SNOW SPORTS in Wisconsin

Jun 30, 2014 | General

A Slide into Dark Ages?

I. INTRODUCTION

“In most regards, the act is typical of ski statutes found in other jurisdictions. The act places certain burdens on ski area operators, most notably a duty to install signage and trail markers. In exchange, it provides resorts with a degree of protection from lawsuits by mandating that all skiers and snowboarders accept the risks of participating in their sport.” commented attorney David B. Cronheim, Chief Legal Correspondent for First Tracks!! Online Media and the author of the ski law blog Ski, Esq.

A. WISCONSIN SKIER SAFETY ACT abrogation of common law:

Before Wis. Stat. Sec 167.33 [See Appendix A for full text of the statute] Wisconsin courts applied common law concepts of “release” and “reasonable care” in cases where negligent operation of the mountain caused injury. A good example of this is Ryan Cass v. American Home Assurance Company & Granite Peak Corporation, CoA No. 2004AP3141.(2005) [See Appendix B for full text]. Apparently these time-honored principles made risk management too unpredictable for insurers of the ski industry who ganged up on ski area owners/operators and through them on the legislature to eliminate the common law of reasonable care and erect a fortress of immunity laughingly labeled the Skier Safety Act. Act consists of five main parts: Section (1) Definitions, (2) Conditions and risks, (3) Duties of operators, (4) Duties of owners, other duties, (5) Duties of individuals

What Cronheim fails to explain when he says “the act places certain burdens on ski area operators” is that under common law these operators had more inclusive duties to act with reasonable care to avoid foreseeable harm to their customers and that they have now been relieved of most of these. The Skier Safety Act requires resorts to formulate a written policy determining where padding should be placed to minimize risk to skiers and snowboarders, such as on lift towers. The Act is silent about enforcement or implementation of these policies.

Under the new law, a participant in a snow sport is deemed to know, and accept, certain risks inherent to skiing and snowboarding along with other winter sports including sledding, tubing and tobogganing, such as changes in weather or visibility, the presence of certain snow conditions and difficulties with the terrain, and the risk of collisions and to accept that the operator of a ski area may not mitigate certain risks by padding items or obstacles within the ski area. A participant is also deemed to acknowledge that his or her decision whether to wear a helmet while participating in the snow sport may contribute to his or her injuries, and that he or she is solely responsible for ensuring that a helmet is properly fitted.

A participant’s responsibilities under the new law when participating in a snow sport include knowing and complying with all safety rules established by the ski area, knowing the limits of his or her abilities, and being able to maintain control of himself or herself and his or her equipment while participating in the snow sport.

The law also sets forth several safety requirements for ski area operators and requirements designed to inform participants of the dangers inherent in snow sports and of the responsibilities each participant has for his or her own safety. The requirements include inspection of lifts at the ski area and placing warning signs and informational signs as to the level of difficulty of ski trails.

Under the new law, the operator of a ski area is immune from liability for any injury sustained by a participant in a snow sport or by an observer if the injury was a result of any of the risks accepted by the participant AND the operator of the ski area has complied with the requirements. This approach suggests a comparative negligence approach to liability. So far no cases under or challenging Wis Stat Sec 167.33 have reached appellate review.

B. COMPARE WIS Stat Sec 167.33 to other states

1. COLORADO CRS §33-44-101-§33-44-114

Specifically contemplates actions for negligence including violations of statute C.R.S.§33-44-104, does not extend immunity for lifts: “The term ‘inherent dangers and risks of skiing’ does not include the negligence of a ski area operator as set forth in section 33-44-104(2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.”C.R.S. §33-44-103

C.R.S. 33-44-106 Specifies duties for Marking trails and boundaries in language very similar to Wis Stat Sec 167.33 and Colorado rulings suggest cases presenting questions of fact:  **See Anderson v. Vail Corp., 251 P.3d 1125 (Colo.App.Div. 3 2010, reversing dismissal on statute finding questions of fact as to compliance with requirements for designating trails and boundaries with signs visible under ordinary conditions.

C.R.S.33-44-113: Limitation on damages of 1 million on direct claims and $250000 on derivative claims.

2. IDAHO Idaho Code § 6-1101 – 6-1106

Specifies that operator of lifts, tramways must comply with ANSI safety requirements for tramways.

5. Guarding hazards:  Markedly different from some other states’ Ski Safety Acts the Wisconsin statute evinces little concern for padding mountain hazards such as towers, hydrants and other obstacles. The statute does not require all obstacles of a certain class to be padded, as is the case in some states, but just requires the resort to formulate a written policy for where padding should be placed to minimize risk to skiers and snowboarders.

6. Helmets: Paradoxically, at a time when safety experts and statistics are urging the use of helmets, and some states, such as Colorado, require all minors to wear helmets while skiing or boarding, Wisconsin does not touch the issue. Some of the statute’s promoters proudly point to their “libertarian” approach in the statute that  requires ski resorts to post a sign saying that ‘helmets are recommended’ or ‘consider wearing a helmet,’ but does not require skiers or snowboarders to wear a helmet. In essence, Wisconsin has left the decision to the individuals, but is telling them not to expect recourse from the courts because they had fair warning. As if their only duty were to warn, and the consumer is the impact management, brain injury, risk assessment expert capable of making the analysis and decision: like, say, Sonny Bono or Michael Kennedy or Natasha Richardson.

II. STATUTORY INTERPRETATIONS – MICHIGAN: CASES IN POINT

1. Kent v Alpine Valley Ski Area, Inc 240 Mich. App. 731, 613 N.W.2d 383 ( 2000). [Full text – Appendix C. 1.]

A grandfather and his grandson were injured when the chair lift arrived before they were “ready”, knocked them down and dragged grandfather 16 feet injuring both. Plaintiff asserted several claims of negligence in operating the lift: …(2) the lift operator failed to slow or stop the chair for loading, (3) the lift operator failed to stop the chair when he saw it arriving before plaintiff and Jeremy were ready to get on, (4) the lift operator violated a basic industry safety practice by failing to stop the chair as soon as the “mis-load” happened… Trial court and Court of Appeals dismissed holding that plaintiff’s claim was barred by the Ski Area Safety Act (SASA), M.C.L. § 408.321 et seq.; MSA 18.483(1) et seq., which precludes recovery for injuries caused by collisions with ski lifts or components thereof and injuries caused by the lift user’s failure to use it properly. The Michigan Supreme Court devoted most of its opinion affirming dismissal to concepts of interpretation of the SASA.

Wis Stat Sec 167.33 refers to lifts four times: once in Sec (4) requiring annual inspection and once in Sec (1) by inclusion in ski area infrastructure and again in Sec (2) involving risk of collision and in Sec (5) several times when listing duties to board and deboard lifts. Nowhere does the statute mention a duty to operate lifts safety or in conformity to industry standards, nor abolish the common law duty to do so. Nothing in the statute provides for immunity from liability for a lift that strikes a conforming user. Wis Stat Sec 167.33 imposes a duty on the area operator to designate open trails but does not specify a duty to designate closed areas, and refers several times to duties of participants not to enter closed areas. Kent v Alpine provides a glimpse of claims filed under the oldest Ski Safety Act concerning duties of skiers and duties of area operators.

In Barr, supra, a skier hit a tree within a cluster of trees that the defendant considered an out-of-bounds area but that was not fenced off or marked as closed as the plaintiff claimed was required by the SASA. The plaintiff argued that, because of that noncompliance, the defendant was not entitled to the protection of the act’s assumption of the risk clause, M.C.L. § 408.342(2); MSA 18.483(22) (2). Writing for this Court, Judge, now Justice, Markman found that the act does not condition application of the assumption of risk provision on compliance with other sections of the act; that, by the mere act of skiing, the plaintiff assumed the risk that he would be injured colliding with a tree, which is a danger enumerated by the statute; and that the defendant was not required to mark as “closed” an area that was never “open.” Barr, supra at 519, 522, 546 N.W.2d 273. Again, however, the opinion reiterated that M.C.L. § 408.344; MSA 18.483(24) suggests that a comparative negligence analysis may be applicable under certain circumstances, even an incident involving a tree, such as where a skier is injured trying to avoid improperly marked construction equipment or a beginner collides with a tree on an “expert” slope improperly marked as a “beginner” slope. Id. at 520-521, 522-523, 546 N.W.2d 273.4

However chilly and facile Judge now Justice Markman’s solipsistic disposal of the operator’s duty to warn, this case does provide a glimpse of one conceptual approach to bringing cases within Wisconsin 167.33.  Plaintiff can demonstrate that viewing the statute as a whole with its many references to duties, compliance and assumption of risk that the statute suggests a comparative negligence analysis. The Kent v Alpine Court did observe:

“Moreover, we agree that, as stated in Grieb, supra, and Barr, supra, the statute, as amended, suggests a comparative negligence analysis in certain circumstances.”

2. ANDERSON v. PINE KNOB SKI RESORT, INC., 469 Mich. 20, 664 N.W.2d 756(2003) [Full text – Appendix C.2.]

Anderson v Pine Knob is a chilling example of the Supreme Court reversing the trial and appellate courts by applying an eiusdem generis “rationale”, the dangerous stretching of one term to reach a subject not specified in the statute. Robert Anderson, a ski racer, collided with the timing shack that had been – oddly – placed at the foot and side of the race run. Michigan’s SASA did not include race structures or timing shacks among the specified “inherent risks” assumed by skiers, seducing the Court with its undistributed middle and taxing the Court to fit the shack into the statute and reverse.

There is no disputed issue of fact in this matter that in ski racing, timing, as it determines who is the winner, is necessary. Moreover, there is no dispute that for the timing equipment to function, it is necessary that it be protected from the elements. This protection was afforded by the shack that all also agree was obvious in its placement at the end of the run. We have then a hazard of the same sort as the ski towers and snow-making and grooming machines to which the statute refers us. As with the towers and equipment, this hazard inheres in the sport of skiing. The placement of the timing shack is thus a danger that skiers such as Anderson are held to have accepted as a matter of law.

In adopting this approach, we reject the argument of the plaintiff, which was adopted by the Court of Appeals, that, while some sort of protection of the timing equipment may have been required, the shack was larger and more unforgiving than other imaginable, alternative timing-equipment protection might have been. We find nothing in the language of the statute that allows us to consider factors of this sort. Once hazards fall within the covered category, only if they are unnecessary or not obvious is the ski operator liable.

Wis Stat Sec 167.33 consistently specifies inclusive lists without any language “and the like” inviting extension of the list, as was spuriously done by the Michigan Court. In fact the statute is so detailed and extensive that it is clear if the legislature had intended to add timing shacks or lift malfunctions it would have.

