MICHIGAN'S ROLLER SKATING SAFETY ACT (RSSA)

Michigan was the first State in the United States to statutorily adopt assumption of risk as a defense specifically for roller skating centers. Mr. Anselmi drafted the Michigan Roller Skating Safety Act (RSSA) and worked closely for three years with Lobbyists before the Michigan Legislature to promote its passage into law. Michigan's statute is known as the Roller Skating Safety Act of 1989 and is codified at MCLA 445.1721 et seq. The RSSA (Roller Skating Safety Act) has also been the subject of several Court of Appeals Opinions which have given direction and meaning to the language of the statute. The two most important Court of Appeals' Opinions which were published and, therefore precendentially binding, will be discussed herein. Those two cases are: Skene v Fileccia , 213 Mich App 1 (1995); Dale v Beta-C, Inc. d/b/a Detroit Roller Wheels , 227 Mich App 57 (1997).

In Skene , Plaintiff alleged that Defendant's floor staff was not on the skating surface at the time of the subject incident and, therefore, had violated the duties prescribed by the RSSA for roller skating rink operators. Kurt Anselmi, representing the Defendant, successfully argued at the Court of Appeals that the Roller Skating Safety Act provides that roller skaters assume the risk of certain injuries (i.e., collisions with other skaters) irrespective of the alleged negligence of the roller skating center operator. This argument was consistent with interpretations of the Michigan Ski Area Safety Act which had likewise held that skiers assume the risk of injury as the result of certain incidents (collisions with other skiers) and the negligence of the ski area operators was irrelevant. The Court of Appeals in Skene agreed with defense counsel Anselmi's arguments and affirmed summary disposition for the Defendant. Skene was the first published Opinion interpreting the RSSA and, therefore, became precedent for interpretation of the RSSA.

As a result of Skene , Michigan rink operators received the most favorable interpretation of the Roller Skating Safety Act which provided a foundation for summary disposition in many subsequent cases. It is important to note that the language of the assumption of risk provision of the RSSA (MCLA 445.1725) does not provide any threshold showing that the rink operator satisfied his duties in order to have benefit of the assumption of risk defense. This is to be distinguished from other State statutes adopting the assumption of risk as a defense for roller skating centers. Noteworthy, the New Jersey statute and other State statutes similar to it provide that the rink operator must demonstrate he satisfied his duties under the requisite Roller Skating Act in order to have benefit of the assumption of risk defense. Such a threshold showing is not required under the RSSA. More importantly, Skene agreed with this interpretation of Michigan's RSSA.

For several years, the Skene interpretation of the Roller Skating Safety Act prevailed. Unfortunately, Dale v Beta-C, Inc. d/b/a Detroit Roller Wheels has changed the interpretation of the Roller Skating Safety Act crafting a requisite showing that there is no question of fact that the rink operator has satisfied his duties relative to the incident causing Plaintiff's injury before summary disposition would be appropriate for Defendant pursuant to the assumption of risk provision.

In Dale , Plaintiff fell when he collided with another skater who cut in front of him. Plaintiff alleged that when the other skater cut in front of him, he attempted to stop by dragging the toe stop of his rental skate which he learned for the first time was (allegedly) not present. At this point, Plaintiff allegedly then attempted to maneuver around the other skater with whom he collided and fell. Defendant skating center filed its Motion for Summary Disposition alleging that Plaintiff's injury was due to a collision with another skater and not an alleged defective rental and, therefore, was a risk assumed pursuant to the RSSA. The Trial Court agreed and granted summary disposition for Defendant. Plaintiff appealed.

The first Panel of the Michigan Court of Appeals to hear the Dale case issued its Opinion affirming summary disposition for Defendant based on Skene . However, this first Panel also criticized the Decision in Skene explaining that it was affirming summary disposition in Dale only because it was compelled to do so because of the earlier Decision in Skene with which it disagreed. Due to this conflict in the Court of Appeals' Panels, a Special Panel of the Michigan Court of Appeals was convened to resolve the conflict.

