McGoldrick v. Holiday Amusements, Inc.

• Decision Date: 18 October 2000
• Docket Number: Docket No. 215063.,Docket No. 214466
• Citation: 618 N.W.2d 98,242 Mich. App. 286
• Parties: Ronald K. McGOLDRICK, as Personal Representative of the Estate of Christopher K. McGoldrick, Plaintiff-Appellant, v. HOLIDAY AMUSEMENTS, INC., d/b/a Mount Holiday, and Kirby Pettyjohn, Defendants-Appellees. Ronald K. McGoldrick, as Personal Representative of the Estate of Christopher K. McGoldrick, Plaintiff-Appellant, v. State of Michigan Department of Consumer and Industry Services, State of Michigan Department of Licensing and Regulation, and State of Michigan Ski Area Safety Unit, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

618 N.W.2d 98

242 Mich. App. 286

Ronald K. McGOLDRICK, as Personal Representative of the Estate of Christopher K. McGoldrick, Plaintiff-Appellant, v. HOLIDAY AMUSEMENTS, INC., d/b/a Mount Holiday, and Kirby Pettyjohn, Defendants-Appellees.

Ronald K. McGoldrick, as Personal Representative of the Estate of Christopher K. McGoldrick, Plaintiff-Appellant, v. State of Michigan Department of Consumer and Industry Services, State of Michigan Department of Licensing and Regulation, and State of Michigan Ski Area Safety Unit, Defendants-Appellees.

Docket Nos. 214466, 215063.

Court of Appeals of Michigan.

Submitted March 7, 2000, at Lansing.

Decided August 22, 2000, at 9:10 a.m.

Released for Publication October 18, 2000.

Dingeman, Dancer & Christopherson, P.L.C. (by Mark R. Dancer and Brian L. Johnson), Traverse City, for the plaintiff.

Robert L. Bunting, Oxford, (Robert Charles Davis, of Counsel), Mt. Clemens, for Holiday Amusements, Inc.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Mark E. Donnelly, Assistant Attorney General, for state agencies and Kirby Pettyjohn.

Before: SMOLENSKI, P.J., and MARKEY and O'CONNELL, JJ.

MARKEY, J.

In these consolidated cases, plaintiff, Ronald McGoldrick, as personal representative of the estate of Christopher McGoldrick, appeals by right the trial court's orders granting summary disposition in favor of defendants. Plaintiff's decedent, Christopher McGoldrick, was killed while skiing after he collided with a tension pole that supported part of the apparatus for a rope tow at defendant Holiday Amusements, Inc., doing business as Mount Holiday. We affirm.

Plaintiff first argues that the trial court erred in granting summary disposition to defendant Holiday because defendant Holiday violated the Ski Area Safety Act (SASA), M.C.L. § 408.321 et seq.; MSA 18.483(1) et seq. We disagree. On appeal, the trial court's grant or denial of summary disposition is reviewed de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). This Court reviews the entire record to determine whether the moving party was entitled to judgment as a matter of law. Id. Although the trial court failed to state under which subrule it was granting summary disposition, we believe that summary disposition was granted under MCR 2.116(C)(7), because the claim is barred by immunity granted by law. Under MCR 2.116(C)(7), any supporting evidence, including affidavits, depositions, and admissions, may be considered. Maiden, supra at 119, 597 N.W.2d 817.

Subsection 22(2) of the SASA, M.C.L. § 408.342(2); MSA 18.483(22)(2), generally grants ski area operators immunity from liability and places the burden of certain dangers on skiers rather than ski resort operators. McCormick v. Go Forward Operating Ltd. Partnership, 235 Mich. App. 551, 553-554, 599 N.W.2d 513 (1999); Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 695, 428 N.W.2d 742 (1988). The SASA also provides that ski operators are required to do certain things in operating ski areas, including, for example, marking ski runs, slopes, and trails with appropriate symbols and placing notices if snow-making operations are being performed. MCL 408.326a; MSA 18.483(6a). The SASA further states that ski area operators shall be liable for loss or damage if they violate the SASA. M.C.L. § 408.344; MSA 18.483(24).