III. WHAT LAWYERS on the side of people MIGHT DO

A. RECOGNIZING LIABILITY – under Wis Stat Sec 167.33

  • Sec (4)(b)(1)(c) duty to “have lifts inspected by qualified list inspector to determine whether the lift is in compliance with rules promulgated by department of safety and professional services”: fertile ground for non-compliant lifts, lifts that subsequently become unsafe, non-compliant, dangerous.
  • Duty to warn: Sec (3) (f)”Signs required; trails and terrains. Each ski area operator shall designate the trails that are open for skiing in its ski area and shall determine the difficulty level of each trail. The ski area operator shall post and maintain a sign at or near the beginning of each trail. The sign shall contain the name of the trail and all of the applicable wording and emblems specified in this paragraph to describe the difficulty level of the trail or terrain. The sign shall be at least 4 square feet in size…”
  • Sec (1)(p) “Tree skiing area” means an area open to skiing, that is not groomed for skiing, and that is forested.” Arguably this supports a duty to warn and mark open and closed forest areas.
  • Liability for conditions: Sec (2) (b). generally the statute burdens the skier/rider with the risks of injury from:

“The presence of surface or subsurface conditions, including any of the following:

Snow, ice, crust, slush, soft spots, holes, grooves, bare spots, cuts, rocks, boulders, or tracks from ski area vehicles.

This description of conditions does not include “death cookies” large chunks of deadly ice created by repeatedly grooming manmade snow.

  • Liability for collision with skier or rider out of control because of alcohol sold on premises: Is a drunken skier an inherent risk of skiing? Is a drunken groomer operator or snowmobile operator an inherent risk of skiing? Action against an individual skier – does immunity extend?
  • Sec(4)(ag) duty to mark man-made structures (hydrants, water pipes etc) not readily visible under ordinary conditions from 100 ft
  • Sec (4)(ar) protective padding: Duty to formulate written policies for guarding:

Is an unmarked unpadded snow hydrant in the open trail outside the tree line an inherent risk of skiing?

If skier is injured in collision with unguarded lift tower and area has no policy or has not complied with its own policy violation of 167.33 = negligence per se.

  • “Ski area operators have always considered skier safety a high priority and as part of the Skier Safety Act, will continue to post signs, mark snowmaking hydrants and maintain and adhere to written padding and vehicle operation policies.”WSIA representative remarks. What’s wrong with this picture? “mark” hydrants: is their only duty to warn? Or to use reasonable care for skier safety? What about padding and guarding hydrants? What about moving them out of the trails?
  •  “Snowmaking equipment” includes pipes, hoses, hydrants, snow guns, fans, wands, pumps, and any other equipment associated with making snow.” Does not extend to the river, pond, lake, reservoir or other water feature from which water is drawn to make snow.
  • Sec (1)(h)“ski area” defined as “administered as a single enterprise” what does that mean in terms of identifying defendants – if a large trust owns and runs 5 different areas in 3 different states does it share liability with the local operator?
  • Sec (4) (b) 2. Must close a trail on which a groomer is operating during lift hours, and any groomer traversing mountain must be escorted in advance to warn users.

B. DEVELOPING LIABILITY for SNOW SPORTS INJURIES

1. PRINCIPLES of LIABILITY

a. STANDARD of Care:How could due care on the part of a collectable entity at the time of injury have                                         prevented foreseeable injury where “reasonable” means scientifically and economically                                          feasible?

b. QUESTIONS of material fact requiring jury determination

c. COMPARATIVE negligence analysis

d. EVIDENCE: –

a. witnesses- identify persons who were present, lift operators, ski patrol, other skiers

b. get to know some patrollers you can trust,

c. get photos at scene immediately, trail maps and trail markers

d. get area policies and get sample policies from other areas, from NSAA, WSIA, and ANSI

2. CHALLENGING 167.33

a. Article 1 §9 – entitled to a certain remedy for all injuries or wrongs…but then “conformably to the laws.”

b. Legislative Intent – Doering v. WEA Ins. Group, 193 Wis.2d 118, 532 N.W.2d                                                                432 (Wis., 1995)

“As we explained earlier, one public policy justification for common law immunity was a desire to avoid exposing suppliers to liability every time they furnish alcohol beverages. The legislature may have intended sec. 125.035 to protect alcohol beverage suppliers in the same manner.”                                                                                    *           *           *           *           *

“In short, the legislature might have been persuaded, even if this court is not, that the consequences of imposing liability for negligently supplying alcohol beverages to persons of legal drinking age would place too great and unjust a financial burden on the suppliers of alcohol beverages, even when balanced with the seriousness of the injury caused by intoxicated persons.”

c. Public Policy – Stephenson v. Universal Metrics, Inc., 2002 WI 30, 251 Wis. 2d 171,                                                 641 N.W.2d 158 (Wis., 2002)

“When determining whether or not to limit a defendant’s tort liability on public policy grounds, this court has identified a number of factors that must be considered. Recovery against a negligent tortfeasor can be denied on the grounds of public policy when (1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor’s culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; (4) allowing recovery would place too unreasonable a burden upon the tortfeasor; (5) allowing recovery would be too likely to open the way to fraudulent claims; or (6) allowing recovery would have no sensible or just stopping point. Rockweit, 197 Wis. 2d at 426; Colla v. Mandella, 1 Wis. 2d 594, 598-99, 85 N.W.2d 345 (1957). Although this type of public policy analysis is a function of the court, Coffey, 74 Wis. 2d at 541, here we think it is also appropriate to look at the aforementioned factors in light of relevant legislative enactments. If one or more of these factors so dictates, the court may refuse to impose liability in a case. In assessing the present case, we conclude that several of the public policy factors apply and that they preclude liability against Kreuser.

CONCLUSION

If Wisconsin’s ski industry was generating $317 million without giving them injurious immunity, why protect them from the consequences of their negligence in the design, maintenance and operation of their own business? Keep asking ski area operators and owners:  Have your insurance premiums gone down? Is it time to regulate the insurance cartel?

SB388 was engineered by insurers who hoodwinked ski area operators and owners and managers to lobby for this misguided immunity that “protects” them from litigation, sells out their patrons – skiers and snowboarders and families – with no protection from injury or death and no incentive to use reasonable care to avoid injury and ultimately places the cost of these injuries on taxpayers. BUT these insurers will continue to charge them the same premiums for their insurance. …and subjects taxpayers to liability for the care and rehabilitation of the injured and their families.

The only way society gets reasonable safety is through liability. Tort law is a hammer forging a safer society. The foundation of our ordered liberty and of our democracy is the duty of every person to use reasonable care to avoid harm to others. Wisconsin courts have safeguarded this principle. Trial lawyers for people must carry that banner because the law is never settled until it is right; it is never right until it is just, and it is never just until it serves society to the fullest, not just casualty insurers, and snow sports owners and operators such as CRET.


 

APPENDIX A:   WISCONSIN STATUTE 167.33

Section 167.33 Snow sports

(1) Definitions. In this section:

(a) “Affiliate” means:

1. With respect to a partnership, each partner thereof.

2. With respect to a limited liability company, each member thereof.

3. With respect to a corporation, each officer, director, principal stockholder, and controlling member thereof.

(b) “Competition” means any event authorized by a ski area operator, or by an agent of a ski area operator, that involves a comparison of skills used in one or more snow sports. “Competition” includes training sessions for such an event.

(c) “Freestyle features” means man-made features that include boxes, jumps, hits, jibs, tabletops, spikes, take-off ramps, landings, banks, half pipes, picnic tables, logs, and pipes.

(d) “Freestyling” means mogul jumping, mogul skiing, ski jumping, aerial skiing, ski cross, ski ballet, snowboarding, and any other similar snow sport.

(e) “Hazard” means any man-made or natural obstacle or hazard. “Hazard” includes ridges, sharp corners, jumps, bumps, moguls, valleys, dips, cliffs, ravines, and bodies of water.

(f) “Lift” means any aerial tramway or lift, a surface lift, a tow, or a conveyor used by a ski area operator to transport participants in snow sports at a ski area.

(g) “Participant in a snow sport” means an individual who is engaged in a snow sport or who is walking or otherwise traveling within a ski area for purposes of engaging in the sport. “Participant in a snow sport” also means an individual who is present at a ski area to observe others engaged in a snow sport or who is a passenger on a lift. “Participant in a snow sport” includes an individual that is an employee of a ski area operator when he or she is acting outside the scope of his or her employment.

(h) “Ski area” means trails, terrains, and other outdoor areas that are used by individuals engaged in snow sports and that is administered as a single enterprise by a ski area operator.

(i) “Ski area infrastructure” means lifts and any associated components, snowmaking equipment and any associated components, and utility structures, buildings, huts, signs, lift mazes, fences, or other structures located within a ski area.

(j) “Ski area operator” means a person that owns or is responsible for operating a ski area or its affiliates. “Ski area operator” includes the employees and agents of a ski area operator.

(k) “Ski area vehicle” means a motorized vehicle used in the operation and maintenance of a ski area or used as transportation within a ski area.

(L) “Skiing” means downhill skiing, alpine skiing, Nordic skiing, cross-country skiing, telemarking, snowshoeing, or snowboarding.

(m) “Sledding” means sliding down a prepared course on sleds, toboggans, ski bikes, or comparable devices. “Sledding” excludes tubing.

(n) “Snowmaking equipment” includes pipes, hoses, hydrants, snow guns, fans, wands, pumps, and any other equipment associated with making snow.

(o) “Snow sport” means skiing, sledding, tubing, or freestyling.

(p) “Tree skiing area” means an area open to skiing, that is not groomed for skiing, and that is forested.

(q) “Tubing” means sliding down a prepared course on inflatable tubes, minibobs, or comparable devices.

(2) Conditions and risks of snow sports. For purposes of this section, conditions and risks consist of all of the following:

(a) Changes in weather or visibility.

(b) The presence of surface or subsurface conditions, including any of the following:

1. Snow, ice, crust, slush, soft spots, holes, grooves, bare spots, cuts, rocks, boulders, or tracks from ski area vehicles.

2. Forest growth or debris, including stumps, logs, or brush.

(c) Ridges, sharp corners, bumps, moguls, valleys, rollers, dips, cliffs, ravines, and double fall lines.

(d) Variations in the difficulty of terrain, surface conditions, or subsurface conditions on a single trail or terrain or among trails or terrains that are designated the same level of difficulty at the ski area or at another ski area.

(e) The risk of injury or death on trails and terrains that fall away or drop off toward hazards.

(f) The risk of collision with other participants in snow sports, employees of a ski area operator, or ski area infrastructure.

(g) Variation in the location, construction, configuration, or steepness of trails or terrains.

(h) The greater risk of collision, injury, or death in treed areas, in areas where competitions are held, and in areas where freestyling is allowed.

(3) Duties of ski area operators; signage; notice.

(a) Notice on tickets required. Each ski area operator shall print on each ticket or season pass that it issues to participants in snow sports the following warning:

“WARNING: Under Wisconsin law, each participant in a snow sport assumes the risk of injury or death to person or injury to property resulting from the conditions and risks that are considered to be inherent in a snow sport, has a number of duties that must be met while engaging in a snow sport, and is subject to limitations on the ability to recover damages from a ski area operator for injuries or death to a person or to property. A complete copy of this law is available for review at the main site where tickets to this ski area are sold.”

