Motion and Brief Assignment(edited) 06112016
- 1. 1 | P a g e STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND Case No. 30-74547-BF JOHN BERNARD Hon. Douglas P. Kolly Plaintiff, -v- MOUNT OAKLAND SKI RESORT, INC., Defendant. ______________________________________________________________________________________ FALLS & FALLS, PLC (P30733) FALLSBRIGHT, PLC (P30307) Attorney for Plaintiff Attorney for Defendant 6627 Belgian Ave. 821 Distant Creek Lane Kalamazoo, MI 49009 Grosse Pointe Park, MI 48230 Ph (269)375-9066 Ph: (313)822-6067 Fax (269) 375-9666 Fax (313) 822-6000 Email:winorgohome@gmail.com Email: perpetuallitigation@gmail.com MOUNT OAKLAND SKI RESORT, INC, BRIEF IN SUPPORTOF ITS MOTIONFOR SUMMARY DISPOSITION MOUNT OAKLAND SKI RESORT, (“MOSR”),by its attorney, FALLSBRIGHT, PLC moves for judgment in its favor under (1) MCR 2.116(C) (7) and MCR2.116(C) (10), for the following reasons. 1. This is an “Agreement and Release from Liability” action wherein plaintiff, John Bernard,a recent graduate from MSU went with some of his friends to MOSR for a day of skiing on February 15, 2015 where Plaintiff alleges he sustained injuries while skiing on Defendant’s property at MOSR in Michigan. 2. Under Michigan law, a landowner has a duty to protect its invitees from an unreasonable risk of harm caused by a dangerous condition on its property. Woodbury v Bruckner 467 Mich 921; 658 NW2d (2002). However, this duty not generally encompass open and obvious dangers. 3. Plaintiff admitted he was aware of the hazardous conditions associated with skiing. Yet,he chose to participate in violation of MOSR safety rules. 4. Under the circumstances,MOSR owed no duty to plaintiff to protect him from or warn him of the unknown skier who pushed Plaintiff into a tree while skiing. 5. MOSR is entitled to summary disposition as a matter of law.
- 2. 2 | P a g e WHEREFORE, MOSR respectfully requests that this Court enter judgment in favor of MOSR, dismiss Plaintiffs’ Complaint with prejudice, and grant such other relief as allowed by law. FALLSBRGHT, PLC. By: __________________ FALLSBRIGHT, PLC Bethany Aubrey (P30307) La’Salle Beatriz (P307303) Diez Lederman (P37717) 821 DISTANT CREEK LANE GROSSE POINTE PARK,MI 48230 (313)822-6067
- 3. 3 | P a g e STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND Case No. 30-74547-BF JOHN BERNARD Hon. Douglas P. Kolly Plaintiff, -v- MOUNT OAKLAND SKI RESORT, INC., Defendant. ___________________________________________________________________________________ FALLS & FALLS, PLC (P30733) FALLSBRIGHT, PLC (P30307) Attorney for Plaintiff Attorney for Defendant 6627 Belgian Ave. 821 Distant Creek Lane Kalamazoo, MI 49009 Grosse Pointe Park, MI 48230 Ph (269)375-9066 Ph: (313)822-6067 Fax (269) 375-9666 Fax (313) 822-6000 Email:winorgohome@gmail.com Email:rpetuallitigation@gmail.com
- 4. 4 | P a g e MOUNT OAKLAND SKI RESORT BRIEF IN SUPPORT OF ITS MOTION FOR SUMMMARYDISPOSITION On February 15, 2015, Plaintiff, went skiing for a day with a few of his friends at MOSR. Plaintiff, a new skier, rented skis, poles, boots and bindings from Defendant. Before Plaintiff paid for his rental, Plaintiff signed an “Agreement and Release from Liability”. The release stated in several places enlarged in capital letters that the signer must read the release before signing. Plaintiff indicates that he was injured when he was struck from behind by an unknown skier and pushed into a tree while he was skiing on a slope at Defendant Mount Oakland Ski resort. Plaintiff alleges that his injuries were the result of Defendant’s failure to provide a safe ski area.