In the present case, although plaintiff asserts that defendant Holiday is liable because it violated statutory provisions contained in the SASA, plaintiff does not cite any specific violations of the SASA. Plaintiff's appellate brief only discusses violations of safety regulations set forth in the American National Standard for Passenger Tramways (ANSI Standards). For example, plaintiff states that defendant Holiday violated the ANSI Standards by failing to construct a fence or guard around the tension pole with which plaintiff's decedent collided, by failing to place the tension pole in an appropriate location, and by failing to adequately light the tension pole. The SASA addresses none of these; consequently, these allegations are not violations of the SASA. In McCormick, supra at 555-556, 599 N.W.2d 513, this Court recently addressed the issue regarding whether immunity granted to ski area operators pursuant to the SASA should apply where the operator does not comply with ANSI Standards.¹

Like plaintiff in the instant case, the plaintiffs in McCormick relied on this Court's decision in Dale v. Beta-C, Inc., 227 Mich.App. 57, 574 N.W.2d 697 (1997), in arguing that immunity should not apply where the ski area operator does not comply with the ANSI Standards. McCormick, supra at 555, 599 N.W.2d 513. In affirming the trial court's grant of summary disposition to the defendant ski area operator, this Court determined that the plaintiffs' reliance on Dale was misplaced. Id. at 556, 574 N.W.2d 697. This Court noted that Dale specifically considered the provisions of the Roller Skating Safety Act, M.C.L. § 445.1721 et seq.; MSA 18.485(1) et seq., and the statutory requirement that roller skating rink operators comply with safety standards published by the rink operators association, and that rink operators are liable for civil damages resulting from a violation of the act. McCormick, supra at 556, 599 N.W.2d 513. The McCormick Court held:

In the case at bar, there are no similar provisions in the SASA. That is, the SASA does not provide for the adoption of safety standards by outside agencies, nor does it provide for an exception to immunity for violation of any such standards. Whether the statute should provide for an exception to immunity upon the violation of a safety standard is a decision for the Legislature to make, not this Court. Because the Legislature has not chosen to do so, we decline to do so ourselves. [Id.²]

Thus, as stated in McCormick, because the SASA does not provide for an exception to the ski operator's immunity for a violation of the ANSI Standards and because plaintiff has failed to indicate any violation of the statutory provisions contained in the SASA, plaintiff's argument is without merit.

Next, plaintiff argues that the tension pole that plaintiff's decedent skied into is not an enumerated risk under the SASA and that the trial court therefore erred in granting summary disposition to defendant Holiday. We disagree. A trial court's grant of summary disposition is reviewed de novo on appeal. Maiden, supra at 118, 597 N.W.2d 817. Statutory interpretation is a question of law that is reviewed de novo on appeal. Oakland Co. Bd. of Rd. Comm'rs v. Michigan Property & Casualty Guaranty Ass'n, 456 Mich. 590, 610, 575 N.W.2d 751 (1998). The issue regarding whether a particular set of circumstances falls within the risks and dangers enumerated in subsection 22(2) of the SASA is a question of law. See Schmitz, supra at 696, 428 N.W.2d 742.

A ski area operator's immunity from liability is granted in subsection 22(2) of the SASA:

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. Emphasis added.

See, also, McCormick, supra at 553-554, 599 N.W.2d 513. Basically, plaintiff is asserting that the tension pole³ was not obvious and necessary and is not a component of a "ski lift tower" under subsection 22(2) of the SASA. We disagree.

The clear language of the SASA establishes that plaintiff's injury comes within the immunity provisions. The statute plainly states that a collision with "ski lift towers and their components" comes within the dangers that are necessary and obvious. Further, the SASA explicitly states that the definition of "ski lift" includes "a rope tow." MCL 408.322(h); MSA 18.483(2)(h). Plaintiff does not dispute that the metal pole with which plaintiff's decedent collided was part of a tensioning structure associated with a rope tow that was designed to take slack out of the rope tow. This pole is logically a component of the rope tow in question, which is included in the definition of "ski lift" under the SASA. Because the statutory language is clear, judicial construction is not permitted. Heinz v. Chicago Rd. Investment Co., 216 Mich.App. 289, 295, 549 N.W.2d 47 (1996).

Although plaintiff emphasizes that the tension pole was unpadded, not readily visible, and obsolete, the statute does not place any restrictions in stating that immunity is granted for injuries arising from collisions with ski lift towers and their components. Compare McCormick, supra at 554 & n. 2, 599 N.W.2d 513, where this Court distinguished between restrictions being placed on immunity for injuries arising from collisions with snow-making and snow-grooming equipment, which subsection 22(2) of the SASA clearly required that such equipment be properly marked or plainly visible in order for immunity to apply, and no restrictions being placed on immunity for injuries arising from collisions with other skiers. In addition, although plaintiff emphasizes the word "tower" in subsection 22(2) of the SASA and states that "tower" does not include the tension pole in question, plaintiff also argues that the word "tower" "means those structures which support the devices which carry passengers." Contrary to plaintiff's assertion, the tensioning pole is clearly a structure that supports the device (i.e., rope tow in this case) that carries passengers; consequently, plaintiff's attempt to distinguish between the tower and the tension pole fails to convince us. Therefore, because plaintiff's decedent's injury arose from his collision with a component of a...