(b) Signs required; generally. Each ski area operator shall post and maintain a sign that is at least 10 square feet in size at or near each of the sites where tickets to the ski area are sold, at or near each of the entrances or lift loading areas for areas that are open to snow sports, and at or near each area open to sledding or tubing which is not served by a lift. The sign shall contain the following warning:

“WARNING — ASSUMPTION OF RISKS: Under Wisconsin law, each participant in a snow sport is considered to have accepted and to have knowledge of the risk of injury or death to person or injury to property that may result. Under Wisconsin law, each participant in a snow sport has the duty to take the precautions that are necessary to avoid injury or death to person or injury to property. Wisconsin law sets forth certain other limitations on the liability of ski area operators for injuries or death to person or injury to property. A complete copy of this law is available for review at the main site where tickets to this ski area are sold.”

(c) Copies of law. Each ski area operator shall post and maintain a current copy of all of the provisions of this section at the main site where tickets to the ski area are sold and shall make a copy of it for any individual upon request.

(d) Signs required; skiing or sledding areas. In addition to the sign required under part (b), each ski area operator shall post and maintain a sign that is at least 10 square feet in size at or near each entrance to a loading area of a lift that serves areas open to skiing or sledding. The sign shall contain the following warning:

“WARNING — DUTIES OF INDIVIDUALS ENGAGED IN SKIING OR SLEDDING: Under Wisconsin law, each individual engaged in skiing or sledding has a duty to do all of the following:

1. Obey all posted warnings and signs.

2. Keep off of closed trails and out of closed areas.

3. Know the range of his or her ability and engage in skiing or sledding within that ability.

4. Assess the difficulty of the trails and terrains that are open to skiing or sledding.

5. Maintain control of his or her speed and direction.

6. Be able to stop or avoid other individuals or objects.

7. Yield to other individuals engaged in skiing or sledding who are ahead or who are down the slope.

8. Not stop at a point that will result in the individual obstructing a trail or not being visible from above.

9. Yield to other individuals engaged in skiing or sledding who are uphill when starting downhill or when merging onto a trail.

10. Be able to safely board, ride, and deboard any lift serving an area open to skiing or sledding.

11. Board and deboard a lift only at designated sites.”

(e) Signs required; tubing areas. In addition to the sign required under part (b), each ski area operator shall post and maintain a sign that is at least 10 square feet in size at or near each entrance to a loading area of a lift that serves areas open to tubing or at or near an entrance of an area open to tubing that is not served by a lift. The sign shall contain the following warning:

“WARNING — DUTIES OF INDIVIDUALS ENGAGED IN TUBING: Under Wisconsin law, each individual engaged in tubing has a duty to do all of the following:

1. Obey all posted warnings and signs.

2. Keep out of closed areas.

3. Know the range of his or her ability and engage in tubing within that ability.

4. Assess the difficulty of the terrain that is open to tubing.

5. Maintain control of the speed and direction of the tube or other device that is being used.

6. Comply with any posted limits imposed on the number of passengers or on the amount of weight of the tube or other device while it is being ridden.

7. Be able to safely board, ride, and deboard any lift serving an area open to tubing.

8. Board and deboard a lift only at designated sites.

9. Yield to other individuals engaged in tubing who are ahead or who are down the slope.

10. Look uphill and yield to oncoming tubes before leaving the bottom of the hill at the end of a run.

(f) Signs required; trails and terrains. Each ski area operator shall designate the trails that are open for skiing in its ski area and shall determine the difficulty level of each trail. The ski area operator shall post and maintain a sign at or near the beginning of each trail. The sign shall contain the name of the trail and all of the applicable wording and emblems specified in this paragraph to describe the difficulty level of the trail or terrain. The sign shall be at least 4 square feet in size. Each sign shall contain one or more of the following designations that are applicable:

1. The word “easier” with an emblem consisting of a green circle.

2. The words “difficult” or “more difficult” with an emblem consisting of a blue square.

3. The words “most difficult” with an emblem consisting of a black diamond.

4. The word “expert” or “extreme” with an emblem consisting of 2 black diamonds.

5. The words “freestyling area ahead” with an emblem consisting of an orange oval.

6. The words “tree skiing — caution.” The sign shall have an orange background or orange lettering with a black or white background and shall contain the additional statement: “This back country trail is not groomed or patrolled — Never ski here alone.”

(g) Areas open to freestyling; signs and barricades required. A ski area operator shall designate an area as an area for freestyling if it contains one or more freestyle features. A ski area operator shall construct and maintain a barricade with fencing, roping, or similar means at the entrance to such an area. The opening in the barricade may not be wider than 30 feet. The ski area operator shall post and maintain a sign at or near the entrance of the area that is at least 3 square feet in size and that shows the boundaries of the area open to freestyling. The sign shall contain emblems consisting of a stop sign and orange oval. The sign shall contain all of the following:

1. The words “freestyling skills required.”

2. The words “helmets are recommended” or “consider wearing a helmet.”

(h) Lifts; signs required. For each lift that is used by individuals engaged in skiing and that does not serve any trail that is described under par. (f) as “easier,” the ski operator shall post and maintain, at or near the loading area for the lift a sign that is at least 10 square feet in size near or at the entrance of the loading area. The sign shall contain the following warning:

“WARNING: This lift does not serve any trails that are “easier” (marked with a green circle emblem). All of the trails served by this lift are “difficult” or “more difficult” (marked with a blue square emblem), “most difficult” (marked with a black diamond emblem), “expert” or “extreme terrain” (marked with an emblem consisting of 2 black diamonds), or “freestyling terrain ahead” (marked with an orange oval).”

(i) Ski area vehicles; signs required. A ski area operator shall post and maintain signs on various trails or lift towers throughout the ski area that are at least 4 square feet in size that contain the following statement: “Caution: Ski area vehicles may be in operation at any time.”

(j) Variation of signs.

1. In lieu of posting and maintaining each of the separate signs required under part. (b) and part. (d) or (e), a ski area operator may post and maintain a single sign that is at least 12 square feet in size and that contains all of the required warnings.

2. A ski area operator may, in a ski area with fewer than 100 acres in use for a snow sport vary from the specific wording, size, and location requirements for signs specified under this subsection, but any variation may not preclude a reasonably prudent participant in a snow sport from finding or understanding the contents of the sign.

(4) Duties of ski area owners; other duties.

(a) Maps. Each ski area operator shall post and maintain a map of the trails and terrains in the ski area that are designated for any snow sport at all of the sites where tickets to the ski area are sold if the ski area has more than 3 trails. The map shall contain the names of each trail or terrain and a description of the level of difficulty for each trail as determined by the ski area operator under sub. (3) (f). The sign shall be at least 32 square feet in size.

(ag) Markings. Each ski area operator shall mark hydrants, water pipes, and any other man-made structures on a ski area that are not readily visible to participants in a snow sport under conditions of ordinary visibility from a distance of at least 100 feet. A ski area operator may use any type of marker, including a wooden or bamboo pole, flag, or sign if the marker is visible from a distance of 100 feet and if the marker itself does not constitute a serious hazard to participants in a snow sport. Variations in steepness or terrain, whether natural or as a result of slope design, snowmaking, or grooming operations, including roads, catwalks, or other terrain modifications, are not man-made structures for the purpose of this paragraph.

(ar) Padding policies. A ski area operator shall adopt a written policy determining which man-made ski area infrastructures require protective padding and determining the type, height, thickness, and color of the padding. The policy shall take into consideration factors including the infrastructure’s size and location at the ski area and its visibility to the public under conditions of normal visibility.

(b) Ski area vehicles.

1. Each ski area operator shall ensure that each ski area vehicle that is present on a trail during the hours in which a lift is being operated shall display all of the following:

a. A flashing light on or near the top of the ski area vehicle whenever the ski area vehicle’s engine is on.

b. If the ski area vehicle is an all-terrain vehicle, a snowmobile, or a similarly sized motorized vehicle, in addition to the flashing light as specified in subd. 1., a red or orange flag that is at least 40 square inches in size and that is mounted at least 5 feet from the bottom of the tracks or tires.

2. If any grooming operations take place on a ski trail during hours in which a lift is being operated, the ski area operator shall close that trail to the public at the top entrance to the trail until the grooming operations are complete on that trail. If a groomer is traversing part of a ski area that is not part of a ski trail during hours in which a lift is being operated, the ski area operator shall provide an escort for the groomer to warn guests of the approaching groomer.

3. A ski area operator shall have a written policy that specifies the training required for anyone to operate a snowmobile or an all-terrain vehicle within the ski area, and shall have a written policy addressing recommended routes for snowmobiles or all-terrain vehicles to follow when used during the hours in which a lift is being operated.

4. No ski area operator may allow anyone under the age of 18 to operate a snowmobile or an all-terrain vehicle within the ski area.

5. Any employee of a ski area operating a snowmobile or an all-terrain vehicle shall possess a valid driver’s license.

6. A ski area operator shall prohibit the use of privately owned snowmobiles or all-terrain vehicles within the ski area during the hours in which a lift is being operated.

7. The operator of a snowmobile or an all-terrain vehicle may not operate the vehicle at a rate of speed greater than is reasonable.

8. Whenever possible, the person operating a snowmobile or an all-terrain vehicle within a ski area during the hours in which a lift is being operated shall give skiers the right-of-way.

(c) Lift inspections. Annually, a ski area operator shall have all of the lifts located in its ski area inspected by a qualified lift inspector to determine whether the lift is in compliance with the rules promulgated by the department of safety and professional services.

(d) Lift inspectors. In order to be a qualified lift inspector for purposes of part (c), an individual shall be either or both of the following:

1. An individual authorized by the department of safety and professional services to make inspections of lifts pursuant to ch. 101.

2. An individual who has knowledge of the requirements of the rules specified in par. (c) and of the design and operation of lifts and who has one of the following:

a. A degree of engineering from a recognized university.

b. Experience as an inspector of lifts for an insurance company that has provided liability insurance coverage to any ski area.

(5) Duties of individuals engaged in snow sports.

(a) Safety rules; skiing and sledding. Each individual engaged in skiing or sledding at a ski area has a duty to do all the following:

1. Obey all posted warnings and signs.

2. Keep off of closed trails and out of closed areas.

3. Know the range of his or her ability and engage in skiing or sledding within that ability.

4. Assess the difficulty of the trails and terrains that are open to skiing or sledding.

5. Maintain control of his or her speed and direction.

6. Comply with any posted limits that are imposed on the number of passengers or on the amount of weight of the sled or other sledding device while it is being ridden.

7. Be able to stop or avoid other individuals or objects.

8. Yield to other individuals engaged in skiing or sledding who are ahead or who are down the slope.

9. Not stop at a point that will result in the individual obstructing a trail or not being visible from above.

10. Yield to other individuals engaged in skiing or sledding who are uphill when starting downhill or merging onto a trail.

