Rusnak v. Walker

• Decision Date: 19 December 2006
• Docket Number: Docket No. 264671.
• Citation: 273 Mich. App. 299,729 N.W.2d 542
• Parties: Toni RUSNAK, Plaintiff-Appellant, v. Matt WALKER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

729 N.W.2d 542

273 Mich. App. 299

Toni RUSNAK, Plaintiff-Appellant, v. Matt WALKER, Defendant-Appellee.

Docket No. 264671.

Court of Appeals of Michigan.

Submitted October 4, 2006, at Lansing.

Decided December 19, 2006, at 9:10 a.m.

Released for Publication March 14, 2007.

Muth and Shapiro, P.C. (by Andrew S. Muth and Douglas B. Shapiro), Ypsilanti, for the plaintiff.

Bigler, Berry, Johnston, Sztykiel & Hunt, P.C. (by Witold Sztykiel and Mary Jo Boerman), Zeeland, for the defendant.

Before: WHITBECK, C.J., and BANDSTRA, MARKEY, SMOLENSKI, KELLY, MURRAY, and DONOFRIO, JJ.

MURRAY, J.

I. Introduction

Snow skiing is a popular sport in Michigan, with thousands of skiers descending on Michigan's ski slopes each winter. With all the skiers, of course, comes a wide range of skill levels. Adding to that, Michigan's wintry conditions are sometimes not ideal for visual navigation, or for stopping or turning. Collisions between skiers, therefore, do occur. In this case, for instance, defendant Matt Walker was skiing down a run at Boyne Mountain Ski Resort when he collided with plaintiff Toni Rusnak, who was further down the hill than Walker when the collision occurred. To address certain liability issues associated with snow skiing, including collisions between skiers, the Legislature enacted the Ski Area Safety Act (SASA), MCL 408.321 et seq. The question before us in this case is whether the assumption-of-risk provision within the SASA bars plaintiff's claim that is based on a collision and resulting injuries allegedly caused by defendant's violation of this act.

In Rusnak v. Walker, 271 Mich.App. 567, 723 N.W2d 210 (2006), a panel of this Court held that the individual defendant, Walker, was immune from suit under the SASA as interpreted by Kent v. Alpine Valley Ski Area, Inc., 240 Mich.App. 731, 613 N.W.2d 383 (2000), McCormick v. Go Forward Operating Ltd. Partnership, 235 Mich.App. 551, 599 N.W.2d 513 (1999), and Barr v. Mt. Brighton, Inc., 215 Mich.App. 512, 546 N.W.2d 273 (1996). However, the Rusnak panel also concluded that the Kent, McCormick, and Barr decisions were incorrectly decided, as the Rusnak panel opined that under certain circumstances an individual could be liable for injuries that occurred from a collision between two skiers. Rusnak, supra at 585, 723 N.W.2d 210. Thus, were it not for the binding precedent, see MCR 7.215(J)(1), the Rusnak panel would have reversed the trial court's grant of defendant's motion for summary disposition. Id. at 569, 723 N.W.2d 210.

With that formal declaration, by operation of our court rules, the judges of this Court were polled, and a majority concluded that the conflict between Rusnak and Kent, McCormick, and Barr should be resolved. 271 Mich.App. 660, 726 N.W.2d 424 (2006). That being our task, we turn now to a brief recitation of the undisputed material facts, and then to an analysis of this rather interesting issue of statutory construction.

II. Material Facts

We take the material facts and procedural history straight from the prior Rusnak opinion because they are clear, concise, and correct:

Plaintiff filed this action after she was injured in a collision with defendant while skiing at Boyne Mountain ski resort on December 30, 2002. Plaintiff and defendant were skiing down the same run. Plaintiff was the "downhill" skier and defendant was the "uphill" skier.⁵ According to plaintiff, at the time of the collision, she was making short, controlled slalom turns, moving ten to 12 feet laterally as she turned. The ski slope was wide open; there were no other skiers nearby. Plaintiff heard someone yell, "Watch out," and she was struck from behind and knocked down by defendant. She suffered fractures of her humerus and lumbar spine.

⁵ That is, defendant was at a higher point on the ski slope.

Defendant moved for summary disposition, arguing that plaintiff's claims were barred by SASA, MCL 408.342(2), which provides that skiers accept the risk of a collision with another skier. Alternatively, defendant argued that as coparticipants in a recreational sport, defendant owed plaintiff only a duty not to act recklessly, and plaintiff failed to show any evidence of recklessness by defendant. Plaintiff moved to amend her complaint to add a count of reckless misconduct. The trial court denied plaintiff's motion and granted summary disposition for defendant. The court agreed with defendant that plaintiff's claim was barred as a matter of law by the assumption of risk provisions of SASA.

