Alpine skiing is an inherently dangerous sport. But does a stump hidden by freshly fallen snow count as an inherent risk? Or does the mountaintop ski resort which created the stump while managing its slopes have a duty to remove it?
These questions are central to a case brought by a Californian couple whose quest for steep terrain found heartache instead. Standish v. Jackson Hole Mountain Resort Corporation raises fundamental questions about athlete risk and premises liability. The U.S. Court of Appeals for the Tenth Circuit, which is one level below the U.S. Supreme Court, answered these questions on May 14.
The case concerns a serious accident from January 2017. Thomas Standish and his fiancée (now wife), Meghan Keiter (Standish), vacationed at Jackson Hole as part of their “bucket list.” They arrived as a massive amount of snow—45 inches over a four-day period—blanketed the resort and surrounding area. The couple purchased ski passes that included a liability disclaimer, which required acceptance of inherent risks and hazards.
Standish and Keiter started their day skiing several machine-groomed runs, then decided to head off-piste, into ski area on the resort property, but unmaintained by equipment. There, Standish’s right ski collided with the top of a six-and-a-half-foot-tall stump hidden by snow. Here is a photograph of the stump, sans snow, in a court record filed by Standish’s attorney, Gary Shockey:
The impact of the collision on Standish’s right leg was catastrophic. He suffered multiple fractures, requiring surgery, bone graft and the insertion of 14 screws and two metal plates. Additional complications after surgery left Standish unable to work, forcing the couple to sell their online apparel business. Standish continues to suffer physical impairment from the leg trauma, he says.
The Standishes filed a complaint against Jackson Hole in Wyoming’s federal district court, as both claimed losses. He sued for negligence, while she sued for loss of consortium, which encompasses harm to a couple’s relationship. The stump was a focal point of pretrial discovery. Jackson Hole’s risk safety and environmental manager acknowledged the tree had been cut, but didn’t known when, why or by whom. Leaving the stump at more than six feet, the manager surmised, was likely to mitigate a winter hazard. In 2019, the stump was removed completely.
Jackson Hole persuaded Judge Kelly Rankin to grant summary judgment. The judge reasoned that Standish’s injury was the result of an inherent risk—a tree stump rendered invisible by fresh snow—rather than a negligent act or omission. The granting of summary judgment is appropriate when (1) there’s no dispute about key facts and (2) the judge determines how the relevant legal issues must be resolved. No reasonable juror, Judge Rankin deduced, could find that the risk Standish encountered wasn’t inherent.
Through attorney Shockley, Standish appealed to the 10th Circuit, arguing, among other points, that a jury should hear the case. Also called into question was the appropriateness of Judge Rankin rejecting an expert witness’s testimony. Ski and snow sports specialist Stan Gale opined that the stump was a safety risk and leaving it at over six feet constituted “a job left undone.” He also maintained that “while the original tree may have been a naturally occurring hazard . . . the remnant left behind was not a naturally occurring hazard.” This testimony, Standish maintained, could lead a juror to decide the risk wasn’t inherent.
In its brief to the 10th Circuit, Jackson Hole’s attorneys (James Lubing and Nathan Rectanus) rejected Standish’s points. “Numerous tree stumps,” the brief noted, “in the area of the accident site become buried at various times of the season depending on their height and the constantly changing snow depth.” The brief also drew attention to the reputation of Jackson Hole’s terrain as being “among the steepest and most challenging in North America” and how off-piste terrain attracts “advanced skiers in search of fresh untracked and unconsolidated powder snow.” Further, the brief argued that “discovering and marking all unseen obstacles everywhere on the mountain is not possible or reasonable,” nor is it “the standard of care in the ski industry.” State law, the brief added, makes clear that resorts aren’t liable for inherent risks.
In an opinion on behalf of a three-judge panel, 10th Circuit Chief Judge Timothy Tymkovich affirmed the ruling for Jackson Hole. He expressed sympathy for Standish, saying “his injuries from his accident were severe and painful.” But the judge didn’t see a viable case. “Everyone,” Judge Tymkovich wrote, “familiar with the sight of the intertwining runs of a ski area knows that cutting and otherwise managing trees is necessary for the runs’ creation and upkeep. The vast majority of ski-able terrain simply could not exist in the first instance without the ministrations of sawyers and forest managers.”
Judge Tymkovich also identified adverse public policy implications should a court hold that Jackson Hole has a duty to remove stumps or cut trees to a certain level. Such a duty, he wrote, “would disincentivize recreational managers from attempting to mitigate hazards for their guests . . . if a fallen tree in an off-piste area is an inherent hazard of skiing, and cutting it off below the break creates a non-inherent risk, a ski area manager might decide to simply leave the fallen tree so as not to potentially incur liability.”
Standish could petition the 10th Circuit for a rehearing en banc, where the court’s active judges would hear the case. Such rehearings are rarely granted. Later, Standish could petition the U.S. Supreme Court, but the odds of a review would likewise be slim.