2019 UT App 161

THE UTAH COURT OF APPEALS

STEPHANIE DONOVAN,

Appellant,

v.

DWIGHT SUTTON, JULIE SUTTON, AND S.S.,

Appellees.

Opinion

No. 20180137-CA

Filed October 3, 2019

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg

The Honorable Kara L. Pettit

No. 160500459

Michael A. Katz, Judson Dee Burton, and 

W. Alexander Evans, Attorneys for Appellant

Gary T. Wight and Smith Monson, Attorneys

for Appellees

JUDGE JILL M. POHLMAN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN

concurred.

POHLMAN, Judge:

¶1 Skiers are known to say that “if you’re not falling, you’re 

not learning.” In this case, nine-year-old S.S., while learning to 

ski, fell and crashed into Stephanie Donovan. Donovan sued S.S. 

and her parents, Dwight and Julie Sutton (collectively, the 

Suttons) for Donovan’s alleged injuries. The district court 

granted summary judgment in favor of the Suttons, and 

Donovan appeals. We affirm.
Donovan v. Sutton

20180137-CA 2 2019 UT App 161

BACKGROUND1

¶2 One afternoon, S.S. was learning to ski on a beginner 

run (aptly named “First Time”) at a Utah ski resort. S.S. had 

taken two days of lessons one year earlier, and because S.S. was 

still a novice, Dwight2 skied with S.S. on the beginner run, 

staying close downhill and facing her. Julie skied ahead with 

S.S.’s sister.

¶3 Meanwhile, Donovan, an experienced skier, stopped 

on the same slope to take a picture. As she faced downhill 

and was putting her camera away, Donovan heard, “Look out!” 

Donovan did not have time to move, and S.S. hit her 

from behind. Donovan alleged that she sustained injuries as a 

result.

¶4 S.S. had been skiing downhill in a wedge, going about 

five miles per hour. But moments before the collision, S.S. started

to lose her wedge, passed by Dwight, and began to lose control 

about ten feet away from Donovan. S.S. leaned back, hit 

Donovan, and landed on top of her.

¶5 At the time of the collision, the snow was packed powder. 

It did not appear that the weather and snow conditions played a 

role in what transpired.

 

1. When reviewing a grant of summary judgment, we view the 

facts “in a light most favorable to the party opposing summary 

judgment.” Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1038 

(Utah 1991). We thus construe the facts in the light most 

favorable to Donovan. See id.

2. As is our practice when parties share a last name, we refer to 

them by their first names, with no disrespect intended by the 

apparent informality.
Donovan v. Sutton

20180137-CA 3 2019 UT App 161

¶6 Donovan filed suit against the Suttons, asserting two 

causes of action. Donovan’s first cause of action alleged that S.S. 

was negligent and sought to hold Dwight and Julie vicariously 

liable for S.S.’s negligence. Donovan’s second cause of action 

alleged that Dwight and Julie were negligent in their supervision 

of S.S.

¶7 The Suttons moved for summary judgment, arguing that 

Donovan could not establish her negligence claim as a matter of 

law. They argued that under Ricci v. Schoultz, 963 P.2d 784 (Utah 

Ct. App. 1998), “a skier owes ‘a duty to other skiers to ski 

reasonably and within control’” and that “‘an inadvertent fall on 

a ski slope, alone, does not constitute a breach of this duty.’” 

(Quoting id. at 786.) They asserted that “[S.S.] could have taken 

no other actions to ski more cautiously” and that “[t]he solitary 

fact that [S.S.] lost control, as a beginner skier is prone to do, is 

not enough” to show negligence. They further argued that 

because no evidence indicated that S.S. was negligent or that S.S. 

was acting as her parents’ agent, Dwight and Julie could not be 

held vicariously liable. They also asserted that Donovan’s 

negligent supervision claim failed as a matter of law because the 

“undisputed facts show[ed] that Dwight and Julie’s supervision 

of [S.S.] was reasonable and did not make it possible or probable 

that [she] would injure [Donovan].”

