Mead v. M.S.B., Inc.

No. 93-322

IN THE SUPREHE COURT OF THE STATE OF MONTANA

1994

ZACHARY P. MEAD,

Plaintiff and Appellant,

v.

M.s.B., INC., a Montana 1 2 1994

corporation, d/b/a SNOWBOWL,

L:! >:;l;fL

Defendant and Respondent. C L E F : &CF CG:-'::~ t . COURS

~

STATE OF :%lCtrTANA

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Peter W. Kirwan (argued), Kirwan & Barrett,

Bozeman, Montana

For Respondent:

Gig A. Tollefsen (argued), Berg, Lilly,

Andriolo & Tollefsen, Bozeman, Montana

For Amicus Montana Ski Areas Association:

Mike1 L. Moore (argued), Murphy, Robinson,

Heckathorn & Phillips, Kalispell, Montana

Submitted: February 1, 1994

Decided: April 1 2 , 1994

Filed:

clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

Plaintiff Zachary P. Mead filed his complaint in the District

Court for the Fourth Judicial District in Missoula County to

recover damages for injuries he sustained while skiing at the

Snowbowl ski area, which is owned by the defendant, M. S. B., Inc.

The District Court granted defendant's motion for summary judgment

and dismissed Mead's claim. We reverse the judgment of the

District Court.

The following issues are presented for appeal:

1. Are Snowbowl's duties limited to those listed in

5 23-2-733, MCA (1989), of the Montana Skier Responsibility Act?

2. Did the District Court err when it concluded as a matter

of law that Mead's injury resulted from "inherent risksH of skiing,

as set forth in 23-2-736, MCA (1989), of the Montana Skier

Responsibility Act?

3. Other than those "inherent risksn set forth in the

Montana Skier Responsibility Act, is assumption of risk, as opposed

to contributory negligence, a separate defense which can be

asserted by ski area operators to claims by injured skiers?

4. Did the District Court err when it found that Mead's

claim was barred by his contributory negligence?

FACTUAL BACKGROUND

On March 16, 1990, Zachary Mead was injured at the Snowbowl

ski area while skiing down a trail known as the Bowl Outrun.

The bottom of several West-Ridge ski runs funnel into the Bowl

Outrun trail, which then becomes the only means of return to

Snowbowl's base area. The Bowl Outrun is a long trail,

approximately 16 to 20 feet wide, cut into a steep mountainside.

While descending the Bowl Outrun Trail, Mead made turns by

skiing onto the right bank of the trail and sideslipping back to

the flat surface. There apparently were no markers designating the

boundaries of the trail, and ski tracks indicated that others had

used the banks of the trail in a similar fashion.

At some point on the trail, there is an abrupt right turn in

combination with shale rock outcroppings on the trail's bank.

Prior to the turn, the bank of the trail was exposed to the north

and covered by snow. Just beyond the turn, the bank of the trail

was exposed to the southeast and was either covered by less snow,

or was uncovered. As Mead came around the right hand curve on the

trail, he suddenly encountered the shale rock outcropping, which

struck his knee, knocked him out of his skis, and caused serious

injuries. Mead testified that earlier in the day he had observed

bare spots on the bottom side of moguls he had skied, but that he

had not skied the Outrun Trail previously that day, and that there

was nothing about the trail prior to the curve which alerted him to

the danger which caused his injury.

On November 14, 1991, Mead filed a complaint naming the owner

of Snowbowl as the defendant. In his complaint, he alleged that

while skiing at Snowbowl on March 16, 1990, he sustained serious

injuries to his right leg and knee due to defendant's negligent

design, construction, and maintenance of the skitrail on which he

was injured.

The ski area denied that it was negligent, and for affirmative

defenses asserted: (1) statutory assumption of risk; (2) secondary

assumption of risk; (3) waiver of defendant's negligence; and

(4) contributory negligence.

On January 14, 1993, defendant moved the District Court to

dismiss Mead's claim by summary judgment. That motion was granted

by the District Court on April 23, 1993. In its opinion, the

District Court concluded that "plaintiff's claim is the type of

claim that the Montana Skier's Responsibility Act was enacted to

prevent." However, the District Court failed to specify with

particularity the provisions in the Act which barred Mead's claim.

