Berry v. Park City

2007 UT 87
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
James Gordon Berry V, 	No. 20051057
Plaintiff and Appellant,
v.
Greater Park City Company dba
Park City Mountain Resort, a Utah
corporation; CRE Management, Inc.,
dba Milosport; and International Ski 	F I L E D
Federation,
Defendants and Appellee. 	October 30, 2007
---
Third District, Salt Lake
The Honorable J. Dennis Frederick
No. 030904411
Attorneys: 	Harold G. Christensen, Richard A. Van Wagoner,
Julianne Blanch, Ryan B. Bell, Salt Lake City, for
appellant
Gordon Strachan, Kevin J. Simon, Park City, for
appellee
---
NEHRING, Justice:
¶1 	James Gordon “V.J.” Berry was seriously injured while
competing in a ski race. 	He sued the parties connected with the
event, including Park City Mountain Resort (PCMR), the site where
the race was held. 	The district court granted PCMR’s motions for
summary judgment and dismissed Mr. Berry’s claims for ordinary
negligence, gross negligence, and common law strict liability.
We affirm in part and hold that Mr. Berry’s preinjury release of
PCMR is enforceable and that the district court properly
determined that Mr. Berry’s strict liability claim fails as a
matter of law. 	We further hold that the district court
improperly awarded PCMR summary judgment on Mr. Berry’s gross
negligence claim and therefore reverse and remand for further
proceedings.

No. 20051057 	2
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	In February 2001, Mr. Berry, an expert skier then
twenty-six years of age, entered a skiercross race promoted as
the King of the Wasatch, which was constructed on one of PCMR’s
ski runs. 	In the skiercross race format, four racers
simultaneously descend a course that features difficult turns and
tabletop jumps. 	The racers compete against each other as they
ski down the mountain to complete the course first. 	A series of
elimination heats determines the race winner. 	On Mr. Berry’s
fourth trip over the course, he attempted to negotiate the
course’s first tabletop jump. 	Upon landing from the jump,
Mr. Berry fell and fractured his neck, an injury that resulted in
permanent paralysis.
¶3 	Before being allowed to participate in the contest,
competitors like Mr. Berry were required to sign a Release of
Liability and Indemnity Agreement. 	Although Mr. Berry did not
read the agreement, he signed it twelve days before the race.
The agreement purported to release PCMR from claims arising from
its negligence, stating:
In consideration for being permitted to
participate in the Event, I agree to release
from any legal liability, agree not to sue
and further agree to defend, indemnify and
hold harmless Park City Mountain Resort . . .
the race organizers, sponsors and all of
their officers, agents and employees for
injury or death resulting from participation
in the Event, regardless of the cause,
including the negligence of the above
referenced parties and their employees or
agents.
¶4 	PCMR introduced several measures aimed at enhancing the
safety of contest participants like Mr. Berry. 	Blue paint marked
the take-off point of the tabletop jumps. 	The course was built
with speed gates and berms uphill of the jump in order to slow
and control the speed of racers on their approach. 	Safety
barriers enclosed the racecourse and closed it to noncompetitors.
Racers were required to wear helmets and familiarize themselves
with the course by inspecting its features while twice “slipping”
its length. 	Competitors were also permitted to take practice
runs of the course on the day of the race.

