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STATE OF MICHIGAN
COURT OF APPEALS


MICHAEL GODDE, Plaintiff-Appellant, v BITTERSWEET SKI RESORT, INC., Defendant-Appellee.

UNPUBLISHED October 26, 1999

No. 210676 Allegan Circuit Court LC No. 92-015576 NO

Before: Gage, P.J., and White and Markey, JJ. PER CURIAM. Plaintiff appeals from the circuit court's decision upholding an arbitration decision of no cause of action in this case involving the ski area safety act of 1962 (SASA), MCL 408.321 et seq.; MSA 18.483(1) et seq. We reverse. Plaintiff filed an action to recover for injuries he sustained while downhill skiing at defendant Bittersweet Ski Resort. The parties stipulated to a dismissal of the circuit court action and agreed to arbitrate the matter pursuant to MCR 3.602. Following a hearing, the arbitrator found that plaintiff's accident was caused in part by uneven terrain, which is an obvious and necessary risk skiers assume under the SASA, MCL 408.342(2); MSA 18.483(22)(2), and that the speed at which plaintiff was skiing also was a cause of the accident. The arbitrator concluded that defendant's compliance or noncompliance with the SASA's requirements regarding marking closed hills was irrelevant, and responsibility for plaintiff's injuries need not be apportioned, because plaintiff's injuries were attributable in part to a risk assumed by plaintiff under the act, and as to which defendant's liability was limited under the act by virtue of that assumption. Judicial review of arbitration decisions is very limited. Byron Center Pub Schools Bd of Ed v Kent Co Ed Ass'n, 186 Mich App 29, 31; 463 NW2d 112 (1990). A court may not review an arbitrator's factual findings or decision on the merits, i d, and will set aside an arbitrator's award and decision only where it clearly appears on the face of the award or in the reasons for the decision that the arbitrator through an error of law has been led to a wrong conclusion and that, but for such error, a substantially different award must have been made. Dohanyos, supra. Plaintiff asserts that the arbitrator exceeded his authority. -1

Initially, we observe that contrary to defendant's assertions, the issue whether the arbitrator exceeded his authority is preserved for appeal. The parties expressly agreed that their arbitration would proceed pursuant to MCR 3.602, which applies to statutory arbitration under the Uniform Arbitration Act, MCL 600.5001 et seq.; MSA 27A.5001 et seq. The court rule provides that on the application of a party, a court shall vacate an award if the arbitrator exceeded his power. MCR 3.602(J)(1)(c). The court rule also provides that "[a]ppeals may be taken as from orders or judgments in other civil actions." MCR 3.602(N). The reference in the arbitration agreement to defendant's motion for summary disposition did not foreclose appeals on the bases recognized by the court rule; rather, it expressly preserved the right to appeal issues raised in defendant's motion.1 Further, the statutory interpretation that formed the basis of the arbitrator's decision was, in fact, asserted in defendant's motion for summary disposition, and therefore plaintiff's appeal is properly before us, even accepting defendant's reading of the arbitration agreement. Plaintiff first contends that the arbitrator exceeded his power by deciding a question of law. An arbitrator exceeds his power when he acts beyond the material terms of the contract from which he draws his authority, or in contravention of controlling principles of law. Dohanyos v Detrex Corp (After Remand), 217 Mich App 171, 176; 550 NW2d 608 (1996). Arbitrators may decide legal questions when required to do so by the case. DAIIE v Gavin, 416 Mich 407, 444; 331 NW2d 418 (1982). Thus, the mere fact that the arbitrator decided a question of law is not a basis for vacating the arbitration award. Plaintiff next claims that the arbitrator exceeded his power by making a material error of law. We agree. Section 22 of the SASA provides in pertinent part: (1) (a) While in a ski area, each skier shall do all of the following: Maintain reasonable control of his or her speed and course at all times. *** (d) Ski only in ski areas which are marked as open for skiing on the trail board described in section 6a(e). (2) 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; MSA 18.483(22).] Section 6a of the SASA provides in pertinent part:

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Each ski area operator shall, with respect to operation of ski area, do all of the following: *** (d) Mark the top of or entrance to each ski run, slope and trail which is closed to skiing, with an appropriate symbol indicating that the run, slope, or trail is closed, as prescribed by rules promulgated under section 20(3). (e) Maintain 1 or more trail boards at prominent locations in each ski area displaying that area's network of ski runs, slopes, and trails and the relative degree of difficulty... and indicating which runs, slopes, and trails are open or closed for skiing. Section 24 of the SASA provides: A skier or passenger who violates this act, or an operator who violates this act shall be liable for that portion of the loss or damage resulting from that violation. Relying on Barr v Mt Brighton, Inc, 215 Mich App 512; 546 NW2d 273 (1996), the arbitrator concluded that defendant's non-compliance with its statutory duty to mark the entrance to closed trails with an appropriate symbol indicating the closure was irrelevant2 because plaintiff's injury was due in part to a condition (variation in terrain) as to which plaintiff assumed the risk under the SASA. 3 The arbitrator found it unnecessary to apportion liability for the loss under section 24 of the SASA. 4 However, Barr, supra, upon which the arbitrator relied, was effectively overruled by the decision of the conflict panel in Dale v Beta-C, Inc, 227 Mich App 57; 574 NW2d 697 (1997), and therefore we refer the matter back to the arbitrator for further proceedings. In Skene v Fileccia, 213 Mich App 1; 539 NW2d 531 (1995), this Court held that the plaintiff injured roller skater's action was barred by the assumption of risk provisions of the roller skating safety act (RSSA), MCL 445.1721 et seq.; MSA 18.485(1) et seq. Relying on cases decided under the SASA, the Skene Court concluded that the assumption of risk clause of the RSSA rendered the reasonableness of the roller-skating rink operator's conduct irrelevant. Id. at 5. In Barr, supra, the plaintiff alleged a violation of the ski-area operator's statutory duty to properly mark closed trails. Relying on Skene, the Barr Court held that the assumption of risk provision of the SASA is not dependent on the operator's compliance with other sections of the SASA. 5 The prior vacated opinion in Dale, 223 Mich App 802; 566 NW2d 640 (1997), affirmed the dismissal of the plaintiff roller-skater's complaint only because constrained to do so by Skene. The Dale conflict panel rejected the underlying premise of the prior cases that if an injury arises out of a circumstance that is covered by the assumption of risk provision of the RSSA, the operator's non compliance with its own statutory duties under the act is irrelevant. The conflict panel concluded that this construction of the RSSA rendered the liability provisions of the RSSA, sections 3 and 6, nugatory.

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The conflict panel's interpretation of

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