Caseflicks

Utah Supreme Court • 1991

Clover v. Snowbird Ski Resort

808 P.2d 1037 | 155 Utah Adv. Rep. 3 | 1991 Utah LEXIS 8 | 1991 WL 26033

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Takeaway

In short, this case holds that ski-resort liability may remain available where an employee may have resumed work after a personal detour and where the resort’s own negligence created an avoidable skiing hazard.

Background

Margaret Clover was severely injured when Chris Zulliger, a Snowbird chef, skied at substantial speed over a known blind crest and collided with her below it. Zulliger had been directed that morning to inspect Snowbird’s Mid-Gad Restaurant before beginning his shift at the Plaza Restaurant. He and a coworker stopped at Mid-Gad, inspected its operations, then skied four recreational runs before starting down the mountain toward the Plaza. On that final descent, Zulliger took the jump despite a slow-skiing sign and Snowbird’s awareness that the crest was dangerous.

Clover sued Zulliger and Snowbird. She alleged that Zulliger skied recklessly; that Snowbird was vicariously liable because Zulliger acted within the scope of employment; that Snowbird negligently designed and maintained the ski run; and that Snowbird negligently supervised its employees. Zulliger separately settled with Clover.

The trial court granted Snowbird summary judgment. It held that Zulliger was outside the scope of employment as a matter of law, that Utah’s Inherent Risk of Skiing Statute barred the design-and-maintenance claim, and that Snowbird owed no duty to supervise an employee acting outside the scope of employment. The Utah Supreme Court reversed and remanded.

Issues

Issue #1

Whether Zulliger was acting outside the scope of his employment as a matter of law when he collided with Clover.

Holding

No. Viewing the disputed facts favorably to Clover, a reasonable jury could find that Zulliger had resumed his employment and was acting within its scope when the collision occurred.

Reasoning

Under respondeat superior, an employer is liable for an employee’s torts committed within the scope of employment. Applying Birkner v. Salt Lake County, the court asked whether the conduct was generally of the kind Zulliger was employed to perform, occurred substantially within the employment’s temporal and spatial boundaries, and was motivated at least partly by a purpose to serve Snowbird.

There was evidence that inspecting Mid-Gad was part of Zulliger’s work, that Snowbird’s manager directed him to do so on the day of the accident, and that skiing the resort’s lifts and runs was the expected means of traveling between resort facilities. Had he returned directly to the Plaza after the inspection, the evidence would readily support a finding that his trip was within the scope of employment.

Zulliger’s four additional ski runs created a possible personal detour, but they did not conclusively establish an abandonment of employment. A jury could find that he resumed Snowbird’s business when he began skiing back to the Plaza to start work and report his Mid-Gad observations. His presence on Snowbird property, the lack of a fixed inspection time, the employer-provided ski pass, and the role of skiing as resort transportation supported that conclusion.

The court rejected Clover’s proposed alternatives—a foreseeability-centered scope-of-employment test and a workers’ compensation premises rule. Those approaches would materially depart from Birkner’s more flexible inquiry into the nature, location, timing, and purpose of the employee’s conduct.

Issue #2

Whether Utah’s Inherent Risk of Skiing Statute barred Clover’s negligent design and maintenance claim merely because the injury involved a skier collision and terrain variation.

Holding

No. The statute does not immunize ski operators from negligence claims based on unnecessary hazards that reasonable care could eliminate.

Reasoning

The statute protects ski operators from liability for injuries caused by risks inherent in skiing, but it does not grant complete immunity from every negligence action by a skier. The statutory list, which includes collisions with other skiers and terrain variations, is modified by the requirement that the danger be an integral part of skiing and is expressly nonexclusive.

Read as a whole, the statute codifies primary assumption of risk: it defines the limited circumstances in which a ski operator owes no duty to protect patrons. Operators have no duty to remove dangers that skiers deliberately confront as essential features of the sport, or hazards that cannot be eliminated through ordinary care. They nevertheless retain a general duty of reasonable care and a statutory duty to give the prescribed general warning of skiing’s inherent risks.

Snowbird’s reading would produce arbitrary results by making recovery turn on whether an operator-caused injury happened to involve a listed danger. The court instead interpreted the statute consistently with its purpose of clarifying, rather than radically changing, existing ski-area liability law and with the public-protective principle that unclear statutes should not produce absurd consequences.

A blind jump above an area where skiers enter a run is not an essential feature of an intermediate ski run. Clover offered evidence that Snowbird knew skiers regularly used the jump, knew it endangered skiers below the crest, and failed to take reasonable measures to remove or reduce the danger. That evidence created a genuine factual dispute over whether ordinary care could have prevented the accident.

Issue #3

Whether Snowbird could owe a duty to supervise Zulliger only if he was acting within the scope of employment.

Holding

No. An employer may be directly liable for negligent supervision regardless of whether it is vicariously liable under respondeat superior.

Reasoning

The trial court incorrectly treated negligent supervision as dependent on scope-of-employment liability. Respondeat superior concerns an employer’s vicarious responsibility for an employee’s tort, whereas negligent supervision is a claim that the employer itself acted negligently.

Clover produced evidence that Snowbird provided employees season passes as compensation, knew of the hazardous blind jump, knew employees often used it, and did not take steps to address reckless skiing there. A factfinder could conclude from that evidence that Snowbird negligently failed to supervise its employees, so summary judgment was improper.