Don’t charge for your backyard BBQs and your state Recreational Use Statute probably applies

It also helps the defense if you have tried the activity twice already and fallen which is how you were injured the third time.

Winiecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127

State: Michigan, Court of Appeals of Michigan

Plaintiff: Diane A Winiecki

Defendant: Herbert Wolf and Katherine Wolf, landowners, and Richard George, land ski maker

Plaintiff Claims: Negligence probably, but never specifically identified

Defendant Defenses: Michigan Recreational Use Statute

Holding: For the Defendant Landowner

Year: 1985

The plaintiff was a cousin of the land owner. The land owner was hosting a family reunion in their back yard. The defendant Richard George had made a pair of “land skis” which consisted of “two wooden planks with foot holes made from pieces of inner tube.”

Two teams were formed to race around a tree and back. Everyone who tried the game fell. The plaintiff fell twice before falling a third time and injuring herself.

She sued for her injuries. The trial court dismissed her complaint and this appeal followed.

Analysis: making sense of the law based on these facts.

The trial court dismissed the complaint based on the Michigan Recreational Use Statute. The statute quoted in the case has changed. The new act is called MCL 324.73301 Liability of landowner, tenant, or lessee for injuries to persons on property for purpose of outdoor recreation or trail use, using Michigan trailway or other public trail, gleaning agricultural or farm products, fishing or hunting, or picking and purchasing agricultural or farm products at farm or “u-pick” operation; definition

The statute has been expanded considerably since this decision, however, the paragraph quoted by the quote is the same.

(1)        Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.

The plaintiff’s major attempt at defeating the statute was arguing the statute did not apply to backyards, only other tracts. The court did not find any limiting language in the statute that would prohibit the statute from being applied in this case.

The duty of the courts is to interpret statutes as we find them. A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself. The courts may not speculate as to the probable intent of the Legislature beyond the words employed in the act. Ordinary words are to be given their plain and ordinary meaning.

The court also stated the statute would not protect a landowner from gross negligence or willful and wanton misconduct. However there were insufficient allegations made in the complaint for either a gross negligence or a willful and wanton claim to be upheld.

The case was dismissed.

So Now What?

I doubt that being asked to supply a side dish would change this decision.

Have a great holiday.

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By Recreation Law              James H. Moss

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