Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Lee Bergin, et al., Appellants, vs. Wild Mountain, Inc. d/b/a Wild Mountain Ski Area, Respondent.

A13-1050

COURT OF APPEALS OF MINNESOTA

2014 Minn. App. Unpub. LEXIS 212

March 17, 2014, Filed

NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

PRIOR HISTORY: [*1]

Chisago County District Court File No. 13-CV-11-695.

DISPOSITION: Affirmed.

CASE SUMMARY:

COUNSEL: For Appellants: James P. Carey, Marcia K. Miller, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, Minnesota.

For Respondent: Brian N. Johnson, John J. Wackman, Peter Gray, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota.

JUDGES: Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Hooten, Judge.

OPINION BY: HOOTEN

OPINION

UNPUBLISHED OPINION

HOOTEN, Judge

In this personal-injury action, appellants-skiers sued respondent-ski resort for damages resulting from a skiing accident. Appellants challenge the district court’s grant of summary judgment in favor of respondent, arguing that the district court erred by (1) denying their motion to amend the complaint to add allegations of reckless, willful, or wanton conduct; (2) determining that an exculpatory clause bars their claim of ordinary negligence; and (3) applying the doctrine of primary assumption of risk to bar their claim of ordinary negligence. Because respondent’s conduct does not give rise to a claim of greater-than-ordinary negligence, and because the exculpatory clause is enforceable to bar a claim of ordinary negligence, we affirm.

FACTS

Appellants Lee and Cathy Bergin sued respondent [*2] Wild Mountain, Inc. d/b/a Wild Mountain Ski Area for injuries that Lee sustained while skiing at Wild Mountain. The Bergins sought damages for Lee’s physical injuries, loss of wages and earning ability, loss of property, and medical expenses, as well as for Cathy’s loss of services, companionship, and consortium. Following discovery, Wild Mountain moved for summary judgment. The pleadings and discovery reveal the following.

In March 2010, Robert Knight purchased over the internet 2010-2011 season passes to Wild Mountain for himself, the Bergins, and another individual. To complete the purchase, Knight agreed to a season-pass agreement which included a release of liability:

I understand and accept the fact that alpine skiing and snowboarding in its various forms is a hazardous sport that has many dangers and risks. I realize that injuries are a common and ordinary occurrence of this sport. I agree, as a condition of being allowed to use the area facility and premises, that I freely accept and voluntarily assume all risks of personal injury, death or property damage, and release Wild Mountain Ski & Snowboard Area . . . and its agents, employees, directors, officers and shareholders from [*3] any and all liability for personal injury or property damage which results in any way from negligence, conditions on or about the premises and facilities, the operations, actions or omissions of employees or agents of the area, or my participation in skiing or other activities at the area, accepting myself the full responsibility for any and all such damage of injury of any kind which may result.

In accordance with Minnesota law, nothing in this Release of Liability should be construed as releasing, discharging or waiving claims I may have for reckless, willful, wanton, or intentional acts on the part of Wild Mountain Ski & Snowboard Area, or its owners, officers, shareholders, agents or employees.

Knight [*4] did not ask Lee about the release of liability before agreeing to it. Lee wrote a check to Knight for the Bergins’ season passes. In his deposition, Lee admitted that he authorized Knight to purchase the season passes, that he had purchased season passes to Wild Mountain since 2001 and had agreed to a release of liability each year, that he understood the release of liability, and that he would have authorized Knight to purchase the season passes had he known about the release of liability.1

1 The Bergins do not appeal the district court’s determination that Lee is bound by the season-pass agreement even though he did not execute it himself.

On the morning of November 28, 2010, the Bergins arrived at Wild Mountain to pick up their season passes and ski. The season pass is a wallet-sized card with Lee’s name and picture on the front and the following language on the back:

I agree and understand that skiing and snowboarding involve the risk of personal injury and death. I agree to assume those risks. These risks include trail conditions that vary due to changing weather and skier use, ice, variations in terrain and snow, moguls, rocks, forest growth, debris, lift towers, fences, mazes, snow [*5] grooming, and snowmaking equipment, other skiers, and other man-made objects. I agree to always ski and snowboard in control and to avoid these objects and other skiers. I agree to learn and obey the skier personal responsibility code.

The Bergins and their friends skied “The Wall,” a double-black-diamond trail. At the top of The Wall, Lee observed that there were mounds of snow on the skiers’ left side of the run. Thinking that the left side was not skiable terrain, Lee skied down the right side. Then, at the bottom of the hill in the flat transition or run-out area, Lee encountered a “mound of snow” that he could not avoid. He hit the snow mound, flew up six to ten feet in the air, and landed on his back and the tails of his skis. Lee estimated that the snow mound was “maybe a little bigger” and “maybe a little taller” than a sofa, and that “there was no sharp edges defining” it. After the fall, Lee underwent surgery on his back and is partially paralyzed.

Daniel Raedeke, the president of Wild Mountain, testified by affidavit that Wild Mountain started making snow on The Wall on November 25, three days before Lee’s accident. On the morning of November 26, snowmaking ceased and The [*6] Wall was opened for skiing. According to Raedeke, “hundreds of skiers took thousands of runs down The Wall prior to” Lee’s accident. Raedeke added:

At the completion of snowmaking activities, there were some terrain variations at various points throughout the entire Wall run from top to bottom and side to side. Terrain variations from snowmaking are common at Minnesota (and Midwest) ski areas, particularly early in the season as ski areas rely on machine-made snow to get the areas open. It is very common for terrain variation to be encountered by skiers in Minnesota and elsewhere and they are generally well-liked, particularly by expert level skiers like [Lee].

Raedeke testified that “Wild Mountain received no reports of anything being hazardous or even out-of-the ordinary on The Wall.”

