statute twenty three two seven thirty six subsection four states that a skier is legally responsible for injury or damage of any kind quote to the extent that the injury or damage results from the inherent dangers or risk of scheme what this means is to the extent that the injury is a result of something else in this case and all cases across the country addressing this sort of issue that is resort negligence if it is the result of resort negligence and it is not the skier's responsibility it is the resort's responsibility well but now for i i hesitate to take you took me right to twenty three to seven thirty four says results from an inherent dangers and risks of skiing and then you left off twenty three two seven zero two two says inherent dangers and risk of skiing means those dangers of conditions that are part of the sport of skiing and d d is collisions with natural service or search subsurface conditions such as bare spots forest growth rock understand rocks absolutely and other natural objects abscess variations in steepness or terrain where the natural result of the slope design snowmaking or snow grooming operations including but not limited to roads free stroud terrain ski jumps catwalks absolutely and other train modifications and then i goes the failure of a skier to ski within that skiers ability which really got me because i don't have much ability but i mean the bottom line is it seems to me you left off the most important part of the not that you're not at all your honor at it is front and center that ninety nine percent i'll say of collisions with rocks or terrain or all the things listed in the section that you just read your honor those are going to be not only inherent risk of skiing when that happens it is going to be that the full extent of the injury was caused by an inherent risk of skiing the way that the montana supreme court interprets the statute and i believe the reason the to the extent language is there at all because it was in after brewer when the prior statute was declared unconstitutional because it exempted resorts from their own negligence the to the extent language is there to say if it is caused by an inherent risk of skiing then it's the skiers responsibility but to the extent it is because of resort negligence and resorts have negligence with regard to rocks in very narrow circumstances well it is right or well sorry i let me just figure out what the you know we've got the rocks on the table or on the mountain at this point ok when you were in the lower court you said that his injury the doctors injury was caused by the creation and subsequent modification of a cat track but then when i read the appellate brief the focus is on the fact that in your view that these rocks that existed differ depending on whether you're looking down and you can't see him or you're looking up the slope and your view that the resort operator could have covered him up or would have seen him so which is it well the argument is both and you're raising a preservation issue which is implied at least in the response briefs i'm going to provide the court for citations to where this very argument was made and preserved in the district court which is why you can see it in the district court just go are you are you arguing still that it was the creation of the cataract was one of the problems well it was a problem in the sense that absent the rocks a kept track as an artificial condition is not what caused the plaintiff to fall and it is not what alone caused the injury the way that the cat track plays into this is that the cat track is what obscures the view of the downhill skier in this particular area which everybody would know any so yes would know that yes there are many of them out you've got the cat back you know what you can't see and and so if these were rocks that the resort knew and there are some that are just out of bounds or over there you can see in the photographs that are visible from below and above those are in the inherent risks of scheme because skiers don't mind rocks if they can see them the question is does the this court because i'm not sure i agree with cream court but i gotta deal with whatever they say were there i agree with it or not they say one cannot sue the ski resort for an inherent risk impossible to eliminate correct because in that event there's no negligence what evidence do i have in this record that these inherent risks were possible to eliminate so  eliminate them in two ways and were really in evidence do i have in this record not your good argument then cite the record page says evidence is there page seventeen of the response brief quote if any unusual hazards have been present on elkhorn the ski patrollers who conducted the inspections would have marked the hazard the question here is did they have a duty to mark the hazard had they marked the hands but then you also went by the time they took these photos the testimony is that the snow had moved around a lot right some some snow had moved around and the jury's going to have to consider which snow how much snow absolutely one of the arguments that i expect moonlight basin to make a trial is that the snow is what uncovered every one of the rocks that the district court called the rock garden and that they couldn't be seen from below that morning but that's a fact question your honor it's not the only reasonable inference from this record so i guess i don't find anything in this record  suggest that anyone had been close to this particular place at found rocks that were inherent not inherent risks and should be given notice that i have stuff about well somebody went someplace up the hill i have other things that i could get