NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 27, 2010
Decided November 4, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 10-1206 Appeal from the United
States District Court for the
AMY S. JAKUBOVSKY, Eastern District of Wisconsin.
Plaintiff-Appellant,
No. 08-C-0206
v. William C. Griesbach, Judge.
BLACKJACK SKI CORPORATION and
AMERICAN HOME ASSURANCE COMPANY,
Defendants-Appellees.
Order
Amy Jakubovsky was injured when a snowboarder emerged from a wooded area
and collided with her at the Blackjack Ski Resort in Michigan. The snowboarder fled
and has not been identified. Jakubovsky lost her balance and plowed into a wooden
fence, which the Resort had placed at the side of the trail to prevent skiers from falling
into steep and rocky terrain. The fence served its function but at a cost: Jakubovsky sus-
tained extensive injuries to her back and ribs. She sued the Resort and its insurer. Juris-
diction rests on diversity of citizenship. 28 U.S.C. §1332.
The district court granted summary judgment to the defendants, 2009 U.S. Dist.
LEXIS 120889 (E.D. Wis. Dec. 29, 2009), ruling that Michigan’s Ski Area Safety Act, Mich.
Comp. Laws §408.342(2), precludes liability. This Act provides:
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 varia-
tions 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.
No. 10-1206 Page 2
The district court held that the collision with the snowboarder is covered by the second
sentence, which identifies “collisions with … other skiers” as an inherent danger of ski-
ing, and that the secondary collision with the fence is covered directly by the first sen-
tence, which says that skiers accept “the dangers that inhere in that sport insofar as the
dangers are obvious and necessary.” Jakubovsky does not deny that a fence was both
obvious to skiers and “necessary” to reduce the dangers of the sport. The district court
thought it unimportant that “lift towers and their components” are enumerated in the
Act, while “fences” are not. The second sentence provides that the enumeration is not
exclusive, so if a fence is both obvious and necessary the first sentence applies. The dis-
trict court relied on Brodie v. Riverview, 1996 Mich. App. LEXIS 645 (Nov. 19, 1996),
which, although unpublished, holds that the Act applies to fences. See also Anderson v.
Pine Knob Ski Resort, Inc., 469 Mich. 20, 664 N.W.2d 756 (2003) (applying the Act to a col-
lision with a shack containing timing equipment).
Jakubovsky contends on appeal, as she did in the district court, that the Resort
should have done more to prevent snowboarders from entering the wooded area,
which is closed to skiing and snowboarding; that the Resort should have alerted pa-
trons to the fact that snowboarders were known to use areas closed to skiing; and that
the Resort should have built the fence from a more flexible substance, such as a plastic
net, to reduce the hazards posed by rigid obstacles. The district court’s careful opinion
considers all of these arguments (and some others that we have not mentioned). We af-
firm for substantially the reasons given by the district court.
The Act does not require structures to be designed to reduce the damage caused by
a collision. Jakubovsky’s lawyer conceded at oral argument that lift towers need not be
padded. If a collision with a solid steel tower cannot support liability in tort, neither can
a collision with a wooden fence. Counsel contended that towers are special situations,
because enumerated in the second sentence; yet the Supreme Court of Michigan in An-
derson rejected an argument that the second sentence limits the scope of the first. The
wooden fence was obvious and necessary. The fence in Brodie was plastic netting, which
apparently is not the panacea that plaintiff’s counsel depicts it to be. At all events, un-
der the Act the obvious structures on a ski course need not be the best available. It is
unnecessary to add to what the district court said about Jakubovsky’s other arguments.
AFFIRMED