MATTHEW BARRETT V MT BRIGHTON INC
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STATE OF MICHIGAN
COURT OF APPEALS
MATTHEW BARRETT,
UNPUBLISHED
January 11, 2002
Plaintiff-Appellee,
v
No. 222777
Livingston Circuit Court
LC No. 97-016219-NO
MT. BRIGHTON, INC.,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
This negligence action is on remand from the Supreme Court for consideration as on
leave granted. Barrett v Mt Brighton, Inc, 461 Mich 882; 603 NW2d 636 (1999). Plaintiff
brought suit under the Ski Area Safety Act [hereinafter “the Act”]. MCL 408.321 et seq.
Defendant appeals from an order of the trial court denying its motion for summary disposition.
In the remand order, our Supreme Court directed us to “consider whether defendant owed
plaintiff a duty under [the Act] . . . to warn skiers of the presence of a snowboarding rail.” The
Court also directed that we should “consider whether a snowboarding rail is an inherent part of a
ski area and whether plaintiff assumed the risk of its presence.” We affirm.
Plaintiff was skiing on defendant’s premises on the evening of February 5, 1997, when he
struck a snowboard rail and fractured his ankle. Visibility that night was clear. The snowboard
rail, which was about six inches wide, twenty feet long, and bright yellow in color, had been in
that location since 1994. It ranged in height from several inches to twelve to fourteen inches
above the snow line. At the time of plaintiff’s accident, the area in which the rail was located
was not posted as an area intended for use exclusively by snowboarders. Defendant’s general
manager averred that although the area was generally off limits to skiers, skiers did occasionally
use the area. In his deposition, plaintiff stated that he had never skied anywhere other than at Mt.
Brighton, and that he had never snowboarded there. Plaintiff averred that he had not seen the rail
until seconds before he struck it.
Defendant moved for summary disposition pursuant to MCR 2.16(C)(8) and (C)(10).
Defendant argued that because a snowboard rail was an obvious structure that served a purpose
or function with respect to skiing, plaintiff’s action was barred by the assumption of risk
provision of the Act. MCL 408.342(2). In denying the motion, the court observed that “there is
an issue of fact as to whether or not this was properly marked. . . . [P]roper marking appears to
this Court to be essential under the rules and the statutes.”
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The Act’s assumption of risk clause reads as follows:
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 natural growth or debris; collisions with ski lift towers and their
components, with other skiers, or with properly marked or plainly visible snowmaking or snow-grooming equipment. [MCL 408.342(2).]
In Schmitz v Cannonsburg Skiing Corp, 170 Mich App 692, 696; 428 NW2d 742 (1988),
this Court made the following observations about this provision:
Significantly, the list of “obvious and necessary” risks assumed by a skier under
the statute involves those things resulting from natural phenomena, such as snow
conditions or the terrain itself; natural obstacles, such as trees and rocks; and
types of equipment that are inherent parts of a ski area, such as lift towers and
other structures or snow-making or grooming equipment when properly marked.
These are all conditions that are inherent to the sport of skiing. It is safe to say
that, generally, if the “dangers” listed in the statute do not exist, there is no skiing.
Therefore, it is logical to construe this section of the statute as an assumption of
risk clause that renders the reasonableness of the skiers’ or the ski operator’s
behavior irrelevant. By the mere act of skiing, the skier accepts the risk that he
may be injured in a manner described by the statute. The skier must accept these
dangers as a matter of law.
The statutory scheme establishes a balance between a ski operator’s responsibilities and a
skier’s responsibilities in the area of safety. Grieb v Alpine Valley Ski Area, Inc., 155 Mich App
484, 488-489; 400 NW2d 653 (1986). The assumption of risk clause indicates that skiers will
assume the risk associated with the “open and obvious” dangers that are inherent to the sport. As
the Schmitz Court observed, the Act’s assumption of risk clause identifies two broad categories
of open and obvious dangers that are inherent to the sport of skiing. One category consists of
natural phenomena, and the other category consists of certain specific man-made equipment and
fixtures, as well as skiers themselves. The first question we must address is whether a
snowboarding rail is the type of fixture contemplated by the statutory scheme.
We do not believe that a snowboarding rail is the type of man-made fixture that the
assumption of risk clause contemplates. A snowboarding rail does not transport skiers or
snowboarders1 to the start of a run or trail like a ski lift tower and its components. See
McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 293-294; 618 NW2d 98 (2000). A
1
We do not mean to imply that a snowboarder is not a skier under the Act. In fact, pursuant to
the definition of skier set forth in MCL 408.322(g), a snowboarder would be considered a skier
under the statutory scheme.
-2-
snowboarding rail does not by itself or in combination with other apparatus make or groom
snow.2 Rather, snowboarders use a snowboarding rail to perform particular snowboarding tricks.
Even though a snowboarding rail does not fall within the enumerated dangers, we
nonetheless must consider whether it is an inherent part of a ski area. We conclude that it is not.
While a snowboarding rail might make the course more enjoyable and challenging for a
snowboarder, it is not an essential characteristic anymore than a man-made ski jump is an
essential characteristic of a ski course. In fact, the record shows that snowboarders used
defendant’s facilities for years before the snowboarding rail was installed. Accordingly, we
conclude that under the statutory scheme, a skier is not required to accept the danger associated
with snowboard rails as a matter of law.
We do not believe, however, that at the time of plaintiff’s accident, defendant was
required by either the Act or the rules promulgated there under to warn of the presence of the
snowboarding rail.3 At the time, it appears that the statutory scheme had not caught up to the
changes that had occurred in the sport since its enactment. This does not absolve a ski operator
of all responsibility, however. The operator still has a duty to act for the safety of the public
using its facilities.
Finally, we conclude that given the characteristics of this snowboarding rail, a jury
should decide whether the danger posed by the rail was open and obvious. The rail was
described as being yellow, six inches wide, twenty feet long, and extending anywhere from
several inches to approximately one foot above the ground. We believe a jury question exists on
whether this fixture, in the place where it was located for the time it had been there, was well
known, visible, or discernable by casual inspection. Glittenberg v Doughboy Recreational
Industries, Inc, 436 Mich 673, 695; 462 NW2d 348 (1990).
We affirm the trial court’s denial of defendant’s motion for summary disposition.
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
2
It is also not a naturally occurring variation in the terrain of a skiing area.
3
We note that since plaintiff’s accident, new rules have been promulgated by the safety board
that require a ski operator to mark the entrances to snowboarding parks and to indicate the
presence of snowboarding halfpipes. 1999 AACS, R 408.81
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