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Rutherford v. Talisker Canyons Finance, Co., LLC

Supreme Court of Utah

June 27, 2019

Philip Rutherford and Wendy Rutherford, Respondents,
Talisker Canyons Finance, Co., LLC; ASC Utah, LLC; and Summit Ski Team, Inc., Petitioners.

          On Certiorari to the Utah Court of Appeals Third District, Summit County The Honorable Todd M. Shaughnessy No. 100500564

          David A. Cutt, David S. Kottler, Salt Lake City, for respondents

          Justin J. Keys, Eric P. Lee, Park City, Timothy C. Houpt, Salt Lake City, for petitioners

          Justice Himonas authored the opinion of the Court in which Chief Justice Durrant, Justice Pearce, and Justice Petersen joined, and which Associate Chief Justice Lee joined as to Part I.




         ¶1 Young Levi Rutherford crashed and was injured when he skied into a patch of thick, wet, machine-made snow. His parents brought claims for negligence and premises liability on his behalf against Talisker Canyons Finance Company and ASC Utah (collectively, Talisker). Talisker asks us to hold that the Rutherfords' claims are barred by (1) a release of liability signed by Levi's father or, alternatively, (2) Utah's Inherent Risks of Skiing Act, Utah Code sections 78B-4-401 to -404 (the Act). We decline Talisker's invitations.

         ¶2 Two of our decisions compel this result. First, in Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, superseded by statute as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984, [1] we unambiguously declared that it would violate public policy to allow a parent to "release a minor's prospective claim for negligence." Id. ¶ 10. Second, in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), we unanimously held that claims for injuries caused by "inherent risks of skiing" are barred only to the extent that the risk was integral to the sport of skiing. Id. at 1044-45. And three years later we loudly reaffirmed our commitment to Clover in White v. Deseelhorst, 879 P.2d 1371 (Utah 1994), abrogated on other grounds by Penunuri v. Sundance Partners, Ltd., 2017 UT 54, 423 P.3d 1150. Today, Talisker asks us to abandon our holding in Clover and turn turtle three decades of precedent and the settled expectations of skiers and the ski industry in favor of an alternate approach to interpreting the Act. But because of our established practices in statutory construction and precedential decisions in Clover and White, we reject this substitute construction.

         ¶3 Instead, we hold that Talisker has not convinced us that Clover was wrong, much less met its heavy burden to persuade us to overturn such weighty precedent. We therefore uphold the court of appeals' decision that the district court was correct to apply Clover. We do, however, take this opportunity to streamline the implementation of Clover's holding and remand this case to the district court with instructions to apply Clover in a manner consistent with this opinion. We also agree with the court of appeals' conclusion to affirm the district court's partial grant of summary judgment to the Rutherfords, finding the release unenforceable under Utah law-although we do so for reasons other than those stated by the court of appeals.


         ¶4 Ten-year-old Levi Rutherford was a member of the Summit Ski Team, an affiliate of the United States Ski and Snowboard Association (USSA), during the 2009-2010 winter season. Levi was an advanced skier who regularly skied "on the double blacks, which were the expert runs." Levi's father signed him up for the team online in the fall of 2009. In the process, Levi's father signed an "Assumption of Risk and Release of Liability" on Levi's behalf. The release purported to waive Levi's right to sue USSA, the ski team, and any ski area operator for any injury due to any reason, including the negligence of one of the above-named entities.[2]

         ¶5 On January 15, 2010, Levi's parents dropped him off at The Canyons ski resort for ski team practice.[3] Levi met up with his coaches, who told him to take a warmup run while they set up gates for training on the Retreat run. At this time, multiple snow-making machines were in operation on Retreat. The coaches did not ask The Canyons to turn off the snow-making machines because "in the past [The Canyons] kept running the snow guns until they saw that people were up there . . . and then they would shut them off when they saw that [the ski team] was on that run." The coach in charge of training that day testified in her deposition that she would not have had the team ski through the gates if the snow-making machines were still running by the time the course was set up "[b]ecause of [the] bad visibility and inconsistent snow."

         ¶6 Levi took his warm up on Retreat while the snow-making machines were in operation, making visibility poor. Warning signs were posted at the top of the run, stating: "snowmaking in progress." Despite the warning, Levi headed down Retreat without making turns. He went into a tuck position with his knees bent, his poles tucked under his arms, and his head near his knees. Near the bottom of the run, Levi ran into a mound of sticky, wet, machine-made snow that was roughly a foot high, which caused him to crash. Levi sustained a brain injury from the crash.

         ¶7 The Rutherfords filed suit on Levi's behalf against the ski team and Talisker. After discovery, the parties filed multiple cross-motions for summary judgment. At issue here are the motions concerning whether the Rutherfords' claims for negligence and premises liability against Talisker are barred either by the release signed by Levi's father or by the Act.

         ¶8 Regarding the arguments for the release, the district court read this court's precedent in Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560, as meaning that all preinjury releases for recreational skiing are unenforceable, while, pursuant to Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, abrogated on other grounds by Penunuri v. Sundance Partners, Ltd., 2017 UT 54, 423 P.3d 1150, preinjury releases for competitive skiing are enforceable. Based on this understanding, the district court held that the preinjury release signed by Levi's father was unenforceable because the type of skiing Levi was engaged in at the time he crashed was more similar to recreational skiing than competitive skiing. The district court alternatively held that the release was unenforceable under Hawkins ex rel. Hawkins v. Peart, which held that a preinjury release signed by a parent on behalf of a minor was unenforceable for violating Utah public policy. 2001 UT 94, 37 P.3d 1062, superseded by statute as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984.[4]

         ¶9 The district court also denied Talisker's motion in which it argued that the Act's machine-made snow exemption[5] barred the Rutherfords' claims. The court held that, pursuant to Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), there was a disputed question of material fact as to whether a skier wished to confront sticky, wet, machine-made snow from a machine that was allegedly "not functioning properly" and whether that risk could be eliminated through the exercise of reasonable care.

         ¶10 Talisker appealed the district court's partial grant of the Rutherfords' motion for summary judgment and its denial of Talisker's motion for summary judgment. The court of appeals affirmed the district court's rulings.

         ¶11 With respect to the preinjury release, it affirmed on the ground that the 2006 amendment to the Act, coupled with our analysis in Rothstein, effectively overruled Berry and eliminated the distinction between preinjury releases for recreational and competitive skiing, making both types of releases unenforceable. Rutherford ex rel. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App 190, ¶¶ 34-35, 333 P.3d 1266. Additionally, the court of appeals "reject[ed] the trial court's determination that the . . . release is unenforceable because it was signed by a parent on behalf of a minor; rather, the release is unenforceable based on the Act's policy statement." Id. ¶ 30. We granted certiorari to review the court of appeals' decision. Based on our review, we hold that the court of appeals reached the correct result, but that its declaration that preinjury releases signed by parents on behalf of children do not generally offend Utah's public policy was in error.

         ¶12 The court of appeals also affirmed the district court's ruling with respect to the Act's machine-made snow exemption, stating that there is a "question[] of fact regarding the applicability of the machine-made snow exemption" in the Act. Id. ¶ 18. We affirm the court of appeals' and the district court's reliance on Clover in making this determination. However, we take this opportunity to clarify the implementation of Clover's core holding and therefore remand this case to the district court to make a determination under Clover consistent with this opinion.

         ¶13 We exercise jurisdiction under Utah Code section 78A-3-102(3)(a).


         ¶14 On certiorari, we review the decision of the court of appeals for correctness, "giving no deference to its conclusions of law." State v. Harker, 2010 UT 56, ¶ 8, 240 P.3d 780 (citation omitted) (internal quotation marks omitted). "Additionally, [with respect to the decision of the district court, ] we 'apply the same standard of review used by the court of appeals.'" Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd., 2014 UT 13, ¶ 17, 325 P.3d 70 (citation omitted). And when, as here, "there are cross-motions for summary judgment, we view the facts in the light most favorable to the losing party." Keith v. Mountain Resorts Dev., L.L.C., 2014 UT 32, ¶ 16 n.10, 337 P.3d 213 (citation omitted).


         ¶15 We first examine whether the release is enforceable. It is not. Absent a relevant, contrary expression of intent from the legislature, we adhere to our pronouncement in Hawkins ex rel. Hawkins v. Peart that a parent cannot release his or her minor child's prospective claims for negligence. 2001 UT 94, 37 P.3d 1062, superseded by statute as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984.

         ¶16 Second, we turn to interpreting the Act, relying on our time-honored tools of stare decisis and statutory interpretation. For purposes of our opinion today, we begin with our precedential tools. We do so because in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), this court has already done much of the important work of interpreting the Act. And we find its reasoning both reasonable and persuasive, especially in light of the ambiguity in the Act's construction and the historical context in which it was enacted. With this in mind, and in accord with our case law, we see no reason to abandon the Clover court's core interpretation of the Act.

         ¶17 We do, however, take this opportunity to clarify the test announced in Clover in a way that implements the core holding of Clover by simplifying Clover's two-prong subjective-objective inquiry into a one-step objective inquiry. We believe this clarification respects both the core holding of Clover and the language of the Act. Accordingly, we remand this case to the district court for a ruling consistent with this opinion.


         ¶18 The release signed by Levi's father violates public policy and is not enforceable. "Preinjury releases from liability for one's negligence pit two bedrock legal concepts against one another: the right to order one's relationship with another by contract and the obligation to answer in damages when one injures another by breaching a duty of care." Rothstein v. Snowbird Corp., 2007 UT 96, ¶ 6, 175 P.3d 560. With this tension in mind, we have stated that preinjury releases are enforceable unless the party challenging the release establishes an exception to that rule. Pearce v. Utah Athletic Found., 2008 UT 13, ¶ 14, 179 P.3d 760 ("[P]eople may contract away their rights to recover in tort for damages caused by the ordinary negligence of others.") abrogated on other grounds by Penunuri v. Sundance Partners, Ltd., 2017 UT 54, 423 P.3d 1150; Berry v. Greater Park City Co., 2007 UT 87, ¶ 12, 171 P.3d 442 ("[A] person should retain the power to contract away the right to recover damages for the negligence of another" but that right is "subject to many conditions and limitations."), abrogated on other grounds by Penunuri, 2017 UT 54.

         ¶19 Preinjury releases are generally governed by contract law. Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶ 5, 37 P.3d 1062 ("[P]arties may obtain contractual releases from liability for negligent action . . . where one party agrees to release the other from liability for future injuries."); Jacobsen Constr. Co. v. Structo Lite Eng'g, Inc., 619 P.2d 306, 310 (Utah 1980) (noting that "the field of contract law is more than adequate to deal with" preinjury releases). Nevertheless, preinjury releases remain subject to several exceptions. We have previously identified three such exceptions to preinjury release enforceability: "(1) releases that offend public policy . . . (2) releases for activities that fit within the public interest exception . . . and (3) releases that are unclear or ambiguous." Pearce, 2008 UT 13, ¶ 14 (citations omitted). And while some jurisdictions conflate the public interest and public policy exceptions, [6] we have expressly distinguished the two in the context of preinjury releases. See id.; see also Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 25, 301 P.3d 984.

         ¶20 Our public interest exception applies the six-factor test found in Tunkl v. Regents of University of California, 383 P.2d 441, 444-47 (Cal. 1963), which was adopted in Berry, 2007 UT 87, ¶ 15, and further analyzed in Pearce, 2008 UT 13, ¶¶ 16-21. In contrast, the public policy exception remains "a doctrine of vague and variable quality" based on "constitutional or statutory provisions or the common law." Penunuri, 2013 UT 22, ¶ 26 (citations omitted) (internal quotations marks omitted). This delineation between the two standards is necessary to maintain the "fluid nature" of the public policy defense, available in other contract claims, and to avoid the conflation of that defense with the six Tunkl factors. Cf. Wolf v. Ford, 644 A.2d 522, 527 (Md. 1994).[7]

         ¶21 In the context of releases signed by parents on behalf of minors, we have unambiguously held that preinjury releases for negligence violate public policy. See Hawkins, 2001 UT 94, ¶ 13. We based our conclusion on a number of observations, all of which remain equally forceful today. First, Talisker "has cited no source of law, and we are aware of none, granting parents in Utah a general[, ] unilateral right to compromise or release a child's existing causes of action without court approval or appointment to that effect." Id. ¶ 11. Quite to "the contrary, Utah law provides various checks on parental authority to ensure a child's interests are protected." Id. Indeed, "[u]nder the Uniform Probate Code, for example, when a minor has a cause of action, the minor or another person interested in the minor's welfare may petition for the appointment of a conservator." Id.; see also Utah Code § 75-5-404. "Significantly, a parent may act as a minor's conservator, not as a matter of right, but only when appointed by the court." Hawkins, 2001 UT 94, ¶ 11; see also Utah Code § 75-5-410(1). Furthermore, "we see little reason to base the validity of a parent's contractual release . . . on the timing of [the] injury. Indeed, the law generally treats preinjury releases . . . with greater suspicion than postinjury releases." Hawkins, 2001 UT 94, ¶ 13.[8]

