Montana skier tells state Supreme Court resort’s missing fence led to dangerous fall

(CN) — A man who careened off the side of a steep trail and broke his pelvis while skiing at a resort in Montana told the state’s highest court on Thursday that the resort had a duty to prevent the accident.

In 2019, Mark Mullee broke his pelvis while skiing at the Whitefish Mountain Resort on Big Mountain in northern Montana. Mullee, an advanced skier, said he was skiing on a trail that the resort designated as a slow zone and a “green” run where children and people with disabilities ski on his way to the parking lot to retrieve his phone he accidentally left behind.

When Mullee exited through a tunnel off the trail, he caught an edge that propelled him over a cliff and down a rocky embankment — an area typically guarded by a fabric fence. Mullee sued the ski resort for negligence, accusing it of failing to maintain the fence. The resort, on the other hand, argued that the fence was in place at the time of the accident and Mullee simply plowed through it at a high speed, as it is not intended to “catch” skiers.

The Flathead County District Court sided with the resort and found that it didn’t have a legal duty to maintain the fence. Under the Montana Skier Responsibility Act, the risks of skiing are the skier’s responsibility, as is avoiding injury while skiing.

On appeal, Mullee argued that the fence wasn’t in place on the day of the accident, and that itself created a hazard.

Justice Ingrid Gustafson questioned whether the resort is liable for every steep drop-off in its skiing area.

“There’s several drop-offs all over mountains, all over the country, that don’t put up any fences, and if they put up a small rope, then are they on the hook for it?” Gustafson asked Ian Gillespie, an attorney with the Missoula-based Driggs, Bills & Day law firm representing Mullee.

Gillespie argued that the resort has a responsibility to identify the level of risk facing its skiers.

“ The obviousness of risk or assuming a risk for a skier will depend on where you are on the mountain, right? And so here is a green trail,” Gillespie said.

Gustafson pushed back, asking why a resort wouldn’t have to protect against hazards on a more difficult-rated trail than an easier one.

“ A skier assumes a different risk on a higher degree of difficulty trails, so that’s what we have here, and frankly on more of a green diamond trail, a skier might have a false sense of security right there because they’re not anticipating such difficult terrain,” Gillespie said.

Justice Cory Swanson noted that Mullee testified to be a competent skier with decades of experience who knew the danger in that area and asked whether the argument was that the resort had a duty to warn him or a duty to catch him.

Gillespie responded that Mullee wasn’t aware of how great the danger was in the area due to the lack of a fence, which he asserted was knocked over by a snow groomer.

“ If the fence is actually up every day, except for the day my client fell down, right? Well, then that would be a distinguishing fact from other days,” Gillespie said.

Justice Jim Shea noted that by Gillespie’s logic, the ski resort would be discouraged from marking dangers if that acknowledgment would open the door to being held liable for accidents.

Gillespie countered that it’s the resort’s responsibility to analyze the terrain before opening it up to the public.

Mikel Moore, an attorney representing the ski resort, argued that the question of duty is the only one the court needs to address.

“ The question of legal duty is whether Whitefish Mountain Resort may be required to answer in damages for Mr. Mullee traveling out of control off this ski trail into a stream bed,” Moore said.

For starters, there had never been an accident at that location until Mullee in 2019, the attorney argued. Placing a fence along the edge of the trail didn’t create a duty to the resort, which is underscored by the Montana Skier Responsibility Act.

“ It is an act that recognizes, through common sense, the reality of operating a voluntary recreational activity on a mountain,” Moore said. “There are literally innumerable risks. And they cannot all be mitigated.”

Moore also argued that one can’t pick and choose what risks the resort must protect against because they are too plentiful.

“ My argument is there’s no duty to have any fence in this location,” Moore said. “Because this is one of innumerable hazards on the mountain, fully recognized by the legislature in as clear a public policy statement as you’re ever going to get.”

On rebuttal, Gillespie argued that the presence of the fence implies the ski resort has to protect against the hazard.

Swanson pushed back on Gillespie’s argument.

“If you want  to shut down all the risks in a ski hill, you just shut the ski hill down. That’s kind of the point or the attractiveness of doing it is this element of danger,” Swanson said.

Gillespie argued that at that specific spot, at the end of an easy trail close to the parking lot, no skier is signing up for danger.

The Supreme Court didn’t indicate when it would rule.