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explaining that issues raised at trial but not raised on appeal can be considered waived
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Nos. 214466 — 215063.
Submitted March 7, 2000 at Lansing.
August 22, 2000 9:10 a.m.
Appeal from Grand Traverse Circuit Court, LC No. 97-015943-NO, LC No. 98-016889-CM.
Dingeman, Dancer Christopherson, P.L.C. (by Mark R. Dancer and Brian L. Johnson), for the plaintiff. Traverse City
Robert L. Bunting ( Robert Charles Davis, of Counsel) for Holiday Amusements, Inc. Oxford, Mt. Clemens
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Mark E. Donnelly, Assistant Attorney General, for state agencies and Kirby Pettyjohn.
Before: Smolenski, P.J., and Markey and O'Connell, JJ.
In these consolidated cases, plaintiff, Ronald McGoldrick, as personal representative of the estate of Christopher McGoldrick, appeals by right the trial court's orders granting summary disposition in favor of defendants. Plaintiff's decedent, Christopher McGoldrick, was killed while skiing after he collided with a tension pole that supported part of the apparatus for a rope tow at defendant Holiday Amusements, d/b/a Mount Holiday. We affirm.
Plaintiff first argues that the trial court erred in granting summary disposition to defendant Holiday because defendant Holiday violated the Ski Area Safety Act (SASA), MCL 408.321 et seq.; MSA 18.483(1) et seq. We disagree. On appeal, the trial court's grant or denial of summary disposition is reviewed de novo. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). This Court reviews the entire record to determine whether the moving party was entitled to judgment as a matter of law. Id. Although the trial court failed to state under which subrule it was granting summary disposition, we believe that summary disposition was granted under MCR 2.116(C)(7) because the claim is barred by immunity granted by law. Under MCR 2.116(C)(7), any supporting evidence, including affidavits, depositions, and admissions, may be considered. Maiden, supra at 119.
Subsection 22(2) of the SASA generally grants ski area operators immunity from liability and places the burden of certain dangers on skiers rather than ski resort operators. McCormick v Go Forward Operating Limited Partnership, 235 Mich. App. 551, 553-554; 599 N.W.2d 513 (1999); Schmitz v Cannonsburg Skiing Corp, 170 Mich. App. 692, 695; 428 N.W.2d 742 (1988). The SASA also provides that ski operators are required to do certain things in operating ski areas, including, for example, marking ski runs, slopes, and trails with appropriate symbols and placing notices if snow-making operations are being performed. MCL 408.326a; MSA 18.483(6a). The SASA further states that ski area operators shall be liable for loss or damage if they violate the SASA. MCL 408.344; MSA 18.483(24).
In the present case, although plaintiff asserts that defendant Holiday is liable because it violated statutory provisions contained in the SASA, plaintiff does not cite any specific violations of the SASA. Plaintiff's appellate brief only discusses violations of safety regulations set forth in the American National Standard for Passenger Tramways (ANSI Standards). For example, plaintiff states that defendant Holiday violated the ANSI Standards by failing to construct a fence or guard around the tension pole with which plaintiff's decedent collided, by failing to place the tension pole in an appropriate location, and by failing to adequately light the tension pole. The SASA addresses none of these; consequently, these allegations are not violations of the SASA. In McCormick, supra at 555-556, this Court recently addressed the issue regarding whether immunity granted to ski area operators pursuant to the SASA should apply where the operator does not comply with ANSI Standards.
We note that plaintiff relies on this Court's unpublished decision in Godde v Bittersweet Ski Resort, Inc, Docket No. 210676, issued 10/26/99, where a panel of this Court reversed the circuit court's affirmance of an arbitrator's decision that granted immunity under the SASA to the defendant ski area operator. Although unpublished opinions are not binding precedent, Watson v Bureau of State Lottery, 224 Mich. App. 639, 648; 569 N.W.2d 878 (1997), a distinction between the instant facts and Godde should be noted because plaintiff states that Godde is "precisely on point" with the instant case. In Godde, supra, slip op pp 2-4, this Court reversed because the arbitrator had failed to consider the plaintiff's allegation that the defendant had specifically violated the SASA by failing to mark the entrance to a closed trail with an appropriate symbol pursuant to subsections 6a(d) and (e) of the SASA. In the present case, plaintiff does not cite to any violations of the SASA, only the ANSI Standards.
