Case 1:19-cv-00004-KHR Document 45 Filed 07/06/20 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FILED

FOR THE DISTRICT OF WYOMING

THOMAS A. STANDISH IV, and

3:56 pm, 7/6/20
MEGHAN KEITER
U.S. Magistrate Judge

Plaintiffs,
vs. Case No. 19-CV-4-R

JACKSON HOLE MOUNTAIN RESORT

CORPORATION,

Defendant.

ORDER GRANTING SUMMARY JUDGMENT

This matter is before the Court on Defendant Jackson Hole Mountain Resort’s

Amended Motion for Summary Judgment. [ECF No. 26]. There is no genuine dispute of

material fact and, as a matter of law, Mr. Standish’s injuries were the product of inherent risks

of skiing. Therefore, Jackson Hole Mountain Resort’s Amended Motion for Summary

Judgment is granted.

BACKGROUND

The following facts are undisputed. In 2017, Mr. Standish and his then-fiancé, Ms.

Keiter, were avid skiers and successful business owners. In January 2017, they visited Jackson

Hole Mountain Resort (JHMR) as part of their “bucket list” of ski vacations. In the days prior

to Plaintiffs’ arrival, JHMR reported approximately twenty-seven inches of new snow and an

additional eighteen inches of snow the morning of Plaintiffs’ arrival. This snow fall increased

the mid-mountain snow depth from fifty-six to eighty inches.

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When Plaintiffs arrived at JHMR, they each purchased a two-day “J-Card” ski pass.

The J-Card uses RFID technology to open gates at each base lift, and is therefore necessary

for each skier to access lifts at JHMR. The back of Plaintiffs’ J-Cards adorned the following

language:

ASSUMPTION OF THE RISKS AND AGREEMENT NOT TO SUE. 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, HAZARDS, AND
DANGERS THAT MAY RESULT IN SERIOUS INJURY, DEATH or
damage to property. 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, . . . ; . . . collisions with natural and man-made objects and features which
may not be marked. . . . In consideration of such use, the holder accepts and
assumes any and all risks and dangers associated with recreating at JHMR and
using its facilities, AND AGREES NOT TO SUE JHMR FOR ANY INJURY,
DEATH OR DAMAGE, INCLUDING THAT CAUSED BY JHMR’S OWN
NEGLIGENCE. . . .

Plaintiffs used their J-Cards to access the ski lifts. After taking a couple of runs down

groomed trails near the Grand Ski area, the couple descended down an off-piste but permitted

trail near the Thunder Chairlift line.1 As the more experienced skier, Mr. Standish led the way

and Ms. Keiter followed behind. As the two were near mid-mountain, Mr. Standish’s right ski

collided with the top of a six-and-a-half-foot-tall tree that was covered with approximately two

inches of snow.2 Mr. Standish’s right ski ejected on impact, and he broke multiple bones in his

right leg.

1
“Off-piste” is an industry term used to describe an ungroomed trail that is left in its natural state. See Roberts
v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 970 n.1 (10th Cir. 2018).
2
This number is derived from the fact that there was approximately eighty inches of snow and the tree was
approximately seventy-eight inches tall.

2
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Mr. Standish had surgery that required fourteen screws, two metal plates, and a bone

graft. The Plaintiffs returned home to California on January 13, 2017. The next day, Mr.

Standish suffered a pulmonary embolism, which is a common complication associated with

fractures. For some time thereafter, Ms. Keiter administered anti-coagulation injections in Mr.

Standish’s abdomen. The Plaintiffs planned to be married on June 3, 2017, but Mr. Standish’s

intensive recovery required them to postpone their wedding until September 2017. The

Plaintiffs also had to sell their business because of Mr. Standish’s inability to contribute during

his recovery.

Mr. Standish and Ms. Keiter initiated this lawsuit in January 2019, seeking to recover

from JHMR under theories of negligence and loss of consortium, respectively. Despite efforts

during discovery, the reason for and timeframe of the tree’s alteration remains unknown.

However, based on the height at which the tree was cut and JHMR’s general practice, JHMR’s

risk safety and environmental manager believes it was cut down during a ski season to mitigate

some hazard. Plaintiffs have assumed this to be true. In October 2019, JHMR completely cut

down the tree, citing the litigation as the primary reason for doing so.

JHMR now moves for summary judgment on three grounds: (1) Mr. Standish was

injured by an inherent risk of skiing, and therefore JHMR did not owe him a duty under the

Wyoming Recreational Safety Act; (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 a duty; and (3)

Plaintiffs’ claims are barred by the exculpatory agreement on the back of the J-Card.

Plaintiffs oppose the motion on multiple alternative grounds: (1) JHMR voluntarily

assumed a duty by altering or attempting to eliminate the tree; (2) JHMR’s subsequent removal

of the tree demonstrates the existence of a duty and JHMR’s acknowledgement of that duty;
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(3) JHMR increased the risk of injury by altering the tree and failing to completely remove it

prior to the accident; and (4) the exculpatory agreement is unenforceable because the Wyoming

Supreme Court has not held such agreements are enforceable and the Wyoming legislature

expressly rejected a statute requiring the enforceability of such agreements.

A dispositive motions hearing was set for March 23, 2020. At the hearing, the parties

jointly requested a continuance and opportunity to file supplemental briefing following expert

depositions. JHMR’s supplemental briefing argues Plaintiffs’ expert demonstrates it decreased

an inherent risk of skiing and therefore it is not liable for increasing an inherent risk. Plaintiffs’

supplemental briefing focuses on the insufficiency of JHMR’s supporting affidavits. A

dispositive motions hearing was held on June 23, 2020. After hearing from the parties and

reviewing the briefing and the record, the Court finds as follows:

RELEVANT LAW

As a federal court sitting in diversity, the substantive law of the forum state governs the

underlying claims, including the applicable standard of proof. Jones v. United Parcel Serv.,

Inc., 674 F.3d 1187, 1195 (10th Cir. 2012). Accordingly, Wyoming law applies to the

substantive claims in this case. Nevertheless, federal law controls the ultimate procedural

question of whether summary judgment is appropriate. Wagner v. Live Nation Motor Sports,

Inc., 586 F.3d 1237, 1244 (10th Cir. 2009).

