                            No.     93-322
          IN THE SUPREHE COURT OF THE STATE OF MONTANA
                                  1994


ZACHARY P. MEAD,
          Plaintiff and Appellant,
     v.
M.s.B., INC., a Montana                                        1 2 1994
corporation, d/b/a SNOWBOWL,
                                                      L:! >:;l;fL
          Defendant and Respondent.             C L E F : &CF CG:-'::~ t . COURS
                                                                            ~
                                                     STATE OF :%lCtrTANA




APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Missoula,
               The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Peter W. Kirwan (argued), Kirwan & Barrett,
               Bozeman, Montana
          For Respondent:
               Gig A. Tollefsen (argued), Berg, Lilly,
               Andriolo & Tollefsen, Bozeman, Montana
          For Amicus Montana Ski Areas Association:
               Mike1 L. Moore (argued), Murphy, Robinson,
               Heckathorn & Phillips, Kalispell, Montana


                                          Submitted:       February 1, 1994
                                             Decided:       April 1 2 , 1994
Filed:



                                  clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Plaintiff Zachary P. Mead filed his complaint in the District
Court for the Fourth Judicial District in Missoula County to
recover damages for injuries he sustained while skiing at the
Snowbowl ski area, which is owned by the defendant, M. S. B.,       Inc.
The District Court granted defendant's motion for summary judgment
and dismissed Mead's     claim.    We reverse the judgment of the
District Court.
     The following issues are presented for appeal:
     1.   Are     Snowbowl's   duties   limited   to   those   listed   in
5 23-2-733, MCA (1989), of the Montana Skier Responsibility Act?
     2.   Did the District Court err when it concluded as a matter
of law that Mead's injury resulted from "inherent risksH of skiing,
as set forth in        23-2-736, MCA    (1989), of the Montana Skier
Responsibility Act?
     3.   Other than those "inherent risksn set forth in the
Montana Skier Responsibility Act, is assumption of risk, as opposed
to contributory negligence, a separate defense which              can be
asserted by ski area operators to claims by injured skiers?
     4.   Did the District Court err when it found that Mead's
claim was barred by his contributory negligence?
                          FACTUAL BACKGROUND
     On March 16, 1990, Zachary Mead was injured at the Snowbowl
ski area while skiing down a trail known as the Bowl Outrun.
     The bottom of several West-Ridge ski runs funnel into the Bowl
Outrun trail, which then becomes the only means of return to
Snowbowl's    base   area.   The   Bowl   Outrun   is   a   long   trail,
approximately 16 to 20 feet wide, cut into a steep mountainside.
     While descending the Bowl Outrun Trail, Mead made turns by
skiing onto the right bank of the trail and sideslipping back to
the flat surface. There apparently were no markers designating the
boundaries of the trail, and ski tracks indicated that others had
used the banks of the trail in a similar fashion.
     At some point on the trail, there is an abrupt right turn in
combination with shale rock outcroppings on the trail's bank.
Prior to the turn, the bank of the trail was exposed to the north
and covered by snow.    Just beyond the turn, the bank of the trail
was exposed to the southeast and was either covered by less snow,
or was uncovered.    As Mead came around the right hand curve on the
trail, he suddenly encountered the shale rock outcropping, which
struck his knee, knocked him out of his skis, and caused serious
injuries.    Mead testified that earlier in the day he had observed
bare spots on the bottom side of moguls he had skied, but that he
had not skied the Outrun Trail previously that day, and that there
was nothing about the trail prior to the curve which alerted him to
the danger which caused his injury.
     On November 14, 1991, Mead filed a complaint naming the owner
of Snowbowl as the defendant.      In his complaint, he alleged that
while skiing at Snowbowl on March 16, 1990, he sustained serious
injuries to his right leg and knee due to defendant's negligent
design, construction, and maintenance of the skitrail on which he
was injured.
     The ski area denied that it was negligent, and for affirmative
defenses asserted: (1) statutory assumption of risk; (2) secondary
assumption of risk;        (3) waiver of defendant's   negligence; and
(4) contributory negligence.
