06/03/2025
DA 24-0356 Case Number: DA 24-0356
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 113
MARK MULLEE,
Plaintiff and Appellant,
v.
WINTER SPORTS, INC., d/b/a WHITEFISH MOUNTAIN RESORT,
Defendant and Appellee.
APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-22-0051 Honorable Amy Eddy, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ian P. Gillespie (argued), Driggs, Bills & Day, P.C., Missoula, Montana
For Appellee:
Mikel L. Moore (argued), Moore Resolutions, PLLC, Kalispell, Montana
Christopher C. Di Lorenzo, Moore, Cockrell, Goicoechea & Johnson, PC, Kalispell, Montana
Argued: March 6, 2025 Submitted: March 11, 2025 Decided: June 3, 2025
Filed:
__________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.
¶1 Plaintiff and Appellant Mark Mullee appeals from a series of orders issued by the
Eleventh Judicial District Court, Flathead County. Those orders include the Order re:
Defendant’s Motion for Summary Judgment; the Order re: Mullee’s Motion for Summary
Judgment on Damages; the Order re: Defendant’s Motion to Exclude Dr. Donaldson, Reg
Gibbs and Ann Adair; and the Order re: Plaintiff’s Various Motions in Limine, each issued
on April 12, 2024, and the accompanying Final Judgment issued May 28, 2024.
¶2 Mullee raises several issues on appeal regarding the District Court’s orders related
to the admission and/or exclusion of expert testimony and damage calculations, however
we need only address the following dispositive issue:
Did the District Court err by granting WSI summary judgment on Mullee’s negligence claim because it did not owe a duty of reasonable care to install and maintain fencing which would catch him and prevent him from falling down an embankment and into a streambed after he lost control and went over the edge of a beginner-level ski trail?
¶3 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Defendant and Appellee Winter Sports, Inc. (WSI), has operated a large ski resort
known as Whitefish Mountain Resort (WMR) on Big Mountain since 1947. WMR’s ski
area is approximately 3,000 acres in size, containing terrain and obstacles of nearly every
type—groomed trails, moguls, lift towers, fences, cliffs, trees, streams, rocks, etc. Since
opening in 1947, millions of skiers have skied WMR, including 6.9 million skier visits
between the 2002-03 and 2022-23 ski seasons.
2 ¶5 Mullee is a self-proclaimed expert-level skier who has skied at WMR since the
1970s. Between the 2009-10 ski season and January 16, 2019, Mullee skied 186 days at
WMR. Most years, Mullee parked in either the Pine or Spruce lots located off a green level
run, Home Again, by Chair 6 near the Base Lodge. On January 16, 2019, Mullee parked
in the Pine Lot and took Chair 6, intending to then take Chair 1 to the summit. Mullee had
made plans to meet up with a friend at the Summit House at the top of Chair 1, but when
he exited Chair 6 and began skiing over to Chair 1, he realized he had forgotten his phone
and water bottle in his truck. Instead of taking Chair 1, Mullee began skiing down
Chipmunk, a green run located below Chair 6, back towards his truck. Off of Chipmunk,
there is a trail which goes through a tunnel and connects to Home Again. The skier’s tunnel
was installed no later than 2002 and is used by WMR skiers thousands of times per day,
including often by the DREAM Adaptive Recreation ski program serving disabled
individuals. The trail curves to the right immediately after exiting the tunnel. WMR had
a practice of maintaining a snow fence (also known as C-netting) on the left side of the trail
after the tunnel as a visual aid to remind skiers to follow the trail to the right. To the left
of the fence is a steep embankment which leads down to a streambed. As of January 16,
2019, Mullee had skied this trail over 100 times during the previous ten years, and at least
six times in the previous ten days. Despite the thousands upon thousands of skiers
navigating the trail exiting the tunnel since its inception, Mullee’s accident was the first of
its kind at this location. After going through the skier’s tunnel, Mullee exited onto the trail,
lost control, and fell down the embankment where he landed on a large rock, seriously
injuring his hip and requiring him to be taken by ambulance to North Valley Hospital in
3 Whitefish. Mullee was eventually taken to Harborview Medical Center in Seattle for
medical treatment. Mullee and WMR dispute whether the fence was up and Mullee crashed
through it or if the fence had been knocked over by a groomer prior to when Mullee lost
control on the trail.
