Donovan v. Sutton

2019 UT App 161

THE UTAH COURT OF APPEALS

STEPHANIE DONOVAN,
Appellant,
v.
DWIGHT SUTTON, JULIE SUTTON, AND S.S.,
Appellees.

Opinion
No. 20180137-CA
Filed October 3, 2019

Third District Court, Silver Summit Department
The Honorable Kent R. Holmberg
The Honorable Kara L. Pettit
No. 160500459

Michael A. Katz, Judson Dee Burton, and
W. Alexander Evans, Attorneys for Appellant
Gary T. Wight and Smith Monson, Attorneys
for Appellees

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.

POHLMAN, Judge:

¶1 Skiers are known to say that “if you’re not falling, you’re
not learning.” In this case, nine-year-old S.S., while learning to
ski, fell and crashed into Stephanie Donovan. Donovan sued S.S.
and her parents, Dwight and Julie Sutton (collectively, the
Suttons) for Donovan’s alleged injuries. The district court
granted summary judgment in favor of the Suttons, and
Donovan appeals. We affirm.
Donovan v. Sutton

BACKGROUND 1

¶2 One afternoon, S.S. was learning to ski on a beginner
run (aptly named “First Time”) at a Utah ski resort. S.S. had
taken two days of lessons one year earlier, and because S.S. was
still a novice, Dwight 2 skied with S.S. on the beginner run,
staying close downhill and facing her. Julie skied ahead with
S.S.’s sister.

¶3 Meanwhile, Donovan, an experienced skier, stopped
on the same slope to take a picture. As she faced downhill
and was putting her camera away, Donovan heard, “Look out!”
Donovan did not have time to move, and S.S. hit her
from behind. Donovan alleged that she sustained injuries as a
result.

¶4 S.S. had been skiing downhill in a wedge, going about
five miles per hour. But moments before the collision, S.S. started
to lose her wedge, passed by Dwight, and began to lose control
about ten feet away from Donovan. S.S. leaned back, hit
Donovan, and landed on top of her.

¶5 At the time of the collision, the snow was packed powder.
It did not appear that the weather and snow conditions played a
role in what transpired.

1. When reviewing a grant of summary judgment, we view the
facts “in a light most favorable to the party opposing summary
judgment.” Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1038
(Utah 1991). We thus construe the facts in the light most
favorable to Donovan. See id.

2. As is our practice when parties share a last name, we refer to
them by their first names, with no disrespect intended by the
apparent informality.

20180137-CA 2 2019 UT App 161
Donovan v. Sutton

¶6 Donovan filed suit against the Suttons, asserting two
causes of action. Donovan’s first cause of action alleged that S.S.
was negligent and sought to hold Dwight and Julie vicariously
liable for S.S.’s negligence. Donovan’s second cause of action
alleged that Dwight and Julie were negligent in their supervision
of S.S.

¶7 The Suttons moved for summary judgment, arguing that
Donovan could not establish her negligence claim as a matter of
law. They argued that under Ricci v. Schoultz, 963 P.2d 784 (Utah
Ct. App. 1998), “a skier owes ‘a duty to other skiers to ski
reasonably and within control’” and that “‘an inadvertent fall on
a ski slope, alone, does not constitute a breach of this duty.’”
(Quoting id. at 786.) They asserted that “[S.S.] could have taken
no other actions to ski more cautiously” and that “[t]he solitary
fact that [S.S.] lost control, as a beginner skier is prone to do, is
not enough” to show negligence. They further argued that
because no evidence indicated that S.S. was negligent or that S.S.
was acting as her parents’ agent, Dwight and Julie could not be
held vicariously liable. They also asserted that Donovan’s
negligent supervision claim failed as a matter of law because the
“undisputed facts show[ed] that Dwight and Julie’s supervision
of [S.S.] was reasonable and did not make it possible or probable
that [she] would injure [Donovan].”

¶8 Donovan opposed the motion. She argued that S.S.
breached her duty by skiing “out of control” and by “ignor[ing]
instructions given by her father as to how to stop or slow down
on the ski hill.” She also argued that S.S. failed to yield the right
of way to downhill skiers in contravention of a local ordinance
and other codes of conduct. She thus asserted that the question
of S.S.’s negligence was one for the jury to decide and should not
be resolved as a matter of law. Donovan also conceded that Utah
law would not hold Dwight and Julie vicariously liable for S.S.’s
negligence. But she asserted that Dwight and Julie were
nevertheless personally negligent in their supervision, training,

20180137-CA 3 2019 UT App 161
Donovan v. Sutton

and instruction of S.S. More specifically, Donovan claimed that
they were “aware” that S.S. “was not only inexperienced but
fearful of skiing,” they “should have known their child was
getting tired and skiing in a sloppy fashion,” Dwight’s “attempts
to instruct [S.S.] were feeble,” and Dwight should have
intervened to thwart the collision or at least warned Donovan
that a crash was imminent. Donovan thus asserted that her
negligent supervision claim also presented a question for the
jury.

