies a person's fundamental
righc ro full legal redress and cires Pfosr v. Scare (Monr.
1985), 713 P.2d 495, 42 Sc.Rep. 1957; and, Whire v. Srace
(1983), 203 Monr. 363, 661 P.2d 1272. Plainriff also relies
on Madison v. Yunker (1978), 180 Monr. 54, 589 P.2d 126
(holding a liable srarure unconscirucional because ic
effecrively failed ro provide a sufficienr remedy); and,
Corrigan v. Janney (Monr. 1981), 626 P.2d 838, 38 Sr.Rep. 545
(holding char ic would be unconsrirucional "to deny a cenanr
all causes of accion . . . arising our of the negligenr
management of renral premises by a landlord"). The crux of
Brewer's argumenr is char rhe skier responsibiliry scarures
absolve a ski area operacor from all liabiliry, even if a ski
injury is caused by rhe operator's negligenr or reckless
behavior.
Ski-Life responds rhac alrhough the Scare Consrirurion
guaranrees a righr ro full legal redress, che Legislarure
rerains che power ro define rhe scope and excenc of char
righc. Significanrly, Ski-Lifr mainrains rhac the skier
responsibiliry srarures do nor leave Brewer wirhour a remedy
for aces of negligence by rhe operacor. In making this
argumenc Ski-Lifr relies on § 23-2-731, MCA, which scares, in
parr, "[rlhar chere are inherenr risks in rhe sporE of skiing
rhae are essentially impossible ro eliminate by rhe ski area
operator bur rhac should be known by rhe skier." Ski-Lifr
conrends char chis scaremenr of purpose creates a siruacion
where rhe skier only assumes "risks inherenr in che sporr of
skiing. " This argumenr is made despire che fact char
§ 23-2-736(1), MCA, specifically requires rhar a skier assume
"rhe risk and all legal responsibilicy for injury ro himself
or loss of properry char resulrs from parriciparing in rhe
spore of skiing by virrue of his parriciparion."
Alrhough Brewer inirially frames chis issue by alleging
an unconscirurional res~ricrion on his righc co full legal
redress, here rhe courr denied him any redress. Borh parries
also address che protection aspeccs of the skier
equal
responsibilicy scacu-ces. This case is not a denial of full
legal redress, buc rather a case of denial of any redress and
cherefore appropriately decided on the conscitucional basis
of denial of equal proceccion. Therefore, we choose co begin
our analysis on chis basis. The conscicucional guaraneee of
equal proceccion requires chae all persons be ereaced alike
under like circumscances. Amend. X I V , 5 1, U.S. Consc.;
and A r . 1 1 Sec. 4., Monc.Conse. The foundacion of chis
discussion relaces co che face chac che scarutes classify
skiers and creae ehem differently chan chose who engage in
ocher spores accivicies which are inherenrly dangerous. The
scacuces require skiers alone co assume che risk of injury.
Addieionally, che scaeuces classify ski area operators in
cheir own class, and allow chem cercain righes not enjoyed by
ocher recreational businesses.
In considering che conscicucionaliey of che skier
responsibilicy scacuces, we muse begin by presuming chae che
scacuces are conscieueional. Ic has long been che general
rule of chis Courc char scacuizes carry a presumption of
conscicucionalicy. See, e.g. Goodover v. Deparcmene of
Adminiseration (1982), 201 Monc. 92, 95-96, 651 P.2d 1005,
1007. Generally, "whenever chere are differing possible
incerprecacions of [a] scacuce, a consricucional
incerprecacion is favored over one chae is nor." Deparcmen~
of Scace Lands v. Perribone (Mone. 1985), 702 P.2d 948, 956,
42 Sc.Rep. 869, 878.
Professor Lawrence H. Tribe, in his creaeise American
Conscitucional Law, (2nd. Ed. ) , page 1440 speaking on "equal
prorecrion" noces:
[TIo provide concenc, equal proceccion
came co be seen as requiring "some
racionalicy in che nacure of che class
singled ouc," wieh "racionalicy" rested
by the classification's ability to serve
che purposes inrended by che legislarive
 or adminisrracive rule: "The courcs muse
reach and derermine che quesrion whether
che classificarions drawn in a scacure
are reasonable in light of ics purpose
... I1

