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Donovan v. Sutton

Court of Appeals of Utah

October 3, 2019

Stephanie Donovan, Appellant,
v.
Dwight Sutton, Julie Sutton, and S.S., Appellees.

          Third District Court, Silver Summit Department The Honorable Kent R. Holmberg The Honorable Kara L. Pettit No. 160500459

          Michael A. Katz, Judson Dee Burton, and W. Alexander Evans, Attorneys for Appellant.

          Gary T. Wight and Smith Monson, Attorneys for Appellees.

          Judge Jill M. Pohlman authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.

          OPINION

          POHLMAN, Judge.

         ¶1 Skiers are known to say that "if you're not falling, you're not learning." In this case, nine-year-old S.S., while learning to ski, fell and crashed into Stephanie Donovan. Donovan sued S.S. and her parents, Dwight and Julie Sutton (collectively, the Suttons) for Donovan's alleged injuries. The district court granted summary judgment in favor of the Suttons, and Donovan appeals. We affirm.

         BACKGROUND[1]

         ¶2 One afternoon, S.S. was learning to ski on a beginner run (aptly named "First Time") at a Utah ski resort. S.S. had taken two days of lessons one year earlier, and because S.S. was still a novice, Dwight[2] skied with S.S. on the beginner run, staying close downhill and facing her. Julie skied ahead with S.S.'s sister.

         ¶3 Meanwhile, Donovan, an experienced skier, stopped on the same slope to take a picture. As she faced downhill and was putting her camera away, Donovan heard, "Look out!" Donovan did not have time to move, and S.S. hit her from behind. Donovan alleged that she sustained injuries as a result.

         ¶4 S.S. had been skiing downhill in a wedge, going about five miles per hour. But moments before the collision, S.S. started to lose her wedge, passed by Dwight, and began to lose control about ten feet away from Donovan. S.S. leaned back, hit Donovan, and landed on top of her.

         ¶5 At the time of the collision, the snow was packed powder. It did not appear that the weather and snow conditions played a role in what transpired.

         ¶6 Donovan filed suit against the Suttons, asserting two causes of action. Donovan's first cause of action alleged that S.S. was negligent and sought to hold Dwight and Julie vicariously liable for S.S.'s negligence. Donovan's second cause of action alleged that Dwight and Julie were negligent in their supervision of S.S.

         ¶7 The Suttons moved for summary judgment, arguing that Donovan could not establish her negligence claim as a matter of law. They argued that under Ricci v. Schoultz, 963 P.2d 784 (Utah Ct. App. 1998), "a skier owes 'a duty to other skiers to ski reasonably and within control'" and that "'an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty.'" (Quoting id. at 786.) They asserted that "[S.S.] could have taken no other actions to ski more cautiously" and that "[t]he solitary fact that [S.S.] lost control, as a beginner skier is prone to do, is not enough" to show negligence. They further argued that because no evidence indicated that S.S. was negligent or that S.S. was acting as her parents' agent, Dwight and Julie could not be held vicariously liable. They also asserted that Donovan's negligent supervision claim failed as a matter of law because the "undisputed facts show[ed] that Dwight and Julie's supervision of [S.S.] was reasonable and did not make it possible or probable that [she] would injure [Donovan]."

         ¶8 Donovan opposed the motion. She argued that S.S. breached her duty by skiing "out of control" and by "ignor[ing] instructions given by her father as to how to stop or slow down on the ski hill." She also argued that S.S. failed to yield the right of way to downhill skiers in contravention of a local ordinance and other codes of conduct. She thus asserted that the question of S.S.'s negligence was one for the jury to decide and should not be resolved as a matter of law. Donovan also conceded that Utah law would not hold Dwight and Julie vicariously liable for S.S.'s negligence. But she asserted that Dwight and Julie were nevertheless personally negligent in their supervision, training, and instruction of S.S. More specifically, Donovan claimed that they were "aware" that S.S. "was not only inexperienced but fearful of skiing," they "should have known their child was getting tired and skiing in a sloppy fashion," Dwight's "attempts to instruct [S.S.] were feeble," and Dwight should have intervened to thwart the collision or at least warned Donovan that a crash was imminent. Donovan thus asserted that her negligent supervision claim also presented a question for the jury.

         ¶9 The district court granted summary judgment in favor of the Suttons. In addressing Donovan's negligence claim, the court first determined that S.S. is "not held to the same standard as an adult" under Utah law and that "the amount of care she's held to is that ordinarily used by a child of similar age, knowledge, [and] experience in similar circumstances."[3] The court next determined that, under Ricci, "skiers who lose control even though exercising due care" do not breach the standard of care and that "a fall on the slope alone does not constitute a breach." In other words, "an inadvertent fall on the slope, which is losing control, . . . doesn't equate to failing to use reasonable care." In contrast, to show a breach, "[t]here has to be additional evidence [apart from a fall itself] to support . . . a finding of negligence," such as "going too fast for the conditions" or "not watching where [the skier is] going." Indeed, the plaintiff "must have evidence of [the defendant's] failure to use reasonable care before the sudden, unexpected fall."

         ¶10 Looking at the evidence submitted by the parties, the district court determined that "the only thing [it] showed . . . is that [S.S., ] as a nine-year-old beginner skier, was not able to maintain her wedge and . . . then fell" and that such conduct was "not a failure to use reasonable care" under Ricci. Because S.S. was "inadvertently . . . not able to maintain [her] wedge," which led her to accelerate, lean back, and ultimately collide with Donovan, the court concluded that the facts "do not state a claim for negligence . . . or failure to exercise reasonable care" by S.S. Thus, the court determined that no reasonable jury could conclude on the evidence that S.S. failed "to exercise reasonable care under the standard of a nine-year-old with her experience and her knowledge level." Additionally, based on Donovan's concession, the court concluded that Donovan had not stated a viable vicarious liability claim against Dwight and Julie.

         ¶11 Turning to Donovan's negligent supervision claim, the district court stated that the undisputed facts showed that S.S. "had a [ski] lesson the year before" and that Dwight had instructed her about "the wedge" and "the side ski" but that S.S. "only wanted to do the wedge because that made her go slower." The facts also showed that Dwight taught S.S. how to fall if she was losing control. No facts suggested that Dwight had time to grab S.S. before she struck Donovan. From this record, the court determined that "there's simply no evidence of failure to ...


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