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Skiing is a risky endeavor, and it is the thrill that comes from that risk that draws many participants into the sport in the first place. Ski areas work hard to mitigate these risks, but countless waivers, signs, and warnings remind us every time we go to the mountain of the inherent risks of skiing. A legal battle is unfolding in the state of Idaho that could lead to a drastic change in how ski area liability is viewed. This change could also lead to the disappearance of many of the state’s small, independently owned ski areas.
The case, Milus v. Sun Valley Company, revolves around the death of Stewart Milus, who passed away in November 2019 after colliding with a snowgun on Lower River Run, a beginner trail at Sun Valley. A wrongful death lawsuit was filed by Milus’ widow in January 2021 and Sun Valley immediately moved to have the case thrown out. Summary judgment was granted by District Judge Ned Williamson in March 2021 following discovery, and an appeal was filed by the attorney representing Milus’ widow in April 2021. The Idaho Supreme Court took up the issue in September 2023.
Skiers and ski areas in Idaho are regulated by the Idaho Ski Statute. The law is divided into two main sections, 6-1103 and 6-1106. The first section deals with responsibilities for ski areas and includes nine duties that ski areas are required to perform. These duties include things like providing a ski patrol and putting flashing lights on vehicles, but specific to this case, marking all snowmaking equipment. The other main part of the law includes responsibilities for skiers, including staying in control and regulating speed. The idea behind dividing up these responsibilities is that if ski areas do the nine things that are required of them, then they are shielded from liability for any accidents that occur from skiing. Similarly, if skiers do not abide by their responsibilities, they are barred from suing a ski area for any accident or injury. Idaho first enacted the Ski Statutes in 1979, during a wave of a dozen such laws being passed in response to a lawsuit brought against Stratton, Vermont.
(1) To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights that 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 snowmaking 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 (1) 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 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; and
(10) Not to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, 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; 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.
Sun Valley sought summary judgment in this case because they alleged they had fulfilled all nine of their duties under the Ski Statutes, thus shielding them from liability. The district court agreed with them, saying that the yellow padding in place around the snowgun that Milus struck served as a “warning implement.” Lawyers for Laura Milus appealed the ruling to the Idaho Supreme Court, saying that reasonable minds could disagree on whether yellow padding constitutes a warning implement.
Legal briefs submitted to the court in preparation for the hearing focused on the issue of what suitable warning implementation is. Milus’ lawyers argued that “padding, yellow-colored or otherwise, does not necessarily convey warning of a hazardous condition. Indeed, padding is best characterized as a comfort or safety measure, not as a warning regarding a hazardous condition in and of itself.” On the other hand, Sun Valley’s lawyers held the opposite position, saying “the visible padding surrounding Snow Gun No. 16, and the other snowmaking equipment on Lower River Run, is bright yellow and extends far enough up the snow gun that the top of the padding is taller than a person. The color yellow is universally understood to communicate caution or to bring attention to something: a yellow light means to slow down, yellow signs along the roadway communicate general warnings or caution, and OSHA regulations require caution signs meant for accident prevention in the workplace to be yellow.”
Another major issue raised on appeal regarded signage indicating that snowmaking operations were present. The law requires that signs be placed at the top of trails during snowmaking operations, and Sun Valley provided evidence that there was a banner near the top of the River Run chairlift that said “SNOWMAKING IN PROGRESS” along with evidence that there was not active snowmaking at the time of the accident. Milus argued that the sign at the top of the chairlift was improperly placed, claiming that the top of the trail was a little further down the hill. Additionally, Milus claimed that snowmaking operations are broader than just actively making snow. Milus’ brief said that the snow guns placed by Sun Valley in the middle of the run were dangerous both when actively shooting snow and when not actively shooting snow because they are large metal objects “placed dead center in the middle of a ski run.”
Much of the existing precedent for interpretation of the Idaho Ski Statutes was set by a 1990 Idaho Supreme Court case called Northcutt v. Sun Valley. This case revolved around a skier who suffered serious injuries after hitting a trail sign at Sun Valley following a collision. The skier argued that the sign itself was not an inherent risk of skiing and that not padding the sign was a negligent action on the part of Sun Valley. The Supreme Court ruled with Sun Valley, emphasizing that the Ski Statutes are intended to limit liabilities for ski areas, and pointed out that the “no standard of care” established by the Legislature means that ski areas cannot be held responsible for injuries or accidents resulting from them attempting to accomplish their nine duties.
