TONI RUSNAK V MATT WALKER

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STATE OF MICHIGAN COURT OF APPEALS TONI RUSNAK, FOR PUBLICATION December 19, 2006 9:10 a.m. Plaintiff-Appellant, v No. 264671 Oakland Circuit Court LC No. 04-059692-NO MATT WALKER, Defendant-Appellee. Official Reported Version Before: Whitbeck, C.J., and Bandstra, Markey, Smolenski, Kelly, Murray, and Donofrio, JJ. MURRAY, J. I. Introduction Snow skiing is a popular sport in Michigan, with thousands of skiers descending on Michigan's ski slopes each winter. With all the skiers, of course, comes a wide range of skill levels. Adding to that, Michigan's wintry conditions are sometimes not ideal for visual navigation, or for stopping or turning. Collisions between skiers, therefore, do occur. In this case, for instance, defendant Matt Walker was skiing down a run at Boyne Mountain Ski Resort when he collided with plaintiff Toni Rusnak, who was further down the hill than Walker when the collision occurred. To address certain liability issues associated with snow skiing, including collisions between skiers, the Legislature enacted the Ski Area Safety Act (SASA), MCL 408.321 et seq. The question before us in this case is whether the assumption-of-risk provision within the SASA bars plaintiff 's claim that is based on a collision and resulting injuries allegedly caused by defendant's violation of this act. In Rusnak v Walker, 271 Mich App 567; 723 NW2d 210 (2006), a panel of this Court held that the individual defendant, Walker, was immune from suit under the SASA as interpreted by Kent v Alpine Valley Ski Area, Inc, 240 Mich App 731; 613 NW2d 383 (2000), McCormick v Go Forward Operating Ltd Partnership, 235 Mich App 551; 599 NW2d 513 (1999), and Barr v Mt Brighton, Inc, 215 Mich App 512; 546 NW2d 273 (1996). However, the Rusnak panel also concluded that the Kent, McCormick, and Barr decisions were incorrectly decided, as the Rusnak panel opined that under certain circumstances an individual could be liable for injuries that occurred from a collision between two skiers. Rusnak, supra at 585. Thus, were it not for the binding precedent, see MCR 7.215(J)(1), the Rusnak panel would have reversed the trial court's grant of defendant's motion for summary disposition. Id. at 569. -1- With that formal declaration, by operation of our court rules, the judges of this Court were polled, and a majority concluded that the conflict between Rusnak and Kent, McCormick, and Barr should be resolved. 271 Mich App 801 (2006). That being our task, we turn now to a brief recitation of the undisputed material facts, and then to an analysis of this rather interesting issue of statutory construction. II. Material Facts We take the material facts and procedural history straight from the prior Rusnak opinion because they are clear, concise, and correct: Plaintiff filed this action after she was injured in a collision with defendant while skiing at Boyne Mountain ski resort on December 30, 2002. Plaintiff and defendant were skiing down the same run. Plaintiff was the "downhill" skier and defendant was the "uphill" skier.5 According to plaintiff, at the time of the collision, she was making short, controlled slalom turns, moving ten to 12 feet laterally as she turned. The ski slope was wide open; there were no other skiers nearby. Plaintiff heard someone yell, "Watch out," and she was struck from behind and knocked down by defendant. She suffered fractures of her humerus and lumbar spine. Defendant moved for summary disposition, arguing that plaintiff 's claims were barred by SASA, MCL 408.342(2), which provides that skiers accept the risk of a collision with another skier. Alternatively, defendant argued that as coparticipants in a recreational sport, defendant owed plaintiff only a duty not to act recklessly, and plaintiff failed to show any evidence of recklessness by defendant. Plaintiff moved to amend her complaint to add a count of reckless misconduct. The trial court denied plaintiff 's motion and granted summary disposition for defendant. The court agreed with defendant that plaintiff 's claim was barred as a matter of law by the assumption of risk provisions of SASA. __________________________________________________________________ 5 That is, defendant was at a higher point on the ski slope. __________________________________________________________________ [Rusnak, supra at 570.] III. Analysis Resolution of this case requires application of the undisputed and straightforward facts to the relevant sections within the SASA. Consequently, our review is de novo. Cruz v State Farm Mut Automobile Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002). Additionally, our review of the trial court's grant of defendant's motion for summary disposition is de novo. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). A. SASA -2- Because this case is governed by the SASA, we first look to the language actually employed by the Legislature in setting out the rights, duties, and liability of skiers. See Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 24; 664 NW2d 756 (2003). To begin with, § 21(1) of the SASA, MCL 408.341(1), states: 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. [Emphasis added.] Thus, pursuant to MCL 408.341(1), a skier "shall" ski within his or her abilities and "shall not" ski in such a way as to contribute to the injury of another person. In the same vein, § 22(1)(a) of the SASA, MCL 408.342(1)(a), requires each skier to "[m]aintain reasonable control of his or her speed and course at all times." In sum, then, we see that portions of §§ 21 and 22 of the SASA place an affirmative duty on all skiers to ski within their abilities, to maintain reasonable control of their speed and course at all times, and to not ski in a manner that could contribute to the injury of another skier. MCL 408.341(1); MCL 408.342(1)(a). With these (and other inapplicable) duties established, the Legislature then addressed the liabilities for, and the risks assumed by, skiers. With regard to assumed risks, § 22(2), MCL 408.342(2), contains an assumption-of-risk provision that specifically applies to collisions between skiers: 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. [Emphasis added.] Through this subsection, the Legislature has clearly indicated that collisions with other skiers are an obvious and necessary danger that inheres in the sport and that the skier has assumed the risk of being injured by such a danger. The final provision relevant to this issue is § 24, MCL 408.344, which provides for liability against any skier who "violates this act," with liability being limited to "that portion of the loss or damage resulting from that violation." Reading §§ 22(2) and 24 together, the Legislature has provided a system whereby skiers assume the risk of injury from dangers inherent in skiing that are "obvious and necessary," but which also provides liability against a skier for any injuries that were caused by a violation of the duties imposed on skiers under the SASA. Accordingly, and for the reasons explained more fully below, we hold that under the plain language of the assumption-of-risk provision, MCL 408.342(2), plaintiff assumed the risk of being injured by a collision with another skier because that provision precisely states as much, -3- without exception. However, because plaintiff has produced evidence that defendant may have violated his duties under the SASA, as well as evidence that those violations may have caused plaintiff 's injuries, defendant may still be liable to plaintiff for "that portion of the loss or damage resulting from that violation." MCL 408.344. Our judicial duty is to enforce the plain, unambiguous provisions of a statute. Herald Co v Bay City, 463 Mich 111, 117-118; 614 NW2d 873 (2000). We long ago recognized that the judiciary cannot read restrictions or limitations into a statute that plainly contains none. Threet v Pinkston, 20 Mich App 39, 41; 173 NW2d 731 (1969). The crux of this case is whether the broad assumption-of-risk subsection can be reconciled with the provisions (1) placing duties on skiers to ski safely and not injure another skier and (2) providing liability for injuries caused by those violations. As we have already noted, we hold that the SASA assumption-of-risk provision contains clear and unambiguous language, providing in no uncertain terms that a collision between skiers is an obvious and necessary danger that inheres in the sport of skiing. However, in those cases in which a plaintiff can establish that a defendant violated one of the specific duties imposed by the SASA, the plaintiff can still recover damages to the extent that the defendant's violations caused the plaintiff 's injuries. To state it differently, it is possible, and therefore skiers assume the risk, that a collision can occur between skiers when neither skier is violating his or her duties under the SASA. That is, it is an obvious and necessary danger of skiing that sometimes accidents simply happen. But, again, if it can be shown that the collision resulted from a violation of the act, then the violator is to be held liable for the damage caused, as provided under MCL 408.344. The prior Rusnak panel did not read these sections together the same way as we have. Instead, relying on Dale v Beta-C, Inc, 227 Mich App 57; 574 NW2d 697 (1997), the prior panel read these provisions as providing that if defendant had violated another section of the SASA, the collision with plaintiff would not have been an "obvious and necessary" danger, and therefore the assumption-of-risk provision would not apply: Under SASA, a skier accepts the dangers of skiing, e.g., collisions with other skiers, only "insofar as the dangers are obvious and necessary." If a skier is alleged to have violated the statutory duties that the Legislature imposed, it cannot be said that the risk of collision was "obvious and necessary." [Rusnak, supra at 574.] For several reasons, we do not agree with this statutory analysis. First, and contrary to the Rusnak panel's analysis, Dale did not hold that the "obvious and necessary" danger language in the assumption-of-risk