NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1



# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604
Argued October 27, 2010 Decided November 4, 2010



### Before

F RANK H. E ASTERBROOK
, Chief Judge

M ICHAEL S. K ANNE
, Circuit Judge

D IANE P. W OOD
, Circuit Judge

No. 10

- 1206

A MY S. J AKUBOVSKY
, Plaintiff

- Appellant

,

v

.

B LACKJACK S KI C ORPORATION and A MERICAN H OME A SSURANCE C OMPANY
, Defendants

- Appellees

. Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 08

- C

- 0206 William C. Griesba ch, Judge

.

Order

Amy Jakubovsky was injured when a snowboarder emerged from a wooded area and collided with her at the Blackjack Ski Resort in Michigan. The sno w boarder fled and has not been identified. Jakubovsky lost her balance and plowed into a woode n fence, which the Resort had placed at the side of the trail to prevent sk i ers from falling into steep and rocky terrain. The fence served its function but at a cost: Jakubovsky su stained extensive injuries to her back and ribs. She sued the Resort and it s insurer. Juri sdiction rests on diversity of citizenship. 28 U.S.C. §1332.

The district court granted summary judgm ent to the defendants, 2009 U.S. Dist. L EXIS 120889 (E.D. Wis. Dec. 29, 2009), ruling that Michigan’s Ski Area Safety Act, Mich. Comp. Laws §408.342(2), precludes liability. This Act provides:

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, injurie s which can result from vari ations in terrain; surface or subsu r face 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 mar ked or plainly visible snow

- making or snow

- grooming equipment.No. 10

- 1206 Page 2

The district court held that the collision with the snowboarder is covered by the second sentence, which identifies “collisions with ... other skiers” as an inherent danger of sk iing, and that t he secondary collision with the fence is covered directly by the first se ntence, which says that skiers accept “the dangers that inhere in that sport ins o far as the da n gers are obvious and necessary.” Jakubovsky does not deny that a fence was both obvious to skiers and “necessary” to r e duce the dangers of the sport. The district court thought it unimportant that “lift towers and their comp o nents” are enumerated in the Act, while “fences” are not. The second se n tence provides that the enumeration is not excl usive, so if a fence is both obvious and necessary the first sentence applies. The di strict court relied on Brodie v. Rive r view , 1996 Mich. App. L EXIS 645 (Nov. 19, 1996), which, although unpublished, holds that the Act applies to fences. See also Anderson v. Pine Knob Ski Resort, Inc ., 469 Mich. 20, 664 N.W.2d 756 (2003) (applying the Act to a co llision with a shack containing timing equipment).

Jakubovsky contends on appeal, as she did in the district court, that the Resort should have done more to preve nt snowboarders from entering the wooded area, which is closed to skiing and snowboarding; that the Resort should have alerted p atrons to the fact that snowboarders were known to use areas closed to skiing; and that the Resort should have built the fence f rom a more flexible substance, such as a plastic net, to reduce the hazards posed by rigid obst a cles. The district court’s careful opinion considers all of these arguments (and some others that we have not me n tioned). We a ffirm for substantially the reason s given by the district court.

The Act does not require structures to be designed to r e duce the damage caused by a collision. Jakubovsky’s lawyer conceded at oral argument that lift towers need not be padded. If a collision with a solid steel tower cannot support liability in tort, neither can a collision with a wooden fence. Counsel contended that towers are special situations, because enumerated in the second sentence; yet the Supreme Court of Michigan in A nderson rejected an argument that the second sen tence limits the scope of the first. The wooden fence was obvious and necessary. The fence in Brodie was plastic netting, which apparently is not the panacea that plaintiff’s counsel depicts it to be. At all events, u nder the Act the obvious structures on a ski course need not be the best available. It is

u n necessary to add to what the district court said about Jakubovsky’s other arg u ments.

A FFIRMED