Cicing, McLaughlin v. Florida (1964), 379 U.S. 184, 191, 85
S.Cc. 283, 288, 13 L.Ed.2d 222, 228.
Ar page 1441 Professor Tribe refers ro cwo Supreme
Courc cases, Zobel v. Williams (1982), 457 U.S. 55, 102 S.Cr.
2309, 72 L.Ed.2d 672, and Hooper v. Bernalillo Counry
Assessor (1985), 472 U.S. 612, 105 S.Cr. 2862, 86 L.~d.2d
487. These rwo cases involved an irracional disrinccion made
becween srace residenrs -- rhe first being for the paymenc of
monies co Alaska residents and the second ro rhe New Mexico
rax exemption for chose who had served in the Viernam War and
who moved ro New Mexico by a specified dare. The rarionale
of rhose cases is appropriare here.
In Hooper, che Courr speaking rhrouqh Chief Juscice
Burger, stated a good general rule:
When a scare disrribures benefics
unequally, che disrincrions ic makes are
subjecc co scruriny under rhe Equal
Proreccion Clause of che Fourceenrh
Amendmenr. Generally, a law will survive
char scruriny if rhe discincrion
rarionally furthers a legirimare scare
purpose. .. [a]s in Zobel, if che
srarurory scheme cannor pass even che
minimum rationalicy resr, our inquiry
ends.
Hooper, 472 U.S. ac 618, 105 S.Cr. ar 2866, 86 L.Ed.2d at
493.
Our initial aim is to analyze che purpose of che skier
responsibiliry scacuces wirh che above conscicurional
principles in mind. In enacring che srarures che Legislacure
offered a specific sraremenc of purpose:
Ir is recognized char rhere are inherent
risks in the spore of skiing rhat are
essenrially impossible co eliminace by
 rhe ski area operacor bur rhac should be
known by che skier. Ic is rhe purpose of
23-2-731 chrough 23-2-737 ro define chose
areas of responsibilicy and affirmative
acrs for which rhe ski area operaror is
liable for loss, damage, or injurv and
chose risks for which che skier expressly
assumes or shall be considered co have
volunrarily assumed che risk of loss or
damage and for which rhere can be no
recovery.
Secrion 23-2-731, MCA. In general rhe purpose was ro more
specifically define che seandards of care and ducy ro be
observed by boch che skier and che ski area operacor. Such a
purpose is certainly legirimare and is a proper area for
legislarion.
There is a legirimace scare inreresc in prorecring che
ski indusrry from frivolous lawsuirs and liability over which
rhe operacor has no conrrol. This leads us KO che analysis
of che rroublesome porcion of che skier responsibilicy
sea-cures. Seccions 23-2-736 and 23-2-737, MCA.

23-2-736. Skier's assumption of
--
-duties. (1) - ski=
responsibiliry - A
assumes - risk - - legal
che and all
responsibiliry - injury - himself or
for eo
- - properry char resulcs from
loss of
arciciparing in rhe spore - skiing by
of
:irrue - h E ~areiciparion.
of The
assurnpcion o f r i s k and responsibiliry
includes buc is nor limiced co injury or
loss caused by the following: variations
in rerrain, surface or subsurface snow or
ice condirions, bare spors, rocks, trees,
ocher forms of foresc growch or debris,
life rowers and componenrs chereof, pole
lines, and plainly marked or visible
snowmaking equipment.
(2) A skier is responsible for knowing
rhe range of his own abilicy co ski any
slope, crail, or area and for skiing
wirhin che limirs of his abiliry, skiing
only on designared slopes and crails,
 maintaining conrrol of speed and course
ac all rimes while skiing, heeding all
posted warnings, and refraining from
acring in a manner thac may cause or
conrribuce to rhe injury of anyone. The
responsibilicy for collisions w i r h a
werson or obiecrwhile skiina is rhg
L J
& -
- -
-
- - - -