section of the Roller Skating Safety Act (RSSA), MCL 445.1721 et seq., was implicated in the liability provisions of the RSSA. Instead, the Dale Court held that the facially conflicting sections could be read together so that the skater assumes the risks set forth in the RSSA assumption-of-risk section, but does not assume the risk that another person or entity would violate the RSSA: In order to preclude such an unintended result and to preserve the legislative purpose underlying the RSSA, the assumption of risk provision of § 5 must be read in conjunction with the duties of operators set forth in § 3 and the -4- creation of civil liability for operators as set forth in § 6. Reconciliation of these provisions leads us to hold that a skater does not assume the risk of an operator violating the duties prescribed under the act. If a violation of § 3 of the RSSA is alleged and proved, then pursuant to § 6 the operator "who violates this act shall be liable in a civil action for damages for that portion of the loss or damage resulting from the violation." MCL 445.1726; MSA 18.485(6). [Dale, supra at 67.] Hence, the Dale Court did not rule that a specifically enumerated inherent danger was not "obvious and necessary" if it resulted from another skater's violation of the act. It simply, and we believe correctly, ruled that being injured by another person's violation of the act was not an assumed risk. Second, nowhere in § 22(2) is there any limitation or restriction on the risks assumed. For example, the Legislature did not start off the subsection by stating "except for violations of other sections of this act," the skier assumes the obvious and necessary dangers inherent in the sport. We recognize, of course, that there are many ways the Legislature could have written the statute, and our focus must remain on the words the statute actually contains. And, as we have noted, the assumption-of-risk provision is clear and unambiguous, providing that a skier assumes the risk of obvious and necessary dangers that inhere in the sport, and "[t]hose dangers" specifically include collisions with other skiers. MCL 408.342(2). There is no mention or reference to any other sections of the act, or to how a violation of another section would affect the legislative determination that collisions with other skiers constitute an obvious and necessary danger inherent in skiing and assumed by every skier. Third, unlike the prior Rusnak panel, we do not read Anderson as being applicable to this case. Although the Anderson Court1 analyzed whether a timing shack was both a "danger inherent in the sport" and a danger "that was obvious and necessary," that was for the purpose of determining whether the timing shack fell within the assumption-of-risk subsection. Anderson, supra at 24. Quite logically, the Anderson Court utilized the key phrases from the statute to determine whether an item not specifically listed in the statute (a timing shack) was nevertheless the type of unnatural object intended to fall within the nonexhaustive list of dangers covered by the statute. Anderson, supra at 24-25. In our case, however, the Legislature has specifically determined that collisions with other skiers are an "obvious and necessary" danger that inheres in the sport, MCL 408.342(2). Thus, there is no need to engage in the analysis employed by the Anderson Court. Stated differently, the two-part Anderson test is to be used for determining whether a natural or unnatural object or condition that is not listed within the statute is an obvious and necessary danger that inheres in the sport of skiing, and therefore a risk assumed by the skier. As the Dale Court recognized, our task is to read potentially conflicting provisions of a statute together in a way that gives effect, to the extent possible, to all the provisions. Dale, 1 And one of the dissenters. See Anderson, supra at 31 (Cavanagh, J., dissenting). -5- supra at 65; see also Betten Auto Center, Inc v Dep't of Treasury, 272 Mich App 14, 24; 723 NW2d 914 (2006), citing Michigan Bell Tel Co v Dep't of Treasury, 229 Mich App 200, 216; 581 NW2d 770 (1998). A somewhat similar canon is that we cannot (absent legislative direction) enforce one section of a statute in such a way that it renders meaningless another equally applicable section. Betten Auto, supra at 24, citing People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999). Here we have a broad, clear assumption-of-risk provision that contains no reservation or limitation of its scope. Indeed, many of our earlier cases held that this subsection alone barred any claim involving a listed danger, no matter how that danger was created. See Grieb v Alpine Valley Ski Area, Inc, 155 Mich App 484, 486; 400 NW2d 653 (1986); Schmitz v Cannonsburg Skiing Corp, 170 Mich App 692, 695-696; 428 NW2d 742 (1988); Kent, supra at 743-744; McCormick, supra at 555-556. We do agree, however, with the prior Rusnak panel's holding that, to the extent some of these cases held that under all circumstances the actions of the defendant are irrelevant, they were in