Duncan, et al., v. Ryba Company, 1999 U.S. Dist. LEXIS 12424

Duncan, et al., v. Ryba Company, 1999 U.S. Dist. LEXIS 12424
Linda Duncan, et al., Plaintiffs, v. Ryba Company, Defendant.
Case No. 2:98-cv-194, CONSENT CASE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN, NORTHERN DIVISION
1999 U.S. Dist. LEXIS 12424
August 6, 1999, Decided
August 6, 1999, Filed
DISPOSITION: [*1] Defendant’s motion for summary judgment granted and plaintiffs’ motion to amend the complaint denied. Case DISMISSED.
COUNSEL: For LINDA DUNCAN, JIM DUNCAN, plaintiffs: Harry Ingleson, II, Lyon & Ingleson, Cheboygan, MI.
For RYBA COMPANY, defendant: Paul M. Brewster, Lewinski & Brewster, Sault Ste. Marie, MI.
JUDGES: TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE.
OPINION BY: TIMOTHY P. GREELEY
OPINION
OPINION
Plaintiffs Linda Duncan and her husband, Jim Duncan, filed this lawsuit against defendant Ryba Company for injuries sustained by Linda Duncan. Defendant has filed a motion for summary judgment, and plaintiffs have filed a motion to amend their complaint. The parties filed a consent to proceed before the undersigned pursuant to 28 U.S.C. § 636(c). A hearing was held on June 1, 1999. Plaintiffs were ordered to file an affidavit supporting their motion to amend their complaint. Plaintiffs filed an affidavit and defendant has filed a responsive pleading to the affidavit.
On August 2, 1996, the Duncans rented two bicycles from Lakeview Bike Rental on Mackinac Island, Michigan. Defendant Ryba Company operates Lakeview Bike Rental on the Island. Prior to taking [*2] the bicycles, plaintiff Linda Duncan signed a release which stated in part:
I hereby assume full responsibility for the use of Bicycle No. …. The owner of the Bicycle assumes no liability for injury to me while I am using same. I do hereby certify that I have this day thoroughly examined the above machine and find the same with all equipment thereon in a safe and satisfactory condition.
Plaintiff Linda Duncan alleges in her original complaint that she noticed that the pedals and handlebars were loose and that the bicycle had no brakes. She immediately notified defendant’s employee and requested that necessary repairs be made on the bicycle. She also asked if the seat could be lowered. According to the complaint, the bicycle was returned to plaintiff with assurances that the repairs had been made. Plaintiff began to ride the bike and immediately noticed that the repairs had not been made. Plaintiff attempted to turn the bicycle around to return to the rental place. However, she lost control and fell into the path of an oncoming horse drawn carriage. Ms. Duncan was kicked by a horse pulling the carriage. Jim Duncan sues for loss of consortium. Plaintiffs request [*3] judgment in the amount of $ 125,000 against defendant.
James and Linda Duncan filed an affidavit after the hearing in this matter to clarify the factual allegations in their complaint and proposed amended complaint. After receiving the “deposit slips,” which also contained the release language, the Duncans were helped by a male who made no representations about the mechanical fitness of the bicycles. The employee encouraged Linda Duncan to ride a boys’ bicycle. Linda Duncan noticed the seat was loose and asked that it be tightened. The employee took some action to tighten the seat. Nothing else was done to the bicycle. As Linda Duncan began to ride the bicycle she noticed “that the seat was still loose and also heard some clicking noise involving the pedals/chains.” Apparently the Duncans decided that they would return the bicycles and rent elsewhere. When Linda Duncan applied the brakes on her bicycle, she was surprised that they did not work. She then fell attempting to dismount the bicycle.
Presently before the Court is defendants’ Motion for Summary Judgment, filed pursuant to Fed. R. Civ. P. 56. Plaintiffs have filed a response and the matter is ready for decision. [HN1] Summary judgment [*4] is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must present “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). While the evidence must be viewed in the light most favorable to the nonmoving party, a mere scintilla of evidence in support of the nonmovant’s position will be insufficient. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Ultimately, the Court must determine whether there is sufficient “evidence on which the jury [*5] could reasonably find for the plaintiff.” Id. at 252.
