No. 93-322 

IN THE SUPREHE COURT OF THE STATE OF MONTANA 

1994 

ZACHARY P. MEAD, 

Plaintiff and Appellant, 

v. 

M.s.B., INC., a Montana 12 1994 

corporation, d/b/a SNOWBOWL, L:! >:;l;fL Defendant and Respondent. CLEF:& CF CG:-'::~ t.~ COURS 

STATE OF :%lCtrTANA 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Peter W. Kirwan (argued), Kirwan & Barrett, 

Bozeman, Montana 

For Respondent: 

Gig A. Tollefsen (argued), Berg, Lilly, 

Andriolo & Tollefsen, Bozeman, Montana 

For Amicus Montana Ski Areas Association: 

Mike1 L. Moore (argued), Murphy, Robinson, 

Heckathorn & Phillips, Kalispell, Montana 

Filed: 

Submitted: February 1, 1994 

Decided: April 12, 1994 

clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Plaintiff Zachary P. Mead filed his complaint in the District 

Court for the Fourth Judicial District in Missoula County to 

recover damages for injuries he sustained while skiing at the 

Snowbowl ski area, which is owned by the defendant, M. S. B., Inc. 

The District Court granted defendant's motion for summary judgment 

and dismissed Mead's claim. We reverse the judgment of the 

District Court. 

The following issues are presented for appeal: 

1. Are Snowbowl's duties limited to those listed in 

5 23-2-733, MCA (1989), of the Montana Skier Responsibility Act? 

2. Did the District Court err when it concluded as a matter 

of law that Mead's injury resulted from "inherent risksH of skiing, 

as set forth in 23-2-736, MCA (1989), of the Montana Skier 

Responsibility Act? 

3. Other than those "inherent risksn set forth in the 

Montana Skier Responsibility Act, is assumption of risk, as opposed 

to contributory negligence, a separate defense which can be 

asserted by ski area operators to claims by injured skiers? 

4. Did the District Court err when it found that Mead's 

claim was barred by his contributory negligence? 

FACTUAL BACKGROUND 

On March 16, 1990, Zachary Mead was injured at the Snowbowl 

ski area while skiing down a trail known as the Bowl Outrun. 
The bottom of several West-Ridge ski runs funnel into the Bowl 

Outrun trail, which then becomes the only means of return to 

Snowbowl's base area. The Bowl Outrun is a long trail, 

approximately 16 to 20 feet wide, cut into a steep mountainside. 

While descending the Bowl Outrun Trail, Mead made turns by 

skiing onto the right bank of the trail and sideslipping back to 

the flat surface. There apparently were no markers designating the 

boundaries of the trail, and ski tracks indicated that others had 

used the banks of the trail in a similar fashion. 

At some point on the trail, there is an abrupt right turn in 

combination with shale rock outcroppings on the trail's bank. 

Prior to the turn, the bank of the trail was exposed to the north 

and covered by snow. Just beyond the turn, the bank of the trail 

was exposed to the southeast and was either covered by less snow, 

or was uncovered. As Mead came around the right hand curve on the 

trail, he suddenly encountered the shale rock outcropping, which 

struck his knee, knocked him out of his skis, and caused serious 

injuries. Mead testified that earlier in the day he had observed 

bare spots on the bottom side of moguls he had skied, but that he 

had not skied the Outrun Trail previously that day, and that there 

was nothing about the trail prior to the curve which alerted him to 

the danger which caused his injury. 

On November 14, 1991, Mead filed a complaint naming the owner 

of Snowbowl as the defendant. In his complaint, he alleged that 

while skiing at Snowbowl on March 16, 1990, he sustained serious 
injuries to his right leg and knee due to defendant's negligent 

design, construction, and maintenance of the skitrail on which he 

was injured. 

The ski area denied that it was negligent, and for affirmative 

defenses asserted: (1) statutory assumption of risk; (2) secondary 

assumption of risk; (3) waiver of defendant's negligence; and 

(4) contributory negligence. 

