Robert Scott Swanson v. Bittersweet Ski Resort Inc ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ROBERT SCOTT SWANSON and BONNIE FOR PUBLICATION
SWANSON, August 29, 2024
9:00 a.m.
Plaintiffs-Appellants,
v No. 366258
Allegan Circuit Court
BITTERSWEET SKI RESORT, INC., and LC No. 2022-065127-NO
CHRISTINA REGALADO,
Defendants-Appellees.
Before: PATEL, P.J., and RICK and FEENEY, JJ.
PER CURIAM.
Plaintiffs appeal as of right an order granting summary disposition to defendants under
MCR 2.116(C)(8) and (C)(10). We reverse and remand for further proceedings.
I. FACTUAL BACKGROUND
This action arises out of injuries sustained by plaintiff Robert Swanson on February 9,
2019, at Bittersweet Ski Resort in Otsego, Michigan. Robert was working as a volunteer ski
patroller at the resort. At approximately 3:30 p.m. that day, Robert boarded a ski lift to go back to
the top of the ski hill. He was carrying a toboggan, which needed to be hooked to the ski lift for
transport. Usually, a toboggan would be hooked to the bottom of the ski lift seat so that it was
“directly in line with the chair.” On the day in question, defendant Christina Regalado was
operating the ski lift that Robert was using. According to Robert, Christina directed him to
approach the chair on an angle and took the toboggan from him, pulling it in front of the moving
chair. She pulled the toboggan in front of the advancing chair at an angle not in line with the
direction of travel of the chair, then shifted it so it was in line with the chair over the top of Robert’s
right ski. Robert was forced to grab the toboggan, which weighed approximately 70 to 80 pounds,
and hook it to the chair while the lift was in motion.
As the ski lift left the loading platform and rose into the air, Robert’s ski was still trapped
by the toboggan. Robert’s right ski snagged on an unidentified object—possibly snow or ice—
causing his leg to twist under the toboggan. Robert began yelling for Christina to stop the lift.
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Robert flipped off the back of the chair and was hanging onto it with his right arm as it moved
forward. According to Robert, Christina did not notice him or stop the lift. Christina testified in
her own deposition that she had approximately seven seconds to load each chair and could not
continue watching Robert because she was already moving on to load the next chair. She further
testified that before the ski lift moved off the loading platform, she asked Robert “if he was good,”
and stated that he gave her a thumbs up and said that he was fine. She did not see him struggle
with the toboggan after leaving the loading platform. Robert lost his grip and fell approximately
20 feet to the ground. Robert was injured in the fall and was transported to a local hospital by
ambulance for treatment.
Robert and his wife, plaintiff Bonnie Swanson, subsequently filed a complaint against
Bittersweet and Christina. Under Count I of the complaint, plaintiffs alleged that defendants
violated the Ski Area Safety Act of 1962 (SASA), MCL 408.321 et seq. Plaintiffs argued
defendants violated the SASA by changing the standard operating procedure for loading toboggans
onto ski lifts with no warning, which ultimately resulted in Robert’s injuries. Under Count II,
plaintiffs alleged that defendants were negligent and breached the duty of ordinary care owed to
skiers and ski patrollers. Under Count III of the complaint, plaintiffs made a premises liability
claim against defendants, arguing that defendants had a duty to keep the premises in safe condition,
as well as to protect and warn skiers of any dangerous defects on the premises, and that they
breached those duties by loading Robert and his toboggan onto a ski lift using a different operating
procedure without warning him of the danger inherent in doing so. Under Count IV, plaintiffs
alleged defendants were grossly negligent and breached the duty of care owed to Robert by
implementing a dangerous alternative procedure for loading ski lifts without warning or training
skiers about the change. Finally, Bonnie alleged a loss of consortium as a result of the injuries
Robert sustained after falling off the lift.