responsiElicy - - person or persons
of rhe
- - - responsibilicy -f - -
and noc rhe o che ski
area operacor.
(3) A person who is skiing may nor place
an objecr in rhe ski area or on che
uphill crack of a passenger cramway char
may cause a passenger or skier ro fall,
cross che rrack of a passenger tramway
excepc ar a designaced and approved area,
or if involved in a skiing accidenr,
deparr from che scene of the accidenr
wirhour leaving personal idenrificacion
before norifying rhe proper aurhorieies
or obcaining assistance when rhe skier
knows char a person involved in rhe
accidenr: is in need of medical or ocher
assistance.
23-2-737. Effecc of comparative
negligence. ~ocwic~scanding 9
comparacive negligence - - -
law in chis scare,
- person is barred from recovery - - a
a . . 7
- -
from
- - operacor - - - or damage
ski area for loss
resulting from any - inherenc - -
risk in che
spore of skiing as described - 2 3 - 2 - 7 3 6 .
in
(Emphasis added.)
In subscance rhe underscored porcions provide chat a
skier assumes che risk and all legal responsibiliry for
injury ro himself char resulcs from parciciparing in skiing;
and char che responsibility for collisions wirh an objecc is
the responsibiliey of che skier and nor rhe responsibiliey of
rhe ski area operaror; and finally char norwirhsranding rhe
compararive negligence law of Monrana, a skier is barred from
recovery from a ski area operaror for loss from any risk
inherenc in the spore of skiing, chereby eliminating che
theory of comparative negligence. A fair reading of che
underlined porrions of rhe above scaeutes prohibirs rhe skier
from obcaining legal recourse againsr an operaror even if rhe
injury is proximarely caused by rhe negligent or even
inrencional acrions of rhe operaror.
Counsel for Ski-Lifr urges us co incerprec § 23-2-736,
MCA, in lighr of rhe purposes scaced in 5 23-2-731, MCA, and
ro chereby conclude char a skier does noc assume che risk of
operacor negligence because char is nor a risk inherenc in
rhe sporr of skiing. We are unable co reach char conclusion
afrer a careful review of che above underscored language in
$5 23-2-736 and 23-2-737, MCA.
Alrhough che scace has a legirimace inreresc in
proceccing rhe economic vicalicy of rhe ski indusrry, chere
is no rarional relarionship becween rhis purpose and
requiring chae skiers assume all risks for injuries
regardless of rhe cause and regardless of che presence of
negligence or incenrional conduct on che parr of che ski area
operacor . As we read rhe above underscored porrions of
§ $ 23-2-736 and 23-2-737, MCA, we conclude char chese
porrions of che sracures are needlessly over broad and
clearly go far beyond rhe scared purposes of the srarures as
see forch in § 23-2-731, MCA. Applying che resr referred co
in Hooper, we conclude char the underscored porrions of chese
cwo srarures cannoc pass even a minimum rarionalicy cesr.
These provisions are noe relared ro inherenr risks in che
spore of skiing which are essentially impossible eo eliminare
by che ski area operator as scaced in § 23-2-731, MCA. We
conclude char rhese provisions fail to pass rhe minimum
racionaliry cesc for che following reasons: chere is norhing
in rhe legislacion ro suggesc a reason ro require char a
skier assumes rhe risk and legal responsibiliry for injury KO
himself and for collisions and chac chere is no
responsibiliry on rhe pare of che ski area operacor. Such
provisions eliminace any rheory of negligence on che parr of
che ski area operator. This concradicrs $ 27-1-701, MCA,
under which a person is responsible for an injury resulting
from his wane of ordinary care. In a similar manner, che
underscored porcion of $ 23-2-737, MCA, fails co meec che
minimum racionalicy resc in providing char nocwichscanding
che comparacive negligence law of Moncana, a person is barred
from recovery from a ski area operacor for loss from any risk
inherenr in che sporc of skiing. In effecc rhis appears co
be an accempc eo go back co che old law of negligence which
provided in Moncana chac a person who was in any way
concribucorially negligenc was barred from recovery. Again
chere is a coral absence of a minimum racional basis for
concluding char such a provision is required in connection
wich skiing when such an acciviry is compared with che
various ocher accivicies which in themselves are also co be
classed as inherently dangerous, buc in which the comparaeive
negligence laws are held co apply.
We therefore conclude chac che above quoced seccions of
S 23-2-736(1), MCA, and S 23-2-737, MCA, violace rhe
conscicucional guarancee of equal proceccion and we
accordingly hold chem invalid, such invalid provisions being
as follows:
23-2-736. Skier's assumption of
-- duries. ( I ) A ski=
responsibility - - -
assumes rhe risk and all legal
responsibiliey for injury co himself or
loss of properey chac resulcs from
parcicipacing in rhe spore of skiing by
vircue of his parcicipacion. . .
(2) [ T I he responsibiliey for collisions
wich a person or objecc while skiing is
che responsibilicy of the person or
persons and nor che responsibiliey of che
ski area operaror. ..
23-2-737. Effecc of comparative
negligence. ~ocw=hsrandin~ any
comparaeive negligence law in chis scace,
a person is barred from recovery from a
ski area operaror for loss or damage
 resulting from any risk inherent in the
sport of skiing as described in 23-2-736.
By way of suggestion and for the purpose of guiding the
District Court, the following statement could be implemented
as a jury instruction in this case as a replacement for the
now invalid first sentence of 5 23-2-736(1), MCA:
A skier assumes the risk and all legal
responsibility for injury to himself or
loss of property resulting from the
inherent risks in the sport of skiing
that are essentially impossible to
eliminate by the ski area operator.
This statement is in conformity with the stated purpose of
the skier responsibility statutes and would not require all
skiers to assume all risks no matter what the cause. At the
same time, it would seem to accomplish the intent of the
statutes. Further, we invite the Legislature to reconsider
these statutes and enact appropriate additions or changes
which are in conformity with this opinion.
In view of our determination of this first issue, we
need not determine the remaining two issues. Here the
statutory scheme fails to pass the minimum rationality test.
We reverse and remand to the District Court for further
considerations of defendant's motion for summary judgment in