into if i want to read my notes but there's nothing to suggest that somebody at the ski resort could have determined or should have determined or would have been at the place to determine that these weren't inherent risks your honor all three of those are undisputed and you can see all three of those in the response brief number one at page forty nine of the response brief quote it is undisputed that moonlight inspected elkhorn the very rounded to shew the day before the day of and the day after argument cannot be the law cannot be that a resort understands that it has a duty which on page seventeen it concedes it has a duty to and mark unusual hazards that it was there that day it could have and should have these the problem comes again counsel you're assuming facts not in evidence in each one of these quotes i said to myself if there was nothing which would suggest given the snow condition when they went by that this was not in an heron risk and there's nothing they needed to do because there's no way it's impossible to eliminate your honor so supplemental excerpts one hundred two and supplemental excerpts ninety nine supplemental act those two photographs are photographs taken from the downhill perspective the ski resorts perspective from the side or below you can see what the district court called a garden of rocks it is undisputed in this case that you cannot see that from the skiers perspective if you have completely buried walk rocks and the ski resort when they do the patrol that they do every day to find these very hazards and they understand that it's their duty to warn if they see the hazard if you have them which your claim is well aware of and which is really read into the statute that the conditions change constantly and so i don't assume you're suggesting that there's an obligation of the ski resort to be i believe so your honor so the rocks that they have a duty to warn about art unique got their rocks where from the resort's perspective they can see that they're there if they can't see they don't have a duty to warn about  just second as to whether the result can see them and the use of like you to concentrate on the photographs were taken after the accident yes right yes and when you disputed statement the facts you say that there was a lot of before the photographs were taken correct how do we know that the photographs the picked what the resort could have seen before the and the you're on of the plaintiff at trial is going to argue that there are so many rocks that you can see the rock garden that the district court saw that the accident did not dislodge all of those for all we know it covered up rocks you have the you have the obligation to the presentation of photographs to show it to have some testimony that the photographs accurately depict the situation which you describe could be disputed facts you say there was a lot of snow moved around which directly contradicts that foundational testimony i don't i don't believe so your honor not completely i think if there were one rock in those photographs there was testimony that that was the rock that was hit and that that uncovered the snow then i completely agree with you where we have a rock garden and we have the two photographs that supplemental extra one hundred two and ninety nine where the district court sees a rock garden i think there is a question of fact at the very least whether those rocks were visible from below it is undisputed that they were not visible from the perspective of the skier and therefore it is like all of the cases where there is a hidden danger that triggers a duty to warn on behalf of resorts and in this case they admit that they have a duty to warn when they see these they admit they patrolled for those dangers and so if there is a question of fact that any of those rocks were visible from below and not visible from above they were a trap that they had a duty to warn and there's a speed issue effect for the nature of that make sure though that when we're looking at the rocks in the photos and this he's like this there is a set of rocks that's over to the left yes those are the out of bounds rows or i think those are out of bounds or close but at the very least that particular collection of rocks were definitely visible from above and if those were the ones that he had hit but he that's not herit rest he did not pose are not the ones we're talking and i thought that the testimony was those are that those are at the barrier i think it's a slope so i mean that's when you look at a rock on you might look up there there's a lot more rocks up there but correct when you look at the actual photos you see really individual rocks that may or may not have been covered by the churning of the say no i think that the resort most certainly will argue that they were not and will argue that they think that's my biggest problem is somewhat similar to what you're ask you seems to me you are greedy that the ski resort cannot eliminate the possibility of hitting in iraq absolutely and it seems to me that you agree that the ski resort need not even worry about rocks which are inherent risks if and less unless they can do something about them if they can eliminate the danger appreciate about us and it seems to me that you're further saying you have no proof about what happened in this particular area prior to the accident we your honor there's no  you have is the proof after the the two photographs i'm just a minute tell me if i'm wrong it seems to me your photographs are all proof after accident and they are hacks seen with all kinds of removing snow and moving snow around and so it's not really like it was before the accident not exactly like it was