Defendants filed an answer to plaintiffs’ complaint and generally denied liability. Along
with the answer, defendants filed a number of affirmative defenses. Relevant to this appeal,
defendants contended that plaintiffs’ claims were barred by the SASA. Defendants also contended
that plaintiffs’ claims were barred because Robert signed a form that expressly released defendants
from liability for any of plaintiffs’ injuries.
Defendants later moved for summary disposition under MCR 2.116(C)(7) (claim barred by
operation of law), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact).
In a brief in support of the motion, defendants argued that plaintiffs’ claims were barred because
Robert signed a release form in which he accepted all of the risks inherent in downhill skiing and
absolved defendants of any liability for his injuries. Defendants further argued that plaintiffs’
claims were barred by the SASA, which holds ski resorts harmless for injuries sustained as a result
of the dangers inherent to skiing. Defendants noted that under Kent v Alpine Valley Ski Area, 240
Mich App 731, 733, 735; 613 NW2d 383 (2000), this Court found that the SASA barred a claim
for negligence brought by a plaintiff who was injured while trying to board a ski lift. Defendants
contended that Kent was directly on point, and conclusively proved that plaintiffs’ claims were
barred by the SASA. Defendants went on to argue that plaintiffs failed to show that defendants
violated any of the duties required of ski lift operators under the SASA, and that the ski lift itself
was inspected and approved by the State of Michigan just three weeks before Robert was injured.
Accordingly, defendants asked the trial court to grant their motion for summary disposition and
dismiss plaintiffs’ claims in their entirety.
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In response to defendants’ motion for summary disposition, plaintiffs argued that under the
plain language of the SASA, a ski lift operator’s negligent operation of a ski lift is not a danger
inherent to the sport of skiing, which would ordinarily preclude liability from attaching to a ski
resort operator under the law. They further contended that even if the SASA did apply, the specific
injury at issue was not one that was “obvious and necessary” to the sport of skiing. Plaintiffs also
argued that the release did not apply to volunteer ski patrollers like Robert, but rather generally
absolved the resort of liability for injuries sustained by individuals engaged in skiing for
recreational purposes. However, even if the release did apply to volunteer ski patrollers, plaintiffs
argued that it was against public policy and therefore unenforceable. Plaintiffs explained that
Robert had to sign the release in order to work as a volunteer ski patroller at the resort. In
exchange, he got free season passes for his family to ski at the resort, and was permitted to serve
as a ski patroller. Plaintiffs argued that it would be against public policy to hold defendants
harmless for Robert’s injuries because it would likely deter other volunteer ski patrollers from
donating their time to ensure the safety of those skiing for recreational purposes. Plaintiffs asked
the court to deny defendants’ motion for summary disposition.
At a hearing on the motion, the trial court elected to grant summary disposition to
defendants. It reasoned that the SASA barred plaintiffs’ claims because the operation of a ski lift
is a covered activity under the SASA. The court did not accept plaintiffs’ argument that Robert
was exempt from the SASA because he was not engaged in skiing for recreation while serving as
a volunteer ski patroller:
The argument regarding that the Plaintiff was not involved in the act of
skiing, I appreciate that he was working as a ski patroller and that that doesn’t mean
he was [a] downhill skier, but based upon my understanding of the facts, the duties
of a ski patroller include engaging in downhill skiing to perform his duties, so that
argument doesn’t carry weight with me and that also applies to the argument
[stating] the release is not applicable because there was not skiing involved.
The trial court further found that the release barred plaintiffs’ claims. The court noted that
along with serving as a volunteer ski patroller, plaintiff received a free season pass to ski at the
resort in exchange for signing the release, and that the document did not include any separate
provisions exempting volunteer ski patrollers from the general release of liability. Additionally,
the trial court concluded that the release did not violate public policy, noting that it was bound to
follow this Court’s ruling in Skotak v Vic Tanny Int’l, Inc, 203 Mich App 616; 513 NW2d 428(1994). The Court went on to explain:
[I]t is not unreasonable for someone in the Defendants’ position to say, I will give
you the chance to [ski], but you can’t sue me if you are going to engage in the
activity on my property and I think that was bargained for. The ski patrollers also
get the enjoyment of engaging in skiing while they—they work and at the end of
the day it was a choice that was made by the Plaintiff to sign the release and engaged
in the activity of a ski patroller, which in my opinion does include downhill skiing.
