Idaho Supreme Court hears arguments to reconsider ruling on ski area liability law

Idaho Supreme Court justices struggled with the state’s ski area liability law on Friday during arguments in a major lawsuit against Sun Valley Resort, saying the law as written is contradictory and difficult to interpret.

“I think this is a poorly drafted statute,” said Justice Colleen Zahn. “It conflicts, it internally conflicts.” She pointed to clauses saying skiers can’t collect damages and instead bear full liability for any injuries when they don’t comply with specific skier duties; and others saying ski areas have certain duties they must follow, or they’re liable. 

“What if they both contributed?” Zahn asked.

Supreme Court case shakes Idaho ski areas by overturning decades of liability precedent

Jaclyn Gans, the attorney for Sun Valley, told Zahn, “I think the language of the statute is clear: There can be no recovery if the skier breached their duty.”

Justice Greg Moeller said, “The statute is fairly inelegantly drafted.” He told Gans, “Thank you for giving us a second opportunity to take a look at this tough case.”

The case, Milus v. Sun Valley Co., involves a skier who hit a bright yellow-padded tower snow gun in the middle of Lower River Run at the resort in 2019, and died from his injuries. The skier, Stewart Milus, was a doctor from Boise. His widow, Laura Milus, sued the ski resort for wrongful death.

According to court records, Milus was skiing with “poor control” on the moderately crowded groomed run on that clear Saturday afternoon. He skied across the backs of another skier’s skis and yelled, then fell and crashed head-first into the tower, one of a row of such towers that stretches down the run.

The district court dismissed the lawsuit on summary judgment, based on Idaho’s 1979 Ski Area Liability Act. The widow appealed to the Idaho Supreme Court, which in December of 2023 overturned the lower court’s decision, offered an entirely new interpretation of the decades-old law, and said a jury should weigh whether the ski area was at least partially to blame, regardless of the skier’s actions. Sun Valley Resort sought reconsideration of the court’s decision, which the justices granted.

Idaho Supreme Court hears arguments from both sides on state’s skiing liability law

On Friday, both sides made their cases, as the justices closely questioned the attorneys before them.

Matthew Gunn, attorney for the widow, called Milus’ death “tragic and preventable.” He said the law “does not confer immunity and carte blanche on Sun Valley.”

“The bottom line is this court, in its unanimous decision, did not get it wrong,” he said.

Gans said, “Sun Valley is not contending and has never contended that this act is a full-blown immunity statute.” It does, however, provide “significant” protection for ski areas, she said.

Gans noted that the law clearly says a skier can’t collect damages if their injury was caused by colliding with “plainly visible” snowmaking equipment. “There is no dispute,” she told the justices, “that Snowmaking Gun 16 was plainly visible here. The court has seen the photographs.”

The December 2023 decision from Idaho’s highest court has caused great consternation for Idaho’s 19 ski areas, which range from giant Sun Valley to tiny, one-chairlift mom-and-pop ski hills. If the state law doesn’t afford the resorts the liability protections it’s long been thought to provide, they expect to see a big increase in lawsuits, along with sharply increasing liability insurance costs. That could drive up the cost of skiing statewide, and force small resorts out of business if they can’t afford the increased costs.

Laura Milus attended the arguments on Friday, as did the general managers of three Idaho ski areas and a host of others; the arguments also were streamed live online. 

Milus said afterward that she thought it was “reckless” for Sun Valley to have snow guns “right in the middle of a beginner run, where somebody is going to go out of control.”

“To me, they’re ticking time bombs,” she said.

Brad Wilson, general manager of Bogus Basin, also was at the arguments. He said there are lots of things in the middle of ski runs — including other skiers. 

“Whether they hit a person or a snow gun, they still are obligated by the ski area liability law to ski under control, regardless of their ability level,” he said.

What does Idaho law say about the responsibilities of ski areas?

Idaho’s law, in its nine enumerated duties for ski areas, includes requirements “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,” and to “place, 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.”