     On January 14, 1993, defendant moved the District Court to
dismiss Mead's claim by summary judgment.     That motion was granted
by the District Court on April 23, 1993.         In its opinion, the
District Court concluded that "plaintiff's claim is the type of
claim that the Montana Skier's Responsibility Act was enacted to
prevent."      However, the District Court failed to specify with
particularity the provisions in the Act which barred Mead's claim.
The District Court did apparently conclude that, based on Mead's
general knowledge that spring conditions existed at the ski area,
he should have been more alert for the hazard that caused his
injury.     The District Court also apparently concluded as a matter
of law that the shale rock outcropping was a naturally occurring
condition which resulted from weather changes, and that as a matter
of law, defendant could not be found negligent for failing to
remove or mark the rocks that caused Mead's injury.
     On     appeal, Mead    contends that whether   or   not   the   rock
outcropping which caused his injury was the kind of condition
designated as an "inherent riskN of skiing in the Montana Skier
Responsibility Act was a question of fact, and that whether
defendant and Mead were negligent, and if so, the degree of their
comparative   negligence,     also    presents     issues   of   fact    which
precluded summary judgment.
     Pursuant to our review of the District Court file, we note at
this point that extensive discovery was apparently accomplished.
Mead submitted at least three sets of discovery requests, including
written interrogatories, requests for admission, and requests for
production.   Defendant, likewise, submitted written requests for
discovery; and it appears that responses to both parties' discovery
requests were served.
     In   addition,   numerous       depositions    were    scheduled,    and
apparently taken, by both parties.        These include the depositions
of Art    Wear,   the ski patrol member who           investigated Mead's
accident, and Don Bachman, an expert on ski area construction and
design who was retained by Mead.
     While the parties' briefs make frequent reference to the
deposition testimony of Mead, Bachman, Wear, and Ralph Lasache, as
well as to documents which were produced in response to requests
for production, none of those fruits of discovery, other than the
deposition of Mead, were filed in the District Court, nor have they
been filed with this Court.    Neither were any affidavits, either in
support of or in opposition to defendant's motion for summary
judgment filed in the District Court. Therefore, the facts, as set
forth in this opinion, are necessarily limited to those which can
be gleaned from Mead's deposition.
     In order to avoid confusion about the meaning of this opinion,
we note that the result would be the same, even if we assume that
the parties' representations in their briefs about the various
witnesses' testimony are correct.    However, we wish to make it
clear that it is not permissible on appeal to this Court to quote
from discovery that has not been filed in the District Court and
sent to the Clerk of the Supreme Court.
     Based on the record before us, defendant has presented no
evidence to controvert Mead's claim in his complaint that it was
negligent.   However, defendant does argue that Mead's    claim is
barred as a matter of law, and that the District Court's summary
judgment should be   affirmed   for several reasons.     Defendant
contends that: (1) a ski area's only duties to its paying guests
are those which are set forth in 1 23-3-733, MCA (1989), and since
Mead's complaint did not allege a breach of any of those duties, he
has not set forth a viable claim as a matter of law; (2) Mead's
claim is barred by 1 23-2-736(4), MCA (1989), because it resulted
from conditions or activities which are designated as "risks
inherent in the sport of skiing;" and (3) even if Mead's claim is
not barred for either of the two previous reasons, the common law
defense of assumption of risk should be available to ski area
operators, and pursuant to that defense and the undisputed facts,
Mead's claim is barred as a matter of law.
                          STANDARD OF REVIEW
          Our standard of review in appeals from summary
     judgment is de novo   .  We review a summary judgment
     utilizing the same criteria used by the District Court
     initially under Rule 56, M.R.C~V.P. Minniev.CityofRoundup
     (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.         We
     determine whether there is an absence of genuine issues
     of material fact and whether the moving party is entitled
     to judgment as a matter of law. Minnie, 849 P.2d at 214.