3 	No. 20051057
¶5 	Naturally occurring conditions compromised these
measures on the day of the race. 	The light was “flat,” which
hindered depth perception and made it difficult for participants
to make out aspects of the course. 	The snow-covered surface of
the course was packed particularly hard.
¶6 	Mr. Berry offered expert opinion that pointed to
significant design flaws in the tabletop jump that was the site
of his fall. 	For example, the left side of the jump, from which
Mr. Berry was forced to ascend due to his competitors’
positioning in the heat, was built in a manner to launch skiers
at a dangerously steep angle, causing them to be propelled beyond
the landing area. 	Expert opinion also faulted the landing area
as being too small and not steep enough to accommodate safe
landings.
¶7 	Relevant to our purposes, Mr. Berry brought suit
against PCMR and alleged claims of ordinary negligence, gross
negligence, and common law strict liability. 	The district court
granted PCMR’s motions to summarily dismiss each of Mr. Berry’s
claims. 	The district court concluded that Mr. Berry was bound by
the “clear and unequivocal” language of the agreement and could
not therefore pursue a claim against PCMR based on the resort’s
alleged negligence. 	The district court held that Mr. Berry’s
strict liability claim was invalid because the King of the
Wasatch race was not as a matter of law an abnormally dangerous
activity. 	Finally, the district court concluded that as a matter
of law Mr. Berry failed to present evidence sufficient to place
in dispute the issue of whether PCMR had designed and built the
skiercross course with “utter indifference to the consequences
that may result” or gross negligence. 	This appeal followed.
STANDARD OF REVIEW
¶8 	Summary judgment is appropriate only when no genuine
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. 	Utah R. Civ. P. 56(c). 	Because a
grant of summary judgment by definition involves conclusions of
law, we afford no deference to the district court’s decision and
review it for correctness. 	See Peterson v. Sunrider Corp., 2002
UT 43, ¶ 13, 48 P.3d 918.
ANALYSIS
I. 	MR. BERRY’S AGREEMENT TO RELEASE PCMR FROM LIABILITY FOR ITS
NEGLIGENT ACTS IS ENFORCEABLE

No. 20051057 	4
¶9 	Preinjury exculpatory releases turn against one another
the freedom of persons to regulate their affairs by contract and
the social bargain at the heart of tort law that persons who fail
to exercise reasonable care should be accountable in damages to
those injured by negligent acts. 	We have not previously had
occasion to consider whether the sponsor of a competitive ski
race may shield itself from negligence by obtaining prospective
exculpatory agreements from participants. 	This appeal is not,
however, our introduction to preinjury releases.
¶10 	In our most recent encounter, we held that a preinjury
release could not foreclose claims of negligence brought by the
parent of a minor child who was injured during a guided
equestrian trail ride. 	Hawkins v. Peart, 2001 UT 94, 37 P.3d
1062. 	Mr. Berry interprets Hawkins as a case containing
sufficient kinetic energy to move it beyond its facts to guide
the outcome of this appeal. 	According to Mr. Berry, Hawkins
signaled that we had found common cause with a “growing
consensus” of jurisdictions that rejected as contrary to public
policy preinjury releases generally and those releasing ski areas
particularly. 	To support his interpretation, Mr. Berry drew on
our statement in Hawkins that
[a]n exculpatory clause that relieves a party
from future liability may remove an important
incentive to act with reasonable care. 	These
clauses are also routinely imposed in a
unilateral manner without any genuine
bargaining or opportunity to pay a fee for
insurance. 	The party demanding adherence to
an exculpatory clause simply evades the
necessity of liability coverage and then
shifts the full burden of risk of harm to the
other party.
Id. ¶ 13.
¶11 	We made observations critical of preinjury releases in
the context of the point that sound reasons exist for the law to
treat preinjury releases with greater suspicion than postinjury
releases. 	Regardless of the context in which they appear, we
readily acknowledge that the shortcomings of exculpatory clauses
cited in Hawkins provide ample cause to approach preinjury
releases with caution. 	Indeed, the reasoning used by courts to
reject as contrary to public policy preinjury releases is
persuasive. 	See Hiett v. Lake Barcroft Cmty. Ass’n, 418 S.E.2d
894 (Va. 1992); see also Jaffe v. Pallotta TeamWorks, 374 F.3d
1223, 1226 (D.C. Cir. 2004); Coughlin v. T.M.H. Int’l Attractions

