Michigan Supreme Court
Lansing, Michigan 48909
_______________________________________________________________________________________
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 16, 2003
ROBERT R. ANDERSON and CHRISTINE M.
ANDERSON, individually and as next
friends of ROBERT C. ANDERSON, a
minor,
Plaintiffs-Appellees,
v No. 121587
PINE KNOB SKI RESORT, INC.,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
This case concerns Michigan’s Ski Area Safety Act (SASA),
MCL 408.321 et seq., and whether a skier’s collision with a
timing shack is a danger that inheres in the sport, precluding
recovery for injuries that result. We conclude that it is
such a danger and that defendant is entitled to judgment as a
matter of law under the SASA.
I. FACTS AND LOWER-COURT ACTIONS
Robert C. Anderson was a member of his high school’s
varsity ski team. On January 5, 1999, he participated in an
interscholastic giant-slalom competition, scheduled at Pine
Knob Ski Resort, Inc. (Pine Knob). While his first run was
uneventful, on his second run, after passing the last gate on
the way to the finish line on the slalom racecourse, he
“caught an edge” as he neared the finish line and lost his
balance. Before he could recover, he collided with the shack
housing the race timing equipment. He suffered lacerations to
his face, arm, and leg and broke several bones and teeth.
Anderson, through his parents as his next friends,
sued, alleging negligence by the resort. Pine Knob
responded by seeking summary disposition on the basis
that it, as a ski-area operator, was immune from
premises-liability claims by recreational skiers, of the
sort here presented, because of the SASA. Pine Knob also
argued that summary disposition was warranted, should it
fall outside the protections of the SASA, under the
common-law doctrine that bars recovery for plaintiffs who
are injured by open and obvious hazards. The trial court
denied defendant’s motion, ruling that these claims fell
2
outside the immunity granted by the SASA and that
questions of fact existed, foreclosing summary
disposition on the common-law premises-liability issue.
On appeal, the Court of Appeals affirmed in an
unpublished opinion per curiam, agreeing that this
circumstance fell outside the SASA. With regard to
defendant’s assertion that the danger was open and
obvious to plaintiff and, thus, the claim was barred on
that common-law basis, the Court of Appeals agreed it was
open and obvious, but held that the bar did not apply
here because the risk of harm was unreasonable.
We granted defendant’s application for leave to
appeal. 467 Mich 897 (2002).
II. STANDARD OF REVIEW
This case concerns a trial court’s decision on a
motion for summary disposition under MCR 2.116(C)(10), as
well as a matter of statutory construction. We are asked
to determine whether a set of circumstances falls within
the scope of MCL 408.342(2). To do this, if the language
of the statute is clear, we simply apply the terms of the
statute to the circumstances of the case. Veenstra v
Washtenaw Country Club, 466 Mich 155, 159-160; 645 NW2d
3
643 (2002). Because this is a matter of law and concerns
a summary-disposition motion under MCR 2.116(C)(10), we
review de novo. Chandler v Muskegon Co, 467 Mich 315,
319; 652 NW2d 224 (2002).
III. ANALYSIS
The Legislature, in 1962, enacted the SASA in an
effort to provide some immunity for ski-area operators
from personal-injury suits by injured skiers. The
statute states:
(1) While in a ski area, each skier shall
do all of the following:
(a) Maintain reasonable control of his or
her speed and course at all times.
(b) Stay clear of snow-grooming vehicles
and equipment in the ski area.
(c) Heed all posted signs and warnings.
(d) Ski only in ski areas which are marked
as open for skiing on the trail board described
in [MCL 408.326a(3)].
(2) 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
4
or snow-grooming equipment. [MCL 408.342.]
As can be seen, this act specified that skiers have the
responsibility to ski under control, as well as to heed
signs and warnings and avoid snow-grooming vehicles and
equipment. Moreover, the act continued that, by skiing,
skiers are held to have accepted certain types of risks
from dangers that inhere in the sport as long as those
dangers are “obvious and necessary.” Id.
In determining if the potential of collision with a
timing shack is a danger inherent in the sport and, if it
is, whether it was a danger that was obvious and
necessary, we must study the structure of the statute and
the language employed by the legislators in MCL
408.342(2).
