This opinion is subject to revision before final

publication in the Pacific Reporter

2019 UT 27

IN THE

SUPREME COURT OF THE STATE OF UTAH

PHILIP RUTHERFORD and WENDY RUTHERFORD,

Respondents,

v.

TALISKER CANYONS FINANCE, CO., LLC; ASC UTAH, LLC; and

SUMMIT SKI TEAM, INC.,

Petitioners.

No. 20140917

Filed June 27, 2019

On Certiorari to the Utah Court of Appeals

Third District, Summit County

The Honorable Todd M. Shaughnessy

No. 100500564

Attorneys:

David A. Cutt, David S. Kottler, Salt Lake City, for respondents

Justin J. Keys, Eric P. Lee, Park City, Timothy C. Houpt, Salt Lake 

City, for petitioners

JUSTICE HIMONAS authored the opinion of the Court in which 

CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUSTICE PETERSEN

joined, and which ASSOCIATE CHIEF JUSTICE LEE joined as to Part I.

ASSOCIATE CHIEF JUSTICE LEE authored an opinion dissenting in 

part.
RUTHERFORD v. TALISKER

Opinion of the Court

2

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 Young Levi Rutherford crashed and was injured when he 

skied into a patch of thick, wet, machine-made snow. His parents 

brought claims for negligence and premises liability on his behalf 

against Talisker Canyons Finance Company and ASC Utah 

(collectively, Talisker). Talisker asks us to hold that the 

Rutherfords’ claims are barred by (1) a release of liability signed by 

Levi’s father or, alternatively, (2) Utah’s Inherent Risks of Skiing 

Act, Utah Code sections 78B-4-401 to -404 (the Act). We decline 

Talisker’s invitations. 

¶2 Two of our decisions compel this result. First, in Hawkins

ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, superseded by 

statute as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 

301 P.3d 984,1 we unambiguously declared that it would violate 

public policy to allow a parent to “release a minor’s prospective 

claim for negligence.” Id. ¶ 10. Second, in Clover v. Snowbird Ski 

Resort, 808 P.2d 1037 (Utah 1991), we unanimously held that claims 

for injuries caused by “inherent risks of skiing” are barred only to 

the extent that the risk was integral to the sport of skiing. Id. at 

1044–45. And three years later we loudly reaffirmed our 

commitment to Clover in White v. Deseelhorst, 879 P.2d 1371 (Utah 

1994), abrogated on other grounds by Penunuri v. Sundance Partners, 

Ltd., 2017 UT 54, 423 P.3d 1150. Today, Talisker asks us to abandon

our holding in Clover and turn turtle three decades of precedent 

and the settled expectations of skiers and the ski industry in favor 

of an alternate approach to interpreting the Act. But because of our

established practices in statutory construction and precedential 

decisions in Clover and White, we reject this substitute construction.

¶3 Instead, we hold that Talisker has not convinced us that 

Clover was wrong, much less met its heavy burden to persuade us 

to overturn such weighty precedent. We therefore uphold the court 

of appeals’ decision that the district court was correct to apply 

Clover. We do, however, take this opportunity to streamline the 

1 Hawkins has been superseded by statute—Limitations on 

Liability for Equine and Livestock Activities, Utah Code sections 

78B-4-201 to -203—albeit only with respect to defined equine and 

livestock activities. See infra ¶¶ 21–22.
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Opinion of the Court

3

implementation of Clover’s holding and remand this case to the 

district court with instructions to apply Clover in a manner 

consistent with this opinion. We also agree with the court of 

appeals’ conclusion to affirm the district court’s partial grant of 

summary judgment to the Rutherfords, finding the release 

unenforceable under Utah law—although we do so for reasons 

other than those stated by the court of appeals.

BACKGROUND

¶4 Ten-year-old Levi Rutherford was a member of the 

Summit Ski Team, an affiliate of the United States Ski and 

Snowboard Association (USSA), during the 2009–2010 winter 

season. Levi was an advanced skier who regularly skied “on the 

double blacks, which were the expert runs.” Levi’s father signed 

him up for the team online in the fall of 2009. In the process, Levi’s 

father signed an “Assumption of Risk and Release of Liability” on 

Levi’s behalf. The release purported to waive Levi’s right to sue 

USSA, the ski team, and any ski area operator for any injury due to 

any reason, including the negligence of one of the above-named 

entities.2

2 The Rutherfords argue that the “Assumption of Risk and 

Release of Liability” submitted by Talisker is not the one that Levi’s 

father signed. In the district court, USSA submitted an affidavit 

declaring that the release submitted was the one signed by Levi’s 

father. Levi’s father submitted an affidavit stating that while he 

“recall[s] reading at least part of a release page on USSA’s 

website,” he “do[es] not recall signing the” release submitted by 

USSA. We do not find any dispute of material fact as Levi’s father 

claims only that he does not remember signing this specific release, 

while USSA presented evidence that he did approve the release. A 

failure of memory does not create a disputed fact. See Hemphill v. 

State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 541 (5th Cir. 2015) 

(“Lack of memory by itself is insufficient to create a genuine 

dispute of fact.”); Shiozawa v. Duke, 2015 UT App 40, ¶ 26, 344 P.3d 

1174 (finding no dispute of fact when witness “testified only that 

he did not remember” a specific fact). This remains true here, 

particularly given that, on review of cross-motions for summary 

judgment, “we view the facts in the light most favorable to 

(cont.)
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Opinion of the Court

4

¶5 On January 15, 2010, Levi’s parents dropped him off at The 

Canyons ski resort for ski team practice.3 Levi met up with his 

coaches, who told him to take a warmup run while they set up 

gates for training on the Retreat run. At this time, multiple 

snow-making machines were in operation on Retreat. The coaches 

did not ask The Canyons to turn off the snow-making machines 

because “in the past [The Canyons] kept running the snow guns 

until they saw that people were up there . . . and then they would 

shut them off when they saw that [the ski team] was on that run.”

The coach in charge of training that day testified in her deposition 

that she would not have had the team ski through the gates if the 

snow-making machines were still running by the time the course 

was set up “[b]ecause of [the] bad visibility and inconsistent snow.” 

¶6 Levi took his warm up on Retreat while the snow-making 

machines were in operation, making visibility poor. Warning signs 

were posted at the top of the run, stating: “snowmaking in 

progress.” Despite the warning, Levi headed down Retreat without 

making turns. He went into a tuck position with his knees bent, his 

poles tucked under his arms, and his head near his knees. Near the 

bottom of the run, Levi ran into a mound of sticky, wet, 

machine-made snow that was roughly a foot high, which caused 

him to crash. Levi sustained a brain injury from the crash. 

¶7 The Rutherfords filed suit on Levi’s behalf against the ski 

team and Talisker. After discovery, the parties filed multiple 

cross-motions for summary judgment. At issue here are the 

motions concerning whether the Rutherfords’ claims for negligence 

and premises liability against Talisker are barred either by the 

release signed by Levi’s father or by the Act.

¶8 Regarding the arguments for the release, the district court 

read this court’s precedent in Rothstein v. Snowbird Corp., 2007 UT 

96, 175 P.3d 560, as meaning that all preinjury releases for 

recreational skiing are unenforceable, while, pursuant to Berry v. 

Greater Park City Co., 2007 UT 87, 171 P.3d 442, abrogated on other 

 

[Talisker, as] the losing party.” Keith v. Mountain Resorts Dev., 

L.L.C., 2014 UT 32, ¶ 16 n.10, 337 P.3d 213. 

3 Both defendants Talisker Canyons Finance Company and ASC 

Utah were doing business as The Canyons at the time the events in 

this case took place.
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Opinion of the Court

5

grounds by Penunuri v. Sundance Partners, Ltd., 2017 UT 54, 423 P.3d 

1150, preinjury releases for competitive skiing are enforceable. 

Based on this understanding, the district court held that the 

preinjury release signed by Levi’s father was unenforceable 

because the type of skiing Levi was engaged in at the time he 

crashed was more similar to recreational skiing than competitive 

skiing. The district court alternatively held that the release was 

unenforceable under Hawkins ex rel. Hawkins v. Peart, which held 

that a preinjury release signed by a parent on behalf of a minor was 

unenforceable for violating Utah public policy. 2001 UT 94, 37 P.3d 

1062, superseded by statute as stated in Penunuri v. Sundance Partners, 

Ltd., 2013 UT 22, 301 P.3d 984.4

¶9 The district court also denied Talisker’s motion in which it

argued that the Act’s machine-made snow exemption5 barred the 

Rutherfords’ claims. The court held that, pursuant to Clover v. 

Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), there was a disputed 

question of material fact as to whether a skier wished to confront 

sticky, wet, machine-made snow from a machine that was allegedly 

4 As previously noted, supra ¶ 2 n.1, and as stated in Penunuri v. 

Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984, Hawkins has been 

superseded by statute, Limitations on Liability for Equine and 

Livestock Activities, Utah Code sections 78B-4-201 to -203. And at 

first glance, the district court’s ruling appears to be in potential 

conflict with Penunuri. This is not the case. On October 15, 2012, the 

district court ruled on the enforceability of the release, which relied 

on our holding in Hawkins. Penunuri, which acknowledged that the 

amended statute “effectively overrule[d] our conclusion in 

Hawkins,” was not issued until April 9, 2013. 2013 UT 22, ¶ 21 n.43. 

The Rutherfords argue that we can and should reconcile our 

holdings in Hawkins and Penunuri in this case by holding that “preinjury releases signed by a parent on behalf of a minor are void and 

unenforceable as contrary to public policy,” and that this rule is 

altered only when “a statute is amended to” make such releases 

enforceable. We agree. See infra ¶¶ 21–22. 

5 The Act’s “machine-made snow exemption” refers to Utah 

Code section 78B-4-402(1)(b), which includes “machine-made 

snow” in the Act’s exemplary list of the “inherent risks of skiing.”
RUTHERFORD v. TALISKER

Opinion of the Court

6

“not functioning properly” and whether that risk could be 

eliminated through the exercise of reasonable care. 

¶10 Talisker appealed the district court’s partial grant of the 

Rutherfords’ motion for summary judgment and its denial of 

Talisker’s motion for summary judgment. The court of appeals 

affirmed the district court’s rulings.

¶11 With respect to the preinjury release, it affirmed on the 

ground that the 2006 amendment to the Act, coupled with our 

analysis in Rothstein, effectively overruled Berry and eliminated the 

distinction between preinjury releases for recreational and 

competitive skiing, making both types of releases unenforceable. 

Rutherford ex rel. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App 

190, ¶¶ 34–35, 333 P.3d 1266. Additionally, the court of appeals 

“reject[ed] the trial court’s determination that the . . . release is 

unenforceable because it was signed by a parent on behalf of a 

minor; rather, the release is unenforceable based on the Act’s policy 

statement.” Id. ¶ 30. We granted certiorari to review the court of 

appeals’ decision. Based on our review, we hold that the court of 

appeals reached the correct result, but that its declaration that 

preinjury releases signed by parents on behalf of children do not

generally offend Utah’s public policy was in error. 

¶12 The court of appeals also affirmed the district court’s 

ruling with respect to the Act’s machine-made snow exemption, 

stating that there is a “question[] of fact regarding the applicability 

of the machine-made snow exemption” in the Act. Id. ¶ 18. We 

affirm the court of appeals’ and the district court’s reliance on 

Clover in making this determination. However, we take this 

opportunity to clarify the implementation of Clover’s core holding

and therefore remand this case to the district court to make a 

determination under Clover consistent with this opinion.

¶13 We exercise jurisdiction under Utah Code section 

78A-3-102(3)(a).

STANDARD OF REVIEW

¶14 On certiorari, we review the decision of the court of 

appeals for correctness, “giving no deference to its conclusions of 

law.” State v. Harker, 2010 UT 56, ¶ 8, 240 P.3d 780 (citation omitted)

(internal quotation marks omitted). “Additionally, [with respect to 

the decision of the district court,] we ‘apply the same standard of 

review used by the court of appeals.’” Energy Claims Ltd. v. Catalyst 
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Opinion of the Court

7

Inv. Grp. Ltd., 2014 UT 13, ¶ 17, 325 P.3d 70 (citation omitted). And 

when, as here, “there are cross-motions for summary judgment, we 

view the facts in the light most favorable to the losing party.” Keith 

v. Mountain Resorts Dev., L.L.C., 2014 UT 32, ¶ 16 n.10, 337 P.3d 213 

(citation omitted).

ANALYSIS

¶15 We first examine whether the release is enforceable. It is

not. Absent a relevant, contrary expression of intent from the 

legislature, we adhere to our pronouncement in Hawkins ex rel. 

Hawkins v. Peart that a parent cannot release his or her minor child’s 

prospective claims for negligence. 2001 UT 94, 37 P.3d 1062, 

superseded by statute as stated in Penunuri v. Sundance Partners, Ltd., 

2013 UT 22, 301 P.3d 984.

¶16 Second, we turn to interpreting the Act, relying on our 

time-honored tools of stare decisis and statutory interpretation. For 

purposes of our opinion today, we begin with our precedential 

tools. We do so because in Clover v. Snowbird Ski Resort, 808 P.2d 

1037 (Utah 1991), this court has already done much of the 

important work of interpreting the Act. And we find its reasoning 

both reasonable and persuasive, especially in light of the ambiguity 

in the Act’s construction and the historical context in which it was 

enacted. With this in mind, and in accord with our case law, we see 

no reason to abandon the Clover court’s core interpretation of the 

Act. 

¶17 We do, however, take this opportunity to clarify the test 

announced in Clover in a way that implements the core holding of 

Clover by simplifying Clover’s two-prong subjective–objective 

inquiry into a one-step objective inquiry. We believe this 

clarification respects both the core holding of Clover and the 

language of the Act. Accordingly, we remand this case to the 

district court for a ruling consistent with this opinion. 

I. PREINJURY RELEASES SIGNED ON BEHALF OF MINOR 

CHILDREN VIOLATE PUBLIC POLICY

¶18 The release signed by Levi’s father violates public policy 

and is not enforceable. “Preinjury releases from liability for one’s 

negligence pit two bedrock legal concepts against one another: the 

right to order one’s relationship with another by contract and the 

obligation to answer in damages when one injures another by 

breaching a duty of care.” Rothstein v. Snowbird Corp., 2007 UT 96, 
RUTHERFORD v. TALISKER

Opinion of the Court

8

¶ 6, 175 P.3d 560. With this tension in mind, we have stated that 

preinjury releases are enforceable unless the party challenging the 

release establishes an exception to that rule. Pearce v. Utah Athletic 

Found., 2008 UT 13, ¶ 14, 179 P.3d 760 (“[P]eople may contract away 

their rights to recover in tort for damages caused by the ordinary 

negligence of others.”) abrogated on other grounds by Penunuri v. 

Sundance Partners, Ltd., 2017 UT 54, 423 P.3d 1150; Berry v. Greater 

Park City Co., 2007 UT 87, ¶ 12, 171 P.3d 442 (“[A] person should 

retain the power to contract away the right to recover damages for 

the negligence of another” but that right is “subject to many 

conditions and limitations.”), abrogated on other grounds by Penunuri, 

2017 UT 54.

¶19 Preinjury releases are generally governed by contract law.

Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶ 5, 37 P.3d 1062 

(“[P]arties may obtain contractual releases from liability for 

negligent action . . . where one party agrees to release the other 

from liability for future injuries.”); Jacobsen Constr. Co. v. Structo Lite 

Eng’g, Inc., 619 P.2d 306, 310 (Utah 1980) (noting that “the field of 

contract law is more than adequate to deal with” preinjury 

releases). Nevertheless, preinjury releases remain subject to several 

exceptions. We have previously identified three such exceptions to 

preinjury release enforceability: “(1) releases that offend public 

policy . . . (2) releases for activities that fit within the public interest 

exception . . . and (3) releases that are unclear or ambiguous.” 

Pearce, 2008 UT 13, ¶ 14 (citations omitted). And while some 

jurisdictions conflate the public interest and public policy 

exceptions,6 we have expressly distinguished the two in the context 

of preinjury releases. See id.; see also Penunuri v. Sundance Partners, 

Ltd., 2013 UT 22, ¶ 25, 301 P.3d 984. 

6 See, e.g., Brown v. Soh, 909 A.2d 43, 48 (Conn. 2006) (applying 

Tunkl public interest factors to determine whether “contract[] 

violate[d] public policy” (citation omitted) (internal quotation 

marks omitted)); Ash v. N.Y. Univ. Dental Ctr., 564 N.Y.S.2d 308, 313 

(N.Y. App. Div. 1990) (applying Tunkl public interest factors but 

holding that release was “invalid as a matter of public policy”); 

Olson v. Molzen, 558 S.W.2d 429, 432 (Tenn. 1977) (analyzing release 

under “public interest” factors but holding that release was 

“contrary to public policy”).
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Opinion of the Court

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¶20 Our public interest exception applies the six-factor test 

found in Tunkl v. Regents of University of California, 383 P.2d 441, 

444–47 (Cal. 1963), which was adopted in Berry, 2007 UT 87, ¶ 15, 

and further analyzed in Pearce, 2008 UT 13, ¶¶ 16–21. In contrast, 

the public policy exception remains “a doctrine of vague and 

variable quality” based on “constitutional or statutory provisions 

or the common law.” Penunuri, 2013 UT 22, ¶ 26 (citations omitted)

(internal quotations marks omitted). This delineation between the 

two standards is necessary to maintain the “fluid nature” of the 

public policy defense, available in other contract claims, and to 

avoid the conflation of that defense with the six Tunkl factors. Cf.

Wolf v. Ford, 644 A.2d 522, 527 (Md. 1994).7

¶21 In the context of releases signed by parents on behalf of 

minors, we have unambiguously held that preinjury releases for 

negligence violate public policy. See Hawkins, 2001 UT 94, ¶ 13. We 

based our conclusion on a number of observations, all of which 

remain equally forceful today. First, Talisker “has cited no source of 

law, and we are aware of none, granting parents in Utah a 

general[,] unilateral right to compromise or release a child’s 

existing causes of action without court approval or appointment to 

that effect.” Id. ¶ 11. Quite to “the contrary, Utah law provides 

various checks on parental authority to ensure a child’s interests 

are protected.” Id. Indeed, “[u]nder the Uniform Probate Code, for 

example, when a minor has a cause of action, the minor or another 

7 To address such concerns, some of the jurisdictions that 

conflate public interest and public policy do not limit their public 

policy exception to the six factors laid out in Tunkl. See Brown, 909 

A.2d at 48 (holding that a “totality of the circumstances” test is to 

be applied, which may include analysis of the six factors); Wolf, 644 

A.2d at 527 (stating that the six factors may be “considered by a 

court in determining whether a given transaction involves public 

interest, but the six factors are not conclusive”); Vodopest v. 

MacGregor, 913 P.2d 779, 786 (Wash. 1996) (en banc) (stating that 

the Tunkl factors “are not the exclusive considerations to which a 

court may look in the determination of public policy”). Even Tunkl 

itself states that “[n]o definition of the concept . . . can be contained 

within the four corners of a formula;” rather, the six factors are 

merely a “rough outline” of when an “exculpatory provision[] will 

be held invalid.” 383 P.2d at 444–45.
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Opinion of the Court

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person interested in the minor’s welfare may petition for the 

appointment of a conservator.” Id.; see also UTAH CODE § 75-5-404. 

“Significantly, a parent may act as a minor’s conservator, not as a 

matter of right, but only when appointed by the court.” Hawkins, 

2001 UT 94, ¶ 11; see also UTAH CODE § 75-5-410(1). Furthermore,

“we see little reason to base the validity of a parent’s contractual 

release . . . on the timing of [the] injury. Indeed, the law generally 

treats preinjury releases . . . with greater suspicion than postinjury 

releases.” Hawkins, 2001 UT 94, ¶ 13.8

¶22 Talisker raises but one argument in opposition. According 

to Talisker, by superseding Hawkins with respect to certain equine 

and livestock activities, the legislature has made clear that 

preinjury releases signed by parents on behalf of their children do

not offend public policy. Talisker’s logic does not follow, and this 

argument may hurt Talisker’s case more than it helps. Indeed, it is

difficult to logically conclude that the legislature’s decision to allow 

for preinjury releases by parents for minors in one very narrow 

area translates to a general policy that all such preinjury releases 

are valid. The conclusion that the legislature meant to say that 

preinjury releases signed by parents for minors are valid only in the 

unique context of equine activities is equally likely. In short, the 

legislature’s action sheds no light on its view of the public policy 

surrounding the larger question, and, absent any positive signal 

from the legislature, we are loath to forsake Hawkins and its 

reasoning.

8 Just as at the time we handed down Hawkins, the view that 

parental releases are not enforceable appears to continue to enjoy 

the support of a large majority of jurisdictions to take up the issue. 

See Hawkins, 2001 UT 94, ¶ 10 (“A clear majority of courts treating 

the issue have held that a parent may not release a minor’s 

prospective claim for negligence.”); see also Rosen v. B.J.’s Wholesale 

Club, Inc., 51 A.3d 100, 107 (Md. Ct. Spec. App. 2012) (“[W]e find 

that a substantial majority of the state courts that have squarely 

considered whether a release agreement may bar future negligence 

claims of a child have held that such agreements are invalid and 

unenforceable on public policy grounds.”), rev’d, 80 A.3d 345 (Md. 

2013). 
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Opinion of the Court

11

¶23 Having concluded that the preinjury release Levi’s father 

signed on Levi’s behalf does not preclude the Rutherfords’ claims, 

we turn to Talisker’s argument that the Act stands as a bar to the 

Rutherfords’ claims.

II. CLOVER IS ENTITLED TO STARE DECISIS RESPECT

¶24 The district court denied Talisker’s motion for summary 

judgment on the issue of negligence and premises liability based on 

this court’s decision in Clover v. Snowbird Ski Resort, 808 P.2d 1037 

(Utah 1991), holding that there remained an issue of disputed 

material fact regarding the Act’s machine-made snow exemption 

that precluded summary judgment. The court of appeals affirmed 

the denial on the same grounds. See Rutherford ex rel. Rutherford v. 

Talisker Canyons Fin. Co., 2014 UT App 190, ¶ 18, 333 P.3d 1266. 

¶25 In a supplemental briefing order, we invited the parties to 

brief the court on whether the test set forth in Clover should be 

repudiated or modified in any way. We also invited the parties to 

brief the court on what role stare decisis should play in 

consideration of that question. 

¶26 Having considered the parties’ arguments and reviewed 

Clover at great length, we now hold that Clover should not be 

repudiated. Instead, we offer clarification on the implementation of 

Clover’s holding. Principles of stare decisis compel this result.

A. Stare Decisis Framework

¶27 “[W]e do not overrule our precedents lightly.” State v. 

Guard, 2015 UT 96, ¶ 33, 371 P.3d 1 (citations omitted) (internal 

quotation marks omitted). The stability and legitimacy of our legal 

system requires us to undertake the review of precedents in a spirit 

of deference and humility. See State v. Walker, 2011 UT 53, ¶ 68, 267 

P.3d 210 (Lee, J., concurring); see also Learned Hand, The Spirit of 

Liberty, in THE SPIRIT OF LIBERTY: PAPERS AND ADDRESSES OF LEARNED 

HAND 189, 190 (Irving Dillard ed., 3d ed. 1960) (“The spirit of 

liberty is the spirit which is not too sure that it is right.”). 

