Stay away from Grooming Machines when you are skiing and boarding. They are dangerous!

Ski area safety acts were written, no matter what anyone says, to protect ski areas. However, if the ski area does not follow the statutes, then they cannot use the statute as a defense.

Citation: Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

State: Michigan, United States District Court, E.D. Michigan, Southern Division

Plaintiff: Corinne Dawson et al.

Defendant: Mt. Brighton, Inc. et al.

Plaintiff Claims: Negligence

Defendant Defenses: Michigan Ski Safety Act

Holding: for the plaintiff

Year: 2013

Summary

Michigan Ski Safety Act lists grooming machines as an inherent risk of skiing. The act also requires signs to be posted on slopes where groomers are operating. Failure to have the proper sign creates an issue as to whether the inherent risk applies defeating the ski areas’ motion for summary judgment.

Facts

A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.

An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)

Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)

A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.

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

The only real defense the defendant ski area had was the Michigan Ski Safety Act. The plaintiffs argue that because the defendants had violated the act, they could not use the act to protect them from a lawsuit.

The court then went through the act looking at the purpose for its creation and the protections it affords ski areas. One specific part of the act’s states that snow-grooming equipment is a risk.

MCL § 408.342. Duties of skier; acceptance of inherent dangers.

(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.

However, the act also requires that when snow grooming equipment is on the slope. there must be a sign posted.

MCL § 408.326a. Duties of ski area operators.

(f) Place or cause to be placed, if snow-grooming or snowmaking operations are being performed on a ski run, slope, or trail while the run, slope, or trail is open to the public, a conspicuous notice at or near the top of or entrance to the run, slope, or trail indicating that those operations are being performed.

The plaintiff argued the signs were not posted on the run.

The issue for the court was, did the violation of the duty created by the statute remove the defense the Michigan Ski Safety Act provides.

The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.”

However, the court found that the issue presented by the plaintiff, that no sign was present created a genuine issue of material fact, which denies a motion for summary judgment.

In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.”

The case went on to discuss other motions filed that did not relate to the facts or legal issues of interest.

So Now What?

A Colorado ski area had a multi-year nasty battle over that same issue eleven years earlier. Now signs are permanently posted at all lift loading areas and the at the tops of unloading areas so you know you can realize that groomers may be on the slopes.

At the same time, most ski areas have worked hard to remove snow groomers from the slopes when skiers are present.

For another case, colliding with a snow cat see: The actual risk causing the injury to the plaintiff was explicitly identified in the release and used by the court as proof it was a risk of skiing and snowboarding. If it was in the release, then it was a risk.

What do you think? Leave a comment.

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Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

Dawson et al., v. Mt. Brighton, Inc. et al., 2013 U.S. Dist. LEXIS 43730, 2013 WL 1276555

Corinne Dawson et al., Plaintiffs, v. Mt. Brighton, inc. et al., Defendants.

Civil Action No. 11-10233

United States District Court, E.D. Michigan, Southern Division.

March 27, 2013

ORDER DENYING MOTION FOR SUMMARY JUDGMENT, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SANCTIONS AND ORDER SETTING FINAL PRETRIAL CONFERENCE AND TRIAL DATES

DENISE PAGE HOOD, District Judge.

I. BACKGROUND

On August 10, 2011, a First Amended Complaint was filed by Plaintiffs Corinne Dawson, individually and as co-Next Friend of A.M., a minor, Peter Miles, co-Next Friend of A.M., a minor, Justine Miles and Dwaine Dawson against Defendants Mt. Brighton, Inc. and Robert Sturgis alleging: By A.M., by and through his Co-Next Friends, Statute Violations against All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count I); By Corinne Dawson, Dwaine Dawson and Justine Miles, Statute Violations by All Defendants under the Michigan Ski Area Safety Act, M.C.L. § 408.326a (Count II); By A.M., by and through his Co-Next Friends, Common Law Premises Liability against All Defendants (Count III); and, By Corinne Dawson, Dwaine Dawson and Justine Miles, Common Law Premises Liability against All Defendants (Count IV).

A.M., a 12 year old minor and a beginner skier, was at Mt. Brighton participating in a school sponsored ski trip on January 30, 2008. The temperature the day before and early morning hours was over 40 degrees, but by 8:00 a.m. the temperature was less than 10 degrees, with strong winds. Mt. Brighton began grooming the grounds later than normal on January 30, 2008, because of the poor conditions the day before. Only two ski slopes were open, the two rope beginner ski slopes.

An employee of Mt. Brighton for about 8 years, Sturgis operated the grooming machine that day. (Sturgis Dep. at 19) Sturgis indicated that his main concern when operating the machine was the safety of skiers around the grooming machine while in operation. (Sturgis Dep. at 52) Sturgis was grooming with another operator, Mike Bergen. (Sturgis Dep. at 83) Bergen led the grooming, followed by Sturgis. They began by grooming the bunny slopes and intermediate slopes which were groomed prior to the opening of the resort that day. (Sturgis Dep. at 66-67, 83, 86)

Sturgis and Bergen also groomed the area described as the “black and red” slopes, which were closed. (Sturgis Dep. at 86) Sturgis and Bergen then went to groom the area called the “blue” slope, which was closed. (Sturgis Dep. at 87) The resort had opened by this time. The route to the blue slope from the black and red slopes took them along the Main Lodge. Sturgis testified that his groomer passed well below the bunny hill slope, located to his left. (Sturgis Dep. at 96-98) Sturgis saw two individuals on top of the bunny hill and two girls next to a pump house to his right. Sturgis maintained eye contact with the girls because they were closer to the grooming machine than the individuals on top of the bunny hill. (Sturgis Dep. at 98) As Sturgis was going around the pump house, a boy alongside the groomer was saying something about the tiller. Sturgis jumped out and saw A.M. under the tiller. Sturgis lifted up the tiller, shut the machine off and sought first-aid. Sturgis had no idea from whence A.M. had come. (Sturgis Dep. at 104-05)

A.M. testified that he received a lesson that day on how to start and stop on skis and had skied down the bunny slope several times with his friends. (A.M. Dep. at 30-31, 33-34). This was A.M.’s second time skiing. A.M. had been skiing in the beginner area and had seen the snow groomers. (A.M. Dep. at 32-33) A.M. indicated he was racing with another boy down the hill. When he reached the bottom, he turned around to say “I won” and that was the last thing he remembered. A.M. testified that as he was going down the hill, he was trying to stop, “was slipping and trying to grab something.” (A.M. Dep. at 32-33) A.M. struck the groomer and was entrapped in the tiller. A.M. was dragged over 200 feet by the groomer.

This matter is now before the Court on Defendants’ Motion for Summary Judgment. Plaintiffs filed a response, along with various documents, including “Plaintiffs’ Separate Statement of Facts”, Declaration of Larry Heywood, and Declaration of Timothy A. Loranger. Defendants filed a reply. Plaintiffs also filed a document titled “Plaintiffs’ Evidentiary Objections and Motion to Strike” portions of Defendants’ summary judgment motion. Defendants replied to this motion. Defendants filed a Motion to Adjourn Scheduling Order Dates seeking adjournment of the December 4, 2012 trial date, to which Plaintiffs submitted a response that they did not object to the motion.

II. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact, ” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.

B. Michigan’s Ski Area Safety Act

Defendants argue they are entitled to summary judgment under Michigan’s Ski Area Safety Act (“SASA”) which bars recovery for any injuries under common law premises liability or negligence claims. Plaintiffs respond that because of Defendants’ violation of SASA, specifically failing to post any signs that grooming was taking place, Defendants are not immune from liability under SASA. Plaintiffs also argue that SASA does not apply since the place where the incident occurred was not a ski run, slope or trail.

SASA was enacted in 1962. The purposes of SASA include, inter alia, safety, reduced litigation, and economic stabilization of an industry which contributes substantially to Michigan’s economy. Shukoski v. Indianhead Mountain Resort, Inc., 166 F.3d 848, 850 (6th Cir. 1999). The Michigan legislature perceived a problem with respect to the inherent dangers of skiing and the need to promote safety, coupled with the uncertain and potentially enormous ski area operators’ liability. Id. (citation omitted) Given the competing interests between safety and liability, the legislature decided to establish rules regulating ski operators and the ski operators’ and skiers’ responsibilities in the area of safety. Id. The Legislature decided that all skiers assume the obvious and necessary dangers of skiing, limiting ski area operators’ liability and promoting safety. Id. The statute states:

(1) While in a ski area, each skier shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Stay clear of snow-grooming vehicles and equipment in the ski area.

(c) Heed all posted signs and warnings.

(d) Ski only in areas which are marked as open for skiing on the trial board…

(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.

M.C.L. § 408.342. This subjection identifies two types of dangers inherent in the sport. Anderson v. Pine Knob Ski Resort, Inc., 469 Mich. 20, 24 (2003). The first is described as natural hazards and the second as unnatural hazards. Id. Both types of examples are only examples because the Legislature used the term “dangers include, but are not limited to.” Id. at 25.

A.M. was injured by snow-grooming equipment, which is expressly noted in SASA. Plaintiffs argue that there was no sign posted regarding the use of snow-grooming equipment, as required in the statute, M.C.L. § 408.326(a), which states,

Each Ski Area operator shall, with respect to operation of a ski area, do all of the following:

* * *

(f) Place or case to be placed, if snow grooming or snow making operations are being performed on a ski run, slope, or trial while the run, slope, or trial is open to the public, a conspicuous notice at or near the top of the entrance to the run, slope, or trail indicating that those operations are being performed.

M.C.L. § 408.326(a).

The Michigan courts have held that even if there are allegations that provisions of SASA were violated which may have caused injury, there is no limitation in SASA as to the risks assumed. Rusnak v. Walker, 273 Mich.App. 299, 307 (2006). Rusnak was a suit under SASA involving a collision between two skiers. In Rusnak, the Michigan Court of Appeals noted that, “the Legislature did not start off the subsection by stating except for violations of other sections of this act, ‘ the skier assumes the obvious and necessary dangers inherent in the sport.” Id . (italics added). The assumption of the risk provision in M.C.L. § 408.342 is “clear and unambiguous, providing that a skier assumes the risk of obvious and necessary dangers that inhere in the sport, and [t]hose dangers’ specifically include collisions” with snow groomers. Id.

The Michigan Supreme Court has made clear that the Legislature created a certainty concerning a ski area operator’s liability risks. Anderson, 469 Mich. at 26. In a case where a skier collided at the end of a ski run with a shack that housed race timing equipment, the Michigan Supreme Court noted:

To adopt the standard plaintiff urges would deprive the statute of the certainty the Legislature wished to create concerning liability risks. Under plaintiff’s standard, after any accident, rather than immunity should suit be brought, the ski-area operator would be engaged in the same inquiry that would have been undertaken if there had been no statute ever enacted. This would mean that, in a given case, decisions regarding the reasonableness of the place of lift towers or snow groomers, for example, would be placed before a jury or judicial fact-finder. Yet it is just this process that the grant of immunity was designed to obviate. In short, the Legislature has indicated that matters of this sort are to be removed from the common-law arena, and it simply falls to us to enforce the statute as written. This we have done.

Id. There is no need to consider whether the ski operator retains a duty under common-law premises liability. Id. at 26-27. Plaintiffs’ argument that Defendants violated SASA by failing to post the appropriate sign that snow grooming was taking place does not override the express assumption of the risk by the skier enacted by the Legislature.

The assumption of the risk provision as to groomers specifically, is “broad” and “clear” and “contains no reservation or limitation of its scope.” Rusnak, 273 Mich.App. at 309. However, “[t]he actions or inactions of a defendant cannot always be irrelevant, for if they were, the duties and liabilities placed on individual skiers would have no meaning.” Id. “Indeed, we cannot favor one section, such as the assumption-of-risk provision, over other equally applicable sections, such as the duty and liability provisions.” Id. The Rusnak panel held that a plaintiff does assume the risks set forth in the statute. Id. The provisions must be read together while giving them full force and effect. Id. However, a plaintiff can still recover limited damages against a defendant if the plaintiff can prove that a defendant violated SASA, causing the injuries suffered by the plaintiff. Id. In such a situation, the defendant’s acts would be relevant for a “comparative negligence” evaluation. Id. at 311. Depending on the facts, the actions of a defendant may be relevant for purposes of determining the allocation of fault and, perhaps damages. Id. at 313. Reading the provisions together is consistent with the plain language of the two provisions at issue, which conform to the legislative purpose of SASA – to reduce the liability of ski operators, while at the same time placing many, but not all, risks of skiing on the individual skiers. Id. at 314.

In this case, it is clear A.M. assumed the risk of skiing. However, A.M. has created a genuine issue of material fact as to whether there was a notice at or near the top of or entrance to the ski run, slope, or trail indicating that snow grooming operations were being performed as set forth in M.C.L. § 408.236a(f). There remains a genuine issue of material fact as to whether the incident occurred falls within the phrase, “ski run, slope, or trail.” The State of Michigan Investigator and Defendants’ expert, Mark Doman, stated at his deposition that the area where the incident occurred could be described as a “ski run, slope, or trail” even though Defendants argue that this area is a “transition area.” (Doman Dep., p. 74) Summary judgment on the issue of notice under M.C.L. § 408.236a(f) is denied. Although there is no genuine issue of material fact that A.M. assumed the risk as to snow groomers under SASA, Defendants’ actions as to their duties under M.C.L. § 408.236a(f) as to notice is relevant for purposes of determining the allocation of fault and damages under a comparative negligence analysis.

III. SANCTIONS

Defendants seek sanctions against Plaintiffs under the Court’s inherent power. Defendants argue that Plaintiffs have no intention to follow applicable well established court and ethical rules, including: page limit; entering onto Mt. Brighton for inspection in violation of Fed.R.Civ.P. 34 without notice to Defendants; and having contact with the owner of Mt. Brighton without counsel in violation of the Michigan Rules of Professional Conduct 4.1 and 4.2. Defendants seek dismissal based on Plaintiffs’ alleged pattern of discovery abuse. Defendants claim that Plaintiffs’ counsel took an oath in this Circuit to follow the rules and practice with integrity, yet counsel had no plans to follow the oath and this Court must sanction Plaintiffs’ counsel to deter any further continued conduct. Plaintiffs respond that they did not violate the court or ethical rules.