The Bergins submitted the affidavits of two ski-safety experts, Seth Bayer and Richard Penniman. Bayer testified that Wild Mountain “engaged in snow-making activity, intentionally created the hazard [Lee] encountered by creating large mounds of man-made snow . . . then intentionally left the snow-making mound in the run-out or transition area.” According to Bayer, Wild Mountain “knew or should have known [*7] that the snow-making mound in the transition area created a hazard and should have groomed out the mound or further identified the mound as a hazard.” He added that Wild Mountain failed to follow professional safety standards in making and grooming the snow.

Similarly, Penniman testified that complying with professional safety standards “would have entailed grooming out the snow making mounds; putting fencing around the snow making mounds; and warning skiers of the mounds with a rope barricade and caution signs.” He testified that “Wild Mountain’s failure to have a consistent and structured snow making and grooming policy, which specifically addressed the [professional safety standard], caused or contributed to the unsafe decision to leave a large mound of man-made snow in the transition area between the bottom of The Wall ski trail and the chair lift.” According to Penniman, “snow making mounds are not an inherent risk to the sport of skiing.”

Following discovery and Wild Mountain’s motion for summary judgment, the Bergins moved to amend their complaint to add a claim of greater-than-ordinary negligence. In April 2013, the district court denied the Bergins’ motion and granted summary [*8] judgment in favor of Wild Mountain. This appeal follows.

DECISION

I.

[HN1] After a responsive pleading is served, “a party may amend a pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Minn. R. Civ. P. 15.01. [HN2] “We review a district court’s denial of a motion to amend a complaint for an abuse of discretion.” Johnson v. Paynesville Farmers Union Co-op. Oil Co., 817 N.W.2d 693, 714 (Minn. 2012), cert. denied, 133 S. Ct. 1249, 185 L. Ed. 2d 180 (2013). [HN3] “A district court should allow amendment unless the adverse party would be prejudiced, but the court does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment.” Id. (citations omitted).

[HN4] Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. [HN5] A genuine issue of material fact does not exist “when the nonmoving party presents evidence which merely creates a metaphysical doubt [*9] as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). [HN6] On appeal, “[w]e view the evidence in the light most favorable to the party against whom summary judgment was granted. We review de novo whether a genuine issue of material fact exists. We also review de novo whether the district court erred in its application of the law.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002) (citations omitted).

The Bergins moved to amend their complaint to add the allegation that Lee’s accident “was a result of the reckless, willful, or wanton conduct” of Wild Mountain. They assert that Wild Mountain “knew or should have known that a large, un-marked, un-groomed, mound of snow in the transition area between ‘The Wall’ and a chair lift . . . created a significant risk of physical harm to skiers.” The district court concluded that, although Wild Mountain would not be prejudiced if the motion to amend was granted,2 the motion must still be denied because the proposed claim “would not survive [*10] summary judgment, as [Wild Mountain’s] conduct does not, as a matter of law, rise to the level of reckless, willful or wanton.”

2 Wild Mountain does not challenge this finding on appeal.

The Bergins argue that the district court erred as a matter of law by “[r]equiring [them] to move to amend the [c]omplaint.” They assert that “Minnesota Rule of Civil Procedure 9.02 does not require plaintiffs to plead allegations of reckless, willful, or wanton conduct with particularity.” See Minn. R. Civ. P. 9.02 (stating that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally”). Accordingly, they contend that the district court should have examined whether Wild Mountain committed greater-than-ordinary negligence based on the complaint and discovery.

The Bergins’ reliance on rule 9.02 is misplaced. [HN7] Although the Bergins were not required to plead a claim of greater-than-ordinary negligence with particularity under rule 9.02, they still had to plead it with “a short and plain statement . . . showing that [they are] entitled to relief” under Minn. R. Civ. P. 8.01, which they failed to do by pleading only a claim of “negligence and carelessness.” See L.K. v. Gregg, 425 N.W.2d 813, 819 (Minn. 1988) [*11] (stating that pleadings are liberally construed to “give[] adequate notice of the claim” against the defending party); cf. State v. Hayes, 244 Minn. 296, 299-300, 70 N.W.2d 110, 113 (1955) (concluding that “both at common law and by virtue of long-established usage,” the term “carelessness” in a criminal statute is “synonymous with ordinary negligence”).3

3 We also note that the district court did not require the Bergins to move to amend their complaint. Following a hearing on the summary judgment motion, the district court sent a letter to the parties, stating that “[a]t the Summary Judgment Motion Hearing, [the Bergins] moved the Court to amend the Complaint” and that “[t]he Court will leave the record open” for them to file the motion. The district court simply responded to the Bergins’ desire to amend the complaint without requiring them to do so.

Turning to the Bergins’ substantive argument, they assert that “there are questions of fact regarding whether Wild Mountain engaged in reckless or willful or wanton conduct that . . . preclude summary judgment.” [HN8] “[R]eckless conduct includes willful and wanton disregard for the safety of others . . . .” Kempa v. E.W. Coons Co., 370 N.W.2d 414, 421 (Minn. 1985).

The [*12] actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500 (1965) (emphasis added); see also 4 Minnesota Practice, CIVJIG 25.37 (2006). “Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril.” Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002).

The Bergins argue that their expert affidavits support their claim of greater-than-ordinary negligence. We are not persuaded for three reasons.

First, [HN9] “[a]ffidavits in opposition to a motion for summary judgment do not create issues of fact if they merely recite conclusions without any specific factual support.” Grandnorthern, Inc. v. W. Mall P’ship, 359 N.W.2d 41, 44 (Minn. App. 1984). Bayer’s testimony that Wild [*13] Mountain “knew” that the snow mound was hazardous is speculation because there is no evidence that Bayer knew Wild Mountain employees’ state of mind before Lee’s fall and injury.

Second, the Bergins misunderstand the “had reason to know” standard for establishing a claim of greater-than-ordinary negligence. The Bergins contend that they need not prove knowledge to establish a claim of greater-than-ordinary negligence and that it is enough that Wild Mountain “should have known” that the snow mound was hazardous. But [HN10] knowledge separates the “had reason to know” standard from the “should have known” standard:

(1) The words “reason to know” . . . denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.