11. Be able to safely board, ride, and deboard any lift serving an area open to skiing or sledding.

12. Board and deboard a lift only at designated sites.

13. If involved in a collision with another participant in a snow sport that results in injury or death, not leave the vicinity of the collision before giving his or her name and current address to an employee of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision. A person who leaves the scene of the collision for the purpose of securing aid shall give his or her name and current address after securing the aid.

(b) Safety rules; tubing. Each individual engaged in tubing at a ski area has a duty to do all of the following:

1. Obey all posted signs and warnings.

2. Keep out of closed areas.

3. Know the range of his or her ability and engage in tubing within that ability.

4. Assess the difficulty of terrain that is open to tubing.

5. Maintain control of his or her speed and direction.

6. Comply with any posted limits that are imposed on the number of passengers or on the amount of weight of the tube or other tubing device while it is being ridden.

7. Be able to safely board, ride, and deboard a lift serving an area open to tubing.

8. Board and deboard a lift only at designated sites.

9. Yield to other individuals engaged in tubing who are ahead or who are down the slope.

10. Look uphill and yield to oncoming tubes before leaving the bottom of the hill at the end of a run.

11. If involved in a collision with another participant in a snow sport that results in injury or death, not leave the vicinity of the collision before giving his or her name and current address to an employee of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision. A person who leaves the scene of the collision for the purpose of securing aid shall give his or her name and current address after securing the aid.

* * *

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APPENDIX B: Pre-Statute CASE

RYAN CASS V. AMERICAN HOME ASSURANCE COMPANY & GRANITE PEAK CORPORATION, COA NO.             2004AP3141. (2005)

¶1 PER CURIAM.

Ryan Cass appeals a summary judgment determining a signed release of liability bars his negligence claim against the Granite Peak Corporation. Cass argues the release is void as contrary to public policy. We conclude the release does not apply to the negligent act of the employee in this case and, consequently, we reverse the judgment and remand for further proceedings.

Background

¶2 Cass purchased a season pass for Granite Peak, a ski hill at Rib Mountain State Park. The application for the pass consists of one page and includes season pass rules, a responsibility code, pass policies, and a release of liability. The release states:

RELEASE OF LIABILITY: I understand and accept the fact that skiing/snowboarding in its various forms is a hazardous sport that has many inherent dangers and risks. I realize that injuries are a common and ordinary occurrence of these sports. In consideration of the right to purchase a season pass, I freely accept and voluntarily assume all risk of personal injury or death or property damage, and HEREBY RELEASE AND FOREVER DISCHARGE GRANITE PEAK CORPORATION and the State of Wisconsin, and their agents, employees, owners, directors, officers and shareholders from any and all liability which results in any way from any NEGLIGENCE of GRANITE PEAK CORPORATION or the State of Wisconsin, or their owners, agents, employees, directors, officers, and shareholders with respect to the design, construction, inspection, maintenance, or repair of the conditions on or about the premises or facilities, including equipment or the operation of the ski areas, including but not limited to grooming, snow making, trail design, ski lift operations, including loading and unloading, conditions on or about the premises, and conditions in or about the terrain park including manmade features, or my participation in skiing, snowboarding, or other activities in the area, accepting for myself the full responsibility for any and all such damage or injury of any kind which may result. The performance of inverted ariel maneuvers is strongly discouraged by Granite Peak Corporation. These activities are extremely dangerous and can result in severe debilitating injuries, paralysis, or even death. I, the undersigned, have carefully read and understand the terms of the season pass and the RELEASE OF LIABILITY, which is an essential part of the season pass terms. I am signing this season pass and RELEASE OF LIABILITY freely and of my own accord. I understand that by signing this RELEASE OF LIABILITY I am waiving certain legal rights, including the right to sue. I realize this season pass and RELEASE OF LIABILITY is binding upon myself, my heirs and assigns, and in the event that I am signing it on behalf of any minors (ages 17 & under), I have full authority to do so, realizing its binding effect on them as well as myself.

CAUTION! READ BEFORE SIGNING. THIS DOCUMENT AFFECTS YOUR LEGAL RIGHTS AND WILL BAR YOUR RIGHT TO SUE.

¶3 On November 15, 2003, while Cass was snowboarding down an established run, he and a snowmobile driven by a Granite Peak employee collided.1 The employee testified at his deposition that he was “driving uphill to investigate some young people building jumps.” As a result of the collision, Cass suffered injuries, including permanent disabilities, and filed this suit against Granite Peak and its insurer.

¶4 Granite Peak moved for summary judgment, arguing the release of liability barred recovery. The circuit court agreed with Granite Peak and granted its motion. Cass appeals.

Discussion

¶5 We review summary judgments de novo, using the same methodology as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). That methodology is well established and we will not repeat it here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶20-24, 241 Wis. 2d 804, 623 N.W.2d 751. This case turns on our interpretation of the release of liability. Atkins v. Swimwest Fam. Fitness Ctr., 2005 WI 4, ¶12, 277 Wis. 2d 303, 691 N.W.2d 334. Generally, we analyze exculpatory clauses using contract principles. Id., ¶13. Contract interpretation is a question of law we review de novo. Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 460, 405 N.W.2d 354 (Ct. App. 1987). Exculpatory clauses or liabilityreleases are also reviewed on a public policy basis. Atkins, 277 Wis. 2d 303, ¶13.

¶6 “For a contractual inquiry, we need only `look to the contract itself to consider its validity. Specifically, we examine the facts and circumstances of the agreement’ … to determine if it was broad enough to cover the activity at issue.” Id. (citation omitted). If the waiver or release does not cover the activity, “the analysis ends and the contract should be determined to be unenforceable in regard to such activity.” Id. If the activity is covered, we may then proceed to a public policy analysis. Id.

¶7 Here, the alleged negligence is Granite Peak’s employee driving the snowmobile to investigate the patrons constructing jumps. Granite Peak’s affirmative defense is that “Cass assumed the risks inherent in the sport of skiing/snowboarding, specifically by executing” the release. It also argues there is “no dispute the Granite Peak snowmobile operator was inspecting the conditions on the Granite Peak premises, an activity expressly covered” by the release. We disagree.

¶8 We start by pointing out that the entire release paragraph, containing approximately 376 words, is for the most part in fine print. Granite Peak argues “the plain-English release language in the Granite Peak release is a far cry from Richards’2 confusing release packed with legalese.” However, the exculpatory language of this release is a 176-word run-on sentence. While not packed with legalese, it is also unendowed with any particular clarity.

¶9 Although they are not invalid per se, Wisconsin case law does not favor these exculpatory clauses. Atkins, 277 Wis. 2d 303, ¶12. A release of liability must “clearly, unambiguously, and unmistakably inform the signer of what is being waived.” Id., ¶15 (quoting Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 84, 557 N.W.2d 60 (1996)). Moreover, we strictly construe such releases against the party seeking to rely on them. Atkins, 277 Wis. 2d 303, ¶12. We conclude the release in this case is not sufficiently clear, unambiguous, or unmistakable to release Granite Peak from the alleged negligence in this case.

¶10 First, the release refers to skiing and snowboarding as having “many inherent dangers and risks,” and Granite Peak argues Cass assumed those risks. It is not self-evident, however, that injury by Granite Peak’s employee’s negligent operation of a snowmobile, driven against the flow of skiers and snowboarders, is an “inherent” risk, or a “common and ordinary occurrence” associated with these sports.3

¶11 Second, we reject Granite Peak’s argument that the release expressly covers the employee’s actions. The employee testified he was “driving uphill to investigate some young people building jumps.” The release says nothing about Granite Peak’s monitoring other users on the hill or the possibility of snowmobiles or other maintenance vehicles operating against the flow on active ski hills. Nonetheless, Granite Peak insinuates the employee went to “inspect conditions on Granite Peak premises.” Granite Peak’s argument is based on a strained, noncontextual reading of the release.4

¶12 We acknowledge that, if the jumps present a danger to other users, Granite Peak likely has an obligation to remove them. But the employee testified he was on his way to investigate the users, not to inspect the condition of the ski hill. We do not believe the two activities are necessarily synonymous. While this might be viewed as splitting definitional hairs, Granite Peak insists its release expressly covers the employee’s activities that day. However, we see nothing implicit in the release that covers either the negligent monitoring of other patrons or negligent use of the snowmobile. We certainly see nothing in the express language.

¶13 At best, we consider the release ambiguous as whether the employee’s actions in this case are contemplated as part of “inspection.” However, we must strictly construe the release against Granite Peak and, as such, we conclude it is inapplicable in this case. See Atkins, 277 Wis. 2d 303, ¶12. Because we conclude the release by its terms does not apply to the negligent activity in this case, we need not address the public policy arguments. Id.,

By the Court.—Judgment reversed and cause remanded.

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Notes:

1. The parties dispute whether Cass hit the snowmobile or the snowmobile hit Cass. It is irrelevant for purposes of this appeal.

2. Richards v. Richards, 181 Wis. 2d 1007, 513 N.W.2d 118 (1994).

3. We note parenthetically that Granite Peak’s corporation manager and the snowmobile operator both opined in deposition testimony that colliding with a snowmobile driven against the downhill flow is not a risk normally anticipated in skiing and snowboarding.

4. In context, the release appears to refer to an employee’s negligence that either: (1) causes the physical conditions or the equipment to present a hazard or (2) fails to identify and remove a preexisting hazard. We acknowledge, however, that “conditions” and “equipment” are not expressly so modified.

 

 

APPENDIX C: MICHIGAN CASES

1. KENT v.ALPINE VALLEY SKI AREA, INC., Alpine Valley Ski Area Leasing Company, and Devil’s Head Ski Area Leasing Company, 240 Mich. App. 731, 613 N.W.2d 383 ( 2000).

PER CURIAM.

Plaintiffs appeal as of right from an order of the Oakland Circuit Court granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10) and dismissing plaintiffs’ claims for damages arising from a skiing mishap. We affirm.

Plaintiff Michael Kent,2 his son-in-law, Daniel Werner, and his two grandchildren, 3-year-old Mitchell Werner and 5-year-old Jeremy Werner, went skiing at Alpine Valley on January 1, 1996. Plaintiff was fifty-seven years of age at the time, had skied for approximately twenty years, had received formal ski instruction, and was, according to his brief, “a fairly experienced skier.” Before the day of the mishap, Jeremy had received two or three private lessons on the bunny hill at Alpine and had been on the tow ropes, but had never been on a chairlift. Plaintiff and Daniel asked a ticket seller which hill would be safest for a beginner like Jeremy and were advised that the safest hill was the one right by the ski patrol, which was serviced by chairlift number three.

