No. 87-467 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

RONALD J. BREWER, 

Plaintiff and Appellant, 

-vsSKI-LIFT, INC., a Montana corporation, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Meagher, 

The Honorable Roy Rodeghiero, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allan M. McGarvey; McGarvey, Heberling, Sullivan and 

McGarvey, Kalispell, Montana 

For Respondent: 

Norman L. Newhall, 111; Linnell, Newhall and Martin, 

Great Falls, Montana 

Submitted: May 24, 1988 

Decided: September 26, 1988 

Clerk 
Mr. Juscice John 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 skiing chrough powder snow when one ski 

came off and he fell. He claims his fall was an incencional 

response afcer he realized he had losr one ski. Upon 

falling, Brewer suseained injuries which he conrends include 

fraceured ribs, an aggravaced degeneracive back condieion and 

a hemopneumochorax of che righr lung. Brewer scares his 

injuries resulced because he fell on a Cree srump which was 

jusc beneath the snow and not visible. He contends 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 

sharp roocs sricking upward and char proper rnaincenance 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 Disrricr Courc 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 if the skier suffers any injury as a resulr of "any 
risk 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 concrol of 

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 

unconscicucionally vague? 

3. Assuming the Moncana "Skier Responsibilicy" 

seacuces are held conscicucional, did che Discric-c Courc 

properly grant summary judgmenc in favor of defendanc? 

Issue 1: Do che Moncana "Skier 

Responsibilicy" scaeuces violace 

conscicucional guarancees of equal 

proceccion? 

Brewer concends char che skier responsibility scaeuces, 

55 23-2-731 co -737, direccly conflict wich 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 fundamental 
righc ro full legal redress and cires Pfosr v. 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, 

Corrigan v. Janney (Monr. 1981), 626 P.2d 838, 38 Sr.Rep. 545 

(holding char ic would be unconsrirucional "to deny 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 ski area 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 Brewer wirhour 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 inherenr risks in rhe sporE of skiing 

rhae are essentially impossible ro 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, specifically requires rhar a skier assume 

"rhe risk and all legal responsibilicy for injury ro himself 

or loss of properry char resulrs from parriciparing in rhe 

spore of skiing by virrue of his parriciparion." 

Alrhough Brewer inirially frames chis issue by alleging 

an unconscirurional res~ricrion on his righc co full legal 

redress, here rhe courr denied him any redress. Borh parries 
also 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 of denial of any redress and 

cherefore appropriately decided on the conscitucional basis 

of denial of equal proceccion. Therefore, we choose co begin 

our analysis on chis basis. The conscicucional guaraneee of 

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 accivicies which 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 cercain righes not enjoyed by 

ocher recreational businesses. 

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 creaeise American 

Conscitucional Law, (2nd. Ed. ) , page 1440 speaking on "equal 

prorecrion" noces: 

[TI o 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 legislarive 
or adminisrracive rule: "The courcs muse 

reach and derermine che quesrion whether 

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, Zobel v. Williams (1982), 457 U.S. 55, 102 S.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 involved an irracional disrinccion made 

becween srace residenrs -- rhe first being for the paymenc of 

monies co Alaska residents and the second ro rhe New Mexico 

rax exemption for chose who had served in the Viernam War and 

who moved ro New Mexico by a specified dare. The rarionale 

of rhose cases is appropriare here. 

In Hooper, che Courr speaking rhrouqh Chief Juscice 

Burger, stated a good general rule: 

When a scare disrribures benefics 

unequally, che disrincrions ic makes are 

subjecc co scruriny under rhe Equal 

Proreccion Clause of che Fourceenrh 

Amendmenr. Generally, a law will 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 che purpose of che skier 

responsibiliry scacuces wirh che above conscicurional 

principles in mind. In enacring che srarures che Legislacure 

offered a specific sraremenc of 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 should be 

known by che skier. Ic is rhe purpose of 

23-2-731 chrough 23-2-737 ro define 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 

observed by boch che skier and che ski area operacor. Such a 

purpose is certainly legirimare and is a proper area for 

legislarion. 

There is a legirimace scare inreresc in prorecring che 

ski indusrry from frivolous lawsuirs and 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 

-duties. responsibiliry -- (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, surface or 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 

L or obiecrwhile J skiina is -- rhg ---- 

&-- responsiElicy -- of rhe person or persons 

--- and noc rhe responsibilicy --- of che ski 

area operacor. 

(3) A person who is skiing may nor place 

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 

excepc ar a designaced 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. Ef fecc of comparative 

negligence. ~ocwic~scanding 9 

comparacive negligence 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 skiing as described - in 23-2-736. 

(Emphasis added.) 

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 collisions wirh an objecc is 

the responsibiliey of che skier and nor rhe responsibiliey of 

rhe ski area operaror; and finally char norwirhsranding rhe 

compararive negligence law of Monrana, a skier is barred 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 scaeutes prohibirs rhe skier 
from obcaining legal recourse againsr an operaror even if rhe 

injury is proximarely caused by rhe negligent or even 

inrencional acrions of rhe operaror. 

Counsel for Ski-Lifr urges us co incerprec § 23-2-736, 

MCA, in lighr of rhe purposes 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 incenrional conduct on che parr 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 scared purposes of the srarures as 

see forch in § 23-2-731, MCA. Applying che resr referred co 

in Hooper, 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 

spore of skiing which 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 

racionaliry cesc for che following reasons: chere is norhing 

in rhe legislacion ro suggesc a reason ro require char a 

skier assumes rhe risk 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 che parr 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 law of Moncana, a person is barred 

from recovery from a ski area operacor 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 accivicies which in themselves are also co be 

classed as inherently dangerous, buc in which the comparaeive 

negligence laws are held co apply. 

We therefore conclude chac che above quoced seccions of 

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 of his parcicipacion. . . 

(2) [TI he responsibiliey for collisions 

wich a person or objecc while skiing is 

che responsibilicy of the person or 

persons and nor che responsibiliey of che 

ski area operaror. . . 

23-2-737. Effecc of comparative 

negligence. ~ocw=hsrandin~ any 

comparaeive negligence law in chis scace, 

a person is barred from recovery from a 

ski area operaror for loss or damage 
resulting from any risk inherent in the 

sport of skiing as described in 23-2-736. 

By way of suggestion and 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 sentence of 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 risks no matter 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 conformity with 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, 

District Judge, sitting for 

Mr. Chief Justice J.A. Turnage 

District Judge, sbMing for 

Mr. Justice L. C. ~ulbrandson 
Mr. Justice R.C. McDonough dissents as follows: 

A statute might be unfair but not unconstitutional. 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 those who 

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 skiers being treated differently on a 

basis of a criteria wholly 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 

distinctions between sports exist, and rational choices based 

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 from 
those 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), 400 N.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 

equal protection 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 

shall not pass a special or local act when 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