A. Page Limit

As to the page limit claim, Defendants argue that Plaintiffs violated Local Rule 7.1 regarding page limits since Plaintiffs submitted separate documents setting forth their version of “material facts” separate from Plaintiffs’ response brief, in addition to other documents including “objection” to the summary judgment motion and “declarations” by Plaintiffs’ experts.

Plaintiffs respond that as to the page limit issue, this matter was argued at the time the Court heard the summary judgment motion. In any event, Plaintiffs claim they did not exceed the page limit since Local Rule 7.1(d)(3) states that the text of a brief may not exceed 20 pages and that Plaintiffs’ response brief was only 19 pages. Plaintiffs agree that the accompanying documents in support of their brief included declaration of expert witness, list of material facts, a motion to Defendants’ report and objections to Defendants’ purported “evidence.” These documents are not part of their response “brief” but other documents supporting Plaintiffs’ arguments. Plaintiffs argue that while there is nothing in the rules which requires the filing of a separate document of undisputed facts, there is nothing prohibiting such a filing.

Local Rule 7.1(d)(3) provides, “[t]he text of a brief supporting a motion or response, including footnotes and signatures, may not exceed 20 pages. A person seeking to file a longer brief may apply ex parte in writing setting forth the reasons.” E.D. Mich. LR 7.1(d)(3). A review of Plaintiffs’ “Response” to the Motion for Summary Judgment (Doc. #28) shows that the brief is only 19 pages, which does not violate Local Rule 7.1(d)(3). However, Plaintiffs did file other documents supporting their opposition including a separate document entitled “Plaintiffs’ Separate Statement of Material Facts” (Doc. #29) which consists of 14 pages. This document highlights facts and source of the facts, including declarations and deposition page numbers. Plaintiffs also filed a separate document entitled “Plaintiffs’ Evidentiary Objections and Motion to Strike” (Doc. #30) which consists of 9 pages. Plaintiffs also filed two documents entitled “Declaration of Larry Heywood” (Doc. #31) and “Declaration of Timothy A. Loranger, Esq.” (Doc. #32).

Defendants did not cite to any authority, other than the Court’s inherent power, that violation of a Local Rule must result in dismissal of a case. It is noted that at the time of the filing of the response and other documents in September 2012, Defendants did not object to these filings by a separate motion until the instant motion which was filed on November 26, 2012. Defendants addressed the documents Plaintiffs filed in Defendants’ reply brief and so argued at oral arguments. Generally, exhibits and declarations supporting motions or response briefs are “attached” as exhibits to the main brief. As to Plaintiffs’ Separate Statement of Material Facts and Evidentiary Objections and Motion to Strike, these arguments should have been made in Plaintiffs’ main brief.[1] These documents may have been filed to circumvent the page limit requirement. However, the Court has the discretion to allow filings separate from the parties’ main brief. A violation of the page limit local rule does not support dismissal of the case as sanctions.

B. Rule 34

Defendants argue that Plaintiffs violated Fed.R.Civ.P. Rule 34 regarding inspection of land when Plaintiffs’ counsel went to Mt. Brighton, without notice to Defendants and their counsel on two occasions.

Plaintiffs admit that counsel visited Mt. Brighton property without providing any notice to the defense because Plaintiffs believed no such notice was necessary since Mt. Brighton was open to the public for business when they visited. Plaintiffs argue that Rule 34 only states that a party “may” serve a request to permit entry and that the rule does not state “must.” Plaintiffs admit photographs were taken at that time, but that taking photographs was not prohibited by Mt. Brighton. Plaintiffs claim that admissions of these photographs at trial should be brought as motions in limine.

Rule 34 of the Rules of Civil Procedure provides:

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

* * *

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Fed. R. Civ. P. 34(a)(2).

Generally, if a party seeks protection from certain discovery matters, that party usually files a Motion for protective order under Fed.R.Civ.P. Rule 26(c). Here, Defendants did not seek such protection, nor did Defendants object to Plaintiffs’ entry of the land once they learned of the first instance in June 29, 2012 during the deposition of David Mark Doman wherein Plaintiffs’ counsel admitted he had sent an agent to take pictures of Defendant’s premises without notice to defense counsel. The instant Motion as filed in November 2012. Discovery rule violations are usually addressed under Rule 37. Defendants did not file a motion under Rule 37 to prohibit Plaintiffs from using any photographs they took in connection with any pre-trial proceedings at that time.

The second incident occurred on November 14, 2012, the same day oral argument was heard on the summary judgment motion. Joseph Bruhn, owner of Mt. Brighton, indicated he met three gentlemen who did not identify themselves but indicated they were there for “breakfast” even though it was 11:00 a.m. (Bruhn Aff., ¶ 5) Mr. Bruhn indicated the restaurant was not open and later noticed the gentlemen were taking pictures from the deck. (Bruhn Aff., ¶ 8) Mr. Bruhn learned the gentlemen were lawyers from Los Angeles in town to attend facilitation of this matter to be held the next day, November 15, 2012. (Bruhn, Aff., ¶9) This second incident is troublesome. Although Mr. Bruhn did not identify himself as the owner of Mt. Brighton, Plaintiffs’ counsel themselves knew the purpose of their visit – to inspect the property and take pictures.

In general, Rule 37(b)(2)(B) of the Rules of Civil Procedure provides for sanctions where a party fails to comply with a court order requiring the party to produce another person for examination, including prohibiting the disobedient party from introducing matters in evidence, striking pleadings, rendering default judgment against the disobedient party, treating as contempt of court the failure to obey an order or any further “just orders.” Fed.R.Civ.P. 37(b)(2)(B); 37(b)(2)(A). Here, no order has been entered by the Court striking the photographs or finding that Plaintiffs violated Rule 34. The “spirit” of Rule 34 was violated in that Plaintiffs did not notify the defense they were inspecting the premises for discovery purposes, even if the property is open to the public. The property is private property, but open to the public. The lay of the land is at the core of these proceedings. Plaintiffs should have notified the defense they sought to inspect the land as required under Rule 34. “Trial by surprise” is not a tactic in civil actions and related discovery proceedings. However, dismissal of the case is not warranted at this time, but the Court will consider this matter at trial by way of a motion in limine or objection if any testimony or exhibit is sought to be introduced relating to Plaintiffs’ first visit to Mt. Brighton. The second visit is addressed below.

C. Violation of Michigan Rules of Professional Responsibility

Defendants seek dismissal as sanctions because they allege that Plaintiffs’ counsel violated the Michigan Rules of Professional Responsibility (“MRPC”) by contacting Mt. Brighton’s owner without counsel. Plaintiffs respond that when counsel visited Mt. Brighton unannounced, counsel did not know that the gentleman greeting him at the Mt. Brighton restaurant was Mr. Bruhn, the owner of Mt. Brighton. Mr. Bruhn informed counsel that the kitchen was not open but he never indicated that Mt. Brighton was closed. Plaintiffs’ counsel then went out onto the patio to take a few photographs of the ski/golf area. Plaintiffs claim that Defendants admit in their moving papers that Plaintiffs did not violate MRPC 4.2 since there was no discussion of any aspect of the “subject of the representation” but that because counsel did not identify himself to Mr. Bruhn. Mr. Bruhn indicated in an affidavit that he did not learn of Plaintiffs’ counsel identity until the facilitation in this matter the day after.

MRPC 4.2 provides, “In representing a client, a lawyer shall not communicate about the subject of the representation with a party whom the lawyer knows to be represented in the matter by another lawyer, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Although Defendants admit that “arguably” Plaintiffs did not directly speak with Mr. Bruhn as to the “subject of the representation, ” Plaintiffs’ counsel knew the reason they were on the premises was to take photographs of the property. Defendants seek an order from this Court finding that Defendants violated Rule 4.2 and that the proper sanction is to dismiss the case.

Although Plaintiffs’ counsel, as noted by the defense, did not “arguably” violate Rule 4.2, the Court cannot expressly so find. Violations of the professional responsibility code must be brought under E.D. Mich. LR 83.22. Defendants have not sought such a formal request. The Court, however, under Fed.R.Civ.P. 37(b)(2), will not allow Plaintiffs to offer any photographs taken of the property during the second visit to Mt. Brighton on November 14, 2012 since they knew the purpose of their visit was to take photographs and could have so indicated to opposing counsel, Mr. Bruhn or to any of Defendants’ agents. Plaintiffs had notice since June 2012 and under the discovery rules that they were required to notify Defendants of any access to Defendants’ property.

D. Rule 11 Sanctions

In Plaintiffs’ response, they indicate they may seek sanctions under Rule 11 themselves. Generally, Rule 11 provides that prior to requesting/filing a Motion for sanctions under this rule, the party must serve notice to the opposing party under the safe harbor provision of Rule 11. Fed.R.Civ.P. 11(c)(1)(A). Rule 11(c) states that the Motion shall not be filed if not submitted to the opposing party. Pursuant to the “safe harbor” provision in Rule 11, a party seeking sanctions under the rule must first serve notice to the opposing party that such a Motion will be filed. If either party seeks to file such Rule 11 sanctions, they must do so with the “safe harbor” provision in mind.

IV. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. No. 21) is DENIED as more fully set forth above.

IT IS FURTHER ORDERED that the Motion to Adjourn Scheduling Order Dates (Doc. No. 23) is MOOT.

IT IS FURTHER ORDERED that the Motion to Strike Portions of Defendants’ Summary Judgment Motion or Submit Evidence (Doc. No. 30) is DENIED.

IT IS FURTHER ORDERED that the Motion for Sanctions (Doc. No. 39) is GRANTED IN PART and DENIED IN PART. The second set of photographs is disallowed to be used as evidence in this case. The request for dismissal as sanctions is denied.

IT IS FURTHER ORDERED that a Final Pretrial Conference date is scheduled for Monday, June 10, 2013, 2:30 p.m. The parties must submit a proposed Joint Final Pretrial Order by June 3, 2013 in the form set forth in Local Rule 16.2. All parties with authority to settle must appear at the conference. The Magistrate Judge may reschedule the cancelled facilitation and submit a notice to the Court by June 3, 2013 once facilitation is complete.

IT IS FURTHER ORDERED that Trial is scheduled for Tuesday, July 9, 2013, 9:00 a.m.

Notes:

[1] The parties are referred to E.D. Mich. LR 7.1 and CM/ECF Pol. & Proc. R5 and R18 governing filing of motions, briefs and exhibits. See, http://www.mied.usourts.gov.


NASTAR release was held by the Michigan Appellate court to be written narrowly and only protect the ski area when the guest was racing or training.

Michigan Ski Safety Act did not apply because it was too early in the proceedings to determine if a rope hanging below the chairlift was an inherent risk of skiing under the act.

Ritari, JR v Peter E. O’dovero, Inc., 2017 Mich. App. LEXIS 1711

State: Michigan, Court of Appeals of Michigan

Plaintiff: Ronald Ritari, JR. and Tama Ritari

Defendant: Peter E. O’dovero, Inc., doing business as Marquette Mountain

Plaintiff Claims: was negligent by having ropes in the area of the chair lift, failing to post warnings of the danger, failing to take measures to prevent plaintiff from catching his skis on the rope, failing to employ the emergency stop when plaintiff yelled for help, and failing to adequately supervise and control the chair lift

Defendant Defenses: Release and Michigan Ski Area Safety Act (SASA)

Holding: For the Plaintiff

Year: 2017

Summary

Your release must be written to cover the risks and activities you need to cover. If your release fails, as in this case, then you are faced with proving the activity that injured your guest was an inherent risk of skiing.

A rope hanging below a lift, low enough a ski could be caught in the lift is going to be an interesting argument at trial to prove it is an inherent risk of skiing.

Facts

The plaintiff was a season pass holder at the ski area and enjoyed racing NASTAR. One evening while riding the chair lift his skis were caught on a nylon rope hanging below the lift when a gust of wind pulled the chair down. The plaintiff was pulled out of the chair by the rope where he fell 12′ to the ground sustaining a fractured pelvis and fracture ribs.

The plaintiff filed suit. The Defendant ski area filed a motion for summary judgment based on the NASTAR release and the Michigan Ski Area Safety Act. The plaintiff seems to have signed two releases, one when he purchased a season pass, however, only the NASTAR release was argued at trial.

The trial court dismissed the defendant’s motion for summary judgment finding the release was ambiguous, and the rope hanging below the chairlift was not an inherent risk of skiing. The defendant appealed the trial court’s decision.

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

The court first looked at the release. The trial court had found the release was ambiguous. “A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation.”

The scope of a release is governed by the intent of the parties as it is expressed in the release. If the text in the release is unambiguous, the parties’ intentions must be ascertained from the plain, ordinary meaning of the language of the release. A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity.

To determine if a contract is valid the contract “…must be read as a whole, construed so as to give effect to every word or phrase as far as practicable…” An ambiguous contract is also referred to as a contract “…reasonable susceptible to more than one interpretation.”

The appellate court found the release was not ambiguous.

We conclude that, when read as a whole and interpreted in conjunction with the NASTAR registration form on its reverse side, the language of the Participant release is unambiguous and in-tended to relieve defendant of “all liability” for injuries suffered during training for or participating in a racing competition.

The plaintiff also argued that the release only applied when the plaintiff was racing or training for NASTAR. Here the court found for the plaintiff. On this issue, the appellate court agreed with the trial court and held that the release could be interpreted to only be for racing or training for NASTAR events.

A rope hanging below the chairlift was not a listed risk in the Michigan Ski Area Safety Act. Therefore, the court needed to determine if the ski area safety act applied to this risk.

There is no dispute that the nylon rope that entangled plaintiff is a hazard not listed in MCL 408.342(2). Thus, the question is whether the placement of a nylon rope under a chair lift is inherent to skiing and, if so, whether placement of the rope in this case was obvious and necessary. For defendant to be entitled to summary disposition under MCR 2.116(C)(10), these material facts must be undisputed and defendant must be entitled to judgment as a matter of law.

The court held the jury had to determine if the risk was obvious and necessary and inherent to skiing.

The appellate court sent the case back to the trial court for additional discovery by the parties and trial.

So Now What?