¶8 Donovan opposed the motion. She argued that S.S. 

breached her duty by skiing “out of control” and by “ignor[ing] 

instructions given by her father as to how to stop or slow down 

on the ski hill.” She also argued that S.S. failed to yield the right 

of way to downhill skiers in contravention of a local ordinance 

and other codes of conduct. She thus asserted that the question 

of S.S.’s negligence was one for the jury to decide and should not 

be resolved as a matter of law. Donovan also conceded that Utah 

law would not hold Dwight and Julie vicariously liable for S.S.’s 

negligence. But she asserted that Dwight and Julie were 

nevertheless personally negligent in their supervision, training, 
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20180137-CA 4 2019 UT App 161

and instruction of S.S. More specifically, Donovan claimed that 

they were “aware” that S.S. “was not only inexperienced but 

fearful of skiing,” they “should have known their child was 

getting tired and skiing in a sloppy fashion,” Dwight’s “attempts 

to instruct [S.S.] were feeble,” and Dwight should have 

intervened to thwart the collision or at least warned Donovan 

that a crash was imminent. Donovan thus asserted that her 

negligent supervision claim also presented a question for the 

jury.

¶9 The district court granted summary judgment in favor of 

the Suttons. In addressing Donovan’s negligence claim, the court 

first determined that S.S. is “not held to the same standard as an 

adult” under Utah law and that “the amount of care she’s held to 

is that ordinarily used by a child of similar age, knowledge, 

[and] experience in similar circumstances.”3 The court next 

determined that, under Ricci, “skiers who lose control even 

though exercising due care” do not breach the standard of care 

and that “a fall on the slope alone does not constitute a breach.” 

In other words, “an inadvertent fall on the slope, which is losing 

control, . . . doesn’t equate to failing to use reasonable care.” In 

contrast, to show a breach, “[t]here has to be additional evidence 

[apart from a fall itself] to support . . . a finding of negligence,” 

 

3. On appeal, Donovan does not dispute that a child is not 

judged by the adult standard, but she claims that deciding 

whether a child acted negligently is a question of fact for the 

jury. Our supreme court has stated that “[t]he question of 

whether a child five or over is capable of negligence is reserved 

for the fact-finder, unless a court determines that no reasonable 

jury could disagree on the issue.” Nielsen ex rel. C.N. v. Bell ex rel. 

B.B., 2016 UT 14, ¶ 22, 370 P.3d 925. For the reasons discussed 

below, this case qualifies as one in which no reasonable jury 

could find S.S. negligent.
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20180137-CA 5 2019 UT App 161

such as “going too fast for the conditions” or “not watching 

where [the skier is] going.” Indeed, the plaintiff “must have 

evidence of [the defendant’s] failure to use reasonable care 

before the sudden, unexpected fall.”

¶10 Looking at the evidence submitted by the parties, the 

district court determined that “the only thing [it] showed . . . is 

that [S.S.,] as a nine-year-old beginner skier, was not able to 

maintain her wedge and . . . then fell” and that such conduct was 

“not a failure to use reasonable care” under Ricci. Because S.S. 

was “inadvertently . . . not able to maintain [her] wedge,” which 

led her to accelerate, lean back, and ultimately collide with 

Donovan, the court concluded that the facts “do not state a claim 

for negligence . . . or failure to exercise reasonable care” by S.S. 

Thus, the court determined that no reasonable jury could 

conclude on the evidence that S.S. failed “to exercise reasonable 

care under the standard of a nine-year-old with her experience 

and her knowledge level.” Additionally, based on Donovan’s 

concession, the court concluded that Donovan had not stated a 

viable vicarious liability claim against Dwight and Julie.

¶11 Turning to Donovan’s negligent supervision claim, the 

district court stated that the undisputed facts showed that S.S. 

“had a [ski] lesson the year before” and that Dwight had 

instructed her about “the wedge” and “the side ski” but that S.S. 

