Hakari v. Ski Brule, Inc.

• Decision Date: 19 June 1998
• Docket Number: Docket No. 204772
• Citation: 584 N.W.2d 345,230 Mich.App. 352
• Parties: Diane HAKARI, Plaintiff-Appellant, v. SKI BRULE, INC., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 345

584 N.W.2d 345

230 Mich.App. 352

Diane HAKARI, Plaintiff-Appellant, v. SKI BRULE, INC., Defendant-Appellee.

Docket No. 204772.

Court of Appeals of Michigan.

Submitted May 21, 1998, at Marquette.

Decided June 19, 1998, at 9:00 a.m.

Released for Publication Sept. 29, 1998.

Fisher Omdahl & Lawrence (by Torger G. Omdahl and Geoffrey C. Lawrence), Iron River, for Plaintiff-Appellant.

Dean & O'Dea (by Timothy M. Dean), Ironwood, for Defendant-Appellee.

Before MARKMAN, P.J., and RICHARD ALLEN GRIFFIN and WHITBECK, JJ.

RICHARD ALLEN GRIFFIN, Judge.

Plaintiff appeals as of right from the trial court's order denying her motion to file a first amended complaint. We affirm.

On March 4, 1995, plaintiff was injured when she was struck from behind by another skier while skiing on a slope at defendant's ski resort. Plaintiff filed suit, alleging that defendant negligently adjusted boots and bindings that she purchased from its ski shop and, further, that defendant failed to supervise the actions of other skiers on the ski slope. The name of the other skier, identified only as defendant John Doe in plaintiff's original complaint, was thereafter ascertained to be John H. Jacques, although no further information regarding this individual was available. ¹ Plaintiff attempted to amend her original complaint to also allege that defendant negligently failed to take proper identification from Jacques, in violation of the Ski Area Safety Act of 1962, M.C.L. § 408.321 et seq.; M.S.A. § 18.483(1) et seq., and the common law, thus allegedly denying her the opportunity to trace this person and bring suit against him. The trial court denied plaintiff's motion to amend her complaint as futile, concluding that there existed neither a statutory nor a common-law duty on the part of defendant to obtain and provide to plaintiff further information concerning the identity of the other skier. The trial court subsequently granted summary disposition in favor of defendant pursuant to MCR 2.116(C)(8) and (10), finding that there existed no genuine issue of material fact with regard to the claims set forth in plaintiff's original complaint and that plaintiff's cause of action was precluded by the Ski Area Safety Act. On appeal, plaintiff challenges only the denial of her motion to amend the complaint.

I

A trial court should freely grant leave to amend pleadings if justice so requires. MCR 2.118(A)(2); Weymers v. Khera, 454 Mich. 639, 654, 563 N.W.2d 647 (1997). However, leave to amend a complaint may be denied for particularized reasons, such as undue delay, bad faith, or dilatory motive on the movant's part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or where amendment would be futile. Jenks v. Brown, 219 Mich.App. 415, 420, 557 N.W.2d 114 (1996). "An amendment is futile where, ignoring the substantive merits of the claim, it is legally insufficient on its face." Gonyea v. Motor Parts Federal Credit Union, 192 Mich.App. 74, 78, 480 N.W.2d 297 (1991). This Court reviews grants and denials of motions for leave to amend pleadings for an abuse of discretion. Weymers, supra at 658, 563 N.W.2d 647; Jenks, supra at 420, 557 N.W.2d 114.

In the present case, plaintiff moved to amend her original complaint to state a claim of negligence against defendant for its failure to procure adequate information regarding the identity of the other skier, John Jacques, involved in the accident. Plaintiff sought to allege that pursuant to the common law and the Ski Area Safety Act, a ski hill operator has an affirmative duty to procure specific and complete identification from any skier involved in an accident. However, we conclude that the existence of such a duty is supported neither by case law nor by a reasonable construction of the statute; hence, the trial court properly denied the amendment as futile.

A fundamental rule of statutory construction is to ascertain and effectuate the intent of the Legislature in enacting the provision. Jenks, supra at 418, 557 N.W.2d 114; Barr v. Mt. Brighton Inc., 215 Mich.App. 512, 517, 546 N.W.2d 273 (1996). Statutory language should be construed reasonably with the purpose of the statute in mind. Id. The words and phrases in a statute are to be given their plain and ordinary meaning. Panich v. Iron Wood Products Corp., 179 Mich.App. 136, 141, 445 N.W.2d 795 (1989). A statute is not open to construction by the courts unless the language used in the statute is ambiguous or where reasonable minds could differ. Grieb v. Alpine Valley Ski Area, Inc., 155 Mich.App. 484, 486, 400 N.W.2d 653 (1986).