The District Court did apparently conclude that, based on Mead's

general knowledge that spring conditions existed at the ski area,

he should have been more alert for the hazard that caused his

injury. The District Court also apparently concluded as a matter

of law that the shale rock outcropping was a naturally occurring

condition which resulted from weather changes, and that as a matter

of law, defendant could not be found negligent for failing to

remove or mark the rocks that caused Mead's injury.

On appeal, Mead contends that whether or not the rock

outcropping which caused his injury was the kind of condition

designated as an "inherent riskN of skiing in the Montana Skier

Responsibility Act was a question of fact, and that whether

defendant and Mead were negligent, and if so, the degree of their

comparative negligence, also presents issues of fact which

precluded summary judgment.

Pursuant to our review of the District Court file, we note at

this point that extensive discovery was apparently accomplished.

Mead submitted at least three sets of discovery requests, including

written interrogatories, requests for admission, and requests for

production. Defendant, likewise, submitted written requests for

discovery; and it appears that responses to both parties' discovery

requests were served.

In addition, numerous depositions were scheduled, and

apparently taken, by both parties. These include the depositions

of Art Wear, the ski patrol member who investigated Mead's

accident, and Don Bachman, an expert on ski area construction and

design who was retained by Mead.

While the parties' briefs make frequent reference to the

deposition testimony of Mead, Bachman, Wear, and Ralph Lasache, as

well as to documents which were produced in response to requests

for production, none of those fruits of discovery, other than the

deposition of Mead, were filed in the District Court, nor have they

been filed with this Court. Neither were any affidavits, either in

support of or in opposition to defendant's motion for summary

judgment filed in the District Court. Therefore, the facts, as set

forth in this opinion, are necessarily limited to those which can

be gleaned from Mead's deposition.

In order to avoid confusion about the meaning of this opinion,

we note that the result would be the same, even if we assume that

the parties' representations in their briefs about the various

witnesses' testimony are correct. However, we wish to make it

clear that it is not permissible on appeal to this Court to quote

from discovery that has not been filed in the District Court and

sent to the Clerk of the Supreme Court.

Based on the record before us, defendant has presented no

evidence to controvert Mead's claim in his complaint that it was

negligent. However, defendant does argue that Mead's claim is

barred as a matter of law, and that the District Court's summary

judgment should be affirmed for several reasons. Defendant

contends that: (1) a ski area's only duties to its paying guests

are those which are set forth in 1 23-3-733, MCA (1989), and since

Mead's complaint did not allege a breach of any of those duties, he

has not set forth a viable claim as a matter of law; (2) Mead's

claim is barred by 1 23-2-736(4), MCA (1989), because it resulted

from conditions or activities which are designated as "risks

inherent in the sport of skiing;" and (3) even if Mead's claim is

not barred for either of the two previous reasons, the common law

defense of assumption of risk should be available to ski area

operators, and pursuant to that defense and the undisputed facts,

Mead's claim is barred as a matter of law.

STANDARD OF REVIEW

Our standard of review in appeals from summary

judgment is de novo . We review a summary judgment

utilizing the same criteria used by the District Court

initially under Rule 56, M.R.C~V.P. Minniev.CityofRoundup

(1993), 257 Mont. 429, 431, 849 P.2d 212, 214. We

determine whether there is an absence of genuine issues

of material fact and whether the moving party is entitled

to judgment as a matter of law. Minnie, 849 P.2d at 214.

Brinkman and Lenon v P & D Land E t r r s s (Mont. 1994), 867 P.2d 1112,

. nepie

1114, 51 St. Rep. 36, 37.

We also noted in Brinkman that:

It is clear that a party moving for summary judgment

bears the initial burden of establishing the absence of

any genuine issue of material fact and its entitlement to

judgment as a matter of law. ...

... Put another way, the nonmoving party has no

obligation to establish that genuine issues of fact exist

until the moving party has shown an absence of such

issues of fact; unless that initial burden is met by the

moving party, the nonmoving party may rest on its

pleading. Minnie, 849 P. 2d at 214.

Brinkman, 867 P.2d at 1115.

It is the exceptional negligence case that may be properly

disposed of by summary judgment. Brohman v. S a e (1988), 230 Mont

tt .

198, 202, 749 P.2d 67, 70. Negligence involves questions of fact,

and where a factual controversy exists, summary judgment is never

to be used as a substitute for trial. Kaiier v Town o Whitehall (1986),

. f

221 Mont. 322, 718 P.2d 1341. Only where reasonable minds cannot

differ may the court, as a matter of law, decide the cause of an

accident. Brohman, 749 P.2d at 70.