         ¶22 Talisker raises but one argument in opposition. According to Talisker, by superseding Hawkins with respect to certain equine and livestock activities, the legislature has made clear that preinjury releases signed by parents on behalf of their children do not offend public policy. Talisker's logic does not follow, and this argument may hurt Talisker's case more than it helps. Indeed, it is difficult to logically conclude that the legislature's decision to allow for preinjury releases by parents for minors in one very narrow area translates to a general policy that all such preinjury releases are valid. The conclusion that the legislature meant to say that preinjury releases signed by parents for minors are valid only in the unique context of equine activities is equally likely. In short, the legislature's action sheds no light on its view of the public policy surrounding the larger question, and, absent any positive signal from the legislature, we are loath to forsake Hawkins and its reasoning.

         ¶23 Having concluded that the preinjury release Levi's father signed on Levi's behalf does not preclude the Rutherfords' claims, we turn to Talisker's argument that the Act stands as a bar to the Rutherfords' claims.


         ¶24 The district court denied Talisker's motion for summary judgment on the issue of negligence and premises liability based on this court's decision in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), holding that there remained an issue of disputed material fact regarding the Act's machine-made snow exemption that precluded summary judgment. The court of appeals affirmed the denial on the same grounds. See Rutherford ex rel. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App 190, ¶ 18, 333 P.3d 1266.

         ¶25 In a supplemental briefing order, we invited the parties to brief the court on whether the test set forth in Clover should be repudiated or modified in any way. We also invited the parties to brief the court on what role stare decisis should play in consideration of that question.

         ¶26 Having considered the parties' arguments and reviewed Clover at great length, we now hold that Clover should not be repudiated. Instead, we offer clarification on the implementation of Clover's holding. Principles of stare decisis compel this result.

         A. Stare Decisis Framework

         ¶27 "[W]e do not overrule our precedents lightly." State v. Guard, 2015 UT 96, ¶ 33, 371 P.3d 1 (citations omitted) (internal quotation marks omitted) The stability and legitimacy of our legal system requires us to undertake the review of precedents in a spirit of deference and humility See State v Walker, 2011 UT 53, ¶ 68, 267 P.3d 210 (Lee, J, concurring); see also Learned Hand, The Spirit of Liberty, in The Spirit of Liberty: Papers and Addresses of Learned Hand 189, 190 (Irving Dillard ed., 3d ed. 1960) ("The spirit of liberty is the spirit which is not too sure that it is right."). Concomitantly, "[t]hose asking us to overturn prior precedent have a substantial burden of persuasion." Met v. State, 2016 UT 51, ¶ 43, 388 P.3d 447 (quoting State v. Menzies, 889 P.2d 393, 398 (Utah 1994), superseded by constitutional amendment as stated in State v. Legg, 2018 UT 12, 417 P.3d 592) (internal quotation marks omitted). And as a result, "unless and until a party meets its burden of establishing that our prior case law is unworthy of stare decisis respect," Waite v. Labor Comm'n, 2017 UT 86, ¶ 88, 416 P.3d 635 (Pearce, J., concurring) (emphasis added), we do not overturn "weighty precedent[], "Eldridge v. Johndrow, 2015 UT 21, ¶ 22, 345 P.3d 553; see also Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 57, 416 P.3d 663 ("We . . . don't overrule our precedents unless they've proven to be unpersuasive and unworkable, create more harm than good, and haven't created reliance interests."). Indeed, "[t]o reverse course, we require as well what we have termed a 'special justification'-over and above the belief 'that the precedent was wrongly decided.' . . . What is more, stare decisis carries enhanced force when a decision . . . interprets a statute." Kimble v. Marvel Entm't, LLC, 135 S.Ct. 2401, 2409 (2015) (citation omitted).[9] To be clear, "an argument that we got something wrong-even a good argument to that effect-cannot by itself justify scrapping settled precedent. Or otherwise said, it is not alone sufficient that we would decide a case differently now than we did then." Id.

         ¶28 In evaluating the weight that we should afford our precedents, we look primarily to two factors. First, we examine "the persuasiveness of the authority and reasoning on which the precedent was originally based." Eldridge, 2015 UT 21, ¶ 22. In the context of statutory interpretation, "this means we consider whether the prior interpretation is '[]reasonable given the statutory framework in existence at that time.'" State v. Robertson, 2017 UT 27, ¶ 31, 438 P.3d 491 (alteration in original) (quoting A.C. Fin., Inc. v. Salt Lake Cty., 948 P.2d 771, 775 (Utah 1997)). Second, we determine "how firmly the precedent has become established in the law since it was handed down." Eldridge, 2015 UT 21, ¶ 22; see also Robertson, 2017 UT 27, ¶ 34 ("The second factor we consider in deciding whether to overrule a prior interpretation of a statute is 'the degree to which that interpretation has worked itself into the state of the law.'" (quoting A.C. Fin. Inc. v. Salt Lake Cty., 948 P.2d 771, 775 (Utah 1997))). In evaluating how firmly precedent has become established in the law, we look to a variety of factors including the age of the precedent, the public reliance on the precedent, the workability of the precedent, and the consistency of the precedent with other principles of law. See Eldridge, 2015 UT 21, ¶¶ 34-40; see also Robertson, 2017 UT 27, ¶¶ 34-38 (noting that we inquire whether "more good than harm will come by departing from precedent" and that this inquiry is informed by policy arguments and "practical factors" (citations omitted) (internal quotation marks omitted)). "Ultimately, we are concerned with whether overruling our precedent would upend broad swaths of the legal landscape." Robertson, 2017 UT 27, ¶ 34. We therefore hold Talisker to a heavy burden in this case.

         B. Stare Decisis Applied to Clover

         ¶29 In Clover, this court unanimously rejected the notion that the Act categorically bars recovery for injury caused by risks enumerated in the Act's exemplary list. 808 P.2d at 1047. Instead, Clover held that there is a secondary inquiry required to determine whether the injury-causing enumerated risk is truly an inherent risk-and therefore a risk for which the skier cannot bring a claim-under the Act. Id. at 1044-45. To implement this holding, Clover identified two categories of risks that it considered to be inherent risks within the meaning of the Act: (1) "risks . . . which skiers wish to confront as an essential characteristic of skiing" and (2) "hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort." Id. at 1047. In other words, courts must undertake a secondary inquiry-a "case-by-case" analysis informed by the two categories of inherent risks-to determine if the injury-causing risk is properly understood as an inherent risk of skiing within the meaning of the Act. Id. at 1045.