- 5. 5 | P a g e ll UNDISPUTED FACTS Plaintiff was a recent graduate from Michigan State University in East Lansing, MI. Plaintiff went for a day of skiing with a couple of friends at MOSR. Plaintiff was an inexperienced at skiing. Plaintiff rented skis, poles, boots and bindings from Defendant. Plaintiff signed an “Agreement and Release from Liability” before paying for ski rental. The Agreement states in several places in enlarged capital letters that the signer must read the release before signing. EXHIBIT (A). Plaintiff alleged that he was injured when he was struck from behind by an unknown skier that pushed Plaintiff into a tree while he was skiing on a slope at Defendant MOSR. As an Invitee on Defendant’s property, Plaintiff must take care to prevent injury to himself and others. In addition, they must also be alert and attentive, observing the condition of the surroundings. On February 15, 2015, Plaintiff went skiing with a few friends at MOSR. Prior to renting ski equipment, Plaintiff read the “Agreement and Release from Liability Form” and assumed the risk of the dangers inherent in the sport of skiing. Despite his knowledge of the potential harm associated with skiing in the Release from Liability agreement, Plaintiff was not discouraged from skiing. Plaintiff alleged that his injuries were the result of Defendant’s failure to provide a safe ski area. MCR 2.116(C) (7) Plaintiff’s claim is barred by release. Plaintiff executed a release of all liability claims against Defendant on February 15, 2015. MCR 2.116 (C) (7) states in its pertinent part: (c) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based. (7) The claim is barred because of release, payment, juror judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim
- 6. 6 | P a g e before commencement of the action. Though there are many facts in dispute between the parties, there is no genuine issue as to the fact that the Plaintiff signed a release in this matter. The standard for summary disposition under MCR2.116(C) (7) was explained by the Michigan Appellate Court in Gara v Woodbridge Tavern, 224 Mich App 63, 568, NW2d 138 (1997) In that case, Plaintiff claims she failed to read release due to her own haste but release language was not misleading or ambiguous and clearly expressed defendant’s intention to disclaim liability from all negligence. The Court of Appeals held Plaintiff’s negligence claims against defendant and barred summary disposition. In Wyrembelski v City of St. Clair Shores, 218 Mich App 125, 553 NW2d 651(1996), summary disposition of Plaintiff’s complaint was proper under MCR2.116(C) (7) where there exists a valid release of liability between parties. Release of liability is valid it is fairly and knowingly made. If text in the release is unambiguous, court must ascertain parties’ intentions from plain, ordinary meaning of the language of release. If terms of release are unambiguous, contradictory inferences become “subjective and irrelevant”, and legal effect of the language is question of law to resolve summarily. The court has made it known that summary disposition under MCR 2.116(C) (7) must be granted unless a genuine issue of material fact for trial is established by the non-moving party. The court has made it known that summary disposition under MCR 2.116(C) (7) must be granted unless a genuine issue of material fact for trial is established by the non-moving party.
- 7. 7 | P a g e III STANDARD OF REVIEW MCR 2.116 (C) (10) provides that a court may grant summary disposition of all or part of a claim when, “except” as to the amount of damages, there is no genuine issue of material fact, and that the moving party is entitled to judgment as as a matter of law.” “ In reviewing a motion for summary disposition 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, in the light most favorable to the party opposing the motion. “ A motion under MCR2.116 (C) (10) tests the factual sufficiency of the pleadings of the non-moving party. Corley v Detroit Board of Education 470 Mich 274 278 (2004). (quoting Maiden v Rozwood, 461 Mich 109 119 (1999).
