went to jackson hole in the jackson hole mountain resort in january of twenty seven paying for their dream ski vacation tom had grown up in california ski areas and his wife now live megan wasn't quite as experience but this was a dream of a lifetime it turned out to become a nightmare as we see because mr sanders suffered a very severe lower leg injury requiring multiple screws and plates and that sort of thing when he encountered an obstacle on the ski slopes in an area where it was perfectly legitimate for he and his wife to be skiing  if you if you look through my brief or if you have it handy on page five of the brief is a photograph of the obstacle that mr standish hit now that photograph then go to the next page page six of the brief you see where the accident actually happened and this is actually a scene photo taken with a cell phone so the stump is virtually invisible at that point and that's part of the problem because mr standish certainly was a good enough skier that if he could have seen any portion of this stumpy kind of speed around it or passed it and avoided his injury well is that is that little thing in the middle of the circle with sticking up for you on page six of the brief your honor i've got so i guess it's on my  but it's a picture of miss this he area to circle around and there's a little thing sticking up and i don't know when it was taken over yeah i think maybe that's another photograph or just below the snow level once he hit it then a bit more of it became exposed and there was actually testimony from two other skiers who came along shortly afterwards that that demonstrates that  was was a little bit more visible after he ran into it which makes sense it's not mr socky i mean is isn't an inherent risk of skiing that there's going to be unmarked obstacles and hazards on runs and you know that's an wyoming statute you know put you know shift the rest to a skier that might know he or she might encounter those obstacles outs you know part of the sport of sport of downhill ski well when we look at the definition of inherent risk which is a risk that is either intrinsic to or characteristic of the activity your question might be yes however there are factors in this case and in this situation which take as far away from just the global view of it we don't know for sure how that stump became there's something wrong with mr standish and his wife being there and that's just wrong you know just because you're at home doesn't it just means on group rides broomed when you expect maybe with with eighteen or twenty seven new ages and eighteen on top of that that it would come up well the other side of that your honor is so should the ski area have expected exactly the same thing because we had to adopt what  their version of the facts was and they said that some years before mr spanish was injured the other part the top part of the tree was sticking out and i had to cut it off and they cut it off with snow level so they knew the s area knew that as the snow levels rose over the winter the snow would eventually reach to the top of or cover this hazard and that's what happened with m hazard became just invisible he would have a duty to avoid a known hazard so that doesn't the ski areas then have a duty to remove just cut it off the ground what that's our case your honor ok that's our case that we say that it was a job left on done that's the phrase from our ski safety expert that they created this hazard by cutting off the top and there are various cases factor in whether or not they are responsible for the in the situation as it exists and that takes it out of the realm of being an intrinsic or characteristic this area apparently and they were all cut off at ground level no snow around level and so in this case what if snow but if the stump instead of being obscured was about if say a foot off resort would have a much better defense in saying that mr standish had some responsibility for not avoiding the hazard they created in other words if there's a foot or a foot and a half of stumps sticking up  standish could be charged with the well is that no doubt a rolling consideration under your interpretation of the safety act my interpretation of the safety as well as that of judge rankin in this court is that every case has to be viewed almost microscopically with respect to the very specific facts of the of the situation in the accident as it occurred and so therefore our position is that looking at the specific facts and the specific situation when mr standish was injured we find a liability on the part of the ski area because they knew that if they cut it off it's no level in the year or two or five years before they created the stump then they knew that it could result in a situation exactly as we saw and by the way i they went and they finally cut that down and cut it down to ground level as you're suggesting after mr standish was hurt and after this lawsuit was filed just so i understand your position for sure when i had snapped this tree at six  touch it you own it and the ski area definitely had assumed control of this hazard that created the hazard and they didn't go back until after mr standish was  sure they understood what they were doing when they credit we know that they they say they cut it low level then and so at the time they cut it we believe that they had knowledge that it could present this hazard when the snow was barely up to it or right at it or just over it and they knew it was a hazard it took our lawsuit and our claims to make them finally believe they should go eliminate the hazard going to the job that was left on  best memory of the people that they cut a year a few years before they didn't keep records of that or anything like that ministers mr shock me jackson well a natural some might be but judge your question goes to two different issues one is what what should judge rankin have been doing when he substituting his judgment for that of water juror might know on a jury would know about the roman case and sure wouldn't know about the colorado statutes and that's a big part of our argument is that judge ranken mistakenly looked at many other states and many other statutes to get a sense of how he as a judge might assess the case and it's our position that on summary judgment he should only be looking at the facts as  they existed and only facts that would go to a jury and the jury wouldn't be hearing about other cases statutes and the other state statutes and the jury wouldn't be hearing about a number of other cases  both in wyoming and in the federal courts where judge franken seemed to compare well this is sort of like that here's an example the kuperman case longstanding case in this judicial circuit his own view that you have to look at these microscopically and specific to their own facts and i could say well the kuperman case also says that if a as a hazard is really common and happens a lot then that's an inherent risk but if it's uncommon it is an inherent risk and this was somewhat of an uncommon risk created by the resort themselves in order to u though don't go and look at other cases and don't look at what if it happened a week before or what if the scope was color or short we have to look at how it was the day it happened and assess it on those on that basis according to this court's decision a few issues that were just raised it's not the discussion about cutting the tree off at a particular high end judge phillips it asked what if the when did cause it to break the reality is and i believe it's in the record with the ex reports the best supposition is that it did break off and therefore somebody up there with a chainsaw cut it off it's no level in the wintertime that's the best gas speculation but we don't know and there's and it's not a given or accepted that a ski patroller simply went up there decided to cut that tree off at a snow level there'd be no logical reason for that but we're never going to know all and the tree was quite weathered so it did appear to have been while yes the tree was cut