On January 14, 1993, defendant moved the District Court to 

dismiss Mead's claim by summary judgment. That motion was granted 

by the District Court on April 23, 1993. In its opinion, the 

District Court concluded that "plaintiff's claim is the type of 

claim that the Montana Skier's Responsibility Act was enacted to 

prevent." However, the District Court failed to specify with 

particularity the provisions in the Act which barred Mead's claim. 

The District Court did apparently conclude that, based on Mead's 

general knowledge that spring conditions existed at the ski area, 

he should have been more alert for the hazard that caused his 

injury. The District Court also apparently concluded as a matter 

of law that the shale rock outcropping was a naturally occurring 

condition which resulted from weather changes, and that as a matter 

of law, defendant could not be found negligent for failing to 

remove or mark the rocks that caused Mead's injury. 

On appeal, Mead contends that whether or not the rock 

outcropping which caused his injury was the kind of condition 

designated as an "inherent riskN of skiing in the Montana Skier 
Responsibility Act was a question of fact, and that whether 

defendant and Mead were negligent, and if so, the degree of their 

comparative negligence, also presents issues of fact which 

precluded summary judgment. 

Pursuant to our review of the District Court file, we note at 

this point that extensive discovery was apparently accomplished. 

Mead submitted at least three sets of discovery requests, including 

written interrogatories, requests for admission, and requests for 

production. Defendant, likewise, submitted written requests for 

discovery; and it appears that responses to both parties' discovery 

requests were served. 

In addition, numerous depositions were scheduled, and 

apparently taken, by both parties. These include the depositions 

of Art Wear, the ski patrol member who investigated Mead's 

accident, and Don Bachman, an expert on ski area construction and 

design who was retained by Mead. 

While the parties' briefs make frequent reference to the 

deposition testimony of Mead, Bachman, Wear, and Ralph Lasache, as 

well as to documents which were produced in response to requests 

for production, none of those fruits of discovery, other than the 

deposition of Mead, were filed in the District Court, nor have they 

been filed with this Court. Neither were any affidavits, either in 

support of or in opposition to defendant's motion for summary 

judgment filed in the District Court. Therefore, the facts, as set 
forth in this opinion, are necessarily limited to those which can 

be gleaned from Mead's deposition. 

In order to avoid confusion about the meaning of this opinion, 

we note that the result would be the same, even if we assume that 

the parties' representations in their briefs about the various 

witnesses' testimony are correct. However, we wish to make it 

clear that it is not permissible on appeal to this Court to quote 

from discovery that has not been filed in the District Court and 

sent to the Clerk of the Supreme Court. 

Based on the record before us, defendant has presented no 

evidence to controvert Mead's claim in his complaint that it was 

negligent. However, defendant does argue that Mead's claim is 

barred as a matter of law, and that the District Court's summary 

judgment should be affirmed for several reasons. Defendant 

contends that: (1) a ski area's only duties to its paying guests 

are those which are set forth in 1 23-3-733, MCA (1989), and since 

Mead's complaint did not allege a breach of any of those duties, he 

has not set forth a viable claim as a matter of law; (2) Mead's 

claim is barred by 1 23-2-736(4), MCA (1989), because it resulted 

from conditions or activities which are designated as "risks 

inherent in the sport of skiing;" and (3) even if Mead's claim is 

not barred for either of the two previous reasons, the common law 

defense of assumption of risk should be available to ski area 

operators, and pursuant to that defense and the undisputed facts, 

Mead's claim is barred as a matter of law. 
STANDARD OF REVIEW 

Our standard of review in appeals from summary 

judgment is de novo . We review a summary judgment 

utilizing the same criteria used by the District Court 

initially under Rule 56, M.R.C~V.P. Minniev.CityofRoundup 

(1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We 

determine whether there is an absence of genuine issues 

of material fact and whether the moving party is entitled 

to judgment as a matter of law. Minnie, 849 P.2d at 214. 