Brinkman and Lenon v P & D Land E t r r s s (Mont. 1994), 867 P.2d 1112,
                   .             nepie

1114, 51 St. Rep. 36, 37.
     We also noted in Brinkman that:

          It is clear that a party moving for summary judgment
     bears the initial burden of establishing the absence of
     any genuine issue of material fact and its entitlement to
     judgment as a matter of law.      ...

            ...  Put another way, the nonmoving party has no
     obligation to establish that genuine issues of fact exist
     until the moving party has shown an absence of such
     issues of fact; unless that initial burden is met by the
     moving party, the nonmoving party may rest on its
     pleading. Minnie, 849 P. 2d at 214.

Brinkman, 867 P.2d at 1115.

     It is the exceptional negligence case that may be properly
disposed of by summary judgment.       Brohman v. S a e (1988), 230 Mont
                                                   tt                      .
198, 202, 749 P.2d 67, 70.     Negligence involves questions of fact,
and where a factual controversy exists, summary judgment is never

to be used as a substitute for trial.     Kaiier v Town o Whitehall (1986),
                                                 .       f

221 Mont. 322, 718 P.2d 1341.     Only where reasonable minds cannot
differ may the court, as a matter of law, decide the cause of an

accident.   Brohman, 749 P.2d at 70.
     The Montana Ski Areas Association, which has appeared in this
case as amicus curiae, asks that we abandon our rule for summary
judgment and adopt the modern federal rule which, according to the
Association, would allow the Court to evaluate the evidence and
determine whether a ''reasonable jury" could find in favor of the
party opposing the motion.      However, this rule would present a
substantial erosion of the constitutional right to trial by jury
and we decline to adopt it.
                               ISSUE 1
     Are Snowbowl's duties limited to those listed in 5 23-2-733,
MCA (1989), of the Montana Skier Responsibility Act?
     Mead alleged that defendant was negligent with regard to the
design, construction, and maintenance of the Bowl Outrun trail. He
further alleged that defendant was negligent for failing to fence
the bank or otherwise mark the bank to prevent skiers from skiing
into the rock outcropping.
     In response to Mead's allegations of negligence, defendant
asserts that   its duties     are   limited   to   those   set   forth   in
5 23-2-733, MCA (1989), and that since Mead did not allege any
breach of these statutory duties, defendant is entitled to judgment
as a matter of law.
     In support of its argument that ski area operators do not owe
duties to skiers, other than those listed in the Act, defendant
sets forth an extensive discussion of the history of common law
liability in the ski area industry and skier responsibility acts
adopted in various jurisdictions.        However, our resolution of this
issue is controlled by the plain language of the Montana Skier
Responsibility Act and our own prior decision in Braver v. Ski-Lip, Inc.

(1988), 234 Mont. 109, 762 P.2d 226.
        The Montana Skier Responsibility Act was originally enacted in
1979, and was found at IS 23-2-731 through -737, MCA (1979).               In
its original form, it provided, at 1 23-2-736, MCA (1979), that:
             A skier assumes the risk of all legal responsibility
        for injury to himself or loss of property that results
        from participating in the sport of skiing by virtue of
        his participation.
        In Brewer, the plaintiff was      injured while skiing at the

Showdown ski area when he fell on a tree stump which was just
beneath the surface of the snow.         He contended that the stump was
not     in   the   location where   he   encountered    it   as   a   natural
occurrence, but had been placed there negligently by the ski area