error. The actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning. Indeed, we cannot favor one section, such as the assumption-of-risk provision, over other equally applicable sections, such as the duty and liability provisions. Betten Auto, supra at 24. Reading these provisions together while giving them full force and effect, we hold that a plaintiff assumes the risk of colliding with another skier because that is what the Legislature has specified under MCL 408.342(2), but a plaintiff can still recover limited damages against an individual skier if the plaintiff can prove that a defendant violated the duties placed on skiers and that the defendant's violation of the SASA caused the injuries suffered by the plaintiff, MCL 408.344. Although the prior Rusnak panel did not reconcile these statutory provisions in this way, the ultimate conclusion that we have come to today is consistent with the prior panel's ultimate conclusion. We now turn to the prior caselaw on this issue. B. The Caselaw As recognized by the order convening this conflict panel, the prior Rusnak panel was of the opinion that its conclusion conflicted with several prior published opinions of this Court. The binding, post-November 1, 1990, decisions that the Rusnak panel's interpretation of the SASA conflicted with are Kent, McCormick, and Barr. We agree with the prior Rusnak panel's discussion of these decisions. See Rusnak, supra at 577-582. Nevertheless, we will briefly discuss our views on several cases that reinforce our reading of the relevant statutory provisions.2 In Barr v Mt Brighton, Inc, the plaintiff was injured 2 Grieb v Alpine Valley Ski Area, Inc, contained a set of facts virtually identical to the instant case. In Grieb, the plaintiff was struck from behind by an unknown skier as she was skiing down a ski slope. Grieb, supra at 485. The Court held that § 22(2) barred the plaintiff 's case because it unambiguously states that collisions with other skiers are an obvious and necessary danger assumed by skiers. Id. at 486. However, the defendant in Grieb was the ski resort, not the skier (continued…) -6- when he collided with a tree in an area considered by the defendant to be closed, but which was not marked off as closed. Barr, supra at 514. Plaintiff sued the corporate defendant, alleging that it had violated its statutory duties under the SASA by not properly posting or lighting the area. Id. at 514-516. This Court reversed the trial court's denial of the defendant's motion for summary disposition, holding that the plaintiff had assumed the risk of colliding with trees because that was a danger listed in § 22(2). Id. at 522-523. There are, however, two aspects of Barr that bear on this case. First, Barr relied in part on Skene v Fileccia, 213 Mich App 1; 539 NW2d 531 (1995), and the reasoning in Skene was subsequently repudiated by the conflict panel in Dale. As the prior Rusnak panel detailed, the Dale Court's reading of analogous provisions of the RSSA diluted—if not eliminated—the broad, all encompassing construction given by the Skene Court to the RSSA's assumption-of-risk section. Second, the Barr Court ultimately held that the defendant had not, as a matter of law, violated any duties imposed by the SASA. Barr, supra at 519-520. However, although Barr did not involve a defendant acting in derogation of its duties under the SASA, the Court nonetheless noted that there would be circumstances in which the acts of the defendant would be relevant to an analysis of the assumption-of-risk provision. Id. at 522. As an example of such a circumstance, the Barr Court posited "a skier's collision with a tree caused by the skier seeking to avoid improperly marked construction equipment located on a ski slope. MCL 3 408.326a(a)[.]" Id. In such a situation, the Court concluded that the defendant's acts would be relevant for a comparative negligence evaluation: We do not suggest that every incident involving a tree necessarily falls under the assumption of risk clause of the act. For instance, there may be incidents involving a tree where a skier also has been subjected to dangers from which the risk of an injury is not assumed by the skier under the act, e.g., a skier's collision with a tree caused by the skier seeking to avoid improperly marked construction equipment located on a ski slope. MCL 408.326a(a); MSA 18.483(6a)(a). At that point, a ski area operator's behavior and compliance with the act would not be irrelevant. Plaintiff suggests that this is one of those cases, claiming that defendant should have marked the area as closed in order to warn skiers of the danger posed by the proximity of the trees. However, we do not believe that defendant was under any obligation to mark as "closed" an area on the hill that was never "open." The harm suffered by plaintiff thereafter was the result of one of the very dangers from which the risk of injury is specifically assumed by plaintiff under the act—trees. Plaintiff assumes no less of a risk from (…continued) who collided with the plaintiff, so the Court had no reason to address