         ¶30 While perhaps the implementation of this holding could have been more clearly articulated, the essential holding of Clover- that a secondary inquiry is required to determine whether risks enumerated in the Act constitute inherent risks of skiing as the legislature intended inherent risks to be understood-commands deference under stare decisis given the persuasiveness of its reasoning and the extent to which it has firmly established itself in the law. Based on the required stare decisis analysis, we conclude that Talisker has been unable to meet the heavy burden necessary for us to overturn Clover. We now address each element of our stare decisis test.

         1. Persuasiveness

         ¶31 We find that the Clover court's construction of the Act is persuasive. The Clover court correctly apprehended that the legislature intended the exemplary risks to be understood in the context of the Act as a whole and against the backdrop of the sport of skiing, affording them a common sense meaning. Understood in this way, the exemplary risks present textbook examples of the inherent risks of skiing and are never "subject to elimination," as the dissent laments. Infra ¶ 114.

         ¶32 First, Clover's construction ensured that the modifier "integral part" was given effect while also avoiding the pitfall of turning the list of enumerated risks into a nullity. Second, its interpretation avoided a parade of absurd consequences and comported with the codified purpose of the Act.[10] Finally, Clover's interpretation respected the canon of constitutional avoidance. Clover recognized that, unless the Act was construed to allow suits arising from the negligence of ski area operators-i.e., from any risks that were not integral to the sport-the statute would effectively abolish the negligence cause of action against ski area operators. And this, in turn, could violate the Open Courts Clause of the Utah Constitution, which would require the court to strike down the Act.

         a. Clover's Statutory Construction Analysis

         ¶33 The Clover court began its statutory analysis with a plain language puzzle posed by the Act. On the one hand, the statute includes a non-exhaustive exemplary list of "inherent risks of skiing." Clover, 808 P.2d at 1044-45. But, on the other hand, the statute defines the "inherent risks of skiing" as those "dangers or conditions which are an integral part of the sport of skiing." Id. at 1044 (citation omitted).

         ¶34 The interpretive puzzle, then, is what to do with the ambiguity generated when one of the listed risks manifests itself in such a way that it plainly is not "an integral part of the sport of skiing." Talisker suggests that "integral part of the sport of skiing" is merely a synonym for "inherent." In Talisker's view, if a risk appears in the exemplary list, then the legislature has already determined that the risk is an integral part of the sport of skiing.[11]But this interpretation disrespects the structure of the statute. By Talisker's reasoning, the phrase "integral part of the sport of skiing" does no work; the statute could just as easily state that ski area operators are shielded from liability for any of the "inherent risks of skiing, including, but not limited to," the enumerated list of risks. In other words, the definition of "inherent risks of skiing" that Talisker prefers under the Act is the same as if the legislature had entirely omitted the phrase "integral part of the sport of skiing." This flouts the canon against surplusage. See Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 12, 284 P.3d 600 ("Wherever possible, we give effect to every word of a statute, avoiding '[a]ny interpretation which renders parts or words in a statute inoperative or superfluous.'" (alteration in original) (citation omitted)).

         ¶35 The Clover court concluded that the best way to give effect to all terms in the statute was to hold that "the dangers listed in [the definition of 'inherent risks of skiing'] are modified by the term 'integral part of the sport of skiing.'" 808 P.2d at 1044. And "[t]herefore, ski area operators are protected from suits to recover for injuries caused by one or more of the [enumerated risks] only to the extent that those [risks], under the facts of each case, are integral aspects of the sport of skiing." Id. Clover explained that this interpretation pays respect to the "ordinary and accepted meaning of the term 'inherent'" as used by the legislature by limiting inherent risks to "risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks." Id. at 1047. In the Clover court's estimation, then, the legislature intended the enumerated risks to constitute inherent risks-and therefore bar recovery for injuries resulting therefrom-only when those risks are encountered in such a way that the risk is an integral part of the sport of skiing. We believe that this is a completely reasonable interpretation of the Act.

         ¶36 The dissent argues that the list in section 402 is "rendered superfluous if enumerated risks are still subject to elimination if they are not deemed 'integral' to skiing." Infra ¶ 114. We disagree. The list still provides independent value even when subjected to the secondary inquiry under Clover.

         ¶37 The list is not rendered superfluous because section 404 requires ski area operators to post warning signs that list the inherent risks of skiing set forth in section 402. Utah Code § 78B-4-404. In this sense the list provides important, independent value in the context of the statute because it is directly related to the discharge of a ski area operator's duties under the Act. See infra ¶ 52 (explaining that ski area operators discharge their duty of reasonable care by posting signage that lists the enumerated inherent risks of skiing).[12]

         ¶38 Additionally, the list helps inform our understanding of what kind of non-enumerated risks are inherent risks of skiing through the canon of ejusdem generis. "In its simplest terms, ejusdem generis posits that general catchall terms appearing at the beginning or end of an exemplary statutory list are understood to be informed by the content of the terms of the list." GeoMetWatch Corp. v. Utah State Univ. Research Found., 2018 UT 50, ¶ 26, 428 P.3d 1064 (citation omitted) (internal quotation marks omitted). "Ejusdem generis presumes that in order to give meaning to a general term, the general term is understood as restricted to include things of the same kind, class, character, or nature as those specifically enumerated . . . ." Id. (citation omitted) (internal quotation marks omitted). The Act uses the general catchall term of "dangers or conditions which are an integral part of the sport of . . . skiing." Utah Code § 78B-4-402(1). If we were tasked with determining whether a danger or condition not covered by the exemplary list was an inherent risk of skiing, we would ask how the specifically enumerated risks can inform our understanding of the general "dangers or conditions which are an integral part of the sport of . . . skiing." One way in which the specifically enumerated risks would inform our understanding is to consider the character and nature of those risks. Here, the specifically enumerated risks are presented in the "character" or "nature" in which a skier would reasonably expect to encounter them while skiing. Instead of listing, say, "faulty lift towers" or "improperly constructed terrain parks," the Act simply lists "lift towers" and "terrain parks." Therefore, we would only consider a non-enumerated danger or condition to constitute an inherent risk if that danger or condition was of the same character or nature as the enumerated risks-that is, if the danger or condition was one that a skier would reasonably expect to encounter while skiing.[13]

         ¶39 And Clover's interpretation also makes sense in practice. As Clover succinctly puts it, refusing to modify the list of risks by reference to the phrase "integral part of the sport of skiing" would "result in a wide range of absurd consequences." 808 P.2d at 1044- 45. Under Talisker's proposed interpretation of section 402, a collision with a lift tower that the ski resort has intentionally camouflaged as to be practically invisible to skiers is an "inherent risk of skiing" because "impact with lift towers" is an enumerated risk. That cannot be right; such an interpretation defies our understanding of the "ordinary and accepted meaning of the term 'inherent'" as used by the legislature in the Act. Id. at 1047. But such results are inevitable under Talisker's interpretation.