We concur: / I
 "
Honogable J a c k L. G r e e n ,
D i s t r i c t Judge, s i t t i n g f o r
M r . C h i e f J u s t i c e J . A . Turnage

D i s t r i c t Judge, s b M i n g f o r
Mr. J u s t i c e L . C . ~ u l b r a n d s o n
Mr. Justice R.C. McDonough dissents as follows:

A statute might be unfair but not unconstitutional. Our
"skier responsibility" statute, S 23-2-736, MCA, does not
violate the constitutional guarantee of equal protection.
The majority opinion points out the statute classifies
skiers separately and treats them differently than those who
are engaged in other sports activities which are inherently
dangerous, and places the ski area operators in a separate
class and allows them certain rights not enjoyed by other
recreational businesses. The equal protection question
becomes, then, does the statute have some rational basis in
fact and bear a rational relationship to legitimate state
objects? Or, are the skiers being treated differently on a
basis of a criteria wholly unrelated in a rational way to the
objectives of the statute?
The objective of (5 23-2-736, MCA, is to define the
duties and responsibilities of the skier and the ski area
operator because of the inherent risks in the sport of
skiing. Statutes in this part also define the responsibility
of the ski lift operators and of the lift passengers. Would
anyone challenge the rationality of such provisions or of
provisions governing roller coasters and passengers? Risk
distinctions between sports exist, and rational choices based
on the perceived distinctions are made everyday. Sky diving
and bull riding are to some people considered dangerous,
while football is not. The legislature should be free to
recognize the degrees of such risk and impose duties and
obligations where needed.
The classification here is proper because it includes
all who possess the characteristics or attributes which are
the basis of the classification. Skier's differences from
those excluded (such as sky divers and bull riders) are
substantial and are related to the purpose of this
legislation.
Legitimate purposes and objectives here are safety,
prevention of frivolous lawsuits, and reduction of liability
of the ski area operators because of the uncertain
potentially great ski area operator's liability. These
reasons are valid as a basis for the classification. See
Pizza v. Wolf Creek Ski Development Corp. (Colo. 1985), 711
P.2d 671; Grieb v. Alpine Valley Ski Area, Inc. (Mich. App.
1986), 400 N.W.2d 633.
The majority essentially does not agree with the
legislature as to some of the delineated duties and
responsibilities. This is not a basis for violation of the
equal protection clause.
The proposed instruction of the majority, under their
reasoning, would violate the equal protection clause by
shifting the burden of responsibility to the ski area
operator for all risks that are not essentially impossible
for him to eliminate. It substitutes the Court's judgment
for that of the legislature in violation of S 1-1-108, MCA.
I concur, however, with the majority as to the
unconstitutionality of S 23-2-737, MCA, "Effect of
comparative negligence", but for another reason. It clearly
violates Section 12, Article V of the 1972 Montana
Constitution, which provides as follows: "the Legislature
shall not pass a special or local act when a general act is,
or can be made, applicable." This is a special act under
these circumstances and the general comparative negligence
act is applicable.

&&
/d Justice