Rusnak v. Walker
| Decision Date | 20 July 2006 |
| Docket Number | Docket No. 264671. |
| Citation | 723 N.W.2d 210,271 Mich. App. 567 |
| Parties | Toni RUSNAK, Plaintiff-Appellant, v. Matt WALKER, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Muth and Shapiro, P.C. (by Andrew S. Muth), Ypsilanti, for the plaintiff.
Bigler, Berry, Johnston, Sztykiel & Hunt, P.C. (by Witold Sztykiel and Mary Jo Boerman), Zeeland, for the defendant.
Before: COOPER, P.J., and NEFF and BORRELLO, JJ.
ORDER
Rusnak v. Walker, 271 Mich.App. 567, ___ N.W.2d ___, Docket No. 264671 (2006). The Court orders that a special panel shall be convened pursuant to MCR 7.215(J) to resolve the conflict between this case and 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); Barr v. Mt. Brighton, Inc., 215 Mich.App. 512, 546 N.W.2d 273 (1996).
The Court further orders that part IV of the opinion in this case, which addresses whether the assumption of risk provision of MCL 408.342(2) renders a skier absolutely immune from liability for causing a collision with another skier, even if that collision was the result of violations of duties set for the elsewhere in the Ski Area Safety Act, MCL 408.321 et seq., is vacated. MCR 7.215(J)(5).
Appellant may file a supplemental brief within 21 days of the Clerk's certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant's brief. Nine copies must be filed with the Clerk of the Court.
In this personal injury action involving a collision between two skiers, plaintiff appeals by leave granted an order of the trial court granting defendant's motion for summary disposition of plaintiff's claim under the Ski Area Safety Act (SASA)1 and denying plaintiff's motion to amend her complaint to add a count of reckless misconduct. We affirm the trial court's grant of summary disposition, but only because we are bound by a line of cases that has interpreted SASA to grant absolute immunity to ski area operators and skiers for injuries resulting from statutorily enumerated dangers, including a collision with another skier. 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); Barr v. Mt. Brighton, Inc., 215 Mich.App. 512, 546 N.W.2d 273 (1996); Schmitz v. Cannonsburg Skiing Corp., 170 Mich.App. 692, 428 N.W.2d 742 (1988); Grieb v. Alpine Valley Ski Area, Inc., 155 Mich.App. 484, 400 N.W.2d 653 (1986). This precedent requires a conclusion that defendant is entitled to immunity for the skiing collision, regardless whether he violated his duty under SASA to ski safely,2 as alleged by plaintiff.
While the cited cases involved claims against ski area operators rather than skiers, the holdings were based on statutory language applicable to both operators and skiers, and we are therefore constrained to reach the same result. Were we not bound by this precedent, we would follow the reasoning of Dale v. Beta-C, Inc., 227 Mich.App. 57, 574 N.W.2d 697 (1997) (Dale II), in which a conflict panel of this Court addressed analogous provisions under the Roller Skating Safety Act (RSSA),3 and held that a skater assumes the risk of obvious and necessary dangers inherent in the sport of roller-skating, but does not assume the risk of an operator violating the prescribed duties under the act. Dale II, supra at 70, 574 N.W.2d 697. We therefore affirm the grant of summary disposition, but declare a conflict under MCR 7.215(J)(2), so that the question of absolute immunity under SASA may be more fully considered.
This case presents an issue of first impression: whether the assumption of risk provision of SASA, MCL 408.342(2), as a matter of law bars a skier injured in a collision with another skier from filing a claim against the other skier. We would hold that it does not.
SASA is a sport responsibility statute4 specific to skiing. The act prescribes the duties of skiers and ski area operators, provides certain presumptions relative to liability for an injury or damage sustained by skiers, and provides for liability for damages that result from a violation of the act. 1962 PA 199. Because plaintiff's claim is based on defendant's alleged violation of his duties under the act, we would hold that plaintiff's claim is not barred as a matter of law and must be considered in the context of the duties and liabilities under the act. Dale II, supra.
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.
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.
Defendant filed his motion for summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10), and the trial court decided the motion under those rules. "This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law." Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Where, as here, it is clear that the trial court looked beyond the pleadings, this Court will treat the motion as having been granted pursuant to MCR 2.116(C)(10). Kefgen v. Davidson, 241 Mich.App. 611, 616, 617 N.W.2d 351 (2000).
"A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint." Maiden, supra at 120, 597 N.W.2d 817. The court must consider the affidavits, depositions, admissions, and other documentary evidence submitted by the parties and view this evidence in the light most favorable to the nonmoving party. Id. If the evidence fails to create a genuine issue of material fact, the moving party must be granted judgment as a matter of law. Id.
Questions of statutory construction are also reviewed de novo. Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 62, 642 N.W.2d 663 (2002). "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." McGoldrick v. Holiday Amusements, Inc., 242 Mich. App. 286, 293, 618 N.W.2d 98 (2000).
Plaintiff argues that the trial court erred in granting defendant's motion for summary disposition on the basis of SASA. We agree and would reverse and remand this case for further proceedings were we not bound by precedent holding, in effect, that SASA bars any action for injuries resulting from certain inherent dangers in skiing, including collisions with other skiers.
In enacting SASA, the Legislature modified the common law of torts regarding recreational activities by establishing a statutory liability scheme specific to skiing. See Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 85 n. 7, 597 N.W.2d 517 (1999). The scheme established by the Legislature grants immunity for dangers inherent in skiing "insofar as the dangers are obvious and necessary," MCL 408.342(2), but also imposes a duty on skiers to maintain reasonable control of their speed and course, MCL 408.342(1)(a), and expressly mandates liability for damages resulting from a skier's or an operator's violation of the act, MCL 408.344.
Section 22 of SASA, MCL 408.342, addresses ski areas and sets forth the duties of a skier and the acceptance of inherent dangers in skiing, for which a skier assumes the risk:
(1) While in a ski area, each skier shall do all of the following:
(a) Maintain reasonable control of his or her speed and course at all times.
(b) Stay clear of snow-grooming vehicles and equipment in the ski area.
(c) Heed all posted signs and warnings.
(d) Ski only in ski areas which are marked as open for skiing on the trail board described in section 6a(e).
(2) 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.
Section 22(2) is commonly referred to as the SASA assumption of risk provision. See, e.g., Kent, supra at 740, 613 N.W.2d 383. Defendant asserts that this provision provides, in effect, that "[e]ach person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary," including ...
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Rusnak v. Walker
...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......