Donovan v. Sutton

498 P.3d 382 (2021)

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Nature of the Case

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Facts

Dwight took his family skiing. Before the resort closed for the day, the family took a final run on 'First Time,' 'a green bunny hill for new skiers.' Dwight's wife and youngest daughter skied to the bottom of the run, while Dwight remained with D, the couple's nine-year-old daughter. Dwight and D went down the run together, with Dwight skiing backward so he could monitor D. They were moving slowly because D was 'fearful' and skiing cautiously, despite having had ski lessons the year before and 'informal lessons' on the current trip. D was skiing in a 'wedge.' She was traveling at approximately five miles per hour when she suddenly lost control and came out of the wedge. She could not regain control and instead 'just kind of straightened out.' This caused her to accelerate past her father and collide with P. P had stopped 'just right of center' on the run to take a photograph of her husband and daughter. As P was putting her camera away, she heard D scream 'look out!' D crashed into her from behind. P suffered injuries to her arm and shoulder. P sued D for negligence and Dwight for negligent supervision of his daughter. At the close of discovery, Ds moved for summary judgment. Ds argued that D was skiing cautiously before she suddenly lost control and collided with P, and she attempted to warn P of the impending collision. Recognizing that children in negligence actions are judged by a different standard of care than adults, Ds argued it was 'not unreasonable for a 9-year-old beginner to be frightened, lose control, and fall, even under good ski conditions,' and that D was not 'skiing unreasonably for her age or for the conditions.' Ds argued that Dwight's supervision of D was 'reasonable' because D had professional lessons the year before, her parents 'took D to the 'magic carpet' area of the mountain to warm up,' she was skiing on a beginner run at the time of the collision, and she gave Dwight 'no indication that she was tired, sore, or that she could not otherwise continue to ski.' P also argued that Dwight had negligently supervised D because he was aware that D was not only inexperienced but also 'fearful of skiing'; it was the end of the day, so he should have known D was getting tired and 'skiing in a sloppy fashion'; his attempts to instruct D were 'feeble'; and he was skiing in close proximity to D, so he should have intervened to thwart the collision or warned P of the imminent crash. The court granted Ds summary judgment. It held that the facts showed that a nine-year-old beginner skier, was not able to maintain her wedge . . . and then fell,' which did not amount to a failure to use reasonable care. P did not state a claim for negligence nor did P show that D engaged in intentionally harmful conduct or conduct creating an unreasonable risk of bodily injury that Dwight failed to prevent. P appealed. The court of appeals affirmed. P appealed.