Like plaintiff in the instant case, the plaintiffs in McCormick relied on this Court's decision in Dale v Beta-C, Inc, 227 Mich. App. 57; 574 N.W.2d 697 (1997), in arguing that immunity should not apply where the ski area operator does not comply with the ANSI Standards. McCormick, supra at 555. In affirming the trial court's grant of summary disposition to the defendant ski area operator, this Court determined that the plaintiffs' reliance on Dale was misplaced. Id. at 556. This Court noted that Dale specifically considered the provisions of the Roller Skating Safety Act, MCL 445.1721 et seq.; MSA 18.485(1) et seq., and the statutory requirement that roller skating rink operators comply with safety standards published by the rink operators association, and that rink operators are liable for civil damages resulting from a violation of the act. Id. The McCormick Court held:
In the case at bar, there are no similar provisions in the SASA. That is, the SASA does not provide for the adoption of safety standards by outside agencies, nor does it provide for an exception to immunity for violation of any such standards. Whether the statute should provide for an exception to immunity upon the violation of a safety standard is a decision for the Legislature to make, not this Court. Because the Legislature has not chosen to do so, we decline to do so ourselves. [ Id.]
Recently, in Kent v Alpine Valley Ski Area, Inc., 240 Mich. App. 731, 744 n 5; ___ N.W.2d ___ (2000), this Court addressed the holding in McCormick and stated that the "SASA arguably does provide for an exception to immunity for violation of [the ANSI] standards. . . ." However, this language contained in a footnote of the Kent opinion is obiter dictum and does not have the force of an adjudication because it was not essential to the determination of the case. Roberts v Auto-Owners Ins Co, 422 Mich. 594, 597-598; 374 N.W.2d 905 (1985).
Thus, as stated in McCormick, supra, because the SASA does not provide for an exception to the ski operator's immunity for a violation of ANSI Standards and because plaintiff has failed to indicate any violation of the statutory provisions contained in the SASA, plaintiff's argument is without merit.
Next, plaintiff argues that the trial court erred in granting summary disposition to defendant Holiday because the tension pole that plaintiff's decedent hit is not an enumerated risk under the SASA. We disagree. A trial court's grant of summary disposition is reviewed de novo on appeal. Maiden, supra at 118. Statutory interpretation is a question of law that is reviewed de novo on appeal. Oakland Co Bd of Rd Comm'rs v Michigan Property Casualty Guaranty Ass'n, 456 Mich. 590, 610; 575 N.W.2d 751 (1998). The issue regarding whether a particular set of circumstances falls within the risks and dangers enumerated in § 22(2) of the SASA is a question of law. See Schmitz, supra at 696.
A ski area operator's immunity from liability is granted in the following provision of the SASA:
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. [MCL 408.342(2); MSA 18.483(22)(2) (emphasis added); see, also, McCormick, supra at 553-554.]
Basically, plaintiff is asserting that the tension pole was not obvious and necessary and is not a component of a "ski lift tower" under § 22(2) of the SASA. We disagree.
Plaintiff describes the tensioning structure attached to the rope tow as consisting of "two vertical small-diameter metal poles, approximately three inches in diameter, connected to a third metal horizontal cross bar located approximately two feet above the ground."