down after that would  likely be inadmissible if we wanted it to be in any trial to enter and the jury but i don't know what particular relevance it has having done that can't create a duty where none existed  judge rank and has found that none existed and the issue of judge range and looking at other cases and other other states rather as as to their  talk about hitting trees films rocks and they also talk about variable snow conditions changing snow conditions the focus has been here on the whatever happened to that tree and who did it and according to plan as expert mr gale it didn't finish the job by going up there and cutting it off the ground level the real focus here in our position is judge rankin's position basically was this is about variable snow conditions as the question was posed by i think judge kelly a week earlier or probably potentially a couple weeks worth of snow later this tree pose no risk every tree up there that is more you know they open the resort there's thirty six dollars inches of snow three foot trees are a something the fact that the attach it then you own it and on that point the last word that i see from os is roberts versus jackson home not restart and here's my concern here's my focus at least right now is scattered throughout here and i have it open to two pages and i see three references to it i'll just read this very quickly following this amendment a critical distinction is emerged in the case law between a provider's failure to control inherent rest which is no longer and he dealt with that by saying that's dictum and perhaps it is but our word processors are plugged down and i guess i would wonder why shouldn't that be the line of demarcation and if it has than how can the resort's say it and from at tivoli enhance existing risks well st off i think it has been accepted by the experts and it's in the record that the the reason that tree was cut at all was to mitigate risk and you could make the argument that ok it created another risk that's always going to be the  case if you unless they do go up there and cut things off right at ground level every time that's impracticable and it's impossible for them to actually mean chain it that's the fundamental maintain it in a perfectly safe condition that's the fundamental mental basis of the safety act and as well it was mentioned earlier and now the ski act and was mentioned earlier  if the reason there are stumps up there in the reason that stumps are mentioned in the act is because there has been human activity but every one of these to my knowledge every one of these other states and now our ski safety act mentions stumps as one of the potential risks and i i had i think mr gale i think we mr mr it was a day of bad luck for mr standish a combination of factors i don't accept the proposition that the risk was increased the amount was in many maintaining the debt create another potential risk there's a lot of risk up there that's the basis for the act if they couldn't cut the tree i mean say the kind of assumption was the tree had broken off if they would not have cut it if that were the case somebody ski in along they're going to hook their ankles on it and suffer another type of injury so present there is a difference between boulders and pits caused by boulders which nobody expects anyone that take a it's part of the risk of alpine skiing it's inherent it's integral to it unless they want to turn it into one of the groomed runs which is not if this had happened on a regularly groomed run  then i would think this case would make perfect sense but it didn't it happened on what is essentially back country skiing that is minimally maintained for obvious and old for obvious and open risks that the ski patrol can identify and part of the reason for the record safety act and now the ski safety act is because it's essentially impossible to perfectly to have to offer that kind of recreational experience and provide a safety blanket align with it people don't ski that terrain because it's perfectly groomed and taken care of it they ski it because then they go home and tell our friends they skied the big one in with all the trees and they may they have a great time and you know sometimes they get hurt and that's what i get but i have a ski jackson hole that a lot of colorado don't know that i mean there is there are warnings and his pass actually contain language just like you're talking about but the skate ski safety act requires them at every as i recall every  lift loading area there's a great big sign right at the tram at the bottom so they are there it is but if it isn't directly on point because it's key a save for the recreation safety act in effect the mist at the time of immunity under the safety act if you mean if they cut them in they create i guess in this case a caps of trees right in the middle yeah i guess part of that would be the rationale for doing that but i don't i don't see how it differs i don't think it's necessarily a quantity issue it's more of a quality issue if that's the right  i don't know that that would have made a difference now if there is willful and wanton type of misconduct that's never going to fall within the inherent risk by the analysis of any court i'm sure but i would like to point out a couple more analogies if a person goes down and hits a sign that's in a reasonable place on the mountain and it's there in order to enhance safety it still creates a potential risk of somebody hitting it and we've had that case and and the case was in the th circuit were a woman fell and hit a sign now the case was dismissed on other grounds by judge frieden fall but nevertheless the sign is man made lift towers are manmade people falling out of chairlifts is an inherent risk and has been ruled as much now leased by a wyoming jury in a case ahead so i don't think you can simply say if there's human involvement it can't be inherent risk they have to be able to whatever level try to mitigate dangers without creating another liability because maybe it's not the same danger maybe it's a little less and maybe it's a lot more of the time they did it it mitigated a danger which i think is kind of accepted in this case mr shockey may feel otherwise but i think both experts why doesn't it get get to these issues get to a jury under the under the cases that suggest its various acts specific you mean shit how could this not go to a jury for  i don't think the facts are in dispute i mean we agreed that someone at the ski area had to have cut it off they had to have cut it off in the winter because that only made sense because of the level it was cut at six and a half you know they wouldn't be up there i mean there's no reason to be up there with a chainsaw problem on and off but we don't we don't really know those facts that they're not there's no evidence there to provide to a jury for any different analysis than judge rankin's whose job would it was to determine and i would like to address the you know it it kind of puts part of the purpose of the recreation act was determined to protect people providing potentially dangerous activities to the populace and to to say well you tried to fix it yeah that's great but instead you created a kind of a sudden risk a nolen somebody got hurt that puts recreation providers in exactly the catch twenty two that i don't think the legislature intended the legislature wants them to try to make things safer going hand in hand with presenting recreational opportunities without facing these kinds of suits if people voluntarily you know there's the case about the timorous need not tender apply from the supreme court i think but that you know  on you mr stockton duty to terminations in a case like this is fact dependent and that's why on page eleven of my brief i cite a long string of cases from the circuit that say that this is a jury question judge ranken shouldn't have answered the jury question by relying on facts outside the record other cases in other states and we send this back for a jury trial please thank you counsel you're excuse