¶9 The district court granted summary judgment in favor of
the Suttons. In addressing Donovan’s negligence claim, the court
first determined that S.S. is “not held to the same standard as an
adult” under Utah law and that “the amount of care she’s held to
is that ordinarily used by a child of similar age, knowledge,
[and] experience in similar circumstances.” 3 The court next
determined that, under Ricci, “skiers who lose control even
though exercising due care” do not breach the standard of care
and that “a fall on the slope alone does not constitute a breach.”
In other words, “an inadvertent fall on the slope, which is losing
control, . . . doesn’t equate to failing to use reasonable care.” In
contrast, to show a breach, “[t]here has to be additional evidence
[apart from a fall itself] to support . . . a finding of negligence,”

3. On appeal, Donovan does not dispute that a child is not
judged by the adult standard, but she claims that deciding
whether a child acted negligently is a question of fact for the
jury. Our supreme court has stated that “[t]he question of
whether a child five or over is capable of negligence is reserved
for the fact-finder, unless a court determines that no reasonable
jury could disagree on the issue.” Nielsen ex rel. C.N. v. Bell ex rel.
B.B., 2016 UT 14, ¶ 22, 370 P.3d 925. For the reasons discussed
below, this case qualifies as one in which no reasonable jury
could find S.S. negligent.

20180137-CA 4 2019 UT App 161
Donovan v. Sutton

such as “going too fast for the conditions” or “not watching
where [the skier is] going.” Indeed, the plaintiff “must have
evidence of [the defendant’s] failure to use reasonable care
before the sudden, unexpected fall.”

¶10 Looking at the evidence submitted by the parties, the
district court determined that “the only thing [it] showed . . . is
that [S.S.,] as a nine-year-old beginner skier, was not able to
maintain her wedge and . . . then fell” and that such conduct was
“not a failure to use reasonable care” under Ricci. Because S.S.
was “inadvertently . . . not able to maintain [her] wedge,” which
led her to accelerate, lean back, and ultimately collide with
Donovan, the court concluded that the facts “do not state a claim
for negligence . . . or failure to exercise reasonable care” by S.S.
Thus, the court determined that no reasonable jury could
conclude on the evidence that S.S. failed “to exercise reasonable
care under the standard of a nine-year-old with her experience
and her knowledge level.” Additionally, based on Donovan’s
concession, the court concluded that Donovan had not stated a
viable vicarious liability claim against Dwight and Julie.

¶11 Turning to Donovan’s negligent supervision claim, the
district court stated that the undisputed facts showed that S.S.
“had a [ski] lesson the year before” and that Dwight had
instructed her about “the wedge” and “the side ski” but that S.S.
“only wanted to do the wedge because that made her go
slower.” The facts also showed that Dwight taught S.S. how to
fall if she was losing control. No facts suggested that Dwight had
time to grab S.S. before she struck Donovan. From this record,
the court determined that “there’s simply no evidence of failure
to exercise reasonable care by the parents” and thus concluded
that Donovan could not prove negligent supervision.

¶12 The court accordingly dismissed Donovan’s claims.
Donovan appeals.

20180137-CA 5 2019 UT App 161
Donovan v. Sutton

ISSUE AND STANDARD OF REVIEW

¶13 Donovan contends that the district court erred in granting
summary judgment in favor of the Suttons on her claims for
negligence and negligent supervision. “Because a summary
judgment presents questions of law, we accord no particular
deference to” the district court’s decision and review it for
correctness. Coburn v. Whitaker Constr. Co., 2019 UT 24, ¶ 8, 445
P.3d 446 (cleaned up). “Summary judgment is appropriate when
there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Id.
(cleaned up).

ANALYSIS

I. Negligence Claim

¶14 Donovan challenges the district court’s grant of summary
judgment to the Suttons on her negligence claim. She first argues
that the court “misinterpreted” Ricci v. Schoultz, 963 P.2d 784
(Utah Ct. App. 1998), and that “the fact-finder may ultimately
conclude that the collision itself establishes S.S.’s negligence.”
She then argues that “even if [the district court] correctly
interpreted Ricci, the record supplies ample evidence (other than
the collision) that could convince a reasonable jury that S.S.
breached a duty of care to [Donovan].” We address each
argument in turn.

