EUGENE FELDMAN V MT HOLLY RESORT INC
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STATE OF MICHIGAN
COURT OF APPEALS
EUGENE FELDMAN,
UNPUBLISHED
November 22, 2005
Plaintiff-Appellant,
v
No. 263199
Oakland Circuit Court
LC No. 2004-059056-NO
MT. HOLLY RESORT, INC.,
Defendant-Appellee.
Before: Davis, P.J., and Fitzgerald and Cooper, JJ.
PER CURIAM.
Plaintiff Eugene Feldman appeals as of right the trial court’s dismissal of his negligence
claims against defendant Mt. Holly Resort upon its motion for summary disposition pursuant to
MCR 2.116(C)(8) and MCR 2.116(C)(10). We affirm.
The facts of this case are not disputed. On January 31, 2004, plaintiff was snowboarding
with friends at defendant’s facility. Midway through the day, he rode a chair lift to the top of a
hill with a friend. Plaintiff turned to face his friend while ascending the hill and his arm became
lodged in the chair’s metal framework. However, plaintiff did not discover that he was stuck
until he attempted to step down from the seat. As the lift continued to move, plaintiff’s arm was
severely fractured and finally dislodged.
We review a trial court’s determination regarding a motion for summary disposition de
novo. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the
pleadings alone and should be granted only if the factual development of the claim could not
justify recovery.2 A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s
claim.3 “In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we
consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence
1
1
MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001).
2
Beaudrie v Henderson, 465 Mich 124, 129-130; 631 NW2d 308 (2001).
3
Auto-Owners Ins Co v Allied Adjusters & Appraisers, Inc, 238 Mich App 394, 397; 605 NW2d
685 (1999).
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submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue
of material fact exists.”4 Summary disposition is appropriate only if there are no genuine issues
of material fact, and the moving party is entitled to judgment as a matter of law.5
The trial court determined that plaintiff’s claims were barred by the Michigan Ski Area
Safety Act (SASA).6 Section 22 of the act,
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 . . .
collisions with ski lift towers and their components . . . .[7]
Pursuant to this assumption of risk clause, skiers assume the obvious and necessary dangers of
skiing.8 When an injury occurs as a result of a danger enumerated in the SASA, whether the
skier or ski lift operator behaved in a reasonable and prudent manner is irrelevant.9
In Kent v Alpine Valley Ski Area, Inc, this Court found that the trial court properly
granted defendant’s motion for summary disposition where the plaintiff was injured as a result of
a collision with a chair lift component.10 In Kent, the plaintiff took his young grandson on a
chair lift after asking an employee which hill was the safest for the child. The chair approached
too quickly from behind and knocked the boy down. The plaintiff was knocked back into a
seated position. He reached out to grab his grandson and slipped from the seat. However, his
arm became entangled in the seat post. The plaintiff’s arm broke and he was dragged for several
feet before the lift came to a stop.11 This Court determined that the plaintiff’s contact with the
seat post was a “collision” within the SASA, as a “collision” does not require the skier to
“actually [be] in the process of skiing.”12 We are bound by this previous published opinion of
our Court.13
Plaintiff in this case was similarly injured when he became entangled in a component of a
chair lift. The reasonableness of his behavior as he turned to talk with his friend is irrelevant to
4
Singer v American States Ins, 245 Mich App 370, 374; 631 NW2d 34 (2001).
5
MacDonald, supra at 332.
6
MCL 408.321 et seq.
7
MCL 408.342(2).
8
Kent v Alpine Valley Ski Area, Inc, 240 Mich App 731, 739; 613 NW2d 383 (2000).
9
Id. at 739-740, quoting Schmitz v Cannonsburg Skiing Corp, 170 Mich App 692, 696; 428
NW2d 742 (1988).
10
Id. at 743-744.
11
Id. at 732-733.
12
Id. at 742.
13
MCR 7.215(C)(2).
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the determination of whether he assumed the risk of this injury. The danger of becoming
entangled in the metal frame of the chair lift seat is no less obvious and necessary than the
danger of breaking one’s arm against the seat post. Accordingly, the trial court properly
determined that plaintiff’s injury was the type barred by the SASA.
Affirmed.
/s/ Alton T. Davis
/s/ E. Thomas Fitzgerald
/s/ Jessica R. Cooper
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