After purchasing “all area” tickets and skiing on the bunny hill for a time, plaintiff took Jeremy to lift number three. The two stood at the bottom of the hill for a few minutes so Jeremy could see how the chairlift worked and then got in line. According to plaintiff, as they approached the lift, the operator told him to move Jeremy to the inside, which would mean that Jeremy would be right next to the operator. They stepped up on some two-by-fours, but “without giving us a chance to pose ourselves, the chair came (witness smacking hands) and hit us.” The chair hit plaintiff in the back of the legs and he began to sit, but because Jeremy was much shorter, it hit him up higher, near the buttocks and lower back. Jeremy started to grab for the chair, slipped and fell under the chairlift. Plaintiff reached to grab Jeremy but the post in the center of the seat blocked his reach. Plaintiff slipped off the chair, but his left arm became entangled in the seat post, broke “immediately,” and plaintiff was dragged a number of feet before he fell off. When the chair caught plaintiff, the lift operator hit the stop button, but the chair went another twenty feet before it stopped. The lift operator testified that, as plaintiff and Jeremy approached the chair, he asked if they needed help and plaintiff said no. Plaintiff testified that he had taken his own children on chairlifts for the first time and was not concerned about taking Jeremy.

Plaintiff’s complaint alleged that defendants were negligent in the following respects: (1) the ticket seller failed to direct plaintiff to a chairlift that could have been slowed down or stopped for loading, (2) the lift operator failed to slow or stop the chair for loading, (3) the lift operator failed to stop the chair when he saw it arriving before plaintiff and Jeremy were ready to get on, (4) the lift operator violated a basic industry safety practice by failing to stop the chair as soon as the “mis-load” happened, (5) the chair had an excessive range of motion about its axis, and (6) the chairlift was not equipped with an adequate stop button.

Defendants filed a motion for summary disposition, arguing that (1) plaintiff’s claim was barred by the Ski Area Safety Act (SASA), M.C.L. § 408.321 et seq.; MSA 18.483(1) et seq., which precludes recovery for injuries caused by collisions with ski lifts or components thereof and injuries caused by the lift user’s failure to use it properly, (2) plaintiff’s claim was barred because he violated the skier responsibility code, a set of rules posted on the premises, (3) plaintiff’s claim was barred because any danger posed by the chair was open and obvious, (4) plaintiff’s claim was barred by a release printed on the back of his lift ticket, (5) plaintiff’s claim was barred because the chairlift was a simple tool, (6) plaintiff had no evidence to support his claim that the lift was operated improperly, (7) the chairlift was not defectively maintained because it was equipped with a stop button, the chairs were checked every morning for excessive swinging, the lifts had passed annual safety inspections, and the law did not require them to be equipped with a slowing mechanism, and (8) the ticket seller was not negligent by simply telling plaintiff which was the easiest hill for Jeremy.

Plaintiff responded that (1) his claim was not barred by the SASA because the act applies only to injuries that occur while one is engaged in the act of skiing itself and whether plaintiff misused the lift was a question of fact for the jury, (2) there were questions of fact for the jury to resolve, e.g., whether the ticket seller should have directed them to a lift more suitable for young children, whether the operator could have stopped or slowed the chairlift, should have helped Jeremy onto the chair, was improperly trained for his job, and whether the stop button was inadequate as indicated by plaintiff’s expert, (3) his claim was not barred by the simple tool doctrine because he did not allege a products liability claim and the chairlift was not a simple tool, (4) his claim was not barred by the open and obvious doctrine because he did not allege a premises liability claim, and (5) his claim was not barred by a release because he did not sign any agreement to waive any potential causes of action and the disclaimer of liability on the back of the lift ticket was void as against public policy.

In granting summary disposition in favor of defendants, the trial court reached only the question whether plaintiff’s claim was barred by the SASA. The court found:

In the case before this Court, Plaintiff claims that Defendant violated its duty by negligent operation of the chair lift. MCL 408.342(2) [MSA 18.483(22)(2) ] specifically refers to collisions with ski lift towers and their components. Although Plaintiff argues that it does not apply because he had not yet begun to ski, the Court is satisfied that the statute intended to apply to dangers inherent in the sport, and getting onto the chair lift is one of those dangers.

On appeal, plaintiff claims that the trial court erred in finding that his negligence claim was barred by the SASA. We disagree. A trial court’s grant of summary disposition is reviewed de novo. Amburgey v. Sauder, 238 Mich.App. 228, 231, 605 N.W.2d 84 (1999). Specifically, a court’s interpretation of a statute is reviewed de novo on appeal. Id. When reviewing a motion decided under MCR 2.116(C)(7), this Court accepts as true the well-pleaded allegations in the plaintiff’s complaint and construes them in the plaintiff’s favor. Id. The Court must consider the pleadings, affidavits, and other documentary evidence to determine whether a genuine issue of material fact exists. Where a material factual dispute exists such that factual development could provide a basis for recovery, summary disposition is inappropriate. Id. Where no material facts are in dispute, whether the claim is statutorily barred is a question of  law. Id.3

The propriety of summary disposition under the SASA must be determined in conjunction with the rules of statutory construction. Amburgey, supra at 231, 605 N.W.2d 84. A fundamental rule of statutory construction is to ascertain the purpose and intent of the Legislature in enacting the provision. Barr v. Mt. Brighton, Inc., 215 Mich.App. 512, 516, 546 N.W.2d 273 (1996). Statutory language should be construed reasonably and the purpose of the statute should be kept in mind. Id., citing Grieb v. Alpine Valley Ski Area, Inc., 155 Mich.App. 484, 486, 400 N.W.2d 653 (1986). The first criterion in determining intent is the specific language of the statute. Barr, supra at 516-517, 546 N.W.2d 273, citing House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted and courts must apply the statute as written. Barr, supra at 517, 546 N.W.2d 273, citing Turner v. Auto Club Ins. Ass’n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995).

The title of the SASA provides that the act was enacted, among other reasons, “to provide for the safety of skiers, spectators, and the public using ski areas,” “to provide for certain presumptions relative to liability for an injury or damage sustained by skiers” and “to provide for liability for damages which result from a violation of this act.” 1962 PA 199, amended by 1981 PA 86. Before the 1981 amendment, ski areas in Michigan were held to the “prudent man” negligence standard as stated in Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 369, 189 N.W.2d 208 (1971) (see Mikko, Skiing with the Ski Area Safety Act, 78 Mich. BJ 438, 439 [May 1999]). Cf., Marietta, supra, at 374-375, 189 N.W.2d 208 (Dissent by Black, J.): “[T]he majority opinion … [is] nothing less than a fast start, by our newly assembled Court, toward the goal of liability without fault for damages caused by any fortuitous injury— fatal or otherwise—that is self-inflicted in the course of a voluntarily undertaken dangerous sport.”

Soon thereafter, the Legislature (moved perhaps by Justice Black’s violenti non fit injuria dissent), “intent [on] promoting safety, reducing litigation and stabilizing the economic conditions in the ski resort industry,” Grieb, supra at 487, 400 N.W.2d 653, became concerned with making the skier, rather than the ski area operator, bear the burden of damages from injuries. Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 695, 428 N.W.2d 742 (1988), quoting from the Senate Legislative Analysis, SB 49, April 17, 1981. This would “help reduce the number of lawsuits … [thereby] stabiliz[ing] the constantly increasing insurance costs for ski area operators, which have been passed on to skiing enthusiasts through price hikes for ski lift tickets, rental equipment, waxing services, etc.” Id.

The resulting 1981 amendment included, inter alia: requirements that ski operators mark trails and hills for difficulty and closure, maintain overall diagrams of the area and post the duties imposed by the act on skiers, lift passengers, and operators, M.C.L. § 408.326a; MSA 18.483(6a); provisions regarding the conduct required of skiers on ski lifts and in ski areas, M.C.L. § 408.341; MSA 18.483(21) and M.C.L. § 408.342(1); MSA 18.483(22)(1) (e.g., the skier shall ski within the limits of the skier’s ability, is the sole judge of the skier’s ability, shall not use a lift unless the skier can use it safely, shall maintain reasonable control of speed and heed all signs and warnings); a provision for acceptance of risks by skiers, M.C.L. § 408.342(2); MSA 18.483(22)(2), infra; and a provision for skiers’ and operators’ liability for damages, M.C.L. § 408.344; MSA 18.483(24) (“A skier or passenger who violates this act, or an operator who violates this act shall be liable for that portion of the loss or damage resulting from that violation.”).

In Grieb, supra, this Court had occasion to interpret the provision for acceptance of risks by skiers, M.C.L. § 408.342(2); MSA 18.483(22)(2), which states:

Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment. [Emphasis added.]

Having reviewed the legislative history of both the act and the amendment, this Court noted that “[t]he Legislature perceived a problem with respect to the inherent dangers of skiing and the need for promoting safety, coupled with the uncertain and potentially enormous ski area operator’s liability.” Grieb, supra at 488, 400 N.W.2d 653. To solve the problem, the Legislature established rules to set out the respective responsibilities of both ski operators and skiers in the area of safety and decided that all skiers assume the obvious and necessary dangers of skiing. Id. at 489, 400 N.W.2d 653. In Grieb, the plaintiff had been struck from behind by another skier. This Court found that the statute “clearly and unambiguously provides that an injury resulting from a collision with another skier is an obvious and necessary danger assumed by skiers.” Id. at 486, 400 N.W.2d 653.

Similarly, in Schmitz, supra at 696, 428 N.W.2d 742, where a skier hit a tree, this Court found that that danger was enumerated in the statute as one for which the skier accepted the risk of danger “as a matter of law.” Significantly, this Court agreed with the plaintiff that certain sections of the SASA, particularly M.C.L. § 408.342(1); MSA 18.483(22)(1), which requires a skier to “[m]aintain reasonable control of his or her speed and course at all times,” and M.C.L. § 408.344; MSA 18.483(24), which states that a skier or operator who violates the act is liable for the portion of loss or damage resulting from that violation, “suggest[ ] a comparative negligence principle such as that articulated in Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).” Schmitz, supra at 694, 428 N.W.2d 742. However, this Court concluded

it is clear from the plain and unambiguous wording of § 22(2) that the Legislature intended to place the burden of certain risks or danger on skiers, rather than ski resort operators … [and that] it is logical to construe this section of the statute as an assumption of the risk clause that renders the reasonableness of the skiers’ or the ski operator’s behavior irrelevant. [Id. at 696, 428 N.W.2d 742.]