Defendant argues that the release signed by plaintiff entitles defendant to summary judgment on all claims. [HN2] Under Michigan, law a party may contract against liability for damages caused by ordinary negligence. Dombrowski v. City of Omer, 199 Mich. App. 705, 502 N.W.2d 707 (1993); Skotak v. Vic Tanny International, Inc., 203 Mich. App. 616, 513 N.W.2d 428 (1994). The validity of a release is controlled by the intent of the parties to the contract. A release is valid if it is fairly and knowingly made. A release is invalid if (1) the releasor was dazed, in shock, or under the influence of drugs, (2) the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.
Plaintiffs do not claim that the language contained within the release was improper or insufficient to release defendant from liability for ordinary negligence. Plaintiffs claim that the release is invalid because defendant’s employees only informed plaintiff Linda Duncan that she had to sign the two slips of paper containing the release language to get her deposit back. Plaintiffs [*6] claim that they were not informed that the slips of paper also contained release language. In their response brief it is claimed that plaintiff Linda Duncan did not have her reading glasses with her. The court presumes that plaintiff Linda Duncan is claiming that she did not read the release prior to signing it. [HN3] It is well settled under Michigan law that a party’s failure to read release language before signing the document does not invalidate a proper release. Dombrowski, Mich. App. at 710, 502 N.W.2d at 710. Nor does the law require an explanation that the document is a release or waiver of rights. Paterek v. 6600 Limited, 186 Mich. App. 445, 449, 465 N.W.2d 342, 344 (1990). A release will be held invalid if misrepresentation or fraud was used to induce the releasor to sign the document. A simple misrepresentation will not invalidate an otherwise valid release. In Paterek, the plaintiff, who injured himself playing softball, sued the filed owner. Plaintiff had signed an official team roster and contract which contained release language. Plaintiff alleged that he was never informed that the roster was a release of waiver of his rights. The court [*7] rejected plaintiff’s claim of misrepresentation.
We believe, however, that plaintiffs have misconstrued the meaning of “misrepresent” in this context. . . . [A] misrepresentation must be made with the intent to mislead or deceive. In the instant case, none of the documentary evidence available to the trial court raised a reasonable inference that defendant or its agents intentionally or fraudulently misrepresented the nature of the roster/contract. At the most, the document may have been innocently misrepresented, which would not have been sufficient to invalidate the release. Therefore, there was no genuine issue of material fact and plaintiffs’ claim was barred by the release.
This conclusion is also supported by the principle that one who signs a contract cannot seek to invalidate it on the basis that he or she did not read it or thought that its terms were different, absent a showing of fraud or mutual mistake. As we stated in Moffit v. Sederlund, 145 Mich. App. 1, 8, 378 N.W.2d 491 (1985), lv. den. 425 Mich. 860 (1986), ” [HN4] failure to read a contract document provides a ground for rescission only where the failure was not induced by [*8] carelessness alone, but instead was induced by some stratagem, trick, or artifice by the parties seeking to enforce the contract.” Id. See also Christensen v. Christensen, 126 Mich. App. 640, 645, 337 N.W.2d 611 (1983), lv. den. 417 Mich. 1100.45 (1983). This principle is directly applicable to the facts of this case, where plaintiff admits to signing the release contract, but claims that he was not aware of the terms of the document.