Unfortunately, following extensive oral arguments and five months of analysis, the Special Panel of the Michigan Court of Appeals adopted the analysis of the first Panel of the Michigan Court of Appeals in Dale , criticizing the interpretation of the RSSA in Skene . Importantly, the Special Panel of the Court of Appeals found that summary disposition for Defendant was appropriate in Skene , however, they disagreed with the interpretation of the RSSA providing that where a collision occurs between two skaters, the negligence of the roller skating rink operator is irrelevant. Rather, the Dale Court held that while Plaintiff alleges that the Defendant has failed to satisfy Defendant's duties as a rink operator under the RSSA, thereby causing Plaintiff's injury, a question of fact has been created rendering summary disposition inappropriate.

In effect, the Special Panel in Dale crafted a requisite showing that the rink operator establish that its duties were satisfied under the RSSAbefore summary disposition would be appropriate pursuant to the assumption of risk defense. Nowhere in the statute does language appear which would support this interpretation by the Special Panel in Dale . Defendant, Beta-C, Inc. d/b/a Detroit Roller Wheels, sought leave to appeal to the Supreme Court. Unfortunately, the Supreme Court denied leave to appeal thereby rendering the Special Panel's Decision in Dale as the current last word on interpreting the RSSA.

WHERE DO WE GO FROM HERE?

Fortunately, while the result in Dale was wrong according to defense counsel Anselmi, the Special Panel in Dale did affirm that summary disposition under the facts in Skene was appropriate. The Special Panel in Dale modified Skene to the extent that the Skene Opinion stood for the proposition that any violation of the rink operator's duties was irrelevant where the injury occurs due to a collision between two skaters. It is quite evident that the Special Panel ignored Plaintiff's contention in Skene that the rink operator violated his duties to have a floor guard on the floor at the time of the collision between Plaintiff Skene and Co-Defendant Fileccia. Nonetheless, Dale provides Plaintiffs' counsel the strong argument that by simply alleging that Defendant's failure to comply with his duties pursuant to the RSSA caused the Plaintiff's injury precludes summary disposition pursuant to assumption of risk.

When confronted with an incident at a roller skating center, such as a collision between two skaters, summary disposition should still be pursued based on the Skene Decision. Likewise, where Plaintiff's injury occurs as the result of other identified risks, such as collisions with objects properly within the intended direction of travel, summary disposition should be pursued. Claim Representatives and local counsel should, however, recognize that Plaintiffs' counsel will argue that according to the second Decision in Dale by the Special Panel of the Michigan Court of Appeals, simply asserting the rink operator's failure to comply with his statutory duties (assuming some evidencing support) pursuant to the RSSA is sufficient to create a question of fact precluding summary disposition. In responding, the Claim Representative and/or local counsel should note that Skene was affirmed by the Special Panel in Dale as the correct application of the RSSA. In Skene , Plaintiff had alleged a failure to have floor guards on the skating surface at the time of the collision as a proximate cause of that collision.

Thus, as in Skene , affirmed by the Dale Special Panel, a rink operator who allegedly violates his duties under the RSSA proximately causing an injury can still (arguably) prevail on a Motion for Summary Disposition pursuant to the assumption of risk provisions of the RSSA.

The Dale Opinion by the Special Panel also makes reference to the collision in Skene as inadvertent suggesting that collisions which are due to other alleged conduct (skater skating out of control) may not be assumed risks. This reference to the collision in Skene , as somehow inadvertent, is an incorrect interpretation of the facts in Skene . Indeed, in Skene , Plaintiff had alleged that the Co-Defendant striking skater had been skating out of control for sometime prior to the collision but had not been stopped due to the fact that the floor guard was not (allegedly) present on the floor. Unfortunately, these facts were apparently overlooked by the Special Panel in Dale . Further, it is unfortunate that we are left with Dale as the current last word in interpreting the RSSA.

Once again, Claim Representatives and local counsel should continue to pursue summary disposition where the injury occurs as the result of an identified risk in the statute. Recognize, however, where Plaintiff alleges that the injury causing event was due to the rink operator's failure to adhere to his duties pursuant to the RSSA, Plaintiff will raise the Special Panel's Decision in Dale in support of Plaintiff's argument that there is a question of fact regarding the rink operator's adherence to his duties which precludes summary disposition.

It is hoped that the interpretation of Skene and Dale above will assist Claim Representatives and local counsel in addressing when summary disposition has a reasonable likelihood of success in the State of Michigan. Once again, as a result of the Special Panel's Decision in Dale , Michigan can reasonably expect to see more litigation that we have experienced in the last several years as the Dale case increases the likelihood that Plaintiffs will survive summary disposition in collision type cases at roller skating centers.