In Barr, supra, a skier hit a tree within a cluster of trees that the defendant considered an out-of-bounds area but that was not fenced off or marked as closed as the plaintiff claimed was required by the SASA. The plaintiff argued that, because of that noncompliance, the defendant was not entitled to the protection of the act’s assumption of the risk clause, M.C.L. § 408.342(2); MSA 18.483(22)(2). Writing for this Court, Judge, now Justice, Markman found that the act does not condition application of the assumption of risk provision on compliance with other sections of the act; that, by the mere act of skiing, the plaintiff assumed the risk that he would be injured colliding with a tree, which is a danger enumerated by the statute; and that the defendant was not required to mark as “closed” an area that was never “open.” Barr, supra at 519, 522, 546 N.W.2d 273. Again, however, the opinion reiterated that M.C.L. § 408.344; MSA 18.483(24) suggests that a comparative negligence analysis may be applicable under certain circumstances, even an incident involving a tree, such as where a skier is injured trying to avoid improperly marked construction equipment or a beginner collides with a tree on an “expert” slope improperly marked as a “beginner” slope. Id. at 520-521, 522-523, 546 N.W.2d 273.4

More recently, in McCormick v. Go Forward Operating Ltd. Partnership, 235 Mich.App. 551, 599 N.W.2d 513 (1999), a skier was injured getting off the chairlift when she fell while trying to avoid another fallen skier. The plaintiff argued that the SASA was inapplicable because the plaintiff did not assume the risk of injuries caused by avoiding fallen skiers when leaving a ski lift, and that it was not obvious and necessary for a skier, when alighting from a chairlift, to have to avoid a fallen skier. In affirming the trial court’s grant of summary disposition to the defendant, this Court found that “the language of the statute itself establishes that [the] plaintiff’s injury comes within the immunity provisions [of M.C.L. § 408.342(2); MSA 18.483(22)(2) ].” Id. at 554, 599 N.W.2d 513. This Court explained:

The statute says that collision with another skier comes within the dangers that are necessary and obvious. It does not exclude the ski lift exit area. Therefore, because plaintiff’s injury arose from the collision with another skier, or the attempt to avoid such a collision, it comes within the immunity provision of the statute. That is, by statutory definition, any collision with another skier constitutes a necessary and obvious danger for which defendant is immune.[Id.]

In a footnote, this Court added that, in contrast to the restriction of immunity for collisions with “properly marked” snow-making and snow-grooming equipment, there is no restriction on immunity for injuries arising from collisions with other skiers. Id. at n. 2.

In the case at bar, plaintiff first argues that the limitation of liability contained in M.C.L. § 408.342(2); MSA 18.483(22)(2) should apply only to collisions that occur while skiing. However, that argument is more properly addressed to the Legislature. Plaintiff also argues that, because plaintiff was not moving when he was hit by the chair, what happened in this case was not a “collision” as defined by the Random House Dictionary of the English Language: Unabridged Edition, p 290 under the subheading “physics” (“the meeting of particles or of bodies in which each exerts a force upon the other, causing the exchange of energy or momentum”). We note that, at page eighteen of plaintiff’s brief, he refers to “the collision between the chair and [plaintiff],” and further note that plaintiff’s description on the original incident report is that “while getting on chair [sic], it hit me in the back.” In any event, there is nothing in the SASA to support plaintiff’s interpretation of the word “collision” to mean that it applies only while a skier is actually in the process of skiing, or that a “collision” can occur only when both the skier and the object with which the skier collides are moving. We agree with defendants that plaintiff’s interpretation would require that we overrule past decisions uniformly finding no liability under the SASA when skiers collide with fences, trees, and other stationary objects.

Finally, plaintiff argues that, notwithstanding the SASA, a reasonable jury could find defendants negligent on one or all of the factors raised in plaintiff’s complaint. We agree with plaintiff that the statute diverges from the common law of negligence (see Ritchie-Gamester v. Berkley, 461 Mich. 73, 85, 597 N.W.2d 517 [1999]: “[T]he Legislature has yet to modify the common-law of torts regarding recreational activities, except in two narrow areas, [the Roller Skating Safety Act, M.C.L. § 445.1721 et seq.; MSA 18.485(1) et seq., and the Ski Area Safety Act, M.C.L. § 408.321 et seq.; MSA 18.483(1) et seq.]”).5 We further agree that common-law principles are not to be abolished by implication in the guise of statutory construction. Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 652, 513 N.W.2d 799 (1994). Moreover, we agree that, as stated in Grieb, supra, and Barr, supra, the statute, as amended, suggests a comparative negligence analysis in certain circumstances.

However, the case before us does not present such circumstances. First, as with McCormick, supra, the language of the statute itself establishes that plaintiff’s injury comes within the immunity provisions. The statute says that collisions with ski lift towers and their components constitute a danger that is obvious and necessary and that the skier accepts. Also, applying Schmitz, supra, and Barr, supra, when, as here, injuries occur as a result of any of the statutorily enumerated dangers, the reasonableness of the skier’s or the operator’s conduct is rendered irrelevant. The cause of plaintiff’s injury was the collision with the chairlift. There are no restrictions placed on the immunity for injuries arising from collisions with ski towers and their components, and the trial court did not err in granting summary disposition to defendants.6

However, even if we were to determine otherwise, our careful review of the record indicates that plaintiff has failed to present evidence that there was a violation of the SASA. His experts referred to that portion of American National Standards Institute (ANSI) B77.1-1992, the code which was in effect at the time of plaintiff’s injury, which states, “Should a condition develop in which continued operation might endanger a passenger, the attendant shall stop the aerial lift immediately.” But in deposition, one of plaintiff’s experts testified that the stopping distance of Hall chairlifts, the kind used in this case, is generally eight to ten feet, or six to ten feet if the emergency hydraulic brake is utilized (which arguably endangers all other skiers on the lift who might thereby be ejected). The stopping distance can vary with temperature and friction. The chair normally goes less than seven feet per second, and the operator had 1 1/2 to 2 seconds to evaluate the situation and hit the stop button. Using those figures, the operator would have had to hit the stop button before he sensed that something was wrong, an action not required by statute or ANSI regulation, to ensure that the lift stopped before hitting plaintiff and his grandson. Importantly, the experts admittedly were not present at the time of the accident and did not really know what happened except what they had been told by plaintiff who did not know when the operator hit the stop button. At best, plaintiff’s experts were guessing that the operator did not hit the stop button soon enough. They further opined, without support in the ANSI regulations, that the operator should have insisted on helping plaintiff, even when plaintiff refused his help. Plaintiff had testified that he taught his own children how to use a chairlift, knew of Jeremy’s skill level, and was not concerned about taking him on a chairlift for the first time.

Ultimately, other than generalized opinions that the stop button should be utilized whenever there are children involved and that any lift carrying children should be equipped with a slow, as well as a stop button (even though plaintiff’s expert conceded that the lack of a slow button did not violate B77), plaintiff’s experts pointed to no factual evidence to establish statutory violations by defendants that could affect the otherwise unrestricted immunity for operators when a skier collides with a chairlift. Hence, any jury verdict would necessarily have been based on speculation. It is well settled that a case should not be submitted to a jury where a verdict must rest on conjecture or guess. King v. Nicholson Transit Co., 329 Mich. 586, 593, 46 N.W.2d 389 (1951), cert. den. 342 U.S. 886, 72 S.Ct. 176, 96 L.Ed. 665 (1951).

——–

Notes:

  1. Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
  2. Plaintiff’s wife brought a derivative action for loss of consortium. Dr. Kent will be referred to as “plaintiff.”
  3. In light of our holding, it is unnecessary to address plaintiff’s claim under MCR 2.116(C)(8) and (10). See Barr v. Mt. Brighton, Inc., 215 Mich.App. 512, 515, n. 2, 546 N.W.2d 273 (1996).
  4. We note that, on October 19, 1999, the Supreme Court (Docket No. 113655), in lieu of granting leave to appeal, remanded Barrett v. Mt. Brighton, Inc., (COA Docket No.214817, lv. app. den. 11/18/98) to this Court “for consideration as on leave granted” (On Remand, Docket No. 222777). The remand order states in part:

On remand, the Court of Appeals is to consider whether defendant owed plaintiff a duty under the Ski Area Safety Act, M.C.L. § 408.321 et seq.; MSA 18.483(1) et seq., to warn skiers of the presence of a snowboarding rail. In deciding this issue, the Court of Appeals is also to consider whether a snowboarding rail is an inherent part of a ski area and whether plaintiff assumed the risk of its presence. MCR 7.302(F)(1). [461 Mich. 881, 603 N.W.2d 636 (1999).]

  1. See also 1994 PA 351, the Equine Activity Liability Act, M.C.L. § 691.1661 et seq.; MSA 12.418(1) et seq.
  2. The plaintiffs’ second argument in McCormick was that immunity should not apply where the ski area operator does not comply with safety regulations promulgated by the Ski Area Safety Board, specifically the American National Standard for Passenger Tramways (ANSI Standards) provision that requires that a lift be stopped when a situation arises that might be dangerous to passengers. 235 Mich.App. at 555-556, 599 N.W.2d 513. This Court noted that “[t]he ANSI Standards were adopted by reference by the Ski Area Safety Board … and [that] [t]he board’s authority to promulgate safety rules is derived by statute. MCL 408.326(1); MSA 18.483(6)(1).” Nonetheless, this Court found that the plaintiff had wrongly relied on Dale v. Beta-C, Inc., 227 Mich.App. 57, 574 N.W.2d 697 (1997), a case holding that pursuant to the Roller Skating Safety Act (RSSA), M.C.L. § 445.1721 et seq.; MSA 18.485(1) et seq., a roller skating rink may be liable, despite statutory immunity, where it fails to comply with safety standards promulgated by the Roller Skating Rink Operators’ Association. The McCormick Court concluded:

[T]here are no similar provisions in the SASA. That is, the SASA does not provide for the adoption of standards by outside agencies, nor does it provide for an exception to immunity for violation of any such standards. [Id. at 516, 574 N.W.2d 697.]

While we agree that the SASA does not provide for the adoption of standards by outside agencies, neither does it prohibit the adoption of such standards. Indeed, the McCormick Court notes that the ANSI standards for passenger tramways were adopted by reference by the Ski Area Safety Board. Further, we would find that the SASA arguably does provide for an exception to immunity for violation of those standards as follows:

“A skier or passenger who violates this act, or an operator who violates this act shall be liable for that portion of the loss or damage resulting from that violation. [MCL 408.344; MSA 18.483(24).]

 

 

 

2. ANDERSON v. PINE KNOB SKI RESORT, INC., 469 Mich. 20, 664 N.W.2d 756(2003)

This case concerns Michigan’s Ski Area Safety Act (SASA), M.C.L. § 408.321 et seq., and whether a skier’s collision with a timing shack is a danger that inheres in the sport, precluding recovery for injuries that result. We conclude that it is such a danger and that defendant is entitled to judgment as a matter of law under the SASA.

I. FACTS AND LOWER-COURT ACTIONS

Robert C. Anderson was a member of his high school’s varsity ski team. On January 5, 1999, he participated in an interscholastic giant-slalom competition, scheduled at Pine Knob Ski Resort, Inc. (Pine Knob). While his first run was uneventful, on his second run, after passing the last gate on the way to the finish line on the slalom racecourse, he “caught an edge” as he neared the finish line and lost his balance. Before he could recover, he collided with the shack housing the race timing equipment. He suffered lacerations to his face, arm, and leg and broke several bones and teeth.