This subsection identifies two types of dangers
inherent in the sport. The first can usefully be
described as natural hazards and the second as unnatural
hazards. The natural hazards to which the act refers
without limit are “variations in terrain; surface or
subsurface snow or ice conditions; bare spots; rocks,
trees, and other forms of natural growth or debris
. . . .” MCL 408.342(2). The unnatural hazards include
5
“collisions with ski lift towers and their components,
with other skiers, or with properly marked or plainly
visible snow-making or snow-grooming equipment.” MCL
408.342(2). For both types of hazards, the examples are
clearly only examples because the Legislature
specifically has indicated that the covered dangers are
not limited to those expressly described. The examples
are employed to give the reader guidance about what other
risks are held to be assumed by the skier. We undertake
this analysis by determining what is common to the
examples. This exercise is what legal scholars describe
as discerning meaning by use of the doctrine of ejusdem
generis, 1 and leads us to conclude that the commonality
in the hazards is that they all inhere in the sport of
skiing and, as long as they are obvious and necessary to
the sport, there is immunity from suit.
With that understood about the statute and its
proper construction, we turn to whether the timing shack
was within the dangers assumed by plaintiff as he engaged
1
“Under the doctrine of ejusdem generis, general
terms are interpreted to include only items that are ‘of
the same kind, class, character, or nature as those
specifically enumerated.” LeRoux v Secretary of State,
465 Mich 594, 624; 640 NW2d 849 (2002)(citation omitted).
6
in ski racing at Pine Knob.
There is no disputed issue of fact in this matter
that in ski racing, timing, as it determines who is the
winner, is necessary. Moreover, there is no dispute that
for the timing equipment to function, it is necessary
that it be protected from the elements. This protection
was afforded by the shack that all also agree was obvious
in its placement at the end of the run. We have then a
hazard of the same sort as the ski towers and snow-making
and grooming machines to which the statute refers us. As
with the towers and equipment, this hazard inheres in the
sport of skiing. The placement of the timing shack is
thus a danger that skiers such as Anderson are held to
have accepted as a matter of law.
In adopting this approach, we reject the argument of
the plaintiff, which was adopted by the Court of Appeals,
that, while some sort of protection of the timing
equipment may have been required, the shack was larger
and more unforgiving than other imaginable, alternative
timing-equipment protection might have been. We find
nothing in the language of the statute that allows us to
consider factors of this sort. Once hazards fall within
7
the covered category, only if they are unnecessary or not
obvious is the ski operator liable.
To adopt the standard plaintiff urges would deprive
the statute of the certainty the Legislature wished to
create concerning liability risks. Under plaintiff’s
standard, after any accident, rather than immunity should
suit be brought, the ski-area operator would be engaged
in the same inquiry that would have been undertaken if
there had been no statute ever enacted. This would mean
that, in a given case, decisions regarding the
reasonableness of the placement of lift towers or snow
groomers, for example, would be placed before a jury or
judicial fact-finder. Yet it is just this process that
the grant of immunity was designed to obviate. In short,
the Legislature has indicated that matters of this sort
are to be removed from the common-law arena, and it
simply falls to us to enforce the statute as written.
This we have done.
Finally, as this matter is fully resolved by
reference to the SASA, we need not consider whether
defendant retains a duty under common-law premises
8
liability. 2 In accord with this, the remaining portions
of the judgment of the Court of Appeals that addressed
this issue are vacated.
IV. RESPONSE TO DISSENTS
The dissents would go even further in this matter
than plaintiff has urged, advancing the remarkable
proposition that this statute should be read to create a
test for tort liability, which can be properly
characterized as: Could this accident have been avoided
if the shack were in a different place than it was? If
so, defendant loses.
We believe that this new proposed standard is a most
ill-advised direction for the law to take in this case,
or in virtually any other case that does not concern
strict liability. The reason is that it can be predicted
with one hundred percent certainty that the answer to the
dissents’ question in this case, and any other case where
such a standard would be applied, is: Of course, if the
2
Justice Weaver, in her dissent, has discussed
common-law premises-liability doctrines, in particular
the “open and obvious” doctrine, and feels this case
turns on the application of them to these facts. This
whole approach is off-target because the common law no
longer controls once the Legislature enacts statutes that
preempt it. Const 1963, art 3, § 7. That has happened
here.
9
shack were somewhere else, plaintiff would not have hit
it. The problem this standard creates is that it fails
to recognize that no accident, be it a skiing accident,
a car accident, or an airplane crash, is unavoidable.
After all, if the defendant had not opened the ski area
that day, or, to deal with our examples, the driver had
not driven his car or the pilot had not taken off, then
there would have been no accident. Alas, however,
defendant, having opened the ski area, or ventured to
drive or fly, is liable. Let us be clear, what the
dissent proposes is nothing less than an abandonment of
common-law liability rules and the imposition of strict
liability on any occasion there is an accident.