before the better point you're saying that a district judge should allow that evidence to go to the jury and be enough to give damage your honor the while when you're arguing i'm arguing that because phonemes like i go to a traffic accident scene i know what the traffic accident scene is after i don't know what it was before don't think anybody could accident reconstruct as too many of us ski your honor i think that a jury can look at these photos and they will be presented with the argument that these rocks were some of them at least some of them are probably covered maybe some of them were uncovered but there are so many that the district court called a rock garden that there are enough that these were visible during the admitted patrol that happened that morning on this very ski road but do you looking back again going back to your allegations you say that when my basin had actual and constructive notice and knowledge do you have any evidence that they had actual knowledge i don't think so your honor i think it's all we're talking about i think that we're talking about construct i think and that comes from the fact that he hit a rock and and what no your honor it is not just from the fact that he hit iraq it is from the photographs that those rocks were revealed were visible during that admitted patrol that morning to look for these very dangers and put out warnings for any dangerous conditions so that's why that's my question i guess is do we have any evidence that those rocks were there in that uncovered state during the morning patrol yes and what is that evidence so supplemental supplemental excerpts one hundred two and ninety nine are the two photographs looking uphill they two photographs looking uphill there are going after the fact they were taken right after the accident the skis are still there and so there are a number of rocks that are uncovered from the downhill perspective and that the jury can conclude from that that at least some of those that were there that morning my problem with that is this the motion summary judgment you presented these photographs and you also presented a statement of facts that a lot of snow was moved prior to these photographs being taken it seems to me that admits the rock was unseen he admits that even if he had stopped directly above the rock he would not have been able to see it mount to ski statue specifically section seven thirty one expressly states that the purpose of the statute is to discourage claims against ski resorts and to define the responsibilities of both skiers and ski resorts so you can see if if the ski resort in the exercise a reasonable care the ski patrol an example of a reasonable care could reasonably have seen the rocks from a different vantage point than was seen by the downhill skier would that be evidence of negligence if express the states that the skier assumes all do dark see me soon as all the inherent risk of skiing so therefore there is no duty of the ski resort to mark those but i understood this for them in montana supreme court to say that risks that were inherently impossible to remove were those took types of risks but if they were inherently possible to remove by a warning sign then you would not risks and in your are i believe you're quoting from the brewer case the brewer case was deciding interpret in the one nine hundred seventy nine version of a secure responsibility statues and then if you the statues have one since been changed and two if you look to the mead case which was the second case interpreting them onto a skeer statute the supreme court stated and i quote we hold the that the defense of assumption of risk other than as specified in the ski or responsibility scout act is not a separate offense so what the supreme court was saying there is that assumption of risk to the inherent risk list in the statute that is a defense and in that case there is no duty to eliminate those risks so your position is if there's a little pile of rocks on the ski slope and we have ten accidents so this resort knows that this particular area for example is prone to the afternoon sun and the snow melting in exposing the rocks that even with that knowledge the ski resort would never have liability because rocks around here with rocks are inherent risk but the point is that they don't know it when they have liability ever i don't know because that's not the facts of the situation  say that i need to know your answer to that because i'm trying to understand where you're drawing your line in the snow because you're basically saying that any rock injury would never be the subject of religion as i hear it that is not that that is not the case before the court but that according to the plain language of the statute it is excluded and we know exist in fact oh so what you're arguing is that by look at meade and i look at the amendments to the statute after brewer there is a positive legal exclusion of this liability we're not looking anymore at impossible to eliminate exactly or on brewer because the statute that existed in brewer said essentially if you are skiing and if you are injured there is no liability then the statute was changed and specific inherent risks were laid out and then we have section seven thirty three which requires the specific duties that the ski resort must accomplish and then it also says consistent with the duty of care so we have essentially three categories of how injuries could because one they could be caused by a violation of section seven thirty three which would most likely lead to liability against the ski resort to we have injuries caused by the inherent risk there is no duty to eliminate these those and then three we have