         ¶40 Indeed, the universe of potential absurd scenarios is nearly limitless. For example, the Act includes "rocks" in the definition of inherent risks. Utah Code § 78B-4-402(1)(c). Given the location of ski resorts on mountains, skiers reasonably expect to encounter rocks while skiing. And if a skier's injury was caused by a rock in the state or condition in which a skier would expect to encounter a rock while skiing, then the Act would undoubtedly bar recovery for that injury. But what skiers would not reasonably expect to encounter-and what the Act could not reasonably bar recovery for-are, for example, rocks gathered in a pile in the middle of a blind spot on a beginner ski run waiting to be placed for landscaping.

         ¶41 Fortunately, it is a common sense and long-standing canon of construction in Utah that, as between competing interpretations of an ambiguity in a statute, the one that avoids such nonsensical outcomes is generally preferred. See Anderson v. Utah Cty., 368 P.2d 912, 913 n.3 (Utah 1962) ("[I]t is a general rule that where a statute is ambiguous in terms and fairly susceptible of two constructions, the unreasonableness or absurdity which may follow one construction or the other may properly be considered. Unreasonable, absurd, or ridiculous consequences should be avoided." (citation omitted) (internal quotation marks omitted)); see also Bagley v. Bagley, 2016 UT 48, ¶ 27, 387 P.3d 1000 ("[T]he absurd consequences canon . . . merely resolve[s] an ambiguity by choosing the reading that avoids absurd results." (third alteration in original) (citation omitted) (internal quotation marks omitted)); Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 46, 357 P.3d 992 (Durrant, C.J., writing for the majority on this issue) ("Our caselaw recognizes two different interpretive tools concerning absurdity. We have referred to the first as the absurd consequences canon and to the second as the absurdity doctrine. We apply the absurd consequences canon to resolve ambiguities in a statute.").[14]

         ¶42 The dissent takes what it seems to view as a different tack than Talisker, arguing that listed risks are only inherent risks to the extent that the injury-causing risk "falls within the ordinary meaning of the terms of the statute." Infra ¶ 186 n.50. But it is unclear exactly what the dissent means when it says it would conduct an ordinary meaning analysis.

         ¶43 For example, the pile of rocks intended for later landscaping placed in the middle of a beginner run is not a risk that a skier would expect to encounter when skiing. And it seems that the pile of rocks is certainly a "surface . . . condition[] such as . . . rocks" within the ordinary meaning of the term. Utah Code § 78B-4-402(1)(c). After all, it is a pile of rocks on the surface of a ski run.[15] The dissent should-but fails to-own that its interpretation inexorably leads to this absurd consequence and responds that, "at least arguably," this pile of rocks would not "qualify as a 'natural' 'surface or subsurface condition.'" Infra ¶ 131. But it is entirely unclear why this would be the case-and the dissent's qualification of its conclusion with "at least arguably" suggests that it does not know either.[16]

         b. Purpose of the Act

         ¶44 This court's analysis in Clover was based largely on "[t]he express purpose of the statute, codified in section [78B-4-401], [which] is 'to clarify the law in relation to skiing injuries and the risk[s] inherent in the sport.'" 808 P.2d at 1045. To clarify means to "make . . . easier to understand." Clarify, Webster's II New College Dictionary (3d ed. 2005). As we stated in Clover, the legislature's purpose in clarifying the law does not suggest an intent to "radically alter ski resort liability," rather it shows an intent to make the law of ski resort liability as it existed in 1979-when the legislature passed the Act-easier to understand. 808 P.2d at 1045. To determine the persuasiveness of Clover's holding, we must look at the law as it existed in 1979 when the Act came into effect.

         ¶45 To better understand the confluence of events that culminated in the Act's passage in 1979, it is helpful to have a basic understanding of the doctrine of assumption of risk. There are three distinct branches of assumption of risk: (1) primary express, (2) primary implied, and (3) secondary. Moore v. Burton Lumber & Hardware Co., 631 P.2d 865, 869-70 (Utah 1981). Primary express assumption of risk "involves a contract[] . . . in which a party expressly contracts not to sue for injury . . . which may thereafter be occasioned by the acts of another." Jacobsen Constr. Co. v. Structo-Lite Eng'g, Inc., 619 P.2d 306, 310 (Utah 1980). As we have held the preinjury liability release in this case to be unenforceable, see supra ¶¶ 18-23, this branch is not at issue here.

         ¶46 Primary implied, more often called primary assumption of risk, "involves a relationship in which [the] defendant simply owes no duty of care to the plaintiff." Moore, 631 P.2d at 870. Because no duty is owed, there can be no negligence. This branch of assumption of risk applies when a person is "injured as a consequence of being exposed to a risk which the [defendant] in the exercise of due care could not avoid." Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 71 (1943) (Frankfurter, J., concurring); see also Wendy A. Faber, Comment, Utah's Inherent Risks of Skiing Act: Avalanche from Capitol Hill, 1980 Utah L. Rev. 355, 358 ("Primary assumption of risk involves no fault because it refers to dangers that are 'inherent' in a given activity-dangers that cannot be alleviated by reasonable care.") [hereinafter Faber, Utah's Inherent Risks of Skiing Act]; Kent Feuerhelm et al., From Wright to Sunday and Beyond: Is the Law Keeping Up With the Skiers?, 1985 Utah L. Rev. 885, 886 ("Primary assumption of risk bars a plaintiff from recovering for injuries caused by dangers inherent in the activity. Because the dangers are inherent, the theory assumes that no reasonable amount of care can alleviate the risk, thus no fault is involved."). Primary assumption of risk is perhaps best understood to negate the further existence of any duty on the behalf of the defendant once the defendant has discharged its initial duty of reasonable care. That is, once a ski area operator has taken reasonable care to protect its patrons, it cannot be held liable for any injuries resulting from those inherent risks that persist despite the exercise of reasonable care.