(2) The words “should know” . . . denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that [*14] such fact exists.

Restatement (Second) of Torts § 12 (1965) (emphases added). Accordingly, Bayer’s testimony that Wild Mountain “should have known” that the snow mound was hazardous is insufficient to establish the state of mind necessary to establish a claim of greater-than-ordinary negligence.

Finally, the expert affidavits are insufficient to establish that Wild Mountain had reason to know that the snow mound was hazardous. According to Bayer and Penniman, the snow mound was hazardous because skiers do not expect a snow mound in the transition run-out area and because the lighting condition obscured the snow mound. Assuming that these alleged facts are true, nothing in the record suggests that Wild Mountain had knowledge of these facts from which to infer that the snow mound was hazardous. Rather, Raedeke’s testimony shows that Wild Mountain received no complaints from hundreds of skiers who skied The Wall before Lee’s accident. The expert affidavits are, at most, evidence that a reasonable person managing the ski operation would not have created, or would have marked, the snow mound in the run-out area. This evidence shows only ordinary negligence.

Because the evidence is insufficient [*15] to establish that Wild Mountain engaged in conduct constituting greater-than-ordinary negligence, the district court correctly determined that a claim of greater-than-ordinary negligence would not survive a motion for summary judgment. Accordingly, the district court acted within its discretion by denying the Bergins’ motion to amend their complaint to add a claim of greater-than-ordinary negligence. See Johnson, 817 N.W.2d at 714 (stating that [HN11] a district court “does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment”).

The Bergins also argue that the district court “did not address the evidence that created questions of material fact regarding Wild Mountain’s reckless, willful, or wanton conduct.” But the district court examined Wild Mountain’s conduct and concluded that it “does not meet the standards for gross negligence, willful and wanton conduct, or reckless conduct (as defined by both parties).” The district court’s discussion of Lee’s knowledge of the inherent risks of skiing–while perhaps extraneous–does not indicate that the district court failed to analyze Wild Mountain’s conduct.

II.

The Bergins argue [*16] that the district court erred by determining that the exculpatory clause bars the Bergins’ claim of ordinary negligence. [HN12] The interpretation of a written contract is a question of law reviewed de novo. Borgersen v. Cardiovascular Sys., Inc., 729 N.W.2d 619, 625 (Minn. App. 2007). [HN13] Under certain circumstances, “parties to a contract may . . . protect themselves against liability resulting from their own negligence.” See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982) (considering exculpatory clauses in construction contracts and commercial leases). “A clause exonerating a party from liability,” known as an exculpatory clause, is enforceable if it: (1) is “unambiguous”; (2) is “limited to a release of liability arising out of negligence only”; and (3) does not violate public policy. See id. at 923. “An exculpatory clause is ambiguous when it is susceptible to more than one reasonable construction.” Beehner, 636 N.W.2d at 827.

The district court concluded that Wild Mountain’s exculpatory clause is enforceable because it is unambiguous and bars only ordinary-negligence claims. The Bergins contend that the exculpatory clause is ambiguous because “there are questions of fact [*17] regarding whether the [season-pass card] was part of the exculpatory contract.” They assert that the exculpatory clause and the language on the season-pass card “construed together are overly broad and ambiguous” because the season-pass card contains a non-exhaustive list of risks while the season-pass agreement expressly excludes greater-than-ordinary negligence from the scope of the exculpatory clause. We are not persuaded.

Because [HN14] a contract ambiguity exists only if it is “found in the language of the document itself,” we consider whether the season-pass card is a part of the season-pass agreement between Lee and Wild Mountain. See Instrumentation Servs., Inc. v. Gen. Res. Corp., 283 N.W.2d 902, 908 (Minn. 1979). [HN15] “It is well established that where contracts relating to the same transaction are put into several instruments they will be read together and each will be construed with reference to the other.” Anchor Cas. Co. v. Bird Island Produce, Inc., 249 Minn. 137, 146, 82 N.W.2d 48, 54 (1957). Here, the contractual relationship between Lee and Wild Mountain was formed when the online season-pass agreement was executed more than eight months before Lee picked up the season-pass card. [*18] As the district court correctly concluded, the season-pass card itself is not a contract. Although the season-pass card contains language emphasizing the inherent risk of skiing, it does not contain an offer by Wild Mountain to be legally bound to any terms. See Glass Serv. Co., Inc. v. State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867, 870 (Minn. App. 1995), review denied (Minn. June 29, 1995). And as a corollary, Lee could not have accepted an offer that did not exist. The season-pass card is an extrinsic document that does not create an ambiguity in the season-pass agreement.

The Bergins rely on Hackel v. Whitecap Recreations, 120 Wis. 2d 681, 357 N.W.2d 565 (Wis. Ct. App. 1984) (Westlaw). There, a skier was injured when he was “caught in a depression apparently caused by the natural drainage of water.” 120 Wis. 2d 681, at *1. The ski resort “denied liability on the basis of language printed on the lift ticket purchased by” the skier. Id. The Wisconsin Court of Appeals held that summary judgment was improper because “[w]hether the printed language on the ski ticket was part of the contractual agreement between the parties is a question of fact.” Id. Based on Hackel, the Bergins argue that “there are [*19] questions of fact regarding whether the [season-pass card] was part of the exculpatory contract.”