“only wanted to do the wedge because that made her go 

slower.” The facts also showed that Dwight taught S.S. how to 

fall if she was losing control. No facts suggested that Dwight had 

time to grab S.S. before she struck Donovan. From this record, 

the court determined that “there’s simply no evidence of failure 

to exercise reasonable care by the parents” and thus concluded 

that Donovan could not prove negligent supervision.

¶12 The court accordingly dismissed Donovan’s claims. 

Donovan appeals.
Donovan v. Sutton

20180137-CA 6 2019 UT App 161

ISSUE AND STANDARD OF REVIEW

¶13 Donovan contends that the district court erred in granting 

summary judgment in favor of the Suttons on her claims for 

negligence and negligent supervision. “Because a summary 

judgment presents questions of law, we accord no particular 

deference to” the district court’s decision and review it for 

correctness. Coburn v. Whitaker Constr. Co., 2019 UT 24, ¶ 8, 445 

P.3d 446 (cleaned up). “Summary judgment is appropriate when 

there is no genuine dispute as to any material fact and the 

moving party is entitled to judgment as a matter of law.” Id.

(cleaned up).

ANALYSIS

I. Negligence Claim

¶14 Donovan challenges the district court’s grant of summary 

judgment to the Suttons on her negligence claim. She first argues 

that the court “misinterpreted” Ricci v. Schoultz, 963 P.2d 784 

(Utah Ct. App. 1998), and that “the fact-finder may ultimately 

conclude that the collision itself establishes S.S.’s negligence.” 

She then argues that “even if [the district court] correctly 

interpreted Ricci, the record supplies ample evidence (other than 

the collision) that could convince a reasonable jury that S.S. 

breached a duty of care to [Donovan].” We address each 

argument in turn.

A. Ricci v. Schoultz

¶15 Donovan contends that the district court was wrong to 

interpret Ricci “as standing for the proposition that a collision on 

a ski-slope [preceded] by an inadvertent fall does not, by itself, 

establish negligence.” Donovan also asserts that Ricci does not 

stand for the proposition that “‘additional evidence,’ beyond the 
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20180137-CA 7 2019 UT App 161

mere fact that a collision has occurred, is required to ‘support a 

finding of negligence.’” According to Donovan, Ricci instead 

“stands for the more limited proposition that an inadvertent fall

(i.e., a fall that occurs due to the unexpected loss of control) and 

immediate subsequent collision between two skiers in motion

does not, by itself, establish negligence.” Donovan thus asserts 

that Ricci does not govern where, as here, “the collision occurred 

with only one skier in motion.” In other words, Donovan seeks 

to limit Ricci to “the facts from which [its] holding arose.”

¶16 To prevail on a claim for negligence, a plaintiff must 

establish “that (1) the defendant owed the plaintiff a duty of 

care, (2) the defendant breached that duty, and (3) the breach 

proximately caused (4) the plaintiff to suffer legally compensable 

damages.” Cope v. Utah Valley State College, 2014 UT 53, ¶ 11, 342 

P.3d 243. Generally, “we all have a duty to exercise care when 

engaging in affirmative conduct that creates a risk of physical 

harm to others.” Nixon v. Clay, 2019 UT 32, ¶ 13 (cleaned up).

¶17 This court has previously established the duty that skiers 

owe to other skiers. Specifically, a skier has “a duty to other 

skiers to ski reasonably and within control.” Ricci v. Schoultz, 963 

P.2d 784, 786 (Utah Ct. App. 1998). The parties agree that this is 

the duty that applies in this case. This court has also established 

that “an inadvertent fall on a ski slope, alone, does not constitute 

a breach of this duty.” Id.

¶18 In Ricci, the plaintiff and the defendant were both 

advanced skiers going down a groomed run at the same speed 

and in a controlled manner. Id. at 785. But the defendant slowed 

when “he approached a small crest on the ski run,” and the 

plaintiff “closed to within a few feet behind” the defendant. Id.

