MICHAEL GODDE V BITTERSWEET SKI RESORT INC
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL GODDE,
UNPUBLISHED
October 26, 1999
Plaintiff-Appellant,
v
No. 210676
Allegan Circuit Court
LC No. 92-015576 NO
BITTERSWEET SKI RESORT, INC.,
Defendant-Appellee.
Before: Gage, P.J., and White and Markey, JJ.
GAGE, P.J. (dissenting).
Because I believe the majority has misinterpreted the arbitrator’s findings and award, I
respectfully dissent.
As the majority correctly states, judicial review of arbitration awards is very limited, especially
with respect to the arbitrator’s factual findings. This Court is precluded from reviewing or reevaluating
the arbitrator’s findings of fact and decision on the merits. Byron Center Pub Schools Bd of Ed v
Kent Co Ed Ass’n, 186 Mich App 29, 31; 463 NW2d 112 (1990).
This case involves a question of skier-ski area operator liability under the Ski Area Safety Act
(SASA), MCL 408.321 et seq.; MSA 18.483(1) et seq. The SASA represents the Michigan
Legislature’s attempt to statutorily limit the liability of ski area operators while promoting skier safety.
The Legislature perceived a problem with respect to the inherent dangers of
skiing and the need for promoting safety, coupled with the uncertain and potentially
enormous ski area operators’ liability. Given these competing interests, the Legislature
decided to establish rules in order to regulate the ski operators and to set out ski
operators’ and skiers’ responsibilities in the area of safety. As part of this reform, the
Legislature has decided that all skiers assume the obvious and necessary dangers of
skiing. This is a rational solution for limiting ski area operators’ liability and promoting
safety. [Grieb v Alpine Valley Ski Area, Inc, 155 Mich App 484, 488-489; 400
NW2d 653 (1986).]
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The SASA lists certain specific dangers that skiers assume by engaging in the sport, MCL 408.342;
MSA 18.483(22), and also enumerates several specific obligations that operators must fulfill in holding a
ski area open to the public. MCL 408.326a; MSA 18.483(6a).
Plaintiff claimed that his fall was occasioned by defendant’s lack of compliance with these
statutory duties. The arbitrator unequivocally found that defendant had satisfied its obligation to
designate Hawthorne Hill as closed on defendant’s trail board. Plaintiff asserted that defendant did not
properly indicate Hawthorne Hill’s closure by marking its entrance with an appropriate “closed”
symbol, as required by MCL 408.326a(d); MSA 18.483(6a)(d). The only objective hearing witness
testified that, at the time of plaintiff’s accident, four-inch, yellow caution ribbons crossed the top of
Hawthorne Hill, and that “trail closed” signs additionally appeared at the hill’s top and sides. While
noting the existence of evidence to the contrary, the arbitrator reasoned that from the impartial witness’
testimony, “one could find that there was substantial compliance with the Act and its regulatory rules.”
The arbitrator proceeded to observe that, even assuming defendant’s failure to appropriately
designate Hawthorne Hill as closed, this negligent act played no part in plaintiff’s fall. In the course of
the arbitrator’s opinion, he found two factors that contributed to plaintiff’s fall: (1) plaintiff’s encounter
with uneven terrain toward the bottom of Hawthorne Hill, and (2) “the speed at which [plaintiff] was
skiing and his inability to avoid a danger that he saw.” These factual findings with respect to proximate
cause are unassailable by this Court. Byron Center, supra. Pursuant to the SASA, plaintiff assumes
any risk of harm arising from these dangers that inhere in the sport of skiing. MCL 408.342; MSA
18.483(22).
As the majority notes, the arbitrator in the course of his opinion discussed the case of Barr v Mt
Brighton, Inc, 215 Mich App 512; 546 NW2d 273 (1996). In Barr, a panel of this Court opined that
application of the assumption of risk provision concerning skiers to bar a plaintiff’s claim essentially
rendered irrelevant a defendant ski area operator’s violation of a statutory duty under the SASA. Id. at
519. While I do not dispute the majority’s position that this Court effectively overruled Barr, supra in
Dale v Beta-C, Inc, 227 Mich App 57; 574 NW2d 697 (1997), thus rejecting the notion “that if an
injury arises out of a circumstance that is covered by the assumption of risk provision of the [SASA],
the operator’s non-compliance with its own statutory duties under the act is irrelevant,” I disagree with
the majority that the arbitrator’s mere citation to the Barr case renders his opinion insupportable.
The arbitrator’s discussion of Barr is irrelevant to a proper disposition of this matter because
the instant case does not involve a situation in which both a skier’s statutory assumption of the risks
inherent in skiing and a ski area operator’s violation of its enumerated statutory duties combined to
some degree to cause an accident. As I have indicated above, the arbitrator found as a factual matter
that both plaintiff’s speed and the uneven terrain he encountered proximately caused his fall; these
factual findings are conclusive with respect to the causation issue. Furthermore, the procedural posture
of this case is distinguishable from Dale, supra, in which this Court determined that summary disposition
pursuant to MCR 2.116(C)(10) had been improperly granted by the trial court when genuine factual
issues existed concerning the defendant’s failure to comply with its statutory duties. Dale, supra at 70
71. In contrast, the instant case comes before us post-arbitration, in which the arbitrator held a hearing,
examined the record and acted as the factfinder, correctly interpreted and applied the law regarding
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plaintiff’s assumption of inherent skiing risks, and concluded that because plaintiff assumed the risks of
the danger he encountered, he had no cause of action against defendant. I have no doubt that the
arbitrator, a distinguished and experienced former circuit judge and active member of the trial attorney
community, was fully aware of an understood the terms of the SASA, but deemed its provisions with
respect to ski area operator duties irrelevant when only plaintiff’s conduct proximately caused his injury.
The majority apparently reads the arbitrator’s opinion as contemplating the possibility that
defendant’s failure to mark the top of Hawthorne Hill somehow contributed to plaintiff’s accident, citing
the arbitrator’s statements that “this accident was caused in part by the terrain,” and that “[i]n my
judgment, a proximate cause of this skier’s injuries was the speed at which he was skiing and his
inability to avoid a danger that he saw.” A careful reading of the arbitrator’s opinion, however, reveals
that the arbitrator found that only the terrain and plaintiff’s speed combined to cause the accident. The
arbitrator at no time gave the slightest indication that he believed some failure by defendant to comply
with the SASA’s enumerated ski operator duties played any part in plaintiff’s fall. Thus, in light of the
arbitrator’s interpretation of the instant facts that attributed no involvement by defendant in proximately
causing plaintiff’s accident, the majority’s determination to remand this case to determine “the portion of
plaintiff’s damage, if any, that resulted from defendant’s violation of the SASA” is completely
unnecessary.
I would affirm.
/s/ Hilda R. Gage
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