Any time you have an incident on the lift outside of the loading and unloading area it is going to create a problem for the courts and a question of fact. In several states, like Colorado, the operator of a lift owes the highest degree of care to the lift riders. In Colorado, this case would be based on how much the check would be, not if there was going to be a check.

Furthermore, a rope hanging below a lift that a skier could catch a ski or board with is also suspect. Whether the riders were bouncing on the lift or a gust of wind did force the chair down, that is a risk that needed to be looked at from all angles. Skiers running into people and legs extending from the chair and people on the chair catching their fee in it is a risk of roping off an area under a lift.

What do you think? Leave a comment.

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Ritari, JR v Peter E. O’dovero, Inc., 2017 Mich. App. LEXIS 1711

Ritari, JR v Peter E. O’dovero, Inc., 2017 Mich. App. LEXIS 1711

Ronald Ritari, JR. and Tama Ritari, Plaintiffs-Appellees, v Peter E. O’dovero, Inc., doing business as Marquette Mountain, Defendant-Appellant.

No. 335870

COURT OF APPEALS OF MICHIGAN

2017 Mich. App. LEXIS 1711

October 24, 2017, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

SUBSEQUENT HISTORY: Motion granted by Ritari v. Peter E. O’Dovero, 2018 Mich. LEXIS 90 (Mich., Jan. 12, 2018)

PRIOR HISTORY: [*1] Marquette Circuit Court. LC No. 16-054384-NO.

CORE TERMS: skiing, nastar, rope, training, ski, chair lift, racing, placement, sport, registration form, hazard, recreational, ski area, participating, skier, lift, competitive, competitor, hazardous, alpine, matter of law, clearance, snowboarding, season, risks associated, reverse side, unambiguous, susceptible, entangled, ambiguous

JUDGES: Before: K. F. KELLY, P.J., and BECKERING and RIORDAN, JJ.

OPINION

Per Curiam.

In this interlocutory appeal,1 defendant, Peter E. O’Dovero, Inc, d/b/a Marquette Mountain, challenges the trial court’s order denying defendant’s motion for summary disposition under MCR 2.116(C)(7) (release, immunity granted by law) and (C)(10) (no genuine issue of material fact, movant entitled to judgment as a matter of law). The case arises out of an incident at Marquette Mountain ski resort that occurred when plaintiff, Ronald Ritari, Jr., was riding up the ski hill on a chair lift and became entangled in a rope that had been installed underneath the lift, which pulled him off the lift and caused him to sustain serious injuries in the ensuing fall.2 Because material questions of fact remain, we agree with the trial court that summary disposition is inappropriate at this time.

1 Ronald Ritari Jr v Peter E O’Dovero, Inc, unpublished order of the Court of Appeals, entered April 20, 2017 (Docket No. 335870).

2 Plaintiff Tama Ritari’s claim is derivative of her husband’s; therefore, “plaintiff” refers to Ronald Ritari, Jr.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On the evening of January 29, 2015, plaintiff went to Marquette Mountain to ski. He was a season pass holder there and enjoyed NASTAR3 racing. According to plaintiff’s complaint and affidavit, at around 6:45 p.m. he and his son boarded [*2] a chair lift to reach the top of the hill for their first run of the evening. They planned to take a couple of pleasure runs down the hill before their Thursday night ski league began. When his chair was approximately 20 yards from the loading zone, a gust of wind pulled the chair down and the tips of plaintiff’s skis became entangled in a nylon rope attached to the ground by two poles directly below the chair lift. Plaintiff was able to free the tip of his left ski from the rope, but he was unable to free the tip of his right ski, and he felt his leg being pulled backward as his chair continued to move up the hill. Plaintiff grabbed the middle pole of the chair to keep from falling and screamed as loudly as he could for the chair lift operator to stop the lift. But the chair lift did not stop, and plaintiff was pulled out of his chair by the rope. He fell approximately 12 feet to the ground and sustained a fractured pelvis and fractured ribs.

3 According to its website, NASTAR is the “largest public grassroots ski racing program in the world” and “gives recreational racers an opportunity to compete and compare their scores to friends and family regardless of when and where they race using the NASTAR handicap system.” NASTAR competitions typically occur on grand slalom and slalom courses laid out by the host ski resorts in accordance with NASTAR’s instructions. http://www.nastar.com (accessed 9/15/17).

Plaintiff filed suit against defendant, alleging that the ski area was negligent by having ropes in the area of the chair lift, failing to post warnings of the danger, failing to take measures to prevent plaintiff from catching his skis on the [*3] rope, failing to employ the emergency stop when plaintiff yelled for help, and failing to adequately supervise and control the chair lift. Before any discovery began by way of interrogatories, depositions, or otherwise, defendant moved for summary disposition under MCR 2.116(C)(7) and (C)(10), contending that plaintiff had signed releases broad enough to bar any claim for injuries arising out of the incident. Defendant relied on three forms signed by plaintiff.

Specifically, On December 13, 2014, in conjunction with purchasing an annual ski pass at Marquette Mountain for the 2014-2015 season, plaintiff signed a release wherein he agreed to assume “the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing/snowboarding . . . .” On December 16, 2014, he filled out a document in order to participate in NASTAR races. The document, a single sheet of paper, contains two forms, one on the front and one on the back. Hand-printed vertically in capital letters along the right side of both forms are the instructions, “FILL OUT BOTH SIDES.”

On the front side of the NASTAR document is a registration form. The form has headings entitled “Registration Form,” “Racer Information,” [*4] “Team Information,” and “Waiver and Release of Liability.” According to the release language on this form, plaintiff, “in exchange for being permitted to participate in NASTAR events (the “Event”),” assumes all risks associated with his involvement in the event and the “risk of injury caused by the condition of any property, facilities, or equipment used during the Event, whether foreseeable or unforeseeable.”

On the reverse side of the NASTAR document is a release entitled “Marquette Mountain Ski Area, and Competition Participant” (henceforth, the “Participant release”). According to the relevant terms of this release, “Participant, the undersigned, being at least 18 years old . . . agrees and understands that alpine skiing and snowboarding in its various forms (hereinafter the “Activity”) is HAZARDOUS4 and may involve the risk of physical injury or death.” The Participant also agrees that “training or racing competitively is more HAZARDOUS than recreational skiing,” that he or she is “a competitor at all times, whether practicing for competition or in competition.” According to the release, the Participant assumes all risks associated with the Activity, including but not limited to [*5] the risk of all course conditions, course construction or layout and obstacles, risks associated with riding the lifts, and risks associated with ski lift operations and acts or omissions of employees. The Participant agrees to release defendant from “all liabilities” arising from engagement in “the Activity,” including any injuries caused by the actual negligence of defendant’s employees. In its motion for summary disposition, defendant contended that, by signing this release, plaintiff assumed “all” risks, argued that “all” left no room for exceptions, and stressed that the terms of this release barred plaintiff’s claim for negligence as a matter of law.

4 A fold or wrinkle in the copy of the release that is in the record obscures this word. However, defendant quotes the relevant section of the release in its motion for summary disposition as “I further agree and understand that training or racing competitively is more HAZARDOUS than recreational skiing.”

In support of its motion, defendant also argued that MCL 408.342(2), the assumption of risk provision in the Ski Area Safety Act of 1962 (SASA), MCL 408.321 et seq., operated to bar plaintiff’s claim because risks associated with fencing and falling from a chair lift inhere in the sport of skiing.

Plaintiff countered that neither the season-pass release nor the assumption of risk provision in SASA barred his claim because the inappropriate placement of a rope directly under the chair lift was not an inherent risk of skiing. Additionally, plaintiff argued that the [*6] rope was not necessary because its placement violated the standards governing minimum clearance between a chair lift and an obstacle below, and it was not obvious because he neither saw it nor expected it to be placed where it was. He further argued that neither side of the executed NASTAR document barred his claim because he was not engaged in a NASTAR event, nor was he training for such an event when he was injured. Finally, plaintiff contended that there remained genuine issues of material fact regarding whether defendant’s chair lift personnel were inattentive and failed to timely shut off the chair lift when the rope entangled him, and that this was not a risk assumed pursuant to the assumption of risk provision of SASA.

At the motion hearing, defendant argued that the Participant release on the back side of the NASTAR document applied not just to competitions and training for competitions, but to “skiing in all its forms.” Accordingly, the Participant release controlled resolution of the matter and insulated defendant from any alleged negligent placement of the nylon rope. At the same time, defendant insisted that it had not been negligent in placement of the rope at issue because [*7] the rope’s location complied with required clearance standards and was necessary to the safety of skiers.5 Plaintiff reiterated his argument that the forms on both sides of the NASTAR document pertained to participation in competition-related skiing, and that the rope at issue was neither necessary nor obvious with respect to any assumption of the risk plaintiff assumed when signing up for his season pass or through SASA.

5 Defendant acknowledged plaintiff’s argum
Accreditation is marketing. In fact, it may be why you are being sued.

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Accreditation is marketing. In fact, it may be why you are being sued.

Marketing is not a way to manage risks or stop lawsuits. Marketing Makes Promises that Risk Management Must Pay For.ent about the front side of the NASTAR document focusing on event racing and the fact that the release language there and in the season pass document coincides with the language of SASA, which is commonly referred to as the assumption of the risk clause. As such, while arguing that the rope at issue was a necessary and obvious danger, defendant focused on the back side of the NASTAR document and its “sweeping” release of defendant’s own negligence for the purpose of his motion for summary disposition at such an early stage in the litigation.

Ruling from the bench, the trial court noted that construing the viability of plaintiff’s claim under SASA turned on necessary factual findings yet to be made, rendering summary disposition inappropriate at that point in the proceedings. With regard to the releases, the trial court observed that the parties’ arguments were geared toward the form on the reverse side of the NASTAR document. The trial court easily dispensed with the front page as being race-related. As for the back side, the Participant release, the trial court concluded that there were questions about the extent to which the release might apply to relieve defendant of liability outside the context of racing or training.

In addition to its location on the back of the NASTAR form, the trial court pointed [*8] to three phrases in the Participant release that seem to limit the scope of that release to training for or participating in a competition. The first is the phrase in which the participant agrees with the premise “that Participant is a competitor at all times, whether practicing for competition or in competition.” The second is the provision, “Participant is always provided an opportunity to and will conduct a reasonable visual inspection of the training or racecourse.” The third phrase is, “I further agree and understand that training or racing competitively is more [hazardous] . . . than recreational skiing.” The trial court described the language of the release as “a little ambiguous” and concluded that in light of the questions about the extent to which the release might apply to relieve defendant of all liability at any time, even when the person who signed it is simply recreationally skiing, summary disposition was premature.

II. ANALYSIS

Defendant contends that the trial court erred in denying its motion for summary disposition because the unambiguous language of the December 16, 2014 Participant release releases it from all liability regardless of whether plaintiff was injured [*9] while practicing for a competition, in competition, or simply skiing recreationally. It also claims that it is entitled to summary disposition under the assumption of the risk statute in SASA, MCL 408.343(2). We conclude that defendant is racing too quickly to the finish line in this case, to which it may or may not be entitled a victory.

We review de novo a trial court’s ruling on a motion for summary disposition, Casey v Auto Owners Ins Co, 273 Mich App 388, 393; 729 NW2d 277 (2006), as well as issues involving contractual and statutory interpretation, Rodgers v JPMorgan Chase Bank NA, 315 Mich App 301, 307; 890 NW2d 381 (2016).

A. RELEASE

Summary disposition under MCR 2.116(C)(7) is appropriate where the terms of a release bar a claim. As this Court has explained,

The scope of a release is governed by the intent of the parties as it is expressed in the release. If the text in the release is unambiguous, the parties’ intentions must be ascertained from the plain, ordinary meaning of the language of the release. A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation. The fact that the parties dispute the meaning of a release does not, in itself, establish an ambiguity. [Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 13-14; 614 NW2d 169 (2000).]

In addition, a contract must be read as a whole, Dobbelaere v Auto-Owners Ins Co, 275 Mich App 527, 529; 740 NW2d 503 (2007), and “construed so as to give effect to every word or phrase as far as practicable,” Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003). See [*10] also Restatement Contracts, 2d, § 202, p 86 (“a writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together.”).6 The interpretation of an unambiguous contract is a matter of law. Mich Nat’l Bank, 228 Mich App 710, 714; 580 NW2d 8 (1998).

6 See also Restatement Contracts, 1st, § 235 (“A writing is interpreted as a whole and all writings forming part of the same transaction are interpreted together.”).

After our review of the language of the Participant release, we disagree with the trial court’s conclusion that the language of the release is ambiguous, or in other words, “reasonably susceptible to more than one interpretation.” Xu v Gay, 257 Mich App 263, 272 668 NW2d 166 (2003) (“A contract is ambiguous only if its language is reasonably susceptible to more than one interpretation.”). However, we agree with plaintiff, not defendant, as to its meaning and scope. Several factors indicate that the NASTAR registration and Participant release were part of the same transaction–which is in fact undisputed–and therefore, should be read and interpreted together: the “Participant” release is on the reverse side of the NASTAR registration form, both forms bear the handwritten instruction to “fill out both sides,” and plaintiff executed both releases on the same date specifically in order to participate in NASTAR races. We conclude that, when read as a whole and interpreted in conjunction with the NASTAR registration form on its reverse side, [*11] the language of the Participant release is unambiguous and intended to relieve defendant of “all liability” for injuries suffered during training for or participating in a racing competition.

As noted above, the trial court identified three examples where the language of the release focuses specifically on competitive skiing. After identifying the “Activity” in which the Participant is participating as “alpine skiing and snowboarding in its various forms” and noting that it may involve physical injury or death, the release requires the participant to “agree and understand that training and racing competitively is more [hazardous] than recreational skiing” (emphasis added). In addition, the release requires the participant to “agree with the Premise that Participant is a competitor at all times, whether practicing for competition or in competition” (emphasis added). Note that it does not also say when simply pleasure skiing or taking the children out for lessons on the bunny hill. Further, the Participant is required to “agree that Participant is always provided an opportunity to and will conduct a reasonable visual inspection of the training or racecourse” (emphasis added). This focuses [*12] on race-related activities. Even without consideration of the NASTAR release, the fact that the Participant release requires the participant to agree expressly to statements emphasizing the dangers of training for and participating in competitive racing specifically renders the release susceptible to the interpretation that its focus is on insulating defendant from liability for injuries sustained by participants when training for or competing in races.

