No. 87-467
INTHE SUPREME COURTOF THE STATE OFMONTANA
1988

RONALD J. BREWER, PlaintiffandAppellant,-vsSKI-LIFT, INC., aMontana corporation,
Defendantand Respondent.

APPEAL FROM: District Court of theFourteenth Judicial District, Inand for the County ofMeagher, The HonorableRoy Rodeghiero, Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
Allan M. McGarvey; McGarvey, Heberling, Sullivanand McGarvey, Kalispell, Montana
For Respondent:
Norman L. Newhall, 111;Linnell,Newhall and Martin, GreatFalls,Montana

Submitted: May 24, 1988 Decided: September 26, 1988

ClerkMr. JusciceJohn Conway Harrison delivered che Opinion of che Courc

# .
Plaintiff, Ronald Brewer (Brewer), appeals a summary judgmenc granced in favor of defendanr, Ski-Life, Inc. (Ski-Life)

### , on Occober 14, 1987, in che Fourreenrh Judicial Discricc, Meagher Councy, Moncana. We reverse and remand. On December 26, 1983, plaintiff Brewer suffered an injury while skiing ac "Showdown," a recrearional ski area owned by Ski-Life, a Monrana corporation. Brewer concends his injury was caused by che negligence of che ski area operacor. Brewer was skiingchroughpowder snow when one ski

came off and he fell. Heclaims his fallwas an incencional response afcer he realized he had losr one ski. Upon falling, Brewer suseained injurieswhich he conrends include fraceuredribs, an aggravaced degeneraciveback condieion and

a hemopneumochorax of che righr lung. Brewer scares his injuries resulced because he fellon a Cree srump which was jusc beneath the snow and notvisible. Hecontends che scump
was removed from irs narural posicion in che course of ski hill rnaincenance and placed in a dangerous location. Furcher, he concends che scump was curned upside down wirh sharproocs srickingupward and charproperrnaincenance would have eliminaced such a hazard. Following discovery proceedings, Ski-Life filed a mocion for summary judgmenc and che mocion was granced Ocrober 14, 1987. The DisrricrCourc concluded che judgrnenc would favor defendanr Ski-Lifr even if Brewer's faces were assumed ro be crue. The Disrricr Courc reasoned char che circumscances of che accident, as relared by Brewer, were conerolled by che "Skier Responsibiliry" scacures. Secrions 23-2-731 co -737, MCA. The Discricc Court noced char, by scacuce, a skier is barred from recovery from a ski area operaror ifthe skier suffersany injury as a resulr of "anyrisk inherent in che spore of skiing 

# ..

# . " Seccion 23-2-737, MCA. Relying on S 23-2-736, MCA, che Discricc Coure scaced such risks include:

a. 

### Variations in cerrain, surface or subsurface snow condicions, rocks, crees and ocher forms of foresc growth or debris.
b. Maineenance of che skier's concrolof speed and course ae all cimes whi1.e skiing.

c. Collisions wich an objecc while skiing.
The Discricc Courc held char assuming all of Brewer's faces

were crue, che injury resulced from risks inherent in che sporc of skiing. Therefore, no genuine issue as co any macerial face exisced and defendanc Ski-Life was enrieled co summary judgmene. Three queseions are raised for our considerarion on appeal: 

### 1. Do che Moncana "Skier Responsibilicy" scaeuces violace conscicucional guarancees of equal proceccion? 2. Are che Moncana "Skier Responsibilicy" statures unconscicucionallyvague? 3. Assuming the Moncana "Skier Responsibilicy"

seacuces are held conscicucional, did che Discric-cCourc properly grant summary judgmenc in favorofdefendanc? Issue 

### 1: Do che Moncana "Skier Responsibilicy" scaeuces violace conscicucional guarancees of equal proceccion?
Brewer concendschar che skierresponsibility scaeuces, 55 23-2-731 co -737,direccly conflictwich Arcicle 11, Sec. 16 of che Moncana Conscicucion, 

