Barr v. Mount Brighton Inc.

• Decision Date: 20 February 1996
• Docket Number: Docket No. 165754
• Citation: 546 N.W.2d 273,215 Mich.App. 512
• Parties: Scott W. BARR, Plaintiff-Appellee, v. MT. BRIGHTON INCORPORATED, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 273

546 N.W.2d 273

215 Mich.App. 512

Scott W. BARR, Plaintiff-Appellee, v. MT. BRIGHTON INCORPORATED, Defendant-Appellant.

Docket No. 165754.

Court of Appeals of Michigan.

Submitted June 6, 1995, at Detroit.

Decided Feb. 20, 1996, at 9:05 a.m.

Released for Publication April 29, 1996.

Boyer, Churilla & Dawson, P.C. (by Jeffrey W. Hartkop and Donald M. Churilla), Sterling Heights, for plaintiff-appellee.

Kaufman & Payton (by Donald L. Payton), Farmington Hills, for defendant-appellant.

Before MARK J. CAVANAGH, P.J., and MARKMAN and GLAZER, ^* JJ.

MARKMAN, Judge.

Defendant appeals by leave granted the Livingston Circuit Court's order denying defendant's motion for summary disposition in this negligence action arising from plaintiff's skiing accident. We reverse.

On December 18, 1988, plaintiff and his friend arrived at defendant's ski resort about 3:00 p.m. They skied until 5:00 p.m., when the slopes were closed for grooming. Afterwards, they resumed skiing. At the ski resort, there was a cluster of trees between the Green "Spartan" Chair and the Yellow Triple Chair ski slopes. Although defendant considered the cluster of trees as an out-of-bounds area, it did not fence or rope off the area or mark it as closed. In attempting to ski down a trail through the cluster of trees, plaintiff struck what he has described as a uniquely shaped tree. As a result, plaintiff was rendered a quadriplegic. ¹

On September 25, 1991, plaintiff commenced this action against defendant, alleging that defendant was negligent with respect to the lighting and grooming of the treed area and in failing to post warnings or mark the area as closed. On May 18, 1993, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) on the grounds that plaintiff failed to state a cause of action and that there were no disputed issues of material fact preventing summary disposition for defendant. In particular, defendant argued that plaintiff's claim was barred by § 22(2) of the Ski Area Safety Act, M.C.L. § 408.342(2); M.S.A. § 18.483(22)(2), which provides for the assumption of risk by skiers of "obvious and necessary" dangers. The trial court denied defendant's motion, finding there to be a question of material fact.

Defendant argues on appeal that § 22(2) bars plaintiff's claim. However, plaintiff claims that defendant violated its statutory duties under the act and thus is not entitled to avail itself of the assumption of risk provision of the act.

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual basis underlying a plaintiff's claim. Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993). ² MCR 2.116(C)(10) permits summary disposition when, except with regard to the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. A court reviewing such a motion, therefore, must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party. Id. This Court reviews the trial court's grant or denial of a motion for summary disposition de novo. Garvelink v. Detroit News, 206 Mich.App. 604, 607, 522 N.W.2d 883 (1994).

The title of the Ski Area Safety Act, M.C.L. § 408.321 et seq.; M.S.A. § 18.483(1) et seq., provides that the act was enacted, among other reasons, "to provide for certain presumptions relative to liability for an injury or damage sustained by skiers" and "to provide for the safety of skiers, spectators, and the public using ski areas." 1962 P.A. 199, amended by 1981 P.A. 86, § 1. Ski area operators have several duties under M.C.L. § 408.326a; M.S.A. § 18.483(6a), including, in pertinent part, the duty to

(c) Mark the top of or entrance to each ski run, slope, and trail to be used by skiers for the purpose of skiing, with an appropriate symbol indicating the relative degree of difficulty of the run, slope, or trail, using a symbols code....

(d) Mark the top of or entrance to each ski run, slope, and trail which is closed to skiing, with an appropriate symbol indicating that the run, slope, or trail is closed....

(e) Maintain 1 or more trail boards at prominent locations in each ski area displaying that area's network of ski runs, slopes, and trails and the relative degree of difficulty of each ski run, slope, and trail ... and indicating which runs, slopes, and trails are open or closed to skiing. [M.C.L. § 408.326a(c), (d), and (e); M.S.A. § 18.483(6a)(c), (d), and (e).]