Defendant contends that the Participant release’s acknowledgement that competitive racing is more hazardous than recreational skiing does not restrict the release’s scope to competitive skiing. However, the release does more than merely acknowledge the dangers of competitive skiing; it requires the Participant to expressly agree that competitive skiing is more hazardous than recreational skiing. Moreover, under the defendant’s alleged interpretation, the Participant’s acknowledgement that he or she is a competitor at all times renders it impossible for the person who signs the release as a “Participant” to ever ski recreationally. According to the logic of defendant’s argument, once a person fills out the NASTAR registration form and [*13] accompanying Participant release, he or she is a “competitor” indefinitely, regardless of whether he or she is actually competing or training for a competition.7

7 Under defendant’s proposed at-all-times interpretation, there is no time frame for how long someone is considered to be a Participant if that word is not tied to actual racing or training. Are they deemed to be a Participant for the rest of the season? Indefinitely? What if they only participated in one race? In doing so, have they given up all rights they might otherwise have had as a recreational skier? And where does it say that in the release? Defendant’s proposed interpretation creates an ambiguity that it cannot resolve within the confines of the agreement.

Other portions of the Participant release also support the conclusion that the unambiguous language limits its scope to liability for injuries suffered during or while training for a ski or snowboard competition. The heading contains what one might reasonably construe as an identification of the parties to the release, “Marquette Mountain Ski Area, and Competition Participant.” The comma inserted between “Marquette Mountain Ski Area” and “Competition Participant” suggests that the release involves Marquette Mountain Ski Area on one side, and a “competition participant” on the other. Defendant urges this Court to ignore the “competition participant” designation, arguing that it is not part of the four corners of the agreement and is neither used nor defined in the release. However, interpreting the NASTAR release and the Participant release together makes clear that “competition participant” refers to the person participating in the NASTAR competition that defendant is hosting.8 Further, if “competition” refers only to the NASTAR [*14] event, but “participant” can have more than one referent,9 it seems reasonable that the release would focus on defining “participant” to ensure inclusion of all the word’s possible meanings. Additionally, that the participant is “a competitor at all times” harkens back to “competition participant” in the heading, again allowing one to reasonably interpret the release to pertain only to the release of liability arising from injuries associated with training for or racing in a competition.

8 The mere fact that the release uses the word “Participant” conjures up images of participation in something; it would not lead the reader to conclude that one is a Participant whenever they are on the slopes, even when they are not actually participating in anything or training for anything.

9 E.g., “participant” includes a person at least 18-years old, a participating minor, and the parents or legal guardian of as well as his or her parent or legal guardian.

Moreover, the Participant warrants in the Participant release that he or she is in good health and has left no special instructions “that have not been listed on the registration form.” Although the Participant release makes no further mention of a registration form, the NASTAR document on the reverse side is both a registration form and a release, and it contains a ‘Physically Challenged” heading where competitors may identify their physical or intellectual challenges.

Finally, defendant asserts that “alpine skiing and snowboarding” is not limited to competitive racing. This is true; “alpine skiing” may refer to downhill skiing for sport or recreation. However, interpreting the Participant release with [*15] the NASTAR release renders the phrase “alpine skiing and snowboarding in its various forms” susceptible to the interpretation that it refers specifically to the three downhill disciplines from which participants may choose to compete at a NASTAR event: alpine skiing, snowboarding, and telemarker (which combines elements of Alpine and Nordic skiing).

Given the foregoing analysis, we conclude that the trial court correctly denied defendant’s motion for summary disposition associated with the Participant release, but it erred to the extent it deemed the release language ambiguous. Assuming factual development establishes that plaintiff was not engaged in training for or competing in racing activities at the time of his injury, as plaintiff contends it will, the Participant release does not apply. Moreover, for the reasons set forth below, determination of whether the release language in plaintiff’s season pass bars his claim–which entails an assumption of the risks inherent in skiing analysis–will depend on further factual development gleaned from discovery, which has not yet begun.

B. MCL 408.342(2)

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). Summary disposition [*16] under (C)(10) is proper if the documentary evidence filed by the parties and viewed in the light most favorable to the party opposing the motion fails to show a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).

The Legislature enacted SASA in 1962, and amended it in 1981. Kent v Alpine Valley Ski Area, Inc, 240 Mich App 731, 737; 613 NW2d 383 (2000) (quotation marks and citation omitted). One of the purposes of the Legislature’s amendment was “to make the skier, rather than the ski area operator, bear the burden of damages from injuries.” Id. Thus, among the provisions in the 1981 amendment was one for the acceptance of risk by skiers, MCL 408.342(2), which provides as follows:

(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 snowmaking or snow-grooming equipment.

Where, as here, an injury results [*17] from a hazard not listed in the statute, Michigan’s Supreme Court has established a test to determine whether a defendant ski resort is nevertheless immune on grounds that the hazard is of the same type as those listed in the statute. Anderson v Pine Knob Ski Resort, 469 Mich 20, 24-25; 664 NW2d 756 (2003).

At issue in Anderson was whether the assumption of risk provision barred the plaintiff’s suit for injuries suffered when he collided with a timing shack during a skiing race. The Supreme Court determined that the different types of hazards listed in MCL 408.342(2) had in common “that they all inhere in the sport of skiing and, as long as they are obvious and necessary to the sport, there is immunity from suit.” Id. at 25. Thus, once a hazard is determined to be inherent to the sport of skiing, “only if [it is] unnecessary or not obvious is the ski operator liable.” Id. at 26. Applying the facts of Anderson to its legal conclusion, the Supreme Court reasoned:

There is no disputed issue of fact in this matter that in ski racing, timing, as it determines who is the winner, is necessary. Moreover, there is no dispute that for the timing equipment to function, it is necessary that it be protected from the elements. This protection was afforded by the shack that all also agree was obvious [*18] in its placement at the end of the run. We have then a hazard of the same sort as the ski towers and snow-making and grooming machines to which the statute refers us. As with the towers and equipment, this hazard inheres in the sport of skiing. The placement of the timing shack is thus a danger that skiers such as Anderson are held to have accepted as a matter of law. [Id. at 25-26.]

Accordingly, the Supreme Court concluded that the ski operator was immune from suit because the timing shack was a hazard inherent to skiing, and it was necessary and obvious.

We conclude that the trial court did not err in finding that, at this early stage of the proceedings, the record facts are simply insufficient to determine whether SASA applies to bar plaintiff’s claim. There is no dispute that the nylon rope that entangled plaintiff is a hazard not listed in MCL 408.342(2). Thus, the question is whether the placement of a nylon rope under a chair lift is inherent to skiing and, if so, whether placement of the rope in this case was obvious and necessary. For defendant to be entitled to summary disposition under MCR 2.116(C)(10), these material facts must be undisputed and defendant must be entitled to judgment as a matter of law. Quinto, 451 Mich at 362.

However, [*19] the parties dispute the material facts. And the record evidence–given that discovery has not yet begun–is not sufficient to resolve their disputes. For example, although both parties agree that the American National Standards Institute (ANSI) standard B77.1-2006 governs the construction, installation, and operation of a ski lift, they dispute whether defendant’s positioning of the rope violated the clearance requirements set forth in ANSI, and whether such violation renders defendant liable for injuries attributable to the violation. In fact, there is no record evidence as to what the rope was even for, making impossible at this point a determination of whether it was a necessary part of skiing. Plaintiff asserts that defendant’s placement of the rope “in an area directly below the chair lift” violated the ANSI standards, and that the rope was neither obvious nor necessary. Defendant contends that plaintiff’s allegation that his fall to the ground was approximately 12 feet demonstrates that defendant complied with the requirement to have a clearance of at least 8 feet between the lowest point of the carrier and the terrain. In addition, defendant characterizes the rope as a “fence,” [*20] and asserts, “fencing and its risks are intrinsic in the sport of skiing,” and further asserts that the rope/fence was absolutely needed to prevent skiers from traveling under the chair lift and being injured.” However, because there is nothing in the record evidence indicating the rope’s purpose or its location relative to the chair lift and the terrain, it is impossible to determine where the rope was placed and whether it was necessary. Defendant contends that plaintiff’s description of his fall in his affidavit demonstrates that there was at least an 8-foot clearance between the carrier, but defendant has not eliminated the possibility that the rope was too close to the carrier when it caught plaintiff’s skis, and it begs the question of why there was a rope if the minimum clearance did not require one. In short, defendant has not met its burden to submit affirmative evidence indicating that it was entitled to summary disposition on grounds that the dangers posed by the nylon rope at issue were inherent to skiing, and that they were necessary and obvious.10
Quinto, 451 Mich at 362.

10 Because we conclude that defendant’s motion for summary disposition was properly denied at this stage of the case, we need not address plaintiff’s additional argument that SASA does not bar his claim arising from the chair lift operator’s alleged failure to stop the chair lift after plaintiff became entangled in the rope.

Affirmed.

/s/ Kirsten Frank Kelly

/s/ Jane M. Beckering

/s/ Michael J. Riordan


Allowing a climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate the release.

Whether or not the employee was present the entire time, is irrelevant, anytime any employee had the opportunity to see the harness on incorrectly was enough to be gross negligence.

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

State: Michigan, Court of Appeals of Michigan

Plaintiff: David Alvarez and Elena Alvarez

Defendant: LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: For the Plaintiff

Year: 2016

Facts

The facts are difficult to determine because the interpretation of the court in its opinion does not follow the normal language used in the climbing industry.

The plaintiff was injured when he leaned back to descend after climbing a climbing wall. Because he was not hooked in properly, something broke, and he fell. The plaintiff claims an employee of the defendant watched him put the harness on and hook into the belay system. The employee alleges she was not present for that. The plaintiff allegedly put the harness on backwards.

The harness allegedly had a red loop that should have been in front. No one either knew how the harness was to be worn or that the harness was on incorrectly.

Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.

The plaintiff argued the employee was grossly negligent. The trial court granted the defendants motion to dismiss based on the release, and this appeal ensued.

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

The court first started by defining gross negligence under Michigan’s law. Michigan law is similar if not identical to many other states. Gross negligence requires proof the defendant engaged in reckless conduct or acted in a way that demonstrated a substantial lack of concern for the plaintiff.

To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]”

Although the issue debated in the appeal was the location of the employee when the plaintiff was putting on the harness and climbing. It was undisputed the defendant’s employee was instructing the plaintiff while he was climbing. Eventually, the court found this not to be a real issue since any opportunity to see the harness was on incorrectly would have allowed the defendants employee to resolve the issue.

Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness.

Failure then, to spot the problem or resolve the problem was proof of gross negligence, or a failure to care about the safety and welfare of the plaintiff.

Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence.

Because the court could determine the acts of the defendant employee were possibly gross negligence, it was enough to determine what occurred and if gross negligence occurred.

So Now What?

This is pretty plane on its face. You allow a person to use a piece of equipment incorrectly who is then injured there is going to be a lawsuit. You allow a person to use a piece of safety equipment, equipment needed for the safe operation of your business incorrectly you are going to lose no matter how well written your release.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

Alvarez v LTF Club Operations Company Inc., 2016 Mich. App. LEXIS 2198

David Alvarez and Elena Alvarez, Plaintiff-Appellants, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellee, Jane Doe, Defendant. David Alvarez and Elena Alvarez, Plaintiff-Appellees, v LTF Club Operations Company Inc., doing business as Lifetime Fitness Center, and Defendant-Appellant, Jane Doe, Defendant.

No. 328221, No. 328985

COURT OF APPEALS OF MICHIGAN

2016 Mich. App. LEXIS 2198

November 29, 2016, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY:  [*1] Oakland Circuit Court. LC No. 2014-140282-NO. Oakland Circuit Court. LC No. 2014-140282-NO.

CORE TERMS: harness, climbing, gross negligence, rock, climb, belay, incorrectly, backwards, walked, deposition testimony, loop, red, putting, front, genuine issue, material fact, reasonable minds, precautions, favorable, watched, donned, order granting, rock climbing, grossly negligent, adjacent, facing, matter of law, conduct constituted, ordinary negligence, evidence submitted

JUDGES: Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

OPINION

Per Curiam.

In Docket No. 328221, plaintiffs, David Alvarez and his wife Elena Alvarez, appeal as of right the trial court’s order granting summary disposition in favor of defendant, LTF Club Operations Company, Inc., doing business as Lifetime Fitness Center (Lifetime). In Docket No. 328985, Lifetime appeals as of right the order denying its request for case evaluation sanctions and for taxation of costs. For the reasons stated herein, we reverse the trial court’s order granting defendant’s motion for summary disposition and remand for further proceedings.

This litigation arises from David’s fall from a rock climbing wall at Lifetime’s facility in Novi. Plaintiffs were at Lifetime, where they are members, with their minor daughter to allow her the opportunity to use the rock climbing wall. Neither the plaintiffs, nor their daughter, had previously attempted to use the rock climbing wall. After David signed the requisite forms, Karina Montes Agredano, a Lifetime employee, provided David with a harness, he climbed to the top of the rock wall, [*2]  and attempted to lower himself back down via the automatic belay system. However, because David’s harness was on backwards and incorrectly hooked to the belay system, it broke and he fell to the ground suffering multiple injuries.

Plaintiffs argued that, as an employee of Lifetime, Agredano was grossly negligent1 in failing to ascertain whether David had properly attached his harness and the belay system before permitting him to climb the rock wall or descend. Defendant filed a motion for summary disposition arguing the assumption of risk and waiver of liability provision within the paperwork David signed barred plaintiffs’ claims because Agredano’s asserted conduct constituted only ordinary negligence and not gross negligence. The trial court granted defendant’s motion for summary disposition finding plaintiffs failed to “present any evidence establishing that defendant was grossly negligent in failing to take precautions for plaintiff’s safety.”

1 Plaintiffs had signed a waiver of any negligence based liability.

Plaintiffs assert that the trial court erred in dismissing their claim of gross negligence against Lifetime, arguing a genuine issue of material fact exists regarding whether Agredano [*3]  was grossly negligent. We agree.

