Ronald Ritari Jr v. Peter E O'Dovero Inc ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
RONALD RITARI, JR. and TAMA RITARI UNPUBLISHED
October 24, 2017
Plaintiffs-Appellees,
v No. 335870
Marquette Circuit Court
PETER E. O’DOVERO, INC., doing business as LC No. 16-054384-NO
MARQUETTE MOUNTAIN,
Defendant-Appellant.
Before: K. F. KELLY, P.J., and BECKERING and RIORDAN, JJ.
PER CURIAM.
In this interlocutory appeal,1 defendant, Peter E. O’Dovero, Inc, d/b/a Marquette
Mountain, challenges the trial court’s order denying defendant’s motion for summary disposition
under MCR 2.116(C)(7) (release, immunity granted by law) and (C)(10) (no genuine issue of
material fact, movant entitled to judgment as a matter of law). The case arises out of an incident
at Marquette Mountain ski resort that occurred when plaintiff, Ronald Ritari, Jr., was riding up
the ski hill on a chair lift and became entangled in a rope that had been installed underneath the
lift, which pulled him off the lift and caused him to sustain serious injuries in the ensuing fall. 2
Because material questions of fact remain, we agree with the trial court that summary disposition
is inappropriate at this time.
1
Ronald Ritari Jr v Peter E O’Dovero, Inc, unpublished order of the Court of Appeals, entered
April 20, 2017 (Docket No. 335870).
2
Plaintiff Tama Ritari’s claim is derivative of her husband’s; therefore, “plaintiff” refers to
Ronald Ritari, Jr.
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I. PERTINENT FACTS AND PROCEDURAL HISTORY
On the evening of January 29, 2015, plaintiff went to Marquette Mountain to ski. He was
a season pass holder there and enjoyed NASTAR3 racing. According to plaintiff’s complaint and
affidavit, at around 6:45 p.m. he and his son boarded a chair lift to reach the top of the hill for
their first run of the evening. They planned to take a couple of pleasure runs down the hill before
their Thursday night ski league began. When his chair was approximately 20 yards from the
loading zone, a gust of wind pulled the chair down and the tips of plaintiff’s skis became
entangled in a nylon rope attached to the ground by two poles directly below the chair lift.
Plaintiff was able to free the tip of his left ski from the rope, but he was unable to free the tip of
his right ski, and he felt his leg being pulled backward as his chair continued to move up the hill.
Plaintiff grabbed the middle pole of the chair to keep from falling and screamed as loudly as he
could for the chair lift operator to stop the lift. But the chair lift did not stop, and plaintiff was
pulled out of his chair by the rope. He fell approximately 12 feet to the ground and sustained a
fractured pelvis and fractured ribs.
Plaintiff filed suit against defendant, alleging that the ski area was negligent by having
ropes in the area of the chair lift, failing to post warnings of the danger, failing to take measures
to prevent plaintiff from catching his skis on the rope, failing to employ the emergency stop
when plaintiff yelled for help, and failing to adequately supervise and control the chair lift.
Before any discovery began by way of interrogatories, depositions, or otherwise, defendant
moved for summary disposition under MCR 2.116(C)(7) and (C)(10), contending that plaintiff
had signed releases broad enough to bar any claim for injuries arising out of the incident.
Defendant relied on three forms signed by plaintiff.
Specifically, On December 13, 2014, in conjunction with purchasing an annual ski pass at
Marquette Mountain for the 2014-2015 season, plaintiff signed a release wherein he agreed to
assume “the risk of any injury to person or property resulting from any of the inherent dangers
and risks of skiing/snowboarding . . . .” On December 16, 2014, he filled out a document in
order to participate in NASTAR races. The document, a single sheet of paper, contains two
forms, one on the front and one on the back. Hand-printed vertically in capital letters along the
right side of both forms are the instructions, “FILL OUT BOTH SIDES.”
On the front side of the NASTAR document is a registration form. The form has
headings entitled “Registration Form,” “Racer Information,” “Team Information,” and “Waiver
and Release of Liability.” According to the release language on this form, plaintiff, “in exchange
for being permitted to participate in NASTAR events (the “Event”),” assumes all risks associated
3
According to its website, NASTAR is the “largest public grassroots ski racing program in the
world” and “gives recreational racers an opportunity to compete and compare their scores to
friends and family regardless of when and where they race using the NASTAR handicap
system.” NASTAR competitions typically occur on grand slalom and slalom courses laid out by
the host ski resorts in accordance with NASTAR’s instructions. http://www.nastar.com
(accessed 9/15/17).
