Advertisements

When you are mountain biking on land you are unfamiliar with, probably private land, any condition of the land causing any injury is your responsibility to find.

Michigan mountain biker that struck a cable gate liable for his own injuries because of the Michigan Recreational Use Statute. Actions of the land owner in creating the gate were not gross negligence when they had posted the property with no trespass signs.

Schoonbeck v. Kelly, 2015 Mich. App. LEXIS 223

State: Michigan, Court of Appeals of Michigan

Plaintiff: Thomas H. Schoonbeck

Defendant: v Casey J. Kelly, a/k/a Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Michigan Recreational Use Statute

Holding: for the defendant land owner and land lessee

Year: 2015

The plaintiff was mountain biking on private land that was adjacent to state land. While traveling down a trail he was injured when he struck a cable being used as a gate strung between two trees. The cable had a “No Trespassing” sign facing away from the plaintiff’s direction of travel so people coming onto the land could see the sign.

The land was owned by one defendant, Nielsen, who leased the land to Donajkowski and Kelly to use for hunting. Donajkowski and Kelly created the cable gate because it was the cheapest and easiest gate to erect. They also placed “no trespassing” signs around the property and at the corners of the property.

The plaintiff sued for negligence and gross negligence. The defendants filed a motion for summary disposition on the negligence claim and argued that installing a gate was not gross negligence. The trial court agreed, and this appeal followed.

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

The Michigan Recreational Use statute is very comprehensive. The statute covers any cause of action, which is a “concurrence of facts giving rise to the obligation sought to be enforced against the defendant.” on the land. That definition also is based on premise’s liability law, which is the law that is based on ownership of land.

The plaintiff’s argued the statute was based on laws occurring on the land, not of the land. Mainly the law dealt with nuisance claims, which is “unreasonable interference with a common right enjoyed by the general public.”

However, the argument failed in total because the nuisance argument was not raised in the lower court so it could not be argued in the appellate court.

The next argument was whether erecting (stringing) a cable gate on the land was gross negligence. The plaintiff argued the gate case created with “deliberate indifference to the likelihood that an injury would result.”

The court then looked at the definition of gross negligence in Michigan.

A person’s conduct is grossly negligent if the person engages in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” “Evidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Willful and wanton misconduct occurs when the defendant acted “with a set purpose to accomplish the results which followed the act,” which “implies malice.” “Willful and wanton misconduct is not a high degree of negligence; rather, it is in the same class as intentional wrongdoing.”

The plaintiff argued the defendants should have done more. They should have built a gate at the other end of the property, notified neighbors the land was now closed or turned the No Trespassing sign around. However, allegations that someone could have done more are not proof that what was done was gross negligence. “To be grossly negligent, a person must disregard precautions or safety in a way that suggests that he or she does not care about the welfare of others.”

The allegations of the plaintiff were the defendants could have done more, not that what they did was grossly negligent.

At best, Schoonbeck has only alleged that Donajkowski and Kelly could have done more. He has not provided any evidence that their actions showed a substantial lack of concern for whether an injury might result.

The actions of the defendant were not grossly negligent and the Michigan Recreational Use Statute provides protection for the negligence claims. The trial court dismissal of the complaint was upheld.

So Now What?

I don’t have mostly indifference to the plaintiff in this case. Mountain biking is defined by its falls, just like skiing. Not falling, not trying hard enough, etc.

Here the landowner/lease did what every other landowner did. The real sole issue was, whether the landowner should have done more when the status to the land allegedly changed. However, the plaintiff did not even prove that. The prior landowner did not allow mountain biking or other activities; he just did not go out and try to stop them.

If you own the land, and you don’t want people on it, do what the law requires to protect your land.

If you are a mountain biker, make sure you know where you are before you go barreling down a trail. Much like a terrain park skiing, check out the jumps before cruising through them.

clip_image002What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law           Rec-law@recreation-law.com     James H. Moss

 

 

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Recreational Use Act, Landowner, Mountain Biking, Gross Negligence, Deliberate Indifference,  Premises Liability,

 

Advertisements


Have a Comment? Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s