Supreme Court case shakes Idaho ski areas by overturning decades of liability precedent

It was clear and shady on a late-November afternoon in 2019, as a 65-year-old, 210-pound skier from Boise made his way down Lower River Run at Sun Valley, skiing with “poor control” on the moderately crowded groomed run, according to court records.

He skied across the backs of another skier’s skis and yelled, then fell and crashed head-first into a tall, yellow-padded snowmaking tower gun in the middle of the run. What happened next would not only bring tragedy to the skier’s family — it would also upend decades of court precedent on ski area liability in Idaho and potentially threaten the viability of the ski industry across the state.

The skier, Stewart Milus, a doctor from Boise, died from his injuries. His widow sued Sun Valley Resort. While a lower court granted summary judgment in favor of the ski resort based on Idaho’s 1979 Ski Area Liability Act, the Idaho Supreme Court in December 2023 reversed the lower court and said a jury should weigh whether the ski resort was at least partially to blame, regardless of the skier’s actions.

The court is set to hear arguments in February on possibly reconsidering its unanimous ruling. But if the decision stands, it could have huge implications for skiing in Idaho, driving up ski areas’ liability insurance costs and potentially putting the state’s small, mom-and-pop ski hills out of business.

That’s what happened in Vermont, after an infamous Vermont Supreme Court decision in 1978. A skier named James Sunday was skiing along a beginner run at Stratton Mountain when his ski got tangled in some brush at the edge of the trail. He lost control, fell, hit a boulder off the trail and suffered injuries that left him a quadriplegic. The court found the ski resort 100% at fault and awarded the skier $1.5 million in damages.

Liability insurance costs for Vermont ski areas skyrocketed, and the state lost many of its small, local ski hills. One of those, Hogback Mountain, announced in 1986 that it was closing permanently after its liability insurance bill for the upcoming season came in at $100,000 — exceeding its annual gross revenues of less than $70,000.

“The mom and pop ski areas that used to exist all over the place up here no longer do,” said Andrew Beerworth, a Vermont attorney and longtime Vermont skier who wrote a 2015 paper examining the impact of the legal issues on skiing in the state. “It did change the nature of the sport a lot. You get the weekend warriors, the tourist drive, but not so much the farmer-type Vermonters who would work all week and just want to take their family out for a half day of skiing on a Saturday. You don’t really see that any more. They just got priced out.”

Idaho ski areas are watching the Milus v. Sun Valley case with much anxiety. 

“I think it’s unfortunate,” said Brad Wilson, general manager of Bogus Basin near Boise. “The skier statute has been upheld for 30 years. … I’m old enough to remember before states had skier statutes, and lived through the early ‘80s when litigation was common, and it absolutely throttled the ski areas.”

The Sunday v. Stratton case prompted most of the 37 U.S. states that have ski areas to pass ski area liability laws, many of them similar to Idaho’s, which was last amended in 2014. Most of those laws, like Idaho’s, have repeatedly been upheld in court.

“It’s very much like a Sunday v. Stratton moment for Idaho, from a legal perspective,” said Jordan Lipp, a Colorado attorney and liability law expert who teaches outdoor recreation and ski law at the University of Denver.

“The whole country was surprised this ruling came down in Idaho,” Wilson said. “I can tell you that, because Idaho is looked at as such a business-friendly state. And to have something like this happen in a red, business-friendly state was shocking to the entire ski industry.”

Dave Byrd, director of risk and regulatory affairs for the National Ski Areas Association, said, “Across the ski industry, this was a stunning ruling met with frustration and confusion. For decades, the Idaho courts had long recognized that skiing was a sport driven by personal responsibility and skiing within your abilities and in control — this ruling upended decades of these Idaho precedents.”

Small ski areas could be at risk

Vermont had 51 operating ski areas in 1970, according to the Vermont Ski Areas Association, many of them tiny. Today, there are just 25. According to the National Ski Areas Association, current Vermont ski areas include giant operations owned by conglomerates like Vail Resorts and Alterra Mountain Company, home of the multi-resort Ikon Pass.

Nationally, the number of ski areas has dropped from a peak of more than 1,000 in the 1960s to 486 in the 2023-24 season, according to NSAA statistics.

Idaho has 19 ski areas, according to the Idaho Ski Areas Association, ranging from glitzy Sun Valley with its world-class reputation to tiny, single-lift community hills, prized by locals.

All have been facing increasing property insurance costs in recent years due to wildfire risk. Wilson said at nonprofit Bogus Basin, those costs have more than doubled in the last five years. If liability insurance costs shoot up as well, “You’re talking about substantial increases in the cost of doing business at a ski area.”

“This will have a profound effect on our smaller ski areas,” he said. “I do not think that many of the smaller ski areas in some of the communities will be able to absorb these costs. … And for the rest of us, we will just have to pass along the cost to the consumer. That’s not what we want to do. We want to keep prices as low as we can.”

At Magic Mountain near Kimberly, a single chairlift and three surface lifts provide affordable fun for Twin Falls-area kids and families. Owners Gary and Suzette Miller have been running the ski area for 18 years. “If I had to live on it, I’d be broke,” Gary Miller said with a chuckle; he also has construction and trucking businesses. He does a lot of the ski area maintenance himself, runs the ski rental shop, and teaches ski lessons for free — his favorite part. 

“It kinda got into our blood,” he said, “probably like a schoolteacher, where you love seeing success with kids.”

After all these years, “We finally had a lawsuit a few years ago,” he said. “We shouldn’t even have been drug into it, but if they get an attorney, you know, there’s nothing we can do about it.” A young skier had hit a tree on the mountain. “We ended up winning the case, but still it’s expensive going through it — it’s expensive and it’s scary. If we wouldn’t have had the state statute, we probably would’ve lost.”

