A magistrate judge from the Western District of Michigan has denied a defendant’s motion for summary judgment in a case involving a collision on the ski slopes. Specifically, the court found that there remained questions of fact about whether the defendant skier could have avoided the plaintiff skier.
The incident occurred on March 17, 2002 at the Pine Mountain Ski Resort in Iron Mountain, Michigan. Maurice Wolf had stopped on a run to speak with his wife and co-plaintiff Susan Wolf. He then continued down the run. In the meantime, defendant Sergey Login was skiing on an adjacent run uphill from the plaintiffs. “He saw the plaintiffs near the landing area of a jump,” wrote the court. “Believing that it was safe to proceed, Login skied over the jump. While in the air, Login collided into Maurice Wolf.”
The plaintiffs sued for negligence under the Michigan Ski Area Safety Act, Mich. Comp. Laws § 408.321 et seq. The defendant subsequently moved for summary judgment, arguing that under the Ski Area Safety Act that “Wolf assumed the risk of danger associated with skiing and cannot support a claim of negligence against the defendant.
“The intention of the Ski Area Safety Act was to make each skier, not the ski area, responsible for their own actions. Schmitz v. Cannonsburg Skiing Corporation, 170 Mich App 692, 428 N.W. 2d 742 (1988). ‘[W]hether a skier had maintained reasonable control of his speed and course . . . would usually be a question for the trier of fact.’ Id. Mich App. at 695. Mich. Comp. Laws § 408.341 provides in part: ‘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.’
“Mich. Comp. Laws § 408.342 provides in part:
(1) While in a ski area, each skier shall do all 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 …
(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.”
The defendant’s chief argument was that the plaintiff assumed the risk of an accident, pursuant to the Ski Area Safety, and that the plaintiff cannot prove that the defendant violated the Act by “skiing out of control prior to or at the time of the collision.”
Furthermore, the defendant testified that he was skiing at a “reasonable speed” and within his “skiing abilities.”
The court disputed that contention, noting that the defendant “observed the downhill skier below him. Nevertheless, defendant decided that it was safe, at his skill level, to ski over a jump and still maintain control. Defendant, unable to stop himself, landed into plaintiff as plaintiff traversed across the hill. Whether defendant was in reasonable control is a question of fact.”
The court elaborated, noting that “there is some discussion that defendant had gone over the jump on other occasions and that there were small ruts leading into the jump that defendant was unable to ski out of after he committed his skis into the ruts. Defendant was apparently aware of these ruts and of his inability to ski out of the ruts once his skis entered them. Arguably, defendant might have better decided that he needed to wait a little longer to let the downhill skier ski away from the area, before defendant committed himself to a situation that he would be unable to control. Further, defendant might have chosen to verbally warn the downhill skier that defendant intended to take the jump.”
Maurice Wolf and Susan Wolf v. Sergey Longin; W.D. Mich.; Case No. 2:05-cv-50 ; 2006 U.S. Dist. LEXIS 40563; 6/16/06
Attorneys of Record: (for plaintiffs) Vincent R. Petrucelli, Petrucelli & Petrucelli, PC, Iron River, MI. (for defendant) Joseph R Enslen, Straub Seaman & Allen PC (Grandville), Grandville, MI. (for Facilitative Mediator) Ronald D. Keefe, Kendricks Bordeau Adamini Chilman & Greenlee PC (Mqt), Marquette, MI.