The Montana Ski Areas Association, which has appeared in this

case as amicus curiae, asks that we abandon our rule for summary

judgment and adopt the modern federal rule which, according to the

Association, would allow the Court to evaluate the evidence and

determine whether a ''reasonable jury" could find in favor of the

party opposing the motion. However, this rule would present a

substantial erosion of the constitutional right to trial by jury

and we decline to adopt it.

ISSUE 1

Are Snowbowl's duties limited to those listed in 5 23-2-733,

MCA (1989), of the Montana Skier Responsibility Act?

Mead alleged that defendant was negligent with regard to the

design, construction, and maintenance of the Bowl Outrun trail. He

further alleged that defendant was negligent for failing to fence

the bank or otherwise mark the bank to prevent skiers from skiing

into the rock outcropping.

In response to Mead's allegations of negligence, defendant

asserts that its duties are limited to those set forth in

5 23-2-733, MCA (1989), and that since Mead did not allege any

breach of these statutory duties, defendant is entitled to judgment

as a matter of law.

In support of its argument that ski area operators do not owe

duties to skiers, other than those listed in the Act, defendant

sets forth an extensive discussion of the history of common law

liability in the ski area industry and skier responsibility acts

adopted in various jurisdictions. However, our resolution of this

issue is controlled by the plain language of the Montana Skier

Responsibility Act and our own prior decision in Braver v. Ski-Lip, Inc.

(1988), 234 Mont. 109, 762 P.2d 226.

The Montana Skier Responsibility Act was originally enacted in

1979, and was found at IS 23-2-731 through -737, MCA (1979). In

its original form, it provided, at 1 23-2-736, MCA (1979), that:

A skier assumes the risk of all legal responsibility

for injury to himself or loss of property that results

from participating in the sport of skiing by virtue of

his participation.

In Brewer, the plaintiff was injured while skiing at the

Showdown ski area when he fell on a tree stump which was just

beneath the surface of the snow. He contended that the stump was

not in the location where he encountered it as a natural

occurrence, but had been placed there negligently by the ski area

operator. However, based upon the quoted language, the district

court concluded that even if the facts alleged by the plaintiff

were assumed to be true, the ski area was entitled to judgment as

a matter of law pursuant to the Skier Responsibility Act. In

analyzing whether the provisions of the Act violated the Equal

Protection Clauses of the Fourteenth Amendment to the United States

Constitution, and Article 11, Section 4, of the Montana

Constitution, we observed the following critical facts about the

Act :

In substance, the underscored portions provide that

a skier assumes the risk and all legal responsibility for

injury to himself that results from participating in

skiing; and that the responsibility for collisions with

an object is the responsibility of the skier and not the

responsibility of the ski area operator; and finally,

that notwithstanding the comparative negligence law of

Montana, a skier is barred from recovery from a ski area

operator for loss from any risk inherent in the sport of

skiing, thereby eliminating the theory of comparative

negligence. A fair reading of the underlined portions of

the above statutes prohibits the skier from obtaining

legal recourse against an operator even if the injury is

proximately caused by the negligent or even intentional

actions of the operator.

Brewer, 762 P.2d at 230.

Based on these observations, we concluded that protecting the

operators of ski areas from liability for their own negligence bore

no relationship to protecting them from liability from inherent

risks in the sport of skiing, and therefore, that the objectionable

parts of the Act violated the equal protection clauses of both the

Federal and State Constitutions. In so holding, we stated that:

Although the state has a legitimate interest in

protecting the economic vitality of the ski industry,

there is no rational relationship between this purpose

and requiring that skiers assume all risks for injuries

regardless of the cause and regardless of the presence of

negligence or intentional conduct on the part of the ski

area operator. As we read the above underscored portions

of Sections 23-2-736 and 23-2-737, MCA, we conclude that

these portions of the statutes are needlessly overbroad

and clearly go far beyond the stated purposes of the

statutes as set forth in Section 23-2-731, MCA. Applying

the test referred to in H o o p [v. BemaliUo County Assessor (1985),

472 US.612,105 S C.2862,86 L Ed 2d 4871, we conclude that the

.t .

underscored portions of these two statutes cannot pass

even a minimum rationality test. These provisions are

not related to inherent risks in the sport of skiing

which are essentially impossible to eliminate by the ski

area operator as stated in Section 23-2-731, MCA. We

conclude that these provisions fail to pass the minimum

rationality test for the following reasons: there is

nothing in the legislation to suggest a reason to require

that a skier assumes the risk and legal responsibility

for injury to himself and for collisions and that there

is no responsibility on the part of the ski area

operator. Such provisions eliminate any theory of

negligence on the part of the ski area operator. This

contradicts Section 27-1-701, MCA, under which a person

is responsible for an injury resulting from his want of

ordinary care.