operator.      However, based upon the quoted language, the district
court concluded that even if the facts alleged by the plaintiff
were assumed to be true, the ski area was entitled to judgment as
a matter of law pursuant to the Skier Responsibility Act.                  In
analyzing whether the provisions of the Act violated the Equal
Protection Clauses of the Fourteenth Amendment to the United States
Constitution,       and   Article 11,    Section   4,   of    the     Montana
Constitution, we observed the following critical facts about the
Act :
             In substance, the underscored portions provide that
        a skier assumes the risk and all legal responsibility for
     injury to himself that results from participating in
     skiing; and that the responsibility for collisions with
     an object is the responsibility of the skier and not the
     responsibility of the ski area operator; and finally,
     that notwithstanding the comparative negligence law of
     Montana, a skier is barred from recovery from a ski area
     operator for loss from any risk inherent in the sport of
     skiing, thereby eliminating the theory of comparative
     negligence. A fair reading of the underlined portions of
     the above statutes prohibits the skier from obtaining
     legal recourse against an operator even if the injury is
     proximately caused by the negligent or even intentional
     actions of the operator.
Brewer, 762 P.2d at 230.

     Based on these observations, we concluded that protecting the
operators of ski areas from liability for their own negligence bore
no relationship to protecting them from liability from inherent
risks in the sport of skiing, and therefore, that the objectionable
parts of the Act violated the equal protection clauses of both the
Federal and State Constitutions.        In so holding, we stated that:
           Although the state has a legitimate interest in
     protecting the economic vitality of the ski industry,
     there is no rational relationship between this purpose
     and requiring that skiers assume all risks for injuries
     regardless of the cause and regardless of the presence of
     negligence or intentional conduct on the part of the ski
     area operator. As we read the above underscored portions
     of Sections 23-2-736 and 23-2-737, MCA, we conclude that
     these portions of the statutes are needlessly overbroad
     and clearly go far beyond the stated purposes of the
     statutes as set forth in Section 23-2-731, MCA. Applying
     the test referred to in H o o p [v. BemaliUo County Assessor (1985),
     472 US.612,105 S C.2862,86 L Ed 2d 4871, we conclude that the
                     .t          .
     underscored portions of these two statutes cannot pass
     even a minimum rationality test. These provisions are
     not related to inherent risks in the sport of skiing
     which are essentially impossible to eliminate by the ski
     area operator as stated in Section 23-2-731, MCA.                We
     conclude that these provisions fail to pass the minimum
     rationality test for the following reasons: there is
     nothing in the legislation to suggest a reason to require
     that a skier assumes the risk and legal responsibility
     for injury to himself and for collisions and that there
     is no responsibility on the part of the ski area
     operator.    Such provisions eliminate any theory of
     negligence on the part of the ski area operator. This
     contradicts Section 27-1-701, MCA, under which a person
     is responsible for an injury resulting from his want of
     ordinary care.
Brewer, 762 P.2d at 230.

     In response to the h w e r decision, the Legislature amended

several provisions of the Skier Responsibility Act in 1989.      The
language in 5 23-2-731, MCA (1979), which set forth the purpose of
the Act, was amended to point out that skiing is a major industry
in Montana and that the State, therefore,
     has a legitimate interest in maintaining the economic
     viability of the ski industry by discouraging claims
     based on damages resulting from risks inherent in the
     sport, defining inherent risks, and establishing the
     duties of skiers and ski area operators.
Section 23-2-731, MCA (1989).
     Section 23-2-733, MCA (1979), was amended in 1989 to provide:
     Consistent with the duty of reasonable care owed by a ski
     area operator to a skier, a ski area operator shall:
          (1) mark all trail grooming vehicles by furnishing
     the vehicles with flashing or rotating lights that must
     be in operation whenever the vehicles are working or are
     in movement in the ski area;
          (2) mark with a visible sign or other warning
     implement the location of any hydrant or similar
     equipment used in snowmaking operations and located on
     ski trails;
          (3) maintain one or more trail boards at prominent
     locations at each ski area displaying that area's network
     of ski trails and the relative degree of difficulty of
     the ski trails at that area;
          (4) post a notice requiring the use of ski-
     retention devices;
          (5) designate at the start of each day, by trail
     board or otherwise, which trails are open or closed and
     amend those designations as openings and closures occur
     during the day;
          (6) post in a conspicuous location the skier
     responsibility code that is published by the national ski
     areas association and that is current on [the effective
     date of this Act]; and
          (7) post a copy of 23-2-736 in a conspicuous
     location.
     Section 23-2-736, MCA (1979), was amended so that instead of
assuming responsibility for all injuries resulting from merely
participating in the sport of skiing, inherent risks which are
assumed by the skier are identified.   Section 23-2-737, MCA, which
previously eliminated the application of comparative negligence to
ski injuries, was repealed.
     It is the amended 5 23-2-733, MCA (1989), which defendant
contends establishes its exclusive duties to Mead.      However, we
cannot construe the statute in that fashion for two reasons.
     First, this Court's role in statutory construction is simply
to (Iascertain and declare what is in terms or in substance
contained therein, not to insert what has been omitted     ....    II


