Release Signed By Volunteer Ski Patroller Not ‘Ambiguous’

The Michigan Supreme Court has reversed a ruling that allowed a negligence suit to proceed against a ski resort because, contrary to the Michigan Court of Appeals decision in the case, the release signed by the injured party was not ambiguous.

In Swanson v Bittersweet Ski Resort, Inc. (MSC Docket No. 167665), the plaintiff, Robert Swanson, was injured while working as a volunteer ski patroller at the defendant’s ski resort. The plaintiff sued the resort and its lift operator for negligence in Allegan County Circuit Court. He claimed the defendants violated the Ski Area Safety Act (SASA), MCL 408.321, et seq., by breaching the duty of ordinary care. The plaintiff’s wife also filed a claim for loss of consortium.

The defendants denied liability, asserting the plaintiffs’ claims were barred by the SASA and by a release that Robert had signed.

The Allegan County trial court granted the defendants’ motion for summary disposition and dismissed the lawsuit. The plaintiffs appealed.

The Court of Appeals reversed in a published opinion (COA Docket No. 366258). The appeals court held that 1) the evidence supported a finding that the defendant violated the SASA and 2) the release signed by the plaintiff was ambiguous. Therefore, the Court of Appeals ruled that summary disposition for the defendant was improper. The defendant appealed.

Rather than granting leave to appeal, the Michigan Supreme Court issued an order reversing Part III(B) of the Court of Appeals decision regarding the release.

“The Court of Appeals erred by holding that the release in question is ambiguous,” the Michigan Supreme Court wrote. “Instead, the release clearly states that plaintiff … ‘voluntarily assume[d] all risks of … personal injury … while on the premises of the ski areas’ and he ‘expressly release[d] from liability the ski area, [its] agents, [and its] employees … from any and all claims … which [he] now has or which may hereafter accrue on account of any foreseen or unforeseen bodily injuries and/or damages.’”

According to the high court, “’any and all claims’ clearly include those claims that arose while [the plaintiff] was working as a volunteer ski patroller.” As a result, the Court of Appeals erred by “creat[ing] ambiguity where the terms of the contract are clear,” the justices said, citing Kendzierski v Macomb County, 503 Mich 296 (2019).

In addition, the Michigan Supreme Court vacated Part III(A) of the Court of Appeals opinion regarding liability under the SASA. The high court remanded the case “for consideration of the issue raised by the plaintiffs but not addressed by that court during its initial review of this case.”

COA Opinion: Overview

The plaintiff, while working as a volunteer ski patroller at the defendant’s ski resort, boarded a lift to take him to the top of a hill. He carried a toboggan, which had to be hooked to the ski lift. The defendant, Christina Regalado, was operating the lift.

The plaintiff asserted that, as Regalado pulled the toboggan in front of the advancing lift chair, the angle was not in line with the chair. He claimed that when Regalado shifted the toboggan so it was in line with the chair, this forced him to grab the 70-80 pound toboggan, which he attempted to hook to the chair while the lift was moving. The plaintiff alleged that, as the lift left the platform, his ski became trapped under the toboggan and got snagged on an object, causing his leg to twist. The plaintiff claimed that he yelled for Regalado to stop the lift but ended up flipping off the back of the chair, hanging onto it with his right arm as it kept moving. The plaintiff eventually lost his grip and fell about 20 feet to the ground. Regalado testified that she did not see the plaintiff struggling.

In an August 2024 published opinion signed by Judge Sima G. Patel, Judge Michelle M. Rick and Judge Kathleen A. Feeney, the Court of Appeals reversed the trial court’s dismissal of the plaintiff’s claims.

Regarding the SASA, the Court of Appeals held the statute did not bar the plaintiff’s suit because he was not “participating” in the “sport of skiing” at the time he was injured. “Considering the plain meaning of the phrase ‘participates in the sport of skiing,’ we agree with plaintiffs that under MCL 408.342(2), [the volunteer ski patroller] was not participating in the sport of skiing when he was injured on the ski lift …,” the appeals court wrote. “He thus did not belong to the class of plaintiffs whose personal injury claims the Legislature sought to prevent by enacting the SASA.”

According to the Court of Appeals, the SASA says that “if a skier or a ski operator violates the duties defined in the Act, the skier or operator ‘shall be liable for that portion of the loss or damage resulting from that violation.’” In this case, the appeals court said the evidence could lead to a conclusion that Regalado did not use reasonable care when loading the toboggan and in ensuring the plaintiff was safely secured.

“The evidence here supports the conclusion that defendant, through its operator, violated the SASA,” the Court of Appeals said. “Thus, under MCL 408.344, defendant is liable for the portion of loss or damage resulting from that violation.”

Regarding the release the plaintiff had signed, the Court of Appeals noted that “it was designed to broadly absolve defendants of any liability for injuries sustained while skiing.” Therefore, “[b]y logical extension, it would appear to apply to injuries [the plaintiff] or his family might sustain while skiing for recreation.”

However, “nothing in the plain terms of the contract indicate[d] that [the release] applied to injuries sustained while [the plaintiff] was getting on a ski lift during a shift as a ski patroller,” the Court of Appeals explained. “The mere presence of the handwritten words ‘ski patrol’ on the form does not automatically indicate that [the plaintiff] knew that the contents of the release applied to his activities as a ski patroller.”

The plaintiff “testified at his deposition that all ski patrollers ski for free, and the perk of the job is that each patroller’s family also gets to ski for free for an entire ski season,” the Court of Appeals observed. “He further testified that if he did not sign the release, he could not serve as a volunteer ski patroller. Beyond that, it is unclear whether he understood that defendants intended for the release, which says nothing on its face regarding volunteer activities, applied to injuries sustained while working as a volunteer ski patroller. Thus, the terms of the contract are ambiguous, and on this record, summary disposition was inappropriate.”