         ¶47 Secondary assumption of risk applies when a person "unreasonabl[y] encounter[s] . . . a known and appreciated risk." Moore, 631 P.2d at 870. This branch is treated, for all intents and purposes, as a "phase of contributory negligence." Jacobsen Constr., 619 P.2d at 310. Whereas the primary assumption of risk doctrine provides that there is no duty, thereby barring a claim for negligence, secondary assumption of risk is an affirmative defense to a substantiated claim of negligence. Id. Under this branch, if a plaintiff proves that the defendant is negligent, the defendant may still avoid liability by establishing secondary assumption of risk. In fact, prior to 1973, secondary assumption of risk served as a "complete bar to recovery" for plaintiffs. Id. at 309.

         ¶48 In 1973, the Utah Legislature adopted the Utah Comparative Negligence Act, 1973 Utah Laws 710-11, "to avoid the harshness visited upon plaintiffs as a result of the all-or-nothing nature of the former rule of law," Jacobsen Constr., 619 P.2d at 309. Specifically, the Comparative Negligence Act stated that "[c]ontributory negligence shall not bar recovery in an action . . . to recover damages for negligence . . . if such negligence was not as great as the negligence . . . of the person against whom recovery is sought." 1973 Utah Laws 710-11. Additionally, the Comparative Negligence Act provided that, for purposes of the act, "'contributory negligence' includes 'assumption of risk.'" Id. at 711. Assumption of risk as used in this context represented the secondary form of assumption of risk. Moore, 631 P.2d at 870; see also Jacobsen Constr., 619 P.2d at 312 ("We thus hold that under our comparative negligence statute 'assumption of the risk' . . . is to be treated . . . in its secondary sense . . . .").[17]

         ¶49 Additionally, by 1979, there was broad national consensus that the common law defense of assumption of risk was being eroded by case law, especially with respect to ski area operators. See Sunday v. Stratton Corp., 390 A.2d 398, 401-03 (Vt. 1978) (holding that a snow-covered bush is not an assumed risk of skiing); Michael J. Farrow, Comment, Ski Operators and Skiers-Responsibility and Liability, 14 New Eng. L. Rev. 260, 268-70 (1978-79) (discussing the ski industry's reaction to the Sunday decision). Thus, when the legislature passed the Act to "clarify the law," by providing that skiers "assume[] the risks inherent in the sport of skiing," it seems clear that the legislature intended to restore and maintain the law of ski resort liability as it existed prior to the perceived erosion of the defense of assumption of risk. Utah Code § 78B-4-401. This is supported by the fact that the confusion in the law that the legislature intended to clarify was only the "confusion as to whether a skier assumes the risks inherent in the sport of skiing." Id. (emphasis added).

         ¶50 In Clover, we cited Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786 (D. Vt. 1951), for the proposition that "when the [Act] was enacted the majority of jurisdictions employed the doctrine of primary assumption of risk" to ski area operator liability. 808 P.2d at 1045; see also Faber, Utah's Inherent Risks of Skiing Act at 359 ("[P]rimary assumption of the risk . . . traditionally governed ski injury litigation."). Relying on the doctrine of primary assumption of risk, we concluded that the legislature was attempting to define and clarify the duty of ski area operators under this existing doctrine. Clover, 808 P.2d at 1045-46. This appears to be correct.

         ¶51 Talisker argues that the legislature actually intended to redefine the duty of ski area operators in the Act, and that ski area operators therefore owe no duty to skiers for any of the risks listed in section 402 as "inherent risks of skiing." However, such an interpretation would amount to a radical alteration of tort law, which is something the legislature did not intend. Rather, as we noted in Clover, the legislature's purpose according to section 401 was to clarify that ski area operators may still raise a defense of primary assumption of risk against a skier's claim for liability.[18] Under this doctrine, ski area operators owe a duty to exercise reasonable care, but a skier assumes the inherent risks of skiing to the extent that those risks persist after the ski area operator's exercise of reasonable care. See Wright, 96 F.Supp. at 790-91; see also supra ¶ 46.

         ¶52 The legal principle that the legislature was trying to reassert, then, is that ski area operators have the duty to exercise reasonable care with respect to the inherent risks of skiing, but skiers assume those risks to the extent those risks persist after a ski area operator's exercise of reasonable care. And in doing so, the legislature provided the standard of reasonable care required of ski area operators with respect to the inherent risks of skiing. Specifically, section 78B-4-404 provides that "[s]ki area operators shall post trail boards at one or more prominent locations within each ski area which shall include a list of the inherent risks of skiing . . . as defined in [the Act]." Therefore, once a ski area operator posts trail boards warning skiers of the inherent risks of skiing, it has discharged its duty of reasonable care-and therefore owes no further duty-with respect to the inherent risks of skiing, and skiers assume the risk of any injury caused by those risks to the extent that they are inherent risks within the meaning of the Act.[19]This understanding of the Act comports with the self-described purpose of the Act to "clarify the law" by providing ski area operators with a means to assert the defense of primary assumption of risk while also maintaining a cause of action for skiers injured by risks that they do not assume, such as those risks created by ski area operator negligence.

         ¶53 This interpretation is further bolstered by the fact that the word "negligence" is mentioned nowhere in the Act. Unlike the dissent, we find it nigh impossible to believe that the legislature intended to completely abolish the negligence cause of action with respect to enumerated risks when the Act itself says nothing about negligence. It is one thing to say that the legislature could have spoken more clearly, it is entirely another to apply that concept when the act in question neglects to mention its alleged core purpose. Legislatures, after all, "do[] not . . . hide elephants in mouseholes." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001). And abolishing negligence claims is one heck of a big elephant.[20]

         ¶54 Based on this discussion of the purpose of the Act, we hold that the core holding of Clover continues to be persuasive in that the Act does not demonstrate a legislative intent to categorically bar recovery for injuries caused by risks enumerated in section 402. Rather, the Act intended to reassert the availability of the defense of primary assumption of risk for ski area operators-even in cases involving one of the enumerated risks.

         c. Constitutional Avoidance

         ¶55 The Clover court also recognized that construing the Act to bar claims arising from the negligence of ski area operators (i.e., from risks that were not integral to the sport) could violate the Open Courts Clause of the Utah Constitution. See 808 P.2d at 1044 n.38 ("Because we interpret [the Act] as not prohibiting legitimate negligence claims, we do not reach Clover's argument that the statute violates . . . [the Open Courts Clause] of the Utah Constitution . . . .").