Section 1-2-101, MCA.     In neither the original enactment of
S 23-2-733, MCA (1979), nor in the 1989 amendment of that statute,
did the Legislature provide that a ski area operator's only duties
were those provided in that section and that there was no duty of
due care owed by operators to skiers.        That duty is, however,
imposed by 5 27-1-701, MCA.   In fact, the 1989 amendment appears to
reinforce that duty when it states that the statutorily enumerated
duties must be (Iconsistentwith the duty of reasonable care owed by
a ski area operator to a skier   ....   (I
       Second, an interpretation of a statute which gives it effect
is preferred to one which renders it void.           Section 1-3-232, MCA.
Were we to accept the interpretation of S 23-2-733, MCA (1989),
which is suggested by defendant, it would be immune from liability
for its negligent or intentional acts if not itemized in that
section.    The Skier Responsibility Act would then suffer from the
same    constitutional    infirmity     which   we   addressed   and    have
previously discussed in Brewer.         We presume that the Legislature

amended the Skier Responsibility Act with those constitutional
considerations in mind, and will not construe the statute in a
manner that would render it unconstitutional.
       For these reasons, we conclude that defendant's duties to
plaintiff were not limited to those listed in               23-2-733, MCA
(1989), of the Montana Skier Responsibility Act.
                                  ISSUE 2
       Did the District Court err when it concluded as a matter of
law that Mead's injury resulted from "inherent risksw of skiing, as
set    forth in   S   23-2-736,   MCA    (1989), of the Montana        Skier
Responsibility Act?
       Section 23-2-736, MCA (1989), sets forth a skier's duties and
identifies those inherent risks in the sport of skiing from which
a ski area operator is relieved from liability.          That part of the
statute which defendant contends entitles it to judgment as a
matter of law provides as follows:
            (4) A skier must accept all legal responsibility
       for injury or damage of any kind to the extent that the
       injury or damage results from risks inherent in the sport
       of skiing. Risks inherent in the sport of skiing are:
             (a) variations in skiingterrain, including surface
       and subsurface snow or ice conditions naturally occurring
       or resulting from weather changes, skier use, or grooming
       or snowmaking operations;
             (b) bare spots and thin snow cover caused by
       limited snowfall, melting, wind erosion, skier action,
       grooming, or unconsolidated base;
             .   .   a   .


