statutes, but it is also “one of the briefest, least-detailed statutes.”45


The statute’s ex-


treme generality is its Achilles’ heel. Many other states have enacted more detailed statutes that impose an absolute bar to recovery for injuries arising out of a litany of specifically defined risks. Michigan’s Ski Area Safety Act (SASA), for example, enu- merates a non-exclusive list of skiing risks that are, by definition, “obvious and nec- essary” as a matter of law. The SASA pro- vides in pertinent part:


Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and neces- sary. Those dangers include, but are not limited to, injuries which can re- sult from variations in terrain; sur- face or subsurface snow or ice con- ditions; bare spots; rocks, trees, and other forms of natural growth or de- bris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly vis- ible snow-making or snow-grooming equipment.46


The SASA is generally well-crafted and has been interpreted expansively in favor of protecting Michigan’s ski areas from the kind of liability exposure their Vermont counterparts must contend with under Sunday and Frant. Schmitz v. Cannonsburg Skiing Corpo-


ration, for example, involved a skier who died from injuries sustained when he struck a lone tree growing on an open slope.47 Despite the gravity of the injury and the rel- ative ease with which the tree could have been removed, a Michigan appellate court held that the SASA barred any recovery because it specifically listed “trees” among the inherent risks of skiing. Looking to the statutory language as a whole, the court declared:


[I]t is clear from the plain and unam- biguous wording of [the statute] that the Legislature intended to place the burden of certain risks or dangers on skiers, rather than ski resort opera- tors. Significantly, the list of ‘obvious and necessary’ risks assumed by a ski- er under the statute involves those things resulting from natural phe- nomena, such as snow conditions or the terrain itself; natural obstacles, such as trees and rocks; and types of equipment that are inherent parts of a ski area, such as lift towers and oth- er such structures or snow-making or grooming equipment when properly marked. These are all conditions that are inherent to the sport of skiing. It is safe to say that, generally, if the ‘dan- gers’ listed in the statute do not exist, there is no skiing.48


In Kidwell v. Wakefield Properties Inc., another case governed by Michigan’s SASA, the Sixth Circuit affirmed a summa- ry judgment ruling in favor of a ski area in a negligence action brought by skiers who had collided with one of two permanent- ly fixed poles equipped with a timing de- vice that demarcated the finish line of a race course.49


Although the poles were not


among the inherent risks specifically list- ed in the statute, the court noted that the non-exclusive statutory language (“includ- ing, but not limited to”) was broad enough to encompass race course poles because they were analogous to the enumerated man-made dangers.50


Like the plaintiff in


Frant, the plaintiffs in Kidwell conceded that the poles were obvious but argued that they were unnecessary because “oth- er means of marking the finish could have been used.”51


The court rejected the plain-


tiffs’ argument and concluded that the stat- ute’s clear grant of absolute immunity ren- dered the availability or feasibility of safer alternatives irrelevant:


The Act was designed to reduce the li- ability of ski area operators by making skiers liable for obvious risks of harm from skiing and to encourage skiers to accept responsibility for their safe- ty. We do not think that the statute in- tended to place responsibility on the ski area operators to determine which ski equipment is the least risky and to only use that equipment. Such a re- sponsibility would have been parallel to requiring the defendant in Schmitz to have removed the tree from the slope. It would be difficult to argue that a tree in the skier’s path was ‘nec- essary’ for skiing on the slope. This is clearly not the intention of the stat- ute. It was intended to limit the liabil- ity of ski resort operators. If a struc- ture serves some purpose or function with respect to skiing and is similar to those listed, it meets the ‘necessary’ requirement.52


In Anderson v. Pine Knob Ski Resort, Inc.,


the Michigan Supreme Court denied re- covery to a skier who collided into a shack that housed race timing equipment.53


The


Court concluded that, while the race shack was not specifically listed among the SA- SA’s “obvious and necessary” dangers, it was of the same class, character or nature as the enumerated man-made hazards be- cause its existence and location on the trail fulfilled a sport-related purpose (viz., tim- ing of ski races).54


The plaintiff in Ander-


son argued that the shack was not a “nec- essary” danger because it “was larger and more unforgiving than other imaginable, alternative


timing-equipment might have been.”55 protection The Court, however,


held that the availability of safer housing could not form the basis for liability under the statute:


To adopt the standard plaintiff urges would deprive the statute of the cer- tainty the Legislature wished to cre- ate 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 reasonable- ness 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.56


22 THE VERMONT BAR JOURNAL • SUMMER 2012 www.vtbar.org


Putting Risk Back on the Downhill Edge


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