Anderson, through his parents as his next friends, sued, alleging negligence by the resort. Pine Knob responded by seeking summary disposition on the basis that it, as a ski-area operator, was immune from premises-liability claims by recreational skiers, of the sort here presented, because of the SASA. Pine Knob also argued that summary disposition was warranted, should it fall outside the protections of the SASA, under the common-law doctrine that bars recovery for plaintiffs who are injured by open and obvious hazards. The trial court denied defendant’s motion, ruling that these claims fell outside the immunity granted by the SASA and that questions of fact existed, foreclosing summary disposition on the common-law premises-liability issue.

On appeal, the Court of Appeals affirmed in an unpublished opinion per curiam, agreeing that this circumstance fell outside the SASA. With regard to defendant’s assertion that the danger was open and obvious to plaintiff and, thus, the claim was barred on that common-law basis, the Court of Appeals agreed it was open and obvious, but held that the bar did not apply here because the risk of harm was unreasonable.

We granted defendant’s application for leave to appeal. 467 Mich. 897, 654 N.W.2d 327 (2002).

II. STANDARD OF REVIEW

This case concerns a trial court’s decision on a motion for summary disposition under MCR 2.116(C)(10), as well as a matter of statutory construction. We are asked to determine whether a set of circumstances falls within the scope of M.C.L. § 408.342(2). To do this, if the language of the statute is clear, we simply apply the terms of the statute to the circumstances of the case. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 159-160, 645 N.W.2d 643 (2002). Because this is a matter of law and concerns a summary-disposition motion under MCR 2.116(C)(10), we review de novo. Chandler v. Muskegon Co., 467 Mich. 315, 319, 652 N.W.2d 224 (2002).

III. ANALYSIS

The Legislature, in 1962, enacted the SASA in an effort to provide some immunity for ski-area operators from personal-injury suits by injured skiers. The statute states:

(1) While in a ski area, each skier shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Stay clear of snow-grooming vehicles and equipment in the ski area.

(c) Heed all posted signs and warnings.

(d) Ski only in ski areas which are marked as open for skiing on the trail board described in [MCL 408.326a(3) ].

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment. [MCL 408.342.]

As can be seen, this act specified that skiers have the responsibility to ski under control, as well as to heed signs and warnings and avoid snow-grooming vehicles and equipment. Moreover, the act continued that, by skiing, skiers are held to have accepted certain types of risks from dangers that inhere in the sport as long as those dangers are “obvious and necessary.” Id.

In determining if the potential of collision with a timing shack is a danger inherent in the sport and, if it is, whether it was a danger that was obvious and necessary, we must study the structure of the statute and the language employed by the legislators in M.C.L. § 408.342(2).

This subsection identifies two types of dangers inherent in the sport. The first can usefully be described as natural hazards and the second as unnatural hazards. The natural hazards to which the act refers without limit are “variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris….” M.C.L. § 408.342(2). The unnatural hazards include “collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.” MCL 408.342(2). For both types of hazards, the examples are clearly only examples because the Legislature specifically has indicated that the covered dangers are not limited to those expressly described. The examples are employed to give the reader guidance about what other risks are held to be assumed by the skier. We undertake this analysis by determining what is common to the examples. This exercise is what legal scholars describe as discerning meaning by use of the doctrine of ejusdem generis,1 and leads us to conclude that the commonality in the hazards is that they all inhere in the sport of skiing and, as long as they are obvious and necessary to the sport, there is immunity from suit.

With that understood about the statute and its proper construction, we turn to whether the timing shack was within the dangers assumed by plaintiff as he engaged in ski racing at Pine Knob.

There is no disputed issue of fact in this matter that in ski racing, timing, as it determines who is the winner, is necessary. Moreover, there is no dispute that for the timing equipment to function, it is necessary that it be protected from the elements. This protection was afforded by the shack that all also agree was obvious in its placement at the end of the run. We have then a hazard of the same sort as the ski towers and snow-making and grooming machines to which the statute refers us. As with the towers and equipment, this hazard inheres in the sport of skiing. The placement of the timing shack is thus a danger that skiers such as Anderson are held to have accepted as a matter of law.

In adopting this approach, we reject the argument of the plaintiff, which was adopted by the Court of Appeals, that, while some sort of protection of the timing equipment may have been required, the shack was larger and more unforgiving than other imaginable, alternative timing-equipment protection might have been. We find nothing in the language of the statute that allows us to consider factors of this sort. Once hazards fall within the covered category, only if they are unnecessary or not obvious is the ski operator liable.

To adopt the standard plaintiff urges would deprive the statute of the certainty the Legislature wished to create concerning liability risks. Under plaintiff’s standard, after any accident, rather than immunity should suit be brought, the ski-area operator would be engaged in the same inquiry that would have been undertaken if there had been no statute ever enacted. This would mean that, in a given case, decisions regarding the reasonableness of the placement of lift towers or snow groomers, for example, would be placed before a jury or judicial fact-finder. Yet it is just this process that the grant of immunity was designed to obviate. In short, the Legislature has indicated that matters of this sort are to be removed from the common-law arena, and it simply falls to us to enforce the statute as written. This we have done.

Finally, as this matter is fully resolved by reference to the SASA, we need not consider whether defendant retains a duty under common-law premises liability.2 In accord with this, the remaining portions of the judgment of the Court of Appeals that addressed this issue are vacated.

IV. RESPONSE TO DISSENTS

The dissents would go even further in this matter than plaintiff has urged, advancing the remarkable proposition that this statute should be read to create a test for tort liability, which can be properly characterized as: Could this accident have been avoided if the shack were in a different place than it was? If so, defendant loses.

We believe that this new proposed standard is a most ill-advised direction for the law to take in this case, or in virtually any other case that does not concern strict liability. The reason is that it can be predicted with one hundred percent certainty that the answer to the dissents’ question in this case, and any other case where such a standard would be applied, is: Of course, if the shack were somewhere else, plaintiff would not have hit it. The problem this standard creates is that it fails to recognize that no accident, be it a skiing accident, a car accident, or an airplane crash, is unavoidable. After all, if the defendant had not opened the ski area that day, or, to deal with our examples, the driver had not driven his car or the pilot had not taken off, then there would have been no accident. Alas, however, defendant, having opened the ski area, or ventured to drive or fly, is liable. Let us be clear, what the dissent proposes is nothing less than an abandonment of common-law liability rules and the imposition of strict liability on any occasion there is an accident.

When one reflects on the roots of tort law in this country, it is clear that our legal forebears spurned such a “hindsight” test and, instead, adopted a foreseeability test for determining tort liability. See the venerable Palsgraf v. Long Island R Co., 248 N.Y. 339, 162 N.E. 99 (1928), a case that every law student since 1928 has studied, and countless hornbooks and cases too numerous to require citation, where this is made clear. Said plainly, the common-law test for tort liability is not a “could-it-have-been-avoided” test, rather, it is a “was-this-foreseeable-to-a-reasonable-person-in-this-defendant’s-position” standard. Before today, none would have contested that there were no assertions to the contrary in our case law. No longer can that be said.

That the dissents would propose to abandon the foreseeability test and adopt the hindsight test is startling enough, but it is even more strange to do so here where we have a statute that was designed not only to preclude strict liability for ski operators, but also to preclude some doctrines of traditional, common-law liability in these areas. Nevertheless, were the dissent the majority, that is not what would take place. To be understood then is that the dissents invite us to join them in transmogrifying our law and this statute by converting both into vehicles imposing strict liability on defendants. We decline most adamantly to do so.

To deal with the beneficiaries of this statute briefly, one can only imagine their dismay, were the dissents the law, when all along they no doubt thought they were being protected by this legislation to then learn not only that they were not being protected, but also that they would be in the unenviable position of not even having the defense that the accident for which they are being sued was not foreseeable. Their dismay would be justified.

In sum, the dissents are wrong as a general matter with regard to how liability is determined, and they are particularly wrong with regard to ski-area operators who are protected by the statute here under consideration that the Legislature enacted with the clear goal of advantaging, not disadvantaging, ski-area operators in tort litigation with skiers.

V. CONCLUSION

Plaintiff’s claims should have been barred as a matter of law. The risk of this collision was accepted by plaintiff and thus his claim is barred under the SASA. We reverse the judgment of the Court of Appeals. This case is remanded to the circuit court for proceedings consistent with this decision.

CORRIGAN, C.J., and YOUNG and MARKMAN, JJ., concur.

MICHAEL F. CAVANAGH, J. (dissenting).

I respectfully disagree with the majority’s conclusion that plaintiff Robert C. Anderson’s collision with a timing shack is a danger that inheres in the sport and recovery is precluded under Michigan’s Ski Area Safety Act, M.C.L. § 408.321 et seq. I believe a question of fact remains whether the danger of plaintiff’s collision with the timing shack was obvious and necessary, thus making summary disposition inappropriate. Because I would affirm the decisions of the Court of Appeals and the trial court denying defendant summary disposition, I must dissent.

I. STANDARD OF REVIEW

We review de novo decisions on motions for summary disposition. Spiek v. Dep’t of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Likewise, we review de novo matters of statutory interpretation. Cardinal Mooney High School v. Michigan High School Athletic Ass’n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991).

II. ANALYSIS

A. Ski Area Safety Act

This case concerns Michigan’s Ski Area Safety Act (SASA), M.C.L. § 408.321 et seq., particularly M.C.L. § 408.342(2), which provides:

Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

The majority properly characterizes the two types of dangers inherent in the sport, as provided by the statute, as natural hazards and unnatural hazards. MCL 408.342(2) gives as examples the following unnatural hazards: “collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.” However, such hazards must be “obvious and necessary” before a ski operator may be protected by the statute.

In this case, we must determine whether the timing equipment, including the shack in which the equipment was housed, is a danger inherent in the sport, and whether the danger is obvious and necessary. As the statute expressly states, it is the danger that must inhere in the sport. Timing the race itself is not the danger to be considered; the timing equipment is the danger; thus, the equipment must be the inherent danger before we can continue the inquiry posed by the statute.

It is not disputed that timing and equipment are necessary in ski racing. Nor is it disputed that timing equipment must be protected from the elements. However, it does not follow that a timing shack is necessary, or that the placement of the timing shack in this case, near the finish line of the race course at the bottom of the hill, was “obvious and necessary,” as required by M.C.L. § 408.342(2). Therefore, I disagree with the majority that the placement of the timing shack is a danger skiers are held to accept as a matter of law.

Further, the unnatural hazards in the statute are not described as particular items, but collisions with the particular items. (E.g., “collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment”). Therefore, we must focus on the collision with the timing shack, not just the timing shack itself. “Location, location, location!” Contrary to the majority’s analysis, location must be a factor because it relates to whether the danger of collision is necessary.