             (d) skiing in an area not designated as a ski trail

       While the District Court referred to all three of these
subsections in its memorandum in support of its order granting
summary judgment,            it    seems to have primarily         relied     on    its
conclusion that the rock outcropping was a "naturally occurring
condition        resulting        from   weather   changes."       However,      while
subsection           (a) refers to        naturally   occurring    "snow    or     icen
conditions resulting fromweather changes, and while subsection (b)
refers to        "bare spots" resulting from             "limited    snowfall" or
wmelting,tl neither               subsection   defines   the      exact    condition
identified by the District Court as an "inherent risk."                   Therefore,
we will discuss each of the subsections relied on by defendant to
determine whether that subsection bars Mead's claim as a matter of
law.
       According to Mead's               testimony, he was not      injured by       a
variation in skiing terrain.              In fact, his skis never did come into
contact with the rocky outcrop which apparently protruded from a
nearly vertical surface and struck him in the knee.                   Furthermore,
to conclude that the rocky structure which caused Mead's injury was
part of the nskiing terrainw is contrary to defendant's assertion
that at the time of his injury, Mead was no longer on designated
ski terrain, but had left the trail.    Therefore, we conclude that
the condition to which Mead      attributes his   injury was not a
"variation in skiing terrain."
     Whether the exposed rocks which caused Mead's        injury were
I1bare spots caused by limited snowfall, melting, wind erosion, or
skier actionv1is more problematic.     Mead describes skiing on the
banked part of a ski trail when he unexpectedly encountered a rocky
outcropping from a nearly vertical surface along the ski trail.
There is no indication in the record whether the rocky outcropping
would normally be covered with snow at that location, and if so,
whether the amount of snow which normally covered the surface would
have been sufficient to prevent the kind of injury that occurred in
this case.    The resolution of those issues necessarily involves
questions of fact which have not been adequately developed in the
record before us, and which are disputed, even if we accept the
factual assertions of the parties made in their briefs.    Therefore,
we conclude that an inherent risk pursuant to S 23-2-736(b), MCA
(1989), has not been established as a matter of law in this case.

Whether such a condition was the cause of Meadls injury presents a
question of fact which must be resolved by the trier of fact.
     Neither has it been established by the uncontroverted facts
that Mead was skiing beyond the designated trail at the time of his
injury.   As mentioned, the only evidence before us is Mead's
deposition.   He testified that there were tracks from other skiers
in the area where he was injured, and noted that the same existed
on the photos shown to him by defendant at the time of his
deposition.     No admission was made, nor solicited, at the time of
his deposition that he skied beyond the boundaries of the trail.
Even if we accept the representations that the parties made in
their appellate briefs, we conclude that, at most, an issue of fact
was raised regarding the applicability of this subsection to this
case.
        Defendant represents that Arthur Wear, the ski patrol member
who investigated Mead's injury, testified that the point of Mead's
collision was several feet from the edge of the trail.          However,
nowhere have we been advised that the edge of the trail was
designated so that skiers knew where it began and where it ended.
Merely asserting after the fact that a skier was several feet
beyond the trail when the statute refers to the ndesignatedn trail
does not satisfy the statute.
        Mead, on the other hand, represents that Forest Service maps
show that he was on the trail at the time of his injury and that
the area where he was injured was commonly skied by others.            We
conclude that whether or not the place where Mead's injury occurred
was designated by defendant as beyond the ski trail presents an
issue    of   fact   to be   decided   by   the   finder of   fact   after
consideration of all the evidence.
                              ISSUES 3 AND 4
     Other than those winherent risksn set forth in the Montana
Skier Responsibility Act, is assumption of risk, as opposed to

                                    16
contributory negligence, a separate defense which can be asserted
by ski area operators to claims by injured skiers?
     Did the District Court err when it found that Meadgs claim was
barred by his contributory negligence?
     Finally, defendant contends that ski area operators should be
able to rely on the affirmative defense of what it describes as
"secondary assumption of risktNand that based on the facts in this
case, defendant is entitled to judgment as a matter of law based on
that defense.    In support of its argument, defendant submits that
Mead was generally aware of spring-like weather conditions and
exposed surface areas in other parts of the ski area, had been
warned about rocks and variations in terrain on signs and on his
ticket, and therefore, actual notice of the specific condition
which caused his injury should be imputed to him.
     We note, however, that assumption of risk is no longer
available as a separate affirmative defense in negligence claims,
and that in those cases where we do allow such a defense, knowledge
of the specific danger which causes the claimant's            injury is
required.   SeeAbemuthyv.EIineOilFieldSimkes, Inc. (1982), 200 Wont. 205,

