Mountainside Mystery

by

Heins v. Dust (Michigan)
(Two Individuals Involved in an Incident on the Slopes; Contradictory Versions of Events; Seemingly Exculpatory Evidence for Defendant Not Enough to Decide Case as a Matter of Law)

The sixty-seven year old plaintiff was snow skiing on a mountain run when was involved in a collision. He contended that a snowboarder traveling at a high rate of speed ran into him at the convergence of several skiing runs, causing plaintiff numerous serious injuries. Plaintiff filed a lawsuit against the defendant claiming that he was the speeding snowboader and alleging that the defendant had been coming down a particular ski run. However, the defendant claimed that he was using snow skis and that the plaintiff actually ran into him while defendant was skiing. The defendant presented evidence to show that he had rented skis (and not a snowboard) on the day of the incident, and he offered testimony from a witness that indicated that defendant was coming from a different direction and using a different ski run than described by the plaintiff. Therefore, the defendant filed a motion for summary judgment arguing that plaintiff was suing the wrong person.  There were no other witnesses to the incident itself.

The court highlighted the applicable Michigan skiing statutes which require that “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.” Mich. Comp. Laws § 408.341(1). The statutes also contains an assumption-of-risk provision that provides:

(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 section 6a(e).

(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 or snow-grooming equipment.
Mich. Comp. Laws § 408.342.

According to the statutes a “skier or passenger who violates this act, . . . shall be liable for that portion of the loss resulting from that violation.” Mich. Comp. Laws § 408.344.  In summary, the courts have found that “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 [skiing statutes]. . . .”

The court noted that based upon the plaintiff’s allegations, it appeared that the defendant could be liable to plaintiff for any loss or injury resulting from a violation of the defendant’s duties under skiing statutes not to contribute to the injury of another and not to ski beyond his capabilities.  Despite the evidence presented by defendant to establish that he was not the person that was involved in or caused the incident, the court ruled that the issue of liability should be decided by a jury.

The court explained that the defendant admitted being involved in an incident with another skiier, although the description of the incident varied greatly.  A statement written by defendant was attached to the incident report prepared by the facility on behalf of plaintiff.   Although it was unclear precisely what happened during the incident and who hit whom, it was clear that both plaintiff and defendant admitted to being involved in an accident at the exact same time and in the same location.  There was no evidence in the record that some other skier or snowboarder escaped from the scene following the collision.  The events were more than mere coincidences, and the evidence of a collision was sufficient to withstand the defendant’s motion for summary judgment.  Therefore, the court denied the defendant’s motion.

NOTE: It appeared clear from the record that the plaintiff will have a very hard time proving liability.  The physical evidence (the rental agreement) and the lack of witnesses will be difficult hurdles for the plaintiff to overcome.  The court appeared sympathetic to the defendant’s cause, but there was simply too much in dispute factually for the court to resolve the matter short of a jury determination.

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