Mr. Standish seeks to recover for JHMR’s alleged negligence. To recover under this

theory, Mr. Standish must establish four elements: duty, breach, causation, and damages.

Valance v. VI-Doug, Inc., 2002 WY 113, ¶ 8, 50 P.3d 697 (Wyo. 2002). JHMR’s Amended

Motion for Summary Judgment seeks to disprove the first element of Mr. Standish’s

negligence claim—the existence of a duty—by application of the Wyoming Recreational

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Safety Act (WRSA).3 Because Ms. Keiter’s loss of consortium claim is derivative of Mr.

Standish’s negligence claim, summary judgment as to his claim compels summary judgment

as to hers. See Hendricks v. Hurley, 2008 WY 57, ¶ 32, 184 P.3d 680, 687 (Wyo. 2008).

Under ordinary tort principles, property owners have an affirmative duty to protect

visitors against known and discoverable dangers. Warwick v. Accessible Space, Inc., 2019 WY

89, ¶ 14, 448 P.3d 206, 212 (Wyo. 2019). The WRSA modifies this principle by limiting the

duty of care certain recreational providers would otherwise owe to its participants. Roberts v.

Jackson Hole Mountain Resort Corp., 884 F.3d 967, 972 (10th Cir. 2018). The WRSA

effectively codifies the primary assumption of the risk doctrine in the context of recreational

opportunities by eliminating a provider’s duty of care “to eliminate, alter, or control the

inherent risks within the particular sport or recreational opportunity.” WYO. STAT. ANN. § 1-

1-123(b) (2011); Muller v. Jackson Hole Mountain Resort, 2006 WY 100, ¶ 15, 139 P.3d 1162,

1167 (Wyo. 2006) (“Volenti non fit injuria . . . . The timorous may stay home.”). And where

there is no duty on behalf of the defendant, there is no liability from which a plaintiff can

recover. Bevan v. Fix, 2002 WY 43, ¶ 46, 42 P.3d 1013, 1027 (Wyo. 2002); Cooperman v.

David, 214 F.3d 1162, 1165 n.1 (10th Cir. 2000) (“Under primary assumption of the risk there

is no liability to the plaintiff because the defendant had no duty to the plaintiff.”). If, however,

a recreational participant is injured by something other than an inherent risk, a provider may

still be liable in negligence and subjected to an ordinary duty of care analysis. WYO. STAT.

ANN. § 1-1-123(c) (2011).

3
The current version of the WRSA does not apply to skiing in a ski area as that term is defined in the recently
enacted Ski Safety Act. WYO. STAT. ANN. § 1-1-123(e). The Ski Safety Act became effective in July 2017. WYO.
STAT. ANN. § 1-1-123.1. All parties agree the Ski Safety Act is inapplicable to this case since the accident preceded
the legislation’s effective date.

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An “inherent risk” is defined as “those dangers or conditions which are characteristic

of, intrinsic to, or an integral part” of the recreational opportunity. WYO. STAT. ANN. § 1-1-

122(a)(i) (2011). A risk is not inherent if it is one that is “atypical, uncharacteristic, and not

intrinsic to the recreational activity[.]” Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1103

(10th. Cir. 2002) (applying Wyoming law). Unlike many states with similar recreational

statutes, the Wyoming legislature chose not to further define “inherent risk” within this

statutory framework. See WYO. STAT. ANN. § 1-1-122(a)(i) (2011); Brennan v. Jackson Hole

Snowmobile Tours, Inc., No. 08-CV-265-B, 2009 WL 10700292, at *3–4 (D. Wyo. Aug. 4,

2009) (applying Wyoming law) (citing other state statutes). Courts have interpreted this

omission as a legislative intent to define inherent risks on a case-by-case basis.4 Sapone, 308

F.3d at 1101.

And while a recreational provider has no duty to alter, eliminate, or control the inherent

risks associated with a particular sport or activity, the law still imposes on it a duty not to

increase the inherent risks of the sport. Creel v. L&L, Inc., 2012 WY 124, ¶ 12, 287 P.3d 729,

732 (Wyo. 2012). An affirmative act that increases an inherent risk may provide a basis for

liability notwithstanding the general modification of a provider’s duty of care under the

WRSA. Id.

Thus, it is important to distinguish between inherent risks—those that exist merely from

the conditions in which the recreational opportunity is provided—and those risks that exist

from the choices a recreational provider makes for the participant which, depending on the

circumstances, may or may not establish a duty of care. See Dunbar v. Jackson Hole Mountain

4
The Ski Safety Act expressly defines “inherent risk” of skiing. WYO. STAT. ANN. 1-1-123.2(a)(ii) (2017).
But as noted above, supra n. 3, the Ski Safety Act was not in effect at the time of this accident.

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Resort Corp., 392 F.3d 1145, 1149 (10th Cir. 2004) (applying Wyoming law); see also

Cooperman, 214 F.3d at 1167 n.5. Because of this distinction, the inquiry into whether a

provider owed a duty of care to its participants is inextricably intertwined with a determination

as to whether the injury resulted from an inherent risk. Dunbar, 392 F.3d at 1152.