The clear language of the SASA establishes that plaintiff's injury comes within the immunity provisions. The statute plainly states that a collision with "ski lift towers and their components" comes within the dangers that are necessary and obvious. Further, the SASA explicitly states that the definition of "ski lift" includes "a rope tow." MCL 408.322(h); MSA 18.483(2)(h). Plaintiff does not dispute that the metal pole with which plaintiff's decedent collided was part of a tensioning structure associated with a rope tow that was designed to take slack out of the rope tow. This pole is logically a component of the rope tow in question, which is included in the definition of "ski lift" under the SASA. Because the statutory language is clear, judicial construction is not permitted. Heinz v Chicago Rd Investment Co, 216 Mich. App. 289, 295; 549 N.W.2d 47 (1996).
Although plaintiff emphasizes that the tension pole was unpadded, not readily visible, and obsolete, the statute does not place any restrictions in stating that immunity is granted for injuries arising from collisions with ski lift towers and their components. Compare McCormick, supra at 554 n 2, where this Court distinguished between restrictions being placed on immunity for injuries arising from collisions with snow-making and snow-grooming equipment, which § 22(2) of the SASA clearly required that such equipment be properly marked or plainly visible in order for immunity to apply, and no restrictions being placed on immunity for injuries arising from collisions with other skiers. In addition, although plaintiff emphasizes the word "tower" in § 22(2) of the SASA and states that "tower" does not include the tension pole in question, plaintiff also argues that the word "tower" "means those structures which support the devices which carry passengers." Contrary to plaintiff's assertion, the tensioning pole is clearly a structure that supports the device (i.e., rope tow in this case) that carries passengers; consequently, plaintiff's attempt to distinguish between the tower and the tension pole fails to convince us. Therefore, because plaintiff's decedent's injury arose from his collision with a component of a ski lift tower, it comes within the immunity provision of the statute. McCormick, supra. The padding, lighting, and other conditions of the tension pole as stated by plaintiff are irrelevant. Whether these conditions should present an exception to the immunity provision of the SASA is a matter for the Legislature to determine, not the courts. Id. at 555.
Plaintiff also argues that, as a minor, plaintiff's decedent was skiing with an appropriate degree of care and did not assume the risk of the pole with which he collided. Plaintiff also asserts that defendant Holiday owed plaintiff's decedent a heightened duty of care because he was a minor. We disagree. Statutory interpretation is a question of law that is reviewed de novo on appeal. Oakland Co Bd of Rd Comm'rs, supra.
Plaintiff's arguments must fail because, again, they are contrary to the clear language of the SASA. The SASA statutorily limits the liability of ski area operators while promoting skier safety. In enacting the SASA,
We could not find any Michigan cases interpreting the effect of the immunity provision, § 22(2) of the SASA, on minors. However, in Shukoski v Indianhead Mountain Resort, Inc., 166 F.3d 848 (CA 6, 1999), although the specific issue regarding minors was not addressed in the Sixth Circuit's opinion, the Court held that a minor who was injured because of variations in the terrain while snowboarding at the defendant ski resort had assumed the risk pursuant to § 22(2) of the SASA, and, thus, the immunity provision of the SASA applied.
[t]he Legislature perceived a problem with respect to the inherent dangers of skiing and the need for promoting safety, coupled with the uncertain and potentially enormous ski area operators' liability. Given these competing interests, the Legislature decided to establish rules in order to regulate the ski operators and to set out ski operators' and skiers' responsibilities in the area of safety. . . . As part of this reform, the Legislature has decided that all skiers assume the obvious and necessary dangers of skiing. This is a rational solution for limiting ski area operators' liability and promoting safety. [ Grieb v Alpine Valley Ski Area, Inc., 155 Mich. App. 484, 488-489; 400 N.W.2d 653 (1986) (Citation omitted).]
With respect to the SASA's purpose of limiting the ski area operator's liability, § 22(2) clearly states that " [e]ach person who participates in the sport of skiing accepts the dangers that inhere in that sport . . ." (emphasis added). In providing that skiers assume certain risks while skiing, § 22(2) of the SASA clearly does not distinguish between adult and minor skiers. Moreover, contrary to plaintiff's assertion, no provision of the SASA imposes a greater responsibility on ski area operators with respect to minors. Indeed, the SASA makes no mention whatsoever with respect to the ages of skiers. See MCL 408.321 et seq.; MSA 18.483(1) et seq.