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with his involvement in the event and the “risk of injury caused by the condition of any property,
facilities, or equipment used during the Event, whether foreseeable or unforeseeable.”
On the reverse side of the NASTAR document is a release entitled “Marquette Mountain
Ski Area, and Competition Participant” (henceforth, the “Participant release”). According to the
relevant terms of this release, “Participant, the undersigned, being at least 18 years old . . . agrees
and understands that alpine skiing and snowboarding in its various forms (hereinafter the
“Activity”) is HAZARDOUS[4] and may involve the risk of physical injury or death.” The
Participant also agrees that “training or racing competitively is more HAZARDOUS than
recreational skiing,” that he or she is “a competitor at all times, whether practicing for
competition or in competition.” According to the release, the Participant assumes all risks
associated with the Activity, including but not limited to the risk of all course conditions, course
construction or layout and obstacles, risks associated with riding the lifts, and risks associated
with ski lift operations and acts or omissions of employees. The Participant agrees to release
defendant from “all liabilities” arising from engagement in “the Activity,” including any injuries
caused by the actual negligence of defendant’s employees. In its motion for summary
disposition, defendant contended that, by signing this release, plaintiff assumed “all” risks,
argued that “all” left no room for exceptions, and stressed that the terms of this release barred
plaintiff’s claim for negligence as a matter of law.
In support of its motion, defendant also argued that MCL 408.342(2), the assumption of
risk provision in the Ski Area Safety Act of 1962 (SASA), MCL 408.321 et seq., operated to bar
plaintiff’s claim because risks associated with fencing and falling from a chair lift inhere in the
sport of skiing.
Plaintiff countered that neither the season-pass release nor the assumption of risk
provision in SASA barred his claim because the inappropriate placement of a rope directly under
the chair lift was not an inherent risk of skiing. Additionally, plaintiff argued that the rope was
not necessary because its placement violated the standards governing minimum clearance
between a chair lift and an obstacle below, and it was not obvious because he neither saw it nor
expected it to be placed where it was. He further argued that neither side of the executed
NASTAR document barred his claim because he was not engaged in a NASTAR event, nor was
he training for such an event when he was injured. Finally, plaintiff contended that there
remained genuine issues of material fact regarding whether defendant’s chair lift personnel were
inattentive and failed to timely shut off the chair lift when the rope entangled him, and that this
was not a risk assumed pursuant to the assumption of risk provision of SASA.
4
A fold or wrinkle in the copy of the release that is in the record obscures this word. However,
defendant quotes the relevant section of the release in its motion for summary disposition as “I
further agree and understand that training or racing competitively is more HAZARDOUS than
recreational skiing.”
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At the motion hearing, defendant argued that the Participant release on the back side of
the NASTAR document applied not just to competitions and training for competitions, but to
“skiing in all its forms.” Accordingly, the Participant release controlled resolution of the matter
and insulated defendant from any alleged negligent placement of the nylon rope. At the same
time, defendant insisted that it had not been negligent in placement of the rope at issue because
the rope’s location complied with required clearance standards and was necessary to the safety of
skiers.5 Plaintiff reiterated his argument that the forms on both sides of the NASTAR document
pertained to participation in competition-related skiing, and that the rope at issue was neither
necessary nor obvious with respect to any assumption of the risk plaintiff assumed when signing
up for his season pass or through SASA.
Ruling from the bench, the trial court noted that construing the viability of plaintiff’s
claim under SASA turned on necessary factual findings yet to be made, rendering summary
disposition inappropriate at that point in the proceedings. With regard to the releases, the trial
court observed that the parties’ arguments were geared toward the form on the reverse side of the
NASTAR document. The trial court easily dispensed with the front page as being race-related.
As for the back side, the Participant release, the trial court concluded that there were questions
about the extent to which the release might apply to relieve defendant of liability outside the
context of racing or training.
In addition to its location on the back of the NASTAR form, the trial court pointed to
three phrases in the Participant release that seem to limit the scope of that release to training for
or participating in a competition. The first is the phrase in which the participant agrees with the
premise “that Participant is a competitor at all times, whether practicing for competition or in
competition.” The second is the provision, “Participant is always provided an opportunity to and
will conduct a reasonable visual inspection of the training or racecourse.” The third phrase is, “I
further agree and understand that training or racing competitively is more [hazardous] . . . than
recreational skiing.” The trial court described the language of the release as “a little ambiguous”
and concluded that in light of the questions about the extent to which the release might apply to
relieve defendant of all liability at any time, even when the person who signed it is simply
recreationally skiing, summary disposition was premature.
