Michigan Court of Appeal Redefines Assumption of Risk Within Ski Area Safety Act: Implications for Assumption of Risk Defense Within Roller Skating Safety Act
In Rusnak v Walker, Defendant Walker was skiing down a run at Boyne Mountain Ski Resort when he collided with Plaintiff, Toni Rusnak, who was further down the hill and Walker when the collision occurred. Plaintiff heard someone yell “watch out” as she was struck from behind and knocked down by Defendant. Plaintiff suffered fractures to her humerus. Plaintiff filed suit in Oakland County Circuit Court against Defendant, Matt Walker. (It is significant to note that this case involved a skier versus skier claim of liability as opposed to a claim against the ski area.)
Defendant moved for summary disposition pursuant to the Ski Area Safety Act (SASA), MCL 408.342(2) which provides that skiers accept the risk of a collision with another skier. Trial Court granted Defendant’s Motion for Summary Disposition. Plaintiff appealed.
The first Panel at the Court of Appeals affirmed summary disposition for Defendant finding that precedent (Grieb v Alpine Valley Ski Area, 155 Mich App 44; 400 NW2d 653 (1986); Schmidts v Cannonsburg Skiing Corp., 170 Mich App 692; 628 NW2d 742 (1988); Barr v Mt. Brighton, Inc., 215 Mich App 512; 546 NW2d 273 (1996); McCormick v Go Forward Operating Ltd. Partnership, 235 Mich App 551; 599 NW2d 513 (1999); Kent v Alpine Valley Ski Area, Inc. 240 Mich App 731, 736; 613 NW2nd 383 (2000)) requires a conclusion that Defendant is entitled to immunity for the skiing collision, regardless of whether he violated his duty under the SASA to ski safely, as alleged by Plaintiff. Rusnak v Walker, 271 Mich App 567, 723 NW2d 210 (July 20, 2006). However, this first Panel in Rusnak also stated in its opinion that were they not bound by this precedent it would follow the reasoning of Dale v Beta-C, Inc. (Dale II) 227 Mich App 57; 574 NW2d 697 (1997) in which a Conflict Panel of the Court of Appeals addressed analogous provisions of the Roller Skating Safety Act (RSSA). Dale II held that a skater assumes the risk of obvious and necessary dangers inherent in the sport of roller skating, but does not assume the risk of an operator violating the prescribed duties under the Act. This Rusnak Court of Appeals Panel therefore declared a conflict which pursuant to Court Rule requires a second hearing before a Conflict Panel of the Court of Appeals involving seven judges.
On December 19, 2006, the Conflict Panel of the Court of Appeals issued its opinion for publication in Rusnak v Walker. The Conflict Panel in Rusnak reversed the Trial Court grant of summary disposition for Defendant and issued a two part holding: (1) Rusnak held that under the plain language of MCL 408.342(2), Plaintiff assumed the risk of being injured by a collision with another skier because the Assumption of Risk provision precisely states as such, without exception. However, the Rusnak Panel also held that (2) because Plaintiff had produced evidence that Defendant may have violated his duty 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. In so holding, the Rusnak Conflict Panel adopted the reasoning in Dale II (also a Conflict Panel interpreting the RSSA) which held that the factually conflicting sections of the RSSA could be read together whereby the skater assumes the risks sets forth in the RSSA Assumption of Risk subsection, but does not assume the risk that another person or entity would violate the RSSA.
Noteworthy, the Rusnak Conflict Panel 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 necessary danger that adheres in the sport of skiing [i.e. having noted earlier “without exception”]. The Conflict Panel goes on to state, however, that in a case where 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 violation caused the Plaintiff’s injuries. In further explaining their adopting the Dale II Court analysis, the Rusnak Conflict Panel stated “Hence, the Dale II 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.”
Rusnak II Implications for Roller Skating Safety Act (RSSA)
Rusnak II just as Dale II has created a “road map” for Plaintiffs to circumvent the Assumption of Risk provisions of the Ski Area Safety Act. In adopting the analysis in Dale II, Rusnak II has highlighted this similar “road map” for Plaintiffs to avoid to the Assumption of Risk provisions of the SASA. Thus, a Plaintiff need only allege that a ski area/skating center has violated one of its enumerated duties thereby causing the injury sustained by Plaintiff so as to create a question of fact whether the Plaintiff’s injury was an assumed risk even where the injury causing event is an enumerated risk assumed by Plaintiff under both statutes. As the Plaintiff’s Bar becomes more aware of Rusnak II (and in turn Dale II), we can anticipate more litigation in the ski area and skating center venues. For further discussion of Dale II, see Mr. Anselmi’s discussion of same in the Roller Skating Center Litigation in Michigan compilation.
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