As previously discussed supra, § 22(2) clearly provides that an injury resulting from a collision with a component of ski lift tower (i.e., component of a rope tow tower in the present case) is an obvious and necessary danger "assumed by skiers." Hakari v Ski Brule, Inc., 230 Mich. App. 352, 358; 584 N.W.2d 345 (1998), quoting Grieb, supra at 486 (emphasis deleted). Thus, contrary to plaintiff's argument, the decedent assumed the risk of the pole. Had the Legislature intended to impose a greater standard of care on ski area operators with respect to minors, it would have done so. "The decision whether such provisions or exceptions are necessary and appropriate is for the Legislature to determine, not the courts." McCormick, supra at 555.
With respect to plaintiff's assertions that minor decedent was skiing with an appropriate degree of care and that any question regarding whether the decedent had maintained control of his speed should be left to the jury, these assertions are without merit. In making these allegations based on common-law negligence principles, plaintiff has overlooked "the plain and unambiguous wording of § 22(2) that the Legislature intended to place the burden of certain risks or dangers on skiers, rather than ski resort operators." Schmitz, supra at 695. Section 22(2) of the SASA "renders the reasonableness of the skiers' . . . behavior irrelevant." Schmitz, supra at 696; see, also, Kent v Alpine Valley Ski Area, Inc., 240 Mich. App. 731, 743; ___ N.W.2d ___ (2000).
Plaintiff also argues that the trial court erred in determining that defendant Pettyjohn, the inspector who inspected the rope tow in question and issued a permit for the use of the rope tow, owed no duty to plaintiff's decedent. We disagree. "The issue of duty is a question of law for the court to decide." Hakari, supra at 359. If no duty exists, summary disposition is proper. Eason v Coggins Memorial Christian Methodist Episcopal Church, 210 Mich. App. 261, 263; 532 N.W.2d 882 (1995). Although the trial court failed to state under which subrule it was granting summary disposition to defendant Pettyjohn, we believe that summary disposition was granted under MCR 2.118(C)(8) (failure to state a claim). See Maiden, supra at 119; Eason, supra; Massey v Dep't of Corrections, 182 Mich. App. 238, 242; 451 N.W.2d 869 (1990).
First, with respect to the state agency defendants, it appears that plaintiff did not raise on appeal the issues of nuisance and respondeat superior/vicarious liability raised below. Further, although plaintiff requests on appeal that the orders of the trial court be reversed, plaintiff sets forth no arguments with respect to the agency defendants in his "Statement of Questions Involved." Thus, any issues regarding the state agency defendants have been waived. City of Lansing v Hartsuff, 213 Mich. App. 338, 351; 539 N.W.2d 781 (1995); Meagher v McNeely Lincoln, Inc, 212 Mich. App. 154, 156; 536 N.W.2d 851 (1995).
As to defendant Pettyjohn, we conclude that the trial court properly determined that defendant Pettyjohn owed no duty to plaintiff's decedent. Plaintiff claims that defendant Pettyjohn was grossly negligent in inspecting the rope tow in question and in issuing a permit because the rope tow and its components violated various ANSI Standards. To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) causation; and (4) damages. Schultz v Consumers Power Co, 443 Mich. 445, 449; 506 N.W.2d 175 (1993).
Although defendant Pettyjohn combines the defenses of no duty and governmental immunity in his appellate brief, these are actually two separate defenses. See Smith v Kowalski, 223 Mich. App. 610, 613-619; 567 N.W.2d 463 (1997).
