Montana Supreme Court hears argument over ski-resort duty after skier’s fall

At oral argument before the Montana Supreme Court, Ian Gillespie, counsel for the appellant, asked the court to reverse the district court’s grant of summary judgment to Whitefish Mountain Resort and remand for a jury trial, saying there are disputed facts about a downed fence and whether a groomer knocked it over that preclude decision as a matter of law. "There’s a record that the fence was down that morning," Gillespie told the justices, describing photos and testimony and the plaintiff’s severe pelvic fracture and life flight to Seattle.

Gillespie framed four issues for the court: (1) the district court’s summary-judgment dismissal in favor of the appellee, (2) denial of the appellant’s cross-summary-judgment on damages, and (3–4) disputes over exclusion of his medical expert and limits placed on expert disclosures for the defendant’s biomechanical witness. He argued industry practice and expert testimony (a safety expert and a life-care planner) show a factual dispute about whether the resort’s fencing and daily ski-patrol checks met the standard of reasonable care.

Michael Moore, counsel for Whitefish Mountain Resort (Winter Sports, Inc.), countered that the threshold question is one of law: whether the common-law duty the appellant seeks survives or should be constrained by the Montana Skier Responsibility Act (MSRA). "You don’t let the experts define duty in every case," Moore told the court, saying the MSRA and precedent require the court to assess foreseeability and public policy rather than leave a broadly defined duty to juries.

The bench pressed both sides on how to state a duty that fits the statute and common law. At one point a justice read a draft duty formulation on the record: "A ski hill operator has a reasonable duty of care to protect a skier who loses control and departs the designated trail at a place where it is foreseeably dangerous to do so." Counsel for both sides reacted to that framing during argument. Moore argued the plaintiff’s long experience at the resort, the lack of prior reported accidents at that location, and statutory policy weigh against imposing a duty to "catch" a skier who loses control. Gillespie responded that where a resort both marks a hazard and maintains fencing, a jury could find a breach when a fence is not properly maintained and a foreseeable risk could reasonably have been mitigated.

The parties also disputed admissibility and sufficiency of expert evidence on damages and safety measures. Gillespie said the district court’s exclusion of his medical expert and the handling of other disclosures was an abuse of discretion that denied his client a full damages case; Moore contended the court should not permit expert-driven expansion of legal duty.

The justices asked repeated questions about foreseeability, whether marking a hazard creates reliance that could impose a limited duty, and how to define limits that avoid making ski operators guarantors of safety across countless unique hazards. Both sides cited out-of-state decisions and federal opinions in their arguments; counsel and the bench referenced precedent (including Mead and other cases) and the MSRA throughout the colloquy.

After rebuttal from Gillespie reiterating the jury-trial request, the court took the case as submitted. The justices invited students in the courtroom to remain briefly for general questions about the court’s processes but emphasized they could not discuss how they would rule.