1 For example, parents in many jurisdictions lack the
authority to release a minor’s claims against a negligent party.
E.g., Hawkins, 2001 UT 94, ¶ 10. 	When Hawkins was decided, Utah
was such a jurisdiction; the state afforded parents no “general
unilateral right to compromise or release a child’s existing
causes of action without court approval or appointment to that
effect.” 	Id. ¶ 11. 	Although Hawkins involved a mother’s
preinjury release of her minor daughter’s claims, we reasoned
that it would be inconsistent for the court to allow parents to
do preinjury what they were prohibited from doing postinjury.
Id.
5 	No. 20051057
Inc., 895 F. Supp. 159 (W.D. Ky. 1995); Dalury v. S-K-I, Ltd.,
670 A.2d 795, 799 (Vt. 1995); cf. N.Y. Gen. Oblig. §§ 5-321 to
-326 (2007). 	In the Commonwealth of Virginia, for example,
public policy forbids exculpatory agreements because “‘to hold
that it was competent for one party to put the other parties to
the contract at the mercy of its own misconduct . . . can never
be lawfully done where an enlightened system of jurisprudence
prevails.’” 	Hiett, 418 S.E.2d at 896 (quoting Johnson’s Adm’x v.
Richmond & Danville R.R. Co., 11 S.E. 829, 829 (Va. 1890)). 	This
approach is certainly defensible both as a statement of legal and
social philosophy--the right to contract is always subordinate to
the obligation to stand accountable for one’s negligent acts--and
on an operational level inasmuch as such a clear statement
eliminates any ambiguity over whether a court would later deem a
particular preinjury release enforceable. 	Our recognition of the
undesirable features of preinjury releases and of the merits of
arguments that we should brand all preinjury releases
unenforceable falls short of convincing us that freedom to
contract should always yield to the right to recover damages on
the basis of another’s fault. 	See, e.g., Jones v. Dressel, 623
P.2d 370 (Colo. 1981); Porubiansky v. Emory Univ., 275 S.E.2d
163, 167-68 (Ga. Ct. App. 1980); Olson v. Molzen, 558 S.W.2d 429,
431 (Tenn. 1977); Wagenblast v. Odessa Sch. Dist., 758 P.2d 968
(Wash. 1988); Kyriazis v. Univ. of W. Va., 450 S.E.2d 649 (W. Va.
1994).
¶12 	Our analysis in Hawkins disclosed both our conviction
that a person should retain the power to contract away the right
to recover damages for the negligence of another and our
understanding that the authority to exercise the right was
subject to many conditions and limitations. 1 	We began that
analysis by acknowledging, uncritically, the “general principle
of common law” that “‘those who are not engaged in public service
may properly bargain against liability for harm caused by their
ordinary negligence in performance of contractual duty.’”
Hawkins, 2001 UT 94, ¶ 9 (quoting 6A Arthur Linton Corbin, Corbin

2 The law’s wariness of preinjury releases is reflected in
(continued...)
No. 20051057 	6
on Contracts § 1472 (1962)). 	After canvassing the legal
landscape for perspective on how courts have received and
interpreted the Corbin principle, we noted that most of the cases
from jurisdictions that were not among the minority rejecting all
preinjury releases focused their analytical energy on
ascertaining how to know who is and who is not “engaged in public
service.” 	Id. ¶ 9. 	Because it was not necessary to do so, we
did not delve into this question in Hawkins and instead limited
ourselves to the observation that most jurisdictions that permit
prospective releases draw the line at attempts to limit liability
for activities in which there is a strong public interest. 	These
cases did not, however, aid us in making progress toward a proper
outcome because Hawkins concerned the unique circumstance of the
release of a minor’s prospective claim for negligence and did not
implicate the public service exception. 	Our analysis in Hawkins
relied, then, on a public policy exception to the Corbin
principle “specifically relating to releases of a minor’s
claims.” 	Id. ¶ 10.
¶13 	The lesson of Hawkins is that all of the analytical
approaches we discussed were exceptions to the general principle
that preinjury releases are enforceable. 	The viability of the
principle itself was never challenged. 	We assumed its
controlling force then and make explicit our adoption of the
principle now.
¶14 	Had we intended our observations concerning the
deleterious effects of preinjury releases to be our final
expression of views on the proper place of such releases in our
law, little reason would have existed for us to have refrained
from using Hawkins to declare categorically that such releases
offend public policy and are unenforceable. 	The proper inference
to draw from Hawkins is that this general rule is well embedded
in our common law despite its flaws. 	Our position on this matter
can coexist with our endorsement of the prevailing view that the
law disfavors preinjury exculpatory agreements. 	See Hanks v.
Powder Ridge Rest. Corp., 885 A.2d 734, 739 (Conn. 2005).
¶15 	Having determined that our public policy does not
foreclose the opportunity of parties to bargain for the waiver of
tort claims based on ordinary negligence, we confront the issues
we stopped short of resolving in Hawkins: 	selecting and applying
a standard relating to the public interest exception to the
general rule recognizing the enforceability of preinjury
releases. 2 	2001 UT 94, ¶ 10. 	This is an inquiry that directs