- 8. 8 | P a g e IV ARGUMENT In general, a landowner has a duty to protect its invitees from and unreasonable risk of harm caused by a dangerous condition on the landowner’s property. Dombrowski v. Omer, 199 Mich App. 705, 709-710, 502 NW2d 707 (1993) However, this duty does not generally encompass open and obvious dangers: “where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor, owes no duty to protect or warn the invitee unless he should anticipate the harm despite the knowledge of it on behalf of the invitee.” Mahaffey v Attorney General, 222 Mich App 325, 334; 564 NW2d 104(1997). Summary Disposition is proper under MCR 2.116(C) (10). The open and obvious doctrine is not an “integral part of the definition of that duty. “ ld. Once a condition is determined to be open and obvious, it is then that liability can be imposed against a landowner only where special aspects of the condition differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm. Special circumstances exist where the open and obvious condition imposes an unreasonably high risk of severe of a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.
- 9. 9 | P a g e RELEASE AGREEMENT Mount Oakland Ski Release Agreement and Waiver I, John Bernard, being of sound mind and body, being of the age of 21 coherent and able to make reasonable decisions, fully participate and engage in the winter sports ski activity available on the 15th day of February, 2015, at MOUNT OAKLAND SKI RESORT. By initialing each statement, signing and dating this waiver, I have acknowledged and understand that I will not hold MOSR liable or sue MOSR in the future. Jb I understand the risks associated with skiing Jb I understand that my participation is strictly voluntarily. Jb I do not hold MOSR responsible for injuries sustained while on its property. Jb I understand that I am to exercise a safe environment for myself and other ski patrons by maintaining a watchful eye and being mindful of my surroundings.
- 10. 10 | P a g e E Signature: John Bernard Date: 02/15/2015 ll ASSUMPTION OF THE RISK MCL 408.342(2) Barr v Mt. Brighton 215 Mich App 512 546 NW2d 273 (1996). Each ski operator has rules and guidelines they must follow to ensure the safety of its invitees in the designated ski areas. The ski operator at the designated facility should clearly mark the area top or entrance of each ski slope, run, trail, which is off-limits to skiing with an appropriate symbol indicating that the run, slope, or trail is not for use . MCL 408.326a. Section 6a of the Ski Area Safety Act states the following responsibilities for the ski operator to adhere to and comply with. Each ski operator shall, with respect to the operation of the ski area, Each ski area operator shall, with respect to operation of a ski area, do all of the following: (d) Mark the top of or entrance to each ski run, slope, and trail which is closed to skiing,
- 11. 11 | P a g e with an appropriate symbol indicating that the run, slope or trail is closed.... MCL 408.326a; MSA 18.483(6a). However, in this case, had the defendant not complied with indicating which areas were closed- off to skiing, the Plaintiff still assumed the risk of running in a collision with a tree. 213 Mich App 539 NW2d 531(1995) In the case Skene v Fileccia, the trial court grated Defendant’s Motion for Summary Disposition pursuant to MCR2.116(C) (10) on the basis that Plaintiff assumed the risk of the dangers inherent of roller-skating. V. CONCLUSION Under Michigan law, the fact that the Plaintiff was pushed into a tree by another ski patron is an assumed risk for which MOSR owed no duty to warn or protect from. MOSR is therefore entitled to summary disposition pursuant to MCR 2.116(C) (10). Respectfully submitted, By: ______________________ FALLSBRIGHT, PLC Bethany Aubrey (P30307)
- 12. 12 | P a g e La’Salle Beatriz (P307303) Diez Lederman (P37717) 821 DISTANT CREEK LANE GROSSE POINTE PARK,MI 48230 (313)822-6067 Dated: April 16, 2016 Proof of Service The undersigned certifies that a copy of the foregoing instrument was served upon the attorneys of record of all parties to the above cause at their respective addresses disclosed on the pleadings on 16th day of April, 2016 by U.S. Mail Signature________________
- 13. 13 | P a g e NOTICE OF HEARING PLEASE TAKE NOTICE that MOUNT OAKLAND SKI RESORT Motion for Summary Disposition will be heard before the Honorable Douglas P. Kolly, on Wednesday, August 10, 2016, at 8:30 a.m., or soon thereafter as counsel may be heard. Respectfully submitted, By: _______________