Determining whether a risk is inherent to the recreational opportunity demands an

intense level of specificity that will generally, but not always, preclude summary judgment on

this issue. Creel, at ¶ 20, 287 P.3d at 737. Both the Wyoming Supreme Court and the Tenth

Circuit Court of Appeals have affirmed summary judgment in favor of the recreational

provider where the facts are undisputed and reasonable persons could only conclude that the

injury was caused by an inherent risk. E.g., Beckwith v. Weber, 2012 WY 62, ¶ 35, 277 P.3d

713, 722 (Wyo. 2012); Roberts, 884 F.3d at 979.

STANDARD OF REVIEW

Summary judgment is proper if there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A fact is material

if it would affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Id.

The movant bears the initial burden to either affirmatively disprove an essential element

of the non-movant’s case or to demonstrate the non-movant lacks evidence to support the claim

at trial, “since a complete failure of proof concerning an essential element” renders all other

facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). To meet this initial

burden, the movant must support its motion with materials such as affidavits, stipulations, or

discovery responses. FED. R. CIV. P. 56(c)(1). If the movant bears this initial burden, the non-
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movant “must respond with specific facts showing the existence of a genuine factual issue to

be tried.” Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980).

When reviewing a motion for summary judgment, the Court’s role is not to weigh the

evidence, but rather to assess the threshold consideration of whether a genuine issue of material

fact exists. Liberty Lobby, 477 U.S. at 249. All reasonable inferences must be resolved in the

light most favorable to the non-moving party. Id. at 255. This inquiry is also guided by

applicable evidentiary standards. Id.

RULING OF THE COURT

Plaintiffs bear the burden at trial to establish JHMR’s negligence liability by a

preponderance of the evidence. See John Q Hammons Inc. v. Poletis, 954 P.2d 1353, 1358

(Wyo. 1998). JHMR’s Motion argues summary judgment is appropriate because, as a matter

of law, it did not owe Plaintiffs a duty with regards to the tree. Alternatively, JHMR contends

the exculpatory agreement on the back of the J-Card bars Plaintiffs’ claims entirely. Because

an exculpatory agreement is essentially a release or waiver of liability, it is an affirmative

defense for which JHMR bears the burden at trial. See Murphy v. Stevens, 645 P.2d 82, 93

(Wyo. 1982).

Accordingly, the first inquiry is whether JHMR is entitled to summary judgment on the

duty issue. If the answer is yes, the Court need not consider whether the purported exculpatory

agreement is valid and enforceable. It is only if JHMR owed Plaintiffs a duty that consideration

of whether the exculpatory agreement bars Plaintiffs’ claims notwithstanding the existence of

a duty is necessary.

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I. Whether JHMR owed Plaintiffs a duty of care

Generally, the existence of a duty is a question of law for the Court. Rino v. Mead, 55

P.3d 13, 18 (Wyo. 2002). The question becomes one of fact when its existence as a matter of

law depends on the jury’s determination of material facts for which there is a genuine dispute.

Frost v. Allred, 2006 WY 155, 138 P.3d 17 (Wyo. 2006). When the existence of a duty is

analyzed under the WRSA, however, the issue is inextricably intertwined with the inherent

risk inquiry, which demands a great level of factual specificity. Dunbar, 392 F.3d at 1152.

This factual emphasis often precludes summary judgment, but not always. Creel, at ¶ 20, 287

P.3d at 737.

Significantly, there is no genuine dispute as to any material facts in this case. The

parties’ filings merely proffer their own facts, but do not genuinely dispute the other’s

recitation.5 The absence of a factual dispute renders the determination of a duty one of law for

the Court, although the Court must still take great care to scrutinize the undisputed facts to

determine as a matter of law whether the risk was inherent to the sport. Jackson Hole Mountain

Resort Corp. v. Rohrman, 2006 WY 156, ¶ 3, 150 P.3d 167, 168 (Wyo. 2006); see also Rino

v. Mead, 55 P.3d 13, 18 (Wyo. 2002). If, after scrutinizing the facts, the Court concludes

reasonable minds cannot differ as to whether the risk was inherent, summary judgment is

appropriate. Rohrman, at ¶ 3, 150 P.3d at 168.

5
The only fact in dispute appears to be whether the accident occurred in an area of tree glades. Defendant
argues that it did, which apparently means the area had “copses of trees” with many small, bent, or broken tree stumps.
(Def.’s Am. Mem., ECF No. 27, at 3; ECF No. 27-1, Ex. E, at ¶ 15). This fact is immaterial because it does not affect
the outcome of the case. See Liberty Lobby, Inc., 477 U.S. at 248. Under the summary judgment standard, a mere
factual dispute will not preclude summary judgment; the dispute must be genuine and relate to a material fact. Liberty
Lobby, Inc., 477 U.S. at 248.

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Under the WRSA, the existence of a duty must be resolved by properly framing the

duty question. Madsen v. Wyo. River Trips, Inc., 31 F. Supp. 2d 1321, 1328 (D. Wyo. 1999)

(applying Wyoming law). If the question is framed improperly, “the legislature’s intent to

allow a cause of action for negligence will be lost.” Id. at 1329. The question is framed

improperly if the risk is considered “in a vacuum, apart from the factual setting to which the

[participant] was exposed.” Cooperman, 214 F.3d at 1167. A properly framed question will

examine the risk at a level of specificity supported by the facts. Id. at 1168. Depending on the

case, this may require more than one level of analysis. See id. at 1167–68 (stating the facts

required the analysis to go “one step further”).

A. Framing the issue of duty and risk

The following undisputed facts are instructive to the duty issue: Mr. Standish was

injured when he skied into a six-and-a-half-foot-tall tree on off-piste trail at JHMR. The tree

was previously altered by JHMR. The heavy snow fall prior to Plaintiffs’ arrival covered the

tree with roughly two inches of snow, making it invisible to Mr. Standish.