Concomitantly, “[t]hose asking us to overturn prior precedent have 

a substantial burden of persuasion.” Met v. State, 2016 UT 51, ¶ 43, 

388 P.3d 447 (quoting State v. Menzies, 889 P.2d 393, 398 (Utah 

1994), superseded by constitutional amendment as stated in State v. Legg, 

2018 UT 12, 417 P.3d 592) (internal quotation marks omitted). And 

as a result, “unless and until a party meets its burden of 

establishing that our prior case law is unworthy of stare decisis
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Opinion of the Court

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respect,” Waite v. Labor Comm’n, 2017 UT 86, ¶ 88, 416 P.3d 635

(Pearce, J., concurring) (emphasis added), we do not overturn 

“weighty precedent[],”Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 

P.3d 553; see also Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, 

¶ 57, 416 P.3d 663 (“We . . . don’t overrule our precedents unless 

they’ve proven to be unpersuasive and unworkable, create more 

harm than good, and haven’t created reliance interests.”). Indeed, 

“[t]o reverse course, we require as well what we have termed a 

‘special justification’—over and above the belief ‘that the precedent 

was wrongly decided.’ . . . What is more, stare decisis carries 

enhanced force when a decision . . . interprets a statute.” Kimble v. 

Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (citation omitted).9

9 Our case law, and case law from around the country, has 

engaged with the idea that a court’s interpretation of a legislative 

enactment is subject to heightened stare decisis. See Hackford v. Utah 

Power & Light Co., 740 P.2d 1281, 1283 (Utah 1987) (Zimmerman, J.) 

(noting that in determining whether to overturn a prior decision, 

“[t]he answer must take into account the fact that we are not 

dealing with an interpretation of the common law . . . [;] [r]ather we 

are dealing with an interpretation of a statute”); id. at 1288 (Howe, 

J., concurring in result) (“The doctrine of stare decisis, weighty in 

any context, is especially so in matters of statutory construction.”

(emphasis added) (citation omitted) (internal quotation marks 

omitted)), superseded on other grounds by statute as stated in Benda v. 

Roman Catholic Bishop of Salt Lake City, 2016 UT 37, 384 P.3d 207; see 

also A.C. Fin., Inc. v. Salt Lake Cty., 948 P.2d 771, 775 (Utah 1997) 

(affirming Hackford factors considered in overruling precedent 

concerning statutory interpretation); Dep’t of Human Servs. v. Jacoby, 

1999 UT App 52, ¶ 19, 975 P.2d 939 (noting that in interpreting a 

statute, “we consider not only the legislative intent but also the 

gloss judicial precedent attaches to the statute” (citing Hackford, 740 

P.2d at 1283)); accord Perry v. State, 741 A.2d 1162, 1195 (Md. 1999) 

(“[C]onsiderations of stare decisis weigh heavily in the area of 

statutory construction, especially where the legislature is free to 

change the court’s interpretation of its legislation . . . .” (citation 

omitted) (internal quotation marks omitted)); Conway v. Town of 

Wilton, 680 A.2d 242, 254 (Conn. 1996) (“Our decision that we 

should not overrule precedent unless cogent reason and 

inescapable logic require it has particular force when the precedent 

involved concerns the interpretation or construction of a statute.”). 

(cont.)
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Opinion of the Court

13

To be clear, “an argument that we got something wrong—even a 

good argument to that effect—cannot by itself justify scrapping 

settled precedent. Or otherwise said, it is not alone sufficient that 

we would decide a case differently now than we did then.” Id.

¶28 In evaluating the weight that we should afford our 

precedents, we look primarily to two factors. First, we examine “the 

persuasiveness of the authority and reasoning on which the 

precedent was originally based.” Eldridge, 2015 UT 21, ¶ 22. In the 

context of statutory interpretation, “this means we consider 

whether the prior interpretation is ‘[]reasonable given the statutory 

framework in existence at that time.’” State v. Robertson, 2017 UT 27, 

¶ 31, 438 P.3d 491 (alteration in original) (quoting A.C. Fin., Inc. v. 

Salt Lake Cty., 948 P.2d 771, 775 (Utah 1997)). Second, we determine 

“how firmly the precedent has become established in the law since 

it was handed down.” Eldridge, 2015 UT 21, ¶ 22; see also Robertson, 

2017 UT 27, ¶ 34 (“The second factor we consider in deciding 

whether to overrule a prior interpretation of a statute is ‘the degree 

to which that interpretation has worked itself into the state of the 

 

What some scholars have termed the “super stare decisis” owed 

to statutory precedents promotes a close and fruitful dialogue 

between the legislature and the courts. William N. Eskridge, Jr., 

Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1362 (1988) 

(“Statutory precedents . . . often enjoy a super-strong presumption 

of correctness.”). We have often encouraged such dialogue as a 

means of enhancing the effectiveness, legitimacy, and wisdom of 

our government. See, e.g., Living Rivers v. Exec. Dir. of the Utah Dep’t 

of Envtl. Quality, 2017 UT 64, ¶ 31 n.1, 417 P.3d 57 (“We would 

welcome clarification from the legislature . . . .”); Jones v. Barlow, 

2007 UT 20, ¶ 61 n.4, 154 P.3d 808 (“[T]his court engages in a 

dialogue with the legislature . . . .”). The legislature can preempt a 

field in which the judiciary has interpreted ambiguous language by 

enacting statutes that run contrary to our holdings. When the 

legislature instead re-enacts a statute without altering the 

ambiguous provisions, this conversation between the legislative 

and judicial branches is strong evidence that the legislature agrees 

with the court’s interpretation.

While the extent to which this doctrine exists in our law may be 

somewhat of an open question, we note its general existence and 

the force of the logic behind its application.
RUTHERFORD v. TALISKER

Opinion of the Court

14

law.’” (quoting A.C. Fin. Inc. v. Salt Lake Cty., 948 P.2d 771, 775 

(Utah 1997))). In evaluating how firmly precedent has become 

established in the law, we look to a variety of factors including the 

age of the precedent, the public reliance on the precedent, the 

workability of the precedent, and the consistency of the precedent 

with other principles of law. See Eldridge, 2015 UT 21, ¶¶ 34–40; see 

also Robertson, 2017 UT 27, ¶¶ 34–38 (noting that we inquire 

whether “more good than harm will come by departing from 

precedent” and that this inquiry is informed by policy arguments 

and “practical factors” (citations omitted) (internal quotation marks 

omitted)). “Ultimately, we are concerned with whether overruling 

our precedent would upend broad swaths of the legal landscape.”

Robertson, 2017 UT 27, ¶ 34. We therefore hold Talisker to a heavy 

burden in this case.

B. Stare Decisis Applied to Clover

¶29 In Clover, this court unanimously rejected the notion that 

the Act categorically bars recovery for injury caused by risks 

enumerated in the Act’s exemplary list. 808 P.2d at 1047. Instead, 

Clover held that there is a secondary inquiry required to determine 

whether the injury-causing enumerated risk is truly an inherent 

risk—and therefore a risk for which the skier cannot bring a 

claim—under the Act. Id. at 1044–45. To implement this holding, 

Clover identified two categories of risks that it considered to be 

inherent risks within the meaning of the Act: (1) “risks . . . which 

skiers wish to confront as an essential characteristic of skiing” and 

(2) “hazards which no one wishes to confront but cannot be 

alleviated by the use of reasonable care on the part of a ski resort.” 

Id. at 1047. In other words, courts must undertake a secondary 

inquiry—a “case-by-case” analysis informed by the two categories 

of inherent risks—to determine if the injury-causing risk is properly 

understood as an inherent risk of skiing within the meaning of the 

Act. Id. at 1045.

¶30 While perhaps the implementation of this holding could 

have been more clearly articulated, the essential holding of Clover—

that a secondary inquiry is required to determine whether risks 

enumerated in the Act constitute inherent risks of skiing as the 

legislature intended inherent risks to be understood—commands 

deference under stare decisis given the persuasiveness of its 

reasoning and the extent to which it has firmly established itself in 

the law. Based on the required stare decisis analysis, we conclude 
Cite as: 2019 UT 27

Opinion of the Court

15

that Talisker has been unable to meet the heavy burden necessary 

for us to overturn Clover. We now address each element of our stare 

decisis test.

1. Persuasiveness

¶31 We find that the Clover court’s construction of the Act is 

persuasive. The Clover court correctly apprehended that the 

legislature intended the exemplary risks to be understood in the 

context of the Act as a whole and against the backdrop of the sport 

of skiing, affording them a common sense meaning. Understood in 

this way, the exemplary risks present textbook examples of the 

inherent risks of skiing and are never “subject to elimination,” as 

the dissent laments. Infra ¶ 114.

¶32 First, Clover’s construction ensured that the modifier 

“integral part” was given effect while also avoiding the pitfall of 

turning the list of enumerated risks into a nullity. Second, its 

interpretation avoided a parade of absurd consequences and 

comported with the codified purpose of the Act.10 Finally, Clover’s

interpretation respected the canon of constitutional avoidance. 

Clover recognized that, unless the Act was construed to allow suits 

arising from the negligence of ski area operators—i.e., from any 

risks that were not integral to the sport—the statute would 

effectively abolish the negligence cause of action against ski area 

operators. And this, in turn, could violate the Open Courts Clause

of the Utah Constitution, which would require the court to strike 

down the Act.

a. Clover’s Statutory Construction Analysis

¶33 The Clover court began its statutory analysis with a plain 

language puzzle posed by the Act. On the one hand, the statute 

includes a non-exhaustive exemplary list of “inherent risks of 

skiing.” Clover, 808 P.2d at 1044–45. But, on the other hand, the 

statute defines the “inherent risks of skiing” as those “dangers or 

conditions which are an integral part of the sport of skiing.” Id. at 

1044 (citation omitted).

10 Clover understood that the purpose of the statute was “to 

clarify the law, not to radically alter ski resort liability.” 808 P.2d at 

1045 (internal quotation marks omitted).
RUTHERFORD v. TALISKER

Opinion of the Court

16

¶34 The interpretive puzzle, then, is what to do with the 

ambiguity generated when one of the listed risks manifests itself in 

such a way that it plainly is not “an integral part of the sport of 

skiing.” Talisker suggests that “integral part of the sport of skiing” 

is merely a synonym for “inherent.” In Talisker’s view, if a risk

appears in the exemplary list, then the legislature has already 

determined that the risk is an integral part of the sport of skiing.11

But this interpretation disrespects the structure of the statute. By 

Talisker’s reasoning, the phrase “integral part of the sport of 

skiing” does no work; the statute could just as easily state that ski 

area operators are shielded from liability for any of the “inherent 

risks of skiing, including, but not limited to,” the enumerated list of 

risks. In other words, the definition of “inherent risks of skiing”

that Talisker prefers under the Act is the same as if the legislature 

had entirely omitted the phrase “integral part of the sport of 

skiing.” This flouts the canon against surplusage. See Turner v. 

Staker & Parson Cos., 2012 UT 30, ¶ 12, 284 P.3d 600 (“Wherever 

possible, we give effect to every word of a statute, avoiding ‘[a]ny

interpretation which renders parts or words in a statute inoperative 

or superfluous.’” (alteration in original) (citation omitted)).

¶35 The Clover court concluded that the best way to give effect 

to all terms in the statute was to hold that “the dangers listed in 

[the definition of ‘inherent risks of skiing’] are modified by the term 

‘integral part of the sport of skiing.’” 808 P.2d at 1044. And 

“[t]herefore, ski area operators are protected from suits to recover 

for injuries caused by one or more of the [enumerated risks] only to 

the extent that those [risks], under the facts of each case, are 

integral aspects of the sport of skiing.” Id. Clover explained that this 

interpretation pays respect to the “ordinary and accepted meaning 

of the term ‘inherent’” as used by the legislature by limiting

11 We note that this argument, which Talisker raises in its 

supplemental briefing, differs in some respects from the arguments 

that Talisker presented at oral argument, when Talisker at times 

seemed to suggest that inclusion on the exemplary list may not be 

dispositive. In the interest of readability, and because any 

differences in Talisker’s arguments over time do not affect our 

ultimate conclusion, this opinion does not differentiate between the 

different arguments made by Talisker at different stages of this 

litigation.
Cite as: 2019 UT 27

Opinion of the Court

17

inherent risks to “risks that are so integrally related to skiing that 

the sport cannot be undertaken without confronting these risks.” Id.

at 1047. In the Clover court’s estimation, then, the legislature 

intended the enumerated risks to constitute inherent risks—and 

therefore bar recovery for injuries resulting therefrom—only when 

those risks are encountered in such a way that the risk is an integral 

part of the sport of skiing. We believe that this is a completely 

reasonable interpretation of the Act.

¶36 The dissent argues that the list in section 402 is “rendered 

superfluous if enumerated risks are still subject to elimination if 

they are not deemed ‘integral’ to skiing.” Infra ¶ 114. We disagree. 

The list still provides independent value even when subjected to 

the secondary inquiry under Clover. 

¶37 The list is not rendered superfluous because section 404 

requires ski area operators to post warning signs that list the 

inherent risks of skiing set forth in section 402. UTAH CODE

§ 78B-4-404. In this sense the list provides important, independent 

value in the context of the statute because it is directly related to the 

discharge of a ski area operator’s duties under the Act. See infra 

¶ 52 (explaining that ski area operators discharge their duty of 

reasonable care by posting signage that lists the enumerated 

inherent risks of skiing).12

12 The dissent argues that “the warning sign as imagined by the 

majority is pointless” and “a ski resort would have no reason to list 

[the enumerated] risks on a posted sign” if one accepts Clover and 

our majority opinion here. Infra ¶ 114 n.35. But as we have 

explained, this is simply not true. The legislature has explicitly 

required ski resorts to post warning signs that list the enumerated 

risks and explains the limitations on liability of ski area operators. 

UTAH CODE § 78B-4-404. This alone is reason enough for ski area 

operators to post these warning signs. Additionally, the legislature 

could have had any number of reasons for requiring the warning 

signs, even if the enumerated risks are subject to a secondary 

inquiry under Clover. Perhaps the legislature wanted to provide 

notice to patrons that ski resorts operate in a unique world of 

liability. Or perhaps the legislature wanted to inform first-time 

skiers—such as tourists who may be unfamiliar with the sport—of 

the types of risks they could expect to encounter while skiing. In 

(cont.)
RUTHERFORD v. TALISKER

Opinion of the Court

18

¶38 Additionally, the list helps inform our understanding of 

what kind of non-enumerated risks are inherent risks of skiing 

through the canon of ejusdem generis. “In its simplest terms, ejusdem

generis posits that general catchall terms appearing at the beginning 

or end of an exemplary statutory list are understood to be informed 

by the content of the terms of the list.” GeoMetWatch Corp. v. Utah 

State Univ. Research Found., 2018 UT 50, ¶ 26, 428 P.3d 1064 (citation 

omitted) (internal quotation marks omitted). “Ejusdem generis

presumes that in order to give meaning to a general term, the 

general term is understood as restricted to include things of the 

same kind, class, character, or nature as those specifically 

enumerated . . . .” Id. (citation omitted) (internal quotation marks 

omitted). The Act uses the general catchall term of “dangers or 

conditions which are an integral part of the sport of . . . skiing.” 

UTAH CODE § 78B-4-402(1). If we were tasked with determining 

whether a danger or condition not covered by the exemplary list 

was an inherent risk of skiing, we would ask how the specifically 

enumerated risks can inform our understanding of the general 

“dangers or conditions which are an integral part of the sport of . . .

skiing.” One way in which the specifically enumerated risks would 

inform our understanding is to consider the character and nature of 

those risks. Here, the specifically enumerated risks are presented in 

the “character” or “nature” in which a skier would reasonably 

expect to encounter them while skiing. Instead of listing, say, 

“faulty lift towers” or “improperly constructed terrain parks,” the 

Act simply lists “lift towers” and “terrain parks.” Therefore, we 

would only consider a non-enumerated danger or condition to 

constitute an inherent risk if that danger or condition was of the 

same character or nature as the enumerated risks—that is, if the 

danger or condition was one that a skier would reasonably expect 

to encounter while skiing.13

 

any event, the list of enumerated risks is not rendered superfluous 

by Clover because the enumerated risks are still important to 

fulfilling a ski area operator’s duty under section 404. 

13 The dissent mischaracterizes this discussion as standing for 

the proposition that “we can ignore the straightforward application 

of a list because its sole function might be to inform the meaning of 

the catchall.” Infra ¶ 113 n.34 (emphasis added). As we have just 

discussed above, the list serves the independent purpose of giving 

(cont.)
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Opinion of the Court

19

¶39 And Clover’s interpretation also makes sense in practice. 

As Clover succinctly puts it, refusing to modify the list of risks by 

reference to the phrase “integral part of the sport of skiing” would 

“result in a wide range of absurd consequences.” 808 P.2d at 1044–

45. Under Talisker’s proposed interpretation of section 402, a 

collision with a lift tower that the ski resort has intentionally 

camouflaged as to be practically invisible to skiers is an “inherent 

risk of skiing” because “impact with lift towers” is an enumerated 

risk. That cannot be right; such an interpretation defies our 

understanding of the “ordinary and accepted meaning of the term 

‘inherent’” as used by the legislature in the Act. Id. at 1047. But 

such results are inevitable under Talisker’s interpretation.

¶40 Indeed, the universe of potential absurd scenarios is nearly 

limitless. For example, the Act includes “rocks” in the definition of 

inherent risks. UTAH CODE § 78B-4-402(1)(c). Given the location of 

ski resorts on mountains, skiers reasonably expect to encounter 

rocks while skiing. And if a skier’s injury was caused by a rock in 

the state or condition in which a skier would expect to encounter a 

rock while skiing, then the Act would undoubtedly bar recovery for 

that injury. But what skiers would not reasonably expect to 

encounter—and what the Act could not reasonably bar recovery 

for—are, for example, rocks gathered in a pile in the middle of a 

blind spot on a beginner ski run waiting to be placed for 

landscaping. 

¶41 Fortunately, it is a common sense and long-standing canon 

of construction in Utah that, as between competing interpretations 

of an ambiguity in a statute, the one that avoids such nonsensical

outcomes is generally preferred. See Anderson v. Utah Cty., 368 P.2d 

912, 913 n.3 (Utah 1962) (“[I]t is a general rule that where a statute 

is ambiguous in terms and fairly susceptible of two constructions, 

 

content to section 404’s requirement that ski area operators post 

warning signs. See supra ¶ 37, n.12. Our discussion of ejusdem 

generis exists here only to demonstrate an additional, ancillary 

function of the list. In no way, shape, or form do we suggest that 

application in a hypothetical ejusdem analysis is “the sole function” 

of the list. Nor do we use ejusdem to interpret or “overrid[e]” the 

enumerated risks, as the dissent suggests. Infra ¶ 113 n.34. Instead, 

we have simply posited how the list would help inform an ejusdem 

analysis of a non-enumerated risk. 
RUTHERFORD v. TALISKER

Opinion of the Court

20

the unreasonableness or absurdity which may follow one 

construction or the other may properly be considered. 

Unreasonable, absurd, or ridiculous consequences should be 

avoided.” (citation omitted) (internal quotation marks omitted)); see 

also Bagley v. Bagley, 2016 UT 48, ¶ 27, 387 P.3d 1000 (“[T]he absurd 

consequences canon . . . merely resolve[s] an ambiguity by 

choosing the reading that avoids absurd results.” (third alteration 

in original) (citation omitted) (internal quotation marks omitted)); 

Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 46, 357 P.3d 992 (Durrant, 

C.J., writing for the majority on this issue) (“Our caselaw 

recognizes two different interpretive tools concerning absurdity. 

We have referred to the first as the absurd consequences canon and 

to the second as the absurdity doctrine. We apply the absurd 

consequences canon to resolve ambiguities in a statute.”).14

¶42 The dissent takes what it seems to view as a different tack 

than Talisker, arguing that listed risks are only inherent risks to the 

extent that the injury-causing risk “falls within the ordinary 

meaning of the terms of the statute.” Infra ¶ 186 n.50. But it is 

unclear exactly what the dissent means when it says it would 

conduct an ordinary meaning analysis.

¶43 For example, the pile of rocks intended for later 

landscaping placed in the middle of a beginner run is not a risk that 

a skier would expect to encounter when skiing. And it seems that 

the pile of rocks is certainly a “surface . . . condition[] such as . . . 

rocks” within the ordinary meaning of the term. UTAH CODE § 78B4-402(1)(c). After all, it is a pile of rocks on the surface of a ski run.15

14 The dissent accuses us of “distort[ing] the absurdity 

doctrine.” Infra ¶ 133. This criticism entirely misses the point. We 

do not contend that the absurdity doctrine applies here. Because 

we conclude—contra to the dissent—that section 402 is ambiguous, 

“the question is not one of overriding text that is unmistakably 

clear” and therefore “we view this as a case for the absurd 

consequences canon, not the absurdity doctrine.” Utley, 2015 UT 75, 

¶ 39 n.14 (Lee, A.C.J., concurring in the judgment on this issue).

15 It is easy to think of similar hypotheticals. For example, a 

twenty-yard bare spot running through the middle of a groomed 

ski run is not a risk that a skier would expect to encounter. But it is 

(cont.)
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Opinion of the Court

21

The dissent should—but fails to—own that its interpretation 

inexorably leads to this absurd consequence and responds that, “at 

least arguably,” this pile of rocks would not “qualify as a ‘natural’ 

‘surface or subsurface condition.’” Infra ¶ 131. But it is entirely 

unclear why this would be the case—and the dissent’s qualification 

of its conclusion with “at least arguably” suggests that it does not 

know either.16

b. Purpose of the Act

¶44 This court’s analysis in Clover was based largely on “[t]he

express purpose of the statute, codified in section [78B-4-401], 

[which] is ‘to clarify the law in relation to skiing injuries and the 

risk[s] inherent in the sport.’” 808 P.2d at 1045. To clarify means to 

“make . . . easier to understand.” Clarify, WEBSTER’S II NEW COLLEGE 

DICTIONARY (3d ed. 2005). As we stated in Clover, the legislature’s 

purpose in clarifying the law does not suggest an intent to 

“radically alter ski resort liability,” rather it shows an intent to 

make the law of ski resort liability as it existed in 1979—when the 

legislature passed the Act—easier to understand. 808 P.2d at 1045. 

To determine the persuasiveness of Clover’s holding, we must look 

at the law as it existed in 1979 when the Act came into effect. 

¶45 To better understand the confluence of events that 

culminated in the Act’s passage in 1979, it is helpful to have a basic 

understanding of the doctrine of assumption of risk. There are 

three distinct branches of assumption of risk: (1) primary express, 

 

inescapable that the bare spot would be considered a “bare spot[]” 

under the dissent’s analysis. 

16 Although the dissent bemoans what it views as a lack of 

predictability with the Clover test, it is unclear that the dissent’s 

own proposed analysis lends itself to predictability. The dissent

repeatedly resorts to qualifiers such as “could reasonably be 

dismissed as,” “[t]he same may hold,” and “at least arguably” when 

using its ordinary meaning analysis to engage our hypotheticals. 

