Michigan appellate court supports dismissal of a case based on Michigan Ski Area Safety Act
Posted: October 1, 2012 Filed under: Michigan, Ski Area, Skiing / Snow Boarding | Tags: Anderson, Boyne Mountain, Boyne USA, Jackson Hole Mountain Resort, Michigan, Michigan Supreme Court, Ski, Ski Resort, skiing, snowboarding, Terrain park Leave a commentAnderson v Boyne USA, Inc., 2012 Mich. App. LEXIS 1725
Decision is definitive about the issues identifying how the Michigan Ski Area Safety Act is to be interpreted.
This decision is recent and can still be appealed by the plaintiff. However, the decision is written well, short, and thorough. In the case, the plaintiff was paralyzed on a jump in the terrain park at Boyne Mountain Ski Area. The trial court dismissed the plaintiff’s lawsuit based on the Michigan Ski Safety Act, (SASA), MCL 408.341 et seq.
The plaintiff had been skiing at Boyne the prior day and had boarded through the terrain park. The terrain park was marked and had warning signs posted near the entrance into the terrain park. The court stated, “The jump was not a hidden feature of the park, and plaintiff would have seen it had he heeded all posted signs and warnings, as required by the statute.”
Summary of the case
The court in the first paragraph stated the Michigan Ski Safety Act barred the plaintiff’s claims because the jump was “an inherent, obvious, and necessary danger of snowboarding.” The reasoning was based on the SASA MCL 408.342 which 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 section 6a(e).
(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 snowmaking or snow-grooming equipment.
The court then interpreted a prior Michigan Supreme Court decision Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20; 664 NW2d 756 (2003) which stated: “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.”
The court looked at the jump in the terrain park as a “variation of terrain” which is listed as an inherent risk of skiing in the SASA. The jump was also something the plaintiff should expect to see if one entered the terrain park. A skier or snowboarder must accept the risks associated with the sport, whether going down the slope or “performing tricks in a terrain park.”
The court also looked at the terrain park not as some special part of the ski area but as part of the ski area. The following quote should be used in every motion over terrain park injuries in the future. It shows a true understanding of what a terrain park is.
While it is true, one can snowboard without jumps, a snowboarder enters a terrain park expecting to use jumps, rails, and boxes. Without those features, there would not be a terrain park. If a snowboarder did not want to use those features, he or she would not enter a terrain park. Instead, the snowboarder would simply propel down a ski hill. Therefore, a jump is a necessary feature of a terrain park.
The court looked at the jump the plaintiff was injured jumping and found it was obvious. The plaintiff also knew of the jump, seeing it the previous day.
The court also took on the plaintiff’s expert witness. The plaintiff, through its expert argued the jump was designed or constructed incorrectly. The court found this to be irrelevant. How it was constructed does not matter because it is a risk that the plaintiff assumed as set forth in the statute. The Michigan legislature removed this argument from the case when it passed the law.
So Now What?
Finally, a decision concerning a terrain park from a court that understands what a terrain park is, part of a ski area. However, as stated above, this decision could still be appealed, which may result in a different decision.
This case shows an evolution of the courts understanding of snowboarding and terrain parks. Decisions in the past either failed to comprehend what a terrain park was or held the resort liable because the terrain park was outside the protection of the statute and obviously dangerous. See Dunbar v. Jackson Hole Mountain Resort Corporation, 2004 U.S. App. LEXIS 25807 where the court found the half pipe to be a high-risk feature when the plaintiff fell into it (not fell while in it, but fell from the berm into it.)
Here the court saw the park as just another part of the ski area. Like a roller or a bump made by grooming outside of the terrain park, whether or not the injury was caused in or out of the terrain, park does not matter. The jump is part of the resort as such covered by the definitions in the Michigan Ski Area Safety Act.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Short and Sweet Michigan case backs up the Michigan Ski Area Safety Act
Posted: June 25, 2012 Filed under: Michigan, Ski Area | Tags: Appellate Court, Boyne Mountain, Half Pipe, Michigan, Michigan Ski Safety Act, Ski, Ski Resort, Terrain park, Winter sport Leave a commentMarshall v. Boyne USA, Inc., 2012 Mich. App. LEXIS 928
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 Michigan Appellate Court in a concise three-page decision overruled the lower court and held that the Michigan Ski Safety Act bars the plaintiff’s claims.
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. Jackson Hole Mountain Resort 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.
So?
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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