186 Mich. App. at 449, 465 N.W.2d at 345.
Plaintiffs claim that defendant’s employee told plaintiff Linda Duncan that the bike rental agreements were for her deposit. Plaintiffs argue that defendant’s employee misrepresented the nature of the bike rental agreement. It is clear that the bike rental agreement was used to record plaintiffs’ deposit. It is also clear that in very simple language the bike rental agreement released defendant’s liability. The agreement contains three simple sentences. Each of the sentences involve the release of liability. The alleged employee’s statement that the agreement was for the deposit was a correct statement. At most, a simple misrepresentation may have occurred. [*9] However, plaintiff Linda Duncan’s failure to read the release language is no defense to an otherwise valid release that she signed. Plaintiffs can point to no evidence to support a claim that defendant’s employee fraudulently induced Linda Duncan to sign the rental agreement. The record supports the conclusion that plaintiff Linda Duncan signed a valid release of liability. Defendant is entitled to dismissal of plaintiffs’ claims of negligence.
Plaintiffs have filed a motion to amend their complaint to add new theories of negligence, a claim of gross negligence, and a violation of the Michigan Consumers Protection Act. [HN5] Leave to amend a complaint “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). The court may deny leave to amend a complaint where the amendment is brought in bad faith, will result in undue delay or prejudice to the opposing party, or is futile. Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert. denied, 517 U.S. 1121, 116 S. Ct. 1354, 134 L. Ed. 2d 522 (1996).
Plaintiffs negligence claims include failure to properly train, failure to warn of bike, pedestrian and horse traffic, and other dangers on the [*10] Island. However, the release that Linda Duncan signed in the bike rental agreement covered ordinary negligence. Plaintiffs have attempted to overcome the release language by proposing a claim of gross negligence. [HN6] Under Michigan law it is recognized that a release clause absolving a party from liability for gross negligence is against public policy. Universal Gym Equipment v. Vic Tanny International, 207 Mich. App. 364, 367, 526 N.W.2d 5, 7 (1995), vacating remand 209 Mich. App. 511, 531 N.W.2d 719. Plaintiffs assert that defendant was grossly negligent for “failing to inspect and maintain its equipment, with added knowledge of the use to which the equipment was going to be put. . . .” Gross negligence has been defined as conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Jennings v. Southwood, 446 Mich. 125, 136-37, 521 N.W.2d 230 (1994). It appears that although plaintiffs label defendant’s conduct as gross negligence, they are merely suing defendant for negligence. Plaintiffs have failed to explain to this court how defendant was grossly negligent in failing to inspect and maintain its [*11] equipment as opposed to simply negligent in failing to inspect and maintain its equipment. At most, plaintiffs have alleged that defendant’s employee failed to properly tighten the loose seat after plaintiff Linda Duncan complained that the seat was loose. This allegation fails to rise to the level of gross negligence. Moreover, it appears that plaintiff Linda Duncan continued to ride the bicycle, without any perceived difficulty, even after she discovered that the bicycle seat was still loose. Plaintiffs also allege that the brakes on the bike were defective. Plaintiffs have failed to submit allegations or factual circumstances that could possibly cause the alleged negligence to rise to gross negligence. Simply labeling negligence allegations as conduct amounting to gross negligence is not enough to satisfy plaintiffs’ burden in this case.
Plaintiffs also seek to add a claim for a violation of the Michigan Consumer Protection Act, M.C.L. § 445.903, M.S.A. § 19.418(3). While plaintiffs reassert the statutory language in their proposed amended complaint, the proposed amended complaint fails to allege how defendants may have violated the act. Moreover, plaintiffs have failed to submit [*12] a brief with their motion to amend their complaint which could assist the court in understanding the proposed theory of liability. Absent any explanation as to how the factual allegations could possibly justify a violation of the Michigan Consumer Protection Act, as stated in the complaint, the court will not allow the proposed amendment.
Accordingly, defendant’s motion for summary judgment will be granted and plaintiffs’ motion to amend the complaint will be denied.
Dated: August 6, 1999
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE
JUDGMENT
In accordance with the opinion issued this date,
IT IS HEREBY ORDERED that plaintiffs’ motion to amend complaint (Docket # 28) is DENIED.
IT IS FURTHER ORDERED that defendant’s motion for summary judgment (Docket # 26) is GRANTED and this case is DISMISSED.
IT IS SO ORDERED.
Dated: August 6, 1999
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE



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