209, 650 P.2d 772, 775.
     Defendant acknowledges that in Abetnuthy, 650 P. 2d at 775-76,

we held that the doctrine of implied assumption of risk is no
longer applicable in Montana, and that instead, the conduct of the
parties should be compared based upon evidence of negligence and
contributory negligence, as established by reasonable and prudent
person standards.     We adopted the following rationale from the
California Court in Liv. YeUow Cab Company o Calijhkz (1975), 13 Cal.
                                            f

3d 804, 825, 119 Cal. Rptr. 858, 873, 532 P.2d 1226, 1241:
          We think it clear that the adoption of a system of
     comparative negligence should entail the merger of the
     defense of assumption of the risk into the general scheme
     of assessment of liability in proportion to fault in
     those particular cases in which the form of assumption of
     risk involved is no more than a variant of contributory
     negligence.
     However, defendant contends that we should carve out an
exception to Abenrathy for the ski industry as we did for product

                                                                          .
manufacturers in Zah?tev Stunn Ruger and Company,Inc. ( 1983 ) , 203 ~ o n t
                       .
90, 661 P.2d 17.     In that case we held that:
          In summary, assumption of risk is an available
     defense in a strict liability case. The defense must
     establish that plaintiff voluntarily and unreasonably
     exposed himself to a known danger. If the defense is
     found to exist, then plaintiff's conduct must be compared
     with that of the defendant.



     The   rationale    for   allowing   the   common   law   defense   of
assumption of risk in strict liability cases is not present in
claims based on negligence, and therefore, we decline to apply the
same exception to negligence claims against ski area operators.
Specifically, we stated in Zahrte, 661 P.2d at 18, that lwwe felt

that a defense should be retained for strict liability actions and
that assumption of risk may be the appropriate defense."          We felt
that way because contributory negligence was not an available
defense in strict liability actions.       It is, however, an available
defense in negligence claims, and therefore, we find the reasoning
in Abentarhy more persuasive.

     Analyzing Mead's conduct under the objective standards which
apply to contributory negligence, we conclude that the District
Court erred by dismissing Mead's claim as a matter of law.       First
of all, we reiterate that:
           Ordinarily, issues of negligence are questions of
     fact not susceptible to summary adjudication. Bmhmanv.
     SfUte (1988), 230 Mont. 198, 201, 749 P.2d 67, 69.
     Liability should not be adjudicated upon a motion for
     summary judgment where factual issues concerning
     negligence and causation are presented. D u c k a u v. Silver
     Bow Counly (1971), 158 Mont. 369, 377, 492, P.2d 926, 931.

DiUardv.Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018-19.

     As we noted in Dillard, issues of comparative negligence are

especially difficult to resolve as a matter of law.
     In this case, Mead has alleged that defendant negligently
designed, constructed, and maintained the ski trail on which he was
injured.   Defendant, on the other hand, alleges that Mead was
negligent by disregarding warnings on his ticket, and on its signs,
and what he should have known from his observation of conditions at
other areas throughout the ski area.
     There is no evidence that Mead was aware of the particular
condition which he alleges caused his injury, nor that he had skied
the trail recently enough that he should have been aware of it.
    Whether Mead should have been aware of the condition which
caused his injury and exercised greater care to avoid it, and if
so, the degree of his own negligence compared to the negligence of
defendant, if any, are issues of fact to be resolved by the trier
of fact in this case.
      Therefore, we hold that the defense of assumption of risk,
other than as specified in the Skier Responsibility Act, is not a
separate defense in a claim by skiers for injuries which are
alleged to result from the negligence of ski area operators, and
that whether Mead and defendant were negligent, and if so, how
their negligence compares, presents issues of fact to be resolved
by the finder of fact in this case.
     The judgment of the District Court is reversed and this case
is   remanded   to   the   District   Court   for   further   proceedings
consistent with this opinion.




      hief Justice