MCL 408.342(2) does not simply read that dangers that inhere in the sport are ones for which skiers assume the risk. The dangers must also be obvious and necessary. If the timing equipment can be located in a way that poses no danger of collision, such as at the top of the hill as it is now, then the danger posed by the timing shack is not “necessary” as required by M.C.L. § 408.342(2).

The inquiry is whether plaintiff assumed the risk and accepted the danger of colliding with this particular timing shack. We must examine the necessity of the shack itself, as well as the necessity of the location.

The majority accuses me of misconstruing the SASA and creating a strict-liability test for ski-area operators. Quite the contrary, it is the majority that overzealously misconstrues the SASA in favor of ski-area operators by skimming over the “obvious and necessary” requirement imposed by the Legislature. I cannot agree with the majority that simply because timing equipment is necessary, as is protection for such equipment, that plaintiff’s collision with the timing shack was “necessary.” That the timing shack is a hazard that inheres in the sport and is of the same type as ski towers and snow-making machines does not mandate the conclusion that plaintiff accepted the risk of colliding with the timing shack as a matter of law.

I respectfully disagree with the majority’s recharacterization of the question I pose in this case, ante at 761. I would ask, as the statute requires, whether the collision with the timing shack was necessary. Because there was testimony from which a jury could find that plaintiff’s collision with the timing shack was not necessary, summary disposition is inappropriate.

Ultimately, in its response to my dissent, the majority misses the point with its discussion of foreseeability.3 My focus is on the language of M.C.L. § 408.342(2). Because the statute requires the danger to be inherent as well as obvious and necessary, and because there remains a question of fact with respect to the necessity of this timing shack and its location, summary disposition for defendant is inappropriate at this time. The trial court properly denied defendant’s motion, and this Court should not disturb that ruling.

B. Motion for summary disposition

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties. MCR 2.116(G)(5). Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996). Such evidence is viewed in a light most favorable to the party opposing the motion—in this case, plaintiffs. Id. A trial court may grant a motion for summary disposition only when the affidavits or other documentary evidence show that there is no genuine issue regarding any material fact. Id.

In this case, there remains a genuine issue of material fact—whether the location of the timing shack, or even the timing shack itself, was necessary. I would not decide this issue as a matter of law as the majority does; rather, I would put it in the hands of the trier of fact.

There is deposition testimony in this case that it was unnecessary to place the timing shack at the bottom of the hill near the finish line. In fact, there is testimony that a shack was not necessary to house the timing equipment.

Robert Shick, Pine Knob’s general manager, admitted it was unnecessary to place the timing shack so close to the finish line for ski races. He testified that he had seen race courses at several other ski resorts and had seen the timing shack placed at the top of the ski hill. Mr. Shick further admitted that a timing shack could be placed anywhere, it does not have to be near the finish line. Additionally, Mr. Shick testified that “reflecting upon this accident,” Pine Knob reshaped the racing area and moved the timing shack further away from the finish line.

Further, three coaches who were present on the day of the accident testified that the timing shack could have been anywhere. Daniel Costigan, a ski coach for Detroit Country Day, testified that during the season after plaintiff’s injury, the timing shack was on the top of the hill, off the skiing surface. Coach Costigan also testified that there was no need for a timing shack at the bottom of the hill. Coach Joseph Kosik testified at his deposition that there was flexibility in regards to the location of the timing shack. Finally, Coach Earl Rosengren testified at his deposition that the timing shack was moved after plaintiff’s accident, even though it houses the same timing equipment it did at the time of the accident. Coach Rosengren also stated that there does not need to be an actual shack in which to house timing equipment.

The testimony of these four individuals clearly presents a genuine issue of material fact—whether the timing shack at the bottom of the hill, or even the shack itself, was necessary, as required by M.C.L. § 408.342(2) before declaring that plaintiff assumed this danger. Thus, summary disposition is inappropriate.

III. CONCLUSION

I would hold that plaintiff is not precluded from recovery as a matter of law. Rather, a genuine issue of material fact remains whether the danger of plaintiff’s collision with the timing shack was obvious and necessary. Because there is evidence that the location of the timing shack, and even the shack itself, was not necessary, plaintiff should not be precluded from recovery under the SASA. I would affirm the decisions of the Court of Appeals and the trial court.

WEAVER, J. (dissenting).

I dissent from the majority’s conclusion that plaintiff’s collision with a timing shack at the end of ski racecourse is a danger that inheres in the sport of skiing, thus precluding recovery for plaintiff’s resulting injuries under Michigan’s Ski Area Safety Act (SASA), M.C.L. § 408.321 et seq. I would affirm the Court of Appeals decision that the SASA does not operate to bar plaintiff’s negligence claim.

Further, I would conclude under Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 629 N.W.2d 384 (2001), that there is a question of fact regarding whether the location of the shack created an unreasonable risk of severe harm despite the danger’s open and obvious nature. Therefore, I would also affirm the Court of Appeals decision that the circuit court properly denied defendant’s motion for summary disposition pursuant to the common-law open-and-obvious-dangers doctrine.

MCL 408.342(2) provides:

Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

It is undisputed that the timing shack was obvious. Plaintiff testified that he knew it was there. The question under the statute is whether the timing shack was a necessary danger.4

The location of the shack is relevant to the question of the necessity of the danger posed because the statute reads that the dangers inherent in the sport of skiing include, not just the hazards themselves, but the danger of “injuries which can result from … collisions with” such hazards. MCL 408.342(2). This language makes the placement of the shack relevant when considering the necessity of dangers that are not expressly enumerated in the statute.

The deposition testimony, including that of plaintiff’s coach and defendant’s general manager, reveals that the placement of the shack approximately eight to twenty feet from the finish line was not necessary. Testimony revealed that the shack was portable and that it could be located at other places on the hill, including at the top of the course.

Nevertheless, the majority concludes as a matter of law that the placement of the shack is a danger that inheres in the sport of skiing, because the timing equipment required protection from the elements. While I agree that timing equipment is necessary to ski racing, I do not agree as the majority implies that the danger of collision posed by the placement of a portable timing shack is analogous to the danger of collision posed by ski lift towers and snow-making and grooming equipment.

Ski lift towers are required to carry skiers up the hill and snow-making and grooming equipment must be placed where snow and snow grooming is needed.5 The placement of equipment related to these functions is a matter of necessity. By contrast, it was undisputed that the timing shack could be located anywhere on the hill. Therefore, I dissent from the majority’s conclusion that the timing shack in this case constitutes a necessary hazard under the SASA and would hold that the plaintiff’s negligence claim is not barred as a matter of law by this statute.

For this reason, it is necessary to address whether plaintiff’s negligence claim is barred by the common-law, premises-liability doctrine of open and obvious dangers. Any assertion that the common law of premises liability has no application following the enactment of the SASA is unfounded. The common law of premises liability remains “in force” at ski areas under Const. 1963, art. 3, § 7 because the SASA is not a strict-liability statute and because the SASA does not insulate ski areas from all potential liability.6 The statute states that a skier assumes the risk of collision with dangers that inhere in the sport of skiing “insofar as the dangers are obvious and necessary.” MCL 408.342(2). Where, as here, a danger does not inhere in the sport of skiing because it is not necessary under M.C.L. § 408.342(2), the next inquiry is whether there is a duty at common law.7

In Lugo, supra at 517, 629 N.W.2d 384, a majority of this Court addressed when a possessor of a premises is required to protect invitees from open and obvious dangers concluding that

with regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of a condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.

The Lugo majority explained further that “only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.” Lugo, supra at 519, 629 N.W.2d 384.8

The defendant’s general manager testified that he had considered the potential of injury from a collision with the timing shack and that the padding protecting the front of the shack was intended to prevent injury. Other parts of the shack, including the corners, however, were not padded. There was also evidence that the plaintiff “caught an edge” and that “catching an edge” can happen at any time, even to experienced skiers, requiring adequate distance to regain control.

Under Lugo’s articulation of the open-and-obvious doctrine, it must be determined whether the timing shack created a uniquely high likelihood of harm or of severe harm to a ski racer. In my view, the placement of the timing shack in close proximity to the finish line of a giant slalom racecourse, at the point when a racer’s momentum and exhaustion peak, raises a question of fact regarding whether the location of the timing shack created a uniquely high likelihood of severe harm. Ski racing demands speed. Speed carries with it increased risks, including the increased risk of collision. Under Lugo, the location of the timing shack is the “special aspect” that creates a question of fact regarding whether risk of severe harm was unreasonable despite the obviousness of the timing shack.

For these reasons, I would affirm the Court of Appeals decision that defendant’s motion for summary disposition was properly denied by the circuit court.

Notes: 1. “Under the doctrine of ejusdem generis, general terms are interpreted to include only items that are `of the same kind, class, character, or nature as those specifically enumerated.'” LeRoux v. Secretary of State, 465 Mich. 594, 624, 640 N.W.2d 849 (2002) (citation omitted).

  1. Justice Weaver, in her dissent, has discussed common-law premises-liability doctrines, in particular the “open and obvious” doctrine, and feels this case turns on the application of them to these facts. This whole approach is off-target because the common law no longer controls once the Legislature enacts statutes that preempt it. Const. 1963, art. 3, § 7. That has happened here.
  2. With regard to the majority’s recitation of Palsgraf v. Long Island R Co., 248 N.Y. 339, 162 N.E. 99 (1928), I assure my colleagues that I am familiar with Palsgraf and do not wish to engage in any type of hindsight analysis. Instead of debating the doctrines of tort law, I simply attempt to apply the statute at issue.
  3. The circuit court concluded that there was a genuine issue of material fact regarding whether the placement of the shack was necessary under M.C.L. § 408.342(2) stating:

However, you have, really, two things, both the placement of the shack and the necessity of the shack. And the parties are disputing whether the shack was necessary. Defendant says it was because the plaintiffs’ minor was participating in a race. Plaintiffs argue that a timing shack is not one of the dangers set forth in the Act. Also, the shack could have been placed anywhere.

So, as I say, it’s placement and, you know, necessity. You might need a timing shack for a trial, to time the runs. But where are you going to put it?

  1. The statute requires that snow-making and snow-grooming equipment be “properly marked.”
  2. In other words, the SASA limits liability, but it does not eliminate liability.
  3. Certainly, a majority of this Court is at liberty to change the common law regarding open and obvious dangers should it be moved to do so. Gruskin v. Fisher, 405 Mich. 51, 66, 273 N.W.2d 893 (1979). The Legislature, on the other hand, is at liberty to enact a statute of more limited liability. See, e.g., Colo. Rev. Stat. XX-XX-XXX(8)(c) (“Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.”)
  4. I concurred only in the result in Lugo and wrote separately because I believed, as I continue to believe, that the Lugo majority introduced a new consideration in the determination whether a defect is unreasonably dangerous despite its obviousness, that being whether a defect created the “unreasonable risk of severe harm.” Lugo, supra at 544, 629 N.W.2d 384 (opinion by WEAVER, J.).