Infra ¶ 131 (emphases added). If the dissent is actually unable to 

determine whether these hypotheticals qualify as inherent risks 

under its analysis then it should so indicate. Likewise, if the dissent 

thinks that the risks in the hypotheticals, such as the pile of rocks or 

the twenty-yard bare spot, actually would qualify as inherent risks 

under its analysis, it should own up to that fact.
RUTHERFORD v. TALISKER

Opinion of the Court

22

(2) primary implied, and (3) secondary. Moore v. Burton Lumber & 

Hardware Co., 631 P.2d 865, 869–70 (Utah 1981). Primary express 

assumption of risk “involves a contract[] . . . in which a party 

expressly contracts not to sue for injury . . . which may thereafter be 

occasioned by the acts of another.” Jacobsen Constr. Co. v. StructoLite Eng’g, Inc., 619 P.2d 306, 310 (Utah 1980). As we have held the 

preinjury liability release in this case to be unenforceable, see supra 

¶¶ 18–23, this branch is not at issue here. 

¶46 Primary implied, more often called primary assumption of 

risk, “involves a relationship in which [the] defendant simply owes 

no duty of care to the plaintiff.” Moore, 631 P.2d at 870. Because no 

duty is owed, there can be no negligence. This branch of 

assumption of risk applies when a person is “injured as a 

consequence of being exposed to a risk which the [defendant] in the 

exercise of due care could not avoid.” Tiller v. Atl. Coast Line R.R.

Co., 318 U.S. 54, 71 (1943) (Frankfurter, J., concurring); see also 

Wendy A. Faber, Comment, Utah’s Inherent Risks of Skiing Act: 

Avalanche from Capitol Hill, 1980 UTAH L. REV. 355, 358 (“Primary 

assumption of risk involves no fault because it refers to dangers 

that are ‘inherent’ in a given activity—dangers that cannot be 

alleviated by reasonable care.”) [hereinafter Faber, Utah’s Inherent 

Risks of Skiing Act]; Kent Feuerhelm et al., From Wright to Sunday

and Beyond: Is the Law Keeping Up With the Skiers?, 1985 UTAH L. REV.

885, 886 (“Primary assumption of risk bars a plaintiff from 

recovering for injuries caused by dangers inherent in the activity. 

Because the dangers are inherent, the theory assumes that no 

reasonable amount of care can alleviate the risk, thus no fault is 

involved.”). Primary assumption of risk is perhaps best understood 

to negate the further existence of any duty on the behalf of the 

defendant once the defendant has discharged its initial duty of 

reasonable care. That is, once a ski area operator has taken 

reasonable care to protect its patrons, it cannot be held liable for 

any injuries resulting from those inherent risks that persist despite 

the exercise of reasonable care.

¶47 Secondary assumption of risk applies when a person 

“unreasonabl[y] encounter[s] . . . a known and appreciated risk.” 

Moore, 631 P.2d at 870. This branch is treated, for all intents and 

purposes, as a “phase of contributory negligence.” Jacobsen Constr., 

619 P.2d at 310. Whereas the primary assumption of risk doctrine 

provides that there is no duty, thereby barring a claim for 

negligence, secondary assumption of risk is an affirmative defense 
Cite as: 2019 UT 27

Opinion of the Court

23

to a substantiated claim of negligence. Id. Under this branch, if a 

plaintiff proves that the defendant is negligent, the defendant may 

still avoid liability by establishing secondary assumption of risk. In 

fact, prior to 1973, secondary assumption of risk served as a 

“complete bar to recovery” for plaintiffs. Id. at 309.

¶48 In 1973, the Utah Legislature adopted the Utah 

Comparative Negligence Act, 1973 Utah Laws 710–11, “to avoid the 

harshness visited upon plaintiffs as a result of the all-or-nothing 

nature of the former rule of law,” Jacobsen Constr., 619 P.2d at 309. 

Specifically, the Comparative Negligence Act stated that 

“[c]ontributory negligence shall not bar recovery in an action . . . to 

recover damages for negligence . . . if such negligence was not as 

great as the negligence . . . of the person against whom recovery is 

sought.” 1973 Utah Laws 710–11. Additionally, the Comparative 

Negligence Act provided that, for purposes of the act, 

“‘contributory negligence’ includes ‘assumption of risk.’” Id. at 711.

Assumption of risk as used in this context represented the 

secondary form of assumption of risk. Moore, 631 P.2d at 870; see 

also Jacobsen Constr., 619 P.2d at 312 (“We thus hold that under our 

comparative negligence statute ‘assumption of the risk’ . . . is to be 

treated . . . in its secondary sense . . . .”).17

¶49 Additionally, by 1979, there was broad national consensus 

that the common law defense of assumption of risk was being 

eroded by case law, especially with respect to ski area operators. 

See Sunday v. Stratton Corp., 390 A.2d 398, 401–03 (Vt. 1978) (holding 

that a snow-covered bush is not an assumed risk of skiing); Michael 

J. Farrow, Comment, Ski Operators and Skiers—Responsibility and 

17 Although the Comparative Negligence Act used the blanket 

term “assumption of risk,” a closer examination of primary and 

secondary assumption of risks confirms that, as used in this 

context, only the secondary assumption of risk is in play. This 

follows because the primary assumption of risk reflects the notion 

that no duty was owed to the plaintiff. In those cases, there could 

be no comparative negligence as between plaintiff and defendant 

because defendant could never be negligent as a matter of law. See 

Hale v. Beckstead, 2005 UT 24, ¶ 24, 116 P.3d 263 (“Where there is no 

duty, there is no fault to compare or distribute under the 

comparative fault scheme.”).
RUTHERFORD v. TALISKER

Opinion of the Court

24

Liability, 14 NEW ENG. L. REV. 260, 268–70 (1978–79) (discussing the 

ski industry’s reaction to the Sunday decision). Thus, when the 

legislature passed the Act to “clarify the law,” by providing that 

skiers “assume[] the risks inherent in the sport of skiing,” it seems 

clear that the legislature intended to restore and maintain the law 

of ski resort liability as it existed prior to the perceived erosion of 

the defense of assumption of risk. UTAH CODE § 78B-4-401. This is 

supported by the fact that the confusion in the law that the 

legislature intended to clarify was only the “confusion as to 

whether a skier assumes the risks inherent in the sport of skiing.” Id.

(emphasis added).

¶50 In Clover, we cited Wright v. Mt. Mansfield Lift, Inc., 96 F. 

Supp. 786 (D. Vt. 1951), for the proposition that “when the [Act] 

was enacted the majority of jurisdictions employed the doctrine of 

primary assumption of risk” to ski area operator liability. 808 P.2d 

at 1045; see also Faber, Utah’s Inherent Risks of Skiing Act at 359

(“[P]rimary assumption of the risk . . . traditionally governed ski 

injury litigation.”). Relying on the doctrine of primary assumption 

of risk, we concluded that the legislature was attempting to define 

and clarify the duty of ski area operators under this existing 

doctrine. Clover, 808 P.2d at 1045–46. This appears to be correct. 

¶51 Talisker argues that the legislature actually intended to 

redefine the duty of ski area operators in the Act, and that ski area 

operators therefore owe no duty to skiers for any of the risks listed 

in section 402 as “inherent risks of skiing.” However, such an 

interpretation would amount to a radical alteration of tort law, 

which is something the legislature did not intend. Rather, as we 

noted in Clover, the legislature’s purpose according to section 401 

was to clarify that ski area operators may still raise a defense of 

primary assumption of risk against a skier’s claim for liability.18

18 While the Act appears to have conflated the two forms of 

assumption of risk when it announced that “[n]otwithstanding 

anything in [the Comparative Negligence Act] to the contrary, no 

skier shall make any claim against . . . any ski operator for injury 

resulting from any of the inherent risks of skiing,” 1979 Utah Laws 

909, this is understandable given the Comparative Negligence Act’s 

ambiguous use of the term “assumption of risk,” see supra ¶ 49

n.17. This confusion is even more understandable given that the 

Act was passed before we issued our decisions in Jacobsen 

(cont.)
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Opinion of the Court

25

Under this doctrine, ski area operators owe a duty to exercise 

reasonable care, but a skier assumes the inherent risks of skiing to 

the extent that those risks persist after the ski area operator’s

exercise of reasonable care. See Wright, 96 F. Supp. at 790–91; see also

supra ¶ 46. 

¶52 The legal principle that the legislature was trying to 

reassert, then, is that ski area operators have the duty to exercise 

reasonable care with respect to the inherent risks of skiing, but 

skiers assume those risks to the extent those risks persist after a ski 

area operator’s exercise of reasonable care. And in doing so, the 

legislature provided the standard of reasonable care required of ski

area operators with respect to the inherent risks of skiing. 

Specifically, section 78B-4-404 provides that “[s]ki area operators 

shall post trail boards at one or more prominent locations within 

each ski area which shall include a list of the inherent risks of 

skiing . . . as defined in [the Act].” Therefore, once a ski area 

operator posts trail boards warning skiers of the inherent risks of 

skiing, it has discharged its duty of reasonable care—and therefore 

owes no further duty—with respect to the inherent risks of skiing,

and skiers assume the risk of any injury caused by those risks to the 

extent that they are inherent risks within the meaning of the Act.19

This understanding of the Act comports with the self-described 

purpose of the Act to “clarify the law” by providing ski area 

operators with a means to assert the defense of primary assumption 

of risk while also maintaining a cause of action for skiers injured by 

 

Construction and Moore, which delineated between the different 

forms of assumption of risk and declared the Comparative 

Negligence Act to apply only as to secondary assumption of risk. 

See supra ¶ 48. 

19 This does not mean that ski area operators are automatically 

absolved from liability for injuries caused by risks listed on the trail 

boards they post. Instead, the Act still requires a case-by-case 

analysis to determine whether the injury-causing risk is truly an 

inherent risk of skiing. If the injury-causing risk is determined to 

not be an inherent risk of skiing, then the case falls outside the 

purview of the Act and the ski area operator’s compliance with 

section 404 becomes immaterial with respect to defining the ski 

area operator’s duty.
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Opinion of the Court

26

risks that they do not assume, such as those risks created by ski 

area operator negligence.

¶53 This interpretation is further bolstered by the fact that the 

word “negligence” is mentioned nowhere in the Act.

Unlike the dissent, we find it nigh impossible to believe that the 

legislature intended to completely abolish the negligence cause of 

action with respect to enumerated risks when the Act itself says 

nothing about negligence. It is one thing to say that the legislature 

could have spoken more clearly, it is entirely another to apply that 

concept when the act in question neglects to mention its alleged 

core purpose. Legislatures, after all, “do[] not . . . hide elephants in 

mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 

(2001). And abolishing negligence claims is one heck of a big 

elephant.20

¶54 Based on this discussion of the purpose of the Act, we hold 

that the core holding of Clover continues to be persuasive in that the 

Act does not demonstrate a legislative intent to categorically bar 

recovery for injuries caused by risks enumerated in section 402.

Rather, the Act intended to reassert the availability of the defense 

of primary assumption of risk for ski area operators—even in cases 

involving one of the enumerated risks.

c. Constitutional Avoidance

¶55 The Clover court also recognized that construing the Act to 

bar claims arising from the negligence of ski area operators (i.e., 

20 The dissent argues that “there is nothing elephant-ish about 

the establishment of a bar on a negligence claim for injuries arising 

from inherent risks of skiing.” Infra ¶ 126. We disagree. Such a 

reading would directly contradict the doctrine of primary 

assumption of risk because primary assumption of the risk still 

presupposes a baseline exercise of reasonable care. If the Act barred 

all claims for listed risks—even those risks that could have been 

eliminated through the exercise of reasonable care such as the pile 

of rocks or the twenty-yard bare spot—then the Act would not be 

embracing the doctrine of primary assumption of risk. And this 

would have represented a major departure from the status quo. 

Furthermore, such a scheme would also raise some serious 

constitutional questions, which we address below. See infra ¶¶ 55–

58.
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27

from risks that were not integral to the sport) could violate the 

Open Courts Clause of the Utah Constitution. See 808 P.2d at 1044 

n.38 (“Because we interpret [the Act] as not prohibiting legitimate 

negligence claims, we do not reach Clover’s argument that the 

statute violates . . . [the Open Courts Clause] of the Utah 

Constitution . . . .”).

¶56 The Open Courts Clause “declares that an individual shall 

have a right to a ‘remedy by due course of law’ for injury to 

‘person, property, or reputation.’” Berry ex rel. Berry v. Beech Aircraft 

Corp., 717 P.2d 670, 674 (Utah 1985) (quoting UTAH CONST. art. 1,

§ 11). We have acknowledged that we have “an obligation of 

deference to legislative judgments in a Berry review.” Judd v. 

Drezga, 2004 UT 91, ¶ 11, 103 P.3d 135. And while the Open Courts 

Clause does not prohibit the legislature from “creat[ing],” 

“defin[ing],” and “moderniz[ing]” the law, it nonetheless “acts as a 

substantive check on legislative power.” Waite v. Utah Labor 

Comm’n, 2017 UT 86, ¶ 18, 416 P.3d 635 (citation omitted) (internal 

quotation marks omitted). In Berry, this court announced a threepart test to determine whether legislation violates the Open Courts

Clause. 

¶57 First, we look to see “whether the legislature has abrogated 

a cause of action.” Waite, 2017 UT 86, ¶ 19. If the legislature has 

abrogated a cause of action, “we then determine whether ‘the law 

provides an injured person an effective and reasonable alternative 

remedy.’” Id. (quoting Berry, 717 P.2d at 680). And finally, if there is 

no alternative remedy, we look to see “if there is a clear social or 

economic evil to be eliminated and [if] the elimination of an 

existing legal remedy is not an arbitrary or unreasonable means for 

[eliminating such evil].” Id. (quoting Berry, 717 P.2d at 680) (internal 

quotation marks omitted). If no “clear social or economic evil” is 

being eliminated, then the legislative act runs afoul of the Open 

Courts Clause.

¶58 It is easy to see why the Clover court considered 

constitutional avoidance in reaching its decision. If the Act was

interpreted to prohibit all negligence claims arising from injuries 

caused by one of the Act’s enumerated risks, then it is possible that 

the Act could pose a serious Open Courts issue. In reading the 

ambiguity in the statute to mean that every claim requires a 
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Opinion of the Court

28

case-by-case analysis, the Clover court avoided deciding this thorny 

constitutional question.21 And because Talisker has not carried its 

burden in persuading us that Clover was not well reasoned, we 

need not rule on this issue either.

d. Treatment of Clover in Other Jurisdictions

¶59 Other jurisdictions have also found Clover persuasive in 

analyzing their own inherent risk statutes. For example, Kopeikin v. 

Moonlight Basin Management, LLC found Clover and its successor, 

White v. Deseelhorst, 879 P.2d 1371 (Utah 1994), “particularly 

helpful” in analyzing whether Montana’s statutory scheme—which 

was “similar” to Utah’s—allowed a suit for negligent design or 

maintenance of a cat track. 981 F. Supp. 2d 936, 939, 943 (D. Mont. 

2013). After summarizing the core holding of Clover, Kopeikin drew 

on Clover to conclude that “[Montana’s Inherent Risks of Skiing 

Act] should be read in a manner that avoids constitutional 

violations and gives meaning to all of its provisions,” and that 

doing so would help avoid “absurd results.” Id. at 945–46.

Specifically, Kopeikin held that “Montana’s statutory definition of 

‘inherent dangers and risks of skiing’ must be read in conjunction 

with the ski area operator’s statutory duty of reasonable care” 

because “[a] mechanical application of the statute focused solely on 

the object with which the plaintiff collided would produce results 

21 The dissent argues that “‘[m]ere doubts about the 

constitutionality’ of the statute ‘are not enough to override the 

legislature’s intent’” when the statute “lends itself to only one 

reasonable interpretation.” Infra ¶ 137. While we may take no issue 

with this assertion, we take issue with the premise that there is 

“only one reasonable interpretation” of the Act. Because there is 

not only one reasonable interpretation of the Act, see supra ¶¶ 33–

43, our acknowledgment of an Open Courts concern here is entirely 

appropriate. 

Furthermore, the Open Courts issue here is not a “vague 

constitutional question,” as the dissent suggests. Infra ¶ 136. It 

presents a discrete and cognizable constitutional question: Would a 

prohibition on all suits involving injuries caused by risks 

enumerated in the Act violate the Open Courts Clause of the Utah 

Constitution? The existence of an exact constitutional question only 

bolsters the appropriateness of considering the Open Courts issue 

in our stare decisis analysis.
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29

that are ‘entirely arbitrary’ . . . .” Id. at 945 (quoting Clover, 808 P.2d 

at 1045). In this sense, Kopeikin fully endorses Clover’s holding that a 

secondary inquiry is required to determine whether a listed risk is 

truly an inherent risk, even in the face of a statute that simply 

provided “‘[i]nherent dangers and risks of skiing’ means those 

dangers or conditions that are part of the sport of skiing, including: 

[listed risks].” Id. at 939 (citing Mont. Code Ann. § 23-2-702(2)).

¶60 Additionally, the New Hampshire Supreme Court relied 

on Clover in upholding New Hampshire’s Inherent Risks of Skiing 

statute against a challenge alleging that it violated a provision of 

the New Hampshire Constitution that guarantees all litigants a 

remedy. Nutbrown v. Mount Cranmore, Inc., 671 A.2d 548, 550–52 

(N.H. 1996). In so doing, it found Clover’s parallel analysis of Utah’s 

Inherent Risks of Skiing Act persuasive—concluding that the New 

Hampshire statute “embodie[d] the doctrine of primary 

assumption of risk” and limited recovery only for injuries caused 

by “dangers inherent in the sport” of skiing. Id. at 551.22

2. Firmly Established

¶61 The question then turns to whether Clover is “firmly 

established” in Utah law—including the extent to which it has 

22 The dissent contends that Nutbrown does not “endorse[] the 

framework of the Clover decision.” Infra ¶ 160. Instead, because the 

New Hampshire code also contained a separate statute that 

contained specific duties with which a ski resort is charged, the 

dissent believes that “Nutbrown cites Clover only for the proposition 

that ‘[t]he statute does not purport to immunize a ski area operator 

for injuries caused by the operator’s own negligent or intentional 

acts’” and provides no endorsement for Clover. Infra ¶ 160 

(alteration in original) (quoting Nutbrown 671 A.2d at 551 ). But the 

context of that quote is crucial. The immediately preceding 

sentence states, “[s]ignificantly, the limitation on recovery found in 

[the New Hampshire statute that defines inherent risks of skiing], 

applies only to injuries caused by ‘dangers inherent in the sport’ of 

skiing.” Nutbrown, 671 A.2d at 551 (citation omitted). In this 

context, it is clear that Nutbrown is citing Clover for the proposition 

that the limitation on recovery for “dangers inherent in the sport” 

does not include immunization “for injuries caused by the 

operator’s own negligent or intentional acts.” Id.
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Opinion of the Court

30

created reliance interests and whether it has proven workable in 

practice. See Eldridge, 2015 UT 21, ¶ 22. We believe that it is.

¶62 Our conclusion is informed by a number of considerations.

Clover is entitled to deference under stare decisis because the 

legislature is free to change its conclusion at any time by amending 

the Act. And in the years since Clover was decided, the legislature

has not amended the Act to overrule the holding of Clover. In 

declining to do so, Clover has become firmly established in Utah 

law. Furthermore, under the prior construction canon, by 

amending and re-enacting the Act without negating Clover’s core 

holding, Clover has been carried forward by the legislature as an 

authoritative interpretation of the Act. As a consequence, Talisker 

has not demonstrated that this history has not created a public 

reliance on Clover. And finally, Talisker has not carried its burden 

in convincing us that Clover has proven to be unworkable in 

practice.

a. Legislative Treatment of Clover

¶63 Clover was decided in 1991 and in our 1994 opinion, White 

v. Deseelhorst, we directly invited the legislature to tell us if we 

incorrectly interpreted the Act in Clover. 879 P.2d 1371, 1377 (Utah 

1994), abrogated on other grounds by Penunuri v. Sundance Partners, 

LTD, 2017 UT 54, 423 P.3d 1150, (Zimmerman, C.J., concurring) (“If 

the legislature disagrees with Clover’s construction of the inherent 

risks of skiing statute, it can change it, but we should leave the 

matter where it lies.”). Despite ample opportunity and an express 

invitation, it has not done so.

¶64 Our legislature has had at least two opportunities to 

overrule the core holding of Clover. In 1993, and again in 2006, the 

legislature made changes to the definitions section of the Act—the 

very same section on which Clover’s analysis turns. In 2006, for 

example, the definition of skiing was expanded “to include 

participation in, or practicing or training for, competitions or 

special events.” Rutherford ex rel. Rutherford v. Talisker Canyons Fin.

Co., 2014 UT App 190, ¶ 35, 333 P.3d 1266 (quoting 2009 Utah Laws 

549, 549) (internal quotation marks omitted). 

¶65 As the court of appeals recognized, Senator Lyle Hillyard, 

the 2006 amendment’s sponsor, specifically stated that the 2006 

amendment was not intended “to exempt the negligence of the ski 

resort” from the liability Clover had imposed. Id. ¶ 35 n.13 (quoting 
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31

Recording of Utah Senate Floor Debates, 56th Leg., Gen. Sess. (Feb 

13, 2006) (statement of Sen. Lyle Hillyard)). And “where a 

legislature amends a portion of a statute but leaves other portions 

unamended, or re-enacts them without change, the legislature is 

presumed to have been satisfied with prior judicial constructions of 

the unchanged portions of the statute and to have adopted them as 

consistent with its own intent.” Christensen v. Indus. Comm’n, 642 

P.2d 755, 756 (Utah 1982); see also SCALIA & GARNER, READING LAW

at 322 (noting that when a phrase has been “authoritatively 

interpreted” by a jurisdiction’s highest court, “a later version of 

that act perpetuating the wording [of that phrase] is presumed to 

carry forward that interpretation”).23

¶66 We are loath to embrace legislative history as an 

interpretive tool for statutory interpretation without first 

exhausting other interpretive tools. But it is relevant for purposes of 

applying our stare decisis principles—principles that, in the 

statutory context, emphasize the legislature’s ability to reverse a 

court’s decision and the importance of crafting statutory stare decisis 

principles in such a way that we promote, when possible, 

interbranch dialog. The fact that the legislature has specifically 

taken up the Act, not once, but twice, and expressly declined to 

23 The dissent argues that the full text of Senator Hillyard’s 

comments actually cuts against support for Clover because (1) the 

example of negligence Senator Hillyard supplied was not an 

enumerated inherent risk, and (2) he stated support for “the 

‘policy’ that the ‘state made in the 1980s,’ not the common law 

developments since that time.” Infra ¶¶ 169–171. But Senator 

Hillyard—the sponsor of the bill—was clear in his comments: “I 

should indicate that there’s no intention in this to exempt the 

negligence of the ski resort.” Recording of Utah Senate Floor 

Debates, 56th Leg., Gen. Sess. (Feb. 13, 2006) (statement of Sen. Lyle 

Hillyard). His subsequent example of negligence that falls outside 

the list of enumerated risks (which is not dispositive of whether it 

is an inherent risk because the list is non-exhaustive) does not 

undercut his statement’s value. Further, neither Senator Hillyard

nor any other legislator said anything to cast shade on Clover.
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Opinion of the Court

32

amend it so as to do away with Clover’s holding, is a good reason to 

continue to accord Clover weighty stare decisis.24

b. Reliance

¶67 In light of Clover’s age, the legislature’s choice to leave 

Clover untouched since it was decided, and the unmistakable

importance of the ski industry to Utah’s economy, it is easy to see 

how Clover has resulted in widespread public reliance. 