Both parties offer their own issue statements. JHMR asks whether skiing into an

unmarked, nearly buried tree, which was cut by JHMR sometime in the past out of safety

concerns, on an ungroomed, off-piste, tree-filled ski run, is an inherent risk of alpine skiing

that was assumed by Mr. Standish, a self-proclaimed advanced-expert skier with decades of

experience at big mountain, western ski resorts. (Def.’s Am. Mem., ECF No. 27, at 14).

Plaintiffs ask whether JHMR, which cut the top of a tree asserted to be a risk, leaving behind

a remnant trunk approximately six-and-a-half feet high, and failing to finish the job by

removing the remnant which caused Mr. Standish’s injuries, affirmatively enhanced the risk

of injury or increased the risk of injury to Mr. Standish. (Pls.’ Mem., ECF No. 33, at 6).
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For the following reasons, neither issue statement is appropriate for verbatim adoption.

Beginning with JHMR’s statement, the Court finds Mr. Standish’s skiing experience and

expertise are immaterial to the inherent risk inquiry. If a risk is inherent to the sport, it will be

so regardless of expertise and experience. JHMR’s reason for altering the tree “out of safety

concerns” is also immaterial; the proper focus is what risk, if any, the altered tree posed to

skiers at JHMR. Moreover, JHMR’s inclusion of “tree-filled ski run” is a disputed, albeit

immaterial, fact. Plaintiffs’ statement that JHMR “failed to finish the job” is a legal argument,

not an undisputed fact, and it prematurely considers whether JHMR breached a duty of care

before it establishes a duty existed. Plaintiffs’ issue statement also omits the fact that this

accident occurred on an off-piste trail after significant snow accumulation barely submerged

the tree.

Based on the undisputed and material facts in the record, the issue is whether skiing

into an unmarked six-and-a-half-foot-tall tree on an off-piste run is an inherent risk of skiing

if the tree was previously altered by the recreational provider and recently submerged and

made invisible by heavy snow fall.6 These facts require more than one level of inquiry, the first

of which is whether, generally speaking, skiing into six-and-a-half-foot-tall tree is an inherent

risk of skiing despite previous human alteration of the tree. The other facts will be analyzed in

due course.

The inherent risks of skiing are “far from self-evident.” Dunbar, 392 F.3d at 1148–49.

The central consideration is what reasonable persons would consider inherent to the sport.

6
While the issue of whether JHMR’s affirmative action of altering the tree is of significant consideration and
dispute, the Court finds it more appropriate to consider that issue as a separate level of inquiry and leave the issue
statement more generalized given Plaintiffs’ alternative theories for JHMR’s assumption of a duty.

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Rohrman, at ¶ 9, 150 P.3d at 170. When determining what reasonable persons would consider

inherent to a sport on summary judgment, the Court may reference testimony from safety

experts and expert skiers, as well as the statutory definitions from jurisdictions with similar

recreational statutes. Id.

To satisfy its initial burden on summary judgment, JHMR cites to the statutory

frameworks of Colorado, New Mexico, Montana, Utah, and Idaho, all of which expressly list

changing weather conditions and collisions with subsurface conditions such as stumps or trees

in their definitions of inherent risks of skiing. COLO. REV. STAT. § 33-44-103(3.5) (2019);

N.M. STAT. ANN. § 24-15-10(b) (West); MONT. CODE ANN. § 23-2-702(2) (West); UTAH Code

Ann. § 78B-4-402 (West); IDAHO CODE ANN. § 6-1106; See also MICH. COMP. LAWS §

408.342 (West). Plaintiffs argue these definitions are irrelevant and unpersuasive because each

statute considers the risk of collisions with subsurface conditions inherent only if the

subsurface condition is natural, and JHMR’s alteration of the tree eroded its natural

classification. (Pls.’ Mem., Gale Aff., ECF No. 33, at 17) (stating the original tree was natural

hazard but the altered tree was not).

The Court disagrees. Many of these statutes list “stumps” as a subsurface condition. The

very essence of a stump is a cut tree, which implies some form of human alteration. See Stump,

MERRIAM WEBSTER, https://www.merriam-webster.com/dictionary/stump (last visited June

29, 2020) (defining “stump” as “[t]he part of a plant and especially a tree remaining attached

to the root after the trunk is cut” or “a remaining part”). And while the tree encountered by Mr.

Standish has not been described as a stump—the parties use words like tree, trunk, staub, and

remnant interchangeably—this analogy demonstrates that other states consider collisions with

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subsurface conditions an inherent risk of skiing regardless of any human alteration.7 Moreover,

the definitions demonstrate that human alteration, such as cutting trees on ski slopes, does not

necessarily erode a tree’s classification as a natural subsurface condition. These statutory

definitions, though not outcome determinative, amplify the likelihood that reasonable persons

would consider a collision with the altered tree an inherent risk of skiing. See also Roberts,

884 F.3d at 970 (describing an off-piste ski area as being “dotted with trees, rocks, and vast

swaths of open, often-untouched snow that weave throughout these natural obstacles unguided

by the ministrations of JHMR’s tree-cutters.”) (emphasis added).

To demonstrate the risk is not inherent, Plaintiffs offer testimony from their retained

expert, Mr. Gale. Specifically, Mr. Gale concludes the tree was not “characteristic of, intrinsic

to, or an integral part of the conditions and ski trail” at JHMR. (Pls.’ Mem., ECF No. 33, at 7)

(quoting Mr. Gale). This statement is far too conclusory to defeat summary judgment on the

issue. While “[e]xpert testimony may, in some instances, be particularly persuasive on the

issue of inherent risk in the WRSA context[,]” it must go beyond conclusory opinions. See

Roberts, 884 F.3d at 977.

Plaintiffs argue Mr. Gale’s opinion offers more than mere conclusions and is sufficient

to demonstrate Mr. Standish was injured by a non-inherent risk. The analytical aspect of Mr.