The law also says ski areas can’t be held to “any standard of care” for actions designed to lessen the inherent risks of skiing, meaning they can’t be sued for how well they accomplish them. A long line of decisions from the Idaho Supreme Court  and federal courts has held that that applies to all nine of the enumerated duties of ski areas. 

But the December 2023 decision, authored by Zahn, disagreed, instead applying an “ordinarily prudent person standard of care” to those nine duties for ski areas. That means juries would have to decide, in each case, how well a ski area did in complying with its duty.

That’s the common-law standard of care that generally applies in lawsuits, and would apply if there was no ski area liability law.

“I struggle with a duty that’s imposed with no standard of care,” Zahn said, adding that makes the duty “essentially meaningless.”

The law, at the end of the list of the nine duties for ski areas, says there are “risks inherent in the sport of skiing,” and “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.”

There were three points on which the high court’s initial ruling appeared to depart from precedent in Idaho, and from the lower court’s ruling: It identified a new “ordinarily prudent person standard of care” for judging how well ski areas carry out their nine enumerated duties under the law, rather than concluding that the law eliminated any standard of care for those duties; it ruled that it should be up to a jury to decide how well Sun Valley carried out two of those duties, regarding what constitutes a “warning implement” on snowmaking equipment and whether the resort had adequately posted notice that snowmaking was “in progress” when snowmaking equipment was in place, but no snow was being made; and it held that the skier’s compliance with his own enumerated duties, including controlling speed and course and heeding all posted warnings, can’t be considered until a jury decides if the resort was negligent with regard to warning implements and signs — and can’t be considered at all if the jury finds the resort failed on those points.

Gunn argued that the court got it right this time, and that all the prior cases were focused on different clauses within the law, so they shouldn’t be viewed as controlling precedents. 

“Is it possible that it’s just sui generis, that the case was so different from other cases we’ve decided under the skier statute?” Moeller asked Gans.

Gans replied, “I don’t think it’s inapplicable.” She noted that multiple Idaho Supreme Court rulings stated that “the statute eliminates the common-law standard of care.”

Gunn came in for heavy questioning from Zahn when he suggested that while the snow gun may be plainly visible in the photos, “What is plainly visible to me is not necessarily plainly visible to Mr. Milus, a … novice skier in the middle of a beginner run.”

Zahn said Gunn hadn’t presented any evidence of that. 

“Regardless of whether it’s subjective or objective, whether you’re a novice or an expert, it’s there in the middle of the run, it’s the only thing in the middle of the run,” she said. “How is that not plainly visible?” Gunn responded that “there is an argument” that could be made to a jury.

At the conclusion of the oral arguments, Chief Justice Richard Bevan said, “This matter will be under advisement, and we’ll render a decision.” There’s no set timeline for the written decision; it could be weeks or months.

Brian Bressel, general manager of Lookout Pass ski area, a small resort in North Idaho, said afterward, “They are wanting to get it before a jury so they can just play on the heart strings.” He said that’s what he’s seen in most of the ski area lawsuits he’s dealt with over the years.

Wilson, of Bogus Basin, said, “We all do whatever we can to make a ski area as safe as possible, but you’re sliding on a slippery surface. … If you can’t assume this type of a risk, then you probably shouldn’t be participating.”

Bressel agreed. “There’s some risks that I’m willing to take on, and some I’m not. Skiing is not one I’m willing to give up.”

Jeff Colburn, general manager of Silver Mountain in Kellogg and the president of the Idaho Ski Areas Association, said, “I think they were asking good questions at the end. I got some hope out of that. I thought the justices did their homework.”

Gans said, “We’re grateful that the court is taking a second look at it.”

Milus said she wants a jury to hear exactly what happened to her husband in the final moments of his life after striking the snow gun.

“If we lose, I go on with my life,” she said. “But at least I’ve brought awareness to this issue to the people in Idaho. And they need to be aware.”