The trial court granted summary disposition in accordance with MCR 2.116(C)(7) and (10). This Court reviews “de novo a trial court’s ruling on a motion for summary disposition.” In re Mardigian Estate, 312 Mich App 553, 557; 879 NW2d 313 (2015). Specifically:

When considering a motion for summary disposition under MCR 2.116(C)(10), a court must view the evidence submitted in the light most favorable to the party opposing the motion. Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the evidence submitted might permit inferences contrary to the facts as asserted by the movant. When entertaining a summary disposition motion under Subrule (C)(10), the court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and refrain from making credibility determinations or weighing the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 444-445; 865 NW2d 648 (2014) (quotation marks omitted).]

In addition:

In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), a court must accept as true a plaintiff’s well-pleaded factual allegations, affidavits, or other [*4]  documentary evidence and construe them in the plaintiff’s favor. Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of limitations is a question of law that this Court reviews de novo. [Terrace Land Dev Corp v Seeligson & Jordan, 250 Mich App 452, 455; 647 NW2d 524 (2002) (citation omitted).]

To establish a claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations omitted). “Evidence of ordinary negligence is insufficient to create a material question of fact regarding the existence of gross negligence.” Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010). “The issue of gross negligence may be determined by summary disposition only where reasonable minds could not differ.” Id. “Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). However, gross negligence will often be exhibited by a “willful disregard of precautions or measures to attend to safety[.]” Id.

As [*5]  evidence of Agredano’s gross negligence, plaintiffs offered their deposition testimony. In his deposition testimony, David indicated that Agredano provided him with a harness and was present as he put it on and prepared to climb the wall:

  1. Q. And where was [Agredano] when you were placing the harness on yourself?
  2. A. She was in front of us. We were here. She was in front of us.
  3. Q. So she’s staring directly at your as you’re putting the harness on?
  4. A. She was, yeah, in front of us. We were here, and she was — I mean, we could show the picture if you want.
  5. Q. But I want to know if she was facing you when you were putting this harness on?
  6. A. Yes.

* * *

  1. Q. How much time elapsed between the time that you had your harness on and began climbing from the time when your wife began climbing?
  2. A. Okay. So they walked over to the wall, and then, as soon as I put on my harness, I walked over to the wall adjacent to [Agredano], and I watched my wife. She was already up the So whatever time it took for her to get up the eight feet, which is probably a couple minutes. I mean, a minute maybe.
  3. Q. All right. And when you walked over to the wall, was [Agredano] standing to your right?
  4. A. When I walked over to [*6] the wall, she was on my right.
  5. Q. And would you say she was within three or four feet of you?
  6. A. I could touch her. She was right there.

Further, David stated that Agredano spoke to him after he had inadvertently placed the harness on backwards and directed him to a climbing area, but did not warn him that the red loop on his harness should be on his front before he began to climb the wall:

  1. Q. When were you told to hook into something between your legs?
  2. A. Sure. So I had trouble putting on the harness, right? They walked over to the I followed . . . . I was next to — adjacent to [Agredano] . . . . As my wife started to come down [the rock wall], I asked — I asked, where should I go climb? [Agredano] pointed me over to the other adjacent valet or belay.
  3. Q. Belay
  4. A. Belay. Then somewhere between there I asked — or I don’t know if I asked, but she said, Hook it between your legs. . . .

David also stated that Agredano was present in the climbing wall area during the whole incident and watched him climb the rock wall while wearing the harness incorrectly:

  1. Q. And was [Agredano] facing you when you began climbing?
  2. A. She was facing both of us.

* * *

  1. Q. What I want to know is were [sic] you and [*7] your wife on the climbing, and she was behind you looking at the two of you?
  2. A. Yeah. She was looking at both of us.

* * *

  1. Q. Was there any point in time, while you were putting on your harness or after you put on your harness, where [Agredano] was inside the wall, through this door?
  2. A. No.
  3. Q. So she was outside in the climbing wall area with you the entire time?
  4. A. Correct.

In Elena’s deposition testimony, she testified that Agredano also spoke to David after he reached the top of the rock wall, gave him instructions regarding how to descend, and instructed David to let go of the wall despite his incorrectly worn harness:

  1. Q. What happened at that point?
  2. A. And he said — he asked her twice how to go down. And he asked her two times, because I remember, like, why he’s asking her? . . . So then, when he asked her two times, she said, just let go, and it will bring you down, the automatically thing will bring you down. And she said, I think, you know, push, let go. She said, just let go. Just let go. . . .

While Agredano claimed that she was not in the room when David incorrectly donned his harness and ascended the wall, we must consider the evidence in the light most favorable to plaintiffs and [*8]  accept their testimony as true. Terrace Land Dev Corp, 250 Mich App at 455. David and Elena’s deposition testimony was that Agredano was present when David donned his harness and ascended the wall, that she had ample opportunity to determine that David had put his harness on incorrectly, but that she failed to correct his mistake. Further, plaintiffs testified that Agredano watched David climb the wall in an unsafe harness, and directed David to let go of the wall to repel back down to the ground despite the red loop on David’s harness indicating that his harness was on backwards. Thus, plaintiffs’ testimony allows the inference that Agredano did not simply have the ability to do more to assure David’s safe climb. Instead, accepting plaintiffs’ testimony as true, evidence exists that Agredano ignored the red loop in David’s harness–a clear visible indication2 that David was climbing the rock wall in an unsafe manner–and took no steps to avoid the known danger associated with climbing the rock wall with an improperly secured harness. Thus, Agredano’s alleged failure to affirmatively instruct David on the proper way to wear the harness before he donned it himself, coupled with her alleged disregard for the red loop warning sign [*9]  that David had his harness on backwards, and instructing him to push off the wall, could demonstrate to a reasonable juror that she “simply did not care about the safety or welfare of” David. Tarlea, 263 Mich App at 90. Accordingly, reasonable minds could differ regarding whether Agredano’s conduct constituted gross negligence. Thus, the trial court erred in granting defendant’s motion for summary disposition.

2 Agredano testified that if someone was standing below a rock climber, that person would be readily able to see if a harness was on backwards.

Because we have concluded that the trial court erred in granting summary disposition to defendant, it is unnecessary for us to address in Docket No. 328985 whether the decision to deny the case evaluation award would otherwise have been appropriate if the grant of summary disposition had been proper.

We reverse the order granting defendant’s motion for summary disposition and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Christopher M. Murray

/s/ Stephen L. Borrello

 


Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Bergin, et al., v. Wild Mountain, Inc. 2014 Minn. App. Unpub. LEXIS 212

Lee Bergin, et al., Appellants, vs. Wild Mountain, Inc. d/b/a Wild Mountain Ski Area, Respondent.

A13-1050

COURT OF APPEALS OF MINNESOTA

2014 Minn. App. Unpub. LEXIS 212

March 17, 2014, Filed

NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.

PRIOR HISTORY: [*1]

Chisago County District Court File No. 13-CV-11-695.

DISPOSITION: Affirmed.

CASE SUMMARY:

COUNSEL: For Appellants: James P. Carey, Marcia K. Miller, Sieben, Grose, Von Holtum & Carey, Ltd., Minneapolis, Minnesota.

For Respondent: Brian N. Johnson, John J. Wackman, Peter Gray, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota.

JUDGES: Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Hooten, Judge.

OPINION BY: HOOTEN

OPINION

UNPUBLISHED OPINION

HOOTEN, Judge

In this personal-injury action, appellants-skiers sued respondent-ski resort for damages resulting from a skiing accident. Appellants challenge the district court’s grant of summary judgment in favor of respondent, arguing that the district court erred by (1) denying their motion to amend the complaint to add allegations of reckless, willful, or wanton conduct; (2) determining that an exculpatory clause bars their claim of ordinary negligence; and (3) applying the doctrine of primary assumption of risk to bar their claim of ordinary negligence. Because respondent’s conduct does not give rise to a claim of greater-than-ordinary negligence, and because the exculpatory clause is enforceable to bar a claim of ordinary negligence, we affirm.

FACTS

Appellants Lee and Cathy Bergin sued respondent [*2] Wild Mountain, Inc. d/b/a Wild Mountain Ski Area for injuries that Lee sustained while skiing at Wild Mountain. The Bergins sought damages for Lee’s physical injuries, loss of wages and earning ability, loss of property, and medical expenses, as well as for Cathy’s loss of services, companionship, and consortium. Following discovery, Wild Mountain moved for summary judgment. The pleadings and discovery reveal the following.

In March 2010, Robert Knight purchased over the internet 2010-2011 season passes to Wild Mountain for himself, the Bergins, and another individual. To complete the purchase, Knight agreed to a season-pass agreement which included a release of liability:

I understand and accept the fact that alpine skiing and snowboarding in its various forms is a hazardous sport that has many dangers and risks. I realize that injuries are a common and ordinary occurrence of this sport. I agree, as a condition of being allowed to use the area facility and premises, that I freely accept and voluntarily assume all risks of personal injury, death or property damage, and release Wild Mountain Ski & Snowboard Area . . . and its agents, employees, directors, officers and shareholders from [*3] any and all liability for personal injury or property damage which results in any way from negligence, conditions on or about the premises and facilities, the operations, actions or omissions of employees or agents of the area, or my participation in skiing or other activities at the area, accepting myself the full responsibility for any and all such damage of injury of any kind which may result.

In accordance with Minnesota law, nothing in this Release of Liability should be construed as releasing, discharging or waiving claims I may have for reckless, willful, wanton, or intentional acts on the part of Wild Mountain Ski & Snowboard Area, or its owners, officers, shareholders, agents or employees.

Knight [*4] did not ask Lee about the release of liability before agreeing to it. Lee wrote a check to Knight for the Bergins’ season passes. In his deposition, Lee admitted that he authorized Knight to purchase the season passes, that he had purchased season passes to Wild Mountain since 2001 and had agreed to a release of liability each year, that he understood the release of liability, and that he would have authorized Knight to purchase the season passes had he known about the release of liability.1

1 The Bergins do not appeal the district court’s determination that Lee is bound by the season-pass agreement even though he did not execute it himself.

On the morning of November 28, 2010, the Bergins arrived at Wild Mountain to pick up their season passes and ski. The season pass is a wallet-sized card with Lee’s name and picture on the front and the following language on the back:

I agree and understand that skiing and snowboarding involve the risk of personal injury and death. I agree to assume those risks. These risks include trail conditions that vary due to changing weather and skier use, ice, variations in terrain and snow, moguls, rocks, forest growth, debris, lift towers, fences, mazes, snow [*5] grooming, and snowmaking equipment, other skiers, and other man-made objects. I agree to always ski and snowboard in control and to avoid these objects and other skiers. I agree to learn and obey the skier personal responsibility code.

The Bergins and their friends skied “The Wall,” a double-black-diamond trail. At the top of The Wall, Lee observed that there were mounds of snow on the skiers’ left side of the run. Thinking that the left side was not skiable terrain, Lee skied down the right side. Then, at the bottom of the hill in the flat transition or run-out area, Lee encountered a “mound of snow” that he could not avoid. He hit the snow mound, flew up six to ten feet in the air, and landed on his back and the tails of his skis. Lee estimated that the snow mound was “maybe a little bigger” and “maybe a little taller” than a sofa, and that “there was no sharp edges defining” it. After the fall, Lee underwent surgery on his back and is partially paralyzed.

Daniel Raedeke, the president of Wild Mountain, testified by affidavit that Wild Mountain started making snow on The Wall on November 25, three days before Lee’s accident. On the morning of November 26, snowmaking ceased and The [*6] Wall was opened for skiing. According to Raedeke, “hundreds of skiers took thousands of runs down The Wall prior to” Lee’s accident. Raedeke added:

At the completion of snowmaking activities, there were some terrain variations at various points throughout the entire Wall run from top to bottom and side to side. Terrain variations from snowmaking are common at Minnesota (and Midwest) ski areas, particularly early in the season as ski areas rely on machine-made snow to get the areas open. It is very common for terrain variation to be encountered by skiers in Minnesota and elsewhere and they are generally well-liked, particularly by expert level skiers like [Lee].

Raedeke testified that “Wild Mountain received no reports of anything being hazardous or even out-of-the ordinary on The Wall.”

The Bergins submitted the affidavits of two ski-safety experts, Seth Bayer and Richard Penniman. Bayer testified that Wild Mountain “engaged in snow-making activity, intentionally created the hazard [Lee] encountered by creating large mounds of man-made snow . . . then intentionally left the snow-making mound in the run-out or transition area.” According to Bayer, Wild Mountain “knew or should have known [*7] that the snow-making mound in the transition area created a hazard and should have groomed out the mound or further identified the mound as a hazard.” He added that Wild Mountain failed to follow professional safety standards in making and grooming the snow.

Similarly, Penniman testified that complying with professional safety standards “would have entailed grooming out the snow making mounds; putting fencing around the snow making mounds; and warning skiers of the mounds with a rope barricade and caution signs.” He testified that “Wild Mountain’s failure to have a consistent and structured snow making and grooming policy, which specifically addressed the [professional safety standard], caused or contributed to the unsafe decision to leave a large mound of man-made snow in the transition area between the bottom of The Wall ski trail and the chair lift.” According to Penniman, “snow making mounds are not an inherent risk to the sport of skiing.”

Following discovery and Wild Mountain’s motion for summary judgment, the Bergins moved to amend their complaint to add a claim of greater-than-ordinary negligence. In April 2013, the district court denied the Bergins’ motion and granted summary [*8] judgment in favor of Wild Mountain. This appeal follows.

DECISION

I.

[HN1] After a responsive pleading is served, “a party may amend a pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Minn. R. Civ. P. 15.01. [HN2] “We review a district court’s denial of a motion to amend a complaint for an abuse of discretion.” Johnson v. Paynesville Farmers Union Co-op. Oil Co., 817 N.W.2d 693, 714 (Minn. 2012), cert. denied, 133 S. Ct. 1249, 185 L. Ed. 2d 180 (2013). [HN3] “A district court should allow amendment unless the adverse party would be prejudiced, but the court does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment.” Id. (citations omitted).