Brewer, 762 P.2d at 230.

In response to the h w e r decision, the Legislature amended

several provisions of the Skier Responsibility Act in 1989. The

language in 5 23-2-731, MCA (1979), which set forth the purpose of

the Act, was amended to point out that skiing is a major industry

in Montana and that the State, therefore,

has a legitimate interest in maintaining the economic

viability of the ski industry by discouraging claims

based on damages resulting from risks inherent in the

sport, defining inherent risks, and establishing the

duties of skiers and ski area operators.

Section 23-2-731, MCA (1989).

Section 23-2-733, MCA (1979), was amended in 1989 to provide:

Consistent with the duty of reasonable care owed by a ski

area operator to a skier, a ski area operator shall:

(1) mark all trail grooming vehicles by furnishing

the vehicles with flashing or rotating lights that must

be in operation whenever the vehicles are working or are

in movement in the ski area;

(2) mark with a visible sign or other warning

implement the location of any hydrant or similar

equipment used in snowmaking operations and located on

ski trails;

(3) maintain one or more trail boards at prominent

locations at each ski area displaying that area's network

of ski trails and the relative degree of difficulty of

the ski trails at that area;

(4) post a notice requiring the use of ski-

retention devices;

(5) designate at the start of each day, by trail

board or otherwise, which trails are open or closed and

amend those designations as openings and closures occur

during the day;

(6) post in a conspicuous location the skier

responsibility code that is published by the national ski

areas association and that is current on [the effective

date of this Act]; and

(7) post a copy of 23-2-736 in a conspicuous

location.

Section 23-2-736, MCA (1979), was amended so that instead of

assuming responsibility for all injuries resulting from merely

participating in the sport of skiing, inherent risks which are

assumed by the skier are identified. Section 23-2-737, MCA, which

previously eliminated the application of comparative negligence to

ski injuries, was repealed.

It is the amended 5 23-2-733, MCA (1989), which defendant

contends establishes its exclusive duties to Mead. However, we

cannot construe the statute in that fashion for two reasons.

First, this Court's role in statutory construction is simply

to (Iascertain and declare what is in terms or in substance

contained therein, not to insert what has been omitted .... II

Section 1-2-101, MCA. In neither the original enactment of

S 23-2-733, MCA (1979), nor in the 1989 amendment of that statute,

did the Legislature provide that a ski area operator's only duties

were those provided in that section and that there was no duty of

due care owed by operators to skiers. That duty is, however,

imposed by 5 27-1-701, MCA. In fact, the 1989 amendment appears to

reinforce that duty when it states that the statutorily enumerated

duties must be (Iconsistentwith the duty of reasonable care owed by

a ski area operator to a skier .... (I

Second, an interpretation of a statute which gives it effect

is preferred to one which renders it void. Section 1-3-232, MCA.

Were we to accept the interpretation of S 23-2-733, MCA (1989),

which is suggested by defendant, it would be immune from liability

for its negligent or intentional acts if not itemized in that

section. The Skier Responsibility Act would then suffer from the

same constitutional infirmity which we addressed and have

previously discussed in Brewer. We presume that the Legislature

amended the Skier Responsibility Act with those constitutional

considerations in mind, and will not construe the statute in a

manner that would render it unconstitutional.

For these reasons, we conclude that defendant's duties to

plaintiff were not limited to those listed in 23-2-733, MCA

(1989), of the Montana Skier Responsibility Act.

ISSUE 2

Did the District Court err when it concluded as a matter of

law that Mead's injury resulted from "inherent risksw of skiing, as

set forth in S 23-2-736, MCA (1989), of the Montana Skier

Responsibility Act?