The Ski Area Safety Act was enacted to provide for certain presumptions relative to liability for injury or damage sustained by skiers and to clearly delineate the rights and responsibilities of skiers and ski area operators. Barr, supra at 515, 546 N.W.2d 273; Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 693-694, 428 N.W.2d 742 (1988). As this Court noted in Grieb, supra at 488-489, 400 N.W.2d 653:

The Legislature perceived a problem with respect to the inherent dangers of skiing and the need for promoting safety, coupled with the uncertain and potentially enormous ski area operators' liability. Given these competing interests, the Legislature decided to establish rules in order to regulate the ski operators and to set out ski operators' and skiers' responsibilities in the area of safety. M.C.L. § 408.340 et seq.; M.S.A. § 18. 483(20) et seq. As part of this reform, the Legislature has decided that all skiers assume the obvious and necessary dangers of skiing. This is a rational solution for limiting ski area operators' liability and promoting safety.

The portion of the Ski Area Safety Act that, according to plaintiff, arguably gives rise to a ski operator's affirmative duty to ascertain the identity of a skier involved in an accident reads as follows:

A skier involved in an accident causing an injury to another person shall to the extent that he or she is reasonably able to do so immediately notify the ski patrol or the operator, or law enforcement or emergency personnel, and shall clearly identify himself or herself. A skier who wilfully fails to give identification after involvement in a skiing accident with another person, or a skier who is reasonably able to do so who fails to notify the proper authorities or to obtain assistance when the skier knows that another person involved in the accident is in need of medical or other assistance is guilty of a misdemeanor, punishable by imprisonment for not more than 30 days, or a fine of not more than $100.00, or both. [M.C.L. § 408.343(1); M.S.A. § 18.483(23)(1) (emphasis added).]

The language of the statute is neither ambiguous nor unclear. As the statute is written, it is the skier's duty to identify himself to the ski patrol, operator, law enforcement, or emergency personnel. Although this section does identify the operator as one of the persons to whom the parties to an injury must "clearly identify" themselves, we will not, by implication, read into the statute an affirmative duty on the part of the ski area operator to ascertain, verify, or record the identity of the skier involved in an accident. This Court, albeit in a different context, ² has refused to create a statutory duty where no such duty could be gleaned from the language or intent of the statute. Panich, supra. In so doing, we noted:

The role of the judiciary is to construe statutes as intended by the Legislature, not to rewrite them. No fair reading of the statute lends support to plaintiff's position that the Legislature intended to impose such a duty on employers. [Id. at 142, 445 N.W.2d 795].

We adhere to this principle in the instant case. Indeed, the imposition of a duty upon the skier, alone, to "clearly identify" himself is consistent with the distribution of risks and responsibilities set forth in other portions of the Ski Area Safety Act. M.C.L. § 408.342(2); M.S.A. § 18.483(22)(2) provides in pertinent part:

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 ... collisions ... with other skiers .... [Emphasis added.]

This statutory section "clearly and unambiguously provides that an injury resulting from a collision with another skier is an obvious and necessary danger assumed by skiers." Grieb, supra at 486, 400 N.W.2d 653 (emphasis added). See also Barr, supra at 517, 546 N.W.2d 273. In Schmitz, supra at 696, 428 N.W.2d 742, this Court further stated that "it is logical to construe this section of the statute [M.C.L. § 408.342(2); M.S.A. § 18.483(22)(2) ] as an assumption of risk clause that renders the reasonableness of the skiers' or the ski area operator's behavior irrelevant." It would be logically inconsistent, then, to create by implication an affirmative duty on the part of the ski area operator to properly identify any skiers involved in an accident stemming from a collision when the operator is otherwise statutorily absolved of liability under those circumstances.

We conclude that the language and intent of M.C.L. § 408.343(1); M.S.A. § 18.483(23)(1) is not amenable to the expansive statutory construction proposed by plaintiff. The trial court therefore did not abuse its discretion in denying plaintiff's motion to amend her complaint to set forth a claim pursuant to that section of the Ski Area Safety Act.

II

Plaintiff also sought to amend her complaint to allege that defendant owed her a common-law duty to obtain adequate identification from John Jacques after the accident. However, we...