The Bergins’ reliance on Hackel is misplaced. As an unpublished opinion issued before 2009, Hackel has neither precedential nor persuasive value in Wisconsin. See Wis. R. App. P. 809.23(3) (Supp. 2013). Even if it were, Wisconsin’s adoption of a common-law rule is “not binding on us as authority.” See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (examining other jurisdictions’ standards of tort liability). Substantively, the questions of fact that precluded summary judgment in Hackel are absent here. In Hackel, the only language alleged to be exculpatory was printed on the back of a lift ticket, which the skier did not sign. 120 Wis. 2d 681, at *1. This language did not expressly release the ski resort from liability, but it listed the risks that the skier agreed to assume. Id. The Wisconsin court concluded that a fact issue exists as to whether the language could be construed to mean “that skiers assume inherent risks of the sport without relieving [the ski company] of its own negligence” or that “[t]he language might also be construed as an exculpatory clause.” 120 Wis. 2d 681, Id. at *2. Another [*20] question of fact that precluded summary judgment was “whether the [unsigned] ticket was intended as part of the contract.” 120 Wis. 2d 681, Id. at *1 n.1. Here, unlike in Hackel, neither the existence of an exculpatory clause nor the intention that it be a part of the contract is in question. It is undisputed that Lee agreed to the exculpatory clause in the season-pass agreement before receiving the season-pass card.

Even if the season-pass card and season-pass agreement are construed together, they do not create an ambiguity. [HN16] “Terms in a contract should be read together and harmonized where possible,” and “the specific in a writing governs over the general.” Burgi v. Eckes, 354 N.W.2d 514, 518-19 (Minn. App. 1984). Accordingly, the season-pass agreement’s specific language excluding greater-than-ordinary negligence from the scope of the exculpatory clause supersedes the season-pass card’s general language on the inherent risks of skiing. The district court correctly determined that the exculpatory clause is limited to a release of liability arising out of negligence only and granted summary judgment in favor of Wild Mountain.

Because we conclude that an unambiguous and enforceable exculpatory clause [*21] bars the Bergins’ claim of ordinary negligence, we decline to reach the issue of whether the doctrine of primary assumption of risk also bars the claim of ordinary negligence.

Affirmed.


Michigan decision rules skier who fell into half pipe after landing a jump could not recover based on 2 different sections of the Michigan Ski Area Safety Act.

Language of the Michigan Ski Area Safety Act used to stop plaintiff’s claims two different ways.

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

State: Michigan, Court of Appeals of Michigan

Plaintiff: Marvin Marshall and Christine Marshall

Defendant: v Boyne USA, Inc.,

Plaintiff Claims: Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe.

Defendant Defenses: 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.

Holding: for the defendant

Year: 2012

Plaintiff was skiing with a friend. In the morning, they had skied through the terrain park but had not skied the half pipe. In the afternoon, they went back to the terrain park and skied several jumps again. Plaintiff also noticed the warning sign at the entrance of the terrain park.

The half pipe in this case appears to be a trough lower than the height of the ski slope based upon the description in the decision. As the plaintiff landed a jump, he allegedly slid to a stop and then fell into the half pipe suffering injuries.

The plaintiff and his spouse sued the resort. The resort filed a motion for summary disposition (similar to a motion for summary judgment) with the court based on:

…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.

That motion was denied, and the defendants appealed the denial to the Michigan Appellate Court.

Analysis: making sense of the law based upon these facts.

The court firs looked at the Michigan Ski Area Safety Act. The court found the claims of the plaintiff were barred by the act. Under the Michigan act, a skier assumes the risks of the sport that are necessary or not obvious.

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Among the risks assumed are “variations in terrain.” MCL 408.342(2).

Because the actions of the plaintiff were covered under the act, the court then looked to see if the actions of the defendant ski area were in violation of any duty imposed under the act. The court did not find any violations of the act.

Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that defendant complied with this requirement.

The plaintiff argued that failing to mark the half pipe breached a duty to the plaintiff. However, the court found the plaintiff accepted that risk of an unmarked half pipe when he chose to ski into the terrain park and passed the warning sign.

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 defendant raised two additional arguments in its defense. The first was a release signed by the plaintiff when he rented his ski equipment and the “release” on the back of his lift ticket. Because the statute barred his claims and the lawsuit would be dismissed, the court did not look into either of those defenses.

The court reversed the trial court decision.

There was also a dissent in the case. The dissent agreed with the majority that the case should be reversed by based its decision to reverse on other grounds.

The dissent found the terrain park and the half pipe were necessary installations in a terrain park. However, the dissent agreed with the plaintiff’s that the half pipe was not obvious, which is what the dissent believes persuaded the trial court to deny the defendant’s motion.

However, because the plaintiff to actual knowledge of the half pipe that he observed earlier in the day while skiing he could not claim it was a hidden danger.

The dissent also felt the plaintiff should lose because the plaintiff failed to maintain reasonable control of his course and speed at all times as required by the Michigan Ski Area Safety Act.

I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after  executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

The case was sent back to the trial court to be dismissed.

So Now What?

It’s nice when a plan comes together, and a statute is written so the court’s interpretation of the statute proceeds along the same lines as the writers of the statute intended.

The Michigan Ski Area Safety Act is a very effective act, almost as encompassing as Colorado’s. The act was written to make sure that injured skiers could only sue if the ski area actually did something to injure the plaintiffs.

The facts in this case also do not lead you to believe the plaintiff stretched the truth. His actions in skiing across the mountain to hit a jump which sent him further across the mountain diagonally were not super intelligent. However, did not result in any injury except his own.

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Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marvin Marshall and Christine Marshall, Plaintiffs-Appellees, v Boyne USA, Inc., Defendant-Appellant.

No. 301725

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 928

May 15, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

SUBSEQUENT HISTORY: Leave to appeal denied by Marshall v. Boyne United States, Inc., 2012 Mich. LEXIS 2153 (Mich., Dec. 5, 2012)

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-091822-NF.

CORE TERMS: half pipe, terrain, skiing, ski, jump, skied, hit, inhere, hazard, trail, sport, downhill, feet, Safety Act SASA, ski resort, skier, slope, top, morning, timing, reversing, booth, edge

JUDGES: Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ. HOEKSTRA, P.J., (concurring).

OPINION

Per Curiam.

Defendant appeals by leave granted from the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand.

In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend, Randy. They skied several trails that morning, and also skied in the terrain park. Plaintiff was familiar with and had skied in terrain parks, which he described as having “jumps and different obstacles[.]” Plaintiff saw a warning sign at the entrance to the terrain park, but he did not read it.