         ¶56 The Open Courts Clause "declares that an individual shall have a right to a 'remedy by due course of law' for injury to 'person, property, or reputation.'" Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 674 (Utah 1985) (quoting Utah Const. art. 1, § 11). We have acknowledged that we have "an obligation of deference to legislative judgments in a Berry review." Judd v. Drezga, 2004 UT 91, ¶ 11, 103 P.3d 135. And while the Open Courts Clause does not prohibit the legislature from "creat[ing]," "defin[ing]," and "moderniz[ing]" the law, it nonetheless "acts as a substantive check on legislative power." Waite v. Utah Labor Comm'n, 2017 UT 86, ¶ 18, 416 P.3d 635 (citation omitted) (internal quotation marks omitted). In Berry, this court announced a three-part test to determine whether legislation violates the Open Courts Clause.

         ¶57 First, we look to see "whether the legislature has abrogated a cause of action." Waite, 2017 UT 86, ¶ 19. If the legislature has abrogated a cause of action, "we then determine whether 'the law provides an injured person an effective and reasonable alternative remedy.'" Id. (quoting Berry, 717 P.2d at 680). And finally, if there is no alternative remedy, we look to see "if there is a clear social or economic evil to be eliminated and [if] the elimination of an existing legal remedy is not an arbitrary or unreasonable means for [eliminating such evil]." Id. (quoting Berry, 717 P.2d at 680) (internal quotation marks omitted). If no "clear social or economic evil" is being eliminated, then the legislative act runs afoul of the Open Courts Clause.

         ¶58 It is easy to see why the Clover court considered constitutional avoidance in reaching its decision. If the Act was interpreted to prohibit all negligence claims arising from injuries caused by one of the Act's enumerated risks, then it is possible that the Act could pose a serious Open Courts issue. In reading the ambiguity in the statute to mean that every claim requires a case-by-case analysis, the Clover court avoided deciding this thorny constitutional question.[21] And because Talisker has not carried its burden in persuading us that Clover was not well reasoned, we need not rule on this issue either.

         d. Treatment of Clover in Other Jurisdictions

         ¶59 Other jurisdictions have also found Clover persuasive in analyzing their own inherent risk statutes. For example, Kopeikin v. Moonlight Basin Management, LLC found Clover and its successor, White v. Deseelhorst, 879 P.2d 1371 (Utah 1994), "particularly helpful" in analyzing whether Montana's statutory scheme-which was "similar" to Utah's-allowed a suit for negligent design or maintenance of a cat track. 981 F.Supp.2d 936, 939, 943 (D. Mont. 2013). After summarizing the core holding of Clover, Kopeikin drew on Clover to conclude that "[Montana's Inherent Risks of Skiing Act] should be read in a manner that avoids constitutional violations and gives meaning to all of its provisions," and that doing so would help avoid "absurd results." Id. at 945-46. Specifically, Kopeikin held that "Montana's statutory definition of 'inherent dangers and risks of skiing' must be read in conjunction with the ski area operator's statutory duty of reasonable care" because "[a] mechanical application of the statute focused solely on the object with which the plaintiff collided would produce results that are 'entirely arbitrary' . . . ." Id. at 945 (quoting Clover, 808 P.2d at 1045). In this sense, Kopeikin fully endorses Clover's holding that a secondary inquiry is required to determine whether a listed risk is truly an inherent risk, even in the face of a statute that simply provided "'[i]nherent dangers and risks of skiing' means those dangers or conditions that are part of the sport of skiing, including: [listed risks]." Id. at 939 (citing Mont. Code Ann. § 23-2-702(2)).

         ¶60 Additionally, the New Hampshire Supreme Court relied on Clover in upholding New Hampshire's Inherent Risks of Skiing statute against a challenge alleging that it violated a provision of the New Hampshire Constitution that guarantees all litigants a remedy. Nutbrown v. Mount Cranmore, Inc., 671 A.2d 548, 550-52 (N.H. 1996). In so doing, it found Clover's parallel analysis of Utah's Inherent Risks of Skiing Act persuasive-concluding that the New Hampshire statute "embodie[d] the doctrine of primary assumption of risk" and limited recovery only for injuries caused by "dangers inherent in the sport" of skiing. Id. at 551.[22]

         2. Firmly Established

         ¶61 The question then turns to whether Clover is "firmly established" in Utah law-including the extent to which it has created reliance interests and whether it has proven workable in practice. See Eldridge, 2015 UT 21, ¶ 22. We believe that it is.

         ¶62 Our conclusion is informed by a number of considerations. Clover is entitled to deference under stare decisis because the legislature is free to change its conclusion at any time by amending the Act. And in the years since Clover was decided, the legislature has not amended the Act to overrule the holding of Clover. In declining to do so, Clover has become firmly established in Utah law. Furthermore, under the prior construction canon, by amending and re-enacting the Act without negating Clover's core holding, Clover has been carried forward by the legislature as an authoritative interpretation of the Act. As a consequence, Talisker has not demonstrated that this history has not created a public reliance on Clover. And finally, Talisker has not carried its burden in convincing us that Clover has proven to be unworkable in practice.

         a. Legislative Treatment of Clover

         ¶63 Clover was decided in 1991 and in our 1994 opinion, White v. Deseelhorst, we directly invited the legislature to tell us if we incorrectly interpreted the Act in Clover. 879 P.2d 1371, 1377 (Utah 1994), abrogated on other grounds by Penunuri v. Sundance Partners, LTD, 2017 UT 54, 423 P.3d 1150, (Zimmerman, C.J., concurring) ("If the legislature disagrees with Clover's construction of the inherent risks of skiing statute, it can change it, but we should leave the matter where it lies."). Despite ample opportunity and an express invitation, it has not done so.

         ¶64 Our legislature has had at least two opportunities to overrule the core holding of Clover. In 1993, and again in 2006, the legislature made changes to the definitions section of the Act-the very same section on which Clover's analysis turns. In 2006, for example, the definition of skiing was expanded "to include participation in, or practicing or training for, competitions or special events." Rutherford ex rel. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App 190, ¶ 35, 333 P.3d 1266 (quoting 2009 Utah Laws 549, 549) (internal quotation marks omitted).