The trial court subsequently entered an order granting defendants’ motion for summary
disposition under MCR 2.116(C)(8) and (C)(10). This appeal followed.
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II. STANDARD OF REVIEW
“This Court reviews de novo the grant or denial of a motion for summary disposition to
determine if the moving party is entitled to judgment as a matter of law.” Lowrey v LMPS &
LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). To the extent that this case involves questions
of law, including questions of statutory interpretation, we also review such matters de novo. Milot
v Dep’t of Transp, 318 Mich App 272, 276; 897 NW2d 248 (2016). Questions regarding the proper
interpretation of contracts, such as the release at issue in this case, are also reviewed de novo.
Wilkie v Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003).
A motion under MCR 2.116(C)(8) “tests the legal sufficiency of the complaint solely on
the basis of the pleadings.” Dalley v Dykema Gossett, 287 Mich App 296, 304; 788 NW2d 679(2010). Summary disposition is warranted when the complaint “failed to state a claim on which
relief can be granted.” MCR 2.116(C)(8). When considering a motion under subrule (C)(8), this
Court “accepts all well-pleaded factual allegations as true and construes them in the light most
favorable to the nonmoving party.” Dalley, 287 Mich App at 304-305.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of a plaintiff’s claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665(2019). When reviewing the trial court’s decision to grant or deny summary disposition under
MCR 2.116(C)(10), this Court considers the parties’ documentary evidence in the light most
favorable to the party opposing the motion. Johnson v Vanderkooi, 502 Mich 751, 761; 918 NW2d
785 (2018) (quotation marks and citation omitted). A motion brought under subrule (C)(10) is
properly granted when there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. El-Khalil, 504 Mich at 160. “A genuine issue of material fact
exists when the record leaves open an issue upon which reasonable minds might differ.” Johnson,
502 Mich at 761.
III. ANALYSIS
Plaintiffs argue that the trial court erred by granting summary disposition to defendants.
We agree.
A. LIABILITY UNDER THE SASA
Plaintiffs first contend that the trial court erred by finding that the SASA barred their
claims. They instead argue that the SASA does not apply to the claims at issue because Robert
was not “participating” in the “sport of skiing,” within the meaning of MCL 408.342(2) while he
was working in his capacity as a volunteer ski patroller. We agree.
In addition to establishing duties of care, the SASA provides that skiers and
snowboarders assume a risk of injury arising from certain dangers that inhere in the
sport: (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
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components, with other skiers, or with properly marked or plainly visible snow-
making or snow-grooming equipment. [MCL 408.342(2).]
When interpreting the language of a statute, our primary goal is to give effect to the intent
of the Legislature. South Dearborn Environmental Improvement Ass’n, Inc v Dep’t of
Environmental Quality, 502 Mich 349, 360-361; 917 NW2d 603 (2018). To do so, we begin with
the plain language of the statute itself. Id. If the language of a statute is unambiguous, it must be
enforced as written. Scugoza v Metro Direct Prop & Cas Ins Co, 316 Mich App 218, 223; 891
NW2d 274 (2016). Statutes must be read as a whole, “giving effect to every word, phrase, and
clause.” Perkovic v Zurich Ins Co, 500 Mich 44, 49; 893 NW2d 322 (2017).
The SASA was enacted “to provide for the safety of skiers, spectators, and the public using
ski areas; to provide for certain presumptions relative to liability for an injury or damage sustained
by skiers;” and “to provide for liability for damages which result from a violation of this act[.]”