Brinkman and Lenon v. P& D Land Enterprises (Mont. 1994), 867 P.2d 1112, 

1114, 51 St. Rep. 36, 37. 

We also noted in Brinkman that: 

It is clear that a party moving for summary judgment 

bears the initial burden of establishing the absence of 

any genuine issue of material fact and its entitlement to 

judgment as a matter of law. . . . 

. . . Put another way, the nonmoving party has no 

obligation to establish that genuine issues of fact exist 

until the moving party has shown an absence of such 

issues of fact; unless that initial burden is met by the 

moving party, the nonmoving party may rest on its 

pleading. Minnie, 849 P. 2d at 214. 

Brinkman, 867 P.2d at 1115. 

It is the exceptional negligence case that may be properly 

disposed of by summary judgment. Brohman v. State (1988) , 230 Mont . 

198, 202, 749 P.2d 67, 70. Negligence involves questions of fact, 

and where a factual controversy exists, summary judgment is never 

to be used as a substitute for trial. Kaiier v. Town of Whitehall (1986) , 

221 Mont. 322, 718 P.2d 1341. Only where reasonable minds cannot 

differ may the court, as a matter of law, decide the cause of an 

accident. Brohman, 749 P.2d at 70. 
The Montana Ski Areas Association, which has appeared in this 

case as amicus curiae, asks that we abandon our rule for summary 

judgment and adopt the modern federal rule which, according to the 

Association, would allow the Court to evaluate the evidence and 

determine whether a ''reasonable jury" could find in favor of the 

party opposing the motion. However, this rule would present a 

substantial erosion of the constitutional right to trial by jury 

and we decline to adopt it. 

ISSUE 1 

Are Snowbowl's duties limited to those listed in 5 23-2-733, 

MCA (1989), of the Montana Skier Responsibility Act? 

Mead alleged that defendant was negligent with regard to the 

design, construction, and maintenance of the Bowl Outrun trail. He 

further alleged that defendant was negligent for failing to fence 

the bank or otherwise mark the bank to prevent skiers from skiing 

into the rock outcropping. 

In response to Mead's allegations of negligence, defendant 

asserts that its duties are limited to those set forth in 

5 23-2-733, MCA (1989) , and that since Mead did not allege any 

breach of these statutory duties, defendant is entitled to judgment 

as a matter of law. 

In support of its argument that ski area operators do not owe 

duties to skiers, other than those listed in the Act, defendant 

sets forth an extensive discussion of the history of common law 

liability in the ski area industry and skier responsibility acts 
adopted in various jurisdictions. However, our resolution of this 

issue is controlled by the plain language of the Montana Skier 

Responsibility Act and our own prior decision in Braver v. Ski-Lip, Inc. 

(1988), 234 Mont. 109, 762 P.2d 226. 

The Montana Skier Responsibility Act was originally enacted in 

1979, and was found at IS 23-2-731 through -737, MCA (1979). In 

its original form, it provided, at 1 23-2-736, MCA (1979), that: 

A skier assumes the risk of all legal responsibility 

for injury to himself or loss of property that results 

from participating in the sport of skiing by virtue of 

his participation. 

In Brewer, the plaintiff was injured while skiing at the 

Showdown ski area when he fell on a tree stump which was just 

beneath the surface of the snow. He contended that the stump was 

not in the location where he encountered it as a natural 

occurrence, but had been placed there negligently by the ski area 

operator. However, based upon the quoted language, the district 

court concluded that even if the facts alleged by the plaintiff 

were assumed to be true, the ski area was entitled to judgment as 

a matter of law pursuant to the Skier Responsibility Act. In 

analyzing whether the provisions of the Act violated the Equal 

Protection Clauses of the Fourteenth Amendment to the United States 

Constitution, and Article 11, Section 4, of the Montana 

Constitution, we observed the following critical facts about the 

Act : 