the interplay between § 22(2) and §§ 21(1), 22(1), and 24. Thus, the Grieb Court's rationale and ultimate holding are not dispositive of this case. 3 MCL 408.326a(a) places a duty on ski operators to equip authorized equipment, such as snowgrooming vehicles or construction equipment located on slopes, with a flashing or rotating yellow light. -7- "trees" because he is skiing on a trail never "open" for skiing than he would if he is skiing on a properly "open" trail. [Id. at 522-523 (emphasis added).] In continuing its analysis, the Barr Court provided another illustrative example of when a defendant's conduct may be relevant to a case involving an assumed risk: We distinguish this case from one, for example, where a beginning-level skier has skied down an "expert" slope because the slope has been improperly marked as a "beginner" slope and has collided with a tree. In such a case, the ski area operator's failure to comply with its duties under the act, MCL 408.326a(c); MSA 18.483(6a)(c), would not necessarily be irrelevant. Unlike the instant case, the ski area operator's failure to comply would relate to a danger, i.e., beginners skiing down "expert" slopes, from which the risk of injury would not be assumed by a skier under the act. [Id. at 523 n 7.] Several years earlier, the Schmitz Court made this same observation:4 Plaintiff contends that the language of the Ski Area Safety Act sets up a scheme of codified negligence using the common-law standards of reasonable behavior under the circumstances. This contention is supported by the language of MCL 408.342(1); MSA 18.483(22)(1) which states that a skier must "[m]aintain reasonable control of his or her speed and course at all times." Plaintiff 's contention is further supported by MCL 408.344; MSA 18.483(24), which states that a skier or ski area operator who violates the act is "liable for the portion of loss or damage resulting from that violation," and which suggests a comparative negligence principle such as that articulated in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), reh den 406 Mich 1119 (1979). Indeed, the Senate's own analysis of the amended act notes that it was intended to coincide, rather than conflict, with the existing comparative negligence law by reiterating that each person is liable for his own actions and encouraging skiers to seriously accept responsibility for their own safety and that of others. Senate Legislative Analysis, SB49, April 17, 1981. * * * Under many circumstances, the question of whether the skier or ski area operator has violated the statute would be measured by a negligence standard. For example, the question of whether a skier had maintained reasonable control of his speed and course as directed by MCL 408.342(1); MSA 18.483(22)(1) would usually be a question for the trier of fact. In such a case, common-law 4 We note that, like Barr, Schmitz involved a lawsuit brought against the ski resort, not an individual skier. -8- negligence principles of "reasonable under the circumstances" and comparative negligence would be applicable. [Id. at 694-695 (emphasis added).] Likewise, in Kent, a case involving a skier injured while riding on a chair lift, this Court upheld the order granting the ski operator's motion for summary disposition, but nevertheless noted that, as recognized in Barr, "the statute, as amended, suggests a comparative negligence analysis in certain circumstances." Kent, supra at 743; accord Barr v Mt Brighton Inc, 454 Mich 910, 911 (1997) (Boyle, J., concurring in the denial of leave, but questioning the Court of Appeals conclusion that a defendant's violation of the SASA was irrelevant, opining that such an interpretation "would abrogate any duty imposed by the statute"). Hence, in Barr, Kent, and Schmitz, our Court recognized, albeit in dicta, that when a plaintiff has adequately pleaded or proven that an incident occurred because of a defendant's violation of the SASA, those actions of the defendant are relevant for purposes of determining the allocation of fault—and thus damages—between the plaintiff and the defendant. Under this view, the plain language of the entire SASA is given force and effect. Not only is this reading consistent with the plain language of the relevant sections, it also conforms to the legislative purpose in enacting the SASA, i.e., to reduce the liability of ski operators while at the same time placing many, but not all, risks of skiing on the individual skiers. Anderson, supra at 23; McGoldrick, supra at 295-296; Hakari v Ski Brule, Inc, 230 Mich App 352, 356; 584 NW2d 345 (1998). With this in mind, we hold that the trial court erred in dismissing plaintiff 's complaint on the basis of the assumption-of-risk provision alone. We therefore reverse the trial court's order and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Reversed and remanded. /s/ Christopher M. Murray /s/ William C. Whitbeck /s/ Richard A. Bandstra /s/ Jane E. Markey /s/ Michael R. Smolenski /s/ Kirsten Frank Kelly /s/ Pat M. Donofrio -9-

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