Short and Sweet Michigan case backs up the Michigan Ski Area Safety ActPosted: June 25, 2012
If you have seen the terrain park and half pipe in the morning, it is hard to argue it was not marked in the afternoon.
The plaintiff was skiing at Boyne Mountain ski area in Michigan. He skied into the Terrain Park earlier in the day. He had seen, but not read the warning sign before entering the park. After lunch, he and his friend went back into the park. After going off several jumps the plaintiff skied across the slope and went off another jump. As he was stopping he slid over the lip of the half pipe and fell into the half pipe suffering severe injuries. (This is the second case I’ve read where the person was injured in the half pipe not by going into the half pipe, but by falling into the half pipe from the berm. The first was Dunbar v. ) Corporation, 2004 U.S. App. LEXIS 25807.
The court correctly described the half pipe in its decision. “The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skier’s ski inside of the half pipe.” In the Dunbar case, where the court held for the plaintiff, the court had no idea what a half pipe was based on the description of the half pipe.
The plaintiff sued for negligently failing to adequately mark the boundaries of the half pipe. The defendants argued the Michigan Ski Safety Act, MCL 408.321 et seq., and two releases signed by the plaintiff protected them from suit.
The court’s analysis of the legal issues was short and sweet. The court looked at the Michigan Ski Safety Act (SASA) and found no violation of the act and found nothing done by the ski area created liability not imposed by the act.
The SASA imposes a duty in the ski area to identify unnecessary or not obvious dangers. The act requires skiers to assume the risks of numerous items, including variations in terrain. The half pipe the court found was not unnecessary and was obvious because the plaintiff had seen it in the morning and because the terrain park had the required warning sign at the top of the ski run. The SASA requires that hazards involve equipment and fixtures to be marked. The terrain park was neither.
By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law.
The ski area did not violate the SASA.
The court after coming to this conclusion did not look at the other defenses of the defendant, the two releases. One release had been signed by the plaintiff when he rented his ski equipment and one release was on the back of the lift ticket. The second argument would have been interesting; only one court has found the lift ticket to be a contract which could hold the defendant not liable. Most courts hold the language is simply warning language because there is not meeting of the minds to create a contract when you are just handed a piece of paper.
So Now What?
It is quite clear here that one of the reasons why the court held the way it did was because it understood what a half pipe was. In a similar case where the plaintiff got lost in the terrain park and fell into the half pipe the court held for the plaintiff, however, it was obvious from the decision the court had no clue about what a half pipe was or why the resort had one. (Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807)
It is important to remember that you need to educate the courts, the same way you educate your clients if you expect to keep both happy. Clients who do not understand what they are about to experience are more susceptible to getting hurt (based on my experience) and are not prepared for the experience. If your documentation shows you educated the client, the court in reviewing the evidence is more likely to also understand what the plaintiff knew and can easily find on your behalf.
If you did not adequately educate your client, then you leave it to your attorney to educate the court. This means you have to educate two people. You have to make sure your attorney understands what you do and why, and then you have to make sure your attorney can pass that information on to the court.
If your client does not understand the risks, then your attorney and the court are not going to understand leaving you writing a check for any injuries.
Education is important even after school is over.
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