1962 PA 199. In Schmitz v Cannonsburg Skiing Corp, 170 Mich App 692, 695; 428 NW2d 742(1988), this Court, quoting Senate Legislative Analysis, SB 49 (April 17, 1981), observed:
By clearly defining the extent to which skiers and ski area operators are liable for
damages and injuries sustained in skiing accidents, the bill would help reduce the
number of lawsuits in which skiers recover large sums of money for injuries that
are primarily their own fault. This, in turn, should stabilize the constantly
increasing insurance costs for ski area operators, which have been passed on to
skiing enthusiasts through price hikes for ski lift tickets, rental equipment, waxing
services, etc.
Thus, it is clear that the SASA was designed to prevent ski area operators from incurring liability
for injuries sustained by skiers in skiing accidents. This appeared especially important to the
Legislature because skiing, like all sports, possesses some inherent dangers. The Legislature
wanted to ensure that ski area operators could continue functioning without having to worry about
excessive lawsuits for ski-related injuries.
As relevant to this appeal, the SASA defines “skier” as:
[A] person wearing skis or utilizing a device that attaches to at least 1 foot or the
lower torso for the purpose of sliding on a slope. The device slides on the snow or
other surface of a slope and is capable of being maneuvered and controlled by the
person using the device. Skier includes a person not wearing skis or a skiing device
while the person is in a ski area for the purpose of skiing. [MCL 408.322(g).]
Although “skier” is defined in the statute, the phrase “participates in the sport of skiing” stated in
MCL 408.342(2) is not, and plaintiffs suggest that “sport” in that provision gives the activity a
specific meaning. Although “skiing” is not directly defined, we find that the description of skiing
in MCL 408.322(g) within the definition of “skier” provides a statutory definition: “device slides
on the snow or other surface of a slope and is capable of being maneuvered and controlled by the
person using the device.” Thus, skiing involves a skier on a device that slides on the snow or other
surface of the slope that is capable of being maneuvered and controlled by the skier.
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But not everyone who is a “skier” or who is “skiing” necessarily “participates in the sport
of skiing.” A “sport,” in the context of an activity like skiing, is commonly understood to be a
recreational or competitive physical endeavor. Common examples of sports include football,
soccer, kayaking, and, yes, skiing. Each of these activities can be engaged in for recreation or for
competition. People who engage in these activities are considered participants. But individuals
who are charged with moderating or teaching the activities, such as coaches and referees, are not
considered participants. They are not participating in the sport, they are enabling and supporting
the participants. Skiers can “participate” in the “sport of skiing” by engaging in recreational
activity, such as a weekend on the slopes, or they can do so by competing in competitions involving
skiing, such as in the Olympics.
Considering the plain meaning of the phrase “participates in the sport of skiing,” we agree
with plaintiffs that under MCL 408.342(2), Robert was not participating in the sport of skiing when
he was injured on the ski lift. At that time, he was working in his capacity as a volunteer ski
patroller and taking a toboggan—an item used to help him do the job—back up the ski hill. While
Robert’s duties involved instructing, assisting, and facilitating skiers to engage in and participate
in the sport, he himself was not a participant. He thus did not belong to the class of plaintiffs
whose personal injury claims the Legislature sought to prevent by enacting the SASA.
Accordingly, the SASA does not apply to bar his claims.
Even if the SASA applied to Robert, however, it would not apply to bar plaintiffs’ claim.
The SASA imposes specific obligations on ski operators concerning the safe operation of ski lifts.
MCL 408.326 directs the Ski Area Safety Board (SASB) to “promulgate rules for the safe . . . use
[and] operation . . . of all ski areas and ski lifts as the board finds necessary for protection of the
general public while using ski areas and ski lifts.” In keeping with this legislative mandate, the
SASB promulgated Mich Admin Code, R 408.65, which provides, “A person shall construct,
install, and operate a ski lift as prescribed in ANSI [American National Standards Institute]
standards B77.1-2017 entitled ‘American National Standard for Passenger Ropeways—Aerial
Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors—Safety Standard,’ which is adopted
by reference in these rules.” The applicable ANSI standards1 regarding lift operator and attendant
obligations provide guidance as to their respective duties. For example, 3.3.2.1 “Personnel and
supervision” provides that “aerial lifts shall be operated by trained personnel, and the owner shall
be responsible for their supervision and the training to perform the duties listed in 3.3.2.3.”