¶6 On January 12, 2022, Mullee filed his Complaint in the District Court, asserting
claims of negligence, negligence per se, breach of contract, and premises liability against
WSI stemming from his January 16, 2019 skiing accident.1 On January 22, 2024, WSI
filed a motion for summary judgment, asserting Mullee’s claims were barred by the
Montana Skier Responsibility Act (MSRA) and WSI had no duty to maintain a fence which
would catch Mullee after he lost control. Mullee filed a brief in opposition to WSI’s
summary judgment motion on February 12, 2024. WSI filed a reply brief on February 28,
2024.
¶7 The District Court held oral argument on WSI’s motion for summary judgment, as
well as numerous other motions filed by the parties, on April 11, 2024. The District Court
took the matter under advisement at the close of the hearing and issued its order granting
WSI’s motion for summary judgment later that same day. The court determined Mullee’s
accident was an inherent risk and danger of skiing and WSI had no duty to install or
maintain fencing to catch Mullee and prevent him from going down the embankment after
1 Mullee withdrew his negligence per se and breach of contract claims on February 14, 2024.
4 he left the trail. The court granted summary judgment in favor of WSI on both Mullee’s
negligence claim and his premises liability claim.2
¶8 Mullee appeals. Additional facts will be discussed as necessary below.
STANDARD OF REVIEW ¶9 We review a district court’s grant or denial of summary judgment de novo, applying
the same criteria as M. R. Civ. P. 56. CB1 v. Hove, 2025 MT 36, ¶ 9, 420 Mont. 380,
564 P.3d 434. Summary judgment is only appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to judgment as a matter of law. CB1, ¶ 9.
DISCUSSION
¶10 Did the District Court err by granting WSI summary judgment on Mullee’s negligence claim because it did not owe a duty of reasonable care to install and maintain fencing which would catch him and prevent him from falling down an embankment and into a streambed after he lost control and went over the edge of a beginner-level ski trail?
¶11 Mullee asserts the District Court erred by granting summary judgment in favor of
WSI because (1) WSI had a legal duty to maintain a fence which would catch him and
prevent his fall down the embankment at the spot he lost control and skied off of the trail
and (2) genuine disputes of material fact related to the fence itself—whether it was up at
time of Mullee’s accident and, if so, whether the fence used by WSI was appropriate—
render summary judgment inappropriate as they are questions to be decided by a jury. WSI
contends the District Court correctly granted summary judgment in its favor because it had
no legal duty to maintain a fence in that spot and any disputes related to the fence itself or
2 Mullee offers no argument regarding the premises liability claim on appeal and we need not address it further. 5 how Mullee was skiing when he lost control are irrelevant to a negligence analysis when
no legal duty exists. The District Court granted summary judgment in favor of WSI on
Mullee’s negligence claim, determining WSI had no legal duty to maintain a fence capable
of catching Mullee and preventing him from falling down the embankment in the spot
where he was injured. We agree with the District Court.
¶12 In this case, Mullee has brought a claim for negligence against WSI asserting it had
a legal duty to maintain a fence capable of catching him and preventing him from falling
down an off-trail embankment and into a streambed at the spot where he lost control on a
beginner-level ski trail. “Negligence is the failure to use the degree of care that an
ordinarily prudent person would have used under the same circumstances.” Peterson v.
Eichhorn, 2008 MT 250, ¶ 23, 344 Mont. 540, 189 P.3d 615 (citing Barr v. Great Falls
Int’l Airport Auth., 2005 MT 36, ¶ 41, 326 Mont. 93, 107 P.3d 471). To maintain an action
in negligence, a plaintiff must prove four essential elements: (1) the defendant owed the
plaintiff a legal duty, (2) the defendant breached that duty, (3) the breach was the actual
and proximate cause of an injury to the plaintiff, and (4) damages resulted. Bonilla v. Univ.
of Mont., 2005 MT 183, ¶ 14, 328 Mont. 41, 116 P.3d 823 (citing Massee v. Thompson,
2004 MT 121, ¶ 30, 321 Mont. 210, 90 P.3d 394).
¶13 At the outset, we recognize there are numerous factual disputes which would
ordinarily render summary judgment inappropriate, including how fast Mullee was skiing
when he crashed (Mullee asserts he was traveling at a low rate of speed, while WMR’s ski
patrollers claim he told them he was going “too fast” when they responded to the crash)
and whether or not the C-netting fence was up when Mullee’s accident occurred (Mullee
6 asserts the fence was knocked over before he arrived, while WMR’s ski patrollers contend
it was up when it was checked in the morning pursuant to ski patrol protocol and Grace
Byrd, a DREAM Adaptive instructor who discovered Mullee after the accident, claims it
was still partially standing after the crash). But these factual disputes could only be
material for purposes of defeating a summary judgment motion if WSI owed Mullee a legal
duty to maintain a fence which would catch him at the spot of his accident. Mullee’s claim
is not a contention WSI had a duty to warn him of the danger located off of the ski trail and
down the embankment—indeed, it could not be one as Mullee has skied past the fence in
question possibly hundreds of times, “always” remembered the fence being there and
believed it was there to represent a dangerous area below, knew there was a stream below
because he could hear the water flowing, and knew not to ski over the fence—but that WSI
had a duty to catch him after he lost control.