### guaranteeing che righc co full legal redress. Brewer primarily accacks $ 23-2-736, MCA, and assercs char,wichouc any showing of a compelling

srace inceresc, che scarure denies a person's 

### fundamentalrighc ro full legal redress and cires Pfosrv. Scare (Monr. 1985), 713 P.2d 495, 42 Sc.Rep. 1957; and, Whire v. Srace (1983),203 Monr. 363, 661 P.2d 1272. Plainriff also relies

on Madison v. Yunker (1978), 180 Monr. 54, 589 P.2d 126

(holding a liable srarure unconscirucional because ic effecrively failed ro provide a sufficienr remedy); and, Corriganv. Janney (Monr. 1981), 626P.2d 838, 38 Sr.Rep. 545

(holdingchar icwould be unconsrirucional "todeny a cenanr all causes of accion 

# ..

# .arising our of the negligenr management of renral premises by a landlord"). The crux of Brewer's argumenr is char rhe skier responsibiliry scarures absolve a skiarea operacor from all liabiliry,even if a ski injury is caused by rhe 

### operator's negligenr or reckless behavior. Ski-Life responds rhac alrhough the Scare Consrirurion guaranrees a righr ro full legal redress, che Legislarure rerains che power ro define rhe scope and excenc of char righc. Significanrly, Ski-Lifr mainrains rhac the skier responsibiliry srarures do nor leave Brewerwirhour a remedy for aces of negligence by rhe operacor. In making this argumenc Ski-Lifr relies on § 23-2-731,MCA,which scares,in parr, "[rlhar chere are inherenrrisks in rhe sporEof skiing rhae are essentially impossiblero 

### eliminate by rhe ski area operator bur rhac should be known by rhe skier." Ski-Lifr conrends char chis scaremenr of purpose creates 

### a siruacion where rhe skier only assumes "risks inherenr in che sporr of skiing.

### " This argumenr is made despire che fact char § 23-2-736(1),MCA, specificallyrequires rhar a skier assume "rherisk and all legal responsibilicy for injury ro himself or loss of properry char resulrs from parriciparing in rhe sporeof skiingby virrue ofhisparriciparion." Alrhough Brewer inirially frames chis issueby alleging an unconscirurional res~ricrionon his righc co full legal redress,here rhe courrdenied him any redress. Borhparriesalso address che equal protection aspeccs of the skier responsibilicy scacu-ces. This case is not a denial of full legal redress,buc rather a case ofdenial of any redressand cherefore 

### appropriately decided on the conscitucional basis ofdenial of equalproceccion. Therefore, we choose cobegin

our analysis on chisbasis. The conscicucionalguaraneeeof equal proceccion requires chae all persons be ereaced alike under like circumscances. Amend. XIV, 

### 5 1, U.S. Consc.; and Ar.11 Sec. 4., Monc.Conse. The foundacion of chis discussion relaces co che face chac che scarutes classify skiers and creae ehem 

### differently chan chose who engage in ocher spores accivicieswhich are inherenrly dangerous. The scacuces require skiers alone co assume che risk of injury. Addieionally, che scaeuces classify ski area operators in cheir own class,and allow chem cercainrighesnot enjoyedby ocher 

### recreationalbusinesses. In considering che conscicucionaliey of che skier responsibilicy scacuces,we muse begin by presuming chae che

scacuces are conscieueional. Ic has long been che general rule of chis Courc char scacuizes carry a presumption of conscicucionalicy. See, e.g. Goodover v. Deparcmene of Adminiseration (1982), 201 Monc. 92, 95-96, 651 P.2d 1005, 1007. Generally, "whenever chere are differing possible incerprecacions of [a] scacuce, a consricucional incerprecacion is favored over one chae is nor." Deparcmen~ of Scace Lands v. Perribone (Mone.1985), 702 P.2d 948, 956, 42 Sc.Rep. 869, 878. Professor Lawrence H. Tribe, in his creaeiseAmerican ConscitucionalLaw, (2nd.Ed.)