Idaho’s law says skiers take on the liability for the inherent risks of the sport, including colliding with trees, bare spots, lift towers, clearly visible snowmaking or snowgrooming equipment and the like. It holds ski areas liable for operation of lifts, including maintaining them to national standards, along with a list of nine specific duties such as clearly marking the level of difficulty for designated trails.

“If the lift goes backward, drops a chair, I get it,” Miller said. “But when somebody’s skiing, if they hit a tree, how can we be responsible for that?” No one would want to ski on a mountain where all the trees had been cut down, he noted.

“There’s an inherent risk of skiing, there’s an inherent risk of driving, there’s an inherent risk of anything,” Miller said. “You drive your car, you go too fast, you get in a wreck — that’s our fault. You don’t go blaming the telephone pole that was on the side of the hill that you run into — well, the telephone pole shouldn’t have been there, so you go suing Idaho Power for the telephone pole. There’s just things we have to be responsible for what we do.”

“The state statute — if we don’t have it, I would say we’ll probably be done,” he said. “And if we’re done, I mean, that hurts the tourism, it hurts the community here. And then the people that ski there, where are they going to go?”

Wilson, at Bogus Basin, said, “Quite honestly, we will survive. We will have additional costs and we’ll have to pass on those costs. These little guys, they don’t have a mechanism to do that. They’re already on the cusp. And so when you start throwing stuff at them, they’re going to throw the towel in. And you’re going to have small communities that will no longer have a ski area, kids won’t be able to go out and learn to ski. It’s just absolutely horrible, and for what?”

Why Idaho has ski area liability laws

Luke Malek, a Coeur d’Alene attorney and former Republican state representative, sponsored the last amendments to Idaho’s ski area liability law in 2014, updating it to include snowboarding and terrain parks, which hadn’t been around back in 1979 when the law first passed, along with the risk of in-bounds avalanches.

He said he sponsored the bill because “personally I love skiing, and I love the opportunities that I have for myself and my family to go out into the mountains and have the access that ski resorts in Idaho provide us.” Plus, the ski industry is a “major sector of Idaho’s economy,” he said — one that is now facing “huge uncertainty.”

Since the law first passed in 1979 — before Malek was born — it’s clearly worked, he said. 

“I think the proof is in the fact that we have the ability to have these great ski resorts in the state of Idaho,” he said. “Up here in the north, we have Lookout Pass, a small family operation; Schweitzer, which is much larger — they’re all able to give Idahoans and visitors great access to our mountain areas. We wouldn’t be able to do that if it weren’t for that law, because the risk would just be too high.”

“It all boils down to the fact that this is an inherently dangerous sport,” Malek said. “It’s like controlling nature. There’s only so much that you can control. So we’re walking this balance between being able to have access to what a mountain can provide through a ski resort, while recognizing that everyone who goes up on a mountain is taking some risk, because there’s only so much that humans can control under these conditions.”

The Idaho court’s current ruling in Milus v. Sun Valley “definitely overturns the precedent,” Malek said, “and as the legislator that ran this, ignores the intent of the legislation. The intent is to provide ski areas protection that’s adequate enough that they are able to operate and take people up onto the mountains where they want to ski. … If people were able to sue ski areas for everything that happened on a mountain, which is an inherently dangerous place, we wouldn’t have any ability to have ski areas in the state of Idaho.”

There were three points on which the high court’s initial ruling departed from precedent in Idaho, and from the lower court’s ruling: It created a new “ordinarily prudent person standard of care” for judging how well ski areas carry out their nine enumerated duties under the law, rather than concluding that the law eliminated any standard of care for those duties; it ruled that it should be up to a jury to decide how well Sun Valley carried out two of those duties, regarding what constitutes a “warning implement” on snowmaking equipment and whether snowmaking is “in progress” when equipment is in place, but no snow is being made; and it held that the skier’s compliance with his own enumerated duties, including controlling speed and course and heeding all posted warnings, can’t be considered until a jury decides if the resort was negligent with regard to warning implements and signs — and can’t be considered at all if the jury finds the resort failed on those points.

“A skier can completely shift the risk to themselves, is how it’s supposed to work, if they’re acting in a way that endangers themselves and others,” Malek said. “That’s the intent. … I think the initial decision disagrees with the intent of the law.”

Plus, he said, sending such cases to juries is untenable.

“Generally as lawyers we do everything we can to avoid going to a jury because a jury is completely unpredictable,” Malek said. “The enemy of business is uncertainty. So now we’re taking Idaho’s businesses that get us back into mountains and give us these recreational opportunities and we’re introducing a tremendous amount of uncertainty into their business.”

In Oregon, which Lipp said is the only Western state that lacks good liability protections for ski areas in its state laws, a jury in 2022 awarded $11.4 million to a man who crashed into a signpost at Mt. Hood Skibowl while mountain biking and was paralyzed from the waist down.

In Virginia, which has no ski area liability law, a jury awarded a skier $6.2 million after a 1992 ski accident in which he went off a run, fell over a 30-foot drop and suffered a brain injury. A judge set aside the jury verdict, but the state’s Supreme Court reinstated it.

Malek said if the Sun Valley ruling stands, “I definitely worry about the impact that it’s going to have on ski resorts. And the Idaho economy as a whole — we are a resort state.”

Jeff Colburn, general manager of Silver Mountain in North Idaho and the current president of the Idaho Ski Areas Association, said, “Obviously this was a bit of a surprise. … It’s a big deal.”

“It’s not good,” he said. “From the industry perspective, it’s going to impact everybody, but it’s going to impact the smaller resorts … bigger than the bigger resorts. … It’ll obviously affect insurance rates which are really high for us already and will go higher.”

Attorneys for both sides in the Sun Valley case declined to comment.