The act also states the duties of skiers, including those risks that skiers accept when engaging in the sport of skiing. M.C.L. § 408.342(2); M.S.A. § 18.483(22)(2) provides:

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 snow-making or snow-grooming equipment.

We therefore consider plaintiff's claim in light of the Ski Area Safety Act.

Michigan courts have held that a fundamental rule of statutory construction is to ascertain the purpose and intent of the Legislature in enacting a provision. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993). Statutory language should be construed reasonably and the purpose of the statute should be kept in mind. Grieb v. Alpine Valley Ski Area, Inc., 155 Mich.App. 484, 486, 400 N.W.2d 653 (1986). The first criterion in determining intent is the specific language of the statute. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted and courts must apply the statute as written. Turner v. Auto Club Ins. Ass'n., 448 Mich. 22, 27, 528 N.W.2d 681 (1995).

In Grieb, supra, the plaintiff was injured when struck from behind by an unknown skier while skiing on one of the defendant's slopes. This Court concluded that the Ski Area Safety Act clearly and unambiguously provides that an injury resulting from a collision with another skier is an obvious and necessary danger assumed by skiers. Id. at 486, 400 N.W.2d 653.

Similarly, in Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 428 N.W.2d 742 (1988), the plaintiff's decedent died as a result of injuries incurred when he struck, while downhill skiing, a lone tree growing on a ski slope operated by the defendant. This Court held that the plaintiff's claims of negligence and intentional nuisance were barred under the Ski Area Safety Act. Id. The Court found that it was clear from the plain and unambiguous wording of § 22(2) of the act that the Legislature intended to place the burden of certain risks or dangers on skiers, rather than ski resort operators. Id. at 695, 428 N.W.2d 742. This Court further observed:

Significantly, the list of "obvious and necessary" risks assumed by a skier under the statute involves those things resulting from natural phenomena, such as snow conditions or the terrain itself; natural obstacles, such as trees and rocks; and types of equipment that are inherent parts of a ski area, such as lift towers and other such structures or snow-making or grooming equipment when properly marked. These are all conditions that are inherent to the sport of skiing. It is safe to say that, generally, if the "dangers" listed in the statute do not exist, there is no skiing. Therefore, it is logical to construe this section of the statute as an assumption of the risk clause that renders the reasonableness of the skiers' or the ski area operator's behavior irrelevant. By the mere act of skiing, the skier accepts the risk that he may be injured in a manner described by the statute. The skier must accept these dangers as a matter of law. [Id. at 696, 428 N.W.2d 742.]

In Skene v. Fileccia, 213 Mich.App. 1, 539 N.W.2d 531 (1995), this Court addressed an issue similar to the one present in the instant case in the context of the Roller Skating Safety Act, M.C.L. § 445.1721 et seq.; M.S.A. § 18.485(1) et seq. The statutory clause outlining the assumption of risk that roller-skaters agree to accept when they participate in roller-skating, M.C.L. § 445.1725; M.S.A. § 18.485(5), is virtually identical to that found in the Ski Area Safety Act. Skene, supra at 6, 539 N.W.2d 531.

In Skene, the plaintiff was injured when the individual defendant ran into her while roller-skating on the rink of the codefendant roller-skating center. Id. at 2, 539 N.W.2d 531. The trial court granted the defendants' motion for summary disposition pursuant to MCR 2.116(C)(10) on the basis that the plaintiff assumed the risk of the dangers inherent in the sport of roller-skating. Id. The plaintiff argued on appeal that there were genuine issues of material fact whether the defendants breached their respective duties under the Roller Skating Safety Act and were liable. Id. at 4-5, 539 N.W.2d 531. This Court disagreed, finding that the plaintiff's construction of the Roller Skating Safety Act would effectively nullify the act's assumption of risk clause. Id. The Skene Court, relying on Grieb and Schmitz, concluded that the injury resulting from the collision was an obvious and necessary danger of roller-skating assumed by the plaintiff and that the plaintiff must bear the burden of the damages of the plaintiff's injuries. Id. at 6-7, 539 N.W.2d 531. The Court found that "because the [Roller Skating Safety Act] should be read in pari materia with the Ski Area Safety Act, the assumption of risk clause of the [Roller Skating...