The defendant then “unexpectedly lost control of his skis” and 

fell into the plaintiff, who was unable to avoid the defendant and 

suffered injuries after the parties slid into a tree well after the 

collision. Id. A jury found that the defendant was negligent, but 
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20180137-CA 8 2019 UT App 161

the trial court granted the defendant judgment notwithstanding 

the verdict, concluding that the defendant had not breached any 

duty he owed the plaintiff. Id.

¶19 This court affirmed. Id. at 787. It began with the general 

principle that, “like all others, skiers owe that degree of care an 

ordinary prudent person would exercise under like or similar 

circumstances.” Id. at 786 (cleaned up). The court then 

considered similar ski collision cases from other jurisdictions 

and stated that those that “have supported a finding of 

negligence in a ski collision have required proof of some 

negligent conduct before the collision.” Id. For example, because 

“alcohol consumption was not an integral aspect of skiing,” a 

defendant who consumed alcohol before and during his skiing 

“breached his duty to plaintiff ‘not to increase the risks to a 

participant over and above those inherent in the sport.’” Id.

(quoting Freeman v. Hale, 36 Cal. Rptr. 2d 418, 421 (Ct. App. 

1994)).

¶20 Ultimately, this court determined that “[s]ome collisions 

between skiers are an inherent risk of skiing and may occur 

absent negligence.”4 Id. at 787. It decided that “a skier does have 

 

4. After this case was briefed and argued, the Utah Supreme 

Court issued Nixon v. Clay, 2019 UT 32, in which it held that 

“voluntary participants in a sport cannot be held liable for 

injuries arising out of any contact that is ‘inherent’ in the sport,” 

id. ¶ 21, even for sports that “anticipate only incidental or 

infrequent contact between co-participants,” id. ¶ 31. Under this 

rule, “participants in voluntary sports activities retain a duty to 

use due care not to increase the risks to a participant over and 

above those inherent in the sport.” Id. ¶ 21 (cleaned up). “But 

there is no duty to lower or eliminate risks that are inherent in an 

activity.” Id. For example, though tennis “does not involve 

frequent bodily contact among participants,” “there are obvious 

(continued...)
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20180137-CA 9 2019 UT App 161

a duty to other skiers to ski reasonably and within control” but 

that “an inadvertent fall on a ski slope, alone, does not constitute 

a breach of this duty.” Id. at 786. Thus, on the facts presented, 

this court concluded that the defendant’s “loss of control and 

fall, by itself, [did] not establish his negligence.” Id. at 786–87. 

This court further concluded that the defendant “did not breach 

his duty of reasonable care to [the plaintiff] by accidentally 

falling into [the plaintiff] when there was no evidence that [the 

defendant] was skiing negligently at the time of his fall.” Id. at 

787.

¶21 We are bound by Ricci. See State v. Legg, 2018 UT 12, ¶ 9, 

417 P.3d 592 (explaining that “under the doctrine of horizontal 

stare decisis, the first decision by a court on a particular question 

of law governs later decisions by the same court” and 

“horizontal stare decisis applies as between different panels of 

 

(...continued)

risks of injurious contact,” including “colliding with a teammate 

during a doubles match,” and a tennis player involved in such a 

collision is not exposed to liability for making such contact. Id.

¶ 32. We view Ricci v. Schoultz, 963 P.2d 784 (Utah Ct. App. 

1998), as consistent with Nixon.

We also observe that Utah’s Inherent Risks of Skiing Act, 

Utah Code Ann. §§ 78B-4-401 to -404 (LexisNexis 2018), which 

immunizes ski area operators for injuries resulting from the 

inherent risks of skiing, recognizes that “certain risks are 

inherent” in the sport of skiing, id. §§ 78B-4-401, -403. It defines 

“inherent risks of skiing” to mean “those dangers or conditions 

which are an integral part of the sport” including, among other 

things, “collisions with other skiers” and “the failure of a skier to 

ski within the skier’s own ability.” Id. § 78B-4-402(1)(f), (h). These 

legislative statements are consistent with Ricci’s recognition that 

“[s]ome collisions between skiers are an inherent risk of skiing.” 