[HN4] Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. [HN5] A genuine issue of material fact does not exist “when the nonmoving party presents evidence which merely creates a metaphysical doubt [*9] as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). [HN6] On appeal, “[w]e view the evidence in the light most favorable to the party against whom summary judgment was granted. We review de novo whether a genuine issue of material fact exists. We also review de novo whether the district court erred in its application of the law.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002) (citations omitted).

The Bergins moved to amend their complaint to add the allegation that Lee’s accident “was a result of the reckless, willful, or wanton conduct” of Wild Mountain. They assert that Wild Mountain “knew or should have known that a large, un-marked, un-groomed, mound of snow in the transition area between ‘The Wall’ and a chair lift . . . created a significant risk of physical harm to skiers.” The district court concluded that, although Wild Mountain would not be prejudiced if the motion to amend was granted,2 the motion must still be denied because the proposed claim “would not survive [*10] summary judgment, as [Wild Mountain’s] conduct does not, as a matter of law, rise to the level of reckless, willful or wanton.”

2 Wild Mountain does not challenge this finding on appeal.

The Bergins argue that the district court erred as a matter of law by “[r]equiring [them] to move to amend the [c]omplaint.” They assert that “Minnesota Rule of Civil Procedure 9.02 does not require plaintiffs to plead allegations of reckless, willful, or wanton conduct with particularity.” See Minn. R. Civ. P. 9.02 (stating that “[m]alice, intent, knowledge, and other condition of mind of a person may be averred generally”). Accordingly, they contend that the district court should have examined whether Wild Mountain committed greater-than-ordinary negligence based on the complaint and discovery.

The Bergins’ reliance on rule 9.02 is misplaced. [HN7] Although the Bergins were not required to plead a claim of greater-than-ordinary negligence with particularity under rule 9.02, they still had to plead it with “a short and plain statement . . . showing that [they are] entitled to relief” under Minn. R. Civ. P. 8.01, which they failed to do by pleading only a claim of “negligence and carelessness.” See L.K. v. Gregg, 425 N.W.2d 813, 819 (Minn. 1988) [*11] (stating that pleadings are liberally construed to “give[] adequate notice of the claim” against the defending party); cf. State v. Hayes, 244 Minn. 296, 299-300, 70 N.W.2d 110, 113 (1955) (concluding that “both at common law and by virtue of long-established usage,” the term “carelessness” in a criminal statute is “synonymous with ordinary negligence”).3

3 We also note that the district court did not require the Bergins to move to amend their complaint. Following a hearing on the summary judgment motion, the district court sent a letter to the parties, stating that “[a]t the Summary Judgment Motion Hearing, [the Bergins] moved the Court to amend the Complaint” and that “[t]he Court will leave the record open” for them to file the motion. The district court simply responded to the Bergins’ desire to amend the complaint without requiring them to do so.

Turning to the Bergins’ substantive argument, they assert that “there are questions of fact regarding whether Wild Mountain engaged in reckless or willful or wanton conduct that . . . preclude summary judgment.” [HN8] “[R]eckless conduct includes willful and wanton disregard for the safety of others . . . .” Kempa v. E.W. Coons Co., 370 N.W.2d 414, 421 (Minn. 1985).

The [*12] actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500 (1965) (emphasis added); see also 4 Minnesota Practice, CIVJIG 25.37 (2006). “Willful and wanton conduct is the failure to exercise ordinary care after discovering a person or property in a position of peril.” Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002).

The Bergins argue that their expert affidavits support their claim of greater-than-ordinary negligence. We are not persuaded for three reasons.

First, [HN9] “[a]ffidavits in opposition to a motion for summary judgment do not create issues of fact if they merely recite conclusions without any specific factual support.” Grandnorthern, Inc. v. W. Mall P’ship, 359 N.W.2d 41, 44 (Minn. App. 1984). Bayer’s testimony that Wild [*13] Mountain “knew” that the snow mound was hazardous is speculation because there is no evidence that Bayer knew Wild Mountain employees’ state of mind before Lee’s fall and injury.

Second, the Bergins misunderstand the “had reason to know” standard for establishing a claim of greater-than-ordinary negligence. The Bergins contend that they need not prove knowledge to establish a claim of greater-than-ordinary negligence and that it is enough that Wild Mountain “should have known” that the snow mound was hazardous. But [HN10] knowledge separates the “had reason to know” standard from the “should have known” standard:

(1) The words “reason to know” . . . denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.

(2) The words “should know” . . . denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that [*14] such fact exists.

Restatement (Second) of Torts § 12 (1965) (emphases added). Accordingly, Bayer’s testimony that Wild Mountain “should have known” that the snow mound was hazardous is insufficient to establish the state of mind necessary to establish a claim of greater-than-ordinary negligence.

Finally, the expert affidavits are insufficient to establish that Wild Mountain had reason to know that the snow mound was hazardous. According to Bayer and Penniman, the snow mound was hazardous because skiers do not expect a snow mound in the transition run-out area and because the lighting condition obscured the snow mound. Assuming that these alleged facts are true, nothing in the record suggests that Wild Mountain had knowledge of these facts from which to infer that the snow mound was hazardous. Rather, Raedeke’s testimony shows that Wild Mountain received no complaints from hundreds of skiers who skied The Wall before Lee’s accident. The expert affidavits are, at most, evidence that a reasonable person managing the ski operation would not have created, or would have marked, the snow mound in the run-out area. This evidence shows only ordinary negligence.

Because the evidence is insufficient [*15] to establish that Wild Mountain engaged in conduct constituting greater-than-ordinary negligence, the district court correctly determined that a claim of greater-than-ordinary negligence would not survive a motion for summary judgment. Accordingly, the district court acted within its discretion by denying the Bergins’ motion to amend their complaint to add a claim of greater-than-ordinary negligence. See Johnson, 817 N.W.2d at 714 (stating that [HN11] a district court “does not abuse its discretion when it disallows an amendment where the proposed amended claim could not survive summary judgment”).

The Bergins also argue that the district court “did not address the evidence that created questions of material fact regarding Wild Mountain’s reckless, willful, or wanton conduct.” But the district court examined Wild Mountain’s conduct and concluded that it “does not meet the standards for gross negligence, willful and wanton conduct, or reckless conduct (as defined by both parties).” The district court’s discussion of Lee’s knowledge of the inherent risks of skiing–while perhaps extraneous–does not indicate that the district court failed to analyze Wild Mountain’s conduct.

II.

The Bergins argue [*16] that the district court erred by determining that the exculpatory clause bars the Bergins’ claim of ordinary negligence. [HN12] The interpretation of a written contract is a question of law reviewed de novo. Borgersen v. Cardiovascular Sys., Inc., 729 N.W.2d 619, 625 (Minn. App. 2007). [HN13] Under certain circumstances, “parties to a contract may . . . protect themselves against liability resulting from their own negligence.” See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 922-23 (Minn. 1982) (considering exculpatory clauses in construction contracts and commercial leases). “A clause exonerating a party from liability,” known as an exculpatory clause, is enforceable if it: (1) is “unambiguous”; (2) is “limited to a release of liability arising out of negligence only”; and (3) does not violate public policy. See id. at 923. “An exculpatory clause is ambiguous when it is susceptible to more than one reasonable construction.” Beehner, 636 N.W.2d at 827.

The district court concluded that Wild Mountain’s exculpatory clause is enforceable because it is unambiguous and bars only ordinary-negligence claims. The Bergins contend that the exculpatory clause is ambiguous because “there are questions of fact [*17] regarding whether the [season-pass card] was part of the exculpatory contract.” They assert that the exculpatory clause and the language on the season-pass card “construed together are overly broad and ambiguous” because the season-pass card contains a non-exhaustive list of risks while the season-pass agreement expressly excludes greater-than-ordinary negligence from the scope of the exculpatory clause. We are not persuaded.

Because [HN14] a contract ambiguity exists only if it is “found in the language of the document itself,” we consider whether the season-pass card is a part of the season-pass agreement between Lee and Wild Mountain. See Instrumentation Servs., Inc. v. Gen. Res. Corp., 283 N.W.2d 902, 908 (Minn. 1979). [HN15] “It is well established that where contracts relating to the same transaction are put into several instruments they will be read together and each will be construed with reference to the other.” Anchor Cas. Co. v. Bird Island Produce, Inc., 249 Minn. 137, 146, 82 N.W.2d 48, 54 (1957). Here, the contractual relationship between Lee and Wild Mountain was formed when the online season-pass agreement was executed more than eight months before Lee picked up the season-pass card. [*18] As the district court correctly concluded, the season-pass card itself is not a contract. Although the season-pass card contains language emphasizing the inherent risk of skiing, it does not contain an offer by Wild Mountain to be legally bound to any terms. See Glass Serv. Co., Inc. v. State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867, 870 (Minn. App. 1995), review denied (Minn. June 29, 1995). And as a corollary, Lee could not have accepted an offer that did not exist. The season-pass card is an extrinsic document that does not create an ambiguity in the season-pass agreement.

The Bergins rely on Hackel v. Whitecap Recreations, 120 Wis. 2d 681, 357 N.W.2d 565 (Wis. Ct. App. 1984) (Westlaw). There, a skier was injured when he was “caught in a depression apparently caused by the natural drainage of water.” 120 Wis. 2d 681, at *1. The ski resort “denied liability on the basis of language printed on the lift ticket purchased by” the skier. Id. The Wisconsin Court of Appeals held that summary judgment was improper because “[w]hether the printed language on the ski ticket was part of the contractual agreement between the parties is a question of fact.” Id. Based on Hackel, the Bergins argue that “there are [*19] questions of fact regarding whether the [season-pass card] was part of the exculpatory contract.”

The Bergins’ reliance on Hackel is misplaced. As an unpublished opinion issued before 2009, Hackel has neither precedential nor persuasive value in Wisconsin. See Wis. R. App. P. 809.23(3) (Supp. 2013). Even if it were, Wisconsin’s adoption of a common-law rule is “not binding on us as authority.” See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (examining other jurisdictions’ standards of tort liability). Substantively, the questions of fact that precluded summary judgment in Hackel are absent here. In Hackel, the only language alleged to be exculpatory was printed on the back of a lift ticket, which the skier did not sign. 120 Wis. 2d 681, at *1. This language did not expressly release the ski resort from liability, but it listed the risks that the skier agreed to assume. Id. The Wisconsin court concluded that a fact issue exists as to whether the language could be construed to mean “that skiers assume inherent risks of the sport without relieving [the ski company] of its own negligence” or that “[t]he language might also be construed as an exculpatory clause.” 120 Wis. 2d 681, Id. at *2. Another [*20] question of fact that precluded summary judgment was “whether the [unsigned] ticket was intended as part of the contract.” 120 Wis. 2d 681, Id. at *1 n.1. Here, unlike in Hackel, neither the existence of an exculpatory clause nor the intention that it be a part of the contract is in question. It is undisputed that Lee agreed to the exculpatory clause in the season-pass agreement before receiving the season-pass card.

Even if the season-pass card and season-pass agreement are construed together, they do not create an ambiguity. [HN16] “Terms in a contract should be read together and harmonized where possible,” and “the specific in a writing governs over the general.” Burgi v. Eckes, 354 N.W.2d 514, 518-19 (Minn. App. 1984). Accordingly, the season-pass agreement’s specific language excluding greater-than-ordinary negligence from the scope of the exculpatory clause supersedes the season-pass card’s general language on the inherent risks of skiing. The district court correctly determined that the exculpatory clause is limited to a release of liability arising out of negligence only and granted summary judgment in favor of Wild Mountain.

Because we conclude that an unambiguous and enforceable exculpatory clause [*21] bars the Bergins’ claim of ordinary negligence, we decline to reach the issue of whether the doctrine of primary assumption of risk also bars the claim of ordinary negligence.

Affirmed.


Michigan decision rules skier who fell into half pipe after landing a jump could not recover based on 2 different sections of the Michigan Ski Area Safety Act.

Language of the Michigan Ski Area Safety Act used to stop plaintiff’s claims two different ways.

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

State: Michigan, Court of Appeals of Michigan

Plaintiff: Marvin Marshall and Christine Marshall

Defendant: v Boyne USA, Inc.,

Plaintiff Claims: Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe.

Defendant Defenses: plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.

Holding: for the defendant

Year: 2012

Plaintiff was skiing with a friend. In the morning, they had skied through the terrain park but had not skied the half pipe. In the afternoon, they went back to the terrain park and skied several jumps again. Plaintiff also noticed the warning sign at the entrance of the terrain park.

The half pipe in this case appears to be a trough lower than the height of the ski slope based upon the description in the decision. As the plaintiff landed a jump, he allegedly slid to a stop and then fell into the half pipe suffering injuries.

The plaintiff and his spouse sued the resort. The resort filed a motion for summary disposition (similar to a motion for summary judgment) with the court based on:

…plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket.

That motion was denied, and the defendants appealed the denial to the Michigan Appellate Court.

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

The court firs looked at the Michigan Ski Area Safety Act. The court found the claims of the plaintiff were barred by the act. Under the Michigan act, a skier assumes the risks of the sport that are necessary or not obvious.

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Among the risks assumed are “variations in terrain.” MCL 408.342(2).

Because the actions of the plaintiff were covered under the act, the court then looked to see if the actions of the defendant ski area were in violation of any duty imposed under the act. The court did not find any violations of the act.

Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that defendant complied with this requirement.

The plaintiff argued that failing to mark the half pipe breached a duty to the plaintiff. However, the court found the plaintiff accepted that risk of an unmarked half pipe when he chose to ski into the terrain park and passed the warning sign.

By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law.

The defendant raised two additional arguments in its defense. The first was a release signed by the plaintiff when he rented his ski equipment and the “release” on the back of his lift ticket. Because the statute barred his claims and the lawsuit would be dismissed, the court did not look into either of those defenses.

The court reversed the trial court decision.

There was also a dissent in the case. The dissent agreed with the majority that the case should be reversed by based its decision to reverse on other grounds.

The dissent found the terrain park and the half pipe were necessary installations in a terrain park. However, the dissent agreed with the plaintiff’s that the half pipe was not obvious, which is what the dissent believes persuaded the trial court to deny the defendant’s motion.

However, because the plaintiff to actual knowledge of the half pipe that he observed earlier in the day while skiing he could not claim it was a hidden danger.

