Court Finds Different Sub-Sports Equate to Different Assumed Risks

Jul 16, 2004

A Michigan appeals court has affirmed a decision to deny a motion for summary disposition brought by the ski resort, which was sued by an alpine skier after the plaintiff injured himself on a snowboard rail.
The key determination in the majority decision was that different kinds of skiers (alpine, snowboard, etc.) assume different kinds of risks and that the resort could have perhaps done more to prevent the accident from occurring.
The accident occurred on February 5, 1997 when the plaintiff, who was alpine skiing on Mt. Brighton, struck a snowboard rail, which was located in an area designated for snowboarders.
The plaintiff sued for negligence. The resort moved for summary disposition on the ground that it was immune under MCL 408.342(2) because plaintiff assumed the risk, essentially, by skiing. The trial court denied the motion.
On appeal, the panel considered the defendant’s argument “that the snowboard rail was a manmade alteration to the terrain that constituted an inherent danger in the sport of skiing, which was (1) necessary since it was used by snowboarders to perform acrobatic maneuvers, and (2) obvious since it posed a risk that would have been known to be confronted by reasonable skiers.”
By contrast, the plaintiff argued that the snowboard rail “did not constitute an inherent danger to the sport of skiing because alpine skiers do not use such rails and this particular rail was not obvious to such a skier, including plaintiff.”
The definitive case in Michigan was Anderson v Pine Knob Ski Resort, Inc, 469 Mich. 20; 664 N.W.2d 756 (2003). In that case, the plaintiff was a member of his high school’s varsity ski team and was participating in an interscholastic giant-slalom competition when he lost his balance on the racecourse and collided with a shack that housed the race timing equipment.
A negligence suit followed. The Michigan Supreme Court “framed the issue as ‘whether the timing shack was within the dangers assumed by plaintiff as he engaged in ski racing at Pine Knob.’” Specifically, the court held that the “placement of the timing shack is thus a danger that skiers such as Anderson are held to have accepted as a matter of law.”
Applying the Anderson Court’s analysis, the panel of judges held that the Anderson Court’s emphasis on the risks associated with a type of skiing encouraged it to apply a similar emphasis on the instant litigation. In other words, “a snowboard rail constitutes a danger a skier assumes while engaged in snowboarding, but an alpine skier should not be deemed to have assumed such risk since snowboard rails are not inherent in or necessary to the sport of downhill skiing.”
As support for its position, it pointed to ice skating, which has more than one type of sport associated with it, such as “figure skating, free or open skating, speed skating, and hockey. Some of the risks, equipment, and nature of potential injuries associated with each sport of ice skating are universal–such as falling, skates, and a broken ankle, respectively–but some are very unique to the particular type of ice skating in which the skater is engaged. Although an ice skater engaged in a game of hockey assumes the risk of being struck in the eye by a hockey puck, a figure skater would not be expected to assume such risk merely because he is ice skating.
Thus, “an alpine skier (should) not expect to be confronted with a snowboard rail in the course of alpine skiing.”
Further, the panel quoted the resort’s general manager as saying that the snowboard area “was not posted with any signage to inform alpine skiers to stay out of the area, or to warn of the presence of the snowboard rail.” The area should have been “marked with an appropriate symbol indicating the relative degree of difficulty of the skiing area,” wrote the panel.
In conclusion, the panel wrote that “although skiers are deemed to have assumed the risk of most dangers confronted on the slopes, ski area operators are not granted a license by the SASA to disregard skier safety, through the grant of total immunity, when skiers have not been given the opportunity to choose to gamble with their own safety after proper notice or warning. The virtue of this position is aptly illustrated by this case; defendant knew that alpine skiers were skiing in the restricted area, whether by accident or choice, and yet did next to nothing to prevent or even warn of the potential and reasonably unexpected danger. Skiers should not be deemed to have assumed the risk of any and all dangers that may be encountered during the course of skiing merely because they have chosen to engage in the sport.”
The dissenting judge disagreed with the premise that skiers should be divided into sub-sports for purposes of the SASA.
“The SASA broadly defines the word “skier” to include persons involved in both alpine skiing and snowboarding. MCL 408.322(g). MCL 408.342(2) provides that skiers accept the dangers inherent in the sport of skiing as a whole; it does not expressly provide or even imply that skiers only accept the dangers inherent in their particular form of skiing.
“(B)ecause a snowboard rail is obvious and necessary to snowboarding, it is a hazard that inheres in the sport of skiing under MCL 408.342(2).”
Barrett v. Mt. Brighton, Inc., Ct.App.Mich., No. 222777, 6/3/04


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