Gale’s report focuses on how Mr. Standish was injured by “the remaining part of a tree that

should have been removed.” (Pls.’ Mem., ECF No. 33, at 7) (quoting Mr. Gale). This analysis

assumes a duty existed; it does not establish one. The remaining portions of Mr. Gale’s

testimony address whether JHMR voluntarily assumed and acknowledged a duty with regards

7
A staub is a “hard obstacle of wood and forest debris.” (Def.’s Am. Mem., ECF No. 27, at 3).

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to the tree and whether JHMR’s alteration of the tree increased the inherent risks. As to the

specific and initial issue of whether this accident was the product of an inherent risk, Mr. Gale’s

statements are too conclusory for consideration. “[S]uch statements, even from experts, are

insufficient to defeat summary judgment, including in the context of the WRSA[.]” Roberts,

884 F.3d at 977 (citing Cooperman, 23 F. Supp. 2d 1315, 1318 (D. Wyo. 1998), aff’d 214 F.3d

1162, 1169 (10th Cir. 2000)).

Based on the evidence in the record, the Court finds reasonable persons could only

reach one conclusion: skiers assume the inherent risk they will collide with a six-and-a-half-

foot-tall and previously altered tree. But the inquiry does not end there. The context in which

Mr. Standish encountered this six-and-a-half-foot-tall and previously altered tree must also be

considered. Indeed, “while all sports have inherent risks,” the factual setting in which the

participant was exposed to the risk may not be inherent to the sport. Cooperman, 214 F.3d at

1167.

That is not the case here, however. Mr. Standish encountered this tree on an off-piste

trail following heavy snow accumulation that barely covered the top of it. Much like collisions

with subsurface conditions, many of the statutory frameworks of similarly-situated states

include changes in weather or snow conditions as an inherent risk of skiing. COLO. REV. STAT.

§ 33-44-103(3.5); MONT. CODE ANN. § 23-2-702(2) (2015); UTAH Code Ann. § 78B-4-402

(2008); ); IDAHO CODE ANN. § 6-1106 (2014); see also Kopeikin v. Moonlight Basin Mgmt,

LLC, 981 F. Supp. 2d 936, 945–46 (D. Mont. 2013) (“Skiing presents a multitude of dangers

and hazards. Notwithstanding an operator’s efforts to tame it, skiing takes place on essentially

wild terrain, on ‘a mighty mountain, with fluctuation in weather and snow conditions that

constantly change.’”).
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Reasonable minds cannot differ that the significant snow accumulation Mr. Standish

encountered was an inherent risk of skiing. When the mid-mountain snow depth was far below

six-and-a-half-feet, this tree would have been visible to most. Conversely, when the mid-

mountain snow depth was far above six-and-a-half-feet, this tree was presumably invisible and

perhaps even unreachable. Mr. Standish encountered this tree just after heavy snow fall that

barely covered its top. This is an inherent risk of which Mr. Standish assumed.

A similar conclusion was reached in Roberts, 884 F.3d 967 (10th Cir. 2018). Much like

Mr. Standish, the plaintiff in Roberts was injured when he skied into a lightly covered pile of

boulders on an off-piste trail at JHMR. Id. at 970. In affirming summary judgment in favor of

the resort under the WRSA, the Tenth Circuit Court of Appeals stated:

Perhaps Roberts may not have expected to encounter the type of gap into which
he fell, but we cannot ignore the nature of the run on which he encountered it
and the inherent risks that run presents. Boulders and gaps of widely varying
dimensions between them—at times exposed to the elements and at others
lightly covered by fresh snow—are an inherent risk of skiing on an off-piste run
such as Saratoga Bowl.

Id. at 976 (emphasis added). Indeed, the WRSA expressly provides that participants assume

the inherent risks of skiing, regardless of whether those risks are known. Id. (citing WYO. STAT.

ANN. § 1-1-123-(a) (2011). This conclusion is further supported by the fact that this occurred

on an off-piste trail. The nature of off-piste ski runs is that they are “ungroomed, untamed, and

provide[] the types of natural obstacles that distinguish such runs from those frequented by

less talented skiers.” Roberts, 884 F.3d at 976. And as previously discussed, the prior alteration

of this tree does not erode its natural classification. When Mr. Standish descended down an

ungroomed and untamed trail at JHMR, he assume the risk of skiing into natural obstacles

regardless of whether he could see them.

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Mr. Standish’s injury was simply the result of those undesirable risks that are collateral

to the sport of skiing. See Cooperman, 23 F. Supp. 2d at 1318; see also (Defs.’ Suppl. Mem.,

ECF No. 38-1, at 6, Gale Depo. 95:18–25) (quoting Plaintiffs’ expert as saying “it was bad

luck that [Mr. Standish] hit it.”). Accordingly, JHMR was under no duty to alter, eliminate, or

control the risk that Mr. Standish could be injured as a result. This conclusion notwithstanding,

Plaintiffs argue JHMR assumed a duty by voluntarily altering, eliminating, or controlling the

risk or that it breached its duty not to increase the inherent risk. Each argument will be

addressed in turn.

B. Voluntary assumption of a duty

Before JHMR altered the tree, it had no duty to alter, eliminate, or control the risk that

a skier would ski into it. But it did. This much is undisputed. (Disp. Mot. Tr. 15:7–9). The

dispute is whether JHMR voluntarily assumed a duty of care by doing so. The Court finds it

did not.

In Wyoming, a person who is otherwise under no duty to act but voluntarily acts

nevertheless may be subject to liability if the actor fails to exercise reasonable care and that

failure increases the risk of harm to the plaintiff. Andersen v. Two Dot Ranch, Inc., 49 P.3d

1011, 1027 (Wyo. 2002). This principle is alive and well in Wyoming, but it is inapplicable to

cases brought under the WRSA.