A. Ricci v. Schoultz

¶15 Donovan contends that the district court was wrong to
interpret Ricci “as standing for the proposition that a collision on
a ski-slope [preceded] by an inadvertent fall does not, by itself,
establish negligence.” Donovan also asserts that Ricci does not
stand for the proposition that “‘additional evidence,’ beyond the

20180137-CA 6 2019 UT App 161
Donovan v. Sutton

mere fact that a collision has occurred, is required to ‘support a
finding of negligence.’” According to Donovan, Ricci instead
“stands for the more limited proposition that an inadvertent fall
(i.e., a fall that occurs due to the unexpected loss of control) and
immediate subsequent collision between two skiers in motion
does not, by itself, establish negligence.” Donovan thus asserts
that Ricci does not govern where, as here, “the collision occurred
with only one skier in motion.” In other words, Donovan seeks
to limit Ricci to “the facts from which [its] holding arose.”

¶16 To prevail on a claim for negligence, a plaintiff must
establish “that (1) the defendant owed the plaintiff a duty of
care, (2) the defendant breached that duty, and (3) the breach
proximately caused (4) the plaintiff to suffer legally compensable
damages.” Cope v. Utah Valley State College, 2014 UT 53, ¶ 11, 342
P.3d 243. Generally, “we all have a duty to exercise care when
engaging in affirmative conduct that creates a risk of physical
harm to others.” Nixon v. Clay, 2019 UT 32, ¶ 13 (cleaned up).

¶17 This court has previously established the duty that skiers
owe to other skiers. Specifically, a skier has “a duty to other
skiers to ski reasonably and within control.” Ricci v. Schoultz, 963
P.2d 784, 786 (Utah Ct. App. 1998). The parties agree that this is
the duty that applies in this case. This court has also established
that “an inadvertent fall on a ski slope, alone, does not constitute
a breach of this duty.” Id.

¶18 In Ricci, the plaintiff and the defendant were both
advanced skiers going down a groomed run at the same speed
and in a controlled manner. Id. at 785. But the defendant slowed
when “he approached a small crest on the ski run,” and the
plaintiff “closed to within a few feet behind” the defendant. Id.
The defendant then “unexpectedly lost control of his skis” and
fell into the plaintiff, who was unable to avoid the defendant and
suffered injuries after the parties slid into a tree well after the
collision. Id. A jury found that the defendant was negligent, but

20180137-CA 7 2019 UT App 161
Donovan v. Sutton

the trial court granted the defendant judgment notwithstanding
the verdict, concluding that the defendant had not breached any
duty he owed the plaintiff. Id.

¶19 This court affirmed. Id. at 787. It began with the general
principle that, “like all others, skiers owe that degree of care an
ordinary prudent person would exercise under like or similar
circumstances.” Id. at 786 (cleaned up). The court then
considered similar ski collision cases from other jurisdictions
and stated that those that “have supported a finding of
negligence in a ski collision have required proof of some
negligent conduct before the collision.” Id. For example, because
“alcohol consumption was not an integral aspect of skiing,” a
defendant who consumed alcohol before and during his skiing
“breached his duty to plaintiff ‘not to increase the risks to a
participant over and above those inherent in the sport.’” Id.
(quoting Freeman v. Hale, 36 Cal. Rptr. 2d 418, 421 (Ct. App.
1994)).

¶20 Ultimately, this court determined that “[s]ome collisions
between skiers are an inherent risk of skiing and may occur
absent negligence.” 4 Id. at 787. It decided that “a skier does have

4. After this case was briefed and argued, the Utah Supreme
Court issued Nixon v. Clay, 2019 UT 32, in which it held that
“voluntary participants in a sport cannot be held liable for
injuries arising out of any contact that is ‘inherent’ in the sport,”
id. ¶ 21, even for sports that “anticipate only incidental or
infrequent contact between co-participants,” id. ¶ 31. Under this
rule, “participants in voluntary sports activities retain a duty to
use due care not to increase the risks to a participant over and
above those inherent in the sport.” Id. ¶ 21 (cleaned up). “But
there is no duty to lower or eliminate risks that are inherent in an
activity.” Id. For example, though tennis “does not involve
frequent bodily contact among participants,” “there are obvious
(continued…)

20180137-CA 8 2019 UT App 161
Donovan v. Sutton

a duty to other skiers to ski reasonably and within control” but
that “an inadvertent fall on a ski slope, alone, does not constitute
a breach of this duty.” Id. at 786. Thus, on the facts presented,
this court concluded that the defendant’s “loss of control and
fall, by itself, [did] not establish his negligence.” Id. at 786–87.
This court further concluded that the defendant “did not breach
his duty of reasonable care to [the plaintiff] by accidentally
falling into [the plaintiff] when there was no evidence that [the
defendant] was skiing negligently at the time of his fall.” Id. at
787.