         ¶65 As the court of appeals recognized, Senator Lyle Hillyard, the 2006 amendment's sponsor, specifically stated that the 2006 amendment was not intended "to exempt the negligence of the ski resort" from the liability Clover had imposed. Id. ¶ 35 n.13 (quoting Recording of Utah Senate Floor Debates, 56th Leg., Gen. Sess. (Feb 13, 2006) (statement of Sen. Lyle Hillyard)). And "where a legislature amends a portion of a statute but leaves other portions unamended, or re-enacts them without change, the legislature is presumed to have been satisfied with prior judicial constructions of the unchanged portions of the statute and to have adopted them as consistent with its own intent." Christensen v. Indus. Comm'n, 642 P.2d 755, 756 (Utah 1982); see also Scalia & Garner, Reading Law at 322 (noting that when a phrase has been "authoritatively interpreted" by a jurisdiction's highest court, "a later version of that act perpetuating the wording [of that phrase] is presumed to carry forward that interpretation").[23]

         ¶66 We are loath to embrace legislative history as an interpretive tool for statutory interpretation without first exhausting other interpretive tools. But it is relevant for purposes of applying our stare decisis principles-principles that, in the statutory context, emphasize the legislature's ability to reverse a court's decision and the importance of crafting statutory stare decisis principles in such a way that we promote, when possible, interbranch dialog. The fact that the legislature has specifically taken up the Act, not once, but twice, and expressly declined to amend it so as to do away with Clover's holding, is a good reason to continue to accord Clover weighty stare decisis.[24]

         b. Reliance

         ¶67 In light of Clover's age, the legislature's choice to leave Clover untouched since it was decided, and the unmistakable importance of the ski industry to Utah's economy, it is easy to see how Clover has resulted in widespread public reliance.

         ¶68 For example, there can be no doubt that ski resorts have invested in infrastructure and personnel to abate potential negligence actions under Clover, with some resorts investing more and some less, each with an eye toward getting a competitive advantage. There can be no doubt that contracts are in place to supply, maintain, and replace this infrastructure and that some of the personnel forewent other employment opportunities in favor of working at the resort. Nor can there be any doubt that insurers and resort owners have negotiated policies and premiums against the backdrop of Clover. And consider the potential commercial advantage that Utah ski resorts may have obtained over other ski resorts by virtue of Clover's construction of the Act-which may afford more opportunities for relief to injured skiers in Utah and hence, at the margins, more incentive to ski in the state. We respectfully suggest that it is naïve to think that Clover has not generated significant reliance interests in an industry as large and complicated as Utah's ski industry. And again, Talisker certainly has not met its burden of dispelling this notion.[25]

         c. Workability

         ¶69 Additionally, Talisker has not met its burden of producing evidence to suggest that Clover is unworkable.

         ¶70 For one, Clover's workability is evidenced by the fact that, despite being nearly thirty years old, it has not generated substantial appellate litigation. This suggests that district courts are able to understand and apply Clover in ski area operator liability cases. Of course, other explanations are also possible. But it is Talisker's burden to show us that Clover is poorly understood. To carry this burden of persuasion, Talisker must adduce evidence of confusion and lack of reliance among litigants and in the lower courts. It has not done so.

         ¶71 Importantly, the ski industry appears to have done nothing to "correct" Clover in the legislature. Indeed, when asked at oral argument, both Talisker and amicus Ski Utah stated that they were unaware of any efforts made to lobby the legislature to alter Clover's core holding. Certainly, if the standard were as unworkable as Talisker and amici suggest, Utah's ski industry would have, at some point in the last twenty-eight years, introduced some evidence in the record demonstrating the industry's confusion and consternation. It did not.

         ¶72 Furthermore, other jurisdictions have drawn on Clover's analysis in evaluating their own liability statutes. For example, the Supreme Court of North Dakota has adopted Clover's core holding. North Dakota's version of the Act provided that "[e]ach skier expressly assumes the risk . . . for any injury . . . caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, or other forms of forest growth or debris." Bouchard v. Johnson, 555 N.W.2d 81, 83 (N.D. 1996) (citation omitted) (internal quotation marks omitted). In declining to interpret the statute to "act as a complete bar to any recovery," the court stated that "the better view is contained in the Utah Supreme Court's decision in Clover." Id. at 83-84. It accordingly held that "[t]here should be no liability for a ski area operator if the design of the ski run creates natural conditions, necessary to the enjoyment of the sport." Id. at 85. But "[c]onversely, if the design problem was created by the operator's negligence and was not an inherent risk associated with the sport, liability for the operator should exist." Id.

         ¶73 The dissent claims that "[t]he 'proper standard' endorsed by Bouchard is not the Clover framework." Infra ¶ 156. It asserts that Bouchard is different because the North Dakota statute "begins with an extensive list of 'duties' that '[e]very ski operator shall have" and then notes that because skiing is hazardous despite all feasible safety measures, "'[e]ach skier expressly assumes the risk of' injuries resulting from enumerated inherent risks of skiing." Infra ¶ 157 (alterations in original) (quoting Bouchard, 555 N.W.2d at 83). But Bouchard does exactly what Clover does: it interprets the statutorily enumerated inherent risks of skiing-those that a skier assumes and cannot be a basis for legal recovery-to only include those risks when they "do[] not present a danger beyond what might be anticipated for the skier who assumes the risk inherent in skiing." Bouchard, 555 N.W.2d at 85. Right after setting out the standard that the dissent claims is "not the Clover framework," the Bouchard court goes on to give an example that squarely fits within Clover:

[I]f a tree exists as part of the ski run design and does not present a danger beyond what might be anticipated for the skier who assumes the risk inherent in skiing, there should be no liability for injuries caused by the tree. The risk of a collision with a tree of this nature is an inherent risk. However, notwithstanding the express reference to trees in [the North Dakota statute], if a tree or tree stump creates a risk which cannot be said to be inherent in the sport design, the operator should be liable for any injuries caused by this danger.

Bouchard, 555 N.W.2d at 85-86 (emphasis added). It is clear that the North Dakota Supreme Court found no issues with the implementation of a secondary inquiry-one very similar to the secondary inquiry in Clover-to determine whether listed risks are truly inherent risks in the context of the statute.

         ¶74 Given the evidence of legislative approval, public reliance, and general workability, [26] Talisker has not carried its heavy burden to persuade us to overturn this precedent and nothing today ...

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