8/21/2014 9:07:00 AM,
Jeff D. Gorman
(CN) - A Utah couple whose son was hurt when he skied into a mound of man-made snow can take the ski resort to trial, the state appeals court ruled.
Levi Rutherford was 10 years old in 2010 when he was a member of the Summit Ski Team, which trained at a resort near Park City called The Canyons.
Levi and his 7-year-old brother skied down a hill called "Retreat." At the bottom, Levi collided with a mound of man-made snow that was wetter than the snow on the hill.
Levi's parents, Philip and Wendy Rutherford, sued the ski team and the operators of the resort, Talisker Canyons Finance Co. LLC and ASC Utah LLC, for negligence.
The Rutherfords alleged that the resort operators did not monitor the snowmaking process, used a faulty snow-making machine, and failed to mark the mound of snow or close the trail.
Both sides moved for summary judgment, arguing over whether the Inherent Risks of Skiing Act (IRSA) bars the Rutherfords' claims.
A judge in Silver Summit dismissed the negligence claim against the ski team but agreed that the couple could sue the resort under IRSA.
Since the injury took place before the ski team's practice, the court also refused to find the family's claims barred by a release that Philip signed.
A three-judge panel with the Utah Court of Appeals affirmed in part but remanded the case for further consideration ofother issues.
The trial court's determination that Levi was not racing went against "the parties' undisputed statement of fact that Levi was injured during race training" and must be revisited, Judge James Davis wrote ffor the court.
Affirming that the Rutherfords do have a case for negligence, however, Davis agreed with the court's determination that the snow-making equipment may have been faulty.
Davis also agreed with the lower court that the release form did not bar the family's claims, citing public policy "prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers."