Kent v. Alpine Valley Ski Area, Inc., Docket No. 210293.

• Decision Date: 11 July 2000
• Docket Number: Docket No. 210293.
• Citation: 613 N.W.2d 383,240 Mich. App. 731
• Parties: Dr. Michael KENT and Susan Kent, Plaintiffs-Appellants, v. ALPINE VALLEY SKI AREA, INC., Alpine Valley Ski Area Leasing Company, and Devil's Head Ski Area Leasing Company, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

613 N.W.2d 383

240 Mich. App. 731

Dr. Michael KENT and Susan Kent, Plaintiffs-Appellants, v. ALPINE VALLEY SKI AREA, INC., Alpine Valley Ski Area Leasing Company, and Devil's Head Ski Area Leasing Company, Defendants-Appellees.

Docket No. 210293.

Court of Appeals of Michigan.

Submitted December 14, 1999, at Detroit.

Decided May 5, 2000, at 9:05 a.m.

Released for Publication July 11, 2000.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Patrick Burkett) and Thomas L. Mulcahy, Southfield, for the plaintiffs.

Robert L. Bunting, Oxford, (Robert Charles Davis, of Counsel), Mt. Clemens, for the defendants.

Before: JANSEN, P.J., and COLLINS and J.B. SULLIVAN¹, JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of the Oakland Circuit Court granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10) and dismissing plaintiffs' claims for damages arising from a skiing mishap. We affirm.

Plaintiff Michael Kent,² his son-in-law, Daniel Werner, and his two grandchildren, 3-year-old Mitchell Werner and 5-year-old Jeremy Werner, went skiing at Alpine Valley on January 1, 1996. Plaintiff was fifty-seven years of age at the time, had skied for approximately twenty years, had received formal ski instruction, and was, according to his brief, "a fairly experienced skier." Before the day of the mishap, Jeremy had received two or three private lessons on the bunny hill at Alpine and had been on the tow ropes, but had never been on a chairlift. Plaintiff and Daniel asked a ticket seller which hill would be safest for a beginner like Jeremy and were advised that the safest hill was the one right by the ski patrol, which was serviced by chairlift number three.

After purchasing "all area" tickets and skiing on the bunny hill for a time, plaintiff took Jeremy to lift number three. The two stood at the bottom of the hill for a few minutes so Jeremy could see how the chairlift worked and then got in line. According to plaintiff, as they approached the lift, the operator told him to move Jeremy to the inside, which would mean that Jeremy would be right next to the operator. They stepped up on some two-by-fours, but "without giving us a chance to pose ourselves, the chair came (witness smacking hands) and hit us." The chair hit plaintiff in the back of the legs and he began to sit, but because Jeremy was much shorter, it hit him up higher, near the buttocks and lower back. Jeremy started to grab for the chair, slipped and fell under the chairlift. Plaintiff reached to grab Jeremy but the post in the center of the seat blocked his reach. Plaintiff slipped off the chair, but his left arm became entangled in the seat post, broke "immediately," and plaintiff was dragged a number of feet before he fell off. When the chair caught plaintiff, the lift operator hit the stop button, but the chair went another twenty feet before it stopped. The lift operator testified that, as plaintiff and Jeremy approached the chair, he asked if they needed help and plaintiff said no. Plaintiff testified that he had taken his own children on chairlifts for the first time and was not concerned about taking Jeremy.

Plaintiff's complaint alleged that defendants were negligent in the following respects: (1) the ticket seller failed to direct plaintiff to a chairlift that could have been slowed down or stopped for loading, (2) the lift operator failed to slow or stop the chair for loading, (3) the lift operator failed to stop the chair when he saw it arriving before plaintiff and Jeremy were ready to get on, (4) the lift operator violated a basic industry safety practice by failing to stop the chair as soon as the "mis-load" happened, (5) the chair had an excessive range of motion about its axis, and (6) the chairlift was not equipped with an adequate stop button.

Defendants filed a motion for summary disposition, arguing that (1) plaintiff's claim was barred by the Ski Area Safety Act (SASA), M.C.L. § 408.321 et seq.; MSA 18.483(1) et seq., which precludes recovery for injuries caused by collisions with ski lifts or components thereof and injuries caused by the lift user's failure to use it properly, (2) plaintiff's claim was barred because he violated the skier responsibility code, a set of rules posted on the premises, (3) plaintiff's claim was barred because any danger posed by the chair was open and obvious, (4) plaintiff's claim was barred by a release printed on the back of his lift ticket, (5) plaintiff's claim was barred because the chairlift was a simple tool, (6) plaintiff had no evidence to support his claim that the lift was operated improperly, (7) the chairlift was not defectively maintained because it was equipped with a stop button, the chairs were checked every morning for excessive swinging, the lifts had passed annual safety inspections, and the law did not require them to be equipped with a slowing mechanism, and (8) the ticket seller was not negligent by simply telling plaintiff which was the easiest hill for Jeremy.