¶68 For example, there can be no doubt that ski resorts have 

invested in infrastructure and personnel to abate potential 

negligence actions under Clover, with some resorts investing more 

and some less, each with an eye toward getting a competitive 

advantage. There can be no doubt that contracts are in place to 

supply, maintain, and replace this infrastructure and that some of 

the personnel forewent other employment opportunities in favor of 

working at the resort. Nor can there be any doubt that insurers and 

resort owners have negotiated policies and premiums against the 

backdrop of Clover. And consider the potential commercial 

advantage that Utah ski resorts may have obtained over other ski 

resorts by virtue of Clover’s construction of the Act—which may 

afford more opportunities for relief to injured skiers in Utah and 

hence, at the margins, more incentive to ski in the state. We 

respectfully suggest that it is naïve to think that Clover has not 

generated significant reliance interests in an industry as large and 

complicated as Utah’s ski industry. And again, Talisker certainly 

has not met its burden of dispelling this notion.25

24 The dissent argues that legislative inaction in this area does 

not “indicate legislative acquiescence. And it is sheer speculation to 

assume the contrary.” Infra ¶ 165. Under different circumstances 

we might agree, but not here. The fact that we have expressly 

invited the legislature to address our holding in Clover, White, 879 

P.2d at 1377, coupled with a well-heeled ski industry, the 

legislature revising the Act on multiple occasions, and Senator 

Hillyard’s comments lead us to the conclusion that “legislative 

acquiescence” is far from “sheer speculation” in this case.

25 The dissent argues that the reliance interests we identify here 

are “minimal.” Infra ¶ 175. We disagree. Moreover, this is beside 

the point: even if the dissent was correct and the reliance on Clover

we have identified in this opinion was minimal, Talisker has not 

(cont.)
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c. Workability

¶69 Additionally, Talisker has not met its burden of producing 

evidence to suggest that Clover is unworkable. 

¶70 For one, Clover’s workability is evidenced by the fact that, 

despite being nearly thirty years old, it has not generated 

substantial appellate litigation. This suggests that district courts are 

able to understand and apply Clover in ski area operator liability 

cases. Of course, other explanations are also possible. But it is

Talisker’s burden to show us that Clover is poorly understood. To 

carry this burden of persuasion, Talisker must adduce evidence of 

confusion and lack of reliance among litigants and in the lower 

courts. It has not done so.

¶71 Importantly, the ski industry appears to have done nothing

to “correct” Clover in the legislature. Indeed, when asked at oral 

argument, both Talisker and amicus Ski Utah stated that they were 

unaware of any efforts made to lobby the legislature to alter 

Clover’s core holding. Certainly, if the standard were as unworkable 

as Talisker and amici suggest, Utah’s ski industry would have, at 

some point in the last twenty-eight years, introduced some 

evidence in the record demonstrating the industry’s confusion and 

consternation. It did not.

¶72 Furthermore, other jurisdictions have drawn on Clover’s 

analysis in evaluating their own liability statutes. For example, the 

Supreme Court of North Dakota has adopted Clover’s core holding. 

North Dakota’s version of the Act provided that “[e]ach skier 

expressly assumes the risk . . . for any injury . . . caused by the 

following: variations in terrain; surface or subsurface snow or ice 

conditions; bare spots, rocks, trees, or other forms of forest growth 

or debris.” Bouchard v. Johnson, 555 N.W.2d 81, 83 (N.D. 1996)

(citation omitted) (internal quotation marks omitted). In declining 

to interpret the statute to “act as a complete bar to any recovery,” 

the court stated that “the better view is contained in the Utah 

Supreme Court’s decision in Clover.” Id. at 83–84. It accordingly 

held that “[t]here should be no liability for a ski area operator if the 

design of the ski run creates natural conditions, necessary to the 

 

made this argument or, for that matter, demonstrated any lack of 

reliance. And because Talisker is the party asking us to overturn 

Clover, the burden of persuasion is Talisker’s to bear.
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Opinion of the Court

34

enjoyment of the sport.” Id. at 85. But “[c]onversely, if the design 

problem was created by the operator’s negligence and was not an 

inherent risk associated with the sport, liability for the operator 

should exist.” Id.

¶73 The dissent claims that “[t]he ‘proper standard’ endorsed 

by Bouchard is not the Clover framework.” Infra ¶ 156. It asserts that 

Bouchard is different because the North Dakota statute “begins with

an extensive list of ‘duties’ that ‘[e]very ski operator shall have” 

and then notes that because skiing is hazardous despite all feasible 

safety measures, “‘[e]ach skier expressly assumes the risk of’ 

injuries resulting from enumerated inherent risks of skiing.” Infra

¶ 157 (alterations in original) (quoting Bouchard, 555 N.W.2d at 83 ).

But Bouchard does exactly what Clover does: it interprets the 

statutorily enumerated inherent risks of skiing—those that a skier 

assumes and cannot be a basis for legal recovery—to only include 

those risks when they “do[] not present a danger beyond what 

might be anticipated for the skier who assumes the risk inherent in 

skiing.” Bouchard, 555 N.W.2d at 85. Right after setting out the 

standard that the dissent claims is “not the Clover framework,” the 

Bouchard court goes on to give an example that squarely fits within 

Clover:

[I]f a tree exists as part of the ski run design and 

does not present a danger beyond what might be 

anticipated for the skier who assumes the risk 

inherent in skiing, there should be no liability for 

injuries caused by the tree. The risk of a collision 

with a tree of this nature is an inherent risk. 

However, notwithstanding the express reference to trees

in [the North Dakota statute], if a tree or tree stump 

creates a risk which cannot be said to be inherent in 

the sport design, the operator should be liable for 

any injuries caused by this danger.

Bouchard, 555 N.W.2d at 85–86 (emphasis added). It is clear that the 

North Dakota Supreme Court found no issues with the 

implementation of a secondary inquiry—one very similar to the 

secondary inquiry in Clover—to determine whether listed risks are 

truly inherent risks in the context of the statute.
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¶74 Given the evidence of legislative approval, public reliance, 

and general workability,26 Talisker has not carried its heavy burden 

to persuade us to overturn this precedent and nothing today

convinces us that we should overrule the core holding of Clover. 

III. CLOVER’S TEST CLARIFIED

¶75 Our overarching goal when interpreting a statute is to 

“implement the intent of the legislature.” State v. Rushton, 2017 UT 

21, ¶ 11, 395 P.3d 92. In doing so, we turn first to the plain language 

of the statute itself. GeoMetWatch Corp. v. Utah State Research Found., 

2018 UT 50, ¶ 15, 428 P.3d 1064. When the language of the statute is 

plain and unambiguous, this court will look no further to discern 

legislative intent. Savely v. Utah Highway Patrol, 2018 UT 44, ¶ 25, 

427 P.3d 1174. However, “if doubt or uncertainty exists as to the 

26 The dissent fails to give any credence to Clover’s favorable 

out-of-state press. But the dissent does selectively cite other cases—

Glover v. Vail Corp., 955 F. Supp. 105 (D. Colo. 1997) and Hanus v. 

Loon Mountain Recreation Corp., No. 13-cv-44-JL, 2014 WL 1513232 

(D.N.H. Apr. 16, 2014)—for the proposition that other courts have 

questioned the viability of the Clover framework. Infra ¶¶ 161–162.

These cases are not persuasive. Hanus simply states that it finds 

Clover unpersuasive “for the reasons discussed in Glover,” Hanus, 

2014 WL 1513232, at *5 n.5, so it is only as persuasive as Glover. 

And Glover is fundamentally flawed. Its analysis of Colorado’s 

analog to the Act is at odds with the Colorado Supreme Court’s 

own, authoritative interpretation. 

Glover held that the phrase “integral part of the sport of skiing” 

in Colorado’s Inherent Risks of Skiing Act did not require the 

Glover court to analyze whether each listed risk had, in fact, 

manifested in a way that was “integral” to the sport of skiing. See 

Glover, 955 F. Supp. at 109. But in Graven v. Vail Assocs, Inc., 909 

P.2d 514 (Colo. 1995) (en banc), the Colorado Supreme Court held 

that “[t]he dangers and risks detailed in [the Colorado Inherent 

Risks of Skiing Act] . . . . must be read with [the phrase ‘integral 

part of the sport of skiing’] in mind”—a phrase that, the Colorado 

Supreme Court held, imposed a “limitation” on the extent to which 

the listed risks were “inherent risks of skiing” as a matter of law. Id.

at 519. This case, which is authoritative and predates Glover, 

directly contradicts Glover’s approach and therefore undermines its 

persuasiveness.
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Opinion of the Court

36

meaning or application of an act’s provisions, [we] . . . analyze the 

act in its entirety and harmonize its provisions in accordance with 

the legislative intent and purpose.” Id. (citation omitted) (internal 

quotation marks omitted).

¶76 Having acknowledged the ambiguity in the Act’s 

definition of inherent risks of skiing, see supra ¶¶ 31–43, we now 

turn to the best way to resolve that ambiguity. As discussed earlier, 

Clover held that inclusion of a risk in the Act’s exemplary list does

not end the inquiry into whether that risk constitutes an inherent 

risk of skiing. 808 P.2d 1037, 1045 (Utah 1991). Rather, the Act 

requires a case-by-case analysis to determine whether the injurycausing risk is truly an inherent risk of skiing under the Act. Id. We 

agree with this holding. 

¶77 To implement this holding, Clover announced a test that 

asks whether a skier “wishes (or does not wish) to confront” a 

certain risk. If a skier wishes to confront a risk, then it is an inherent 

risk. Id. at 1047. But if the risk is one a skier would not wish to 

confront, then it is an inherent risk only if a ski area operator could 

not eliminate the risk through the exercise of ordinary care. Id.

¶78 While Clover’s holding is faithful to the purpose of the Act, 

see supra ¶¶ 44–54, we believe that the Clover test could be 

implemented in a way that more precisely tracks the legislative 

intent of the Act. In announcing this clarification, we do not aim to 

overturn the results of our prior decisions in this area. Instead, we 

aim to clarify the implementation of law and more clearly bring it 

in line with the intent of the legislature.

¶79 The two-prong analysis under Clover in which a court first 

makes a subjective determination of whether a skier wishes to 

confront a risk followed by an objective determination of the ability 

to eliminate the risk (in the event that the risk is one a skier does 

not subjectively wish to confront), can be effectively collapsed into 

a one-step objective inquiry. Specifically, this objective inquiry asks 

whether a skier reasonably expects to encounter the risk when 

skiing.27 If so, then the risk is an integral part of the sport of skiing 

27 The dissent argues that this clarification does more than 

clarify the holding in Clover. In its view, our clarification 

“completely rewrit[es]” Clover and “pays no more than lip service 

to the doctrine of stare decisis.” Infra ¶ 90. We disagree.

(cont.)
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37

 

It is true, as the dissent points out, that the clarified test does 

away with the two categories of inherent risks announced in Clover

and expounded on in White. Indeed, we own the fact that we are 

“transforming a two-step subjective inquiry into a one-part 

objective one.” Infra ¶ 149 n.44. But we are untroubled by this as a 

matter of stare decisis for two reasons.

First, we do not view the creation of two categories of inherent 

risks as the core holding of Clover. As explained above, see supra 

¶ 29, the core holding of Clover is that there is a secondary inquiry 

required when evaluating whether an enumerated risk is truly an 

inherent risk of skiing. As we noted in White, “Clover . . . clarified 

the manner in which the [Act] is to be applied. Courts cannot

determine that a risk is inherent in skiing simply by asking whether 

it happens to be one of those listed in [section 402].” 879 P.2d at 

1374. Instead, “to determine whether the [Act] applies, we must 

decide whether the particular risk which allegedly caused [the] 

injury was an integral part or essential characteristic of the sport of 

skiing.” Id. In this sense, we do no damage to Clover because the 

clarified test is indeed a secondary inquiry that we can use to 

evaluate whether an injury-causing risk, enumerated or not, is an 

inherent risk of skiing.

Second, the single objective inquiry of whether a skier 

reasonably expects to encounter a risk does the same work as the 

two categories of inherent risks announced in Clover. With respect 

to the first category of inherent risks in Clover, it seems clear that a 

skier reasonably expects to encounter those risks which he or she 

wishes to confront. And with respect to the second category, it 

seems equally clear that risks a skier does not wish to confront but 

cannot be eliminated through the use of reasonable care are largely 

synonymous with risks a skier reasonably expects to encounter. 

While a skier may not wish to confront certain things such as rocks, 

forest growth, and lift towers, a skier nonetheless reasonably 

expects to encounter these things in their ordinary state—in the 

context of skiing—because they are risks that cannot be eliminated 

through the exercise of reasonable care and therefore inhere in the 

sport.

Because our clarification today remains true to the core holding 

of Clover and does the same work as the Clover test, we view it as 

just that—a clarification. And we are always free to “clarif[y] 

ambiguities in past opinions without overruling their holdings.” In 

(cont.)
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Opinion of the Court

38

and therefore an inherent risk of skiing. And by extension, the list 

of enumerated risks captures those risks that the legislature 

believed to be inherent risks of skiing when they are encountered in 

the way that skiers would reasonably expect to encounter them. We 

believe this test effectively captures the legislature’s intent when it 

announced that skiers assume the inherent risks of skiing as a 

matter of law.28

 

re Adoption of Baby B., 2012 UT 35, ¶ 60 n.23, 308 P.3d 382. “Such a 

decision is entirely consistent with the principle of stare decisis.” Id.

28 The dissent laments that our clarification “seems to articulate 

two alternative standards,” infra ¶ 185, and “sounds alternatively as 

either a question of law . . . or a fact-intensive mixed question,” 

infra ¶ 91. In the dissent’s view, cases decided under this 

framework are not decided “as a matter of law” because they could 

be potentially “subject to a factual negligence inquiry.” Infra ¶ 106. 

We see no inconsistency in the reality that a determination under 

this framework may require a predicate factual inquiry in some 

cases—even those involving enumerated risks. A determination 

made under this framework may involve predicate factual 

findings, but the ultimate conclusion is nevertheless made as a 

matter of law. 

It is true that the Act’s public policy section states that one 

purpose of the Act is “to establish as a matter of law that certain 

risks are inherent in [the] sport [of skiing].” Indeed, the Act 

establishes “as a matter of law that certain risks are inherent” to 

skiing. But this does not lead to the conclusion that the reference to 

“certain risks” is a reference to the enumerated risks, as the dissent 

suggests. Infra ¶ 114. Instead, as this court held in Clover, those 

certain risks that are inherent to skiing are those risks that are 

“integral part[s] of the sport of skiing.” 808 P.2d at 1044 (internal 

quotation marks omitted). Therefore, under the Act, risks that are 

an integral part of the sport of skiing are inherent to the sport of 

skiing as a matter of law. 

The potential for factual inquiry, whether it be through expert 

testimony or otherwise, to determine whether a risk is an integral 

part of the sport of skiing does not affect the ultimate conclusion 

that any risk found to be an integral part of the sport of skiing is an 

inherent risk under the Act as a matter of law. In other words, once 

a risk has been shown to be an integral part of the sport of skiing—

(cont.)
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Opinion of the Court

39

¶80 To determine the legislature’s intent we can turn to the 

Act’s definition of inherent risks of skiing in section 402. Along 

with the general definition of inherent risks of skiing, the Act also 

provides an exemplary list of inherent risks of skiing in section 402. 

Crucial to our understanding of the legislature’s intent is the way in 

which the exemplary risks are presented: the risks listed in section 

402 are presented in an entirely unremarkable manner. That is, all 

of the risks are presented in the manner in which a skier would 

reasonably expect to encounter them. See supra ¶ 38. This is useful 

for understanding exactly what types of risks for which the 

legislature intended to bar recovery. 

¶81 For example, the Act bars recovery for injury caused by 

impact with lift towers. The relevant inquiry in a case involving an 

impact with a lift tower is whether the legislature meant for the Act 

to cover the kind of impact with a lift tower at issue in the case. In 

deciphering what kinds of impact with lift towers the legislature 

envisioned when drafting the statute, it is telling that the legislature 

chose to simply use “lift towers” with no other qualifying terms. 

This language conjures up images of standard lift towers as any 

skier would reasonably expect to encounter them. Similarly, the use 

of “impact” suggests that the types of impacts contemplated with 

lift towers are those impacts that a skier could reasonably expect to 

occur while skiing. Interpreting the exemplary risks in this manner 

dispatches with the possibility of the kind of absurd or 

unreasonable results that the legislature could not have intended 

when applying the Act. See Anderson v. Utah Cty., 368 P.2d 912, 913 

n.3 (Utah 1962) (“[I]t is a general rule that where a statute is 

ambiguous in terms and fairly susceptible of two constructions, the 

unreasonableness or absurdity which may follow one construction 

or the other may properly be considered. Unreasonable, absurd, or 

ridiculous consequences should be avoided.” (citation omitted) 

 

which is done by showing that a skier would reasonably expect to 

encounter that risk—there is no more discussion to be had about 

whether that risk is inherent: risks that a skier would reasonably 

expect to encounter are inherent risks as a matter of law. And the 

import of that conclusion is that a plaintiff may not recover from a 

ski area operator for any injury resulting therefrom. 
RUTHERFORD v. TALISKER

Opinion of the Court

40

(internal quotation marks omitted)).29 Instead of barring recovery 

for an impact with a lift tower lying on its side waiting to be 

erected or painted to blend in with its alpine setting, the Act bars 

recovery for impacts with lift towers as skiers reasonably expect to 

encounter them. By extension, instead of barring recovery for an 

injury in which the chairlift cable snaps and a skier is thrown from 

a lift chair into a lift tower, the Act bars recovery for impacts as 

skiers would reasonably expect them to occur, such as skiing out of 

control and crashing into an ordinary lift tower.30

29 While we have referred to this canon as the “absurd 

consequences canon,” see, e.g., Utley v. Mill Man Steel, Inc., 2015 UT 

75, ¶ 39 n.14, 357 P.3d 992, we note that the designation is 

somewhat of a misnomer. Instead of encompassing only truly 

“absurd” consequences, this interpretive canon also applies in 

cases involving ambiguities that ask us to choose between two 

plausible constructions. In cases presenting two plausible readings, 

the absurd consequences canon, generally speaking, causes us to 

prefer the more reasonable interpretation, even if the less 

reasonable interpretation could not be accurately described as 

“absurd.” 

30 The dissent complains that our use of the adjective “ordinary” 

“sounds like the framing of a legal question,” while the rest of our 

framework “seems more of a factual inquiry.” Infra ¶ 188. And the 

dissent views this as creating “internal tension” in our approach. 

Infra ¶ 188. Not so. All that is meant here by use of the word 

“ordinary” is that the lift tower is encountered in the way in which 

a skier would reasonably expect to encounter it. In some cases, 

such as the dissent’s proposed hypothetical about a lift tower a

plaintiff claims to be negligently designed, infra ¶ 192, a factual 

inquiry may be necessary to determine whether the lift tower is one 

skiers would reasonably expect to encounter—or in other words, 

whether it is an ordinary lift tower. 

Furthermore, we disagree with the dissent’s assertion that “we 

must identify what counts as part of the relevant ‘way’” in which 

risks are encountered. Infra ¶ 191. There is no reason to cabin the 

analysis to the color, shape, placement, design, etc. of the risk in 

determining whether a skier would reasonably expect to encounter 

it. All elements of a given risk are relevant to the determination of 

(cont.)
Cite as: 2019 UT 27

Opinion of the Court

41

¶82 In addition to tracking the commonplace descriptions of 

risks in section 402, requiring an analysis of whether a skier would 

reasonably expect to encounter a given risk aligns with the purpose 

of the Act. As section 401 states, the purpose of the Act was to 

“clarify the law” as it existed in 1979. As discussed earlier, the Act 

served to reassert the defense of primary assumption of risk with 

respect to ski injuries. See supra ¶¶ 44–54. Under a primary 

assumption of risk analysis, the question is not necessarily whether 

a skier would “wish” to encounter a certain risk, but whether a risk 

is inherent or essential to the sport of skiing and therefore whether 

the risk is one that a skier reasonably expects to encounter when 

participating in the sport. See, e.g., Hansen v. Flying J Travel Plaza, 57 

Fed. App’x 214, 216 (6th Cir. 2003) (“A baseball spectator assumes 

the risk of injury because it is common knowledge that hard balls 

may be thrown or batted at great speeds into the stands.”); Fleury v. 

IntraWest Winter Park Operations Corp., 372 P.3d 349, 355 (Colo. 

2016) (Marquez, J., dissenting) (“The many hazards listed in 

[Colorado’s Inherent Risks of Skiing Act] as ‘inherent dangers and 

risks of skiing’ are common, everyday conditions that any skier . . . 

reasonably can expect to encounter . . . .”); Morgan v. State, 685 

N.E.2d 202, 207 (N.Y. 1997) (“[B]y engaging in a sport . . . a 

participant consents to those commonly appreciated risks which 

are inherent in and arise out of the nature of the sport generally 

. . . .”); Turcotte v. Fell, 502 N.E.2d 964, 968 (N.Y. 1986) (“As a 

general rule, participants properly may be held to have consented, 

by their participation, to those injury-causing events which are 

known, apparent or reasonably foreseeable consequences of the 

participation.”). Regardless of whether a skier wishes to confront

the inherent risks of skiing, skiers nonetheless reasonably expect to 

encounter those risks that inhere in the sport.31

¶83 Because the legislature described the listed risks in their 

ordinary forms and the Act served to reassert the availability of the 

 

whether it was presented in the way a skier would reasonably 

expect to encounter it.

31 The dissent faults us for not quantifying the level of 

expectation necessary for a risk to be considered an integral part of 

the sport of skiing. Infra ¶ 193. But we repeatedly state that the 

level of expectation required is a reasonable expectation. See supra 

¶¶ 79–82. 
RUTHERFORD v. TALISKER

Opinion of the Court

42

defense of primary assumption of risk, we hold today that the 

inherent risks of skiing are those risks which a skier would 

reasonably expect to encounter while skiing. And with respect to 

the risks enumerated in section 402, those risks are inherent risks of 

skiing only to the extent that a skier could reasonably expect to 

encounter them. We believe that this clarification of Clover remains 

true to the core holding of that case while simultaneously 

interpreting the language of the Act in a way that comports with 

the intent of the legislature. And although we expect the outcomes 

under this clarified standard to be the same as the outcomes under 

the old standard, we nonetheless remand this case to the district 

court to determine whether a skier would reasonably expect to 

encounter the wet, sticky snow that Levi encountered at The

Canyons.