Section 23-2-736, MCA (1989), sets forth a skier's duties and

identifies those inherent risks in the sport of skiing from which

a ski area operator is relieved from liability. That part of the

statute which defendant contends entitles it to judgment as a

matter of law provides as follows:

(4) A skier must accept all legal responsibility

for injury or damage of any kind to the extent that the

injury or damage results from risks inherent in the sport

of skiing. Risks inherent in the sport of skiing are:

(a) variations in skiingterrain, including surface

and subsurface snow or ice conditions naturally occurring

or resulting from weather changes, skier use, or grooming

or snowmaking operations;

(b) bare spots and thin snow cover caused by

limited snowfall, melting, wind erosion, skier action,

grooming, or unconsolidated base;

. . a .

(d) skiing in an area not designated as a ski trail

While the District Court referred to all three of these

subsections in its memorandum in support of its order granting

summary judgment, it seems to have primarily relied on its

conclusion that the rock outcropping was a "naturally occurring

condition resulting from weather changes." However, while

subsection (a) refers to naturally occurring "snow or icen

conditions resulting fromweather changes, and while subsection (b)

refers to "bare spots" resulting from "limited snowfall" or

wmelting,tl neither subsection defines the exact condition

identified by the District Court as an "inherent risk." Therefore,

we will discuss each of the subsections relied on by defendant to

determine whether that subsection bars Mead's claim as a matter of

law.

According to Mead's testimony, he was not injured by a

variation in skiing terrain. In fact, his skis never did come into

contact with the rocky outcrop which apparently protruded from a

nearly vertical surface and struck him in the knee. Furthermore,

to conclude that the rocky structure which caused Mead's injury was

part of the nskiing terrainw is contrary to defendant's assertion

that at the time of his injury, Mead was no longer on designated

ski terrain, but had left the trail. Therefore, we conclude that

the condition to which Mead attributes his injury was not a

"variation in skiing terrain."

Whether the exposed rocks which caused Mead's injury were

I1bare spots caused by limited snowfall, melting, wind erosion, or

skier actionv1is more problematic. Mead describes skiing on the

banked part of a ski trail when he unexpectedly encountered a rocky

outcropping from a nearly vertical surface along the ski trail.

There is no indication in the record whether the rocky outcropping

would normally be covered with snow at that location, and if so,

whether the amount of snow which normally covered the surface would

have been sufficient to prevent the kind of injury that occurred in

this case. The resolution of those issues necessarily involves

questions of fact which have not been adequately developed in the

record before us, and which are disputed, even if we accept the

factual assertions of the parties made in their briefs. Therefore,

we conclude that an inherent risk pursuant to S 23-2-736(b), MCA

(1989), has not been established as a matter of law in this case.

Whether such a condition was the cause of Meadls injury presents a

question of fact which must be resolved by the trier of fact.

Neither has it been established by the uncontroverted facts

that Mead was skiing beyond the designated trail at the time of his

injury. As mentioned, the only evidence before us is Mead's

deposition. He testified that there were tracks from other skiers

in the area where he was injured, and noted that the same existed

on the photos shown to him by defendant at the time of his

deposition. No admission was made, nor solicited, at the time of

his deposition that he skied beyond the boundaries of the trail.

Even if we accept the representations that the parties made in

their appellate briefs, we conclude that, at most, an issue of fact

was raised regarding the applicability of this subsection to this

case.

Defendant represents that Arthur Wear, the ski patrol member

who investigated Mead's injury, testified that the point of Mead's

collision was several feet from the edge of the trail. However,

nowhere have we been advised that the edge of the trail was

designated so that skiers knew where it began and where it ended.

Merely asserting after the fact that a skier was several feet

beyond the trail when the statute refers to the ndesignatedn trail

does not satisfy the statute.

Mead, on the other hand, represents that Forest Service maps

show that he was on the trail at the time of his injury and that

the area where he was injured was commonly skied by others. We

conclude that whether or not the place where Mead's injury occurred

was designated by defendant as beyond the ski trail presents an

issue of fact to be decided by the finder of fact after

consideration of all the evidence.

ISSUES 3 AND 4

Other than those winherent risksn set forth in the Montana

Skier Responsibility Act, is assumption of risk, as opposed to

16

contributory negligence, a separate defense which can be asserted

by ski area operators to claims by injured skiers?

Did the District Court err when it found that Meadgs claim was

barred by his contributory negligence?