¶14 The existence of a legal duty presents a question of law to be determined by the
court. Howard v. Replogle, 2019 MT 244, ¶ 15, 397 Mont. 379, 450 P.3d 866 (citing Dick
Irvin, Inc. v. State, 2013 MT 272, ¶ 17, 372 Mont. 58, 310 P.3d 524). “[A]ctionable
negligence arises only from the breach of a legal duty. Therefore, in order for there to be
a genuine issue of material fact in a negligence case, there must be a duty imposed on the
defendant and allegations which, if proven, would support a finding of a breach of the
duty.” Peterson, ¶ 24 (citing Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309,
313, 950 P.2d 748, 751 (1997)). While negligence actions ordinarily involve factual issues
which make summary judgment inappropriate, if the plaintiff fails to offer proof on any
7 one of the four elements of negligence it is proper to enter summary judgment in favor of
the defendant. Peterson, ¶ 24.
¶15 This case involves a ski accident, which in this state must be viewed through the
lens of the MSRA, which defines duties and responsibilities of both skiers and ski area
operators. “Montana’s skier responsibility statutes make clear that the duty of reasonable
care owed by a ski area operator to a skier ‘must be viewed in the unique context of
skiing.’” Kopeikin v. Moonlight Basin Mgmt., LLC, 90 F. Supp. 3d 1103, 1107 (D. Mont.
2015) (Kopeikin 2015) (quoting Kopeikin v. Moonlight Basin Mgmt., LLC, 981 F. Supp.
2d 936, 945 (D. Mont. 2013) (Kopeikin 2013)). The Legislature has set forth the purpose
of the MSRA as follows:
The legislature finds that skiing is a major recreational sport and a major industry in the state and recognizes that among the attractions of the sport are the inherent dangers and risks of skiing. The state has a legitimate interest in maintaining the economic viability of the ski industry by discouraging claims based on damages resulting from the inherent dangers and risks of skiing, defining the inherent dangers and risks of skiing, and establishing the duties of skiers and ski area operators.
Section 23-2-731, MCA. The MSRA sets forth the duties of a skier, defined by the MSRA
as “a person who is using any ski area facility for the purpose of skiing, including but not
limited to ski slopes and trails.” Section 23-2-702(7), MCA. “A skier has the duty to ski
at all times in a manner that avoids injury to the skier and others and to be aware of the
inherent dangers and risks of skiing.” Section 23-2-736(1), MCA. In addition, a skier:
(a) shall know the range of the skier’s ability and safely ski within the limits of that ability and the skier’s equipment so as to negotiate any section of terrain or ski slope and trail safely and without injury or damage. A skier shall know that the skier’s ability may vary because of ski slope and trail changes caused by weather, grooming changes, or skier use.
8 (b) shall maintain control of speed and course so as to prevent injury to the skier or others;
(c) shall abide by the requirements of the skier responsibility code that is published by the national ski areas association and that is posted as provided in 23-2-733;
(d) shall obey all posted or other warnings and instructions of the ski area operator; and
(e) shall read the ski area trail map and must be aware of its contents.
Section 23-2-736(2), MCA. Pursuant to the MSRA, “[a] skier shall accept all legal
responsibility for injury or damage of any kind to the extent that the injury or damage
results from inherent dangers and risks of skiing. Nothing in this part may be construed to
limit a skier’s right to hold another skier legally accountable for damages caused by the
other skier.” Section 23-2-736(4), MCA. The MSRA also defines the “inherent dangers
and risks of skiing,” which, as relevant here, include:
(b) snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut- up snow, and machine-made snow of any depth or accumulation, including but not limited to any depth or accumulation around or near trees or snowmaking equipment;
. . .
(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;
(e) collisions with lift towers, signs, posts, fences, enclosures, hydrants, water pipes, or other artificial structures and their components;
(f) variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks, and other terrain modifications;
9 . . .
(i) the failure of a skier to ski within that skier’s ability; [and]
(j) skiing in a closed area or skiing outside the ski area boundary as designated on the ski area trail map[.]
Section 23-2-702(2), MCA.