During the first oral argument, Justice Brody and others seemed dubious of the idea that ski areas do not have any standard to abide by when fulfilling their duties. Hypotheticals that were discussed included using a teddy bear or small sprinkler flag to mark a hazard or putting up a trail map of the wrong resort where the hazard exists. ‘No standard’ means that a ski area could make the argument that marking snowguns with teddy bears or a piece of duct tape would be enough under the law to shield them from liability. While teddy bears seem a little absurd to be considered a warning implement, a bright yellow pad seems to be a little closer to the intent of that part of the law. But, lawyers for Milus argue that yellow pads may not even be sufficient, hence the lawsuit.
Justice Moeller brought up the issue that the law only says visible signs must be used to mark snowmaking equipment, but that they do not actually have to be legible. An old sign that has lost all its lettering could still be quite visible, but not effective. With no standard applicable to the duties of ski areas, it would seem that a sign that does not say anything anymore would be sufficient to absolve a ski area of any liability. Moeller concluded, “The thing that gives me difficulty is it requires us to read the statute in a far more cynical way than I’m comfortable reading it.”
Matthew Gunn, the lawyer arguing for Milus in front of the Supreme Court, summarized several of these hypotheticals in a question to the court. “I would pose a simple question to your honors…if a duty has zero standard of care, does a duty exist?” This question prompted Chief Justice Bevan to ask if Gunn was arguing that the Northcutt decision was “manifestly wrong.” Justice Zahn pondered if the zero standard established by the legislature does not apply to the nine duties for ski areas and only applies to any extra duties a ski area might perform to lessen the risks of skiing. She pointed out that the idea of zero standard of care comes straight from the legislature, and the Northcutt decision only further supports this idea.
In December 2023, the Idaho Supreme Court issued a unanimous ruling siding with Milus, ordering a jury trial to rule on several issues of fact, including if a yellow pad constitutes a warning implement. The decision was a partial reversal of the thirty-year precedent set by the Northcutt case. “A careful reading of Northcutt reveals that the standard of care portion of the decision failed to draw a majority of votes and therefore is only a plurality holding,” the court said. The court revised the Northcutt interpretation of the ski statute, saying, “We hold that ski area operators are held to the standard of an ‘ordinarily prudent person acting under all the circumstances and conditions then existing,”’ id., when complying with the duties enumerated in subsections (1) through (9).” This new standard opens up an enormous amount of liability for ski areas. Now, ski areas will have to prove that any actions they have taken towards marking snowmaking equipment or other enumerated duties have been performed to the level of a “reasonably prudent person.” But what should an appropriate sign look like to a reasonably prudent person? The uncertainty would remain until there are a few court cases addressing that question. Ski areas will essentially be guessing at if they are meeting standards to shield them from liability, or if they are at risk of litigation.
Moreover, insurance companies will doubtless increase their premiums for ski areas to compensate for their increased risk of litigation. For many larger resorts, these increased operating costs will mean higher ticket prices. However, for smaller ski hills that are barely scraping by, skyrocketing insurance costs may put many of them out of business.
After the Supreme Court’s unanimous ruling, it seemed the next step would be the jury trial ordered by the court, which would decide if yellow pads are warning implements among other issues. However, lawyers for Sun Valley filed a petition for rehearing in January 2024, arguing that the whole case could be decided on different grounds. Initially, Sun Valley sought summary judgment because they alleged they fulfilled their duties under the Idaho Ski Statute, including marking snowmaking equipment. In their motion for rehearing, Sun Valley claimed the case could also be granted summary judgment because Milus breached his duties as a skier. Even though the Supreme Court had already issued a ruling, Sun Valley’s presentation of a new way to decide the case that had not been discussed previously opened the door to the court rehearing the case.
Sun Valley’s request for rehearing also included arguments about previous precedent in interpreting the Ski Statutes. Though the court previously stated in their opinion that they did not find the Northcutt decision a binding precedent, Sun Valley argued that precedent was further established in another case, Long vs. Bogus Basin, decided in 1994. That case was a negligence claim brought by a skier who was injured on an unmarked, ungroomed trail, and claimed that the resort should have posted a sign indicating the area’s difficulty. The unanimous decision in Long v. Bogus Basin affirmed that ski areas have no standards to follow when executing their nine required duties. Sun Valley argued that because Long should be the controlling precedent and not Northcutt, the court should not have imposed a reasonably prudent standard on ski areas in their opinion.