2 (...continued)
the requirement that to be enforceable, such agreements must be
communicated in a clear and unequivocal manner. 	See Paralift,
Inc. v. Superior Court, 29 Cal. Rptr. 2d 177, 180 (Ct. App.
1993); Cain v. Banka, 932 So. 2d 575, 578 (Fla. Dist. Ct. App.
2006); Hawkins, 2001 UT 94, ¶ 5. 	Mr. Berry has not claimed that
PCMR’s release failed to meet this standard. 	We therefore limit
our discussion of the public interest exception to the general
rule that exculpatory agreements are enforceable.
3 Of course, the status of the person giving a preinjury
release is an omnipresent consideration insofar as status relates
to the relative bargaining power of the parties to the release.
7 	No. 20051057
our attention to the nature of the activity seeking to be
shielded from liability for its negligence and away from Hawkins’
focus on the status of the person from whom the release is
sought. 3 	In Hawkins, we stated that many states had come to rely
on the guidelines for evaluating the applicability of the public
interest exception to preinjury releases set out in Tunkl v.
Regents of The University of California, 383 P.2d 441, 445-46
(Cal. 1963). 	The Tunkl guidelines have retained their vitality
over the years since Utah, through Hawkins, became one of many
jurisdictions to permit preinjury releases. 	See, e.g., Omni
Corp. v. Sonitrol Corp., 476 F. Supp. 2d 125, 128 (D. Conn.
2007); Am. Structural Composites, Inc. v. Int’l Conference of
Bldg. Officials, 325 F. Supp. 2d 1148, 1151 (D. Nev. 2004); Moore
v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Brown v.
Soh, 909 A.2d 43, 48-51 (Conn. 2006); Courbat v. Dahana Ranch,
Inc., 141 P.3d 427, 437-39 (Haw. 2006); Berlangieri v. Running
Elk Corp., 76 P.3d 1098, 1109-10 (N.M. 2003). 	The Tunkl
standard, which identifies the traits of an activity in which an
exculpatory provision may be invalid, is as follows:
“[1] [The transaction] concerns a business of
a type generally thought suitable for public
regulation. 	[2] The party seeking
exculpation is engaged in performing a
service of great importance to the public,
which is often a matter of practical
necessity for some members of the public.
[3] The party holds himself out as willing to
perform this service for any member of the
public who seeks it, or at least for any
member coming within certain established
standards. 	[4] As a result of the essential
nature of the service, in the economic
setting of the transaction, the party