5
Defendant acknowledged plaintiff’s argument about the front side of the NASTAR document
focusing on event racing and the fact that the release language there and in the season pass
document coincides with the language of SASA, which is commonly referred to as the
assumption of the risk clause. As such, while arguing that the rope at issue was a necessary and
obvious danger, defendant focused on the back side of the NASTAR document and its
“sweeping” release of defendant’s own negligence for the purpose of his motion for summary
disposition at such an early stage in the litigation.
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II. ANALYSIS
Defendant contends that the trial court erred in denying its motion for summary
disposition because the unambiguous language of the December 16, 2014 Participant release
releases it from all liability regardless of whether plaintiff was injured while practicing for a
competition, in competition, or simply skiing recreationally. It also claims that it is entitled to
summary disposition under the assumption of the risk statute in SASA, MCL 408.343(2). We
conclude that defendant is racing too quickly to the finish line in this case, to which it may or
may not be entitled a victory.
We review de novo a trial court’s ruling on a motion for summary disposition, Casey v
Auto Owners Ins Co, 273 Mich App 388, 393; 729 NW2d 277 (2006), as well as issues involving
contractual and statutory interpretation, Rodgers v JPMorgan Chase Bank NA, 315 Mich App
301, 307; 890 NW2d 381 (2016).
A. RELEASE
Summary disposition under MCR 2.116(C)(7) is appropriate where the terms of a release
bar a claim. As this Court has explained,
The scope of a release is governed by the intent of the parties as it is
expressed in the release. If the text in the release is unambiguous, the parties’
intentions must be ascertained from the plain, ordinary meaning of the language
of the release. A contract is ambiguous only if its language is reasonably
susceptible to more than one interpretation. The fact that the parties dispute the
meaning of a release does not, in itself, establish an ambiguity. [Cole v Ladbroke
Racing Michigan, Inc, 241 Mich App 1, 13-14; 614 NW2d 169 (2000).]
In addition, a contract must be read as a whole, Dobbelaere v Auto-Owners Ins Co, 275
Mich App 527, 529; 740 NW2d 503 (2007), and “construed so as to give 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). See also Restatement Contracts, 2d, § 202, p 86 (“a writing is interpreted as
a whole, and all writings that are part of the same transaction are interpreted together.”).6 The
interpretation of an unambiguous contract is a matter of law. Mich Nat’l Bank, 228 Mich App
710, 714; 580 NW2d 8 (1998).
After our review of the language of the Participant release, we disagree with the trial
court’s conclusion that the language of the release is ambiguous, or in other words, “reasonably
susceptible to more than one interpretation.” Xu v Gay, 257 Mich App 263, 272 668 NW2d 166
(2003) (“A contract is ambiguous only if its language is reasonably susceptible to more than one
interpretation.”). However, we agree with plaintiff, not defendant, as to its meaning and scope.
Several factors indicate that the NASTAR registration and Participant release were part of the
6
See also Restatement Contracts, 1st, § 235 (“A writing is interpreted as a whole and all writings
forming part of the same transaction are interpreted together.”).
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same transaction—which is in fact undisputed—and therefore, should be read and interpreted
together: the “Participant” release is on the reverse side of the NASTAR registration form, both
forms bear the handwritten instruction to “fill out both sides,” and plaintiff executed both
releases on the same date specifically in order to participate in NASTAR races. We conclude
that, when read as a whole and interpreted in conjunction with the NASTAR registration form on
its reverse side, the language of the Participant release is unambiguous and intended to relieve
defendant of “all liability” for injuries suffered during training for or participating in a racing
competition.
As noted above, the trial court identified three examples where the language of the
release focuses specifically on competitive skiing. After identifying the “Activity” in which the
Participant is participating as “alpine skiing and snowboarding in its various forms” and noting
that it may involve physical injury or death, the release requires the participant to “agree and
understand that training and racing competitively is more [hazardous] than recreational skiing”
(emphasis added). In addition, the release requires the participant to “agree with the Premise
that Participant is a competitor at all times, whether practicing for competition or in competition”
(emphasis added). Note that it does not also say when simply pleasure skiing or taking the
children out for lessons on the bunny hill. Further, the Participant is required to “agree that
Participant is always provided an opportunity to and will conduct a reasonable visual inspection
of the training or racecourse” (emphasis added). This focuses on race-related activities. Even
without consideration of the NASTAR release, the fact that the Participant release requires the
participant to agree expressly to statements emphasizing the dangers of training for and
participating in competitive racing specifically renders the release susceptible to the
interpretation that its focus is on insulating defendant from liability for injuries sustained by
participants when training for or competing in races.