- 14. 14 | P a g e FALLSBRIGHT, PLC Bethany Aubrey (P30307) La’Salle Beatriz (P307303) Diez Lederman (P37717) 821 DISTANT CREEK LANE GROSSE POINTE PARK,MI 48230 (313)822-6067 Dated: April 12, 2016 PROOF OF SERVICE The undersign certifies that Plaintiff’s BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY DISPOSITION, to Defendant’s Motion for Summary Disposition, along with this Proof of Service was served upon Falls & Falls, PLC, by hand delivery at his business address as disclosed on the pleadings of record herein and Fallsbright, PLC, attorney for defendant as, by mailing same to him at his business address as disclosed on the pleadings of record herein, that said envelope having been properly sealed and sufficient postage affixed thereto and same was deposited on said date in the United States mail receptacle in Grosse Pointe Park, Michigan on the 12th day of April, 2016.
- 15. 15 | P a g e ______________________ . Beatrice L. Falls
- 16. 16 | P a g e EXHIBIT 1 RESORT ACTIVITY, SKI SCHOOL, & EQUIPMENT RENTAL WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNITY AGREEMENT THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS. 1. The person who is participating in the Activity (defined below) is referred to as “Participant.” I am either the Participant or, if the Participant is under 18, I am the Participant’s parent or legal guardian. I understand that participating in ski and ride school, skiing, snowboarding, racing, ski simulation, training, snowshoeing, cross- country skiing, snow biking, tubing, ice skating, pond skimming, sledding, riding the alpine coaster,zip lining, using the ropes/challenge courses, trampoline or climbing wall, resort tours, other winter recreation, using freestyle or terrain park features,renting equipment and using the ski area facilities, including the lifts, for any purpose (the “Activity”), can be HAZARDOUS AND INVOLVE THE RISK OF PHYSICAL INJURY AND/OR DEATH. 2. I understand the dangers and risks of the Activity and that the Participant, as a “skier” (as may be defined by statute or other applicable law), ASSUMES ALL INHERENT DANGERS AND RISKS of the Activity. 3. I expresslyacknowledge andassume alladditional risks anddangers thatmay resultinpropertydamage, physical injury and/or death above and beyond the inherent dangers and risks ofthe Activity, including but not limited to: Falling; free skiing; following the direction of an instructor or guide; avalanches; cornices; suffocation; crevasses; equipment malfunction, failure or damage; improper use or maintenance of equipment; icy, slick or uneven surfaces; loss of balance; rugged mountainous terrain; bumps; tree wells; downed timber; rocks; holes; debris; marked and unmarked obstacles; drainage channels; varying visibility; unmaintained or unmarked trails/roads; trail obstructions; the negligence of Participant, Ski Area employees, an instructor (including selection of terrain that exceeds Participant’s ability), or others; Participant’s failure to comply with signage; collisions with naturalor man-made objects or other people; encounterswith snowmobiles and/or other motor vehicles; becoming lost or separated;lack of shelter; lift loading, unloading, and riding; storms,lightning, hail, snow and other adverse weather; limited access to and/or delay of medical attention; Participant’s health condition; physical exertion; exhaustion; dehydration; hypothermia; altitude sickness; frostbite; and/or mental distress from exposure to any of the above. I UNDERSTAND THAT THE DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT COMPLETEAND VOLUNTARILYCHOOSE FORPARTICIPANT TO PARTICIPATEIN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHEROR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENTOR OTHERWISE. 4. Participant assumes the responsibility of maintaining control at all times while engaging in the Activity and for reading, understanding and complying with all signage, including instructions on the use of lifts. Participant must have the physical dexterity and knowledge to safely load, ride and unload the lifts. I understand that a minor Participant may use the ski lifts without an adult present that snowmobiles, snowmaking equipment, and snow-grooming equipment may be encountered at any time, and that falls, collisions, and injuries occur and are common. 5. If Participant rents equipment, I agree to accept for use the equipment rented “AS IS”, accept responsibility for the care of the equipment during the rental period, and agree to be responsible for the replacement at full value of any equipment not returned or returned in a damaged condition. I represent that no misrepresentations have been made in regards to the height, weight, age and/or ability level of the Participant and represent that Participant will be the only person using the equipment. I UNDERSTANDTHATTHEBINDINGSYSTEM CANNOT GUARANTEE THE USER’S SAFETY.
