MARK MULLEE, Plaintiff and Appellant, v. WINTER SPORTS, INC., d/b/a WHITEFISH MOUNTAIN RESORT, and DOES 1-5, Individually, Defendants and Appellees

MARK MULLEE, Plaintiff and Appellant, v. WINTER SPORTS, INC., d/b/a WHITEFISH MOUNTAIN RESORT, and DOES 1-5, Individually, Defendants and Appellees. Oral Argument is set for Thursday, March 6, 2025, at 10:30 a.m. in the Strand Union Building, Ballroom A, on the campus of Montana State University, Bozeman, Montana, with an introduction to the argument beginning at 10:00 a.m. Mark Mullee went skiing at Whitefish Mountain Resort in January 2019. After taking a chair lift, Mullee realized he had forgotten his phone and water in his car. Mullee skied downhill to retrieve his belongings. His route took him on a trail designed for inexperienced skiers. The trail included a tunnel that went under a road. After the tunnel, the trail curved to the right. To the left was a steep drop-off. The Resort typically had a snow fence installed at that location. As Mullee emerged from the tunnel, his ski caught an edge and he veered left. He fell over the drop-off and suffered significant injuries. Mullee alleged the fence was not in place and he maintained it would have prevented his fall if it had been. The Resort claimed the fence was up but Mullee went through it because he was skiing too fast. The Resort also asserted that the fence was not designed to stop out-of-control skiers. After Mullee sued for negligence, the District Court ruled in favor of the Resort. It concluded that, under the Montana Skier Responsibility Act, Mullee bore responsibility for his injuries as they were sustained as the result of the inherent risks and dangers of skiing. It determined that Mullee failed to prove the Resort had a duty to maintain the fencing. It also excluded Mullee’s expert witnesses and denied Mullee’s motion for summary judgment on the amount of damages. The court also denied Mullee’s motion to exclude the testimony of the Resort’s expert witness. On appeal, Mullee argues that the District Court should have concluded that the Resort had a duty to maintain the fencing because the Resort knew the drop-off posed a heightened danger on a beginner-level trail. He also argues that the court erred in excluding his experts and consequently denying him summary judgment on the amount of damages. Mullee also argues that the court should have excluded the testimony of the Resort’s expert witness because the Resort provided inadequate disclosure and did not make the witness available for deposition.