A legal duty may arise from contract, statute, or the common law. Lucero v. Holbrook,

2012 WY 152, ¶ 8, 288 P.3d 1228, 1232 (Wyo. 2012). The voluntary assumption of a duty

doctrine is derived from common law tort principles, but the common law ceases to apply

where it has been abrogated by statute. See Shunn v. State, 7457 P.2d 775, 778 (Wyo. 1987).

The WRSA, which eliminates a provider’s duty to eliminate, alter, or control the inherent risks
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of a sport, abrogated the voluntary assumption of the duty doctrine in this context. See

Cooperman, 23 F. Supp. 2d at 1315.

Indeed, the existence of a duty “is not sacrosanct in itself” but is instead an expression

of policy considerations “which lead the law to say that the plaintiff is entitled to protection.”

Shafer v. TNT Well Serv., Inc., 2012 WY 126, ¶ 24, 285 P.3d 958, 966 (Wyo. 2012). “The

WRSA reflects careful policy judgments made by the Wyoming legislature, and it is neither

the Court’s ‘prerogative nor [] inclination to disrupt that regime.” Roberts, 884 F.3d at 979. If

JHMR’s previous alteration of the tree was sufficient to impose on it a duty to act reasonably

in that alteration, causes of action that the legislature expressly intended to preclude would be

able to proceed. See Carden v. Kelly, 175 F. Supp. 2d 1318, 1328 (D. Wyo. 2001) (describing

the legislature’s intent in enacting the WRSA). As such, the Court cannot find as a matter of

law that JHMR voluntarily assumed a duty of care in this context.

In support of this argument, Plaintiffs offer Mr. Gale’s testimony that concludes

JHMR’s removal of the tree demonstrates it acknowledged a duty to remove the hazardous

tree. (Pls.’ Mem., ECF No. 33, at 8). Specifically, Mr. Gale states: “Removal of the top part of

the tree by [JHMR] is a fact that shows [JHMR] acknowledged a duty to remove this hazardous

condition from its run, even if characterized as ungroomed or off-piste.” Id. This testimony,

even if undisputed, is insufficient to preclude summary judgment on this issue.

Experts may testify to a number of matters, including the ultimate issues of the case.

FED. R. EVID. 704(a). In no event, however, may experts state legal conclusions or define the

legal parameters within which the jury would exercise its fact-finding function at trial. Smith

v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000). Mr. Gale’s opinion that JHMR

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assumed and acknowledged a legal duty is nothing more than an impermissible legal

conclusion. As such, it is disregarded for purposes of summary judgment.

Plaintiffs also argue JHMR’s subsequent removal of the tree in October 2019 is

sufficient to establish the existence of a duty. Evidence of subsequent remedial measures is

generally inadmissible, but such evidence may be admissible for a proper purpose such as

establishing the existence of a duty. FED. R. EVID. 407 (advisory committee notes). For a

purpose to be proper, the purpose for which the evidence is offered must be disputed. FED. R.

EVID. 407. The entire dispute in this case is whether JHMR owed Plaintiffs a duty of care.

Therefore, evidence of JHMR’s subsequent and apparently remedial removal of the entire tree

could be admissible to establish the existence of a duty under Rule 407.

Nevertheless, this evidence is insufficient to defeat JHMR’s Motion for Summary

Judgment. Given the undisputed material facts in this case, the existence of a duty is a question

of law. See Rino, 55 P.3d at 18. As a matter of law, the WRSA precludes application of the

common-law voluntary assumption of a duty doctrine in this case. Cooperman, 23 F. Supp. 2d

1315, 1320 (D. Wyo. 1998) (“Applying the assumed duty rule in cases involving the [WRSA]

would ignore the Act’s provisions on the determination of duty and would lead to a defacto

repeal of the statute.”), aff’d 214 F.3d 1162 (10th Cir. 2000). Despite Plaintiffs coming forward

with admissible evidence, summary judgment is still proper on this issue because, as a matter

of law, JHMR was under no duty to alter, eliminate, or control the inherent risks of skiing.

C. Duty not to increase the risk of injury

Even though JHMR had no duty to alter, eliminate, or control the inherent risks of

skiing, it had a duty not to increase the inherent risks for its participants. Creel, at ¶ 12, 287

P.3d at 732. Plaintiffs insist JHMR is liable for creating the risk of skiing into this particular
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tree by virtue of the prior alteration. To support this contention, Plaintiffs rely on this Court’s

order granting summary judgment in Roberts, where it stated an inherent risk analysis must

consider whether “the risk was created, altered, or increased” by the recreational provider. No.

16-cv-24-R, 2017 WL 5247912, at *4 (D. Wyo. Jan. 19, 2017) (emphasis added) (quoting

Dunbar, 392 F.3d at 1153). Plaintiffs interpret this excerpt to stand for the proposition that the

mere creation of a risk by a provider is sufficient to subject it to negligence liability. JHMR

maintains the provider must increase an inherent risk in accordance with the rule as articulated

in Creel, at ¶ 12, 287 P.3d at 732.

A review of the applicable case law demonstrates that Plaintiffs’ fixation on the

requisite verb is misplaced. This review begins with the case cited in support of the excerpt:

Dunbar, 392 F.3d at 1153. In Dunbar, the plaintiff was attempting to exit a specially-

designated ski terrain park when she asked a resort employee for directions. Id. Following the

employee’s directions, the plaintiff fell twelve feet into a half-pipe and suffered significant

injuries. Id. In reversing summary judgment in favor of the resort, the court stated that

“whatever risks [the plaintiff] assumed herself, it seems clear that she did not also assume the

risk of needing to interpret the Delphic statements of [the resort’s] employees.” Id. at 1153.

The court’s analysis largely turned on the distinction between inherent risks and risks that exist

from choices the provider makes for the participant, such as falling into a half-pipe (an inherent

risk) and following the resort’s directions on how to exit the park (a choice made for the skier).