¶84 The legislature, of course, retains the power to amend the 

Act and overrule our interpretation, which it has thus far declined 

to do. To the extent our current holding is not in line with the 

legislature’s actual intent, “we [continue to] invite the Utah 

Legislature to revisit the [Act] to provide clarity in this area.” State 

v. McNearney, 2011 UT App 4, ¶ 10 n.2, 246 P.3d 532.

CONCLUSION

¶85 We affirm the court of appeals with respect to the 

preinjury release. The preinjury release executed by Levi’s father on 

his behalf is void as against public policy. We also affirm the court 

of appeals to the extent that it chose to apply Clover to these facts. 

We remand, however, for a determination in accordance with our 

clarified implementation of Clover’s holding as to whether there 

exists a disputed issue of material fact with respect to the 

machine-made snow exemption. 

ASSOCIATE CHIEF JUSTICE LEE, dissenting in part:

I. INTRODUCTION

¶86 The Inherent Risks of Skiing Act is simple and 

straightforward. It provides a detailed but non-exclusive list of 

“inherent risks” of skiing, UTAH CODE § 78B-4-402(1)—a list that 

includes “snow or ice conditions” of all kinds, including 

“machine-made snow.” Id. § 78B-4-402(1)(b). And it bars claims 
Cite as: 2019 UT 27

Lee, A.C.J., dissenting in part

43

against ski resorts for injuries resulting from these and other 

“inherent risks” enumerated by the legislature. Id. § 78B-4-403. 

¶87 Our case law has distorted the clear terms of this statute. In 

Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), we erased 

the categorical bar on recovery for inherent risks of skiing listed in 

the statute and introduced negligence into the equation. In so doing 

we nullified the statutory list of inherent risks and redefined that 

term in accordance with a new liability regime of our own making. 

Clover conditions statutory immunity on proof that the risk in 

question (even one listed in the statute) is one that “no one wishes 

to confront” and that “cannot be alleviated by the use of reasonable 

care on the part of a ski resort.” Clover, 808 P.2d at 1047.

¶88 This standard has never been elucidated in any workable 

detail. We have never explained how a court is to decide whether a 

risk is one that a skier may “wish[] to confront,” or what sort of 

evidence may be permitted or required to prove this threshold 

element. The closest we have come to an explanation is a set of 

categorical statements in White v. Deseelhorst—that risks such as 

“steep grades, powder, and mogul runs” are risks that skiers wish 

to confront (and that ski resorts are thus “relieved of any obligation 

to eliminate”), and that risks like “bare spots, forest growth, rocks, 

stumps, . . . lift towers and other structures” are risks that skiers do 

not wish to confront (and thus that are inherent only if they cannot 

be “eliminated by reasonable care”). 879 P.2d 1371, 1375 (Utah 

1994) (alteration in original) abrogated on other grounds by Penunuri v. 

Sundance Partners Ltd., 2011 UT 54, 423 P.3d 1150. We have never 

offered any clarification on our methods of devising these 

categories, however. And we have never prescribed a standard or 

means of proving that a risk is one that “cannot be alleviated by the 

use of reasonable care on the part of a ski resort.” Clover, 808 P.2d at 

1047. Our opinions in this field, moreover, have been deeply 

divided—with various members of the court questioning the 

compatibility of the Clover framework with the text of the statute.1

1 See White v. Deseelhorst, 879 P.2d 1371, 1377 (Utah 1994)

(Zimmerman, C.J., concurring) (noting that he “may not agree” 

(cont.)
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

44

¶89 These and other concerns prompted us to invite the parties 

to submit supplemental briefs on whether we should reformulate 

the Clover standard of liability. The petitioners responded with an 

extensive showing of the basis for repudiating the Clover standard 

under our doctrine of stare decisis. They have highlighted the degree 

to which Clover distorts the legal framework enacted by the 

legislature—depriving the statutory list of inherent risks of any 

meaning, and replacing the statutory grant of immunity with a 

vague inquiry into negligence. And they have questioned the 

workability of the existing framework by noting the difficulty of 

(and lack of any guidance in our cases on) deciding whether a risk 

is one that a skier “wishes to confront.” The respondents, for their 

part, asked us to retain the Clover framework. They urged a 

reaffirmation of this precedent under the doctrine of stare decisis. 

But they offered little or no help in prescribing a workable means of 

applying Clover to a case like this one.

¶90 The majority rejects the petitioners’ request that we 

repudiate Clover. It opines at length about the importance of the 

doctrine of stare decisis. And it purports to “clarify” and 

“streamline” the Clover standard in a way that renders it more 

transparent and workable. Supra ¶¶ 3, 12. For all its fulmination, 

however, the court pays no more than lip service to the doctrine of 

stare decisis—stating a patriotic commitment to Clover as super 

precedent in one breath while completely rewriting the Clover

standard in the next. The rewriting is substantial. The majority 

replaces the two-part standard from Clover with a one-part 

standard of its own making. Under the majority opinion we ask 

only what a “reasonable skier” would “expect to confront.” We 

have reframed the first step and eliminated the second. And we 

apparently have abandoned the two categories of risks set forth in 

White—with “steep grades, powder, and mogul runs” on the “wish 

to confront” side and “’bare spots, forest growth, rocks, stumps, . . . 

lift towers and other structures’” on the “prefer to avoid” side.

 

with Clover); id., (Russon, J., dissenting) (asserting that Clover 

“contradicts the plain language” of the statute). 
Cite as: 2019 UT 27

Lee, A.C.J., dissenting in part

45

¶91 Despite this reformulation, the court does nothing to solve 

the workability problems that have plagued our courts for decades 

and that prompted our supplemental briefing order and multiple 

oral arguments in this court. The court relabels the standard—

replacing the verb “wish” with “expect.” And it frames the 

question in objective terms. But the court’s opinion never answers 

any of the practical questions that we posed to the parties in our 

supplemental briefing order. In fact, it compounds the 

unworkability of Clover by presenting a standard that sounds 

alternatively as either a question of law (as to whether the risk in 

question is presented in a manner that falls within the ordinary 

meaning of the terms of the statutory list) or a fact-intensive mixed 

question (as to whether a reasonable skier would expect to 

encounter the type of risk that is presented in the relevant 

circumstances). See infra Part II.D (discussing this problem). And 

the majority never tells us how either of these standards is to be 

established—by the court as a matter of law, or by a fact-finder 

weighing evidence. Nor does the court clarify what it means for a 

given risk to be “expected,” or how expectation is to be proven 

(through expert testimony, etc.). See infra Part II.D.

¶92 We can do better. Once we own up to the fatal workability 

problems with Clover we should do more than just rearrange deck 

chairs. We should state a clear, workable standard that gives voice 

to the statutory scheme enacted by our legislature. I would do so. I 

would apply the Inherent Risks of Skiing Act as written and hold 

that the petitioners are entitled to immunity under the statute if 

they can establish that the plaintiff’s injuries in this case resulted 

“from any of the inherent risks of skiing,” UTAH CODE § 78B-4-403,

listed in the statute, such as “snow or ice conditions as they exist or 

may change,” including “machine-made snow,” and “variations . . . 

in terrain” resulting from “snowmaking or grooming operations.” 

Id. § 78B-4-402(1)(b),(d). I would interpret the listed “[i]nherent 

risks of skiing” in their ordinary sense. And I would reverse and 

remand to allow the parties to present evidence and argument to 

the district court on the question whether the injury in question 

resulted from these or other inherent risks of skiing.

¶93 This approach respects the independent meaning canon 

and related canons cited by the majority. See supra ¶¶ 33-38. The 
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

46

cited canons all emphasize a central point—that the statutory 

definition of “[i]nherent risks of skiing” includes a phrase (“an 

integral part of the sport of . . . skiing”) that should be given 

independent meaning as a modifier of the statutory “[i]nherent 

risks.” But that is common ground. Everyone agrees that the 

“integral part of the sport” clause has this independent meaning as 

a modifier. The question is how the modifier works—in particular, 

whether it calls for a court to make an independent assessment of 

whether even a listed risk of skiing is “integral” to the sport, or 

whether listed risks are deemed categorically “integral” by being 

listed. I see no basis for the former approach. It fails because it 

completely nullifies the detailed statutory list of inherent risks. My 

reading, by contrast, gives meaning both to the statutory list and to 

the “integral part of the sport” clause.

¶94 Under my reading, listed risks are categorically included 

as “[i]nherent risks of skiing.” That is the whole point of the 

statutory list. See UTAH CODE § 78B-4-401 (emphasizing that the 

statute’s purpose is to “establish as a matter of law that certain risks

are inherent in th[e] sport” (emphasis added)); id. § 78B-4-402(1) 

(indicating that listed risks are “includ[ed]” in the “dangers or 

conditions which are an integral part of the sport of . . . skiing”). 

And that list can be treated as categorical without depriving the 

“integral to the sport” clause of its own meaning. The statutory 

definition, after all, also encompasses unlisted risks—the list is only 

exemplary. So for an unlisted risk a court must make its own 

independent assessment of whether it is an “integral part of the 

sport” of skiing. That is the independent meaning of this clause.

¶95 My approach also leaves room for the majority’s concerns 

about “absurd” applications. If a ski area operator were ever to 

stoop to the folly of constructing a “lift tower” that is “practically 

invisible to skiers,” supra ¶ 39, an injured skier could simply assert 

that such a tower does not fall within the ordinary meaning of the 

sort of “lift tower” that is “includ[ed]” as an “[i]nherent risk[] of 

skiing.” Or, alternatively, the injured skier could seek resort in the 

doctrine of absurdity—a safety valve built into our law of 

interpretation that is designed specifically to deal with the kinds of 

absurd problems that the majority has imagined. If and when these 

sorts of outliers come to the court, we could then decide whether to 
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Lee, A.C.J., dissenting in part

47

override clear statutory text on the ground that “no rational 

legislator could possibly have intended” such an application.

Garfield Cty. v. United States, 2017 UT 41, ¶ 23 n.55, 424 P.3d 46. But 

that is not what the majority is doing here. It is not saying that the 

circumstance before us in this case is so absurd as to justify an 

isolated departure from the statutory text on the facts of this case. It 

is conjuring absurd possibilities to support the sweeping 

conclusion that the statute can never mean what it says. That is not 

how the doctrine of absurdity works. Or at least it is not how it has 

ever worked before today. See John F. Manning, The Absurdity 

Doctrine, 116 HARV. L. REV. 2387, 2388 (2003) (noting that the 

absurdity doctrine operates to override the text when a “given 

application” would produce absurd results).

¶96 I respectfully dissent. I would hold that the Inherent Risks 

of Skiing Act means what it says. And I would reverse and remand 

to allow the district court and the parties to assess the question of 

liability in this case in accordance with the statutory standard.

II. ANALYSIS

¶97 In enacting the Inherent Risks of Skiing Act, the legislature 

found that the sport of skiing “significantly contribut[es] to the 

economy of this state” and concluded that insurance “premiums” 

for “ski area operators” “have risen sharply in recent years due to 

confusion as to whether a skier assumes the risks inherent in the 

sport of skiing.” UTAH CODE § 78B-4-401. With these concerns in 

mind, the legislature also adopted a statement of “purpose”: “to 

clarify the law in relation to skiing injuries and the risks inherent in 

that sport, to establish as a matter of law that certain risks are 

inherent in that sport, and to provide that, as a matter of public 

policy, no person engaged in that sport shall recover from a ski 

operator for injuries resulting from those inherent risks.” Id. The 

operative terms of the statute effectuate this purpose. But Clover

overrides those statutory terms. And it does so in a manner that is 

unworkable and thus unworthy of deference under our doctrine of 

stare decisis.

¶98 I set forth the basis for my conclusions and my response to 

the majority in the paragraphs below. First I highlight the 

incompatibility of Clover with the text of the Inherent Risks of 
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

48

Skiing Act. Second, I explain the basis for my conclusion that Clover

is not only wrong but so clearly wrong and so unworkable that the 

usual presumption of stare decisis is rebutted. Third, I articulate a 

legal standard that is dictated by the text and structure of the 

Inherent Risks of Skiing Act and describe the grounds on which I 

would reverse and remand the case to the district court. Fourth, I 

highlight problems and unanswered questions with the majority’s 

reformulation of the Clover test, emphasizing that the new test 

represents a substantial departure from the old one while also 

managing not to answer any of the practical problems highlighted 

by the parties in their briefing in this case.

A. Clover is Incompatible with the Statute

¶99 The text of the Inherent Risks of Skiing Act is clear, 

straightforward, and categorical. It says that “no skier may make 

any claim against, or recover from, any ski area operator for injury 

resulting from any of the inherent risks of skiing.” Id. § 78B-4-403.

¶100 The statute also prescribes a comprehensive definition of 

the “inherent risks of skiing.” It says that “‘[i]nherent risks of 

skiing’ means those dangers or conditions which are an integral 

part of the sport of recreational, competitive, or professional 

skiing.” Id. § 78B-4-402(1). And it sets forth a list of risks that are 

“includ[ed]” in the statutory definition. Id. The non-exclusive 

statutory list includes “snow or ice conditions as they exist or may 

change, such as hard pack, powder, packed powder, wind pack, 

corn, crust, slush, cut-up snow, or machine-made snow.” Id. § 78B4-402(1)(b) It also includes “variations or steepness in terrain, 

whether natural or as a result of slope design, snowmaking or 

grooming operations, and other terrain modifications.” Id. § 78B-4-

402(1)(d) These terms, as noted, should be interpreted in 

accordance with their ordinary meaning. 

¶101 The Clover framework overrides the categorical 

immunity called for by the statute. It does so by obliterating the 

concept of statutory immunity for enumerated risks “establish[ed]

as a matter of law,” Id. § 78B-4-401, and “includ[ed]” in the 

definition of “[i]nherent risks of skiing,” id. § 78B-4-402(1), and 

substituting instead an assessment of whether any given risk 
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Lee, A.C.J., dissenting in part

49

should qualify for statutory protection “under the facts of each

case.” Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1044 (Utah 1991).

¶102 Under Clover the statutory list of “inherent risks of 

skiing” is superfluous. Infra ¶¶ 114–18. Instead of embracing the 

statutory list the Clover court replaces it with two new tiers of “risks 

of skiing”—those risks skiers “wish to confront” and those they do 

not. Clover, 808 P.2d at 1046–47. Under Clover, “[t]he inherent risks 

of skiing are those dangers that skiers wish to confront as essential 

characteristics of the sport of skiing or hazards that cannot be 

eliminated by the exercise of ordinary care on the part of the ski 

area operator.” Id. In other words, Clover divides the “inherent risks 

of skiing” into “two categories”: (1) those “risks, such as steep 

grades, powder, and mogul runs, which skiers wish to confront as 

an essential characteristic of skiing”; and (2) those risks “which no 

one wishes to confront but cannot be alleviated by the use of 

reasonable care on the part of a ski resort.” Id. at 1047. 

¶103 These “categories” bear no relation to the text and 

structure of the Inherent Risks of Skiing Act. The statute makes no 

mention of the inquiry into the skier’s mindset—of wishing, or not 

wishing, to confront certain risks. And the statutory list of 

“inherent risks” leaves no room for the Clover court’s formulation. 

The statute treats all listed risks equally. All are identified as 

“inherent risks of skiing.” And all are on parallel statutory terms.

¶104 The Clover court overrides this structure. It says that 

some of the listed risks qualify for statutory immunity but others 

do not. And it says that the dividing line depends on a criterion 

nowhere listed in the statute—on whether it is a risk skiers “wish to 

confront.” 

¶105 The Clover opinion provides no definition of this crucial 

criterion. But it does identify some of the risks listed in the statute 

that purportedly qualify for statutory protection: “steep grades, 

powder, and mogul runs.” Id. This only highlights the 

incompatibility of the Clover standard with the terms and structure 

of the Inherent Risks of Skiing Act. Perhaps there are good policy 

reasons for treating risks like “steep grades, powder, and mogul 

runs” differently from other, more treacherous risks identified by 

the legislature—like “bare spots, forest growth, rocks, stumps, 
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

50

streambeds, cliffs, trees, and other natural objects,” or “impact with 

lift towers and other structures and their components such as signs, 

posts, fences or enclosures, hydrants, or water pipes.” UTAH CODE 

§ 78B-4-402(1)(c),(e). And maybe the intuition behind this policy is 

that skiers generally “wish [or expect] to confront” only the former 

risks as a necessary part of skiing. But this policy is not the one 

embraced by the legislature. 

¶106 The Inherent Risks of Skiing Act also affords categorical 

immunity to enumerated risks of skiing “as a matter of law.” Id.

§ 78B-4-401. But Clover reintroduces a negligence standard, asking 

whether the risk can “be alleviated by the use of reasonable care.”

Clover, 808 P.2d at 1047. If so, the ski resort can be held liable. With 

that in mind, I cannot think of a single “inherent risk” that would 

not be subject to a factual negligence inquiry, and thus actually be 

decided “as a matter of law” as contemplated by the statute.2 Infra

¶ 145. Both prongs of the Clover framework are thus incompatible 

with the statute because they override the clear terms and structure 

of the Act.

¶107 The majority offers a series of defenses of the merits of 

the Clover framework—arguing that it: (1) is consistent with the 

“structure” of the statute and certain canons of construction, supra

¶¶ 33–38; (2) better advances the stated legislative goal of 

“‘clarify[ing] the law,’” supra ¶ 44 (quoting Clover, 808 P.2d at 

1045); (3) avoids absurd or arbitrary consequences, supra ¶ 41; and 

(4) furthers the interests of the doctrine of constitutional avoidance, 

2 My point is not that legal questions are never subject to a 

“predicate factual inquiry.” Supra ¶ 79 n. 28. It is that the legal 

standards prescribed by this statute—in a list of risks deemed 

“inherent” as a matter of law—cannot properly be subject to such

an inquiry. In subjecting it to a fact-intensive negligence inquiry, 

the majority deprives the statutory list of its expressly intended 

effect (of establishing inherent risks as a matter of law). The 

problem here, moreover, is that the standard articulated by the 

majority does not just “require a predicate factual inquiry in some 

cases.” Supra ¶79 n.28 (emphasis added). It requires such an inquiry 

in every case—as to listed statutory risks and unlisted risks alike. 

This makes the list entirely ineffectual.
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Lee, A.C.J., dissenting in part

51

supra ¶¶ 55-58. None of these points is persuasive. I respond to 

each below.

1. Statutory Structure and Canons of Construction

¶108 The majority claims that Clover respects the “structure” of 

the Inherent Risks of Skiing Act. It cites a series of canons that it 

views as reinforcing the framework set forth in that decision. Supra

¶¶ 33-38.

¶109 The “structure” cited by the majority is the phrase 

“integral part of the sport of . . . skiing.” The majority hangs its 

textual defense of Clover on this clause. It notes that this clause is an 

element of the definition of the “[i]nherent risks of skiing.” And it 

cites the independent meaning canon to emphasize the 

independent function of this provision in the statutory definition of 

the “[i]nherent risks of skiing.” The majority’s insistence on the 

independent role of the “integral part of the sport” clause is 

unassailable. But it is also unhelpful to the defense of Clover.

¶110 I have no quarrel with the proposition that the “integral 

part of the sport” clause “provides important, independent value” 

in the statute. Supra ¶ 37. This provision, moreover, surely 

“modifies the ‘dangers’ and ‘conditions’” that count as an 

“[i]nherent risk[] of skiing.” It does not follow, however, that the 

question whether a danger—be it listed or not—is covered by the 

statute requires a “case-by-case analysis” of whether that risk is an 

integral part of the sport. Supra ¶ 29.

¶111 That is a premise of Clover. But that premise overrides 

and completely discredits the statutory list of inherent risks—

treating it as an exercise in futility. That cannot be the right way to 

interpret this statute. The statutory list of risks must have some 

meaning. And we can preserve independent meaning for the list 

while also crediting the “integral part of the sport” clause.

¶112 There is a straightforward way to preserve independent 

meaning for both the “integral part of the sport” clause and the 

statutory list of “inherent risks.” All we have to do is recognize the 

dual nature of the statutory definition. By statute, both listed and 

unlisted risks may qualify as “inherent risks of skiing.” The 

operative provision thus consists of a general definition of 
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

52

“[i]nherent risks of skiing” and a list of risks that are “includ[ed]” 

in that definition:

(1) “Inherent risks of skiing” means those dangers or 

conditions which are an integral part of the sport 

of recreational, competitive, or professional skiing, 

including, but not limited to:

(a) changing weather conditions;

(b) snow or ice conditions as they exist or may 

change, such as hard pack, powder, packed 

powder, wind pack, corn, crust, slush, cut-up 

snow, or machine-made snow;

(c) surface or subsurface conditions such as bare 

spots, forest growth, rocks, stumps, 

streambeds, cliffs, trees, and other natural 

objects;

(d) variations or steepness in terrain, whether 

natural or as a result of slope design, 

snowmaking or grooming operations, and

other terrain modifications such as terrain 

parks, and terrain features such as jumps, rails, 

fun boxes, and all other constructed and 

natural features such as half pipes, quarter 

pipes, or freestyle-bump terrain;

(e) impact with lift towers and other structures 

and their components such as signs, posts, 

fences or enclosures, hydrants, or water pipes;

(f) collisions with other skiers;

(g) participation in, or practicing or training for, 

competitions or special events; and

(h) the failure of a skier to ski within the skier’s 

own ability.

UTAH CODE § 78B-4-402. The “integral part of the sport of . . . 

skiing” clause is significant. This clause states the general 

precondition for a risk to qualify as “inherent.” It makes clear that 
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Lee, A.C.J., dissenting in part

53

any risk may qualify as “inherent” if it is an “integral part of the 

sport” of skiing.

¶113 This is a clear, independent function of the “integral part 

of the sport of skiing” clause. It forms the backbone of the statute’s 

generally applicable definition of “inherent risks of skiing.” For 

unlisted risks it is the controlling inquiry.3

3 For unlisted risks I agree with the majority’s invocation of the 

ejusdem generis canon of construction. See supra ¶ 38. In defining 

risks “not covered” by the statutory list we should undoubtedly 

look to the “character and nature” of the listed risks. Supra ¶ 38. 

But the majority takes this canon a couple of puzzling steps further. 

First is the assertion that the statutory list is useful (and not 

superfluous) simply because it can inform the meaning of the 

catchall definition of risks not included in the express list. Supra

¶ 38. This is a distortion of the canon, or a use of ejusdem that 

would invoke a wholesale override of the independent meaning 

canon. Statutory lists certainly inform ambiguities in catchall 

fallbacks. But I have never encountered the idea that that is the 

whole point of a statutory list—or that we can ignore the 

straightforward application of a list because its sole function might 

be to inform the meaning of the catchall. This use of ejusdem would 

do more than override the canon of independent meaning; it would 

defy common sense. And it would give us a license to ignore clear 

statutory lists—lists clearly intended to have independent 

meaning—because the only meaning of the list may be to inform a 

catchall term.

This leads to the second problem with the majority’s use of this 

canon. The court is effectively turning the canon upside down. 