- 17. 17 | P a g e 6. The bindingsystemwill notrelease atall timesor underall circumstanceswhere releasemaypreventinjury or death, nor is it possible to predict every situation in which it will release. I further understand that the downhill ski binding system DOES NOT REDUCE THE RISK OF ANY TYPE OF INJURY TO PARTICIPANT. I understand that in snowboarding, cross-country skiing, snowshoeing and other sports utilizing equipment with non-release bindings,the binding system will not ordinarily release during use. I agree to assume and accept any and all known and unknown risks of injury to Participant while using this equipment. 7. Additionally,inconsiderationforallowingthe Participanttoparticipate in the Activity, IAGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUE Vail Resorts, Inc., The Vail Corporation, TrimontLandCompany,HeavenlyValley,LimitedPartnership,VRUSHoldings,Inc.,VRCPCHoldings,Inc.,and all of theiraffiliatedcompaniesandsubsidiaries,includingthe resortowneroroperator,activityoperator,the equipmentmanufacturer, Burton, Beaver Creek Resort Company, the United States, and all their respective insurance companies,successorsininterest,commercial &corporate sponsors,affiliates,agents,employees, representatives, assignees, officers, directors, and shareholders (each a “Released Party””) FOR ANY PROPERTY DAMAGE, INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF ANY CONTRACT AND/OR EXPRESS OR IMPLIED WARRANTY. 8. I represent that Participant is in good health and that there are no special problems associated with Participant’s physical or mental condition. I authorize a licensed physicianor other medical care provider to carry outanyemergencymedical care forParticipantwhichmaybe necessaryandagreetobe fullyresponsible for any costs associated with such care or transport to such care. 9. I grant the Released Parties the right of publicity to own and use any image collected of Participant while participating in the Activity. 10. I agree that any and all claimsfor loss,injuryand/ordeath arisingfrom the Participant’sparticipationinthe Activity shall be governed by the law of the state where the alleged incident occurred and that exclusive jurisdiction of any such claim shall be the state or federal court in the state where the alleged incident occurred, except that all cases arising out of an alleged incident at Heavenly shall be governed by California law and the exclusive jurisdiction of any such claim will be a California court of competent jurisdiction. 11. BY SIGNING ON BEHALF OF A MINOR (OR OTHER PARTICIPANT), I REPRESENT THAT I AM THE LEGAL PARENT OR GUARDIAN OF THE PARTICIPANT and acknowledgethatthe Participantisboundbyall the termsof this Agreement. Iunderstandthatthe minorParticipantwouldnotbe permittedtotake partin any of the Activities unlessIagree to the termsof thisAgreement. BysigningthisAgreementwithoutaparentor legal guardian’s signature,Irepresent,underpenaltyof fraudthatI am at least18 yearsold. 12. I AGREE TO INDEMNIFY THE RELEASED PARTIES FOR ALL LIABILITY AND CLAIMS, INCLUDING ATTORNEYS’ FEES, ARISING FROM ANY MISREPRESENTATIONS OR FRAUDULENT EXECUTION OF THIS AGREEMENT.
- 18. 18 | P a g e