Finally, defendant contends that ski area operators should be

able to rely on the affirmative defense of what it describes as

"secondary assumption of risktNand that based on the facts in this

case, defendant is entitled to judgment as a matter of law based on

that defense. In support of its argument, defendant submits that

Mead was generally aware of spring-like weather conditions and

exposed surface areas in other parts of the ski area, had been

warned about rocks and variations in terrain on signs and on his

ticket, and therefore, actual notice of the specific condition

which caused his injury should be imputed to him.

We note, however, that assumption of risk is no longer

available as a separate affirmative defense in negligence claims,

and that in those cases where we do allow such a defense, knowledge

of the specific danger which causes the claimant's injury is

required. SeeAbemuthyv.EIineOilFieldSimkes, Inc. (1982), 200 Wont. 205,

209, 650 P.2d 772, 775.

Defendant acknowledges that in Abetnuthy, 650 P. 2d at 775-76,

we held that the doctrine of implied assumption of risk is no

longer applicable in Montana, and that instead, the conduct of the

parties should be compared based upon evidence of negligence and

contributory negligence, as established by reasonable and prudent

person standards. We adopted the following rationale from the

California Court in Liv. YeUow Cab Company o Calijhkz (1975), 13 Cal.

f

3d 804, 825, 119 Cal. Rptr. 858, 873, 532 P.2d 1226, 1241:

We think it clear that the adoption of a system of

comparative negligence should entail the merger of the

defense of assumption of the risk into the general scheme

of assessment of liability in proportion to fault in

those particular cases in which the form of assumption of

risk involved is no more than a variant of contributory

negligence.

However, defendant contends that we should carve out an

exception to Abenrathy for the ski industry as we did for product

.

manufacturers in Zah?tev Stunn Ruger and Company,Inc. ( 1983 ) , 203 ~ o n t

.

90, 661 P.2d 17. In that case we held that:

In summary, assumption of risk is an available

defense in a strict liability case. The defense must

establish that plaintiff voluntarily and unreasonably

exposed himself to a known danger. If the defense is

found to exist, then plaintiff's conduct must be compared

with that of the defendant.

The rationale for allowing the common law defense of

assumption of risk in strict liability cases is not present in

claims based on negligence, and therefore, we decline to apply the

same exception to negligence claims against ski area operators.

Specifically, we stated in Zahrte, 661 P.2d at 18, that lwwe felt

that a defense should be retained for strict liability actions and

that assumption of risk may be the appropriate defense." We felt

that way because contributory negligence was not an available

defense in strict liability actions. It is, however, an available

defense in negligence claims, and therefore, we find the reasoning

in Abentarhy more persuasive.

Analyzing Mead's conduct under the objective standards which

apply to contributory negligence, we conclude that the District

Court erred by dismissing Mead's claim as a matter of law. First

of all, we reiterate that:

Ordinarily, issues of negligence are questions of

fact not susceptible to summary adjudication. Bmhmanv.

SfUte (1988), 230 Mont. 198, 201, 749 P.2d 67, 69.

Liability should not be adjudicated upon a motion for

summary judgment where factual issues concerning

negligence and causation are presented. D u c k a u v. Silver

Bow Counly (1971), 158 Mont. 369, 377, 492, P.2d 926, 931.

DiUardv.Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018-19.

As we noted in Dillard, issues of comparative negligence are

especially difficult to resolve as a matter of law.

In this case, Mead has alleged that defendant negligently

designed, constructed, and maintained the ski trail on which he was

injured. Defendant, on the other hand, alleges that Mead was

negligent by disregarding warnings on his ticket, and on its signs,

and what he should have known from his observation of conditions at

other areas throughout the ski area.

There is no evidence that Mead was aware of the particular

condition which he alleges caused his injury, nor that he had skied

the trail recently enough that he should have been aware of it.

Whether Mead should have been aware of the condition which

caused his injury and exercised greater care to avoid it, and if

so, the degree of his own negligence compared to the negligence of

defendant, if any, are issues of fact to be resolved by the trier

of fact in this case.

Therefore, we hold that the defense of assumption of risk,

other than as specified in the Skier Responsibility Act, is not a

separate defense in a claim by skiers for injuries which are

alleged to result from the negligence of ski area operators, and

that whether Mead and defendant were negligent, and if so, how

their negligence compares, presents issues of fact to be resolved

by the finder of fact in this case.

The judgment of the District Court is reversed and this case

is remanded to the District Court for further proceedings

consistent with this opinion.

hief Justice