In substance, the underscored portions provide that 

a skier assumes the risk and all legal responsibility for 
injury to himself that results from participating in 

skiing; and that the responsibility for collisions with 

an object is the responsibility of the skier and not the 

responsibility of the ski area operator; and finally, 

that notwithstanding the comparative negligence law of 

Montana, a skier is barred from recovery from a ski area 

operator for loss from any risk inherent in the sport of 

skiing, thereby eliminating the theory of comparative 

negligence. A fair reading of the underlined portions of 

the above statutes 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. 

Brewer, 762 P.2d at 230. 

Based on these observations, we concluded that protecting the 

operators of ski areas from liability for their own negligence bore 

no relationship to protecting them from liability from inherent 

risks in the sport of skiing, and therefore, that the objectionable 

parts of the Act violated the equal protection clauses of both the 

Federal and State Constitutions. In so holding, we stated that: 

Although the state has a legitimate interest in 

protecting the economic vitality of the ski industry, 

there is no rational relationship between this purpose 

and requiring that skiers assume all risks for injuries 

regardless of the cause and regardless of the presence of 

negligence or intentional conduct on the part of the ski 

area operator. As we read the above underscored portions 

of Sections 23-2-736 and 23-2-737, MCA, we conclude that 

these portions of the statutes are needlessly overbroad 

and clearly go far beyond the stated purposes of the 

statutes as set forth in Section 23-2-731, MCA. Applying 

the test ref erred to in Hoop [v. BemaliUo County Assessor (1985), 

472 US. 612,105 S. Ct. 2862,86 L. Ed 2d 4871, we conclude that the 

underscored portions of these two statutes cannot pass 

even a minimum rationality test. These provisions are 

not related to inherent risks in the sport of skiing 

which are essentially impossible to eliminate by the ski 

area operator as stated in Section 23-2-731, MCA. We 

conclude that these provisions fail to pass the minimum 

rationality test for the following reasons: there is 

nothing in the legislation to suggest a reason to require 
that a skier assumes the risk and legal responsibility 

for injury to himself and for collisions and that there 

is no responsibility on the part of the ski area 

operator. Such provisions eliminate any theory of 

negligence on the part of the ski area operator. This 

contradicts Section 27-1-701, MCA, under which a person 

is responsible for an injury resulting from his want of 

ordinary care. 

Brewer, 762 P.2d at 230. 

In response to the hwer decision, the Legislature amended 

several provisions of the Skier Responsibility Act in 1989. The 

language in 5 23-2-731, MCA (1979), which set forth the purpose of 

the Act, was amended to point out that skiing is a major industry 

in Montana and that the State, therefore, 

has a legitimate interest in maintaining the economic 

viability of the ski industry by discouraging claims 

based on damages resulting from risks inherent in the 

sport, defining inherent risks, and establishing the 

duties of skiers and ski area operators. 

Section 23-2-731, MCA (1989). 

Section 23-2-733, MCA (1979), was amended in 1989 to provide: 

Consistent with the duty of reasonable care owed by a ski 

area operator to a skier, a ski area operator shall: 

(1) mark all trail grooming vehicles by furnishing 

the vehicles with flashing or rotating lights that must 

be in operation whenever the vehicles are working or are 

in movement in the ski area; 

(2) mark with a visible sign or other warning 

implement the location of any hydrant or similar 

equipment used in snowmaking operations and located on 

ski trails; 

(3) maintain one or more trail boards at prominent 

locations at each ski area displaying that area's network 

of ski trails and the relative degree of difficulty of 

the ski trails at that area; 

(4) post a notice requiring the use of skiretention devices; 

(5) designate at the start of each day, by trail 

board or otherwise, which trails are open or closed and 
amend those designations as openings and closures occur 

during the day; 

(6) post in a conspicuous location the skier 

responsibility code that is published by the national ski 

areas association and that is current on [the effective 

date of this Act]; and 

(7) post a copy of 23-2-736 in a conspicuous 

location. 

