No Duty to “Catch” Skiers Beyond MSRA’s Inherent Risks

Introduction

Mullee v. Winter Sports, Inc., 2025 MT 113, is a Supreme Court of Montana decision clarifying the limits of a ski operator’s common-law duty of care beyond the Montana Skier Responsibility Act (MSRA). Mark Mullee, an expert-level skier injured when he lost control on a beginner‐level trail, sued Whitefish Mountain Resort (WMR) for negligence and premises liability. He claimed WMR should have installed and maintained “catch” fencing to prevent him from tumbling down a nearby embankment into a rocky streambed. The District Court granted summary judgment for WMR, holding that under both MSRA and common law, the ski operator owed no duty to erect such protective barriers. Mullee appealed; the Supreme Court affirmed.

Summary of the Judgment

In an opinion delivered by Justice Ingrid Gustafson, the Montana Supreme Court addressed one dispositive issue: whether WMR owed Mullee a duty of reasonable care to install and maintain a fence capable of catching him if he lost control of his ski run. Applying de novo review to the grant of summary judgment, the Court held that:

Under the MSRA, skiing involves inherent risks—including natural obstacles and terrain variations—which a skier must accept, and the Act does not require operators to guard every conceivable hazard.
At common law, the existence of a duty turns on foreseeability and public policy. The accident at issue was the first of its kind in over 75 years and millions of skier visits; WMR could not reasonably foresee the need for a catch fence at that location.
Imposing a duty to catch uncontrolled skiers would conflict with legislative intent to preserve the economic viability and thrill‐seeking nature of skiing.
Because no duty existed, Mullee’s negligence claim failed at the threshold and summary judgment was proper.

Analysis

Precedents Cited

Peterson v. Eichhorn (2008 MT 250): Defines common‐law negligence elements and confirms that without duty, there can be no negligence.
CB1 v. Hove (2025 MT 36): Establishes de novo standard for summary judgment in Montana state courts.
Mead v. M.S.B., Inc. (1994): Confirms that common‐law duties of ski operators are not limited to the MSRA’s enumerated obligations.
Kopeikin v. Moonlight Basin (D. Mont. 2013 & 2015): Interprets MSRA’s application, acknowledges skiing’s inherent risks and the legislature’s goal to limit liability for those risks.
Clover v. Snowbird Ski Resort (Utah, 1991): Recognizes that even careful skiers may lose control unexpectedly; however, it does not mandate catch‐fencing of every hazard.
Bouchard v. Johnson (N.D. 1996): Emphasizes skiing as a “quasi‐dangerous, thrill‐seeking sport,” cautioning against removing all risks lest the sport’s character be diminished.

Legal Reasoning

The Court’s analysis proceeded in two steps:

Statutory Framework (MSRA)
The MSRA lays out skier duties (e.g., maintain control of speed and course) and ski‐area‐operator duties (e.g., post trail maps, mark hazards). It expressly declares that skiers must accept inherent risks—natural surface conditions, collisions with terrain features, variations in slope, and skier error. Mullee’s fall into an unmarked embankment qualifies as an inherent risk for which the operator owes no extra protective duty.
Common Law Duty
Absent a statutory duty, the Court examined whether public policy and foreseeability demanded a novel “duty to catch” uncontrolled skiers. Key points:
- Foreseeability: Over 75 years of resort operation and millions of skier visits had produced no accident at this precise spot. Mullee’s loss of control and fall into the streambed was not reasonably foreseeable.
- Public Policy: Imposing catch‐fence requirements wherever a skier might go off‐trail would burden operators, inflate costs, and undermine skiing’s inherent thrill. The legislature intended the MSRA to limit liability from inherent dangers; expanding duties beyond that would contravene statutory purpose.

Impact

Mullee v. Winter Sports solidifies the boundary between a ski operator’s regulatory obligations and the inherent risks skiers assume under Montana law. The decision:

Reaffirms the MSRA as the primary framework defining operator duties and skier responsibilities.
Limits common‐law negligence claims seeking obligations beyond MSRA mandates, especially novel “catch” duties.
Provides ski‐area operators greater certainty against unbounded liability for off‐trail accidents.
Signals to skiing enthusiasts that they remain responsible for navigating terrain within their abilities.

Complex Concepts Simplified

Summary Judgment: A pre‐trial decision where the court concludes there is no genuine dispute of material fact and one party is entitled to judgment as a matter of law.
MSRA (Montana Skier Responsibility Act): A state statute outlining inherent risks of skiing and delineating duties for skiers and ski‐area operators to foster the industry and limit litigation over natural dangers.
Inherent Risks of Skiing: Hazards that are integral to the sport—e.g., variable snow conditions, natural obstacles, terrain changes, and skier error.
Duty of Care: A legal obligation requiring a person or entity to conform to a standard of reasonable conduct to avoid foreseeable harm to others.
Foreseeability: Whether a reasonable person in the defendant’s position would anticipate that their conduct might cause harm to the plaintiff.

Conclusion

In Mullee v. Winter Sports, Inc., the Montana Supreme Court affirmed that ski operators have no common‐law duty to install special catch fencing beyond the MSRA’s delineated safety measures. Accidents arising from skiers losing control and leaving marked trails remain inherent risks that skiers assume. This ruling upholds the legislative balance between preserving skiing’s adventurous nature and protecting public welfare without imposing unbounded liability on ski‐area operators.

No Duty to “Catch” Skiers Beyond MSRA’s Inherent Risks — Mullee v. Winter Sports, Inc.