963 P.2d at 787.
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20180137-CA 10 2019 UT App 161

the court of appeals” (cleaned up)). And we see nothing in 

Ricci’s reasoning that draws a distinction between moving and 

stationary skiers or limits its application to situations in which 

both skiers were in motion at the time of the collision.5 Instead, 

Ricci is rooted in the fact that unexpected, inadvertent falls and 

contact occur while skiing “despite the exercise of ordinary and 

reasonable care.” Ricci, 963 P.2d at 786 (cleaned up). Because 

skiers may “lose control even while exercising due care” and 

thereby “may pose a danger which is inherent, obvious and 

necessary to participate in the sport of skiing,” the Ricci court 

determined that evidence of an inadvertent fall, without more, is 

not proof of negligence. Id. at 786–87 (cleaned up). And because 

the evidence demonstrated that the defendant in Ricci was 

“skiing in control” immediately before the collision, the plaintiff 

had “failed to introduce any competent evidence that [the 

defendant] was skiing negligently before his sudden and 

unexpected fall in front of [the plaintiff].” Id. at 786. We therefore 

agree with the district court’s decision not to distinguish Ricci on 

the basis that this lawsuit involves only one skier who was in 

 

5. Donovan asserts that Ricci’s recognition that additional facts 

are needed to show negligence, “by implication, also recognizes 

that where a collision is of a type that does not typically occur

absent negligence, no additional demonstration of wrongdoing 

would be required” and argues that “[t]he collision itself, in such 

circumstances, would establish negligence.” She then asserts that 

a reasonable jury could conclude that the type of collision that 

occurred here—where “one skier accelerated toward a stationary 

skier, losing control at the last minute”—“does not typically 

occur absent negligence.” But this argument again points solely 

to the collision to show negligence, and Ricci plainly rejects the 

notion that “an inadvertent fall on a ski slope, alone,” constitutes 

negligence. See 963 P.2d at 786.
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20180137-CA 11 2019 UT App 161

motion at the time of the collision6—S.S.—and we agree with its 

interpretation of Ricci as requiring “evidence of [the defendant’s] 

failure to use reasonable care before the sudden, unexpected 

fall.”7

B. Ricci’s Application

¶22 Donovan next contends that even if Ricci applies, the 

district court “was mistaken” to conclude that she had “not 

 

6. In her reply brief, Donovan seeks to distinguish Ricci on the 

similar ground that it requires a showing that the downhill skier, 

not the uphill skier, lost control as a result of some negligent 

conduct. We do not read Ricci as limiting its application in this 

manner, and we therefore reject this argument.

7. Donovan also attempts to distinguish Ricci procedurally, 

arguing that the “trial judge [in Ricci] had heard all evidence 

placed before the trier of fact before granting [the] defendant’s 

motion” for judgment notwithstanding the verdict but that here 

the “district court had not yet heard the evidence that would be 

adduced at trial,” especially given that “expert discovery had 

not [yet] been conducted.” According to Donovan, an “expert 

witness may provide important information that would help a 

jury determine whether S.S. was negligent.” We are not 

persuaded. Donovan has not shown that an expert witness 

would provide evidence beyond the fact of S.S.’s inadvertent 

fall, and Donovan never argued to the district court that she 

needed more time for discovery in order to “present facts 

essential” to her opposition to the Suttons’ summary judgment 

motion. See generally Utah R. Civ. P. 56(d) (providing that if a 

nonmoving party shows that it “cannot present facts essential to 

justify its opposition” to summary judgment, the court may, 

among other things, “defer considering the motion” or “allow 

time to obtain affidavits or declarations or to take discovery”).
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20180137-CA 12 2019 UT App 161

produce[d] evidence, other than the collision, showing a breach 

in the applicable standard of care.” In particular, Donovan 

insists that “negligence can be inferred from evidence other than 

the collision,” maintaining that the “record contains disputed 

material facts regarding S.S.’s experience and whether she had 

an adequate opportunity to avoid the collision.” The Suttons 

respond that Donovan’s arguments effectively still “rel[y] on the 

collision alone to prove [S.S.] was negligent.” We agree with the 

Suttons.