No. 20051057 	8
invoking exculpation possesses a decisive
advantage of bargaining strength against any
member of the public who seeks his services.
[5] In exercising a superior bargaining power
the party confronts the public with a
standardized adhesion contract of
exculpation, and makes no provision whereby a
purchaser may pay additional reasonable fees
and obtain protection against negligence.
[6] Finally, as a result of the transaction,
the person or property of the purchaser is
placed under the control of the seller,
subject to the risk of carelessness by the
seller or his agents.”
Hawkins, 2001 UT 94, ¶ 9 n.3 (quoting Tunkl, 383 P.2d at 445-46).
¶16 	Consideration of these traits is a flexible endeavor;
the activity at issue need exhibit only a sufficient number of
Tunkl characteristics such that one may be convinced of the
activity’s affinity to the public interest. 	When a preinjury
release is contrary to the public interest, it is invalid.
Applying this approach, we test the King of the Wasatch race
against each of the six Tunkl guidelines.
¶17 	First, while as an academic matter it may be debatable
whether the sport of skiing is of a type generally thought to be
suitable for public regulation, in Utah there can be no debate.
In Utah, skiing is regulated by the Inherent Risk of Skiing Act,
Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007). 	Although
the parties assume that the Act applies to skiercross events like
the King of the Wasatch race, it is less clear that the
applicability of the Act to skiercross racing would qualify the
competition as suitable for public regulation. 	The Act was
animated by a legislative finding that “the sport of skiing is
practiced by a large number of residents of Utah and attracts a
large number of nonresidents.” 	Id. § 78-27-51. 	The same cannot
be said for skiercross racing. 	This form of competition has
simply not generated sufficient public interest either through
its popularity or because of hazards associated with it to
generate a call for intervention of state regulatory authority.
Skiercross racing is but one of an almost countless number of
competitive sporting events occurring at any particular time in
Utah. 	Among these, Utah law regulates only competitive boxing
and equestrian events. 	See id. §§ 63C-11-301 to -318; id.
§§ 63C-11-320 to -325; id. §§ 78-27b-101 to -102 (Supp. 2007).

9 	No. 20051057
¶18 	Thus, while the reach of the Act may extend to ski-
related activities that fall outside the public policy
considerations underlying the adoption of the Act, those
activities, like skiercross racing, are nevertheless subject to a
separate analysis for the purpose of evaluating the
enforceability of preinjury releases. 	Put another way, while the
services provided by a business operating a recreational ski area
and the services provided by a business sponsoring a competitive
ski race may be covered by the provisions of the Act, the
differences between recreational and competitive skiing are
substantial enough to warrant the application of a separate
analysis concerning their suitability for public regulation. 	In
our view, skiercross racing is not generally thought suitable for
public regulation.
¶19 	Second, for all the benefits that the King of the
Wasatch race may have bestowed on its competitors, sponsors, and
spectators, the race sponsors were in no way performing a service
of great importance to the public, nor was race participation a
matter of practical necessity for anyone.
¶20 	Third, the record suggests that PCMR made race
participation available to anyone who sought to enter. 	Based on
the description of the King of the Wasatch race in the record, a
clear inference exists that competitors came from a limited group
of expert, competitive skiers.
¶21 	The fourth Tunkl guideline diminishes the likelihood
that we might find a preinjury release enforceable considering
that the essential nature of the activity or service results in
endowing the party seeking exculpation with a decisive advantage
of bargaining strength. 	We have little doubt that Mr. Berry
possessed no bargaining strength whatsoever. 	If he wanted to
compete in the King of the Wasatch race, he was required to sign
the preprinted release form. 	In this setting, however, PCMR’s
decisive advantage in bargaining strength was of little
consequence since the race was a nonessential activity.
¶22 	Fifth, PCMR’s superior bargaining power, its use of a
contract of adhesion, and its failure to provide Mr. Berry an
option to purchase protection against PCMR’s negligence is
similarly of little consequence because of the nonessential
nature of the race.
¶23 	The final Tunkl factor, that Mr. Berry was placed under
PCMR’s control as a result of signing the release and made
subject to the risk of PCMR’s carelessness, is of questionable
application. 	PCMR appears to have been capable of exercising a