this other category of of injuries that were caused by something other than those two things and in that circumstance then you apply the reasonable do you care that is the in the introductory language to section seven thirty three to supreme court has consistently made clear when the when a statute is clear and unambiguous as this statute is that the court may go no further in interpreting the statute and this statute is clear it is unambiguous and plaintiffs don't even argue that it is ambiguous statute but instead they're trying to add additional language to the statute that does not exist and it on page seventeen of their opening brief they state and i quote if dr koop eakins injuries resulted from moonlights negligence then moonlight is liable regardless of how the skier statutes are word that interpretation would make the ski statute completely and totally meaningless it isn't sure it is imposing an ordinary negligence standard on top of the plain language of the statute the simply does not exist plaintiff is mr presenting both the facts and the law to support their argument the misrepresenting the facts in numerous ways first of all they are repeatedly claiming that moonlighted knew about these rocks and as the court i think it's question suggesting is even without actual knowledge that the nature of the photographs and the slope and the location would at least create an inference of constructive knowledge enough to get you to the jury so that seems to me to be the question you need to answer for us right in that that's incorrect the statute does not say that rocks covered in snow are an inherent risk if the ski resort does not know about them but they are not an inherent risk of the ski resort does not know about them that is not what the plain language of the statute says similar to the plane going that's what because that's what the plain language of the statute says if you apply brewer to it i agree if you were if we were interpreted in the one nine hundred seventy nine version of the statute that's what we would have to do but that is not the version of the statute we are interpreted and blue brewer is is no longer a political and we know that simply by looking at meade so what part of seven thirty three was amended to give you this argument well we specifically look to the language in mead in mead the defendant in that case was making the argument that the ski resorts only duties are those set forth in seven thirty three and in response to that argument then the montana supreme court said were we to accept the interpretation of twenty three to seven thirty three which is suggested by defendant it would be immune from liability for its ne and or intentional acts and then we would have a broader problem but the supreme court in mead was not saying that you that you would apply brewer to every single see case you would apply brewer if as that if the senate was making the argument as in brewer that as in need that the only duties are those set forth in seventy three that's that's not what moonlights argument is in this case i'm trying to figure out which would moonless argument is that the plain language of the statue saying that the rule of negligence is trumped by a specific language in the ski statute which lowers the duty of care and in this situation makes it as a matter of law the plaintiffs fault exactly or are where is that language in the ski statute that trumps the idea of negligence seven thirty six shot of there is no duty to eliminate the inherent dangers in risk of skiing so therefore there is no negligence seven in time to put up a sign saying danger rocks i understand that's what plans the argument is but that's not what the statute says what about the language of the statute removes that as a possible legal argument for the pla seven thirty six subsection for a skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury damages results from inherent dangers or risking and then you look at seventy two subsection two at the definition of i mean brewer says what it says and me says what it says and i'm trying to parse between the two i wish i had been on the supreme court but it seems to me that seven thirty six four is exactly what you say it is and if you take seven thirty six four and you move it over and talk about seven zero to two i can understand your argument but when i then impose brewer on that argument i still come to the opinion or to the general idea that if it's impossible to eliminate your argument is right if it's possible to includes in the definition of inherent risk free style terrain and ski jumps those are things that are built by the risky ski resorts obviously those can be eliminated but they are still within the definition of inherent risks of the statute and under section seven thirty one those are part of the attraction of skiing those the inherent risks that are part of the attraction of skiing those things can be limited but yet the ski resort has no duty to do so is just like a subsurface rock just like the subsurface rock the doctor he can hit there is no duty to eliminate it and can you point us again to the language then in me that you think gets us to that conclusion there's two two things your honor one we're looking at under this under the the final issue in meade where they're talking about assumption of risk and risk other than as specified in the ski responsibility statute is not a separate offense so that's the first part and then the second part and i think you've got your assumption of risk in the statute there's glad my colleague is asking you these questions about where mead gets so we eliminate what we're reading in brewer sure if we if you take a close read of mead