The dissent also felt the plaintiff should lose because the plaintiff failed to maintain reasonable control of his course and speed at all times as required by the Michigan Ski Area Safety Act.

I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after  executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

The case was sent back to the trial court to be dismissed.

So Now What?

It’s nice when a plan comes together, and a statute is written so the court’s interpretation of the statute proceeds along the same lines as the writers of the statute intended.

The Michigan Ski Area Safety Act is a very effective act, almost as encompassing as Colorado’s. The act was written to make sure that injured skiers could only sue if the ski area actually did something to injure the plaintiffs.

The facts in this case also do not lead you to believe the plaintiff stretched the truth. His actions in skiing across the mountain to hit a jump which sent him further across the mountain diagonally were not super intelligent. However, did not result in any injury except his own.

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Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marshall, v Boyne USA, Inc., 2012 Mich. App. LEXIS 928

Marvin Marshall and Christine Marshall, Plaintiffs-Appellees, v Boyne USA, Inc., Defendant-Appellant.

No. 301725

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 928

May 15, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

SUBSEQUENT HISTORY: Leave to appeal denied by Marshall v. Boyne United States, Inc., 2012 Mich. LEXIS 2153 (Mich., Dec. 5, 2012)

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-091822-NF.

CORE TERMS: half pipe, terrain, skiing, ski, jump, skied, hit, inhere, hazard, trail, sport, downhill, feet, Safety Act SASA, ski resort, skier, slope, top, morning, timing, reversing, booth, edge

JUDGES: Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ. HOEKSTRA, P.J., (concurring).

OPINION

Per Curiam.

Defendant appeals by leave granted from the circuit court’s order denying defendant’s motion for summary disposition. We reverse and remand.

In 2009, plaintiff Marvin Marshall was skiing at defendant’s ski resort at Boyne Mountain in Charlevoix County with a friend, Randy. They skied several trails that morning, and also skied in the terrain park. Plaintiff was familiar with and had skied in terrain parks, which he described as having “jumps and different obstacles[.]” Plaintiff saw a warning sign at the entrance to the terrain park, but he did not read it.

The terrain park contained a half pipe that was about twenty feet deep. A half pipe is a ski attraction created by a trench in the snow that extends downhill. Skiers ski inside of the half pipe. On the morning of February 5, plaintiff saw the half pipe in the terrain park, but he did not ski into it. Plaintiff skied in an area just to the right of the half pipe.

After lunch, plaintiff and his friend went into the terrain park for a second time. They entered the terrain park from the left side this time. [*2] Plaintiff skied down the terrain park and hit the edges of a series of jumps. When plaintiff was halfway down the hill, Randy yelled to him and plaintiff stopped. Randy said that there was a good jump to their right that would be “good to hit.” Randy went first, and plaintiff followed. Plaintiff proceeded laterally across the hill (to the right, if one is facing downhill). Plaintiff “came almost straight across because there was enough of an incline . . . [he] didn’t have to come downhill much.”

Plaintiff successfully navigated the jump, which caused him to go up into the air about 12 to 15 feet. He landed and came to a stop by turning quickly to the right and power-sliding to a stop. As he looked around for Randy, plaintiff felt his feet go over the edge of the half pipe. He slid down the side a little bit, and then hit the bottom. Plaintiff shattered his left calcaneus (heel) and the top of his tibia, and broke his hip and right arm. He also fractured his left eye socket where his pole hit his head when he fell.

Plaintiffs filed the instant action, alleging that defendant was negligent in failing to adequately mark the boundaries of the half pipe. Defendant moved for summary disposition, [*3] arguing that plaintiffs’ claim was barred both under the Ski Area Safety Act (SASA), MCL 408.321 et seq., and by reason of two liability releases, one that plaintiff signed when he rented the ski equipment and a second that was printed on the back of his lift ticket. The trial court denied the motion, concluding that there remained issues of fact. Thereafter, we granted defendant’s motion for leave to appeal. We review the trial court’s decision de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 23; 664 NW2d 756 (2003).

We agree with defendant that SASA bars plaintiffs’ claim. Under SASA, a skier assumes the risk for those dangers that inhere in the sport of skiing unless those dangers are unnecessary or not obvious. Anderson, 469 Mich at 26. Among the risks assumed are “variations in terrain.” MCL 408.342(2). Moreover, defendant did not breach a duty imposed under the act. MCL 408.326a imposes a duty on the ski resort to mark certain hazards involving equipment and fixtures, which is not relevant here, as well as a duty to place a sign at the top of a run, slope or trail with certain information regarding the difficulty of that run, slope or trail. There is no dispute that [*4] defendant complied with this requirement. Rather, plaintiffs argue that defendant breached a duty not imposed by the statute: to mark the half pipe itself. But Anderson makes clear that when SASA resolves a matter, common-law principles are no longer a consideration. Anderson, 469 Mich at 26-27. By choosing to ski in the terrain park, which was marked with signage as required by the SASA, and which contained the half pipe that plaintiff saw earlier that day, plaintiff is held to have accepted the danger as a matter of law. Anderson, 469 Mich at 25-26.

Accordingly, defendant was entitled to summary disposition by application of SASA. In light of this conclusion, we need not consider whether defendant was also entitled to summary disposition under the liability waivers.

Reversed and remanded to the trial court with instructions to enter an order of summary disposition in defendant’s favor. We do not retain jurisdiction. Defendant may tax costs.

/s/ David H. Sawyer

/s/ Henry William Saad

CONCUR BY: HOEKSTRA

CONCUR

Hoekstra, P.J., (concurring).

Although I join with the majority in reversing, I write separately because my reason for reversing differs from that of the majority.

In Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26; 664 NW2d 756 (2003), [*5] the Supreme Court concluded that if a hazard inheres in the sport of skiing, it is covered by the Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., unless it is unnecessary or not obvious.

Here, it is undisputed that the half pipe, like the timing booth in Anderson, inheres to the sport of skiing and is a necessary installation in a terrain park. But unlike the timing booth in Anderson, plaintiff, in my opinion, makes an arguable claim that the half pipe was not obvious to persons skiing cross-hill. It appears that this argument persuaded the trial court to deny defendant’s motion for summary judgment.

But even assuming a fact question exists regarding whether the half pipe was not obvious, plaintiff admitted to actual knowledge of the location of the half pipe from having observed it earlier that same day while skiing. When skiing, a plaintiff is required by the SASA to “maintain reasonable control of his speed and course at all times,” MCL 408.342 (emphasis added). I would conclude that the obligation to reasonably control one’s course includes the expectation that a plaintiff will avoid known hazards. Here, plaintiff’s failure to reasonably control his course of travel after [*6] executing a jump resulted in him coming up to and falling into the half pipe that he admittedly knew was located in that area of the terrain pipe. For that reason, I would reverse and remand.

/s/ Joel P. Hoekstra


Michigan Equine helped the plaintiff more than the stable and helped prove there may be gross negligence on the part of the defendant

Plaintiff argues gross negligence claim which appellate court agreed raise enough triable issues of fact to send the case back to the trial court.

Hawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366

State: Michigan, COURT OF APPEALS OF MICHIGAN

Plaintiff: Bret D. Hawkins and Erin Hawkins

Defendant: v Ranch Rudolph, Inc. and Circle H Stables, Inc.

Plaintiff Claims: Gross Negligence

Defendant Defenses: Actions not negligent

Holding: For Plaintiff

Year: 2005

The plaintiffs were on their honeymoon and signed up for a trail ride. They chose the “Wrangler Ride” offered by the defendant because the groom had never been on a horse before. The Bride had only been on a horse once when she was eleven. The Wrangler Ride was a four mile single file ride on trails through the woods.

The trail guide or wrangler chose a horse for the groom that was very gentle, normally used for kids. The wrangler gave everyone basic instructions how to stay on the horse and use the reins. The wrangler saddled the horses and double checked the saddles before and after the guests mounted their horses.

The groom claimed after mounting the horse he complained that his saddle was not securely fastened. The wrangler did not recall the groom making this request. She also did not notice the saddle was loose while the groom was mounting the horse.

During the ride the wrangler asked if they wanted to trot their horses and asked if anyone was opposed to the idea. She also said if they were having trouble to yell.

At this point the plaintiff’s version of the facts are so fare outside of the scope of a normal operation or how horses would respond it is clear the facts were altered or made up to support their claims.

According to plaintiffs, Ridge and her horse then “bolted” into a fast, or full-out run, and the other horses followed her lead. Both plaintiffs stated that when their horses began running they were too surprised or shocked to yell and were just trying to hang on. According to Bret, his saddle slid to the right and he grabbed the saddlehorn and the back of the saddle as instructed but was still falling off his horse. He stated that his arm hit a tree so hard that he suffered a humeral fracture. He then fell from the horse.

However the wrangler and other people on the ride described the events quite differently.

According to Ridge, a trot is a fast walk, “slower than a canter, and much slower than a run or gallop.” Other experienced riders in the group characterized a trot in similar language.

One of the other participants attested that he checked the saddle after the fall and it was not loose.

On top of that the facts are just too absurd to be believable. No trail ride, no matter how good the riders are going to take off on a gallop. It is dangerous for riders of all abilities and horses. Second, normally, the first thing someone in trouble or seeing a risk does is scream. Thirdly, if you are holding on to the saddlehorn with one hand and the back of the saddle with the other, how does your arm fly out and strike a tree?

The trial court could not find facts in the plaintiff’s version of the facts that would rise to the level required to prove negligence under Michigan law. The release voided all ordinary negligence claims so only the gross negligence claim was viable.

The case was dismissed and the plaintiff’s appealed.

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

The basic claim of the plaintiff is there were issues of fact in dispute giving rise to enough for a jury to decide.

The first issue the court addressed was the witness statements, but not directly. Rather the court looked at what a witness may say. Basically it is about anything as long as it is relevant to the case. Lay witnesses, witnesses that are not qualified as an expert witness, can provide opinions.

As an initial matter, plaintiffs’ testimony was admissible because it was based on their personal observations and perceptions. MRE 602. To the extent that plaintiffs’ testimony merely amounted to opinion, such testimony would nevertheless be admissible evidence. MRE 701. “MRE 701 allows opinion testimony by a lay witness as long as the opinion is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue.” “Once a witness’s opportunity to observe is demonstrated, the opinion is admissible in the discretion of the trial court, and the weight to be accorded the testimony is for the jury to decide.” Moreover, laypersons are permitted to testify regarding speed. Therefore, that plaintiffs lacked experience with horses merely goes to the weight of their testimony not to its admissibility.

So no matter how farfetched or contrived the statements of a witness, if they cannot be proved as false, they are admitted into court.

The court then looked at gross negligence in Michigan. “…gross negligence should be defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”

Since under Michigan and most other (if not all) state laws a release does not void a claim for gross negligence, the only claims left of the plaintiff were the gross negligence claims.

The Michigan Equine Liability act allows the use of a release by horse owners.

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice.

(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).

The court pointed out that the act did not provide protection for the “equine professional.” As such, the only claims available to the plaintiff were the claims for gross negligence.

The court then found that the plaintiff’s claims if viewed in a light most favorable to them could be found to be valid to prove a claim of gross negligence.

We conclude that viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether her conduct of taking a totally inexperienced rider on a fast ride was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.

There is a dissenting opinion that found the trial court was correct in its analysis of the facts. However the majority opinion found that the issue at trial in this case was the decision to speed up the ride.

However, in our collective opinion, our point of departure from our esteemed colleague’s dissenting opinion is the trail guide’s decision to speed up the pace when plaintiff had never ridden a horse before. For a first time rider, yelling “Whoa Nellie” or in this instance, “Whoa Tye” hoping to slow the horse down or to obtain the trail guide’s attention for help could be difficult.

The court went on to explain its reasoning.

Ridge was in control of the horses’ speed, as the guide riding the lead horse. And Bret’s horse “bolted” not because it was scared, which would clearly be an inherent risk of an equine activity, but because it was following Ridge’s lead. It cannot be disputed that she made the conscious decision to “speed things up a little bit,” knowing that Bret lacked the requisite experience to control the animal on which he rode. It would seem that it was indisputably an important part of Ridge’s job to look after the safety of those placed in her care.

The court sent the case back to trial.

A reasonable person could conclude that Ridge’s conduct of taking plaintiffs on a fast ride given their known lack of experience unreasonably added to the risks of the already dangerous activity and was thus so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.

So Now What?  (Motivational get them to do something post)

First the Michigan Equine Liability Statute only protects a horse owner from the actions of the horse. There was no protection for the actions of the wrangler or the stable. No matter how written all equine liability acts have been written in a similar way leaving wide open any lawsuit claiming the injury the plaintiff received was do the owner’s negligence.

As I have said in the past, Equine Liability Acts are 100% effective, since their enactment no horses have been sued. However the acts were so glaring deficient they have seemingly increased the number of lawsuits against horse owners.

This defendant wisely followed the requirements of the act and had guests sign a release.

The second issue is wild statements of the injured guests. Actually there are very little ways to counteract these statements except for one. If you can record either in writing, in the minds of witnesses or by a tape the statements of the possible plaintiffs. Keeping good notes on what they said might allow you to at least partially discredit later allegations, but only at trial.

Another real issue that came to light in this case is the other riders who were involved with their actions and opinions. One rider checked the saddle to see if it was tight and others opined they never went faster than a trot. Keeping the other witnesses and participants to an activity engaged and happy can be of infinite value to you later. Remember a Victim is not only the person who was hurt but anyone who saw the victim or was on the trip. These people may need care, maybe not first aid, but at least someone to help them deal with the issues they may be having.

Although those statements would have little value in pre-trial motions, their testimony at trial is the most valuable statements made on the stand. Jurors know that the other guests had a better view, a better understanding of what happened and no axe to grind or wallet to defend.

 

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Michigan Equine Activity Liability Act

MICHIGAN COMPILED LAWS SERVICE

Copyright © 2015 Matthew Bender & Company, Inc.

a member of the LexisNexis Group.

All rights reserved.

This document is current through 2015 Public Act 202 with the exception of Public Acts 160, 167, 170, 173-176, 178-179, 181, 182, 191, and 198.