Further, 3.3.2.3 “Duties of operating personnel” provides that “[a]ll personnel shall use reasonable
care while performing their duties.” Specific to operators, the duty to use reasonable care extends
to “assist in evacuation of the lift.” 3.3.2.3.2(j). Lift attendants have a duty:
to monitor the passengers’ use of the aerial lift; including observing, advising and
assisting them while they are in the attendant’s work area as they embark on or
disembark from the aerial lift; and to respond to unusual occurrences or conditions,
1
Although the applicable ANSI standards were not cited by either of the parties, we nonetheless
consider them in our de novo review because they are the governing law adopted by legislative
mandate, promulgated by the SASB.
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as noted. The attendant should respond by choosing an appropriate action, which
may include any of the following[:]
1 ) assisting the passenger;
2) slowing the aerial lift (if applicable);
3) stopping the aerial lift;
4) continuing operation and observation. [3.3.2.3.3(b).]
Attendants must further advise operators of any abnormal or unusual circumstances that may affect
the safety of operations, and have a duty to advise and assist passengers with adaptive equipment.
3.3.2.3.3(d) and (g).
The SASA provides that if a skier or a ski operator violates the duties defined in the Act,
the skier or operator “shall be liable for that portion of the loss or damage resulting from that
violation.” MCL 408.344. The evidence presented here can lead reasonable minds to conclude
that Christina did not use reasonable care in loading the taboggan, and did not use reasonable care
in making sure that Robert was safely secured with the taboggan before she turned her attention
elsewhere. The record indicates that Christina did not follow the procedures for loading toboggans
onto a ski lift that Robert was familiar with, and that in the process of helping Robert load his
toboggan, she caught one of his skis under the toboggan, which ultimately caused him to strike his
ski on an unidentified object, twist on the chair, and fall 20 feet to the ground. Robert was not
injured as a result of a collision with “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,” MCL 408.342(2), which would ordinarily preclude
liability, and does not bar plaintiffs’ claims. Instead, his injuries were the direct result of
Christina’s negligence in failing to properly assist him in loading himself and his toboggan onto
the lift. Accordingly, even if Robert were “participating” in the “sport of skiing” under the statute,
he was not injured as a result of a danger “obvious and necessary,” or otherwise inherent in the
activity of skiing; rather, his injuries were due to Christina’s failure to use due care. The evidence
here supports the conclusion that defendant, through its operator, violated the SASA. Thus, under
MCL 408.344, defendant is liable for the portion of loss or damage resulting from that violation.
The trial court erred by concluding that the SASA bars plaintiffs’ claims.
Defendant contends that regardless of whether Christina failed to use reasonable care in
loading the toboggan and operating the lift, Robert assumed the risk of injury by being a participant
in the sport of skiing who encountered a danger inherent to the sport. See MCL 408.342(2).
According to this argument, the SASA’s assumption-of-risk provision trumps the statutory duties
applicable to ski operators, as well as the Act’s final provision providing for liability against any
snowboarder or ski operator who “violates this act.” MCL 408.344.
As we discussed previously, we disagree that Robert was a “participant” in the “sport of
skiing,” and conclude that the assumption-of-risk statute does not apply to him. Moreover, even
if it did, this Court soundly rejected defendant’s argument in Rusnak v Walker, 273 Mich App 299,
304-305; 729 NW2d 542 (2006). Guided by Rusnak, we hold that even if the Act was applicable
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to Robert, and Robert’s fall resulted from an obvious and necessary risk inherent in the sport of
skiing2, he would nevertheless be eligible to recover damages to the extent that defendant’s
violation of the SASA caused his injury.
The plaintiff in Rusnak was injured in a collision with another skier. As the downhill skier,
the plaintiff asserted that she had the right-of-way on the slope, and that the defendant had
recklessly skied into her. Id. at 302. The trial court granted summary disposition in the defendant’s
favor, and this Court affirmed because it felt obligated to do so by previous caselaw. Id. at 301.