### ,page 1440 speaking on "equal prorecrion"noces: [TIo provide concenc, equal proceccion came co be seen as requiring "some racionalicy in che nacure of che class singled ouc," wieh "racionalicy" rested by the 

### classification's ability to serve che purposes inrended by che legislariveor adminisrracive rule: "The courcsmuse reach and derermine che quesrionwhether che classificarions drawn in a scacure are reasonable in light of ics purpose I1 

# ... Cicing,McLaughlin v. Florida (1964),379 U.S. 184, 191, 85 S.Cc. 283, 288, 13 L.Ed.2d 222, 228. Ar page 1441 Professor Tribe refers ro cwo Supreme Courc cases, Zobelv. Williams (1982),457U.S. 55, 102S.Cr. 2309, 72 L.Ed.2d 672, and Hooper v. Bernalillo Counry Assessor (1985), 472 U.S. 612, 105 S.Cr. 2862, 86 L.~d.2d 487. These rwo cases involvedan irracionaldisrinccion made becween sraceresidenrs

## -- rhe firstbeing for thepaymenc of monies co Alaska 

### residents and the second ro rhe New Mexico

rax 

### exemption for chosewho had served in theViernamWar and who moved roNew Mexico by a specified dare. The rarionale of rhose cases is appropriarehere. In Hooper, che Courr speaking rhrouqh Chief Juscice Burger, stated a good generalrule: When a scare disrribures benefics unequally, che disrincrions icmakes are subjecc co scruriny under rhe Equal Proreccion Clause of che Fourceenrh Amendmenr. Generally, a lawwill survive char scruriny if rhe discincrion rarionally furthers a legirimare scare purpose. 

# . . [a]s in Zobel, if che srarurory scheme cannor pass even che minimum rationalicy resr, our inquiry ends. Hooper, 472 U.S. ac 618, 105 S.Cr. ar 2866, 86 L.Ed.2d at 493. Our initial aim is to analyze chepurpose of che skier responsibiliry scacuces wirh che above conscicurional principles inmind. In enacring che srarures che Legislacure offered a specific sraremencof purpose: Ir is recognized char rhere are inherent risks in the spore of skiing rhat are essenrially impossible co eliminace by

### rhe ski area operacor bur rhac shouldbe knownby che skier. Ic is rhepurpose of 23-2-731 chrough 23-2-737 rodefine chose areas of responsibilicy and 

### affirmative acrs for which rhe ski area operaror is liable for loss, damage, or injurv and chose risks for which che skier expressly assumes or shall be considered co have volunrarily assumed che risk of loss or damage and for which rhere can be no recovery. Secrion 23-2-731, MCA. In general rhe purpose was ro more specifically define che seandards of care and ducy ro be observedby boch che skierand che skiarea operacor. Sucha 

### purpose is 

### certainly legirimare and is a proper area for legislarion. There is a legirimace scare inreresc inprorecring che ski indusrry from frivolous lawsuirsand liability 

### over which rhe operacor has no conrrol. This leads us KO 

### che analysis of che rroublesome porcion of che skier responsibilicy
sea-cures. Seccions 23-2-736 and 23-2-737,MCA.

23-2-736. Skier's 

### assumption of responsibiliry 

### - 

## - -duties. (1) 

### - A ski= assumes che risk and all legal 

### - - 

## - responsibiliry 

## - for injury 

### - eo himself or loss of properry char resulcs from - -



### arciciparing in rhe spore 

### - of skiing by 

### :irrue 

### - of hE~areiciparion. The assurnpcion ofrisk and responsibiliry includes buc is nor limiced co injury or loss caused by the following: 

### variations in rerrain, surfaceor subsurface snow or ice condirions,bare spors, rocks,trees, ocher forms of foresc growch or debris, life rowers and componenrs chereof,pole lines, and plainly marked or visible snowmaking equipment. 

### (2) A 

### skier is responsible for knowing rhe range of his own abilicy co ski any slope, crail, or area and for skiing wirhin che limirs of his abiliry, skiing only on designared slopes and crails,

### maintaining conrrol of speed and course ac all rimes while skiing, heeding all posted warnings, and refraining from acring in a manner thac may cause or conrribuce to rhe injury of anyone. The responsibilicy for collisions wirha werson or obiecrwhile skiina is rhg

L J -- ---- &-- 

### responsiElicy of rhe person or persons 

## -- and noc rhe responsibilicy of che ski 

### --- --- area operacor. (3) A 

### personwho is skiingmay norplace an objecr in rhe ski area or on che uphill crack of 

### a passenger cramway char may cause a passenger or skier ro fall, cross che rrack of a passenger tramway excepcar adesignaced and approved area, or if involved in a skiing accidenr, deparr from che scene of the accidenr wirhour leaving personal idenrificacion before norifying rhe proper aurhorieies or obcaining 

### assistance when rhe skier knows char a person involved in rhe accidenr:is in need of medical or ocher assistance.
23-2-737. 