“The ejusdem generis canon applies when a drafter has tacked on a 

catchall phrase at the end of an enumeration of specifics.” ANTONIN 

SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF 

LEGAL TEXTS 199 (2012). The canon tells us that the meaning of the 

“catchall phrase” is informed by the character or nature of the 

enumerated “specifics.” Id. But the majority isn’t interpreting the 

catchall—the definition of unlisted risks. It is “interpreting” (I 

would say overriding) the enumerated specifics. And it is doing so 

by incorporating an element of the catchall definition—“integral 

part of the sport” of skiing—to override the terms on the list. This 

(cont.)
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

54

¶114 It does not follow, however, that the statute leaves a 

court free to make its own independent assessment of whether a 

listed inherent risk is an “integral part of the sport of . . . skiing.” 

The whole point of the statutory list is “to establish as a matter of 

law that certain risks are inherent in th[e] sport” of skiing. Id.

§ 78B-4-401. And the list is rendered superfluous if enumerated 

risks are still subject to elimination if they are not deemed 

“integral” to skiing.4

 

isn’t how it works. I know of no basis for considering the 

“character and nature” of listed risks in deciding whether listed 

risks count. Certainly that’s not what ejusdem generis is about. The 

majority’s approach is a gross distortion of the ejusdem generis

canon. 

4 In a puzzling attempt to avoid this problem the majority notes 

that section 404 of the Act “requires ski area operators to post 

warning signs that list the inherent risks of skiing set forth in 

section 402.” Supra ¶ 37. And it suggests that the list in section 402 

may function simply to tell the ski area operator which risks to list 

on its warning signs. This assertion falters on two grounds. First, 

the majority ignores the express, obvious function that listed risks 

have under the statute—not just in establishing the components of 

a warning sign but in barring skiers from asserting “any claim 

against, or recover[ing] from, any ski area operator for injury 

resulting from any of the inherent risks of skiing.” UTAH CODE

§ 78B-4-403. This is the heart of the Act. See id. § 78B-4-401 (stating 

that the “purpose” of the statute is “to provide that, as a matter of 

public policy, no person engaged in th[e] sport [of skiing] shall 

recover from a ski operator for injuries resulting from th[e]

inherent risks” of the sport). The majority says that warning signs 

provide “important, independent value.” Supra ¶ 37. But its 

approach eliminates the express, core function of a list of “inherent 

risks,” yielding no independent meaning to the independent 

function of providing immunity for injuries arising from listed 

risks. The court is right that the statute’s requirement of a warning 

sign is a separate one. But the requirement makes no sense as 

understood by the majority. Surely the point of a “warning sign[] 

that list[s] the inherent risks of skiing set forth in section 402,” supra

¶ 37, is a warning sign that means something. Yet the warning sign 

(cont.)
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Lee, A.C.J., dissenting in part

55

¶115 The “integral part of the sport” clause thus plays a 

central, independent role in the statutory definition. It modifies the 

definition of “[i]nherent risks of skiing.” But the question is how 

the modifier works—whether it calls for an independent judicial 

assessment of whether even listed risks are “integral,” or whether 

listed risks are categorically deemed “integral” by being listed. The 

latter reading is the correct one. And it is the only one that 

preserves independent meaning both for the “integral part of the 

sport” clause and for the statutory list of “includ[ed]” inherent 

risks.

¶116 The statutory list is extensive and detailed but nonexhaustive. It comes on the heels of the general definition—which 

consists of the “integral part of the sport” of skiing clause—as a set 

of dangers that are “includ[ed]” in the definition. See id. 

§ 78B-4-402(1) (stating that the “[i]nherent risks of skiing” 

“includ[e]” but are “not limited to” the listed dangers). Clover also 

renders that proviso superfluous. It says that listed dangers may or 

may not be included—it depends on whether a court deems them 

“integral” in the sense of being risks skiers “wish to confront.” This 

is yet another problem with the Clover framework.

¶117 We have never clearly stated what it means for a risk to 

be one that skiers “wish to confront.” But we have asserted that 

some of the risks listed by the legislature are “inherent” in skiing 

and that others are not. We have characterized “steep grades, 

powder, and mogul runs” as “inherent” in the sport of skiing, 

 

as imagined by the majority is pointless. If inherent risks listed by 

the legislature are not controlling, as Clover and the majority 

indicate, see infra Part II.D., then a ski resort would have no reason 

to list those risks on a posted sign. Instead the sign should tell 

skiers that skiing will subject them to risks that a reasonable skier 

would “expect to confront,” however that standard may be 

defined. This is the second problem with the notion that the 

warning sign required by section 404 gives independent meaning 

to the statutory list of inherent risks. The majority has rendered the 

list irrelevant. And that also renders the required warning sign 

superfluous. 
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

56

while insisting that “‘bare spots, forest growth, rocks, stumps, . . . 

lift towers and other structures’” are not inherent “[i]f they can be 

eliminated by reasonable care.” See White, 879 P.2d at 1375 (citation 

omitted). But these propositions are utterly irreconcilable with the 

clear text of the statute. By statute, all of the foregoing conditions 

are “includ[ed]” as “[i]nherent risks of skiing.” See UTAH CODE

§ 78-B-4-402(1)(c)-(e) (stating “bare spots, forest growth, rocks, 

stumps,” “variations or steepness in terrain,” and “impact with lift 

towers and other structures” are all inherent risks). And a legal 

regime that sweeps away the obvious point of this statutory list 

cannot be viewed as compatible with the statute.

¶118 There is an irony in the majority’s resort to canons that 

emphasize the importance of preserving independent meaning for 

each provision of a statute. I endorse those canons. But they cut 

against the Clover approach and in favor of the statutory framework 

that I have outlined. My approach preserves meaning for each 

separate clause—for the “integral part of the sport” clause and for 

the enumerated list of “[i]nherent risks.” Clover, by contrast, 

proffers a construction of the first of these clauses that utterly 

obliterates the second. And that is incompatible with the canons 

identified by the majority and thus fatal to the Clover regime.

2. The Statutory Goal of Clarifying the Law

¶119 The majority next asserts that Clover is consistent with 

“the codified purpose” of the Inherent Risks of Skiing Act. Supra

¶ 32 n.10. Again citing Clover, the majority contends that “the 

purpose of the statute was ‘to clarify the law, not to radically alter 

ski resort liability.’” Supra ¶ 32 n.10 (quoting Clover, 808 P.2d at 

1045). And it insists that the Clover court reasonably “recognized 

that, unless the Act was construed to allow suits arising from the 

negligence of ski area operators—i.e., from any risks that were not 

integral to the sport—the statute would effectively abolish the 

negligence cause of action against ski area operators.” Supra ¶ 32 

The majority further claims that this “understanding of the Act 

comports with the self-described purpose of the Act to ‘clarify the 

law.’” Supra ¶ 52. And the court describes at great length the 

clarification that it attributes to the legislature—a restoration of 
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Lee, A.C.J., dissenting in part

57

“the law of ski resort liability as it existed prior to [a] perceived 

erosion of the defense of assumption of risk.” Supra ¶ 49.

¶120 The majority notes that Clover cited Wright v. Mansfield 

Lift, Inc., 96 F. Supp. 786 (D. Vt. 1951), “for the proposition that 

‘when the [Inherent Risks of Skiing Act] was enacted the majority 

of jurisdictions employed the doctrine of primary assumption of 

risk’ to ski area operator liability.” Supra ¶ 50. “Relying on the 

doctrine of primary assumption of risk,” the Clover court 

“concluded that the Utah legislature was attempting to define and 

clarify the duty of ski area operators under this existing doctrine.”

Supra ¶ 50. And the majority today says that this “appears to be 

correct.” Supra ¶ 50.

¶121 I have no quarrel with the idea that the Inherent Risks of 

Skiing Act was “clarifying” our law. And I have no doubt that the 

statute speaks to an area of the law previously covered by the 

common law doctrines of primary and secondary assumption of 

risk. But I see no basis for the conclusion that the statute was 

merely restoring a body of common law cases. The statute, of 

course, says nothing about restoring a ski area operator’s right to 

“raise a defense of primary assumption of risk against a skier’s 

claim for liability.” Supra ¶ 51. And it certainly does not say that 

“ski area operators owe a duty to exercise reasonable care, but a 

skier assumes the inherent risks of skiing to the extent that those 

risks persist after the ski area operator’s exercise of reasonable 

care.” Supra ¶51. Those might be good policies. But they are not the 

policies set forth in the statute.

¶122 The statute does identify a purpose of “clarify[ing]” the 

law in this area. See UTAH CODE § 78B-4-401. But that does not tell 

us what clarification the legislature had in mind. It doesn’t tell us 

whether the clarification involved a minor alteration of the law or a 

“radical” one. See supra ¶ 51. To discern the nature and extent of the 

clarification we have to look at the text of the statute.5

5 The majority says that the Act “conflate[s]... two forms of 

assumption of the risk.” Supra ¶ 51 n.18. But that highlights the 

atextual nature of the Clover framework. That framework 

essentially says that (a) the purpose of the law was to restore the 

(cont.)
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

58

¶123 The statute speaks of clarification after lamenting 

“confusion” in the law “as to whether a skier assumes the risks 

inherent in the sport of skiing.” UTAH CODE § 78B-4-401. That 

suggests that the clarification accomplished by the statute is in 

setting out a bright-line rule in a previously murky area. The 

statutory definition of “inherent risks of skiing” does just that. It 

furthers the legislature’s stated purpose of “establish[ing] as a 

matter of law that certain risks are inherent in th[e] sport” of skiing. 

Id. § 78B-4-401 (emphasis added). The statutory clarification is thus 

enhanced by giving effect to the plain meaning of the enumerated 

list of inherent risks of skiing. So the general reference to the goal of 

clarification does nothing to support the obliteration of the 

statutory framework established by the Clover decision.

¶124 The problem with the majority’s approach is not its 

general premise that the Inherent Risks of Skiing Act “clarif[ies] the 

law” by codifying the doctrine of primary assumption of risk. It is 

its specific conclusion as to which risks are subject to that doctrine. 

The statute says that listed risks are “inherent” and thus beyond the 

defendant’s duty to discover and prevent. Yet the majority rejects 

that conclusion, adopting instead a standard under which no risk is 

categorically inherent—not even a risk listed in the statute.

¶125 The majority seeks to “bolster[]” its approach by noting 

the absence of the word “negligence” in the statute. Supra ¶ 53. It 

finds it “nigh impossible to believe that the legislature intended to 

completely abolish the negligence cause of action with respect to 

enumerated risks when the Act itself says nothing about 

negligence.” Supra ¶ 53. And it finds the abolition of negligence 

claims arising from inherent risks of skiing a large “elephant” 

unlikely to be hidden in the “mousehole” of the Inherent Risks of 

Skiing Act. Supra ¶ 53. I see this differently. I see neither an elephant

nor a mousehole. 

 

doctrine of primary assumption of risk, but (b) the text of the 

statute is just mistaken in the way it deals with it. I see a better way 

around this tension. I would just credit the text of the statute.
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Lee, A.C.J., dissenting in part

59

¶126 The statute, as all agree, addresses an area of our law that 

had long been in a state of confusion—the applicability of the 

doctrine of primary assumption of risk to the sport of skiing. We 

also all agree that the statute establishes a bar on tort claims for 

risks that are deemed “inherent” and an “integral part of the 

sport.” With that in mind, there is nothing elephant-ish about the 

establishment of a bar on a negligence claim for injuries arising 

from inherent risks of skiing. Nor is there anything mousehole-ish 

about the terms of the Inherent Risks of Skiing Act. The majority is 

right that the statute never uses the term negligence. But it speaks 

clearly, and in even more sweeping language—in expressly 

establishing the “purpose” of “provid[ing] that, as a matter of 

public policy, no person engaged in th[e] sport [of skiing] shall 

recover from a ski operator for injuries resulting from th[e] inherent 

risks” of the sport, UTAH CODE § 78B-4-401, and categorically 

providing that “no skier may make any claim against, or recover 

from, any ski area operator for injury resulting from any of the 

inherent risks of skiing,” id. § 78B-4-403.6

¶127 I read these provisions to sweep even more broadly—

and clearly—than a bare statement of repudiation of a “negligence” 

6 The Inherent Risks of Skiing Act, as written, has some overlap 

with the doctrine of primary assumption of risk. See supra ¶ 51. But 

it cannot be said that the statute defines the “inherent risks of 

skiing”—those for which a ski area operator is presumed unable to 

discover or prevent—by means of a case-by-case inquiry into 

whether the risk was encountered in an “expected” manner. Such a 

regime is irreconcilable with a statute that identifies specific 

categories of risks that are “inherent” in skiing and for which “no 

skier may make any claim.” 

A statutory list of risks that are expressly “inherent” in the sport 

of skiing is thus no “major departure” from the law of primary 

assumption of risk. See supra ¶ 53 n.20. The statute takes the 

concept of primary assumption of risk and makes it more concrete 

and predictable—by specifying which risks count as inherent. This 

is no “elephant.” And the Inherent Risks of Skiing Act is no 

“mousehole.” A statute by that name is precisely the place we 

would expect to find a list of enumerated risks.
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

60

claim for injuries arising from inherent risks of skiing. Granted, the 

legislature never said it was abrogating a “negligence” claim 

against ski resorts. But it did say that it was abrogating “any claim 

against, or recover[y] from, any ski area operator for injury 

resulting from any of the inherent risks of skiing.” Id. And this is no 

mousehole. It’s a sweeping statement that “any” and all “claim[s]” 

or attempts to “recover” are barred. This is an elephanthole (or 

whatever we would call the type of large chasm an elephant might 

crawl into)—and a clear statement by the legislature that the 

majority has rendered meaningless.

3. “Absurd Consequences”

¶128 The majority next hypothesizes “absurd” applications of 

the plain language of the statute that Clover purportedly avoids. 

The majority imagines “intentionally camouflaged” lift towers that 

are “practically invisible to skiers.” Supra ¶ 39. It “cannot be right,” 

in the majority’s view, that a collision which such nefarious deathtraps is covered by the statute. And because the court sees such a 

conclusion as “inevitable,” Supra ¶ 39., it invokes the absurd 

consequences canon to justify the Clover standard.

¶129 This is problematic. Legislative line-drawing may often 

seem arbitrary. But that is no license for judicial rewriting of 

legislation. We may override clear statutory text only in the very 

rare event that the language enacted into law is not just arbitrary 

but outright absurd—“so absurd that no rational legislator could 

possibly have intended it.” Garfield Cty. v. United States, 2017 UT 41, 

¶ 23 n.55, 424 P.3d 46. 

¶130 The list of risks in the Inherent Risks of Skiing Act is 

hardly absurd. It consists of dangers that the legislature considered 

to be inherent in the sport. And for those dangers the statute calls 

for immunity for ski area operators. Yet the statute does not 

foreclose immunity for other risks. For unlisted risks the statute 

calls for a case-by-case determination of whether the risk is a 

“danger[] or condition[] which [is] an integral part of the sport” of 

skiing. UTAH CODE § 78B-4-402.

¶131 This is a sensible legal framework. An “impact” with a 

“lift tower[]” is a listed “inherent risk.” See UTAH CODE 

§ 78B-4-402(1)(e). But an invisible lift tower could reasonably be 
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Lee, A.C.J., dissenting in part

61

dismissed as a deviation from the ordinary understanding of “lift 

tower,” and thus falling outside the terms of the statute. If so, the 

statute’s language would not be interpreted to stretch to cover such 

a deviation. See supra ¶ 39. The same may hold for the majority’s 

example of the “pile of rocks intended for later landscaping placed 

in the middle of a beginner run.” Supra ¶ 43. The listed risk, after 

all, speaks not of “rocks” in the abstract, but of “surface or 

subsurface conditions such as bare spots, forest growth, rocks, 

stumps, streambeds, cliffs, trees, and other natural objects.” UTAH 

CODE § 78B-4-402(1)(c). And a man-made “pile of rocks” placed 

artificially on a ski run “for later landscaping” at least arguably 

would not qualify as a “natural” “surface or subsurface condition.” 

Natural surface or subsurface conditions presumably would be 

limited to relatively permanent conditions existing in nature, and 

would not extend to conditions created temporarily by human 

intervention.7

¶132 Yet we need not decide the “invisible lift tower” or “pile 

of rocks” cases to resolve the one before us today. Our law of 

interpretation bears tools that are suited to the resolution of the 

7 My conclusions here are tentative—phrased in terms of 

interpretations that arguably could hold—because the majority’s 

hypotheticals are not now presented for our decision. I see no 

reason to offer a conclusive answer in the absence of a specific 

controversy and briefing from the parties. My tentativeness, 

however, cannot reasonably be taken as an indication that my 

approach “lends itself” to the same sort of unpredictability that 

inheres in the majority’s standard. Supra ¶ 43 n.16. At most the 

majority has observed that a statute like the Inherent Risks of 

Skiing Act will present a few difficult questions of statutory 

interpretation. That will always be true for any statute. But this 

observation is no reason to ignore clear statutory language and to 

substitute in its place an indeterminate balancing test of the court’s 

own making. That test guarantees indeterminacy and 

unpredictability in every case that will come before our courts. We 

cannot justify that kind of test by noting that an inquiry into the 

meaning of statutory language will occasionally raise some 

difficulties. 
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

62

majority’s hypotheticals—and that would allow us to do so without 

distorting the statute in a case that is more standard (and in no way 

presents any concerns about absurdity). The principal tool is the 

doctrine of absurdity. 

¶133 This doctrine yields limited power for courts to override 

the clear terms of a statute. We may do so, however, only in the 

rare, limited circumstance in which we can conclude that “no 

rational legislator could possibly have intended it.” Garfield Cty., 

2017 UT 41, ¶ 23 n.55. When we do so, moreover, we do not strike 

the statute down, or distort its terms as applied to standard (nonabsurd) circumstances. We simply foreclose the application that is 

deemed to satisfy the high bar of absurdity. See John F. Manning, 

The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2388 (2003) (stating 

that the absurdity doctrine allows departure from “clear[] statutory 

text” when a “given application” would produce an absurd result).

The majority distorts the absurdity doctrine here. It employs 

hypothetical circumstances that might test the limits of the 

statutory text not to foreclose application of the statute to those 

specific circumstances, but to rewrite the statute more generally.8

This is problematic. We have no authority (certainly not in the 

doctrine of absurdity) to rewrite statutes generally just because we 

8 The difficulty with the majority’s approach is evident in its 

treatment of the “twenty-yard bare spot” hypothetical. See supra

¶ 43 n.15. Such a condition concededly falls within the plain terms 

of the statute. A bare spot is a bare spot, and thus an inherent risk 

of skiing, regardless of its size. But the bare possibility of the 

statute’s application to a very large bare spot is no license for a 

decision to rewrite the statute in a manner that overrides its plain 

language quite generally. Perhaps this application would be the 

kind of absurdity that would allow the court to decide that no 

rational legislator could have intended such an application. But the 

mere possibility of this kind of carve-out for this kind of unusual 

application is no reason for us to override the statutory language 

more generally.
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Lee, A.C.J., dissenting in part

63

can imagine some difficult (possibly absurd) applications in future 

cases.9

4. Constitutional Avoidance

¶134 A final point raised by the majority is its assertion that 

Clover is justified on constitutional avoidance grounds. Supra ¶¶ 55-

58. The constitutional concern is one flagged in Clover—that a view 

of the statute that forecloses negligence claims against ski area 

operators “could violate the Open Courts Clause of the Utah 

Constitution.” Supra ¶ 55. 

¶135 I do not see this as a basis for preserving Clover. Our 

doctrine of constitutional avoidance is a limited one. It “is not a 

license to rewrite statutes.” Orlando Millenia, LC, v. United Title 

Servs. of Utah, Inc., 2015 UT 55, ¶ 84, 355 P.3d 965. “It is a tool for 

interpreting them.” Id. Thus, “for the constitutional avoidance 

canon to even apply, ‘the statute must be genuinely susceptible to 

two constructions.’” Utah Dept. of Transp. v. Carlson, 2014 UT 24, 

¶ 24, 332 P.3d 900 (quoting Almendarez-Torres v. United States, 523 

U.S. 224, 238 (1998)). Where “one of two proposed interpretations 

of a statute can be eliminated as untenable, we must reject in favor 

of the one that more clearly advances the intent of the legislature.” 

Id.

¶136 A more aggressive use of the canon, we have warned, 

“can easily undermine legislative intent.” Id. And that would be the 

effect of the use of this canon here. The legislature has spoken 

clearly in delineating a list of inherent risks of skiing for which a ski 

area operator is insulated from liability for negligence. We should 

respect the legislature’s judgment. We cannot properly override it 

9 The majority seeks to avoid this problem by insisting that it is 

not applying the absurdity “doctrine” to override the clear 

language of the statute but instead is just considering the absurd 

consequences “canon” to inform its understanding of ambiguous 

language. Supra ¶ 41 n.14. I see no way to justify that approach, as I 

see no ambiguity in the statute. Because the majority is overriding 

the clear import of the statutory text it should justify its decision 

under the doctrine of absurdity. The majority’s inability to do so 

highlights the problems with the its approach.
RUTHERFORD v. TALISKER

Lee, A.C.J., dissenting in part

64

just because we have identified some vague constitutional question. 

See id. ¶ 24 n.4 (citing Richard L. Hasen, Constitutional Avoidance and 

Anti–Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181, 189)

(noting that some invocations of the canon seem to “signal[ ] a 

Court that is actively engaged in shaping law and policy, not acting 

modestly”); see also United States v. Marshall, 908 F.2d 1312, 1318 

(7th Cir. 1990) (“The canon about avoiding constitutional decisions 

. . . must be used with care, for it is a closer cousin to invalidation 

than to interpretation.”).

¶137 This is not to say that the constitution should play no role 

in the disposition of this case. It is important to emphasize the 

proper role for constitutional analysis in a case of this sort. Where a 

statute lends itself to only one reasonable interpretation then the 

court must adopt that interpretation. At that point, “[m]ere doubts

about the constitutionality” of the statute “are not enough to 

override the legislature’s intent.” Carlson, 2014 UT 24, ¶ 25. “The 

only viable basis for doing that would be an actual determination 

of unconstitutionality.” Id.

¶138 This court may ultimately be called upon to resolve the 

question of the constitutionality of the Inherent Risks of Skiing Act 

as applied here. I would leave this question open to the parties and 

the district court on remand, as it has not yet been presented to that 

court and we have no decision before us to review. If and when 

that question is raised and briefed we can consider whether the 

Inherent Risks of Skiing Act raises constitutional concerns. But the 

mere possibility of such concerns is not a basis for overriding the 

clear text of the statute.

B. Stare Decisis

¶139 The mere conclusion that a prior decision is incorrect is 

not enough to sustain a decision to set it aside. Instead we have 

long held that we overrule precedent only if the usual downsides of 

doing so are outweighed by significant upsides. See Utah Dep’t of 

Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 36, 275 P.3d 208.

¶140 Our most recent, comprehensive statement of our 

doctrine of stare decisis was in Eldridge v. Johndrow, 2015 UT 21, 345 

P.3d 553. A key question under Eldridge is “how firmly” a line of 

“precedent has become established in the law since it was handed 
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Lee, A.C.J., dissenting in part

65

down.” Id. ¶ 22. In evaluating this question, we consider “the age of 

the precedent, how well it has worked in practice, its consistency 

with other legal principles, and the extent to which people’s 

reliance on the precedent would create injustice or hardship if it 

were overturned.” Id. We also assess “the persuasiveness of the 

authority and reasoning on which the precedent was originally 

based.” Id.10

10 The majority alludes at length to the idea of “super stare 

decisis” for “statutory precedents.” Supra ¶ 27 n.9. It cites precedent 

from a few state courts, a concurring opinion in this court, and a 

scholarly article by a law professor—all endorsing the view that 

statutory precedent is entitled to more weight than other 

precedent. And while acknowledging that this matter may be “an 

open question” in this court, the majority lauds the “force of the

logic behind” this view. Supra ¶ 27 n.9. This is a significant move. It 

extends our law of stare decisis in a manner that a majority of this 

court has never endorsed, on which there is room for substantial 

disagreement. See William N. Eskridge, Jr., Overruling Statutory 

Precedents, 76 GEO. L. J. 1361, 1385 (1988) (noting that the 

“anchoring idea [of super stare decisis] has proven to be less than 

workable”); see also Frank H. Easterbrook, Stability and Reliability in 

Judicial Decisions, 73 CORNELL L. REV. 422, 429 (1988) (challenging 

the “shibboleth that it should be harder to overrule a statutory 

decision”). I would not endorse this notion.

This court has only ever applied a single, uniform standard. In 

statutory, common law, constitutional, and other cases we have 

consistently inquired into the same considerations addressed 

herein. See, e.g., State v. Hansen, 734 P.2d 421, 427 (Utah 1986)

(overruling a statutory interpretation in State v. Norton, 675 P.2d 

577 (Utah 1983) because it “construed the statute incorrectly and 

without benefit of briefing by the parties[,]” was a “recent 

[decision],” “the legislature ha[d] not relied upon it in enacting 

other statutes,” and it “result[ed] in very poor public policy, policy 

the legislature could not have intended”); State v. Mauchley, 2003 

UT 10, ¶11, 67 P.3d 477 (analyzing the common law “corpus 

delicti” doctrine under standard stare decisis standards); Utah Dep’t 

of Transp. v. Admiral Beverage Corp., 2011 UT 62, ¶ 16, 275 P.3d 208 

(cont.)
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Lee, A.C.J., dissenting in part

66

¶141 The point of this inquiry is to balance the important goal 

of maintaining stability in the law against our ongoing commitment 

to getting the law “right.” The first-listed set of considerations is 

aimed at assessing the downsides of overruling precedent. If a law 

is working well in practice and sustains significant reliance 

interests, it may be costly to reform the law by overruling 

precedent. And that is a point favoring deference to precedent. The 

second consideration goes to the upside of overruling an erroneous 

precedent. The more clearly errant a prior decision, the greater the 

need to set it aside in advancing our commitment to the rule of law.

¶142 This is what our cases mean when they speak of more 

“good” than “harm” coming from overruling a prior opinion. See 

Admiral Beverage, 2011 UT 62, ¶ 36. The principal “harm” is in 

undermining stability of our law and reliance interests built around 

our precedent. So the argument for overruling a prior decision is 

strongest when the costs of overruling (from a reliance or stability 

standpoint) are low and the benefits (from a rule of law standpoint) 

are high. And that is the case here.

¶143 First, the usual costs of overruling precedent are 

diminished here because Clover is not deeply rooted in our law, is 

unworkable in practice, and does not sustain significant reliance 

interests. The inquiry called for in Clover—as to whether a given 

risk is one that skiers may “wish to confront”—does not lend itself 

to consistent, principled application. Indeed the Clover standard 

masks a latent ambiguity that invites arbitrariness. And that 

renders Clover more vulnerable under our doctrine of stare decisis. 

See Eldridge, 2015 UT 21, ¶ 43 (identifying the “fact-intensive” 

nature of an issue, the dearth of case law guidance, and the fact that 

 

(assessing constitutional rule of eminent domain under standard 

principles of stare decisis).

There is an irony in the majority’s application of the doctrine of 

stare decisis. The court is invoking the doctrine in the same case in 

which it is effectively overriding our longstanding approach to 

stare decisis. I would avoid that move. And I certainly wouldn’t 

make it in a case in which the question is neither briefed by the 

parties nor necessary to our decision. 
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Lee, A.C.J., dissenting in part

67

“trial courts and juries” are left “to make decisions that are 

effectively without guidance” as grounds for overturning 

precedent).

¶144 One formulation of the Clover inquiry would invite fact 

testimony and lay analysis—as to whether a given risk is one that a 

reasonable skier would “wish to confront.” Yet this is an invitation 

for arbitrariness, and for overriding the clear terms of the statute. 

Many of the risks deemed “inherent” by the legislature are unlikely 

to be desired by many skiers. “[B]are spots,” for example, are listed 

in the statute as an inherent risk of skiing, see UTAH CODE

§ 78B-4-402(1)(c), but many skiers likely would prefer not to 

“confront” them.11 Other similar examples appear in the statute. See 

UTAH CODE § 78B-4-402(1) (listing many risks that many skiers 

undoubtedly would prefer not to confront, particularly when they 

result in injury, such as “changing weather conditions,” “slush,” 

“collisions with other skiers,” and “the failure of a skier to ski 

within the skier’s own ability”). So this inquiry opens the door for 

the factfinder to deem most any risk listed in the statute as one a 

reasonable skier would not wish to confront. And that would 

thoroughly defeat the clear terms of the statute.

11 A contrary conclusion is also conceivable. Our prior cases 

have singled out “bare spots, forest growth, rocks, stumps, . . . lift 

towers and other structures” as risks skiers would not wish to 

confront. White v. Deselhorst, 879 P.2d 1371, 1375 (alteration in 

original) (abrogated on other grounds by Penunuri v. Sundance 

Partners, Ltd., 2017 UT 54, 423 P.3d 1150). But that will not hold for 

all skiers. Part of the allure of skiing is to confront (and avoid) all 

hazards and dangers that appear on the mountain—including trees 

and rocks and stumps. The advent of the “terrain park” illustrates 

that point. The whole point of the terrain park is to introduce 

hazards like “towers” and “structures” that skiers and 

snowboarders can confront. See Dunbar v. Jackson Hole Mountain 

Resort Corp., 392 F.3d 1145, 1146 (10th Cir. 2004) (describing a 

terrain park as being “designed for advanced skiers and 

snowboarders who choose to recreate in a very challenging riskfilled environment”). And this highlights the arbitrariness and 

unworkability of the Clover framework.
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Lee, A.C.J., dissenting in part

68

¶145 Perhaps the use of expert testimony regarding what 

dangers are standard within the industry would remove some of 

the arbitrariness in the Clover analysis. Yet it is also likely that it 

would lead to the “dueling expert” trial, in which each side 

presents opinion testimony on whether the ski area in question 

lived up to industry standards. And that sort of inquiry would 

stretch the legal framework of the Inherent Risks of Skiing Act past 

its breaking point. The purpose of the statute, as noted, was “to 

establish as a matter of law that certain risks are inherent in” skiing, 

and to thus provide that “no person engaged in that sport shall 

recover from a ski operator for injuries resulting from those 

inherent risks.” UTAH CODE § 78B-4-401. Those purposes would be 

thwarted by a legal framework that requires expert testimony to 

determine whether the risks presented at a given ski area are in line 

with an industry standard.

¶146 The “industry standard” inquiry is a matter for the law of 

negligence.12 If the liability of a ski area operator for injuries 

12 See, e.g., Spafford v. Granite Credit Union, 2011 UT App 401, 

¶ 34, 266 P.3d 866 (affirming the dismissal of a premises liability 

negligence claim where there was “no expert testimony that the 

height of the curb or the slope of the asphalt ‘violated any specific 

industry standards’” (citation omitted)) abrogated on other grounds 

by Coroles v. State, 2015 UT 48, 349 P.3d 739; Hilliard v. Speedway 

Superamerica LLC, 766 So. 2d 1153, 1155 (Fla. Dist. Ct. App. 2000) 

(“A breach of industry standards is evidence of negligence.”); 

Murphy v. Conner, 646 N.E.2d 796, 798 (N.Y. 1994) (“Ordinarily, the 

opinion of a qualified expert that a plaintiff’s injuries were caused 

by a deviation from relevant industry standards would preclude a 

grant of summary judgment in favor of the defendants.” (citation 

omitted)); cf. RESTATEMENT (SECOND) OF TORTS § 295A (1965) (“In 

determining whether conduct is negligent, the customs of the 

community, or of others under like circumstances, are factors to be 

taken into account, but are not controlling where a reasonable man 

would not follow them.”).
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Lee, A.C.J., dissenting in part

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resulting from risks listed as “inherent” were dependent upon a 

case-by-case assessment of the operator’s compliance with industry 

standards, then the core premise of the Inherent Risks of Skiing Act 

would be defeated.

¶147 Neither variation on the Clover inquiry is accordingly 

viable. And absent some refinement or reformulation, our law 

under Clover leaves parties guessing about the likely outcome of a 

case filed under the Inherent Risks of Skiing Act. That is a hallmark 

of unworkability—and a basis for overruling Clover despite the 

deference that is normally owed to our precedent under the 

doctrine of stare decisis. See Eldridge, 2015 UT 21, ¶ 43 (overruling a 

legal standard in our precedent on the ground that it left factfinders “without guidance” to make a highly “fact-intensive” 

determination).

¶148 This is one of the reasons we sought supplemental 

briefing from the parties in this case. The initial briefing left us 

without much guidance on the proper framework for assessing 

whether and to what extent a given risk is one that skiers may 

“wish to confront.” And we accordingly asked the parties to advise 

us (a) on whether to retain or repudiate Clover, and (b) on how to 

frame the Clover inquiry into risks that skiers “wish to confront” in 

the event that we kept that standard in place. That briefing offered 

little help on the latter question. And the lack of a reasoned basis 

for distinguishing the two categories of risks identified in Clover is a 

basis for concluding that the standard established in that case is not 

just wrong but unworkable—and thus unlikely to sustain 

significant reliance interests.

¶149 The majority disagrees. Yet it has not offered an answer 

to the analytical puzzle left open by Clover—as to the means of 

assessing whether a given risk is one that skiers “wish to confront.” 

Instead, the majority relies on a simple reformulation of the Clover

test—substituting the word “expects” for “wish.”13 Supra ¶ 79. But 

13 The majority claims that this switch is justified by both Clover

and the statutory text. Because the statutory list of inherent risks is 

“presented in an entirely unremarkable manner,” supra ¶ 80, the 

majority concludes that the proper inquiry is whether the risk the 

(cont.)
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Lee, A.C.J., dissenting in part

70

this does nothing to reduce the uncertainty generated by Clover. 

Our decision today will only perpetuate the uncertainty and 

continued litigation about the availability of immunity under the 

Inherent Risks of Skiing Act. We still have not explained how a 

court is to decide whether a given risk is one that a reasonable skier 

 

skier encountered is one that she would “reasonably [have] 

expect[ed]” to encounter. Supra ¶ 79. This is so, the majority asserts, 

regardless of whether the risk is actually included in the statutory 

list. 

Yet this move undermines the majority’s resort to the doctrine 

of stare decisis. If the majority is seeking refuge in that doctrine it is 

in no position to reformulate its standards. (Once we start in that 

direction we are no longer following precedent—we are returning 

to first principles of statutory interpretation. And if we do that we 

will hardly end up at Clover.) “Reasonably expect to encounter” 

does not mean the same thing as “wish to confront.” So the 

majority is substantively altering the legal framework set forth in 

Clover. The court says this alteration is permissible because it 

“effectively captures the legislature’s intent.” Supra ¶ 79. That may 

be. But it does not accurately capture Clover’s holding. Thus, 

despite much hand-wringing about the importance of precedent, 

the majority does violence to the Clover standard. It does so, quite 

clearly, by transforming a two-step subjective inquiry into a onepart objective one. See supra ¶ 80. Surely an objective test is not the 

same as a subjective inquiry. And a one-step test is different from a 

two-step one.

I suppose there is a sense in which the majority can claim that 

its entirely new formulation is a simple refinement of Clover. But 

that is only because neither test has any clear substantive content. 

As I explain in greater detail in Part II.D. below, the majority’s test, 

like its Clover predecessor, is marked primarily by its extensive 

indeterminacy. Neither test is capable of generating remotely 

predictable outcomes. And in that sense I suppose we can say that 

the new test “does the same work” as the Clover test. Supra ¶ 79 

n.27. We cannot properly say that the test is the same, however. 

Nor can we say how the test will play out in practice. The only 

thing litigants and lower courts can know for sure is that the 

statutory text doesn’t matter. 
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Lee, A.C.J., dissenting in part

71

might or might not “expect” to encounter on her journey down the 

slopes. And this is an open invitation for courts to enact their own 

judgment about what is “reasonable” into the law. The majority’s 

failure to delineate an applicable rule of law based on Clover14

further underscores the need for us to revamp our law in this 

area—and to bring it in line with the statutory text.

¶150 The majority offers a series of grounds for rejecting this 

conclusion. I find none of them convincing. 

1. Unworkability

¶151 The majority responds to my concerns with the 

unworkability of the Clover test not by unraveling the 

unpredictability of the operative legal standard but by insisting that 

the absence of substantial appellate litigation in this area supplies 

conclusive evidence that Clover is workable. Supra ¶ 70.

¶152 But the premise of this argument is undermined by our 

cases. In Eldridge we overturned a longstanding element of our law 

of intentional interference with contractual relations—set forth in 

Leigh Furniture & Carpet Co. v. Isom, 657 P.2d 293 (Utah 1982). In so 

doing we were not deterred by the fact that our precedent in this 

area had not “generated substantial appellate litigation.”15 We 

simply analyzed the legal standard we were repudiating—an 

option to establish intentional interference upon proof of a 

defendant’s “improper purpose”—and opined that this standard 

was too unpredictable to be a workable precedent. See Eldridge, 

2015 UT 21, ¶ 43. We noted, specifically, the “fact-intensive” nature 

of the improper purpose standard, the lack of a predictable 

14 See infra Part II.D.

15 The majority cites a lack of appellate litigation as an 

indication of workability. Supra ¶ 70. But I see no reason to draw 

any inference of workability from the mere lack of appellate case 

law. It is easy to think of other explanations for the lack of appellate 

litigation. The parties to these cases may just be generally settling, 

rather than trying, their claims. And that would make sense if 

the Clover standard is unpredictable and does not lend itself to 

summary disposition.
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Lee, A.C.J., dissenting in part

72

standard for implementing it in the case law, and the fact that “trial 

courts and juries” are left “to make decisions that are effectively 

without guidance” as grounds for overturning precedent. Id. 

¶153 In a sense, moreover, we have “evidence” that the Clover

standard is unworkable—no party has been able to propose a way 

to consistently apply it. We requested supplemental briefing from 

the parties on how courts could determine whether a risk is one 

that “skiers wish to confront.” The parties could not identify a 

workable standard. And the majority has not proposed one either. 

So if this court cannot identify the factors lower courts should 

apply to determine whether a risk is one skiers “wish to confront,” 

we cannot expect the standard to suddenly become workable in 

practice on remand.

(a) Decisions in Other Jurisdictions

¶154 The majority also seeks to sustain the workability of the 

Clover framework by citing decisions from other states. Supra 

¶¶ 59-60, 72. The majority cites Bouchard v. Johnson, 555 N.W.2d 81 

(N.D. 1996); Kopeikin v. Moonlight Basin Management, LLC, 981 F. 

Supp. 2d 936 (D. Mont. 2013); and Nutbrown v. Mount Cranmore, 

Inc., 671 A.2d 548 (N.H. 1996), as evidence of Clover’s workability.

¶155 None of these cases sustains the workability of the Clover

decision, however. The statutory schemes in each of these cases are 

distinct from our Utah statute. And none of these cases endorses 

the Clover notion of two new categories of inherent risks, framed by 

a determination of whether skiers “expect to confront” them. Nor 

do they, accordingly, pave a path for a workable analysis of the 

“expect to confront” standard.

¶156 The Bouchard decision cites the operative standard set 

forth in Clover but it does not adopt it. The “‘proper standard’” 

endorsed by Bouchard is not the Clover framework. It is this:

There should be no liability for a ski area operator 

if the design of the ski run creates natural conditions, 

necessary to the enjoyment of the sport, and the 

design is so obviously dangerous the skier assumes 

the risk. Conversely, if the design problem was 

created by the operator’s negligence and was not an 
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Lee, A.C.J., dissenting in part

73

inherent risk associated with the sport, liability for the 

operator should exist.

555 N.W.2d at 85. 

¶157 This is not Clover. This is not a decision that overrides a 

statutory list of inherent risks of skiing and replaces it with a new 

set of categories turning on a determination of which risks skiers 

“wish to confront.” It is simply a restatement of the operative 

statutory standard. The North Dakota statute is distinct from our 

Utah statute. It begins with an extensive list of “‘duties’” that 

“‘[e]very ski operator shall have . . . with respect to the operation of 

a skiing area,’” and then proceeds to state that skiing is 

“‘hazardous . . . regardless of all feasible safety measures which can 

be taken,’” and thus that “‘[e]ach skier expressly assumes the risk 

of’” injuries resulting from enumerated inherent risks of skiing. Id. 

at 83 (quoting North Dakota statute). In context, then, the “proper 

standard” endorsed in Bouchard does not at all sustain the viability 

of the Clover standard. It undermines it—in the sense that Bouchard

simply follows the operative statutory framework (while Clover

overrides it).

¶158 The Kopeikin decision is similarly unhelpful to the cause 

of retaining Clover. The Montana statute at issue in Kopeikin is like 

the North Dakota statute in Bouchard. It not only identifies 

“inherent risks” for which ski area operators are immune, but also 

“provides a non-exclusive list of duties for ski area operators.” 

Kopeikin, 981 F. Supp. 2d at 942 (citing statute). This statutory 

provision, moreover, came about as a result of a Montana Supreme 

Court decision striking down a prior statute that, like our Utah 

statute, imposed a clear bar on ski area operator liability in certain

circumstances. See Brewer v. Ski-Lift, Inc., 762 P.2d 226 (Mont. 1988) 

(holding that “a fair reading” of the Montana statute “prohibits the 

skier from obtaining legal recourse against an operator even if the 

injury is proximately caused by the negligent or even intentional 

actions of the operator,” but holding that the statute was overbroad 

and unconstitutional). In this sense the Montana line of cases 

actually undermine Clover. If we were to follow the Montana lead, 

we would give effect to the plain language of the Utah statute and 

then consider a constitutional challenge to the statute. We would 
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Lee, A.C.J., dissenting in part

74

not override the terms of a clear statute with an “inherent risk” 

framework of our own making.

¶159 The Kopeikin decision does cite and endorse Clover to 

some degree. See Kopeikin, 981 F. Supp. 2d at 944–45. It ultimately 

denied a motion to dismiss the complaint—even though the 

complaint was asserting claims based on an injury that was caused 

by a danger the Montana statute deemed “inherent” in skiing. Id. at 

945. But the Kopeikin decision does nothing to clarify the Clover

framework or to reinforce its workability. Kopeikin just kicks the can 

down the road on the operative issue under Clover—holding that at 

the pleading stage “all facts alleged must be treated as true and 

construed in the light most favorable to the plaintiff,” and noting 

that the risk at issue was not “inherent” “[a]ccording to the 

allegations in the Complaint, which is all the Court had before it at 

th[at] time.” Id. Thus, Kopeikin comes as close as any of the cited 

cases to supporting Clover; but it ultimately tells us nothing about 

the workability of the Clover standard.

¶160 The Nutbrown decision is also unsupportive of the 

viability of the Clover standard. Nutbrown cites Clover. See Nutbrown, 

671 A.2d at 680. But it nowhere endorses the framework of the 

Clover decision. And again the statute at issue is distinct from our 

Utah statute. The New Hampshire statute at issue in Nutbrown is 

like the North Dakota and Montana statutes: It begins with an 

express list of duties of ski area operators, and only then provides 

that “[e]ach person who participates in the sport of skiing accepts 

as a matter of law, the dangers inherent in the sport.” Id. at 679-81 

(citing New Hampshire statute). The Nutbrown holding, moreover, 

gives express effect to the plain terms of the statute—and nowhere 

endorses the gloss on statutory risks set forth in Clover. Thus, 

Nutbrown cites Clover only for the proposition that “[t]he statute 

does not purport to immunize a ski area operator for injuries 

caused by the operator’s own negligent or intentional acts.” Id. at 

680. And it ultimately gives effect to the statutory scheme. It holds 

that the plaintiff stated a viable claim arising from the ski area 

operator’s failure “‘to properly mark’ the beginning of a trail” 

because that involved the breach of a duty set forth by statute, but 

that plaintiff’s other claims all involved “allegations of fault and 

causation [that] were inherent risks of skiing and thus [were] not 
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Lee, A.C.J., dissenting in part

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actionable.” Id. at 683. Thus, if anything Nutbrown undermines 

Clover; it does so by following the operative statutory scheme 

instead of replacing it with a new “inherent risks” standard of a 

court’s own making.

¶161 For these reasons the majority’s cited cases do nothing to 

sustain the viability of the Clover framework (or the puzzling 

modification made thereto today). In many ways these cases 

undermine the decision we reconsider today. And other courts 

have done so more forthrightly. The strongest case on point is

Glover v. Vail Corp., 955 F. Supp. 105, 108–09 (D. Colo. 1997). The 

Glover court was applying a Colorado statute that is closely parallel 

to our Utah Act—a statute that “states unequivocally that ‘no skier 

may make any claim against or recover from any ski area operator 

for injury resulting from any of the inherent dangers and risks of 

skiing,” which included “collisions with other skiers.” Id. at 108. In 

Glover the plaintiff sought to recover from a ski area operator for an 

injury resulting from a collision with another skier. The Glover

court dismissed the claim on summary judgment, holding that the 

statutory language was plain and the court had no license to “alter 

its terms.” Id. at 107. In so doing the court discussed and rejected 

the Clover framework. The Glover court found the Clover framework 

“flawed,” noting that it “transform[ed]” a statutory standard of 

“inherent risks” into “mere suggestions of what risks might be” 

integral, and concluding it stemmed from this court’s apparent 

“dissatisf[action] with” the effect of the statutory scheme. Id. at 108-

09.

¶162 The Glover court’s concerns are also reiterated in Hanus 

v. Loon Mountain Recreation Corp., No. 13-CV-44-JL, 2014 WL 

1513232, at *5 n.5 (D. N.H. Apr. 16, 2014). The Hanus court reached 

the same conclusion. It rejected Clover on the basis of the Glover

critique. Id. 

¶163 The majority’s approach thus finds very little support in 

the precedents of other jurisdictions.