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. Skiers ski inside of the half pipe. On the morning of February 5, plaintiff saw the half pipe in the terrain park, but he did not ski into it. Plaintiff skied in an area just to the right of the half pipe.

After lunch, plaintiff and his friend went into the terrain park for a second time. They entered the terrain park from the left side this time. [*2] Plaintiff skied down the terrain park and hit the edges of a series of jumps. When plaintiff was halfway down the hill, Randy yelled to him and plaintiff stopped. Randy said that there was a good jump to their right that would be “good to hit.” Randy went first, and plaintiff followed. Plaintiff proceeded laterally across the hill (to the right, if one is facing downhill). Plaintiff “came almost straight across because there was enough of an incline . . . [he] didn’t have to come downhill much.”

Plaintiff successfully navigated the jump, which caused him to go up into the air about 12 to 15 feet. He landed and came to a stop by turning quickly to the right and power-sliding to a stop. As he looked around for Randy, plaintiff felt his feet go over the edge of the half pipe. He 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.

Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, [*3] 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. Thereafter, we granted defendant’s motion for leave to appeal. We review the trial court’s decision de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 23; 664 NW2d 756 (2003).

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Anderson, 469 Mich at 26. Among the risks assumed are “variations in terrain.” MCL 408.342(2). Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that [*4] defendant complied with this requirement. Rather, plaintiffs argue that defendant breached a duty not imposed by the statute: to mark the half pipe itself. But Anderson makes clear that when SASA resolves a matter, common-law principles are no longer a consideration. Anderson, 469 Mich at 26-27. 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. Anderson, 469 Mich at 25-26.

Accordingly, defendant was entitled to summary disposition by application of SASA. In light of this conclusion, we need not consider whether defendant was also entitled to summary disposition under the liability waivers.

Reversed and remanded to the trial court with instructions to enter an order of summary disposition in defendant’s favor. We do not retain jurisdiction. Defendant may tax costs.

/s/ David H. Sawyer

/s/ Henry William Saad

CONCUR BY: HOEKSTRA

CONCUR

Hoekstra, P.J., (concurring).

Although I join with the majority in reversing, I write separately because my reason for reversing differs from that of the majority.

In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26; 664 NW2d 756 (2003), [*5] the Supreme Court concluded that if a hazard inheres in the sport of skiing, it is covered by the Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., unless it is unnecessary or not obvious.

Here, it is undisputed that the half pipe, like the timing booth in Anderson, inheres to the sport of skiing and is a necessary installation in a terrain park. But unlike the timing booth in Anderson, plaintiff, in my opinion, makes an arguable claim that the half pipe was not obvious to persons skiing cross-hill. It appears that this argument persuaded the trial court to deny defendant’s motion for summary judgment.

But even assuming a fact question exists regarding whether the half pipe was not obvious, plaintiff admitted to actual knowledge of the location of the half pipe from having observed it earlier that same day while skiing. When skiing, a plaintiff is required by the SASA to “maintain reasonable control of his speed and course at all times,” MCL 408.342 (emphasis added). I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after [*6] executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

/s/ Joel P. Hoekstra


Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant

Plaintiff argues gross negligence claim which appellate court agreed raise enough triable issues of fact to send the case back to the trial court.

Hawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366

State: Michigan, COURT OF APPEALS OF MICHIGAN

Plaintiff: Bret D. Hawkins and Erin Hawkins

Defendant: v Ranch Rudolph, Inc. and Circle H Stables, Inc.

Plaintiff Claims: Gross Negligence

Defendant Defenses: Actions not negligent

Holding: For Plaintiff

Year: 2005

The plaintiffs were on their honeymoon and signed up for a trail ride. They chose the “Wrangler Ride” offered by the defendant because the groom had never been on a horse before. The Bride had only been on a horse once when she was eleven. The Wrangler Ride was a four mile single file ride on trails through the woods.

The trail guide or wrangler chose a horse for the groom that was very gentle, normally used for kids. The wrangler gave everyone basic instructions how to stay on the horse and use the reins. The wrangler saddled the horses and double checked the saddles before and after the guests mounted their horses.

The groom claimed after mounting the horse he complained that his saddle was not securely fastened. The wrangler did not recall the groom making this request. She also did not notice the saddle was loose while the groom was mounting the horse.

During the ride the wrangler asked if they wanted to trot their horses and asked if anyone was opposed to the idea. She also said if they were having trouble to yell.

At this point the plaintiff’s version of the facts are so fare outside of the scope of a normal operation or how horses would respond it is clear the facts were altered or made up to support their claims.

According to plaintiffs, Ridge and her horse then “bolted” into a fast, or full-out run, and the other horses followed her lead. Both plaintiffs stated that when their horses began running they were too surprised or shocked to yell and were just trying to hang on. According to Bret, his saddle slid to the right and he grabbed the saddlehorn and the back of the saddle as instructed but was still falling off his horse. He stated that his arm hit a tree so hard that he suffered a humeral fracture. He then fell from the horse.

However the wrangler and other people on the ride described the events quite differently.

According to Ridge, a trot is a fast walk, “slower than a canter, and much slower than a run or gallop.” Other experienced riders in the group characterized a trot in similar language.

One of the other participants attested that he checked the saddle after the fall and it was not loose.

On top of that the facts are just too absurd to be believable. No trail ride, no matter how good the riders are going to take off on a gallop. It is dangerous for riders of all abilities and horses. Second, normally, the first thing someone in trouble or seeing a risk does is scream. Thirdly, if you are holding on to the saddlehorn with one hand and the back of the saddle with the other, how does your arm fly out and strike a tree?

The trial court could not find facts in the plaintiff’s version of the facts that would rise to the level required to prove negligence under Michigan law. The release voided all ordinary negligence claims so only the gross negligence claim was viable.

The case was dismissed and the plaintiff’s appealed.