Section 23-2-736, MCA (1979), was amended so that instead of 

assuming responsibility for all injuries resulting from merely 

participating in the sport of skiing, inherent risks which are 

assumed by the skier are identified. Section 23-2-737, MCA, which 

previously eliminated the application of comparative negligence to 

ski injuries, was repealed. 

It is the amended 5 23-2-733, MCA (1989), which defendant 

contends establishes its exclusive duties to Mead. However, we 

cannot construe the statute in that fashion for two reasons. 

First, this Court's role in statutory construction is simply 

to (Iascertain and declare what is in terms or in substance 

contained therein, not to insert what has been omitted . . . . II 

Section 1-2-101, MCA. In neither the original enactment of 

S 23-2-733, MCA (1979), nor in the 1989 amendment of that statute, 

did the Legislature provide that a ski area operator's only duties 

were those provided in that section and that there was no duty of 

due care owed by operators to skiers. That duty is, however, 

imposed by 5 27-1-701, MCA. In fact, the 1989 amendment appears to 

reinforce that duty when it states that the statutorily enumerated 

duties must be (Iconsistent with the duty of reasonable care owed by 

a ski area operator to a skier . . . . (I 
Second, an interpretation of a statute which gives it effect 

is preferred to one which renders it void. Section 1-3-232, MCA. 

Were we to accept the interpretation of S 23-2-733, MCA (1989) , 

which is suggested by defendant, it would be immune from liability 

for its negligent or intentional acts if not itemized in that 

section. The Skier Responsibility Act would then suffer from the 

same constitutional infirmity which we addressed and have 

previously discussed in Brewer. We presume that the Legislature 

amended the Skier Responsibility Act with those constitutional 

considerations in mind, and will not construe the statute in a 

manner that would render it unconstitutional. 

For these reasons, we conclude that defendant's duties to 

plaintiff were not limited to those listed in 23-2-733, MCA 

(1989), of the Montana Skier Responsibility Act. 

ISSUE 2 

Did the District Court err when it concluded as a matter of 

law that Mead's injury resulted from "inherent risksw of skiing, as 

set forth in S 23-2-736, MCA (1989), of the Montana Skier 

Responsibility Act? 

Section 23-2-736, MCA (1989), sets forth a skier's duties and 

identifies those inherent risks in the sport of skiing from which 

a ski area operator is relieved from liability. That part of the 

statute which defendant contends entitles it to judgment as a 

matter of law provides as follows: 

(4) A skier must accept all legal responsibility 

for injury or damage of any kind to the extent that the 
injury or damage results from risks inherent in the sport 

of skiing. Risks inherent in the sport of skiing are: 

(a) variations in skiingterrain, including surface 

and subsurface snow or ice conditions naturally occurring 

or resulting from weather changes, skier use, or grooming 

or snowmaking operations; 

(b) bare spots and thin snow cover caused by 

limited snowfall, melting, wind erosion, skier action, 

grooming, or unconsolidated base; ..a. 

(d) skiing in an area not designated as a ski trail 

While the District Court referred to all three of these 

subsections in its memorandum in support of its order granting 

summary judgment, it seems to have primarily relied on its 

conclusion that the rock outcropping was a "naturally occurring 

condition resulting from weather changes." However, while 

subsection (a) refers to naturally occurring "snow or icen 

conditions resulting fromweather changes, and while subsection (b) 

refers to "bare spots" resulting from "limited snowfall" or 

wmelting,tl neither subsection defines the exact condition 

identified by the District Court as an "inherent risk." Therefore, 

we will discuss each of the subsections relied on by defendant to 

determine whether that subsection bars Mead's claim as a matter of 

law. 

