High court case shakes Idaho ski areas

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 this month 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?”

Pomerelle Mountain, a two-chairlift ski resort south of Albion, has long been a low-key attraction for local folks.

“We’re not a destination resort,” said Gretchen Anderson, the marketing director, whose family owns the mountain and has since the early 1970s.

“My father was the one who always wanted to make certain that we kept it affordable, that we kept the sport affordable,” she said. “Otherwise you just price the people out of it — they can’t afford it.”

Anderson said liability insurance is a “double-edged sword” for the ski hill. “You’ve got to have it, but it just keeps going up.” She said if the current Idaho court ruling stands, the precedent would be “bad news for the skiers and riders of Idaho.”

In Vermont, Beerworth said, “I think it changed the sport here by essentially forcing people to go to the more sort of commercial, corporate places. … Nowadays you have these huge conglomerates on the Ikon and Epic passes, and that has totally changed the sport and the character of resorts.”

This story was edited for length. The full version is available at bit.ly/414vVoR.

Betsy Z. Russell is a retired newspaper reporter who lives in Boise.