The nation’s oldest ski safety act is Michigan’s “Ski Area Safety Act of 1962,” Mich. Comp. Laws Ann. §§ 408.321 to 408.344. It was amended in 1981 to include an “inherent danger” provision. Id. at § 408.342. Each skiing participant accepts the dangers that “inhere in the sport” insofar as they are “obvious and necessary.” Id. Ski area operators and skiers are both assigned duties and responsibilities, and skiing activity is subject to the regulatory purview of a ski area safety board. Id. at §§ 408.326a, 408.341, 408.342. A person who violates provisions of the Act or of a rule or regulation promulgated under the Act is guilty of a misdemeanor. Id. at § 408.340. Ski patrol members acting in good faith immune from suit excepting only gross negligence or willful and wanton misconduct. Mich. Comp. Laws Ann. § 691.1507.
Cases
Review a few Ski Law cases from Michigan below.
Boyne appeals from the circuit court’s order denying defendant’s motion for summary disposition. In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend. Marshall stopped by a half pipe in a marked terrain park, slid down the side a little bit, and then hit the bottom. Plaintiff shattered his left calcaneus (heel) and the top of his tibia, and broke his hip and right arm. He also fractured his left eye socket where his pole hit his head when he fell. Plaintiff alleged that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, arguing that plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket. The trial court denied the motion, concluding that there remained issues of fact. Appeals court granted defendant’s motion for appeal and, relying heavily onAnderson v. Pine Knob Ski Resort, Inc., found that when SASA resolves a matter, common-law principles are no longer a consideration. Motion for summary disposition granted and cert denied,Marshall v. Boyne USA, Inc. 493 Mich. 901(2012)
Plaintiff was paralyzed as the result of a snowboarding accident involving a jump in the terrain park at Boyne Mountain Ski Resort. The trial court found that the Ski Area Safety Act (SASA), MCL 408.341 et seq, barred plaintiff’s claim because the jump was an inherent, obvious, and necessary danger of snowboarding. Plaintiff argued that the jump was not obvious because he was unaware of the danger it created by being improperly constructed, his expert witness testified that the jump should have been constructed in a safer way. However, the appeals court reasoned that whether there was a safer alternative for creating the jump is irrelevant for purposes of SASA. “The Legislature enacted the statute to remove these matters “from the common-law arena” and to grant immunity to ski-area operators; therefore, reasonableness of the placement of the jump would not be a consideration.” Dismissal affirmed.
Plaintiff was 13 years old when he was injured during a snowboarding lesson taught by defendant. Defendant signaled plaintiff to cross a hill, and at about halfway across a downhill skier, Nicholas Sparaga, ran into him, fracturing plaintiff’s leg. Plaintiff sued, alleging that defendant was liable in general negligence for “failing to use ordinary care in conducting himself as a snowboard instructor.” Defendant moved for summary disposition. The trial court found that no special relationship giving rise to a duty existed because there was no evidence that plaintiff “entrusted himself to Defendant to the extent that Plaintiff was incapable of caring for himself,” and granted the motion to dismiss. The court of Appeals affirmed.
Plaintiffs Maurice Wolf was skiing with his wife Susan at Pine Mountain Ski Resort, in Michigan on March 17, 2002. Plaintiff was skiing down a run, stopped to talk to his wife then continued to ski when he was struck by Defendant who was midair performing a jump. Defendant testified that he had stopped above the jump and had seen Plaintiff and believed that he could safely perform the jump. Plaintiff sued Defendant for reckless skiing, Defendant moved for motion of summary judgment stating that under the Skier Safety Act, Plaintiff had assumed the risks and dangers of skiing therefore cannot claim negligence against him.
The court found that the intention of the Skier Safety Act was to make each skier, not the ski area, responsible for their actions. Therefore, Defendant can be held accountable for his actions. In addition the court found there exists issues of material fast as to if the defendant was negligent which preclude summary judgment. Therefore, Defendant’s motion for summary judgment will be denied.
While skiing at Mt. Brighton, Plaintiff, Matthew Barrett was injured when he collided with a snowboarding rail. Plaintiff claimed that Defendant was responsible for his injuries because they failed to properly mark and warn skiers of the snowboard rail. Defendant moved for summary judgment stating that they were not liable under the Ski Area Safety Act (SASA). The SASA states that each skier accepts the inherent dangers of the sport, Defendant claiming one of those dangers was a snowboard rail.
This motion went all the way to the Michigan Supreme court where it was finally decided by the court that a snowboard rail is not an inherent danger in skiing. Plaintiff argued that since he was skiing not snowboarding, the rail was not an inherent danger. The court ruled that under the SASA, one cannot pick and choose the dangers that would applicable to one’s specific type of skiing. Although the court also stated that a snowboard rail is not an inherrent and obvious danger of the sport of snowboarding either. Plaintiff demonstrated that the ski resort no longer had a snowboard rail, therefore suggesting that not all areas for snowboards have a snowboard rail. In addition, a snowboard rail cannot be considered the same type of obvious structure risk that skiers should avoid as well marked lift towers and snow making machines. There for the court denied summary judgment.
Michigan remains one of the most reactive states, barring practically all claims. More than one court has observed that the Legislature, in adopting the 1981 amendments, was “concerned with making the skier, rather than the ski area operator, bear the burden of damages from injuries.” Kent v. Alpine Valley Ski Area, 613 N.W.2d 383 (Mich. Ct. App. 1999), citing Schmitz v. Cannonburg Skiing Corp., 428 N.W.2d 742 (Mich. Ct. App. 1988). The Act’s immunization of operators has been applied to snowboarders.Shukoski v. Indianhead Mountain Resort, Inc., 166 F.3d 848 (6th Cir. 1999). Common law premises liability claims have been preempted by the Act. Anderson v. Pine Knob Ski Resort, Inc., 664 N.W.2d 756 (Mich. 2003). Section 408.344 notwithstanding (section holds operators responsible for loss or damage resulting from their violation of the Act), Michigan courts have held that violations do not automatically destroy their statutory immunity from suit. McGoldrick v. Holiday Amusements, Inc., 618 N.W.2d 98 (Mich. Ct. App. 2000); but see the unpublished opinion in Barrett v. Mt. Brighton, Inc., 2004 WL 1222996 (Mich. Ct. App.), presently pending leave to appeal to the Michigan Supreme Court (where an alpine skier was injured on a snowboarding rail in an area not marked as such in violation of the Act, and operator knew of alpine skiers in the area but failed to warn, operator not entitled to immunity under the Act). In a case involving an ice skater / ice skater collision caused by one skater skating backwards, the Michigan Supreme Court held that in the recreation context, co-participants merely owe one another a duty not to be reckless. Ritchie-Gamester v. Berkley, 597 N.W.2d 517 (Mich. 1999).