See id. at 1149.

Relying on the Tenth Circuit’s analysis in Dunbar, the Wyoming Supreme Court

expressly articulated a provider’s duty not to increase the inherent risks in Creel, at ¶ 12, 287

P.3d at 732 (citing Dunbar, 392 F.3d at 1149). In Creel, the plaintiff was a spectator at a golf
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tournament. Id. at ¶ 4. As the plaintiff was watching his son putt from the side of the putting

green on Hole #1, a volunteer “starter” for the tournament instructed a golfer to tee off from

Hole #1. Id. at ¶¶ 4–5. The golfer responded he thought he should wait because his drive could

reach the green where the other golfers and spectators were standing, including the plaintiff.

Id. at ¶ 7. The starter told the golfer to tee off anyway, so he did. Id. at ¶¶ 7–8.The plaintiff

suffered a head injury when the golfer’s ball struck him on the head. Id. at ¶¶ 1, 8.

On summary judgment, it was undisputed that spectators at golf tournaments generally

assume the inherent risk of getting hit by a golf ball. Id. at ¶ 23. But the issue in Creel centered

on whether the starter’s actions “increase[d] the risk beyond what everyone agrees would

normally be an inherent risk.” Id. at ¶ 24. The court’s qualification that the risk must be

increased beyond the inherent risks appears to stem from the other jurisdictions cited in

addition to Dunbar, which generally recognize the duty not to unreasonably increase the risks

“over and above” those inherent to the sport. Id. at ¶12 (citing Levinson v. Owens, 176 Cal.

App. 4th 1534, 1543, 98 Cal. Rptr. 3d 779 (Cal. App. 3 Dist. 2009), and Yoneda v. Tom, 110

Hawai’i 367, 133 P.3d 796, 810 (Hawaii 2006)). The Creel Court reversed summary judgment

in favor of the provider, finding a genuine dispute of material fact existed as to whether the

starter increased the risk to plaintiff beyond those inherent to the sport. Creel, at ¶ 35.

When reading Dunbar and Creel together with the letter and purpose of the WRSA,

Plaintiffs’ position simply cannot prevail. In Dunbar, the resort made a choice for the plaintiff

when it directed her to the exit the terrain park and it was arguably this choice, rather than an

inherent risk of skiing, that caused her to fall twelve feet into a half-pipe. 392 F.3d at 1153.

Thus, summary judgment was inappropriate. Id. In Creel, the starter instructed the golfer to

tee off despite the golfer’s concern that his ball could hit someone; the plaintiff was injured
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when the golfer’s ball hit him. Creel, at ¶ 12, 287 P.3d at 732. Summary judgment was

inappropriate because the record was unclear whether the starter increased the risk of getting

hit by a golf ball beyond the sport’s inherent risk. Id. at ¶ 45.

Neither Dunbar nor Creel stand for the proposition that a provider’s affirmative act that

does nothing more than create a risk is sufficient to otherwise subject it to negligence liability.

Unlike the provider in Dunbar, Roberts did “not involve [the provider] affirmatively

exacerbating the inherent risks of alpine skiing.” 884 F.3d at 976. But even if one could

interpret the statement in Roberts to support Plaintiffs’ argument, that language is purely

dictum. See Tokoph v. United States, 774 F.3d 1300, 1303 (10th Cir. 2014) (defining dicta as

“statements and comments in an opinion concerning some rule of law or legal proposition not

necessarily involved nor essential to determination of the case at hand”). Accordingly,

Plaintiffs’ interpretation of this Court’s statement in Roberts is misplaced.

It is not the provider’s action in and of itself that subjects it to negligence liability. To be

actionable in tort, the provider’s conduct must take the cause of the injury out of the inherent

risk realm. Creel, at ¶ 45. If the provider acts but that act does nothing to take the risk of harm

beyond those inherent to the sport, the plaintiff assumes the risk of injury. See WYO. STAT.

ANN. § 1-1-123(a) (2011) (stating a participant “assumes the inherent risks” of the sport). To

hold that JHMR assumed a duty for the mere creation of an inherent risk would be akin to

applying the voluntary assumption of the duty doctrine, which was rejected above as contrary

to the policy rationale underlying the WRSA. Cooperman, 23 F. Supp. 2d at 1320.

Thus, the proper inquiry is whether JHMR’s alteration of the tree did something to

increase or exacerbate the risk that Mr. Standish would ski into it and injure himself. When

making this determination, it is important to distinguish between a provider’s failure to control

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an inherent risk—which cannot form the basis for negligence liability—and a provider’s

affirmative action that increases an inherent risk—which may properly form such a basis.

Compare WYO. STAT. ANN. § 1-1-123(b) (2011), with Creel, 287 P.3d at 743.

To demonstrate JHMR increased the inherent risk of skiing into a tree, Plaintiffs offer

Mr. Gale’s opinion that “it’s quite obvious” JHMR “increased the risk of what a skier would

have expected skiing down [the trail] because [the tree] became buried rather than marked, and

it is substantially increased the risk by leaving it there.” (Def.’s Suppl. Memo., ECF No. 38-1,

at 6, Gale Depo., 95:8-13). As noted earlier, it is immaterial whether Mr. Standish expected to

encounter this tree as he descended down the off-piste trail. The WRSA expressly provides

that skiers assume the inherent risks of skiing, regardless of whether those risks are known.

WYO. STAT. ANN. § 1-1-123-(a) (2011).