¶16 In addition to setting forth the duties of a skier, the MSRA also sets forth duties of
a ski area operator:
Consistent with the duty of reasonable care owed by a ski area operator to a skier, a ski area operator shall:
(a) 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;
(b) 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 slopes and trails;
(c) maintain one or more trail boards at prominent locations at each ski area displaying a map of that area’s network of ski slopes and trails, the boundaries of the ski area, and the relative degree of difficulty of the ski slopes and trails at that area;
(d) post a notice requiring the use of ski-retention devices;
(e) designate at the start of each day, by trail board or otherwise, which ski slopes and trails are open or closed and amend those designations as openings and closures occur during the day;
(f) post in a conspicuous location the current skier responsibility code that is published by the national ski areas association;
(g) post a copy of 23-2-736 in a conspicuous location; and
(h) mark designated freestyle terrain with a symbol recognized by the national ski areas association.
10 Section 23-2-733(1), MCA. There is no dispute that WSI was a “ski area operator,”
§ 23-2-702(5), MCA, or that Mullee was a “skier,” § 23-2-702(7), MCA, at the time of
Mullee’s accident and the MSRA applies to the present case. Under the MSRA, Mullee
had an affirmative duty to “maintain control of speed and course so as to prevent injury”
to himself, § 23-2-736(2)(b), MCA, and must “accept all legal responsibility for injury or
damage of any kind to the extent that the injury or damage results from inherent dangers
and risks of skiing.” Section 23-2-736(4), MCA. Mullee’s encounter with a steep
embankment and subsequent collision with a rock is clearly an inherent danger and risk of
skiing, § 23-2-702(2)(d), MCA, not artificially created by WSI, for which a skier must
accept legal responsibility under the MSRA. Section 23-2-736(4), MCA.
¶17 Mullee urges this Court to go beyond simply the MSRA, though, contending WSI
had a common law duty of reasonable care to maintain fencing which would catch him and
prevent him from falling down the embankment and into the streambed, and its failure to
not do so constitutes negligence. Mullee is correct, and WSI does not dispute, that the
MSRA does not constitute an exhaustive list of the duties of skiers and/or ski area operators
or entirely foreclose a finding of common law negligence should a ski operator breach its
duty of reasonable care. See Mead v. M.S.B., Inc., 264 Mont. 465, 474, 872 P.2d 782, 788
(1994) (finding a ski area operator’s duties to a skier are not limited to only those
specifically enumerated in the MSRA). But Mullee has failed to meet his burden to show
WSI had a common law duty of care to install and/or maintain fencing capable of catching
11 him at the location of his accident, and therefore the District Court correctly granted WSI
summary judgment on his negligence claim.3
¶18 Actionable negligence only arises from the breach of a legal duty. Peterson, ¶ 24.
Whether a legal duty exists is a question of law to be decided by the court. Howard, ¶ 15.
“In determining whether duty exists, we consider whether imposing a duty comports with
public policy and ‘whether the defendant could have foreseen that his conduct could have
resulted in an injury to the plaintiff.’” Bassett v. Lamantia, 2018 MT 119, ¶ 10, 391 Mont.
309, 417 P.3d 299 (quoting Fisher v. Swift Transp. Co., 2008 MT 105, ¶ 17, 342 Mont.
335, 181 P.3d 601). “Thus, duty is mainly a question of foreseeability—whether the person
injured was within the scope of risk created by the defendant’s action.” Bassett, ¶ 10 (citing
Lopez v. Great Falls Pre-Release Servs., 1999 MT 199, ¶ 28, 295 Mont. 416, 986 P.2d
1081). “[I]n the absence of foreseeability, there is no duty and in the absence of duty, there
is no negligence.” Poole v. Poole, 2000 MT 117, ¶ 20, 299 Mont. 435, 1 P.3d 936.
¶19 That some skiers will fall or crash while skiing on a mountain operated by a ski area
operator is undoubtedly foreseeable. “[I]t is clearly foreseeable that a skier, without skiing
recklessly, may momentarily lose control or fall in an unexpected manner.” Clover v.