Analysis: making sense of the law based on these facts.

The basic claim of the plaintiff is there were issues of fact in dispute giving rise to enough for a jury to decide.

The first issue the court addressed was the witness statements, but not directly. Rather the court looked at what a witness may say. Basically it is about anything as long as it is relevant to the case. Lay witnesses, witnesses that are not qualified as an expert witness, can provide opinions.

As an initial matter, plaintiffs’ testimony was admissible because it was based on their personal observations and perceptions. MRE 602. To the extent that plaintiffs’ testimony merely amounted to opinion, such testimony would nevertheless be admissible evidence. MRE 701. “MRE 701 allows opinion testimony by a lay witness as long as the opinion is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue.” “Once a witness’s opportunity to observe is demonstrated, the opinion is admissible in the discretion of the trial court, and the weight to be accorded the testimony is for the jury to decide.” Moreover, laypersons are permitted to testify regarding speed. Therefore, that plaintiffs lacked experience with horses merely goes to the weight of their testimony not to its admissibility.

So no matter how farfetched or contrived the statements of a witness, if they cannot be proved as false, they are admitted into court.

The court then looked at gross negligence in Michigan. “…gross negligence should be defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

Since under Michigan and most other (if not all) state laws a release does not void a claim for gross negligence, the only claims left of the plaintiff were the gross negligence claims.

The Michigan Equine Liability act allows the use of a release by horse owners.

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice.

(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).

The court pointed out that the act did not provide protection for the “equine professional.” As such, the only claims available to the plaintiff were the claims for gross negligence.

The court then found that the plaintiff’s claims if viewed in a light most favorable to them could be found to be valid to prove a claim of gross negligence.

We conclude that viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether her conduct of taking a totally inexperienced rider on a fast ride was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.

There is a dissenting opinion that found the trial court was correct in its analysis of the facts. However the majority opinion found that the issue at trial in this case was the decision to speed up the ride.

However, in our collective opinion, our point of departure from our esteemed colleague’s dissenting opinion is the trail guide’s decision to speed up the pace when plaintiff had never ridden a horse before. For a first time rider, yelling “Whoa Nellie” or in this instance, “Whoa Tye” hoping to slow the horse down or to obtain the trail guide’s attention for help could be difficult.

The court went on to explain its reasoning.

Ridge was in control of the horses’ speed, as the guide riding the lead horse. And Bret’s horse “bolted” not because it was scared, which would clearly be an inherent risk of an equine activity, but because it was following Ridge’s lead. It cannot be disputed that she made the conscious decision to “speed things up a little bit,” knowing that Bret lacked the requisite experience to control the animal on which he rode. It would seem that it was indisputably an important part of Ridge’s job to look after the safety of those placed in her care.

The court sent the case back to trial.

A reasonable person could conclude that Ridge’s conduct of taking plaintiffs on a fast ride given their known lack of experience unreasonably added to the risks of the already dangerous activity and was thus so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.

So Now What?  (Motivational get them to do something post)

First the Michigan Equine Liability Statute only protects a horse owner from the actions of the horse. There was no protection for the actions of the wrangler or the stable. No matter how written all equine liability acts have been written in a similar way leaving wide open any lawsuit claiming the injury the plaintiff received was do the owner’s negligence.

As I have said in the past, Equine Liability Acts are 100% effective, since their enactment no horses have been sued. However the acts were so glaring deficient they have seemingly increased the number of lawsuits against horse owners.

This defendant wisely followed the requirements of the act and had guests sign a release.

The second issue is wild statements of the injured guests. Actually there are very little ways to counteract these statements except for one. If you can record either in writing, in the minds of witnesses or by a tape the statements of the possible plaintiffs. Keeping good notes on what they said might allow you to at least partially discredit later allegations, but only at trial.

Another real issue that came to light in this case is the other riders who were involved with their actions and opinions. One rider checked the saddle to see if it was tight and others opined they never went faster than a trot. Keeping the other witnesses and participants to an activity engaged and happy can be of infinite value to you later. Remember a Victim is not only the person who was hurt but anyone who saw the victim or was on the trip. These people may need care, maybe not first aid, but at least someone to help them deal with the issues they may be having.

Although those statements would have little value in pre-trial motions, their testimony at trial is the most valuable statements made on the stand. Jurors know that the other guests had a better view, a better understanding of what happened and no axe to grind or wallet to defend.

 

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Michigan Equine Activity Liability Act

MICHIGAN COMPILED LAWS SERVICE

Copyright © 2015 Matthew Bender & Company, Inc.

a member of the LexisNexis Group.

All rights reserved.

This document is current through 2015 Public Act 202 with the exception of Public Acts 160, 167, 170, 173-176, 178-179, 181, 182, 191, and 198.

Chapter 691  Judiciary

Act 351 of 1994  Equine Activity Liability Act

Go to the Michigan Code Archive Directory

MCLS § 691.1662  (2015)

 

§ 691.1661.  Short title. 1

§ 691.1662.  Definitions. 2

§ 691.1663.  Injury, death, or property damage; liability. 5

§ 691.1664.  Liability; exception; waiver. 7

§ 691.1665.  Liability not prevented or limited; conditions. 9

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice. 11

§ 691.1667.  Applicability of act. 12

 

§ 691.1661.  Short title.

Sec. 1.   This act shall be known and may be cited as the “equine activity liability act”.

HISTORY: Pub Acts 1994, No. 351, § 1, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(1)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals §§ 61, 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

13 Am Jur Proof of Facts 2d 473, Knowledge of Animal’s Vicious Propensities

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1662.  Definitions.

Sec. 2.   As used in this act:

            (a) “Engage in an equine activity” means riding, training, driving, breeding, being a passenger upon, or providing or assisting in veterinary treatment of an equine, whether mounted or unmounted. Engage in an equine activity includes visiting, touring, or utilizing an equine facility as part of an organized event or activity including the breeding of equines, or assisting a participant or show management. Engage in equine activity does not include spectating at an equine activity, unless the spectator places himself or herself in an unauthorized area and in immediate proximity to the equine activity.