¶23 Donovan first asserts that S.S. had “received formal 

and informal ski instruction that taught her how to wedge 

or side ski.” She then asserts that the reasonable inference from 

this evidence is that “[t]his instruction would have also 

taught [S.S.] how to stop and change direction.” Donovan also 

points to the fact that S.S. was ten feet away from her when S.S. 

started to lose control, stopped wedging, and accelerated, 

claiming that S.S. “likely had sufficient time to avoid the 

collision.”

¶24 In considering these facts, the district court determined 

that it was undisputed that S.S. was a nine-year-old beginner 

skier on a beginner run who was skiing in a wedge at a speed of 

about five miles per hour. And about ten feet away from 

Donovan, S.S. became unable to maintain her wedge, causing 

her to go faster, fall, and collide with Donovan. The court 

concluded that under Ricci v. Schoultz, 963 P.2d 784 (Utah Ct. 

App. 1998), the fact that S.S. was not able to maintain her wedge 

and then fell was “not a failure to use reasonable care.” We agree 

with this assessment. Donovan contends that a jury could 

reasonably conclude that S.S. did not draw upon her experience 

and “take appropriate evasive action to avoid the collision,” 

but other than speculation, Donovan points to nothing in the 

record to support this conclusion. Donovan identifies no 

evidence of S.S.’s failure to use reasonable care before she fell, 

and she does not explain what evasive action S.S. could have or 
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20180137-CA 13 2019 UT App 161

should have reasonably taken under the circumstances.8 In sum, 

Donovan has not shown that S.S.’s inability to keep her wedge

and remain upright, despite having had some ski lessons, is 

sufficient for a jury to conclude that S.S. was negligent. See id. at 

786–87.

¶25 Next, Donovan asserts that under Ricci’s duty to 

ski reasonably and within control, a skier is required “to avoid 

collision with the person below her.” In support, she cites 

the Park City Municipal Code, which creates criminal liability 

for reckless skiing and states that “[t]he primary duty shall be 

on the skier or snowboarder to avoid collision with any 

person or object below him.” Park City, Utah, Municipal Code 

§ 8-2-8(B) (2008). She then argues that “violation of an ordinance 

is evidence of negligence” and that evidence that S.S. violated 

an ordinance constitutes evidence of breach “in addition to 

mere collision,” thus creating a question for the jury under 

Ricci. But “before violation of a legislative standard will be held 

to be . . . prima facie evidence of negligence[], the legislative 

standard must first be adopted by the court as defining 

the standard of conduct of a reasonable person.” Colosimo v. 

Gateway Cmty. Church, 2018 UT 26, ¶ 45 n.82, 424 P.3d 866

(cleaned up). In other words, “it is only after a statute 

or ordinance is adopted by the court as the standard of 

conduct of a reasonable person, thereby imposing a duty 

 

8. In her reply brief, Donovan argues for the first time that S.S. 

breached her duty to ski reasonably by “failing to look, see or 

heed in a timely manner”; by not avoiding a collision with a 

plainly visible downhill skier; by failing to slow, stop, and 

change direction; and by not providing a more timely warning to 

Donovan. But we do not consider issues that are raised for the 

first time in a reply brief. Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 

903. We therefore do not address these arguments further.
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20180137-CA 14 2019 UT App 161

recognizable in tort, that a court will then determine whether a 

violation thereof constitutes prima facie evidence of negligence.” 

Id. Donovan only cursorily grapples with this “preliminary 

question of whether the legislative standard imposes a duty 

recognizable in tort.” See id. She has not met her burden of 

persuasion on this subject.