Defendant contends that the Participant release’s acknowledgement that competitive
racing is more hazardous than recreational skiing does not restrict the release’s scope to
competitive skiing. However, the release does more than merely acknowledge the dangers of
competitive skiing; it requires the Participant to expressly agree that competitive skiing is more
hazardous than recreational skiing. Moreover, under the defendant’s alleged interpretation, the
Participant’s acknowledgement that he or she is a competitor at all times renders it impossible
for the person who signs the release as a “Participant” to ever ski recreationally. According to
the logic of defendant’s argument, once a person fills out the NASTAR registration form and
accompanying Participant release, he or she is a “competitor” indefinitely, regardless of whether
he or she is actually competing or training for a competition.7
7
Under defendant’s proposed at-all-times interpretation, there is no time frame for how long
someone is considered to be a Participant if that word is not tied to actual racing or training. Are
they deemed to be a Participant for the rest of the season? Indefinitely? What if they only
participated in one race? In doing so, have they given up all rights they might otherwise have
had as a recreational skier? And where does it say that in the release? Defendant’s proposed
interpretation creates an ambiguity that it cannot resolve within the confines of the agreement.
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Other portions of the Participant release also support the conclusion that the unambiguous
language limits its scope to liability for injuries suffered during or while training for a ski or
snowboard competition. The heading contains what one might reasonably construe as an
identification of the parties to the release, “Marquette Mountain Ski Area, and Competition
Participant.” The comma inserted between “Marquette Mountain Ski Area” and “Competition
Participant” suggests that the release involves Marquette Mountain Ski Area on one side, and a
“competition participant” on the other. Defendant urges this Court to ignore the “competition
participant” designation, arguing that it is not part of the four corners of the agreement and is
neither used nor defined in the release. However, interpreting the NASTAR release and the
Participant release together makes clear that “competition participant” refers to the person
participating in the NASTAR competition that defendant is hosting. 8 Further, if “competition”
refers only to the NASTAR event, but “participant” can have more than one referent,9 it seems
reasonable that the release would focus on defining “participant” to ensure inclusion of all the
word’s possible meanings. Additionally, that the participant is “a competitor at all times”
harkens back to “competition participant” in the heading, again allowing one to reasonably
interpret the release to pertain only to the release of liability arising from injuries associated with
training for or racing in a competition.
Moreover, the Participant warrants in the Participant release that he or she is in good
health and has left no special instructions “that have not been listed on the registration form.”
Although the Participant release makes no further mention of a registration form, the NASTAR
document on the reverse side is both a registration form and a release, and it contains a
‘Physically Challenged” heading where competitors may identify their physical or intellectual
challenges.
Finally, defendant asserts that “alpine skiing and snowboarding” is not limited to
competitive racing. This is true; “alpine skiing” may refer to downhill skiing for sport or
recreation. However, interpreting the Participant release with the NASTAR release renders the
phrase “alpine skiing and snowboarding in its various forms” susceptible to the interpretation
that it refers specifically to the three downhill disciplines from which participants may choose to
compete at a NASTAR event: alpine skiing, snowboarding, and telemarker (which combines
elements of Alpine and Nordic skiing).
Given the foregoing analysis, we conclude that the trial court correctly denied
defendant’s motion for summary disposition associated with the Participant release, but it erred
to the extent it deemed the release language ambiguous. Assuming factual development
establishes that plaintiff was not engaged in training for or competing in racing activities at the
time of his injury, as plaintiff contends it will, the Participant release does not apply. Moreover,
8
The mere fact that the release uses the word “Participant” conjures up images of participation in
something; it would not lead the reader to conclude that one is a Participant whenever they are
on the slopes, even when they are not actually participating in anything or training for anything.
9
E.g., “participant” includes a person at least 18-years old, a participating minor, and the parents
or legal guardian of as well as his or her parent or legal guardian.
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for the reasons set forth below, determination of whether the release language in plaintiff’s
season pass bars his claim—which entails an assumption of the risks inherent in skiing
analysis—will depend on further factual development gleaned from discovery, which has not yet
begun.