When one reflects on the roots of tort law in this
country, it is clear that our legal forebears spurned
such a “hindsight” test and, instead, adopted a
foreseeability test for determining tort liability. See
the venerable Palsgraf v Long Island R Co, 248 NY 339;
162 NE 99 (1928), a case that every law student since
1928 has studied, and countless hornbooks and cases too
numerous to require citation, where this is made clear.
Said plainly, the common-law test for tort liability is
10
not a “could-it-have-been-avoided” test, rather, it is a
“was-this-foreseeable-to-a-reasonable-person-in-this
defendant’s-position” standard. Before today, none would
have contested that there were no assertions to the
contrary in our case law. No longer can that be said.
That the dissents would propose to abandon the
foreseeability test and adopt the hindsight test is
startling enough, but it is even more strange to do so
here where we have a statute that was designed not only
to preclude strict liability for ski operators, but also
to preclude some doctrines of traditional, common-law
liability in these areas. Nevertheless, were the dissent
the majority, that is not what would take place. To be
understood then is that the dissents invite us to join
them in transmogrifying our law and this statute by
converting both into vehicles imposing strict liability
on defendants. We decline most adamantly to do so.
To deal with the beneficiaries of this statute
briefly, one can only imagine their dismay, were the
dissents the law, when all along they no doubt thought
they were being protected by this legislation to then
learn not only that they were not being protected, but
11
also that they would be in the unenviable position of not
even having the defense that the accident for which they
are being sued was not foreseeable. Their dismay would
be justified.
In sum, the dissents are wrong as a general matter
with regard to how liability is determined, and they are
particularly wrong with regard to ski-area operators who
are protected by the statute here under consideration
that the Legislature enacted with the clear goal of
advantaging, not disadvantaging, ski-area operators in
tort litigation with skiers.
V. CONCLUSION
Plaintiff’s claims should have been barred as a
matter of law. The risk of this collision was accepted
by plaintiff and thus his claim is barred under the SASA.
We reverse the judgment of the Court of Appeals. This
case is remanded to the circuit court for proceedings
consistent with this decision.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
12
S T A T E O F M I C H I G A N
SUPREME COURT
ROBERT R. ANDERSON and CHRISTINE M.
ANDERSON, individually and as next
friends of ROBERT C. ANDERSON, a
minor,
Plaintiffs-Appellees,
v No. 121587
PINE KNOB SKI RESORT, INC.,
Defendant-Appellant.
___________________________________
CAVANAGH, J. (dissenting).
I respectfully disagree with the majority’s conclusion
that plaintiff Robert C. Anderson’s collision with a timing
shack is a danger that inheres in the sport and recovery is
precluded under Michigan’s Ski Area Safety Act, MCL 408.321 et
seq. I believe a question of fact remains whether the danger
of plaintiff’s collision with the timing shack was obvious and
necessary, thus making summary disposition inappropriate.
Because I would affirm the decisions of the Court of Appeals
and the trial court denying defendant summary disposition, I
must dissent.
I. STANDARD OF REVIEW
We review de novo decisions on motions for summary
disposition. Spiek v Dep’t of Transportation, 456 Mich 331,
337; 572 NW2d 201 (1998). Likewise, we review de novo matters
of statutory interpretation. Cardinal Mooney High School v
Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d
21 (1991).
II. ANALYSIS
A. Ski Area Safety Act
This case concerns Michigan’s Ski Area Safety Act (SASA),
MCL 408.321 et seq., particularly MCL 408.342(2), which
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 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.
The majority properly characterizes the two types of
dangers inherent in the sport, as provided by the statute, as
natural hazards and unnatural hazards. MCL 408.342(2) gives
as examples the following unnatural hazards: “collisions with
ski lift towers and their components, with other skiers, or
with properly marked or plainly visible snow-making or snow
grooming equipment.” However, such hazards must be “obvious
and necessary” before a ski operator may be protected by the
2
statute.
In this case, we must determine whether the timing
equipment, including the shack in which the equipment was
housed, is a danger inherent in the sport, and whether the
danger is obvious and necessary. As the statute expressly
states, it is the danger that must inhere in the sport.
Timing the race itself is not the danger to be considered; the
timing equipment is the danger; thus, the equipment must be
the inherent danger before we can continue the inquiry posed
by the statute.