According to Mead's testimony, he was not injured by a 

variation in skiing terrain. In fact, his skis never did come into 

contact with the rocky outcrop which apparently protruded from a 

nearly vertical surface and struck him in the knee. Furthermore, 

to conclude that the rocky structure which caused Mead's injury was 

part of the nskiing terrainw is contrary to defendant's assertion 
that at the time of his injury, Mead was no longer on designated 

ski terrain, but had left the trail. Therefore, we conclude that 

the condition to which Mead attributes his injury was not a 

"variation in skiing terrain." 

Whether the exposed rocks which caused Mead's injury were 

I1bare spots caused by limited snowfall, melting, wind erosion, or 

skier actionv1 is more problematic. Mead describes skiing on the 

banked part of a ski trail when he unexpectedly encountered a rocky 

outcropping from a nearly vertical surface along the ski trail. 

There is no indication in the record whether the rocky outcropping 

would normally be covered with snow at that location, and if so, 

whether the amount of snow which normally covered the surface would 

have been sufficient to prevent the kind of injury that occurred in 

this case. The resolution of those issues necessarily involves 

questions of fact which have not been adequately developed in the 

record before us, and which are disputed, even if we accept the 

factual assertions of the parties made in their briefs. Therefore, 

we conclude that an inherent risk pursuant to S 23-2-736(b), MCA 

(1989), has not been established as a matter of law in this case. 

Whether such a condition was the cause of Meadls injury presents a 

question of fact which must be resolved by the trier of fact. 

Neither has it been established by the uncontroverted facts 

that Mead was skiing beyond the designated trail at the time of his 

injury. As mentioned, the only evidence before us is Mead's 

deposition. He testified that there were tracks from other skiers 
in the area where he was injured, and noted that the same existed 

on the photos shown to him by defendant at the time of his 

deposition. No admission was made, nor solicited, at the time of 

his deposition that he skied beyond the boundaries of the trail. 

Even if we accept the representations that the parties made in 

their appellate briefs, we conclude that, at most, an issue of fact 

was raised regarding the applicability of this subsection to this 

case. 

Defendant represents that Arthur Wear, the ski patrol member 

who investigated Mead's injury, testified that the point of Mead's 

collision was several feet from the edge of the trail. However, 

nowhere have we been advised that the edge of the trail was 

designated so that skiers knew where it began and where it ended. 

Merely asserting after the fact that a skier was several feet 

beyond the trail when the statute refers to the ndesignatedn trail 

does not satisfy the statute. 

Mead, on the other hand, represents that Forest Service maps 

show that he was on the trail at the time of his injury and that 

the area where he was injured was commonly skied by others. We 

conclude that whether or not the place where Mead's injury occurred 

was designated by defendant as beyond the ski trail presents an 

issue of fact to be decided by the finder of fact after 

consideration of all the evidence. 

ISSUES 3 AND 4 

Other than those winherent risksn set forth in the Montana 

Skier Responsibility Act, is assumption of risk, as opposed to 

16 
contributory negligence, a separate defense which can be asserted 

by ski area operators to claims by injured skiers? 

Did the District Court err when it found that Meadg s claim was 

barred by his contributory negligence? 

Finally, defendant contends that ski area operators should be 

able to rely on the affirmative defense of what it describes as 

"secondary assumption of risktN and that based on the facts in this 

case, defendant is entitled to judgment as a matter of law based on 

that defense. In support of its argument, defendant submits that 

Mead was generally aware of spring-like weather conditions and 

exposed surface areas in other parts of the ski area, had been 

warned about rocks and variations in terrain on signs and on his 

ticket, and therefore, actual notice of the specific condition 

which caused his injury should be imputed to him. 

We note, however, that assumption of risk is no longer 

available as a separate affirmative defense in negligence claims, 

and that in those cases where we do allow such a defense, knowledge 

of the specific danger which causes the claimant's injury is 

required. SeeAbemuthyv. EIineOilFieldSimkes, Inc. (1982), 200 Wont. 205, 

209, 650 P.2d 772, 775. 