Plaintiffs also offer Mr. Standish’s opinion that treetops, even when buried, are

generally flimsy enough to ski over without posing a risk of physical injury. (Def.’s Am. Mem.,

Standish Depo., ECF No. 27-1, at 18). The inference drawn from Mr. Standish’s position is

that had JHMR not altered the tree, he would have skied over the flimsy top of this tree without

injury; thus, according to Mr. Standish, JHMR’s alteration affirmatively increased the inherent

risk of injury when skiing over or into this tree. This opinion, however true it may be, cannot

stand in the way of summary judgment. To assume the treetop would have been flimsy and

barely covered in snow at the time of this accident but-for the prior alteration is supported only

by speculation. To defeat summary judgment, evidence must be based on more than

speculation, conjecture, or surmise. Cypert v. Independent Sch. Dist. No. I-050 of Osage

County, 661 F.3d 477, 481 (10th Cir. 2011). Mr. Standish’s opinion on this issue is not.

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Reverting back to Creel for guidance, the Court finds summary judgment in favor of

JHMR is proper. Ultimately, the Creel Court reversed summary judgment because the record

was silent, thus creating a genuine dispute of material fact, as to whether the starter’s actions

increased the inherent risk of getting hit by a golf ball. Id. at ¶ 45, 287 P.3d at 743. This holding

was contrasted with the Tenth Circuit’s determination in Cooperman where the court found

human error to be an inherent risk associated with horseback riding. Id. (discussing

Cooperman, 214 F.3d at 1162)). Specifically, the plaintiff in Cooperman was injured when a

loose cinch caused his saddle to slip around the horse he was riding. Id. at 1163. In affirming

summary judgment in favor of the provider, the Tenth Circuit stated:

Because cinching a saddle is done by hand, and not with scientific precision, a
provider must make a judgment call as to how tight or loose to cinch the saddle.
This imprecision in the cinching of a saddle is ‘characteristic’ or ‘typical’ of and
therefore ‘inherent in’ the sport of horseback riding. It is an undesirable risk
which is simply a collateral part of the sport. When the cinching of a saddle can
be too tight or too lose, and the cinching is not done with scientific precision, it
is inherent in the sport that the provider at times will cinch too loosely or too
tightly.

Id. at 1168–69.

Winter storms with particularly high winds can cause trees to break or fall over, which

sometimes creates a hazard. (Def.’s Am. Memo., ECF No. 27-1, Baugher Aff., at 25).8 JHMR’s

8
Plaintiffs argue Mr. Baugher’s affidavit is insufficient under Rule 56. Plaintiffs attack Mr. Bishop’s Affidavit
on the basis that it “minimally states” his personal knowledge of the J-Card.” As a lay witness, Mr. Bishop’s affidavit
must be based on personal knowledge and must set forth facts that would be admissible at trial. FED. R. CIV. P. 56;
FED. R. EVID. 602; Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015). Under Rule 56’s personal
knowledge standard, an affidavit must contain facts that were actually perceived or observed by the affiant. Agro v
Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193 (10th Cir. 2006). Statements of mere belief or speculation are
insufficient. Id. As the Base Area Operations Risk and Safety Manager, Mr. Bishop is likely, if not required, to have
personal knowledge of what it takes to get from the base of the mountain to the lift, which is the J-Card. Thus, Mr.
Bishop actually perceived or observed that which he testifies to in his affidavit. Mr. Bishop’s affidavit is based on
personal knowledge and is appropriate for purposes of summary judgement.

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ski patrol is trained to remove hazardous portions of trees when they encounter them on the

trails. Id. The tree Mr. Standish encountered was previously altered by a member of JHMR’s

ski patrol team. Cutting down trees, much like the cinching of a saddle, is done without

scientific precision. Even if the ski patrol member used equipment to alter the tree rather than

his hands, like the cincher in Cooperman, the scientific imprecision in both activities supports

a finding that JHMR’s alteration of the tree was an inherent risk of skiing. Indeed, the ski patrol

can cut trees too much or not enough. The risk that the ski patrol will cut a tree too much or

not enough, however undesirable, is inherent to the sport. See Roberts, 884 F.3d at 970

(describing an off-piste ski area as being “dotted with trees, rocks, and vast swaths of open,

often-untouched snow that weave throughout these natural obstacles unguided by the

ministrations of JHMR’s tree-cutters”) (emphasis added).

Mr. Standish assumed this risk when he descended down the off-piste trail near the

Thunder Chairlift line at JHMR. Thus, JHMR owed no duty to Plaintiffs in this regard, and the

absence of a duty is the “surest route to summary judgment in negligence actions.” Lucero,

2012 WY 152, ¶ 6, 288 P.3d at 1231. Accordingly, JHMR’s Motion is granted.

Because JHMR is entitled to summary judgment on this ground, the Court need not

consider its alternative argument regarding the exculpatory agreement on the back of the J-

Card. See United States v. Wald, 216 F.3d 1222, 1229 n.3 (10th Cir. 2000) (declining to address

alternative argument when party entitled to judgment on primary argument).

CONCLUSION

Mr. Standish was injured when he skied into a six-and-a-half-foot-tall tree on an off-

piste ski run at JHMR. The tree had been previously altered by JHMR and nearly submerged

by heavy snow fall. The tree itself and the factual context in which Mr. Standish encountered
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this tree are inherent risks of skiing for which JHMR owed no duty to alter, eliminate, or

control, and the law cannot impose a duty on JHMR to do just that despite its previous

alteration. Mr. Standish assumed the risk of his injuries.

Under the summary judgment burden-shifting framework, Plaintiffs had the ultimate

burden of providing some evidence to show that Mr. Standish was injured, not by an inherent

risk, but by a risk that was atypical to the sport of skiing. See Cooperman, 314 F.3d at 1169.

Plaintiffs did not meet this burden, and JHMR is entitled to judgment as a matter of law because

of it.

NOW, THEREFORE, IT IS ORDERED Defendant’s Amended Motion for Summary

Judgment [Doc. 26] is GRANTED.

DATED this 6th day of July, 2020.

Kelly H. Rankin
United States Magistrate Judge

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