¶26 In short, Donovan has not persuaded us that there 

is evidence, apart from the collision itself, that S.S. skied 

negligently. The district court therefore correctly granted 

summary judgment against Donovan on her negligence claim.

II. Negligent Supervision Claim

¶27 Donovan next challenges the district court’s grant of 

summary judgment to Dwight and Julie on her negligent 

supervision claim against them. Donovan asserts that from 

disputed material facts, a jury could conclude that Dwight and 

Julie “did not properly exercise control” over S.S. where they 

“put a child prone to accident in an environment where she 

could hurt other skiers and then failed to properly monitor her 

activity or otherwise exercise control over her as to prevent 

injury.”

¶28 “Summary judgment is appropriate in negligence cases 

only in the clearest instances.” Castellanos v. Tommy John, LLC, 

2014 UT App 48, ¶ 41, 321 P.3d 218 (cleaned up). “Bare 

allegations of negligence unsupported by facts, however, are 

insufficient to withstand a motion for summary judgment.” Id.

(cleaned up).

¶29 The parties agree that we may resolve Donovan’s 

negligent supervision claim under the standard set forth in

section 316 of the Restatement (Second) of Torts. That section 

states,
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20180137-CA 15 2019 UT App 161

A parent is under a duty to exercise reasonable 

care so to control his minor child as to prevent it 

from intentionally harming others or from so 

conducting itself as to create an unreasonable risk 

of bodily harm to them, if the parent (a) knows or 

has reason to know that he has the ability to 

control his child, and (b) knows or should know of 

the necessity and opportunity for exercising such 

control.

Restatement (Second) of Torts § 316 (Am. Law Inst. 1965).

¶30 The district court granted summary judgment to Dwight 

and Julie on this claim on the ground that “there’s no evidence of 

failure to exercise reasonable care by the parents.” The court 

stated the undisputed facts were that S.S. had had a ski lesson 

the year before and that Dwight had instructed S.S. regarding 

the wedge, the side ski, and how to fall. Further, the court 

observed that there were no facts upon which the jury could 

infer an obligation or ability for Dwight to grab her under the 

circumstances. On this record, the court determined that a 

reasonable jury could not conclude “that the parents failed to 

exercise reasonable care.”

¶31 Assuming, without deciding, that section 316 is the 

proper standard, we agree with the district court that Donovan’s 

negligent supervision claim fails as a matter of law. Donovan 

emphasizes that S.S. was a new and nervous skier. But Donovan 

has not shown that a reasonable jury could conclude that Dwight 

and Julie failed to exercise reasonable care simply because they 

allowed S.S., who was nervous, to learn to ski on a beginner run. 

Donovan also emphasizes that because it was the last run of the 

day, Dwight let S.S. “ski tired.” No record evidence supports this 

allegation. Rather, it was undisputed that S.S. did not remember 

being tired that day and did not tell Dwight that she was tired. 

As a result, Donovan’s allegation that Dwight and Julie 
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20180137-CA 16 2019 UT App 161

permitted S.S. to “ski tired” that day is speculative and 

insufficient to create a question for the jury.9 See Castellanos, 2014 

UT App 48, ¶ 41.

¶32 On this summary judgment record, Donovan has not set 

forth facts to show that Dwight and Julie breached their duty to 

exercise reasonable control over S.S. Accordingly, we affirm the 

district court’s conclusion that Donovan’s negligent supervision 

claim fails as a matter of law.

CONCLUSION

¶33 Donovan has not shown that the district court erred in 

interpreting and applying this court’s precedent, and the district 

court correctly concluded that Donovan did not offer any 

evidence apart from the collision itself to support her negligence 

claim. The district court also correctly granted summary 

judgment against Donovan on her negligent supervision claim. 

Accordingly, we affirm.

 

9. Donovan also asserts that Dwight had a duty to look and see 

Donovan behind him on the slope while he monitored S.S. as she 

skied downhill, potentially toward other skiers below. But 

because she raised this argument for the first time in her reply 

brief, we do not consider it. See id.