No. 20051057 	10
negligible degree of control over the manner in which Mr. Berry
traversed the racecourse or whether he elected to complete the
course at all after inspecting its features.
¶24 	After considering the facts of Mr. Berry’s case with
the Tunkl guidelines in mind, we are convinced that the release
Mr. Berry executed in favor of PCMR is enforceable.
II. 	THE DISTRICT COURT ERRED WHEN IT AWARDED PCMR SUMMARY
JUDGMENT ON MR. BERRY’S GROSS NEGLIGENCE CLAIM
¶25 	PCMR does not claim that its release insulates it from
liability for gross negligence. 	It argues instead that the
precautions the sponsors of the King of the Wasatch race took,
designed to minimize the risk of injury to participants without
unduly compromising the competitive challenges, without which the
contest would have little allure, were sufficient to overcome
Mr. Berry’s gross negligence claim as a matter of law. 	Without
guidance anywhere in the record as to the applicable standard of
care, we cannot conclude that PCMR was not grossly negligent as a
matter of law.
¶26 	We must initially return to the topic of the standard
of review because its proper form and application largely
determine the outcome of Mr. Berry’s challenge to the district
court’s summary dismissal of his gross negligence claim. 	In
securing recovery, the task confronting a plaintiff who claims
injury due to a defendant’s gross negligence is markedly greater
than that of a plaintiff who traces his injury to ordinary
negligence. 	Gross negligence requires proof of conduct
substantially more distant from the appropriate standard of care
than does ordinary negligence. 	We have characterized gross
negligence as “‘the failure to observe even slight care; it is
carelessness or recklessness to a degree that shows utter
indifference to the consequences that may result.’” 	Atkin Wright
& Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 335
(Utah 1985) (quoting Robinson Ins. & Real Estate, Inc. v. Sw.
Bell Tel. Co., 366 F. Supp. 307, 311 (W.D. Ark. 1973)).
¶27 	When reviewing appeals from grants of summary judgment
in cases of ordinary negligence, we have consistently followed
the principle that “summary judgment is generally inappropriate
to resolve negligence claims and should be employed ‘only in the
most clear-cut case.’” 	White v. Deseelhorst, 879 P.2d 1371, 1374
(Utah 1994) (quoting Ingram v. Salt Lake City, 733 P.2d 126, 126
(Utah 1987) (per curiam)). 	Moreover, summary judgment is
“‘inappropriate unless the applicable standard of care is fixed
by law, and reasonable minds could reach but one conclusion as to

11 	No. 20051057
the defendant’s negligence under the circumstances.’” 	White, 879
P.2d at 1374 (quoting Wycalis v. Guardian Title of Utah, 780 P.2d
821, 825 (Utah Ct. App. 1989) (internal quotation marks
omitted)).
¶28 	Were we evaluating this case as one of ordinary
negligence, we would have little difficulty discerning the
presence of genuine issues of material fact sufficient to
overcome a motion for summary judgment. 	Mr. Berry presented
testimony of an experienced ski racer, coach, and jumper who
witnessed Mr. Berry’s accident and faulted the jump’s design. 	A
second expert in ski racecourse design and safety was likewise
critical of the configuration of the accident site.
¶29 	According to PCMR, this testimony is insufficient to
overcome summary dismissal of Mr. Berry’s gross negligence claim
because evidence that would be adequate to take an ordinary
negligence case to a jury cannot withstand uncontroverted
evidence that PCMR exercised enough care to avoid a finding of
gross negligence. 	PCMR urges that its production of evidence
indicating that it used “even slight care” or displayed something
more than “complete and absolute indifference” to the
consequences that might have resulted from an improper design or
construction of the tabletop jump and landing area is sufficient
to remove Mr. Berry’s gross negligence claim from the jury. 	We
disagree.
¶30 	The parties have not directed us to, nor have we been
able to discover, a location in the record where the appropriate
standard of care applicable to the design and construction of
skiercross courses appears. 	We have held that where a standard
of care is not “fixed by law,” the determination of the
appropriate standard is a factual issue to be resolved by the
finder of fact. 	Wycalis, 780 P.2d at 825. 	Identification of the
proper standard of care is a necessary precondition to assessing
the degree to which conduct deviates, if at all, from the
standard of care--the core test in any claim of gross negligence.
Absent the presence of an identified, applicable standard of care
to ground the analysis, we hold that the district court
improperly granted PCMR summary judgment and dismissed
Mr. Berry’s gross negligence claim.
III. 	THE DISTRICT COURT’S SUMMARY DISMISSAL OF MR. BERRY’S
STRICT LIABILITY CLAIM WAS PROPER
¶31 	Mr. Berry contends that the district court erred when
it summarily dismissed his claim that PCMR was strictly liable
for damages for his injuries because skiercross racing is an