(b) Legislative “Endorsement” of Clover

¶164 The majority also asserts that there is reason to conclude 

that the legislature has acquiesced in or endorsed our decision in 
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Lee, A.C.J., dissenting in part

76

Clover. In the majority’s view, our “legislature has had at least two 

opportunities to overrule the core holding of Clover” in the years 

since that decision. Supra ¶ 64. And because the legislature has not 

acted, the majority sees “good reason to continue to accord Clover

weighty stare decisis.” Supra ¶ 66.

¶165 I see no good reason for this kind of inference. 

Legislative inaction may be the result of any of a number of 

factors—unawareness of a judicial decision, a lack of legislative 

inertia to address such a decision, the absence of consensus on a 

means of overriding such a decision, or a range of other 

circumstances. None of these circumstances indicate legislative 

acquiescence. And it is sheer speculation to assume the contrary.16

This legislative silence, moreover, does nothing to salvage the 

unworkable Clover framework.

¶166 The decision of the legislature that enacted the Inherent 

Risks of Skiing Act is entitled to respect. Subsequent legislatures, 

moreover, have no authority to amend the work product of a prior 

legislature except by enacting actual legislation. See Patterson v. 

McLean Credit Union, 491 U.S. 164, 175 n.1 (1989) (“Congressional 

inaction cannot amend a duly enacted statute.”).

¶167 U.S. Supreme Court authority reinforces these 

conclusions. That court has frequently cautioned that “[w]e walk 

on quicksand when we try to find in the absence of corrective 

legislation a controlling legal principle.” Helvering v. Hallock, 309 

U.S. 106, 121 (1940) (Frankfurter, J.). Thus, the Court has 

16 The idea that legislative endorsement can be inferred from 

legislative inaction has long been criticized. See, e.g., Zuber v. Allen, 

396 U.S. 168, 185 & n.21 (1969) (“Legislative silence is a poor beacon 

to follow in discerning the proper statutory route.”; “Congressional 

inaction frequently betokens unawareness, preoccupation, or 

paralysis.”); Girouard v. United States, 328 U.S. 61, 69 (1946) (“It is at 

best treacherous to find in Congressional silence alone the adoption 

of a controlling rule of law.”); Helvering v. Hallock, 309 U.S. 106, 

119–20 (1940) (“To explain the cause of non-action by Congress 

when Congress itself sheds no light is to venture into speculative 

unrealities.”).
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Lee, A.C.J., dissenting in part

77

emphasized that “[i]t does not follow . . . that Congress’ failure to 

overturn a statutory precedent is reason for this Court to adhere to 

it.” Patterson, 491 U.S. at 175 n.1. “It is ‘impossible to assert with any 

degree of assurance that congressional failure to act represents’

affirmative congressional approval of the [courts’] statutory 

interpretation.” Id. (internal citation and quotation marks omitted).

¶168 The legislative history cited by the majority, see supra ¶65, 

is no answer to these concerns. At most, the majority has identified 

a statement by a single member of the 2006 legislature indicating 

his view that the 2006 amendment to the Inherent Risks of Skiing 

Act would not “exempt the negligence of the ski resort” from 

liability in certain circumstances. Supra ¶ 65. But that is insufficient 

for numerous reasons. For one thing, the views of a single member 

of the legislature have no power to bind the whole body. For 

another, the 2006 legislature cannot override the views of the 1979 

legislature (which enacted the Inherent Risks of Skiing Act) without 

repealing the statute. The legislature as a body expresses its views 

only by voting a bill into law. See Graves v. N. E. Servs., Inc., 2015 UT 

28, ¶¶ 64, 67, 345 P.3d 619 (“Legislative history is not law. . . . [T]he 

governing law is defined not by our abstract sense of legislative 

purpose, but by the statutory text that survived the constitutional 

process of bicameralism and presentment.”); Hooban v. Unicity Int’l, 

Inc., 2012 UT 40, ¶ 17, 285 P.3d 766 (“Our evaluation of the statute’s 

purpose must start with its text, not the legislative history.”). And 

the statement made by Senator Hillyard on the Senate floor was 

never voted into law. It accordingly tells us nothing of relevance to 

the question presented.

¶169 Even if this kind of statement could tell us something of 

relevance about this question, this statement actually cuts the other 

way when Senator Hillyard’s comments are considered in context. 

The statement reads in part:

Now, I should indicate that there’s no intention in this 

to exempt the negligence of the ski resort. In other 

words, if they have an employee running a trail groomer 

and they run somebody over, that’s ordinary negligence. 

We’re just talking about the inherent risk when 

people go skiing. . . .
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Lee, A.C.J., dissenting in part

78

People say, you know, I’m a trial lawyer, why am I 

carrying a bill like this? And the reason I am is 

because I think the state made the policy in the 1980s that 

this is a policy of the state of Utah. And I think for 

everyone involved we should just [ ] keep up to date 

and clarify that policy. And so that’s what we’ve done 

is [ ] taken those words and [ ] give them better definitions 

and more specificity.”

Recording of Utah Senate Floor Debates, 56th Leg., Gen. Sess. (Feb 

13, 2006) (statement of Sen. Lyle Hillyard) (emphasis added).

¶170 There are two important points to highlight. First, 

Senator Hillyard’s example of ski resort negligence is beyond the 

bounds of the enumerated inherent risks. Senator Hillyard could 

have used an example that supports the majority’s interpretation. 

He could have said that even though impact with signs or fences is 

listed as an inherent risk of skiing, a skier could still recover where 

the ski resort had been negligent in placing that sign or fence. But 

instead he used an example of negligence of an employee “running 

a trail groomer.” That is not an inherent risk of skiing enumerated 

in section 78B-4-402.17

¶171 Second, not only does Senator Hillyard fail to mention 

Clover; he also endorses the “policy” that the “state made . . . in the 

1980s,” which he characterizes as the “policy of the state of Utah.” 

Perhaps Senator Hillyard is thinking about this policy with the 

Clover overhaul in mind. But there’s nothing in his statement to 

suggest that. And the context of the statement cuts the other way. 

Hillyard harkens back to the “policy” that the “state made in the 

1980s,” not the common law developments since that time. And he 

states the purpose of proposing an amendment to “take [the 

statute’s] words and [ ] give them better definitions and more 

specificity.” There is no real point to clarifying the definitions of the 

17 Utah Code section 78B-4-402 lists as one of the inherent risks 

of skiing “variations or steepness in terrain, whether natural or as a 

result of slope design, snowmaking or grooming operations.” But 

this does not say that grooming operations are an inherent risk; 

only that variations in terrain resulting from such operations are.
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Lee, A.C.J., dissenting in part

79

items on the statutory list under Clover; that decision renders the 

statutory list irrelevant. So if anything Hillyard’s comments seem to 

reinforce the statutory standard—not the Clover rewrite.

2. Reliance

¶172 The majority’s final point is the assertion that a decision 

to overturn Clover might upset significant reliance interests. Here 

the majority suggests that ski resorts may have “invested in 

infrastructure and personnel to abate potential negligence actions 

under Clover,” that “insurers and resort owners” may have 

“negotiated policies and premiums against the backdrop of Clover,” 

and that Utah ski resorts “may have obtained” a commercial 

advantage by attracting skiers with the allure of a more friendly 

tort system. Supra ¶ 68. 

¶173 I cannot dispute that there may be some degree of 

disruption in a decision to overturn Clover. But a decision to 

overrule precedent will always have some effect. That alone cannot 

be enough to sustain a precedent that is both clearly incompatible 

with the controlling statute and unworkable in its application. See 

State v. Robertson, 2017 UT 27, ¶¶ 31–34, 438 P.3d 491 (overturning 

precedent after considering “the plausibility of the existing 

interpretation” and whether the interpretation “has worked in 

practice”).

¶174 This holds even when we can identify some reliance 

interests built up around our precedent. A decision like this one is 

always a balancing act. I acknowledge that there are some 

downsides to setting aside Clover. But I would nonetheless overrule 

it because the significant upsides substantially outweigh the 

downsides.

¶175 Perhaps it’s true that ski resorts, insurers, and even skiers 

rely to some degree on the Clover framework. But these reliance 

interests are minimal. Ski resorts likely have negotiated insurance 

premiums with Clover in mind, but their reliance interests cannot 

be harmed by following the language of the statute, which severely 

limits liability. And nothing in our opinion would inhibit a resort 

from independently compensating injured skiers if in fact they 
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Lee, A.C.J., dissenting in part

80

receive more business on account of Utah’s increased “incentive[s] 

to ski in the state.” See supra ¶ 68.

¶176 Rutherford’s reliance interests—as well as those of 

similarly situated skiers—are minimal. This is so because an 

unworkable precedent is unlikely to sustain the same kind of 

reliance interests as a decision establishing a clear, bright-line rule. 

When a decision is unworkable, litigants will struggle to predict its 

application, and thus to rely on its operation. No one can anticipate 

the effects of Clover in difficult cases because the standard is stated 

in such ambiguous terms.

¶177 And overturning Clover has significant upsides. We can 

be faithful to the governing statute while reducing confusion by 

implementing a framework that is predictable in its application.18

C. Remand 

¶178 For all of the above reasons I would conclude that Clover

is ripe for reconsideration. And I would repudiate it on the ground 

that it is clearly incompatible with the statutory scheme enacted by 

the legislature. 

¶179 That takes us back to square one. And square one in a 

statutory case is always the statutory text. The text of the statute is 

the law. See Graves v. N.E. Servs., Inc., 2015 UT 28, ¶ 67, 345 P.3d 619

(“The governing law is defined . . . by the statutory text that 

survived the constitutional process of bicameralism and 

18 The majority says that even if it were true that Clover had 

generated minimal reliance interests, it wouldn’t matter because 

“Talisker has not made this argument” and the “burden of 

persuasion is Talisker’s to bear.” Supra ¶ 68 n.25. I see no relevance 

to the lack of briefing on this specific argument. “It is no affront to 

the adversary system for us” to engage in independent analysis on 

issues preserved and presented by the parties for our decision. 

State v. Rasabout, 2015 UT 72, ¶ 98, 356 P.3d 1258 (Lee, A.C.J., 

concurring in part and concurring the judgment). The judicial 

enterprise would be impoverished if we were to mindlessly limit 

ourselves only to the specific arguments of the parties. In this 

instance I see no reason to refrain from engaging in my own 

independent thinking on the reliance issue.
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Lee, A.C.J., dissenting in part

81

presentment.”). That text governs—without any need for 

elaboration or consideration of other sources—so long as it is plain. 

Id. ¶ 64 (explaining that we look beyond the text to “inform[] our 

construction of ambiguities in the law,” “[b]ut its utility ends 

there”).

¶180 Here the statute is plain. It speaks in broad, categorical 

terms. It says that “no skier may make any claim against, or recover 

from, any ski area operator for injury resulting from any of the 

inherent risks of skiing.” UTAH CODE § 78B-4-403.

¶181 This is the operative legal standard. Under the Inherent 

Risks of Skiing Act, a skier’s tort claim is statutorily barred if it is 

(a) for an “injury resulting from” (b) “any of the inherent risks of 

skiing.” These are questions of causation. See Barneck v. Utah Dep’t 

of Transp., 2015 UT 50, ¶¶ 36–37, 353 P.3d 140 (describing “result 

from” language in a statute as a “causation standard”). The first 

inquiry concerns the causal connection between the skier’s injury 

and an alleged risk of skiing. The next question is whether the risk 

of skiing qualifies as an “inherent risk of skiing” under the statute.

¶182 That is purely a question of statutory interpretation. The 

statute defines inherent risks of skiing and includes a list of such 

risks. UTAH CODE § 78B-4-402(1). If a skier’s injury is causally 

connected to that risk and the risk qualifies as an “inherent risk of 

skiing” under the statute then the plaintiff’s claim is statutorily 

barred. The statute leaves no room for any inquiry into whether the 

risk in question is one that skiers might wish to confront, or any of 

the related elements of the Clover analysis. It does, however, leave 

open the question whether the injuries at issue here resulted from a 

risk encompassed within the ordinary meaning of the terms of the 

statute.

¶183 I would remand for further proceedings under that 

standard. Talisker asserts that the snow that caused Levi 

Rutherford’s injury was an “inherent risk of skiing” under the 

terms of the statute. It notes that the statute lists “snow or ice 

conditions” as an inherent risk of skiing, Id. § 78B-4-402(1)(b), and 

that “machine-made snow” counts as a “snow or ice condition[]” 

that is an inherent risk. Id. Talisker also emphasizes that inherent 

risks also include “variations or steepness in terrain, whether 
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Lee, A.C.J., dissenting in part

82

natural or as a result of slope design, snowmaking or grooming 

operations.” Id. § 78B-4-402(1)(d). 

¶184 Talisker may well be entitled to summary judgment 

under the ordinary meaning of these terms of the statute. But the 

Rutherfords have not had an opportunity to present an argument 

that the snow and ice conditions in question do not fall within the 

statutory terms. And this question has never been decided by the 

district court. We should remand to allow that court to resolve this 

issue in the first instance.

D. The Majority’s Standard

¶185 The majority claims to “clarify” the holding in our Clover 

opinion. Supra ¶ 12. But the majority’s standard is hardly clear. 

Quite the contrary. The court seems to articulate two alternative 

standards—without committing itself clearly to either, and without 

explaining how either should play out in practice.

¶186 At times the court seems to be thinking of an “inherent 

risks of skiing” inquiry that is framed as a question of law, turning 

(at least in part) on the ordinary meaning of the text of the statute. 

This is arguably implied by the court’s assertion that its test 

“track[s] the commonplace descriptions of risks” set forth in the 

statute, supra ¶ 82, and requires a consideration of the unadorned 

terms of the listed risks in the manner that a “skier would 

reasonably expect to encounter [them] while skiing,” supra ¶ 81. 

This seemingly legal inquiry suggests that a ski resort would be 

entitled to immunity under the statute if an injury results from a 

listed risk “when” it is “encountered in the way that skiers would 

reasonably expect to encounter” it.19 Supra ¶ 79.

19 At various points the majority claims confusion over the 

standard that I would apply. Let me allay any possible confusion 

here. My approach turns on a simple, straightforward question of 

law—of statutory interpretation (of risks listed in the statute). 

Thus, I would ask whether any given injury resulted from a risk 

that falls within the ordinary meaning of the terms of the statute. I 

would ask, for example, whether an injury results from “snow or 

ice conditions,” or “impact with lift towers.” UTAH CODE

§ 78B-4-402(1). I would accordingly use our standard tools of 

(cont.)
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Lee, A.C.J., dissenting in part

83

¶187 Elsewhere, however, the court seems to speak of the 

Clover inquiry in terms that contemplate a fact-intensive mixed 

question. Quoting Clover, the majority says that “‘[c]ourts cannot 

determine that a risk is inherent in skiing simply by asking whether 

it happens to be one of those listed in’” section 402 of the statute. 

Supra ¶ 79 n.27. “Instead,” the court says that we must ask (even for 

injuries arising from risks listed in the statute) whether the risk 

“was an integral part or essential characteristic of the sport of 

skiing”—an inquiry that seems to contemplate a fact-intensive 

determination of whether the particular circumstance of the injury 

is one that “a skier . . . reasonably expects to encounter.” Id. This 

also seems reflected in the question that the majority frames for the 

district court on remand: “whether a skier would reasonably expect 

to encounter the wet, sticky snow that [Rutherford] encountered at 

The Canyons.” Supra ¶ 83.

¶188 The majority’s discussion of the statute’s treatment of 

“impact[s] with lift towers” (a risk identified by the legislature as 

“inherent,” UTAH CODE § 78B-4-402(1)(e)) highlights the internal 

tension in the majority’s approach.20 The court first says that “[t]he 

 

statutory interpretation to resolve the question presented in a case 

like this one. 

20 I have no quarrel with the majority’s general premise that a 

factual inquiry may sometimes be a necessary predicate to a legal 

determination made by a court as a matter of law. But this does not 

rehabilitate the majority opinion. The problem is not that legal 

questions can never call for antecedent factual inquiries. It is that 

the legal determinations prescribed by the Inherent Risks of Skiing 

Act—establishing that “certain risks are inherent” in skiing “as a 

matter of law,” UTAH CODE § 78B-4-401—do not call for a predicate 

factual inquiry. 

The majority eventually gets around to addressing this point. 

But its only response is the suggestion that the statute’s reference to 

“certain risks” may not be a “reference to the enumerated risks” set 

forth in the statute. Supra ¶ 79 n. 28. And I see no way to defend 

that conclusion here. In context, it is quite clear that the whole 

point of the statutory list is to identify those risks that are 

“inherent” as a matter of law. See UTAH CODE § 78B-4-401 

(cont.)
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Lee, A.C.J., dissenting in part

84

relevant inquiry in a case involving an impact with a lift tower is 

whether the legislature meant for the Act to cover the kind of impact

with a lift tower at issue in the case.” Supra ¶ 81 (emphasis added). 

And it says that the statute “bars recovery” for claims by skiers 

who “ski[] out of control and crash[] into an ordinary lift tower.”

Supra ¶ 81 (emphasis added). This sounds like the framing of a 

legal question—as to the ordinary meaning of the language of the 

statute. Yet the court never establishes this as the governing legal 

standard. In fact it seems to take back the framing of a legal 

question in the same paragraph of the opinion, where it asserts that 

the statute should be understood to “bar[] recovery for impacts as 

skiers would reasonably expect them to occur.” Supra ¶ 81. This, again, 

seems more of a factual inquiry.

¶189 The fact-intensive nature of the court’s standard seems 

reinforced elsewhere in the opinion where the majority analyzes 

the “pile of rocks” hypothetical. Supra ¶ 43. There the court 

concludes (wrongly in my view—see supra ¶¶ 131-32) that a “pile of 

rocks intended for later landscaping placed in the middle of a 

beginner run . . . is certainly a ‘surface . . . condition[] such as . . . 

rocks” within the ordinary meaning of the” statutory text. Supra 

¶ 43. Yet the majority suggests that this would fall outside the 

“inherent risks” covered by the statute—presumably because (in 

the court’s view) a reasonable skier would not “expect to confront” 

these sorts of “rocks.” This is consistent with the majority’s 

assessment of another hypothetical—the “twenty-yard bare spot 

running through the middle of a groomed ski run.” Supra ¶ 43 n.15. 

On this hypothetical the court accepts the notion that this “is a ‘bare 

spot[]’ under ordinary meaning analysis.” Supra ¶ 43 n.16. But it 

again suggests that its Clover reformulation would allow our courts 

 

(emphasizing that the statute’s purpose is to “establish as a matter 

of law that certain risks are inherent in th[e] sport”); id. § 78B-4-

402(1) (indicating that listed risks are “includ[ed]” in the “dangers 

or conditions which are an integral part of the sport of . . . skiing”).

The legislature certainly could have indicated that inherency is a 

legal determination to be made after predicate factual findings. But 

it clearly did not do so. And we should honor the framework 

established by the legislature instead of formulating a new one.
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Lee, A.C.J., dissenting in part

85

to uphold a skier’s right to sue on an injury caused by such a bare 

spot—again presumably because a purportedly reasonable skier 

would not “expect to confront” it.

¶190 For these reasons I read the majority opinion to eschew a 

legal construct of “inherent risks” rooted in a question of statutory 

interpretation and to endorse a free-ranging, fact-intensive inquiry 

into what a reasonable skier would “expect to confront.” Yet I also 

have no idea what either test would entail in practice. And I grieve 

for the trial judge or litigant who is left to decode the tea leaves we 

leave on this question in our opinion.

¶191 The court’s framing of a quasi-legal inquiry leaves 

several key questions unanswered. If the law requires us to ask 

whether a given injury resulted from a risk that is “encountered in 

the way that skiers would reasonably expect to encounter them,” 

supra ¶ 79 (emphasis added), we must identify what counts as part 

of the relevant “way.” Consider the court’s lift tower analysis. The 

court says we should ask whether “the legislature meant for the Act 

to cover the kind of impact with a lift tower at issue in the case.” 

Supra ¶ 81. But to answer that question we would have to identify 

which elements of the impact with the lift tower are of relevance to 

the inquiry. And we would then have to guess whether the 

legislature meant to cover that risk under the immunity provided 

to ski resorts.

¶192 Imagine an accident involving a collision with a lift tower 

that is alleged to have been negligently designed or placed by the 

ski resort (a scenario much more likely to come to pass than the 

“invisible” lift tower). How is a court to decide whether this lift 

tower is “encountered in the way that skiers would reasonably 

expect to encounter” it? The plaintiff will inevitably say that a 

reasonable skier would not expect to encounter it in this “way” 

because this is a negligently designed or placed lift tower. And that 

will open the door to expert testimony about lift tower design and 

placement, rendering the statutory list inoperative and effectively 

reinstating a negligence regime. 

¶193 The court’s factual framing of the inquiry is equally 

opaque. Nowhere does the majority tell us what it means for a 

reasonable skier to “expect” a certain risk. In some sense no one 
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Lee, A.C.J., dissenting in part

86

“expects” to encounter any sort of mishap that occurs on the ski 

hill. Any ski injury is in a very practical sense an “accident”—

something unexpected. Accident, BLACK’S LAW DICTIONARY (11th ed. 

2011) (defining an accident as something “unintended and 

unforeseen”). For this new test to do any work, then, we have to 

identify the quantum of expectation that we have in mind—how 

likely the expectation must be. The court nowhere does that.

¶194 And that is just the beginning of the problem. We also 

have to identify which aspects of the risk or resulting injury must 

be “expected.” And finally, and quite importantly, we must 

determine whether and to what extent expert testimony is required 

to satisfy our new standard of expectation.

¶195 The majority specifies none of this. It fails to identify a 

clear standard. And it leaves unanswered the key questions 

required to make sense of the two competing tests it has alluded to. 

Instead it just frames a muddled question for remand, hoping the 

district court and the parties will figure it all out later.

¶196 We can do better. The path to doing so is to return to the 

plain text of the governing statute. I would take that route. I would 

ask the court on remand to decide whether Levi Rutherford was 

injured by an inherent risk that falls within the ordinary meaning 

of the statutory text. That inquiry resolves all of the many practical 

problems with the majority’s standard. And it also paves a path to 

deal with the various absurd hypotheticals imagined by the 

majority. 

III. CONCLUSION

¶197 This case has occupied the attention of the Utah appellate 

courts for the past four years. We granted certiorari because we 

perceived a need to bring clarity to a legal regime that has drawn 

skepticism and concern since its inception, and that has long stood 

in need of clarification. And we ordered supplemental briefing and 

heard oral argument on the case three times, again because we saw 

a pressing need for a substantial overhaul of the law in this area.

¶198 In light of this extensive history, the bench and bar will 

be justifiably disappointed in our disposition of this case. Instead of 

clarification or reformulation, the majority mostly just kicks the can 
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Lee, A.C.J., dissenting in part

87

down the road. It replaces one indecipherable test with another, 

and leaves our law in a state of disarray. This is what happens 

when we ignore the plain language of the law and venture into the 

territory of judicial rewriting of legislation. I see no reason to 

condone our past endeavors of this sort. And I certainly don’t think 

it’s a good idea for us to double-down on our past missteps with a 

new test that is equally problematic.

¶199 I dissent. I would credit the text of the Inherent Risks of 

Skiing Act. I would overrule Clover, and in so doing affirm that our 

job is to interpret statutes, not rewrite them.