BREWER v SKI-LIFT INC
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No. 87-467 IN THE SUPREME COURT OF THE STATE OF MONTANA 1988 RONALD J. BREWER, Plaintiff and Appellant, -vsSKI-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: Decided: Clerk May 24, 1988 September 26, 1988 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 judgmenc granced (Ski-Life) , Discricc, Meagher Councy, On in favor on Occober 1 4 , December 26, of defendanr, 1987, his Ski-Life, injury operacor. was plaintiff che Inc. suffered a recrearional ski area concends Brewer negligence of che an ski area 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 . response by Ski-Life, Brewer a Monrana corporation. caused summary r e v e r s e and remand. We i n j u r y w h i l e s k i i n g a c "Showdown," owned by a i n che Fourreenrh J u d i c i a l Moncana. 1983, appeals (Brewer), afcer he 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 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. scares h i s Brewer 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 . was removed hill 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 rnaincenance Furcher, H e c o n t e n d s c h e scump and placed in h e c o n c e n d s c h e scump was a location. dangerous 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 mocion for discovery summary O c r o b e r 1 4 , 1987. would proceedings, judgmenc and r o be crue. circumscances o f mocion filed was che even i f Brewer's c o -737, scacuce, a skier granced f a c e s were 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 accident, relared as by MCA. were Secrions Brewer, 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 . 23-2-731 a The D i s r r i c r Courc c o n c l u d e d c h e judgrnenc favor defendanr Ski-Lifr assumed che Ski-Life The D i s c r i c c C o u r t noced c h a r , i s barred from r e c o v e r y from a ski by 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 23-2-737, MCA. in che spore of skiing ... " Seccion 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 skiing. wich an objecc while 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 arising our of the negligenr all causes of accion . . 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 In making this for aces of negligence by rhe operacor. 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 protection aspeccs of the skier 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 circumscances. Amend. X I V , 5 1, U.S. Consc.; under like The foundacion of chis and A r . 1 1 Sec. 4., Monc.Conse. 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 [a] scacuce, a consricucional incerprecacions of 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 also address che 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: benefics When a scare disrribures 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 scacuces wirh che above conscicurional responsibiliry 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 responsibiliry -duties. (1) - ski= -A assumes che and all - risk - - legal eo responsibiliry - injury - himself or for loss of - - properry char resulcs from 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 responsiElicy - - person or persons of rhe and noc rhe o che ski - - - responsibilicy -f - area operacor. - J L & - - - - - - - (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, a . from - person is barred from recovery - - a ski area for loss - - operacor - - - or damage resulting from any - inherenc - risk in che spore of skiing as described - 2 3 - 2 - 7 3 6 . in (Emphasis added.) . 7 - - 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: assumption of 23-2-736. Skier's responsibility - -- duries. ( I ) A ski= 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
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