In the present case, the trial court relied on a four-part special relationship test set forth in Cuffy v City of New York, 69 N.Y.2d 255, 260; 513 N.Y.S.2d 372, 374; 505 N.E.2d 937, 940 (1987), as adopted by our Supreme Court in White v Beasley, 453 Mich. 308, 321 (Brickley, J), 325-326 (Boyle, J.); 552 N.W.2d 1 (1996), in determining that defendant Pettyjohn owed no duty to plaintiff's decedent under the public duty doctrine. However, in White, the Supreme Court adopted the four-part Cuffy test "at least when applied to police officers," and stated that it was not deciding whether the same test should be applied to other government employees. Id. at 315 n 3, 321 (Brickley, J). We conclude that this Court need not decide whether the four-part Cuffy test should apply in the present case with respect to defendant Pettyjohn, a non-police officer, because other Michigan cases have applied the public duty doctrine in cases involving non-police officer situations similar to the instant case. See, e.g., Smith v Kowalski, 223 Mich. App. 610, 613-615; 567 N.W.2d 463 (1997) (correctional officers and guards); Koenig v City of South Haven, 221 Mich. App. 711, 729-730; 562 N.W.2d 509 (1997), rev'd in part on other grounds 460 Mich. 667; 597 N.W.2d 99 (1999) (city officials); Summers v Detroit, 206 Mich. App. 46, 50-51; 520 N.W.2d 356 (1994) (city officials and employees); Massey, supra at 240-242 (Department of Corrections deputy director); Hobrla v Glass, 143 Mich. App. 616, 624-626; 372 N.W.2d 630 (1985) (Secretary of State employees).
The elements of this four-part test are:
(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;
(2) knowledge on the part of the municipality's agent that inaction could lead to harm;
(3) some form of direct contact between the municipality's agents and the injured party; and
(4) that party's justifiable reliance on the municipality's affirmative undertaking. . . . [ White v Beasley, 453 Mich. 308, 320 (Brickley, J); 552 N.W.2d 1 (1996), quoting Cuffy v City of New York, 69 N.Y.2d 255, 260; 513 N.Y.S.2d 372; 505 N.E.2d 937, 940 (1987).]
We note that even if we were to apply the four-part Cuffy test as adopted in White, we still would conclude that the trial court correctly determined that the Cuffy factors had not been satisfied. No evidence existed that there was "direct contact" between the decedent and defendant Pettyjohn.
The validity of the public-duty doctrine was recently affirmed by our Supreme Court in White. The doctrine provides
[t]hat if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. [ White, supra at 316, quoting 2 Cooley, Torts (4th ed), § 300, pp 385-386.]
If a duty of a public official arises from official authority, the duty is for the benefit of the general public and not to a specific individual. Koenig, supra at 730; Massey, supra at 241. This rule applies unless the public official's performance would affect the individual in a manner different in kind from the way the public official's performance would affect the general public. Koenig, supra; Massey, supra.
There is no dispute that defendant Pettyjohn's duty to inspect the ski areas and lifts arose from official authority. MCL 408.326(1); MSA 18.483(6)(1) of the SASA provides for safety inspections of all ski areas and lifts. Thus, because the duty arose from official authority, the duty is for the benefit of the public at large. Massey, supra. Moreover, MCL 408.326(1); MSA 18.483(6)(1) specifically states that the duty of inspection is owed to the "general public." There is no mention of specific individuals in the SASA. Although plaintiff argues to the contrary, no duty was owed to the individual decedent. "Any duty owed by [defendant Pettyjohn] was for the benefit of the general public; there has been no showing that performance of that duty would have affected the decedent differently from the general public." Summers, supra at 51.
This result is supported by Hobrla, supra, a case relied upon by the trial court in the present case. In Hobrla, supra at 620, the plaintiff was injured in a motor vehicle accident after she was struck by a driver whose license had been suspended, but who had been mistakenly issued a driver's license by the defendant individuals at the Secretary of State. This Court concluded that the duty owed by the defendant state individuals was a duty to the public, not to any particular individual. Hence, the individual defendants were not liable for the alleged issuance of the driver's license. Id. at 625-626. Similarly, as previously discussed the duty owed by defendant Pettyjohn to inspect the ski lifts was a duty owed solely to the "general public."
We affirm.