¶21 We are bound by Ricci. See State v. Legg, 2018 UT 12, ¶ 9,
417 P.3d 592 (explaining that “under the doctrine of horizontal
stare decisis, the first decision by a court on a particular question
of law governs later decisions by the same court” and
“horizontal stare decisis applies as between different panels of

(…continued)
risks of injurious contact,” including “colliding with a teammate
during a doubles match,” and a tennis player involved in such a
collision is not exposed to liability for making such contact. Id.
¶ 32. We view Ricci v. Schoultz, 963 P.2d 784 (Utah Ct. App.
1998), as consistent with Nixon.
We also observe that Utah’s Inherent Risks of Skiing Act,
Utah Code Ann. §§ 78B-4-401 to -404 (LexisNexis 2018), which
immunizes ski area operators for injuries resulting from the
inherent risks of skiing, recognizes that “certain risks are
inherent” in the sport of skiing, id. §§ 78B-4-401, -403. It defines
“inherent risks of skiing” to mean “those dangers or conditions
which are an integral part of the sport” including, among other
things, “collisions with other skiers” and “the failure of a skier to
ski within the skier’s own ability.” Id. § 78B-4-402(1)(f), (h). These
legislative statements are consistent with Ricci’s recognition that
“[s]ome collisions between skiers are an inherent risk of skiing.”
963 P.2d at 787.

20180137-CA 9 2019 UT App 161
Donovan v. Sutton

the court of appeals” (cleaned up)). And we see nothing in
Ricci’s reasoning that draws a distinction between moving and
stationary skiers or limits its application to situations in which
both skiers were in motion at the time of the collision. 5 Instead,
Ricci is rooted in the fact that unexpected, inadvertent falls and
contact occur while skiing “despite the exercise of ordinary and
reasonable care.” Ricci, 963 P.2d at 786 (cleaned up). Because
skiers may “lose control even while exercising due care” and
thereby “may pose a danger which is inherent, obvious and
necessary to participate in the sport of skiing,” the Ricci court
determined that evidence of an inadvertent fall, without more, is
not proof of negligence. Id. at 786–87 (cleaned up). And because
the evidence demonstrated that the defendant in Ricci was
“skiing in control” immediately before the collision, the plaintiff
had “failed to introduce any competent evidence that [the
defendant] was skiing negligently before his sudden and
unexpected fall in front of [the plaintiff].” Id. at 786. We therefore
agree with the district court’s decision not to distinguish Ricci on
the basis that this lawsuit involves only one skier who was in

5. Donovan asserts that Ricci’s recognition that additional facts
are needed to show negligence, “by implication, also recognizes
that where a collision is of a type that does not typically occur
absent negligence, no additional demonstration of wrongdoing
would be required” and argues that “[t]he collision itself, in such
circumstances, would establish negligence.” She then asserts that
a reasonable jury could conclude that the type of collision that
occurred here—where “one skier accelerated toward a stationary
skier, losing control at the last minute”—“does not typically
occur absent negligence.” But this argument again points solely
to the collision to show negligence, and Ricci plainly rejects the
notion that “an inadvertent fall on a ski slope, alone,” constitutes
negligence. See 963 P.2d at 786.

20180137-CA 10 2019 UT App 161
Donovan v. Sutton

motion at the time of the collision 6—S.S.—and we agree with its
interpretation of Ricci as requiring “evidence of [the defendant’s]
failure to use reasonable care before the sudden, unexpected
fall.” 7

B. Ricci’s Application

¶22 Donovan next contends that even if Ricci applies, the
district court “was mistaken” to conclude that she had “not

6. In her reply brief, Donovan seeks to distinguish Ricci on the
similar ground that it requires a showing that the downhill skier,
not the uphill skier, lost control as a result of some negligent
conduct. We do not read Ricci as limiting its application in this
manner, and we therefore reject this argument.