It is not disputed that timing and equipment are
necessary in ski racing. Nor is it disputed that timing
equipment must be protected from the elements. However, it
does not follow that a timing shack is necessary, or that the
placement of the timing shack in this case, near the finish
line of the race course at the bottom of the hill, was
“obvious and necessary,” as required by MCL 408.342(2).
Therefore, I disagree with the majority that the placement of
the timing shack is a danger skiers are held to accept as a
matter of law.
Further, the unnatural hazards in the statute are not
described as particular items, but collisions with the
particular items. (E.g., “collisions with ski lift towers and
their components, with other skiers, or with properly marked
3
or plainly visible snow-making or snow-grooming equipment”).
Therefore, we must focus on the collision with the timing
shack, not just the timing shack itself. “Location, location,
location!” Contrary to the majority’s analysis, location must
be a factor because it relates to whether the danger of
collision is necessary.
MCL 408.342(2) does not simply read that dangers that
inhere in the sport are ones for which skiers assume the risk.
The dangers must also be obvious and necessary. If the timing
equipment can be located in a way that poses no danger of
collision, such as at the top of the hill as it is now, then
the danger posed by the timing shack is not “necessary” as
required by MCL 408.342(2).
The inquiry is whether plaintiff assumed the risk and
accepted the danger of colliding with this particular timing
shack. We must examine the necessity of the shack itself, as
well as the necessity of the location.
The majority accuses me of misconstruing the SASA and
creating a strict-liability test for ski-area operators.
Quite the contrary, it is the majority that overzealously
misconstrues the SASA in favor of ski-area operators by
skimming over the “obvious and necessary” requirement imposed
by the Legislature. I cannot agree with the majority that
simply because timing equipment is necessary, as is protection
4
for such equipment, that plaintiff’s collision with the timing
shack was “necessary.” That the timing shack is a hazard
that inheres in the sport and is of the same type as ski
towers and snow-making machines does not mandate the
conclusion that plaintiff accepted the risk of colliding with
the timing shack as a matter of law.
I respectfully disagree with the majority’s
recharacterization of the question I pose in this case, ante
at 9. I would ask, as the statute requires, whether the
collision with the timing shack was necessary. Because there
was testimony from which a jury could find that plaintiff’s
collision with the timing shack was not necessary, summary
disposition is inappropriate.
Ultimately, in its response to my dissent, the majority
misses the point with its discussion of foreseeability.1 My
focus is on the language of MCL 408.342(2). Because the
statute requires the danger to be inherent as well as obvious
and necessary, and because there remains a question of fact
with respect to the necessity of this timing shack and its
1
With regard to the majority’s recitation of Palsgraf
v Long Island R Co, 248 NY 339; 162 NE 99 (1928), I
assure my colleagues that I am familiar with Palsgraf and
do not wish to engage in any type of hindsight analysis.
Instead of debating the doctrines of tort law, I simply
attempt to apply the statute at issue.
5
location, summary disposition for defendant is inappropriate
at this time. The trial court properly denied defendant’s
motion, and this Court should not disturb that ruling.
B. Motion for summary disposition
In reviewing a motion for summary disposition brought
under MCR 2.116(C)(10), a trial court considers affidavits,
pleadings, depositions, admissions, and documentary evidence
filed in the action or submitted by the parties. MCR
2.116(G)(5). Quinto v Cross & Peters Co, 451 Mich 358, 362;
547 NW2d 314 (1996). Such evidence is viewed in a light most
favorable to the party opposing the motion—in this case,
plaintiffs. Id. A trial court may grant a motion for summary
disposition only when the affidavits or other documentary
evidence show that there is no genuine issue regarding any
material fact. Id.
In this case, there remains a genuine issue of material
fact—whether the location of the timing shack, or even the
timing shack itself, was necessary. I would not decide this
issue as a matter of law as the majority does; rather, I would
put it in the hands of the trier of fact.
There is deposition testimony in this case that it was
unnecessary to place the timing shack at the bottom of the
hill near the finish line. In fact, there is testimony that
a shack was not necessary to house the timing equipment.
6
Robert Shick, Pine Knob’s general manager, admitted it
was unnecessary to place the timing shack so close to the
finish line for ski races. He testified that he had seen race
courses at several other ski resorts and had seen the timing
shack placed at the top of the ski hill. Mr. Shick further
admitted that a timing shack could be placed anywhere, it does
not have to be near the finish line. Additionally, Mr. Shick
testified that “reflecting upon this accident,” Pine Knob
reshaped the racing area and moved the timing shack further
away from the finish line.