            (b) “Equine” means horse, pony, mule, donkey, or hinny.

            (c) “Equine activity” means any of the following:

                        (i) An equine show, fair, competition, performance, or parade including, but not limited to, dressage, a hunter and jumper horse show, grand prix jumping, a 3-day event, combined training, a rodeo, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting.

                        (ii) Equine training or teaching activities.

                        (iii) Boarding equines, including their normal daily care.

                        (iv) Breeding equines, including the normal daily care and activities associated with breeding equines.

                        (v) Riding, inspecting, or evaluating an equine belonging to another, whether or not the owner receives monetary consideration or another thing of value for the use of the equine or is permitting a prospective purchaser of the equine or an agent to ride, inspect, or evaluate the equine.

                        (vi) A ride, trip, hunt, or other activity, however informal or impromptu, that is sponsored by an equine activity sponsor.

                        (vii) Placing or replacing a horseshoe on or hoof trimming of an equine.

            (d) “Equine activity sponsor” means an individual, group, club, partnership, or corporation, whether or not operating for profit, that sponsors, organizes, or provides the facilities for an equine activity, including, but not limited to, a pony club; 4-H club; hunt club; riding club; school- or college-sponsored class, program, or activity; therapeutic riding program; stable or farm owner; and operator, instructor, or promoter of an equine facility including, but not limited to, a stable, clubhouse, ponyride string, fair, or arena at which the equine activity is held.

            (e) “Equine professional” means a person engaged in any of the following for compensation:

                        (i) Instructing a participant in an equine activity.

                        (ii) Renting an equine, equipment, or tack to a participant.

                        (iii) Providing daily care of horses boarded at an equine facility.

                        (iv) Training an equine.

                        (v) Breeding of equines for resale or stock replenishment.

            (f) “Inherent risk of an equine activity” means a danger or condition that is an integral part of an equine activity, including, but not limited to, any of the following:

                        (i) An equine’s propensity to behave in ways that may result in injury, harm, or death to a person on or around it.

                        (ii) The unpredictability of an equine’s reaction to things such as sounds, sudden movement, and people, other animals, or unfamiliar objects.

                        (iii) A hazard such as a surface or subsurface condition.

                        (iv) Colliding with another equine or object.

            (g) “Participant” means an individual, whether amateur or professional, engaged in an equine activity, whether or not a fee is paid to participate.

HISTORY: Pub Acts 1994, No. 351, § 2, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(2)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

Plaintiff, a visitor to a stable, was a “participant” under the Equine Activity Liability Act when she briefly assisted in the care of a horse owned by a friend. Therefore her claim for damages arising from being bitten by a horse was properly dismissed on summary. Amburgey v. Sauder, 238 Mich. App. 228, 605 N.W.2d 84, 1999 Mich. App. LEXIS 282 (Mich. Ct. App. 1999).

Horse owner could invoke MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., although she was not an equine professional or an equine activity sponsor because she fit within the definition of “another person” under § 691.1663 of the EALA. Also, she properly was characterized as an equine participant as that term was defined in MCL § 691.1662. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Rider’s injuries while riding a horse resulted from “an inherent risk of an equine activity” as that phrase was defined under MCL § 691.1662(f) of the Michigan Equine Activity Liability Act, MCL §§ 691.1661 et seq., based on the rider’s testimony that, upon being mounted, the horse got a little antsy and started to raise up on the front end a little bit at which time the rider, who was experienced, began turning the horse in tight circles to settle him down. After turning two circles, the horse bumped his head on a tree; reared up and caught one of his front hoofs in a tree; went over backwards and fell on the rider, injuring the rider. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 73

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

1C Am Jur Pl & Pr Forms, Rev, Animals, § 1

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1663.  Injury, death, or property damage; liability.

Sec. 3.   Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or the death of a participant or property damage resulting from an inherent risk of an equine activity. Except as otherwise provided in section 5, a participant or participant’s representative shall not make a claim for, or recover, civil damages from an equine activity sponsor, an equine professional, or another person for injury to or the death of the participant or property damage resulting from an inherent risk of an equine activity.

HISTORY: Pub Acts 1994, No. 351, § 3, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(3)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

Judgment granting summary disposition under MCR 2.116(C)(10) in favor of a horse owner in a neighbor’s personal injury action was affirmed because the neighbor failed to produce evidence in support of her claims under MCL 691.1665(b) and (d) as her injury resulted from an inherent risk of an equine activity and she did not prove otherwise. The claim was barred under MCL 691.1663. Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748, 2009 Mich. App. LEXIS 1445 (Mich. Ct. App. 2009), rev’d, 486 Mich. 1060, 784 N.W.2d 38, 2010 Mich. LEXIS 1452 (Mich. 2010).

Horse owner could invoke MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., although she was not an equine professional or an equine activity sponsor because she fit within the definition of “another person” under § 3 of the EALA. Also, she properly was characterized as an equine participant as that term was defined in MCL § 691.1662. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Bar to liability set forth in MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., was subject to MCL § 691.1665, which provided that § 691.1663 of the EALA did not prevent liability for a negligent act or omission that proximately caused an injury. Accordingly, the EALA did not prevent liability on a rider’s claim that a horse owner was negligent in failing to warn the rider about the horse’s dangerous and viscous propensities; and whether the owner acted reasonably by suggesting to the rider that he ride the horse and not warning the rider that the horse was in need of further training, in light of the rider’s extensive experience with horses, was clearly a question of fact for a jury. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Statutory references:

Section 5, above referred to, is § 691.1665.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals §§ 71, 73

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

13 Am Jur Proof of Facts 2d 473, Knowledge of Animal’s Vicious Propensities

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1664.  Liability; exception; waiver.

Sec. 4.   (1) This act does not apply to a horse race meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.

(2) Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.

