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### STATE OF MICHIGAN

COURT OF APPEALS

DONALD J. RHODA, Guard ian/Conservator of TREVOR RHODA, and TAMMIE WALKER,

Plaintiff-Appellants, UNPUBLISHED March 24, 2016

v No. 321363 Marquette Circuit Court PETER E. O’DOVERO, INC. d/b/a MARQUETTE MOUNTAIN, LC No. 13-051044-NI

Defendant-Appellee.

Before: G LEICHER , P.J., and K. F. K ELLY and S ERVITTO , JJ.

K. F. K ELLY

, J. ( concurring ).

I concur in much of the majority’s analysis but write separate ly because I disagree with its conclusion that the snowboarding rail, albeit defective, was no t an obvious and necessary danger inherent in the sport. I believe that such a conclusion goes b eyond what is necessary to resolve the issue

before us.

Defendant repeatedly concedes t he gap in the snowboarding rail constituted a hazard and no snowboarders should have been using the rail. There is, theref ore, no dispute that the rail as plaintiff encountered it was defective. That is precisely why defendant t ook certain measures to “close” the run. However, as the majority correctly concludes, in placing two re d poles in an “X” formation at the top of the defective rail, defendant did not close the rail in the man ner prescribed by Mich Admin Code, R 408.82. Consequently, I agree that defendant failed to comply with its statutory obligation under the Ski Area Safety Act of 1962 (SASA), MCL 408.321 et seq. , and in particular § 326a(d) of SASA, which requires ski area operators to properly mark a closed run. The consequence of this breach is that defendant is “liable for that por tion of the loss or damage res ulting from that violation.” MCL 408.344.

Rusnak v Walker, 273 Mich App 299; 729 NW2d 542 (2006) compels that, even if pla intiff’s accident was the result of an obvious and necessary risk inhere nt in the sport and plaintiff assumed such a risk under the assumption-of-the-risk provision in SASA, MCL 408.432(2), plaintiff is eligible to recover damages to the extent de fendant’s violation of SASA con tributed to plaintiff’s injury. Rusnak dealt with a situation in which a downhill skier was injured by an uphill skier. The plaintiff’s suit was not brought against the ski area operator, as here, but was bro ught against the uphill skier. However, the same principle set forth in Rusnak applies with equal force here:-2- The actions or inactions of a defendant cannot always be irrel evant, for if they were, the duties and liabilities placed on individual skiers wo uld have no meaning. Indeed, we cannot favor one section, such as the assumption-of- risk provision, over other equally applicable sections, such as the duty and liability pro visions. Reading these provisions together while giving them full force and effect, we hold that a plaintiff assumes the risk of colliding with another skier because that i s what the Legislature has specified under MCL 408.342(2), bu t a plaintiff can still recov er limited damages against an individual skier if the plaintiff can prove that a defendant violated the duties placed on skiers [and ski area operators] and that the defendant's violat ion of the SASA caused the injuries suffered by the plaintiff, MCL 408.344. [ Rusnak , 273 Mich App at 309.]

Applied here, Rusnak stands for the proposition that SASA’s assumption-of-risk prov ision does not trump defendant’s statutory obligation to properly mark that a course is closed. Thus, the majority properly concludes that defendant remains potentially liable fo r its proportionate share of fault for plaintiff’s damages. Rusnak held:

when a plaintiff has adequately pleaded or proven that an incid ent occurred because of a defendant's violation of the SASA, those actions of the defenda nt are relevant for purposes of determining the allo cation of fault—and thus damage s—between the plaintiff and the defendant. Under this view, the plain language of the e ntire SASA is given force and effect. Not only is this read ing consistent with the plain language of the relevant sections, it also conforms to the legislative purpose in enacti ng the SASA, i.e., to reduce the liability of ski operators while at the same time placing m any, but not all, risks of skiing on the individual skiers. [ Id. at 313-314.]

Instead of simply remanding the matter so that a jury may deci de the comparative fault of the parties, I believe the majority takes an unnecessary step in ad dressing whether a “defective” snowboarding rail may constitute an obvious and necessary dange r inherent to the sport of snowboarding. However, having concluded that the assumption-of -risk provision does not trump defendant’s statutory obligations, the issue to be decided by a trier of fact is whether defendant’s failure contributed to plaintiff’s injury. Rusnak compels that, even if plaintiff’s accident was the result of an obvious and necessary risk inherent in the sport, plaintiff is eligible to recover damages to the extent defendant’s statutory violation contributed to plaintiff’s inju ry. Therefore, the jury’s inquiry will be the same whether plaintiff assumed the risk of encountering a defec t in the rail or not. A jury will decide to what extent, if any, defendant’s statutory failure contributed to plaintiff’s injury and to what extent plaintiff’s alleged intoxication and failure to heed some warni ngs likewise contributed to the accident. The majority’s analysis on this issue appears to make factual c onclusions on the ultimate issue of fault. I, therefore, disagree to the extent the majority may be read t o conclude that, as a matter of law, a gap in a snowboarding rail is not necessary or obvious to the sport. Such a discussion is unnecessary to the

resolution of the issue before us.

/s/ Kirsten Frank Kelly