Michigan’s Recreational Safety Acts

02/26/2014

Michigan has a number of so-called “safety” acts that govern recreational activities. They typically define the activity, identify the risks inherent in it, and require proprietors to provide certain warnings. Then they give proprietors some level of protection. That last proposition isn’t as clear as you’d think, given the furor these enactments provoke. The idea that propels safety act legislation is that someone who voluntarily places themself at risk of bodily injury should also risk their lawsuit rights. Whether this is leveling the playing field or tilting it depends on what side of the “v” your interests lie.

First came Michigan’s Ski Area Safety Act of 1962. Skiers must follow the rules set in the Act. They “accept the dangers that inhere” in the sport “insofar as the dangers are obvious and necessary” and those dangers “include but are not limited to” a list of situations. The Act created comparative fault before the Michigan Supreme Court did in 1973. A skier who violates the Act “shall be liable for that portion of the loss or damage resulting from that violation.” A big deal in ski lawsuits back in 1962. Today, not so much. But that list of acknowledged “obvious and necessary” dangers well-serves defense of ski injury cases.

Next came the Michigan Roller Skating Safety Act of 1988. And yes, it applies to roller bladers. Participants are liable for the damage that results from their violation of the statutory safety rules, Since everyone was already liable for damages they caused, this wasn’t a newsflash even in 1988.

Michigan’s Equine Activity Liability Act was effective in 1995. The equine statute has more teeth. Except where it doesn’t. With some exceptions, those protected by the Act are “not liable for an injury to or the death of a participant” resulting from an inherent risk. §The equine defendant says, “Excellent.” The three teeny exceptions are providing faulty tack or equipment, providing an equine without making reasonable efforts to determine the participant’s abilities, and owning (etc) land or facilities with a dangerous latent condition without posting a warning for participants. Actually, not that teeny. The exception big enough to drive a horse trailer through is if the equine defendant “commits a negligent act or omission that constituted a proximate cause of the injury death or damage.” Oh. Rather odd.

Brand-spanking new is Michigan’s Trampoline Safety Act, effective February 18, 2014. Same set-up as other safety acts. Define the terms. Set some rules for operators. Set rules for trampoliners. Define the inherent dangers. Have trampoliners accept “the dangers that inheres in that activity insofar as the dangers are obvious and necessary.” And for the finale: “A trampoliner, spectator or operator who violates this act is liable in a civil action for damages for the portion of the loss or damage that results from the violation.” Again, from a defender’s view, a bit of a fizzle.

The plaintiff’s bar and the state bar always oppose safety act legislation. The Acts provide a very useful assumption-of-risk defense. But securing summary disposition in favor of a proprietor defendant is no piece ‘o cake because these acts aren’t giving defendants any kind of pure immunity. The defenses are much more nuanced.


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