Defendant acknowledges that in Abetnuthy, 650 P. 2d at 775-76, 

we held that the doctrine of implied assumption of risk is no 

longer applicable in Montana, and that instead, the conduct of the 

parties should be compared based upon evidence of negligence and 

contributory negligence, as established by reasonable and prudent 

person standards. We adopted the following rationale from the 
California Court in Liv. YeUow Cab Company of Calijhkz (1975), 13 Cal. 

3d 804, 825, 119 Cal. Rptr. 858, 873, 532 P.2d 1226, 1241: 

We think it clear that the adoption of a system of 

comparative negligence should entail the merger of the 

defense of assumption of the risk into the general scheme 

of assessment of liability in proportion to fault in 

those particular cases in which the form of assumption of 

risk involved is no more than a variant of contributory 

negligence. 

However, defendant contends that we should carve out an 

exception to Abenrathy for the ski industry as we did for product 

manufacturers in Zah?te v. Stunn Ruger and Company, Inc. ( 198 3 ) , 2 03 ~ont . 

90, 661 P.2d 17. In that case we held that: 

In summary, assumption of risk is an available 

defense in a strict liability case. The defense must 

establish that plaintiff voluntarily and unreasonably 

exposed himself to a known danger. If the defense is 

found to exist, then plaintiff's conduct must be compared 

with that of the defendant. 

The rationale for allowing the common law defense of 

assumption of risk in strict liability cases is not present in 

claims based on negligence, and therefore, we decline to apply the 

same exception to negligence claims against ski area operators. 

Specifically, we stated in Zahrte, 661 P.2d at 18, that lwwe felt 

that a defense should be retained for strict liability actions and 

that assumption of risk may be the appropriate defense." We felt 

that way because contributory negligence was not an available 

defense in strict liability actions. It is, however, an available 
defense in negligence claims, and therefore, we find the reasoning 

in Abentarhy more persuasive. 

Analyzing Mead's conduct under the objective standards which 

apply to contributory negligence, we conclude that the District 

Court erred by dismissing Mead's claim as a matter of law. First 

of all, we reiterate that: 

Ordinarily, issues of negligence are questions of 

fact not susceptible to summary adjudication. Bmhmanv. 

SfUte (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. 

Liability should not be adjudicated upon a motion for 

summary judgment where factual issues concerning 

negligence and causation are presented. Duckau v. Silver 

Bow Counly (1971), 158 Mont. 369, 377, 492, P.2d 926, 931. 

DiUardv.Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018-19. 

As we noted in Dillard, issues of comparative negligence are 

especially difficult to resolve as a matter of law. 

In this case, Mead has alleged that defendant negligently 

designed, constructed, and maintained the ski trail on which he was 

injured. Defendant, on the other hand, alleges that Mead was 

negligent by disregarding warnings on his ticket, and on its signs, 

and what he should have known from his observation of conditions at 

other areas throughout the ski area. 

There is no evidence that Mead was aware of the particular 

condition which he alleges caused his injury, nor that he had skied 

the trail recently enough that he should have been aware of it. 

Whether Mead should have been aware of the condition which 

caused his injury and exercised greater care to avoid it, and if 
so, the degree of his own negligence compared to the negligence of 

defendant, if any, are issues of fact to be resolved by the trier 

of fact in this case. 

Therefore, we hold that the defense of assumption of risk, 

other than as specified in the Skier Responsibility Act, is not a 

separate defense in a claim by skiers for injuries which are 

alleged to result from the negligence of ski area operators, and 

that whether Mead and defendant were negligent, and if so, how 

their negligence compares, presents issues of fact to be resolved 

by the finder of fact in this case. 

The judgment of the District Court is reversed and this case 

is remanded to the District Court for further proceedings 

consistent with this opinion. 

hief Justice