Plaintiff responded that (1) his claim was not barred by the SASA because the act applies only to injuries that occur while one is engaged in the act of skiing itself and whether plaintiff misused the lift was a question of fact for the jury, (2) there were questions of fact for the jury to resolve, e.g., whether the ticket seller should have directed them to a lift more suitable for young children, whether the operator could have stopped or slowed the chairlift, should have helped Jeremy onto the chair, was improperly trained for his job, and whether the stop button was inadequate as indicated by plaintiff's expert, (3) his claim was not barred by the simple tool doctrine because he did not allege a products liability claim and the chairlift was not a simple tool, (4) his claim was not barred by the open and obvious doctrine because he did not allege a premises liability claim, and (5) his claim was not barred by a release because he did not sign any agreement to waive any potential causes of action and the disclaimer of liability on the back of the lift ticket was void as against public policy.

In granting summary disposition in favor of defendants, the trial court reached only the question whether plaintiff's claim was barred by the SASA. The court found:

In the case before this Court, Plaintiff claims that Defendant violated its duty by negligent operation of the chair lift. MCL 408.342(2) [MSA 18.483(22)(2) ] specifically refers to collisions with ski lift towers and their components. Although Plaintiff argues that it does not apply because he had not yet begun to ski, the Court is satisfied that the statute intended to apply to dangers inherent in the sport, and getting onto the chair lift is one of those dangers.

On appeal, plaintiff claims that the trial court erred in finding that his negligence claim was barred by the SASA. We disagree. A trial court's grant of summary disposition is reviewed de novo. Amburgey v. Sauder, 238 Mich.App. 228, 231, 605 N.W.2d 84 (1999). Specifically, a court's interpretation of a statute is reviewed de novo on appeal. Id. When reviewing a motion decided under MCR 2.116(C)(7), this Court accepts as true the well-pleaded allegations in the plaintiff's complaint and construes them in the plaintiff's favor. Id. The Court must consider the pleadings, affidavits, and other documentary evidence to determine whether a genuine issue of material fact exists. Where a material factual dispute exists such that factual development could provide a basis for recovery, summary disposition is inappropriate. Id. Where no material facts are in dispute, whether the claim is statutorily barred is a question of law. Id.³

The propriety of summary disposition under the SASA must be determined in conjunction with the rules of statutory construction. Amburgey, supra at 231, 605 N.W.2d 84. A fundamental rule of statutory construction is to ascertain the purpose and intent of the Legislature in enacting the provision. Barr v. Mt. Brighton, Inc., 215 Mich.App. 512, 516, 546 N.W.2d 273 (1996). Statutory language should be construed reasonably and the purpose of the statute should be kept in mind. Id., citing 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. Barr, supra at 516-517, 546 N.W.2d 273, citing 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. Barr, supra at 517, 546 N.W.2d 273, citing Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995).

The title of the SASA provides that the act was enacted, among other reasons, "to provide for the safety of skiers, spectators, and the public using ski areas," "to provide for certain presumptions relative to liability for an injury or damage sustained by skiers" and "to provide for liability for damages which result from a violation of this act." 1962 PA 199, amended by 1981 PA 86. Before the 1981 amendment, ski areas in Michigan were held to the "prudent man" negligence standard as stated in Marietta v. Cliffs Ridge, Inc., 385 Mich. 364, 369, 189 N.W.2d 208 (1971) (see Mikko, Skiing with the Ski Area Safety Act, 78 Mich. BJ 438, 439 [May 1999]). Cf., Marietta, supra, at 374-375, 189 N.W.2d 208 (Dissent by Black, J.): "[T]he majority opinion ... [is] nothing less than a fast start, by our newly assembled Court, toward the goal of liability without fault for damages caused by any fortuitous injury— fatal or otherwise—that is self-inflicted in the course of a voluntarily undertaken dangerous sport."

Soon thereafter, the Legislature (moved perhaps by Justice Black's violenti non fit injuria dissent), "intent [on] promoting safety, reducing litigation and stabilizing the economic conditions in the...