The oral reargument in February 2024 largely focused on the implication of just two words in the law: “plainly visible.” Jaclyn Gans, representing Sun Valley, argued that the ski statute specifically singles out snowmaking equipment that is “plainly visible” as an inherent risk of skiing that skiers assume. So, because the snowgun in question was in the middle of the run, Milus assumed that risk and as a result his family was not entitled to any damages. This idea was brought up in the initial oral argument by Justice Brody, who asked Gunn why the case was not initially dismissed on that point. In their request for rehearing, attorneys for Sun Valley argued that if snowmaking equipment is not plainly visible, then it must be marked in accordance with the ski statute. Under their theory, it would be possible for someone to recover damages if they collided with an unmarked and obscured snowgun, perhaps, on a foggy day or obscured by trees.
Justice Zahn pointed out that there would be an issue if Sun Valley also failed in its duty to mark said snowgun, which is disputed. The text of the law does not make clear if the skier and ski area both breached their duties, who assumes the liability for any accident. One issue that was discussed was the idea that if skiers assume all of the inherent risks of skiing, then there is no incentive for ski areas to fulfill all of their duties. Gans pushed back against this idea, saying, “Practically speaking, no ski area is going to cross its fingers and hope for a day with clear visibility and hang its hat on having a plainly visible snowgun on that particular day. Realistically, the ski area is going to take steps to follow all nine of those enumerated duties.”
Ski areas take additional steps to mitigate risk all the time. Though the ski statute specifically carves out in-bounds avalanches as an inherent risk of skiing, many ski areas dedicate hundreds of hours and pounds of explosives to try and reduce the risk of such avalanches occurring. Liability is not the only motivating factor in setting risk management policies at ski areas.
Milus v. Sun Valley was reargued because new arguments that could decide the case outright were brought forward. Though the Supreme Court may wind up ruling with Sun Valley this time around and may even walk back some of its initial decisions, the legal ideas are already out there. During the first oral argument, the justices seemed sufficiently wary of duties but no standards to make a walking back of their ruling seem unlikely. Ordinarily, prudent standards will likely apply for now.
The last time the Idaho Legislature updated the Ski Statutes was in 2014, when new specifics were added to the list of inherent risks of skiing, including in-bounds avalanches and terrain parks. It was brought up during both oral arguments that parts of the Ski Statutes are contradictory or confusing. Justice Zahn called the Ski Statutes “poorly drafted” and Gunn called them “inelegantly written.” House Bill 516 was introduced in the Idaho State Legislature by Representative Barabara Ehardt in February 2024. The bill sought to “clarify that there is no standard of care for the nine enumerated duties of ski area operators,” or fix the biggest issue in front of the Supreme Court. The Idaho Capital Sun reported that Bill 516 did not get a committee hearing because Representative Bruce Skaug, chairman of the Judiciary Committee, wanted to give the Supreme Court time to rehear the case and issue another decision.
The Supreme Court will likely not issue a decision in Milus v. Sun Valley until later this year. Though the upcoming decision may be a reversal of their previous holding in part, the legal veil surrounding ski resorts may have been irreversibly pierced. Future lawsuits with more complicated circumstances or disputed factual records may bring new challenges and liabilities to ski areas. Insurance rates are sure to rise, threatening many of the state’s smaller ski areas. As spring brings a balance to the snowpack between daytime melt and nighttime refreezing, the justices of the Idaho Supreme Court will have to weigh current and past precedent with confusing statutory language to decide how the law tells us to think about risk at ski areas.
More from Zach Armstrong:
- Why Ski Patrollers at Park City Initiated The Biggest Ski Patrol Strike In History
- Forest Service Budget Challenges Threaten Avalanche Center Operations Nationwide
- The Battle Over The Future Of Palisades Tahoe
- How the Fatal GS Bowl Avalanche at Palisades Tahoe, CA, Happened and Why it Could Happen Again
- How Eldora, CO, Ski Patrollers Finally Got Their Union