[Rusnak, supra at 570, 723 N.W.2d 210.]

III. Analysis

Resolution of this case requires application of the undisputed and straightforward facts to the relevant sections within the SASA. Consequently, our review is de novo. Cruz v. State Farm Mut. Automobile Ins. Co., 466 Mich. 588, 594, 648 N.W.2d 591 (2002). Additionally, our review of the trial court's grant of defendant's motion for summary disposition is de novo. MacDonald v. PKT, Inc., 464 Mich. 322, 332, 628 N.W.2d 33 (2001).

A. SASA

Because this case is governed by the SASA, we first look to the language actually employed by the Legislature in setting out the rights, duties, and liability of skiers. See Anderson v. Pine Knob Ski Resort, Inc., 469 Mich. 20, 24, 664 N.W.2d 756 (2003). To begin with, § 21(1) of the SASA, MCL 408.341(1), states:

A skier shall conduct himself or herself within the limits of his or her individual ability and shall not act or ski in a manner that may contribute to his or her injury or to the injury of any other person. A skier shall be the sole judge of his or her ability to negotiate a track, trail, or slope. [Emphasis added.]

Thus, pursuant to MCL 408.341(1), a skier "shall" ski within his or her abilities and "shall not" ski in such a way as to contribute to the injury of another person.

In the same vein, § 22(1)(a) of the SASA, MCL 408.342(1)(a), requires each skier to "[m]aintain reasonable control of his or her speed and course at all times." In sum, then, we see that portions of §§ 21 and 22 of the SASA place an affirmative duty on all skiers to ski within their abilities, to maintain reasonable control of their speed and course at all times, and to not ski in a manner that could contribute to the injury of another skier. MCL 408.341(1); MCL 408.342(1)(a).

With these (and other inapplicable) duties established, the Legislature then addressed the liabilities for, and the risks assumed by, skiers. With regard to assumed risks, § 22(2), MCL 408.342(2), contains an assumption-of-risk provision that specifically applies to collisions between skiers:

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.]

Through this subsection, the Legislature has clearly indicated that collisions with other skiers are an obvious and necessary danger that inheres in the sport and that the skier has assumed the risk of being injured by such a danger.

The final provision relevant to this issue is § 24, MCL 408.344, which provides for liability against any skier who "violates this act," with liability being limited to "that portion of the loss or damage resulting from that violation." Reading §§ 22(2) and 24 together, the Legislature has provided a system whereby skiers assume the risk of injury from dangers inherent in skiing that are "obvious and necessary," but which also provides liability against a skier for any injuries that were caused by a violation of the duties imposed on skiers under the SASA.

Accordingly, and for the reasons explained more fully below, we hold that under the plain language of the assumption-of-risk provision, MCL 408.342(2), plaintiff assumed the risk of being injured by a collision with another skier because that provision precisely states as much, without exception. However, because plaintiff has produced evidence that defendant may have violated his duties under the SASA, as well as evidence that those violations may have caused plaintiff's injuries, defendant may still be liable to plaintiff for "that portion of the loss or damage resulting from that violation." MCL 408.344.

Our judicial duty is to enforce the plain, unambiguous provisions of a statute. Herald Co. v. Bay City, 463 Mich. 111, 117-118, 614 N.W.2d 873 (2000). We long ago recognized that the judiciary cannot read restrictions or limitations into a statute that plainly contains none. Threet v. Pinkston, 20 Mich.App. 39, 41, 173 N.W.2d 731 (1969).

The crux of this case is whether the broad assumption-of-risk subsection can be reconciled with the provisions (1) placing duties on skiers to ski safely and not injure another skier and (2) providing liability for injuries caused by those violations. As we have already noted, we hold that the SASA assumption-of-risk provision contains clear and unambiguous language, providing in no uncertain terms that a collision between skiers is an obvious and necessary danger that inheres in the sport of skiing. However, in those cases in which a plaintiff can establish that a defendant violated one of the specific duties imposed by the SASA, the plaintiff can still recover damages to the extent that the defendant's violations caused the plaintiff's injuries. To state it differently, it is possible, and therefore skiers assume the risk, that a collision can occur between skiers when neither skier is violating his or her duties under the SASA. That is, it is an obvious and necessary danger of skiing that sometimes accidents simply happen. But, again, if it can be shown that the collision resulted from a...