When Does a Skier Become a Trespasser?
by Gordon Strachan, Adam Strachan, and Kevin Simon
Many western states, including Utah, encourage the public’s recreational use of open space by having Limitation of Landowner Liability (“LLL”) statutes.1 If a recreational user is injured, these statutes limit the liability of landowners by absolving the landowner of any duty to make the land safe, or even to warn of dangerous conditions. These statutes apply to a very broad range of recreational activities, including skiing, hunting, fishing, boating, river running and mountain biking. If, however, a landowner charges for recreational use of the land – as ski resorts do by selling lift tickets for skiing, snowboarding or for lift-served mountain bike access – the recreationist is considered a business invitee, and the LLL statutes do not apply. Instead, the general rules of negligence control. The question, then, is whether recreation providers who charge for their services have any protection under negligence law similar to that afforded by the LLL statutes. The answer is “yes” if recreationists become trespassers by exceeding the scope of their business invitations. In such situations, the recreation provider’s only duty is to refrain from willful or wanton conduct.
Typical examples of recreationists exceeding the scope of their particular invitation include a ski resort user who enters a closed or roped-off area of the ski resort; a rider on a guided horseback tour who strays from the designated route; a patron of a theme park who enters an area restricted to “authorized personnel only;” or a snowmobiler or river runner on a guided excursion who disobeys the guide’s instructions. Although one could imagine other examples in nearly every recreational context, there are surprisingly few Utah cases on the topic. It is clear, however, that Utah follows the Restatement (Second) of Torts (“Restatement”) for issues concerning trespassers and corresponding landowner duties.2 Non-Utah cases applying the Restatement uniformly hold that a business invitee can become a trespasser by exceeding the scope of the invitation.3 These cases suggest Utah courts should almost always absolve defendant recreation providers from liability whenever plaintiffs become trespassers by exceeding the scope of their invitations to use the property. Thus, absent willful or wanton conduct, the skier who enters a closed area of the resort should be barred from suing as a trespasser, as should the horseback rider who strays from the designated route, or the theme park patron who enters an area restricted to “authorized personnel only.”
Plaintiffs usually claim they were unaware of the boundaries of their invitation, or that they didn’t know they had entered a closed area. In the ski resort context, this argument arises when plaintiffs contend they didn’t see the rope designating the area as closed, or thought they could duck under it. This subjective misunderstanding is of no consequence under the Restatement.4
Even more dangerous is the person who believes his judgment about what is safe transcends posted signs, ropes, flags, or even verbal warnings. This scenario is sometimes seen when a skier attempts to access the back country from ski resort property. Because of the very high risk of injury or death, Utah ski resorts have historically posted stunningly clear signage to warn skiers of the dangers the back country poses. Some of these signs have drawn national media coverage when a tragedy occurs. Other Utah resorts outright bar access to the back country from their property. Since each resort in Utah has such different topography and snow safety/management requirements, the best rule seems to be that the Director of the Ski Patrol and senior management at each resort must exercise their own independent judgment about how access, if any, should be controlled by the particular ski resort.
Some local governments have attempted to govern this unclear area of the law by enacting ordinances that provide for criminal penalties if a skier enters a slope or trail that has been posted as “closed.”5 Prosecutors have utilized early season prosecution of egregious cases with severe sentencing to deter the skiing public, and show that rope line violations will not be tolerated. Both the Town of Alta and Summit County have prosecuted “closed sign” cases, sometimes with ski patrol members as special ordinance enforcement deputies, acting at the sheriff’s discretion and direction.
In sum, recreationists must remember that recreation providers are not guarantors of their patrons’ safety. Undoubtedly, recreation providers owe their patrons duties; however, the patron’s behavior can change the scope and extent of those duties, regardless of anything the recreation provider does. Put another way, know before you go.
1. See, e.g., Idaho Code § 36-1604; N.M. Stat. Ann. § 17-4-7; Wyo. Stat. Ann. § 39-19-103; Utah Code Ann. § 57-14-1.
2. Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169, 1172 (1991).
3. See, e.g., Oswald v. Hausman, 548 A.2d 594, 595-96 (Pa. Super. 1988) (Man held to be trespasser where he wandered from public road onto unmarked private road – “A trespasser is one who enters the land of another without any right to do so or who goes beyond the rights and privileges which he or she has been granted by license or invitation”); Gruetzemacher v. Billings, 348 S.W.2d 952, 958 (Mo. 1961) (Woman attempting to rescue child in a neighboring yard held to be trespasser where she walked through flower bed and was injured on hidden garden stake – “Plaintiff must show not only that she had an invitation to enter the premises, but also at the time of the injury, she was in that part of the premises into which she was invited to enter, and was using them in a manner authorized by the invitation...”); Miller v. General Motors Corp., 565 N.E.2d 687, 690 (Ill. Ct. App. 1990) (Summary judgment for defendant where plaintiff was injured trespassing into defendant’s pump house – “[A] landowner is free to fix his own terms for consent”); Hensley v. Salomone, 2005 Ohio App. LEXIS 218, *12 (Ohio Ct. App. 2005) (“A landowner may give permission to another to enter part of his property at will, therefore, without giving the person free reign to enter all parts of the property. When guests are invited into one’s home, they are not necessarily invited to rummage through the attic of the home without a separate and express invitation”).
4. See Oswald, 548 A.2d at 598-599 (“In determining whether the person who enters or remains on land is a trespasser within the meaning of this Section, the question whether his entry has been intentional, negligent, or purely accidental is not material...”).
5. Summit Co. Ord. 91; Salt Lake Co. Municipal Code §§ 13.12.010-060; Wyo. Stat. Ann. § 6-9-201.