B. MCL 408.342(2)
A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency
of a claim. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). Summary
disposition under (C)(10) is proper if the documentary evidence filed by the parties and viewed
in the light most favorable to the party opposing the motion fails to show a genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law. Quinto v Cross &
Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
The Legislature enacted SASA in 1962, and amended it in 1981. Kent v Alpine Valley
Ski Area, Inc, 240 Mich App 731, 737; 613 NW2d 383 (2000) (quotation marks and citation
omitted). One of the purposes of the Legislature’s amendment was “to make the skier, rather
than the ski area operator, bear the burden of damages from injuries.” Id. Thus, among the
provisions in the 1981 amendment was one for the acceptance of risk by skiers, MCL
408.342(2), which provides as follows:
(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.
Where, as here, an injury results from a hazard not listed in the statute, Michigan’s Supreme
Court has established a test to determine whether a defendant ski resort is nevertheless immune
on grounds that the hazard is of the same type as those listed in the statute. Anderson v Pine
Knob Ski Resort, 469 Mich 20, 24-25; 664 NW2d 756 (2003).
At issue in Anderson was whether the assumption of risk provision barred the plaintiff’s
suit for injuries suffered when he collided with a timing shack during a skiing race. The
Supreme Court determined that the different types of hazards listed in MCL 408.342(2) had in
common “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.” Id. at 25. Thus, once a hazard is determined
to be inherent to the sport of skiing, “only if [it is] unnecessary or not obvious is the ski operator
liable.” Id. at 26. Applying the facts of Anderson to its legal conclusion, the Supreme Court
reasoned:
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
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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. [Id. at 25-26.]
Accordingly, the Supreme Court concluded that the ski operator was immune from suit because
the timing shack was a hazard inherent to skiing, and it was necessary and obvious.
We conclude that the trial court did not err in finding that, at this early stage of the
proceedings, the record facts are simply insufficient to determine whether SASA applies to bar
plaintiff’s claim. There is no dispute that the nylon rope that entangled plaintiff is a hazard not
listed in MCL 408.342(2). Thus, the question is whether the placement of a nylon rope under a
chair lift is inherent to skiing and, if so, whether placement of the rope in this case was obvious
and necessary. For defendant to be entitled to summary disposition under MCR 2.116(C)(10),
these material facts must be undisputed and defendant must be entitled to judgment as a matter of
law. Quinto, 451 Mich at 362.
However, the parties dispute the material facts. And the record evidence—given that
discovery has not yet begun—is not sufficient to resolve their disputes. For example, although
both parties agree that the American National Standards Institute (ANSI) standard B77.1-2006
governs the construction, installation, and operation of a ski lift, they dispute whether
defendant’s positioning of the rope violated the clearance requirements set forth in ANSI, and
whether such violation renders defendant liable for injuries attributable to the violation. In fact,
there is no record evidence as to what the rope was even for, making impossible at this point a
determination of whether it was a necessary part of skiing. Plaintiff asserts that defendant’s
placement of the rope “in an area directly below the chair lift” violated the ANSI standards, and
that the rope was neither obvious nor necessary. Defendant contends that plaintiff’s allegation
that his fall to the ground was approximately 12 feet demonstrates that defendant complied with
the requirement to have a clearance of at least 8 feet between the lowest point of the carrier and
the terrain. In addition, defendant characterizes the rope as a “fence,” and asserts, “fencing and
its risks are intrinsic in the sport of skiing,” and further asserts that the rope/fence was absolutely
needed to prevent skiers from traveling under the chair lift and being injured.” However,
because there is nothing in the record evidence indicating the rope’s purpose or its location
relative to the chair lift and the terrain, it is impossible to determine where the rope was placed
and whether it was necessary. Defendant contends that plaintiff’s description of his fall in his
affidavit demonstrates that there was at least an 8-foot clearance between the carrier, but
defendant has not eliminated the possibility that the rope was too close to the carrier when it
caught plaintiff’s skis, and it begs the question of why there was a rope if the minimum clearance
did not require one. In short, defendant has not met its burden to submit affirmative evidence
indicating that it was entitled to summary disposition on grounds that the dangers posed by the
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nylon rope at issue were inherent to skiing, and that they were necessary and obvious.10 Quinto,
451 Mich at 362.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
/s/ Michael J. Riordan
10
Because we conclude that defendant’s motion for summary disposition was properly denied at
this stage of the case, we need not address plaintiff’s additional argument that SASA does not
bar his claim arising from the chair lift operator’s alleged failure to stop the chair lift after
plaintiff became entangled in the rope.
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