However, the original Rusnak panel expressed disagreement with the prior binding cases3, and this
Court ultimately convened a conflict panel under MCR 7.215(J).
The conflict panel carefully elucidated the sections of the SASA setting forth the duties of
skiers, the assumption-of-risk provision, and the directive that violators of the Act may be held
liable for the damages they cause. Id. at 303-305. The Court observed that the SASA’s
assumption-of-risk language clearly contemplated that “collisions with other skiers are an obvious
and necessary danger that inheres in the sport and that the skier has assumed the risk of being
injured by such a danger.” Id. at 304. But because the plaintiff established that the defendant may
have violated his duties to ski responsibly as stated in MCL 408.341(1), the defendant could still
bear liability “for that portion of the loss or damage resulting from that violation.” Id. at 305,
quoting MCL 408.344. Although the SASA’s assumption-of-risk provision is “clear and
unambiguous,” the Rusnak panel declared it could not be enforced “in such a way that it renders
meaningless another equally applicable section.” Id. at 307-308. Rather, the defendant’s acts
“would be relevant for a comparative negligence evaluation[.]” Id. at 311.
Rusnak controls the outcome here. Although we reject defendant’s argument that the
assumption-of-risk provision applies to Robert, a contrary conclusion would not help defendant.
2
In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 24; 664 NW2d 756 (2003), quoting
MCL 408.342(2), the Supreme Court explained 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.’ ” MCL 408.432(2), Anderson explained, “identifies two types of dangers inherent
in the sport.” Id. The first are “natural hazards,” and the second are “unnatural hazards,” such as
“ ‘collisions with ski lift towers and their components, with other skiers, or with properly marked
or plainly visible snow-making or snow-grooming equipment.’ ” Id. at 24-25, quoting
MCL 408.342(2). The examples of assumed hazards mentioned in the statute “all inhere in the
sport of skiing and, as long as they are obvious and necessary to the sport, there is immunity from
suit.” Id. at 25.
3
The conflict panel in Rusnak, recognized that the prior Rusnak panel felt bound by Kent v Alpine
Valley Ski Area, Inc, 240 Mich App 731; 613 NW2d 383 (2000), McCormick v Go Forward
Operating Ltd Partnership, 235 Mich App 551; 599 NW2d 513 (1999), and Barr v Mount Brighton
Inc, 215 Mich App 512; 546 NW2d 273 (1996) to conclude that the SASA precluded liability
against the defendant based on the assumption-of-risk statute. In concluding otherwise, Rusnak
rejected the analysis in these cases. Rusnak, 273 Mich App at 310. Defendant relied heavily on
Kent, and unpublished authority citing to Kent, to support its arguments. We do not find the
arguments persuasive given that Kent is no longer controlling law in Michigan.
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As Rusnak holds, and the statutory language provides, the Legislature did not intend that ski
operators would enjoy absolute immunity when they violate a statutory duty. Rather, as the
conflict panel pointed out in Rusnak, an injury caused by a defendant’s violation of the Act is not
an assumed risk barring recovery. Id. at 307. Even were we to find that the assumption-of-risk
statute applies to Robert, defendant would remain responsible for its proportionate share of the
fault for Robert’s damages. To hold otherwise would nullify the duty provisions of the statute as
well as MCL 408.344.
The trial court erred by concluding that the SASA bars plaintiffs’ claims.
B. RELEASE
This conclusion does not end our analysis, however. Even though the SASA does not bar
plaintiffs’ claims, Robert signed a release form that defendants contend absolves them of all
responsibility for the injuries he sustained while skiing. The release states, in relevant part:
I understand and accept that downhill skiing and/or snowboarding in its
various forms is an inherently hazardous and dangerous activity. Such activities
include many risks including the risk of serious injury and death. I freely and
knowingly accept and voluntarily assume all risks of property damage, personal
injury and death to me while on the premises of the ski areas.