Further, three coaches who were present on the day of the
accident testified that the timing shack could have been
anywhere. Daniel Costigan, a ski coach for Detroit Country
Day, testified that during the season after plaintiff’s
injury, the timing shack was on the top of the hill, off the
skiing surface. Coach Costigan also testified that there was
no need for a timing shack at the bottom of the hill. Coach
Joseph Kosik testified at his deposition that there was
flexibility in regards to the location of the timing shack.
Finally, Coach Earl Rosengren testified at his deposition that
the timing shack was moved after plaintiff’s accident, even
though it houses the same timing equipment it did at the time
of the accident. Coach Rosengren also stated that there does
not need to be an actual shack in which to house timing
7
equipment.
The testimony of these four individuals clearly presents
a genuine issue of material fact—whether the timing shack at
the bottom of the hill, or even the shack itself, was
necessary, as required by MCL 408.342(2) before declaring that
plaintiff assumed this danger. Thus, summary disposition is
inappropriate.
III . CONCLUSION
I would hold that plaintiff is not precluded from
recovery as a matter of law. Rather, a genuine issue of
material fact remains whether the danger of plaintiff’s
collision with the timing shack was obvious and necessary.
Because there is evidence that the location of the timing
shack, and even the shack itself, was not necessary, plaintiff
should not be precluded from recovery under the SASA. I would
affirm the decisions of the Court of Appeals and the trial
court.
Michael F. Cavanagh
Marilyn Kelly
8
S T A T E O F M I C H I G A N
SUPREME COURT
ROBERT R. ANDERSON and CHRISTINE M.
ANDERSON, individually and as next
friends of ROBERT C. ANDERSON, a minor,
Plaintiffs-Appellees,
v No. 121587
PINE KNOB SKI RESORT, INC.,
Defendant-Appellant.
____________________________________
WEAVER, J. (dissenting).
I dissent from the majority’s conclusion that plaintiff’s
collision with a timing shack at the end of ski racecourse is
a danger that inheres in the sport of skiing, thus precluding
recovery for plaintiff’s resulting injuries under Michigan's
Ski Area Safety Act (SASA), MCL 408.321 et seq. I would
affirm the Court of Appeals decision that the SASA does not
operate to bar plaintiff’s negligence claim.
Further, I would conclude under Lugo v Ameritech Corp,
Inc, 464 Mich 512; 629 NW2d 384 (2001), that there is a
question of fact regarding whether the location of the shack
created an unreasonable risk of severe harm despite the
danger’s open and obvious nature. Therefore, I would also
affirm the Court of Appeals decision that the circuit court
properly denied defendant’s motion for summary disposition
pursuant to the common-law open-and-obvious-dangers doctrine.
MCL 408.342(2) 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 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.
It is undisputed that the timing shack was obvious. Plaintiff
testified that he knew it was there. The question under the
statute is whether the timing shack was a necessary danger.1
1
The circuit court concluded that there was a genuine
issue of material fact regarding whether the placement of
the shack was necessary under MCL 408.342(2) stating:
However, you have, really, two things, both
the placement of the shack and the necessity of
the shack. And the parties are disputing
whether the shack was necessary. Defendant
says it was because the plaintiffs’ minor was
participating in a race. Plaintiffs argue that
a timing shack is not one of the dangers set
forth in the Act. Also, the shack could have
been placed anywhere.
So, as I say, it’s placement and, you know,
necessity. You might need a timing shack for a
trial, to time the runs. But where are you
going to put it?
2
The location of the shack is relevant to the question of
the necessity of the danger posed because the statute reads
that the dangers inherent in the sport of skiing include, not
just the hazards themselves, but the danger of "injuries which
can result from . . . collisions with" such hazards. MCL
408.342(2). This language makes the placement of the shack
relevant when considering the necessity of dangers that are
not expressly enumerated in the statute.
The deposition testimony, including that of plaintiff's
coach and defendant's general manager, reveals that the
placement of the shack approximately eight to twenty feet from
the finish line was not necessary. Testimony revealed that
the shack was portable and that it could be located at other
places on the hill, including at the top of the course.
Nevertheless, the majority concludes as a matter of law
that the placement of the shack is a danger that inheres in
the sport of skiing, because the timing equipment required
protection from the elements. While I agree that timing
equipment is necessary to ski racing, I do not agree as the
majority implies that the danger of collision posed by the
placement of a portable timing shack is analogous to the
danger of collision posed by ski lift towers and snow-making
and grooming equipment.
