When Does a Skier Become a Trespasser?

• Jurisdiction: Utah,United States
• Citation: Vol. 20 No. 5 Pg. 22
• Pages: 22
• Publication year: 2007

Utah Bar Journal Volume 20.

Vol. 20, No. 5, 22. When Does a Skier Become a Trespasser?

Utah Bar Journal
Vol. 20, No. 5
July/August 2007

When Does a Skier Become a Trespasser?

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...