NASTAR release was held by the Michigan Appellate court to be written narrowly and only protect the ski area when the guest was racing or training.Posted: April 2, 2018 Filed under: Assumption of the Risk, Michigan, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Inherent Risk, Michigan, Michigan Ski Safety Act, NASTAR, Release, SASA, Ski Area Safety Act 1 Comment
Michigan Ski Safety Act did not apply because it was too early in the proceedings to determine if a rope hanging below the chairlift was an inherent risk of skiing under the act.
Ritari, JR v Peter E. O’dovero, Inc., 2017 Mich. App. LEXIS 1711
State: Michigan, Court of Appeals of Michigan
Plaintiff: Ronald Ritari, JR. and Tama Ritari
Defendant: Peter E. O’dovero, Inc., doing business as Marquette Mountain
Plaintiff Claims: was negligent by having ropes in the area of the chair lift, failing to post warnings of the danger, failing to take measures to prevent plaintiff from catching his skis on the rope, failing to employ the emergency stop when plaintiff yelled for help, and failing to adequately supervise and control the chair lift
Defendant Defenses: Release and Michigan Ski Area Safety Act (SASA)
Holding: For the Plaintiff
Your release must be written to cover the risks and activities you need to cover. If your release fails, as in this case, then you are faced with proving the activity that injured your guest was an inherent risk of skiing.
A rope hanging below a lift, low enough a ski could be caught in the lift is going to be an interesting argument at trial to prove it is an inherent risk of skiing.
The plaintiff was a season pass holder at the ski area and enjoyed racing NASTAR. One evening while riding the chair lift his skis were caught on a nylon rope hanging below the lift when a gust of wind pulled the chair down. The plaintiff was pulled out of the chair by the rope where he fell 12′ to the ground sustaining a fractured pelvis and fracture ribs.
The plaintiff filed suit. The Defendant ski area filed a motion for summary judgment based on the NASTAR release and the Michigan Ski Area Safety Act. The plaintiff seems to have signed two releases, one when he purchased a season pass, however, only the NASTAR release was argued at trial.
The trial court dismissed the defendant’s motion for summary judgment finding the release was ambiguous, and the rope hanging below the chairlift was not an inherent risk of skiing. The defendant appealed the trial court’s decision.
Analysis: making sense of the law based on these facts.
The court first looked at the release. The trial court had found the release was ambiguous. “A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation.”
The scope of a release is governed by the intent of the parties as it is expressed in the release. If the text in the release is unambiguous, the parties’ intentions must be ascertained from the plain, ordinary meaning of the language of the release. A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity.
To determine if a contract is valid the contract “…must be read as a whole, construed so as to give effect to every word or phrase as far as practicable…” An ambiguous contract is also referred to as a contract “…reasonable susceptible to more than one interpretation.”
The appellate court found the release was not ambiguous.
We conclude that, when read as a whole and interpreted in conjunction with the NASTAR registration form on its reverse side, the language of the Participant release is unambiguous and in-tended to relieve defendant of “all liability” for injuries suffered during training for or participating in a racing competition.
The plaintiff also argued that the release only applied when the plaintiff was racing or training for NASTAR. Here the court found for the plaintiff. On this issue, the appellate court agreed with the trial court and held that the release could be interpreted to only be for racing or training for NASTAR events.
A rope hanging below the chairlift was not a listed risk in the Michigan Ski Area Safety Act. Therefore, the court needed to determine if the ski area safety act applied to this risk.
There is no dispute that the nylon rope that entangled plaintiff is a hazard not listed in MCL 408.342(2). Thus, the question is whether the placement of a nylon rope under a chair lift is inherent to skiing and, if so, whether placement of the rope in this case was obvious and necessary. For defendant to be entitled to summary disposition under MCR 2.116(C)(10), these material facts must be undisputed and defendant must be entitled to judgment as a matter of law.
The court held the jury had to determine if the risk was obvious and necessary and inherent to skiing.
The appellate court sent the case back to the trial court for additional discovery by the parties and trial.
So Now What?
Any time you have an incident on the lift outside of the loading and unloading area it is going to create a problem for the courts and a question of fact. In several states, like Colorado, the operator of a lift owes the highest degree of care to the lift riders. In Colorado, this case would be based on how much the check would be, not if there was going to be a check.
Furthermore, a rope hanging below a lift that a skier could catch a ski or board with is also suspect. Whether the riders were bouncing on the lift or a gust of wind did force the chair down, that is a risk that needed to be looked at from all angles. Skiers running into people and legs extending from the chair and people on the chair catching their fee in it is a risk of roping off an area under a lift.
What do you think? Leave a comment.
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