Ski lift towers are required to carry skiers up the hill
3
and snow-making and grooming equipment must be placed where
snow and snow grooming is needed.2 The placement of equipment
related to these functions is a matter of necessity. By
contrast, it was undisputed that the timing shack could be
located anywhere on the hill. Therefore, I dissent from the
majority’s conclusion that the timing shack in this case
constitutes a necessary hazard under the SASA and would hold
that the plaintiff’s negligence claim is not barred as a
matter of law by this statute.
For this reason, it is necessary to address whether
plaintiff’s negligence claim is barred by the common-law,
premises-liability doctrine of open and obvious dangers. Any
assertion that the common law of premises liability has no
application following the enactment of the SASA is unfounded.
The common law of premises liability remains “in force” at ski
areas under Const 1963, art 3, § 7 because the SASA is not a
strict-liability statute and because the SASA does not
insulate ski areas from all potential liability.3 The statute
states that a skier assumes the risk of collision with dangers
that inhere in the sport of skiing “insofar as the dangers are
obvious and necessary.” MCL 408.342(2). Where, as here, a
2
The statute requires that snow-making and snow
grooming equipment be “properly marked.”
3
In other words, the SASA limits liability, but it
does not eliminate liability.
4
danger does not inhere in the sport of skiing because it is
not necessary under MCL 408.342(2), the next inquiry is
whether there is a duty at common law.4
In Lugo, supra at 517, a majority of this Court addressed
when a possessor of a premises is required to protect invitees
from open and obvious dangers concluding that
with regard to open and obvious dangers, the
critical question is whether there is evidence that
creates a genuine issue of material fact regarding
whether there are truly “special aspects” of the
open and obvious condition that differentiate the
risk from typical open and obvious risks so as to
create an unreasonable risk of harm, i.e., whether
the “special aspect” of a condition should prevail
in imposing liability upon the defendant or the
openness and obviousness of the condition should
prevail in barring liability.
The Lugo majority explained further that “only those special
aspects that give rise to a uniquely high likelihood of harm
or severity of harm if the risk is not avoided will serve to
4
Certainly, a majority of this Court is at liberty to
change the common law regarding open and obvious dangers
should it be moved to do so. Gruskin v Fisher, 405 Mich
51, 66; 273 NW2d 893 (1979). The Legislature, on the
other hand, is at liberty to enact a statute of more
limited liability. See, e.g., Colo Rev Stat 33-44
107(8)(c) (“Under Colorado law, a skier assumes the risk
of any injury to person or property resulting from any of
the inherent dangers and risks of skiing and may not
recover from any ski area operator for any injury
resulting from any of the inherent dangers and risks of
skiing, including: Changing weather conditions; existing
and changing snow conditions; bare spots; rocks; stumps;
trees; collisions with natural objects, man-made objects,
or other skiers; variations in terrain; and the failure
of skiers to ski within their own abilities.”)
5
remove that condition from the open and obvious danger
doctrine.” Lugo, supra at 519.5
The defendant's general manager testified that he had
considered the potential of injury from a collision with the
timing shack and that the padding protecting the front of the
shack was intended to prevent injury. Other parts of the
shack, including the corners, however, were not padded. There
was also evidence that the plaintiff "caught an edge" and that
"catching an edge" can happen at any time, even to experienced
skiers, requiring adequate distance to regain control.
Under Lugo’s articulation of the open-and-obvious
doctrine, it must be determined whether the timing shack
created a uniquely high likelihood of harm or of severe harm
to a ski racer. In my view, the placement of the timing shack
in close proximity to the finish line of a giant slalom
racecourse, at the point when a racer’s momentum and
exhaustion peak, raises a question of fact regarding whether
the location of the timing shack created a uniquely high
likelihood of severe harm. Ski racing demands speed. Speed
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I concurred only in the result in Lugo and wrote
separately because I believed, as I continue to believe,
that the Lugo majority introduced a new consideration in
the determination whether a defect is unreasonably
dangerous despite its obviousness, that being whether a
defect created the “unreasonable risk of severe harm.”
Lugo, supra at 544 (opinion by W EAVER, J.).
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carries with it increased risks, including the increased risk
of collision. Under Lugo, the location of the timing shack is
the “special aspect” that creates a question of fact regarding
whether risk of severe harm was unreasonable despite the
obviousness of the timing shack.
For these reasons, I would affirm the Court of Appeals
decision that defendant’s motion for summary disposition was
properly denied by the circuit court.
Elizabeth A. Weaver
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