### Effecc of 

### comparative negligence. ~ocwic~scanding 

### 9 comparacivenegligence law in chis scare, 

### --- a person is barred from recovery from a -

. . 7 -- 

### -- ski area operacor for loss or damage 

### -- 

### --- resulting from

### any - risk inherenc in che 

### -- spore of skiingasdescribed in 23-2-736. - 

### (Emphasisadded.)
In subscance rhe underscored porcions provide chat a skier assumes che risk and all legal responsibiliry for injury ro himself char resulcs from parciciparing in skiing; and char che responsibility for collisionswirh an objecc is the responsibilieyof che skierand nor rhe responsibiliey of rhe ski area operaror; and finally char norwirhsranding rhe compararive negligence lawofMonrana, a skier isbarred from recovery from a ski area operaror for loss from any risk inherenc in the spore of skiing, chereby 

### eliminating che theory of comparative negligence. A 

### fair reading of che underlined porrions of rhe above scaeutesprohibirs rhe skierfromobcaining legal recourse againsr an operaror even if rhe injury is proximarely caused by rhe 

### negligent or even inrencionalacrions of rhe operaror. Counsel for Ski-Lifr urges us co incerprec § 23-2-736, MCA, in lighr of rhepurposes scaced in 

### 5 23-2-731,MCA, and
ro chereby conclude char a skier does noc assume che risk of operacor negligence because char is nor a risk inherenc in rhe sporr of skiing. We are unable co reach char conclusion afrer a careful review of che above underscored language in 

### $5 23-2-736 and 23-2-737,MCA. Alrhough che scace has a legirimace inreresc in proceccing rhe economic vicalicy of rhe ski indusrry, chere is no rarional relarionship becween rhis purpose and requiring chae skiers assume all risks for injuries regardless of rhe cause and regardless of che presence of negligence or incenrionalconducton cheparr of che ski area operacor

# . As we read rhe above underscored porrions of §$ 23-2-736 and 23-2-737, MCA, we conclude char chese porrions of che sracures are needlessly over broad and clearly go far beyond rhe scaredpurposes of the sraruresas
see forch in § 23-2-731,MCA. Applying che resr referred co inHooper,we conclude char the underscored porrions of chese
cwo srarures cannoc pass even a minimum rarionalicy cesr. These provisions are noe relared ro inherenr risks in che sporeof skiingwhich are 

### essentially impossible eo eliminare by che ski area operator as scaced in § 23-2-731,MCA. We conclude char rhese provisions fail to pass rhe minimum racionalirycesc for che following reasons: chere is norhing in rhe legislacion ro suggesc a reason ro require char a skier assumesrherisk and legal responsibiliry for injury KO himself and for collisions and chac chere is no responsibiliry on rhe pare of che ski area operacor. Such provisions eliminace any rheory of negligence on cheparr of che ski area operator. This concradicrs $ 27-1-701, MCA,

### under which a person is responsible for an injury 

### resulting from his wane of ordinary care. In a similar manner, che underscored porcion of $ 

### 23-2-737, MCA, fails co meec che minimum racionalicy resc in providing char nocwichscanding che comparacive negligence lawofMoncana, aperson isbarred fromrecovery froma ski areaoperacor for loss from any risk inherenr in che sporc of skiing. In effecc rhis appears co be an accempc eo go back co che old law of negligence which provided in Moncana chac a person who was in any way concribucorially negligenc was barred from recovery. Again chere is a coral absence of a minimum racional basis for concluding char such a provision is required in 

### connection wich skiing when such an acciviry is compared with che various ocher accivicieswhich in 

### themselves are also co be classed as 

### inherentlydangerous,buc inwhich the comparaeive negligence laws areheld coapply. We therefore 

### conclude chac che above quoced seccionsof S 

### 23-2-736(1), MCA, and S 

### 23-2-737, MCA, violace rhe conscicucional guarancee of equal proceccion and we accordingly hold chem invalid, such invalid provisions being

as follows:23-2-736. Skier's 

### assumption of 

### responsibility 

## -- duries. (I)

### A ski= 

### - -- 

### assumes rhe risk and all legal responsibiliey for injury co himself or loss of properey chac resulcs from parcicipacing in rhe spore of skiing by 

### vircue ofhis parcicipacion.

# ..

(2) [TI

### he responsibiliey for collisions wich a person or objecc while skiing is che responsibilicy of the person or persons andnor cheresponsibiliey of che ski area operaror.