No. 20051057 	12
abnormally dangerous activity as defined by the factors set out
in section 520 of the Restatement (Second) of Torts. 	In aid of
his argument, Mr. Berry points to numerous articles in popular
ski publications, describing in dramatic terms the injuries
sustained, seemingly as a matter of routine, by racers in
skiercross competitions. 	These aspects of the record may indeed
advance Mr. Berry’s cause regarding the degree of peril that
skiercross races pose. 	To us, they establish convincingly
alternative grounds upon which to affirm the district court’s
rejection of Mr. Berry’s strict liability claim. 	See, e.g.,
State v. Robison, 2006 UT 65, ¶ 19, 147 P.3d 448 (allowing
affirmance of the judgment appealed from based “‘on any legal
ground or theory apparent on the record’” (quoting Bailey v.
Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158)).
¶32 	Assuming the skiercross racing is an abnormally
dangerous activity, Mr. Berry’s role as a participant excludes
him from eligibility to recover under a theory of strict
liability. 	See, e.g., Pullen v. West, 92 P.3d 584 (Kan. 2004)
(holding that an individual who lit fireworks while a guest at an
Independence Day party was a participant in an abnormally
dangerous activity and therefore barred from recovery on a strict
liability theory). 	As a general principle, the Restatement’s
protections extend to those individuals who are injured as the
result of an activity that carries “the existence of a high
degree of risk of some harm to the person, land or chattels of
others.” 	Restatement (Second) of Torts § 520 (1977). 	Like the
Pullen court and others, we agree that the scope of section 520
excludes participants, like Mr. Berry, who engage in the very
activity for which they seek to recover damages based on strict
liability. 	See, e.g., Whitlock v. Duke Univ., 637 F. Supp. 1463,
1475 (M.D.N.C. 1986); Gaston v. Hunter, 588 P.2d 326, 341 (Ariz.
Ct. App. 1978); Trull v. Carolina-Virginia Well Co., 142 S.E.2d
622, 622-26 (N.C. 1965). 	This conclusion is not undermined by
the principles upon which Mr. Berry rests his claim to strict
liability recovery.
¶33 	Section 520 generally states that a court should
consider the following factors in determining whether an activity
is abnormally dangerous:
(a) 	existence of a high degree of risk of
some harm to the person, land or chattels of
others;
(b) 	likelihood that the harm that results
from it will be great;
(c) 	inability to eliminate the risk by the
exercise of reasonable care;

13 	No. 20051057
(d) 	extent to which the activity is not a
matter of common usage;
(e) 	inappropriateness of the activity to the
place where it is carried on; and
(f) 	extent to which its value to the
community is outweighed by its dangerous
attributes.
Mr. Berry argues the eligibility of skiercross racing under
several of these. 	Although we fully recognize that all of these
factors may aid a court in evaluating whether an activity is
abnormally dangerous, we view the first factor as qualitatively
different than the rest and therefore worthy of separate
consideration. 	See, e.g., Restatement (Second) of Torts § 520
cmt. f (“Any one of them is not necessarily sufficient of itself
. . . for strict liability. 	On the other hand, it is not
necessary that each of them be present, especially if others
weigh heavily.”). 	Unlike its five colleagues, the first factor
targets the very nature of the strict liability protection--who
is eligible. 	Section 520 exposes landowners who conduct
abnormally dangerous activities on their land--harboring
dangerous animals was of particular concern to the drafters of
the Restatement--to strict liability for injury suffered by those
who come onto the land under color of privilege, but not for
injury suffered by those who participated in the abnormally
dangerous activity. 	We accordingly affirm the district court’s
dismissal of Mr. Berry’s strict liability claim.
CONCLUSION
¶34 	Because our public policy does not foreclose Mr. Berry
from waiving PCMR’s liability, we hold that Mr. Berry’s preinjury
release is enforceable. 	We further hold that Mr. Berry’s strict
liability claim fails as a matter of law considering his
participation in the skiercross race. 	Finally, we hold that the
district court erred in awarding summary judgment on Mr. Berry’s
gross negligence claim without reference to the applicable
standard of care. 	We therefore reverse and remand to the
district court for proceedings consistent with this opinion.
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¶35 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.