Snowbird Ski Resort, 808 P.2d 1037, 1047 (Utah 1991). But the basic fact it is inevitable
3 Mullee presents a unique “duty to catch” argument, far different from the typical “duty to warn” claims involved in skiing accidents which renders the litany of out-of-state and/or federal cases he cites of little value to our analysis here. Moreover, WSI did “warn” skiers to not go over the embankment by placing a snow fence at the edge of the trail. Mullee had plenty of warning as he had skied the trail over a hundred times previously. In Mullee’s deposition, he testified he “can always remember [the fence] being there” and knew it was a dangerous area below because “whenever they put up a fence is because there’s usually a cliff.” 12 that some skiers will fall somewhere on the mountain at some time does not mean that an
accident in this specific spot was foreseeable. What is presented here is Mullee, an
expert-level skier who had been skiing WMR since the 1970s and had traversed the turn
coming out of the skier’s tunnel over a hundred times without incident, losing control with
enough force that he went over the edge of the embankment and tumbled down to the
streambed below. That accident was not foreseeable to WMR, which has seen exactly one
accident in this spot since 1947 despite millions of skier visits in that time—Mullee’s on
January 16, 2019. While Mullee was severely injured in his fall, the risk posed by the rocks
near the streambed is not necessarily greater than the risk posed by any of the literally
innumerable other natural hazards found across WMR’s 3,000 acres—many of which are
actually found on ski trails, unlike the rocks Mullee only hit because he lost control and
left the ski trail.
¶20 Whether a duty exists is also a public policy question. Bassett, ¶ 10. “Foreseeability
analysis also includes determining the moral blame attached to the defendant’s conduct,
the prevention of future harm, the extent of the burden imposed, the consequence to the
public of imposing duty, and the availability and cost of insurance.” Gatlin-Johnson ex rel.
Gatlin v. City of Miles City, 2012 MT 302, ¶ 13, 367 Mont. 414, 291 P.3d 1129 (citing
Fisher, ¶ 28).
¶21 Public policy considerations also favor not imposing a duty on WMR to install and
maintain fencing to catch skiers who lose control and leave ski trails. Montana’s
Legislature has made clear in the MSRA that it is the public policy of this state to
“maintain[] the economic viability of the ski industry by discouraging claims based on
13 damages resulting from the inherent dangers and risks of skiing[.]” Section 23-2-731,
MCA. Those inherent dangers and risks of skiing are a major attraction to the sport.
Section 23-2-731, MCA. “[S]kiing is a quasi-dangerous, thrill-seeking sport, and if certain
‘dangers’ are removed, the interest in skiing would be greatly diminished.” Bouchard v.
Johnson, 555 N.W.2d 81, 85 (N.D. 1996) (quoting Schmitz v. Cannonsburg Skiing Corp.,
428 N.W.2d 742, 744 (Mich. Ct. App. 1988)). Skiing “is a sport that occurs on ‘a mighty
mountain, with fluctuation in weather and snow conditions that constantly change.’”
Kopeikin 2015, 90 F. Supp. 3d at 1107 (quoting Wright v. Mt. Mansfield Lift, Inc.,
96 F. Supp. 786, 791 (D. Vt. 1951)). “‘[A] ski area operator cannot be expected to expend
all of its resources making every hazard or potential hazard safe, assuming such an end is
even possible,’ or desirable.” Kopeikin 2015, 90 F. Supp. 3d at 1107 (quoting
Kopeikin 2013, 981 F. Supp. 2d at 946). There is no moral blame attached to WSI’s
conduct of not installing and/or maintaining fencing to catch skiers who fail to properly
navigate the turn out of the tunnel and leave the ski trail. There is also simply no
evidentiary support to Mullee’s claim that the embankment off of this beginner-level trail
contained any heightened danger, as opposed to the innumerable other inherent risks and
hazards across WMR, and requiring WSI to maintain “catch” fencing in any location where
no known increased danger may lurk would place a massive burden on WSI. In addition,
removing such dangers from the mountain would greatly diminish the public’s interest in
skiing. Bouchard, 555 N.W.2d at 85.
¶22 Ultimately, it was the responsibility of the District Court to determine whether a
legal duty existed in this case. Howard, ¶ 15. The District Court correctly recognized that
14 any disputed factual issues related to Mullee’s crash were immaterial here because WSI
did not owe a legal duty to maintain fencing to catch Mullee after he lost control and his
negligence claim therefore failed. See Peterson, ¶ 24. Because WSI owed no legal duty
to install and/or maintain fencing to catch Mullee from falling into the streambed after he
lost control while skiing on a beginner-level trail, we need not discuss the elements of
breach of duty, causation, or damages. See Poole, ¶ 26. Accordingly, the District Court’s
summary judgment order is affirmed.
CONCLUSION
¶23 The District Court correctly granted summary judgment in favor of WSI as it did
not owe a duty of reasonable care to install and maintain a fence which would catch Mullee
after he lost control and went off of a beginner trail.
¶24 Affirmed.
/S/ INGRID GUSTAFSON
We Concur:
/S/ CORY J. SWANSON /S/ KATHERINE M BIDEGARAY /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ JIM RICE