under issue one it would be on page four seventy four to sixty four mont four sixty five page four seventy four would be one to the third full paragraph there it says begins the second an interpretation of a statute would give effect and there and then they go on to explain that the only time that you have the brewer problem is if you interpret the secure responsibility statues to mean that the only responsibilities ski resort has are those set forth in section seven thirty three and that your argument is that they have this group of exclusions and if that correct and those exclusion relieve the ski resort of les billy correct but if somehow by listing the exclusions it meant that you couldn't have other circumstances of liability then that would be a problem is that what they're saying in maine you lost me on the just on that last part if if the only if the ski resorts only duties were those set forth in seven thirty three then you have a brewer problem and it's zero but it's only due to duties they actually get out of those duties because they are inherent risks right no not no no no they get out of the duties that are were injuries are caused by an unfair risk right but anything that is not caused by an inherent risk and then there is then there's a duty of reasonable care and that's where the introduction of language to section seven thirty three says so it looks like i am about out of time i would simply asked of the court applied plain language of the statute in this case the district court went above and beyond what was right by the statute and not only found that this was an inherent risk but it also found that the defendant this case complied with his duty of reasonable care by generally more morning dr kobi can of unmarked hazards so we respectfully request th so i'm looking at the definition of inherent risk in it says avalanches except on open machine groomed ski trails so if there is an avalanche on a groomed trail does this language mean that there could be liability for that on a groom trail yes because as avalanche is an inherent danger but it says except on a machine room trip it's yes that's exactly means so if there was an avalanche on a machine groomed trail then then you would go to the next question did the ski resort act reasonably to try to mitigate the avalanche either it is just on further asked that question it's the colorado supreme court addressed i guess almost that exact same situation in the flurry case flurry verse that believe it was winter park it was an imbalance avalanche and the court simply out analyze your honor brewer was a constitutional mandate that the montana legislature cannot immunize ski resorts for their own negligence brewer did not become irrelevant on that point just because the montana legislature amended statute and i believe the operative language in seven thirty six subsection four that gets at this is the phrase to the extent that and what that leaves open is what's described in the case law across the country which is to the extent that something is caused by the inherent risk of skiing in the skier is responsible to the extent it is caused by something else resort negligence then the negligence is not listed as an inherent risk of scheme and that when what is causing the injury is a failure to warn because the resort has a free standing duty explained in mead under the montana statutes not to be negligent and the list that's provided in the statute does not is not an exhaustive list and so they certainly still have that free standing duty not to act in a negligent manner if they know about a danger their general warning is just fine as long as it's a danger that the skier can appreciate if the skier cannot appreciate it the general danger is not enough that's why they patrol and when they see a danger to a skier that the skier cannot appreciate they have a duty to warn a specific duty to warn in those circumstances that is montana law it has to be montana law after brewer because brewer says constitutionally you cannot eliminate ski resorts negligence or immunize them for their own negligence and if i could your honor just quickly to diagnose where i think the district court went wrong here and i would urge the court to look at the supplemental excerpt at eighty seven which is the plaintiff's deposition the argument in the district court that i think the district court ultimately bought was that there is undisputed evidence that these rocks were covered from any perspective and the reason i think that the court got to that conclusion you can see it in the memorandum decision is because of a construal of the plaintiff's deposition in the plaintiff's deposition he's asked can you see this rock going down the hill he says no they say well if you went up right up to it and stopped could you see it no i couldn't still above it and i could only see it when my skis penetrated it and knocked it off that is construed to be an admission that they couldn't be seen from below and that is not what that deposition testimony says so those those photographs which are admitted for purposes of summary judgment provide some evidence that those rocks were visible during that patrol the that morning they concede that if they see a specific danger that the skier cannot that they will warn the skier there was not a warning here so if the jury concludes that they could see those rocks in their morning patrol they had a duty to warn and didn't ha they warned this accident would have happened so the accident as a result of a failure to warn to that extent the resort is liable under utah or under montana law thank your honor thank you thank you both for your arguments this morning the case just