7. Donovan also attempts to distinguish Ricci procedurally,
arguing that the “trial judge [in Ricci] had heard all evidence
placed before the trier of fact before granting [the] defendant’s
motion” for judgment notwithstanding the verdict but that here
the “district court had not yet heard the evidence that would be
adduced at trial,” especially given that “expert discovery had
not [yet] been conducted.” According to Donovan, an “expert
witness may provide important information that would help a
jury determine whether S.S. was negligent.” We are not
persuaded. Donovan has not shown that an expert witness
would provide evidence beyond the fact of S.S.’s inadvertent
fall, and Donovan never argued to the district court that she
needed more time for discovery in order to “present facts
essential” to her opposition to the Suttons’ summary judgment
motion. See generally Utah R. Civ. P. 56(d) (providing that if a
nonmoving party shows that it “cannot present facts essential to
justify its opposition” to summary judgment, the court may,
among other things, “defer considering the motion” or “allow
time to obtain affidavits or declarations or to take discovery”).

20180137-CA 11 2019 UT App 161
Donovan v. Sutton

produce[d] evidence, other than the collision, showing a breach
in the applicable standard of care.” In particular, Donovan
insists that “negligence can be inferred from evidence other than
the collision,” maintaining that the “record contains disputed
material facts regarding S.S.’s experience and whether she had
an adequate opportunity to avoid the collision.” The Suttons
respond that Donovan’s arguments effectively still “rel[y] on the
collision alone to prove [S.S.] was negligent.” We agree with the
Suttons.

¶23 Donovan first asserts that S.S. had “received formal
and informal ski instruction that taught her how to wedge
or side ski.” She then asserts that the reasonable inference from
this evidence is that “[t]his instruction would have also
taught [S.S.] how to stop and change direction.” Donovan also
points to the fact that S.S. was ten feet away from her when S.S.
started to lose control, stopped wedging, and accelerated,
claiming that S.S. “likely had sufficient time to avoid the
collision.”

¶24 In considering these facts, the district court determined
that it was undisputed that S.S. was a nine-year-old beginner
skier on a beginner run who was skiing in a wedge at a speed of
about five miles per hour. And about ten feet away from
Donovan, S.S. became unable to maintain her wedge, causing
her to go faster, fall, and collide with Donovan. The court
concluded that under Ricci v. Schoultz, 963 P.2d 784 (Utah Ct.
App. 1998), the fact that S.S. was not able to maintain her wedge
and then fell was “not a failure to use reasonable care.” We agree
with this assessment. Donovan contends that a jury could
reasonably conclude that S.S. did not draw upon her experience
and “take appropriate evasive action to avoid the collision,”
but other than speculation, Donovan points to nothing in the
record to support this conclusion. Donovan identifies no
evidence of S.S.’s failure to use reasonable care before she fell,
and she does not explain what evasive action S.S. could have or

20180137-CA 12 2019 UT App 161
Donovan v. Sutton

should have reasonably taken under the circumstances. 8 In sum,
Donovan has not shown that S.S.’s inability to keep her wedge
and remain upright, despite having had some ski lessons, is
sufficient for a jury to conclude that S.S. was negligent. See id. at
786–87.

¶25 Next, Donovan asserts that under Ricci’s duty to
ski reasonably and within control, a skier is required “to avoid
collision with the person below her.” In support, she cites
the Park City Municipal Code, which creates criminal liability
for reckless skiing and states that “[t]he primary duty shall be
on the skier or snowboarder to avoid collision with any
person or object below him.” Park City, Utah, Municipal Code
§ 8-2-8(B) (2008). She then argues that “violation of an ordinance
is evidence of negligence” and that evidence that S.S. violated
an ordinance constitutes evidence of breach “in addition to
mere collision,” thus creating a question for the jury under
Ricci. But “before violation of a legislative standard will be held
to be . . . prima facie evidence of negligence[], the legislative
standard must first be adopted by the court as defining
the standard of conduct of a reasonable person.” Colosimo v.
Gateway Cmty. Church, 2018 UT 26, ¶ 45 n.82, 424 P.3d 866
(cleaned up). In other words, “it is only after a statute
or ordinance is adopted by the court as the standard of
conduct of a reasonable person, thereby imposing a duty

8. In her reply brief, Donovan argues for the first time that S.S.
breached her duty to ski reasonably by “failing to look, see or
heed in a timely manner”; by not avoiding a collision with a
plainly visible downhill skier; by failing to slow, stop, and
change direction; and by not providing a more timely warning to
Donovan. But we do not consider issues that are raised for the
first time in a reply brief. Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d
903. We therefore do not address these arguments further.