HISTORY: Pub Acts 1994, No. 351, § 4, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(4)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

The Equine Activity Liability Act (EALA) provides immunity to commercial riding stables from claims for damages resulting from the inherent risks of horseback riding and being around horses, but the immunity provision does not apply to horse race meetings; a horse race meeting within the meaning of the EALA includes the activity of exercising a race horse at a track in preparation for a race; while the EALA did not confer immunity on a race track in a suit brought by a exercise rider who was injured when he was thrown from a horse, the release signed by the plaintiff was broad enough to protect the defendant from liability. Cole v. Ladbroke Racing Mich., Inc., 241 Mich. App. 1, 614 N.W.2d 169, 2000 Mich. App. LEXIS 110 (Mich. Ct. App. 2000), app. denied, 463 Mich. 972, 623 N.W.2d 595, 2001 Mich. LEXIS 223 (Mich. 2001).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 13

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Legal periodicals:

Fayz, Annual Survey of Michigan Law, June 1, 1999-May 31, 2000: Torts, 47 Wayne L Rev 719 (2001)

§ 691.1664.  Liability; exception; waiver.

Sec. 4.   (1) This act does not apply to a horse race meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.

(2) Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.

HISTORY: Pub Acts 1994, No. 351, § 4, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(4)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

The Equine Activity Liability Act (EALA) provides immunity to commercial riding stables from claims for damages resulting from the inherent risks of horseback riding and being around horses, but the immunity provision does not apply to horse race meetings; a horse race meeting within the meaning of the EALA includes the activity of exercising a race horse at a track in preparation for a race; while the EALA did not confer immunity on a race track in a suit brought by a exercise rider who was injured when he was thrown from a horse, the release signed by the plaintiff was broad enough to protect the defendant from liability. Cole v. Ladbroke Racing Mich., Inc., 241 Mich. App. 1, 614 N.W.2d 169, 2000 Mich. App. LEXIS 110 (Mich. Ct. App. 2000), app. denied, 463 Mich. 972, 623 N.W.2d 595, 2001 Mich. LEXIS 223 (Mich. 2001).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 13

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Legal periodicals:

Fayz, Annual Survey of Michigan Law, June 1, 1999-May 31, 2000: Torts, 47 Wayne L Rev 719 (2001)

§ 691.1665.  Liability not prevented or limited; conditions.

Sec. 5.   Section 3 does not prevent or limit the liability of an equine activity sponsor, equine professional, or another person if the equine activity sponsor, equine professional, or other person does any of the following:

            (a) Provides equipment or tack and knows or should know that the equipment or tack is faulty, and the equipment or tack is faulty to the extent that it is a proximate cause of the injury, death, or damage.

            (b) Provides an equine and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to determine the ability of the participant to safely manage the particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably sufficient detail.

            (c) Owns, leases, rents, has authorized use of, or otherwise is in lawful possession and control of land or facilities on which the participant sustained injury because of a dangerous latent condition of the land or facilities that is known to the equine activity sponsor, equine professional, or other person and for which warning signs are not conspicuously posted.

            (d) If the person is an equine activity sponsor or equine professional, commits an act or omission that constitutes a willful or wanton disregard for the safety of the participant, and that is a proximate cause of the injury, death, or damage.

            (e) If the person is not an equine activity sponsor or equine professional, commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage.

HISTORY: Pub Acts 1994, No. 351, § 5, eff March 30, 1995; amended by Pub Acts 2015, No. 87, eff September 21, 2015.

NOTES:

Prior codification:

MSA § 12.418(5)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

Amendment Notes

The 2015 amendment by PA 87 rewrote (d), which formerly read: “Commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage”; and added (e).

NOTES TO DECISIONS

Judgment granting summary disposition under MCR 2.116(C)(10) in favor of a horse owner in a neighbor’s personal injury action was affirmed because the neighbor failed to produce evidence in support of her claims under MCL 691.1665(b) and (d) as her injury resulted from an inherent risk of an equine activity and she did not prove otherwise. The claim was barred under MCL 691.1663. Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748, 2009 Mich. App. LEXIS 1445 (Mich. Ct. App. 2009), rev’d, 486 Mich. 1060, 784 N.W.2d 38, 2010 Mich. LEXIS 1452 (Mich. 2010).

Bar to liability set forth in MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., was subject to MCL § 691.1665, which provided that § 691.1663 of the EALA did not prevent liability for a negligent act or omission that proximately caused an injury. Accordingly, the EALA did not prevent liability on a rider’s claim that a horse owner was negligent in failing to warn the rider about the horse’s dangerous and viscous propensities; and whether the owner acted reasonably by suggesting to the rider that he ride the horse and not warning the rider that the horse was in need of further training, in light of the rider’s extensive experience with horses, was clearly a question of fact for a jury. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Statutory references:

Section 3, above referred to, is § 691.1663.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Act 351 of 1994  Equine Activity Liability Act prec 691.1661

AN ACT to regulate civil liability related to equine activities; and to prescribe certain duties for equine professionals.

The People of the State of Michigan enact:

HISTORY: ACT 351, 1994, p 1749, eff March 30, 1995.

NOTES:

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice.

Sec. 6.   (1) An equine professional shall post and maintain signs that contain the warning notice set forth in subsection (3). The signs shall be placed in a clearly visible location in close proximity to the equine activity. The warning notice shall appear on the sign in conspicuous letters no less than 1 inch in height.

(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).

(3) A sign or contract described in this section shall contain substantially the following warning notice:

WARNING

Under the Michigan equine activity liability act, an equine professional is not liable for an injury to or the death of a participant in an equine activity resulting from an inherent risk of the equine activity.

HISTORY: Pub Acts 1994, No. 351, § 6, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(6)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 72

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

§ 691.1667.  Applicability of act.

Sec. 7.   This act applies only to a cause of action filed on or after the effective date of this act.

HISTORY: Pub Acts 1994, No. 351, § 7, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(7)