# .. 23-2-737. Effecc of comparative 

### negligence. ~ocw=hsrandin~ any comparaeivenegligence law in chis scace, a person is barred from recovery from a ski area operaror for loss or damageresulting from any risk inherent in the sportof skiingasdescribed in 23-2-736. Byway of suggestionand for the purpose of guiding the District Court, the following statement could be implemented

as a jury instruction in this case as a replacement for the
now invalid first sentenceof

### 5 23-2-736(1),MCA: A skier assumes the risk and all legal responsibility for injury to himself or loss of property resulting from the inherent risks in the sport of skiing that are essentially impossible to eliminate by the ski area operator. This statement is in conformity with the stated purpose 

### of the skier responsibility statutes and would not require all skiers to assume all risksnomatter what the cause. At the
same time, it would seem to accomplish the intent of the statutes. Further,we invite the Legislature to reconsider these statutes and enact appropriate additions or changes which are in conformitywith this opinion. In view of our determination of this first issue, we need not determine the remaining two issues. Here the statutory scheme fails to pass the minimum rationality test. We reverse and remand to the District Court for further considerations of defendant's motion for summary judgment in

We concur: 

## / 

# I" Honogable Jack L. Green, DistrictJudge, sittingfor Mr. Chief Justice J.A. Turnage

DistrictJudge, sbMingfor Mr. JusticeL. C. ~ulbrandsonMr. JusticeR.C. McDonoughdissentsas follows:

A statutemight be unfairbut notunconstitutional. Our "skier responsibility" statute, S 23-2-736, MCA, does not violate the constitutional guarantee of equal protection. The majority opinion points out the statute classifies skiers separately and treats them differently than thosewho
are engaged in other sports activities which are inherently dangerous, and places the ski area operators in a separate class and allows them certain rights not enjoyed by other recreational businesses. The equal protection question becomes, then, does the statute have some rational basis in fact and bear a rational relationship to legitimate state objects? Or, are the skiersbeing treated differently on a basis of a criteriawholly unrelated in a rational way to the objectives of the statute? The objective of (5 23-2-736, MCA, is to define the duties and responsibilities of the skier and the ski area operator because of the inherent risks in the sport of skiing. Statutes in this part also define the responsibility of the ski lift operators and of the lift passengers. Would anyone challenge the rationality of such provisions or of provisions governing roller coasters and passengers? Risk distinctionsbetween sportsexist,and rational choicesbased

on the perceived distinctions are made everyday. Sky diving and bull riding are to some people considered dangerous, while football is not. The legislature should be free to recognize the degrees of such risk and impose duties and obligations where needed. The classification here is proper because it includes all who possess the characteristics or attributes which are the basis of the classification. Skier's differences fromthose excluded (such as sky divers and bull riders) are substantial and are related to the purpose of this legislation. Legitimate purposes and objectives here are safety, prevention of frivolous lawsuits, and reduction of liability of the ski area operators because of the uncertain potentially great ski area operator's liability. These
reasons are valid as a basis for the classification. See Pizza v. Wolf Creek Ski Development Corp. (Colo. 1985), 711 P.2d 671; Grieb 

### v. Alpine Valley Ski Area, Inc.(Mich.App. 1986), 400N.W.2d 633. The majority essentially does not agree with the legislature as to some of the delineated duties and responsibilities. This is not a basis for violation of the equalprotection clause. The proposed instruction of the majority, under their reasoning, would violate the equal protection clause by shifting the burden of responsibility to the ski area operator for all risks that are not essentially impossible for him to eliminate. It substitutes the Court's judgment for that of the legislature in violation of S 1-1-108,MCA. I concur, however, with the majority as to the unconstitutionality of S 23-2-737, MCA, "Effect of comparative negligence",but for another reason. It clearly violates Section 12, Article V of the 1972 Montana Constitution, which provides as follows: "the Legislature shallnotpass a special or local actwhen a general act is,
or can be made, applicable." This is a special act under these circumstances and the general comparative negligence act is applicable. 

# &/&d Justice