I hereby expressly release from liability the ski area, its agents, employees,
directors, officers, shareholders, ski patrollers, ski instructors, affiliates, partners,
corporations, associations and the like from any and all claims, actions, causes of
action, demands, rights, damages, costs, loss of services, expenses, and
compensation whatsoever which the undersigned now has or which may hereafter
accrue on account of any foreseen or unforeseen bodily injuries and/or damages.
I represent and warrant that this release extends to my heirs, executors,
administrators, successors, spouse, dependents, children and assign[s] and I hereby
freely and voluntarily acquit and forever discharge any cause of action for the
consideration of a reduced charge for a season ski pass and access to the ski area
for an entire ski season.
The release form itself generically applies to release defendants from liability for injuries sustained
while Robert or his family are engaged in recreational skiing. The only evidence that it was
actually applicable to Robert in his capacity as a ski patroller is a handwritten label at the top of
the form stating the words “ski patrol.”
Plaintiffs raise two arguments regarding the release: 1) that it does not apply to Robert, and
2) that it was against public policy to require Robert to sign it. Regarding the release’s application
to Robert, plaintiffs argue that it is inapplicable because Robert was working as a volunteer ski
patroller when he was injured. The release indicates that by signing it, Robert accepted that
“downhill skiing” is inherently dangerous and absolved defendants of any liability for injuries
incurred while skiing. Plaintiffs further contend that “downhill skiing,” which is not defined in
the release, is different from “volunteer ski patrolling.”
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In construing contractual language, the goal “is to determine the intent of the contracting
parties,” the best indicator of which is the language used. Quality Prod & Concepts Co v Nagel
Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). “This Court examines contractual
language and gives the words their plain and ordinary meanings[,]” Coates v Bastian Bros, Inc,
276 Mich App 498, 503; 741 NW2d 539 (2007), while also giving “effect to every word or phrase
as far as practicable.” Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447(2003). If the language of the contract is unambiguous, then it is “reflective of the parties’ intent
as a matter of law.” Quality Prod & Concepts Co, 469 Mich at 375. “[U]nambiguous contracts
are not open to judicial construction and must be enforced as written.” Rory v Continental Ins Co,
473 Mich 457, 468; 703 NW2d 23 (2005). A contract is ambiguous if its provisions are capable
of more than one interpretation or its provisions irreconcilably conflict. Klapp, 468 Mich at 467;
Coates, 276 Mich App at 503. However, “[c]ourts may not impose an ambiguity on clear contract
language.” Coates, 276 Mich App at 503.
The trial court erred by holding that the release barred plaintiffs’ claims. It is clear from
the language of the release that it was designed to broadly absolve defendants of any liability for
injuries sustained while skiing. By logical extension, it would appear to apply to injuries Robert
or his family might sustain while skiing for recreation. However, nothing in the plain terms of the
contract indicates that it applied to injuries sustained while Robert was getting on a ski lift during
a shift as a ski patroller. The mere presence of the handwritten words “ski patrol” on the form
does not automatically indicate that Robert knew that the contents of the release applied to his
activities as a ski patroller. Extrinsic evidence in the record regarding the nature of the agreement
also sheds little light on the subject. Robert testified at his deposition that all ski patrollers ski for
free, and the perk of the job is that each patroller’s family also gets to ski for free for an entire ski
season. He further testified that if he did not sign the release, he could not serve as a volunteer ski
patroller. Beyond that, it is unclear whether he understood that defendants intended for the release,
which says nothing on its face regarding volunteer activities, applied to injuries sustained while
working as a volunteer ski patroller. Thus, the terms of the contract are ambiguous, and on this
record, summary disposition was inappropriate.4
IV. CONCLUSION
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Sima G. Patel
/s/ Michelle M. Rick
/s/ Kathleen A. Feeney
4
Because we conclude that reversal is warranted because the contract was ambiguous and
unenforceable, we decline to address plaintiffs’ alternative argument that the release violated
public policy.
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