20180137-CA 13 2019 UT App 161
Donovan v. Sutton

recognizable in tort, that a court will then determine whether a
violation thereof constitutes prima facie evidence of negligence.”
Id. Donovan only cursorily grapples with this “preliminary
question of whether the legislative standard imposes a duty
recognizable in tort.” See id. She has not met her burden of
persuasion on this subject.

¶26 In short, Donovan has not persuaded us that there
is evidence, apart from the collision itself, that S.S. skied
negligently. The district court therefore correctly granted
summary judgment against Donovan on her negligence claim.

II. Negligent Supervision Claim

¶27 Donovan next challenges the district court’s grant of
summary judgment to Dwight and Julie on her negligent
supervision claim against them. Donovan asserts that from
disputed material facts, a jury could conclude that Dwight and
Julie “did not properly exercise control” over S.S. where they
“put a child prone to accident in an environment where she
could hurt other skiers and then failed to properly monitor her
activity or otherwise exercise control over her as to prevent
injury.”

¶28 “Summary judgment is appropriate in negligence cases
only in the clearest instances.” Castellanos v. Tommy John, LLC,
2014 UT App 48, ¶ 41, 321 P.3d 218 (cleaned up). “Bare
allegations of negligence unsupported by facts, however, are
insufficient to withstand a motion for summary judgment.” Id.
(cleaned up).

¶29 The parties agree that we may resolve Donovan’s
negligent supervision claim under the standard set forth in
section 316 of the Restatement (Second) of Torts. That section
states,

20180137-CA 14 2019 UT App 161
Donovan v. Sutton

A parent is under a duty to exercise reasonable
care so to control his minor child as to prevent it
from intentionally harming others or from so
conducting itself as to create an unreasonable risk
of bodily harm to them, if the parent (a) knows or
has reason to know that he has the ability to
control his child, and (b) knows or should know of
the necessity and opportunity for exercising such
control.

Restatement (Second) of Torts § 316 (Am. Law Inst. 1965).

¶30 The district court granted summary judgment to Dwight
and Julie on this claim on the ground that “there’s no evidence of
failure to exercise reasonable care by the parents.” The court
stated the undisputed facts were that S.S. had had a ski lesson
the year before and that Dwight had instructed S.S. regarding
the wedge, the side ski, and how to fall. Further, the court
observed that there were no facts upon which the jury could
infer an obligation or ability for Dwight to grab her under the
circumstances. On this record, the court determined that a
reasonable jury could not conclude “that the parents failed to
exercise reasonable care.”

¶31 Assuming, without deciding, that section 316 is the
proper standard, we agree with the district court that Donovan’s
negligent supervision claim fails as a matter of law. Donovan
emphasizes that S.S. was a new and nervous skier. But Donovan
has not shown that a reasonable jury could conclude that Dwight
and Julie failed to exercise reasonable care simply because they
allowed S.S., who was nervous, to learn to ski on a beginner run.
Donovan also emphasizes that because it was the last run of the
day, Dwight let S.S. “ski tired.” No record evidence supports this
allegation. Rather, it was undisputed that S.S. did not remember
being tired that day and did not tell Dwight that she was tired.
As a result, Donovan’s allegation that Dwight and Julie

20180137-CA 15 2019 UT App 161
Donovan v. Sutton

permitted S.S. to “ski tired” that day is speculative and
insufficient to create a question for the jury.9 See Castellanos, 2014
UT App 48, ¶ 41.

¶32 On this summary judgment record, Donovan has not set
forth facts to show that Dwight and Julie breached their duty to
exercise reasonable control over S.S. Accordingly, we affirm the
district court’s conclusion that Donovan’s negligent supervision
claim fails as a matter of law.

CONCLUSION

¶33 Donovan has not shown that the district court erred in
interpreting and applying this court’s precedent, and the district
court correctly concluded that Donovan did not offer any
evidence apart from the collision itself to support her negligence
claim. The district court also correctly granted summary
judgment against Donovan on her negligent supervision claim.
Accordingly, we affirm.

9. Donovan also asserts that Dwight had a duty to look and see
Donovan behind him on the slope while he monitored S.S. as she
skied downhill, potentially toward other skiers below. But
because she raised this argument for the first time in her reply
brief, we do not consider it. See id.

20180137-CA 16 2019 UT App 161