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.
T. Wight and Smith Monson, Attorneys for Appellees.
Jill M. Pohlman authored this Opinion, in which Judges
Michele M. Christiansen Forster and Diana Hagen concurred.
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.
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 skied with S.S.
on the beginner run, staying close downhill and facing her.
Julie skied ahead with S.S.'s sister.
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
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.
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.
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.
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
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
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." 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."
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.
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 ...