MICHAEL L. ROBERTS; JESSICA E. WAYBRIGHT, Husband & Wife, Plaintiffs - Appellants,
JACKSON HOLE MOUNTAIN RESORT CORPORATION, a Wyoming corporation, Defendant-Appellee.
from the United States District Court for the District of
Wyoming (D.C. No. 2:16-CV-00024-KHR)
E. Schroth, Sr. (Robert E. Schroth, Jr. with him on the
briefs), Jackson, Wyoming, appearing for the appellants.
K. Lubing, Lubing Law Group, LLC (Nathan D. Rectanus with him
on the brief), Jackson, Wyoming, appearing for the appellee.
BRISCOE, EBEL, and MATHESON, Circuit Judges.
2014, while skiing an untamed and ungroomed run inside the
boundaries of Jackson Hole Ski Resort, Plaintiff Michael
Roberts skied into a lightly covered pile of boulders,
falling between two of them, and severely injuring himself.
He sued Jackson Hole Mountain Resort ("JHMR") to
recover for his injuries, and his wife joined his lawsuit
alleging loss of consortium.
moved for summary judgment on the basis of the Wyoming
Recreation Safety Act ("WRSA") which limits a
recreational activity provider's liability for so-called
"inherent risks" of the activity. The district
court granted summary judgment, holding that Roberts's
injuries were the result of an "inherent risk" of
alpine skiing. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291, we now AFFIRM the district court in full.
within the boundaries of the world-famous Jackson Hole Ski
Resort, Saratoga Bowl is an adventurous skier's dream
hill. The off-piste bowl is dotted with trees, rocks, and vast
swaths of open, often-untouched snow that weave throughout
these natural obstacles unguided by the ministrations of
February 14, 2014, with this winter paradise rendered even
more inviting by roughly a foot of fresh, fluffy, Wyoming
powder, Michael Roberts-an experienced skier and ski
instructor at his local mountain in California-and four
friends headed for the Bowl. Once there, they began to pick
their way down the hill, stopping frequently due to the many
obstacles and heavy snow. One member of Roberts's group,
Nick Parsell, was wearing a GoPro video camera on which he
captured the group's descent into the bowl and the many
trees and visible rocks and rock formations throughout the
skiing through the trees at the top of the run, Nick Parsell
skied down below the rest of the group so that he could film
them skiing toward him. As Parsell stops to look up at his
companions, an exposed rock formation is clearly visible off
to his left. GoPro video 3:05. The skiers head toward Parsell
one-by-one, and Roberts is the second to angle down the
mountain. As he passes Parsell, the video shows Roberts
taking a sweeping left turn perpendicular to the Bowl's
fall line. Id. at 3:33. As the camera turns back
uphill, a vague commotion can be heard from below.
to Roberts, "as [he] was initiating [his] right hand
turn into the fall line, [he] clipped a rock and started to
tumble[, ] [ultimately] end[ing] up in a hole, up to [his]
neck in snow." Aplt. App. at 193. Another member of the
group testified that Roberts "smashed" into a hole
between several rocks. Aplt. App. at 315. This same member
later clarified that where Roberts fell
there were two very large boulders side by side that there
was a - like a crevice in-between them so they were
separated. So when he skied - he skied over the - over the
top of one of the rocks and then he hit the wall of the
second rock and then disappeared down into that crevice. So
that was one of the structures. And so see that was where he
fell in, but there were a number of other very hazardous deep
holes including the one that the ski instructor [who stopped
to help] fell down into and we had to pull out, and including
the one that I fell [into] when I tried to get within 15
meters of Mr. Roberts at the accident.
Aplt. App. at 312.
the fall, one of Roberts's companions called ski patrol,
whose members soon arrived and were able to evacuate Roberts
from the mountain. He was taken first to an emergency room in
Jackson before later being flown to Salt Lake City for
emergency surgery. As a result of his fall, Roberts
"fractured his pelvis, broke seven (7) ribs, lacerated
his liver, punctured a lung, and incurred various less
serious injuries." Aplt. Br. at 10.
Roberts and his wife Jessica Waybright brought this diversity
suit, governed by Wyoming law, against JHMR in the District
of Wyoming alleging premises liability, personal injury,
negligence, negligent training and supervision, and loss of
consortium. Following discovery, JHMR moved for summary
judgment on the grounds that the Roberts' claims were
barred by the WRSA. The district court granted JHMR's
motion and the plaintiffs timely appealed.
review de novo a district court's grant of summary
judgment, "ordinarily limiting our review to the
materials adequately brought to the attention of the district
court by the parties." Birch v. Polaris Indus.,
Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). Summary
judgment is appropriate if the movant "shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Summary judgment is inappropriate where
there is a genuine dispute over a material fact, "that
is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact
is material if its determination "might affect the
outcome of the suit under the governing law."
diversity suit we apply the substantive law of Wyoming,
endeavoring to "ascertain and apply state law to reach
the result the Wyoming Supreme Court would reach if faced
with the same question." Cooperman v. David,
214 F.3d 1162, 1164 (10th Cir. 2000). To do so we rely
foremost on decisions of the Wyoming Supreme Court, and then
on "other state court decisions, federal decisions, and
the general weight and trend of authority." Sapone
v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir.
The Wyoming Recreation Safety Act
not the first time we have been asked to evaluate a Wyoming
recreational provider's liability for injuries arising
from participation in a recreational activity. See,
e.g., Kovnat v. Xanterra Parks & Resorts,
770 F.3d 949, 955 (10th Cir. 2014); Dunbar v. Jackson
Hole Mountain Resort Corp., 392 F.3d 1145, 1148 (10th
Cir. 2004); Cooperman, 214 F.3d at 1162. Liability
for personal injuries is ordinarily evaluated through
common-law tort doctrine, but in these cases the Wyoming
legislature has limited the duty of care owed by recreational
providers, including ski resorts, by enacting the WRSA.
Dunbar, 392 F.3d at 1148.
the WRSA codifies the common-law concept of primary
assumption of the risk. See Cooperman, 214 F.3d at
1165, 1165 n.1. Under the WRSA,
[a]ny person who takes part in any sport or recreational
opportunity assumes the inherent risks in that sport or
recreational opportunity, whether those risks are known or
unknown, and is legally responsible for any and all damage,
injury or death . . . that results ...