Chapter 691  Judiciary

Act 351 of 1994  Equine Activity Liability Act

Go to the Michigan Code Archive Directory

MCLS § 691.1662  (2015)

 

§ 691.1661.  Short title. 1

§ 691.1662.  Definitions. 2

§ 691.1663.  Injury, death, or property damage; liability. 5

§ 691.1664.  Liability; exception; waiver. 7

§ 691.1665.  Liability not prevented or limited; conditions. 9

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice. 11

§ 691.1667.  Applicability of act. 12

 

§ 691.1661.  Short title.

Sec. 1.   This act shall be known and may be cited as the “equine activity liability act”.

HISTORY: Pub Acts 1994, No. 351, § 1, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(1)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals §§ 61, 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

13 Am Jur Proof of Facts 2d 473, Knowledge of Animal’s Vicious Propensities

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1662.  Definitions.

Sec. 2.   As used in this act:

            (a) “Engage in an equine activity” means riding, training, driving, breeding, being a passenger upon, or providing or assisting in veterinary treatment of an equine, whether mounted or unmounted. Engage in an equine activity includes visiting, touring, or utilizing an equine facility as part of an organized event or activity including the breeding of equines, or assisting a participant or show management. Engage in equine activity does not include spectating at an equine activity, unless the spectator places himself or herself in an unauthorized area and in immediate proximity to the equine activity.

            (b) “Equine” means horse, pony, mule, donkey, or hinny.

            (c) “Equine activity” means any of the following:

                        (i) An equine show, fair, competition, performance, or parade including, but not limited to, dressage, a hunter and jumper horse show, grand prix jumping, a 3-day event, combined training, a rodeo, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting.

                        (ii) Equine training or teaching activities.

                        (iii) Boarding equines, including their normal daily care.

                        (iv) Breeding equines, including the normal daily care and activities associated with breeding equines.

                        (v) Riding, inspecting, or evaluating an equine belonging to another, whether or not the owner receives monetary consideration or another thing of value for the use of the equine or is permitting a prospective purchaser of the equine or an agent to ride, inspect, or evaluate the equine.

                        (vi) A ride, trip, hunt, or other activity, however informal or impromptu, that is sponsored by an equine activity sponsor.

                        (vii) Placing or replacing a horseshoe on or hoof trimming of an equine.

            (d) “Equine activity sponsor” means an individual, group, club, partnership, or corporation, whether or not operating for profit, that sponsors, organizes, or provides the facilities for an equine activity, including, but not limited to, a pony club; 4-H club; hunt club; riding club; school- or college-sponsored class, program, or activity; therapeutic riding program; stable or farm owner; and operator, instructor, or promoter of an equine facility including, but not limited to, a stable, clubhouse, ponyride string, fair, or arena at which the equine activity is held.

            (e) “Equine professional” means a person engaged in any of the following for compensation:

                        (i) Instructing a participant in an equine activity.

                        (ii) Renting an equine, equipment, or tack to a participant.

                        (iii) Providing daily care of horses boarded at an equine facility.

                        (iv) Training an equine.

                        (v) Breeding of equines for resale or stock replenishment.

            (f) “Inherent risk of an equine activity” means a danger or condition that is an integral part of an equine activity, including, but not limited to, any of the following:

                        (i) An equine’s propensity to behave in ways that may result in injury, harm, or death to a person on or around it.

                        (ii) The unpredictability of an equine’s reaction to things such as sounds, sudden movement, and people, other animals, or unfamiliar objects.

                        (iii) A hazard such as a surface or subsurface condition.

                        (iv) Colliding with another equine or object.

            (g) “Participant” means an individual, whether amateur or professional, engaged in an equine activity, whether or not a fee is paid to participate.

HISTORY: Pub Acts 1994, No. 351, § 2, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(2)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

Plaintiff, a visitor to a stable, was a “participant” under the Equine Activity Liability Act when she briefly assisted in the care of a horse owned by a friend. Therefore her claim for damages arising from being bitten by a horse was properly dismissed on summary. Amburgey v. Sauder, 238 Mich. App. 228, 605 N.W.2d 84, 1999 Mich. App. LEXIS 282 (Mich. Ct. App. 1999).

Horse owner could invoke MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., although she was not an equine professional or an equine activity sponsor because she fit within the definition of “another person” under § 691.1663 of the EALA. Also, she properly was characterized as an equine participant as that term was defined in MCL § 691.1662. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Rider’s injuries while riding a horse resulted from “an inherent risk of an equine activity” as that phrase was defined under MCL § 691.1662(f) of the Michigan Equine Activity Liability Act, MCL §§ 691.1661 et seq., based on the rider’s testimony that, upon being mounted, the horse got a little antsy and started to raise up on the front end a little bit at which time the rider, who was experienced, began turning the horse in tight circles to settle him down. After turning two circles, the horse bumped his head on a tree; reared up and caught one of his front hoofs in a tree; went over backwards and fell on the rider, injuring the rider. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 73

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

1C Am Jur Pl & Pr Forms, Rev, Animals, § 1

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1663.  Injury, death, or property damage; liability.

Sec. 3.   Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or the death of a participant or property damage resulting from an inherent risk of an equine activity. Except as otherwise provided in section 5, a participant or participant’s representative shall not make a claim for, or recover, civil damages from an equine activity sponsor, an equine professional, or another person for injury to or the death of the participant or property damage resulting from an inherent risk of an equine activity.

HISTORY: Pub Acts 1994, No. 351, § 3, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(3)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

Judgment granting summary disposition under MCR 2.116(C)(10) in favor of a horse owner in a neighbor’s personal injury action was affirmed because the neighbor failed to produce evidence in support of her claims under MCL 691.1665(b) and (d) as her injury resulted from an inherent risk of an equine activity and she did not prove otherwise. The claim was barred under MCL 691.1663. Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748, 2009 Mich. App. LEXIS 1445 (Mich. Ct. App. 2009), rev’d, 486 Mich. 1060, 784 N.W.2d 38, 2010 Mich. LEXIS 1452 (Mich. 2010).

Horse owner could invoke MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., although she was not an equine professional or an equine activity sponsor because she fit within the definition of “another person” under § 3 of the EALA. Also, she properly was characterized as an equine participant as that term was defined in MCL § 691.1662. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Bar to liability set forth in MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., was subject to MCL § 691.1665, which provided that § 691.1663 of the EALA did not prevent liability for a negligent act or omission that proximately caused an injury. Accordingly, the EALA did not prevent liability on a rider’s claim that a horse owner was negligent in failing to warn the rider about the horse’s dangerous and viscous propensities; and whether the owner acted reasonably by suggesting to the rider that he ride the horse and not warning the rider that the horse was in need of further training, in light of the rider’s extensive experience with horses, was clearly a question of fact for a jury. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Statutory references:

Section 5, above referred to, is § 691.1665.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals §§ 71, 73

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

13 Am Jur Proof of Facts 2d 473, Knowledge of Animal’s Vicious Propensities

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

§ 691.1664.  Liability; exception; waiver.

Sec. 4.   (1) This act does not apply to a horse race meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.

(2) Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.

HISTORY: Pub Acts 1994, No. 351, § 4, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(4)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

The Equine Activity Liability Act (EALA) provides immunity to commercial riding stables from claims for damages resulting from the inherent risks of horseback riding and being around horses, but the immunity provision does not apply to horse race meetings; a horse race meeting within the meaning of the EALA includes the activity of exercising a race horse at a track in preparation for a race; while the EALA did not confer immunity on a race track in a suit brought by a exercise rider who was injured when he was thrown from a horse, the release signed by the plaintiff was broad enough to protect the defendant from liability. Cole v. Ladbroke Racing Mich., Inc., 241 Mich. App. 1, 614 N.W.2d 169, 2000 Mich. App. LEXIS 110 (Mich. Ct. App. 2000), app. denied, 463 Mich. 972, 623 N.W.2d 595, 2001 Mich. LEXIS 223 (Mich. 2001).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 13

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Legal periodicals:

Fayz, Annual Survey of Michigan Law, June 1, 1999-May 31, 2000: Torts, 47 Wayne L Rev 719 (2001)

§ 691.1664.  Liability; exception; waiver.

Sec. 4.   (1) This act does not apply to a horse race meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of 1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.

(2) Two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms.

HISTORY: Pub Acts 1994, No. 351, § 4, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(4)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

NOTES TO DECISIONS

The Equine Activity Liability Act (EALA) provides immunity to commercial riding stables from claims for damages resulting from the inherent risks of horseback riding and being around horses, but the immunity provision does not apply to horse race meetings; a horse race meeting within the meaning of the EALA includes the activity of exercising a race horse at a track in preparation for a race; while the EALA did not confer immunity on a race track in a suit brought by a exercise rider who was injured when he was thrown from a horse, the release signed by the plaintiff was broad enough to protect the defendant from liability. Cole v. Ladbroke Racing Mich., Inc., 241 Mich. App. 1, 614 N.W.2d 169, 2000 Mich. App. LEXIS 110 (Mich. Ct. App. 2000), app. denied, 463 Mich. 972, 623 N.W.2d 595, 2001 Mich. LEXIS 223 (Mich. 2001).

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

Michigan Law and Practice, Torts § 74

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 13

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Legal periodicals:

Fayz, Annual Survey of Michigan Law, June 1, 1999-May 31, 2000: Torts, 47 Wayne L Rev 719 (2001)

§ 691.1665.  Liability not prevented or limited; conditions.

Sec. 5.   Section 3 does not prevent or limit the liability of an equine activity sponsor, equine professional, or another person if the equine activity sponsor, equine professional, or other person does any of the following:

            (a) Provides equipment or tack and knows or should know that the equipment or tack is faulty, and the equipment or tack is faulty to the extent that it is a proximate cause of the injury, death, or damage.

            (b) Provides an equine and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to determine the ability of the participant to safely manage the particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably sufficient detail.

            (c) Owns, leases, rents, has authorized use of, or otherwise is in lawful possession and control of land or facilities on which the participant sustained injury because of a dangerous latent condition of the land or facilities that is known to the equine activity sponsor, equine professional, or other person and for which warning signs are not conspicuously posted.

            (d) If the person is an equine activity sponsor or equine professional, commits an act or omission that constitutes a willful or wanton disregard for the safety of the participant, and that is a proximate cause of the injury, death, or damage.

            (e) If the person is not an equine activity sponsor or equine professional, commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage.

HISTORY: Pub Acts 1994, No. 351, § 5, eff March 30, 1995; amended by Pub Acts 2015, No. 87, eff September 21, 2015.

NOTES:

Prior codification:

MSA § 12.418(5)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

Amendment Notes

The 2015 amendment by PA 87 rewrote (d), which formerly read: “Commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage”; and added (e).

NOTES TO DECISIONS

Judgment granting summary disposition under MCR 2.116(C)(10) in favor of a horse owner in a neighbor’s personal injury action was affirmed because the neighbor failed to produce evidence in support of her claims under MCL 691.1665(b) and (d) as her injury resulted from an inherent risk of an equine activity and she did not prove otherwise. The claim was barred under MCL 691.1663. Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748, 2009 Mich. App. LEXIS 1445 (Mich. Ct. App. 2009), rev’d, 486 Mich. 1060, 784 N.W.2d 38, 2010 Mich. LEXIS 1452 (Mich. 2010).

Bar to liability set forth in MCL § 691.1663 of the Michigan Equine Activity Liability Act (EALA), MCL §§ 691.1661 et seq., was subject to MCL § 691.1665, which provided that § 691.1663 of the EALA did not prevent liability for a negligent act or omission that proximately caused an injury. Accordingly, the EALA did not prevent liability on a rider’s claim that a horse owner was negligent in failing to warn the rider about the horse’s dangerous and viscous propensities; and whether the owner acted reasonably by suggesting to the rider that he ride the horse and not warning the rider that the horse was in need of further training, in light of the rider’s extensive experience with horses, was clearly a question of fact for a jury. Gardner v. Simon, 445 F. Supp. 2d 786, 2006 U.S. Dist. LEXIS 57228 (W.D. Mich. 2006).

Statutory references:

Section 3, above referred to, is § 691.1663.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 71

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

Michigan Digest references:

Animals § 15

Research references:

4 Am Jur 2d, Animals §§ 96-100, 105, 106, 113-115, 122, 134, 136-141

1C Am Jur Pl & Pr Forms, Rev, Animals, §§ 3, 132-140

25 Am Jur Proof of Facts 2d 461, Failure to Use Due Care in Providing Horses for Hire

Act 351 of 1994  Equine Activity Liability Act prec 691.1661

AN ACT to regulate civil liability related to equine activities; and to prescribe certain duties for equine professionals.

The People of the State of Michigan enact:

HISTORY: ACT 351, 1994, p 1749, eff March 30, 1995.

NOTES:

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”

§ 691.1666.  Notice; posting and maintenance of signs; contract; contents of notice.

Sec. 6.   (1) An equine professional shall post and maintain signs that contain the warning notice set forth in subsection (3). The signs shall be placed in a clearly visible location in close proximity to the equine activity. The warning notice shall appear on the sign in conspicuous letters no less than 1 inch in height.

(2) A written contract entered into by an equine professional for providing professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves an equine activity on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice set forth in subsection (3).

(3) A sign or contract described in this section shall contain substantially the following warning notice:

WARNING

Under the Michigan equine activity liability act, an equine professional is not liable for an injury to or the death of a participant in an equine activity resulting from an inherent risk of the equine activity.

HISTORY: Pub Acts 1994, No. 351, § 6, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(6)

Editor’s notes:

Pub Acts 1994, No. 351, § 7, eff March 30, 1995, provides:

“Sec. 7. This act applies only to a cause of action filed on or after the effective date of this act.”.

LexisNexis(R) Michigan analytical references:

Michigan Law and Practice, Animals § 72

ALR notes:

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 ALR4th 358

Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 ALR5th 513

Liability of owner of horse to person injured or killed when kicked, bitten, knocked down, and the like, 85 ALR2d 1161

Liability of youth camp, its agents or employees, or of scouting leader or organization, for injury to child participant in program, 88 ALR3d 1236

§ 691.1667.  Applicability of act.

Sec. 7.   This act applies only to a cause of action filed on or after the effective date of this act.

HISTORY: Pub Acts 1994, No. 351, § 7, eff March 30, 1995.

NOTES:

Prior codification:

MSA § 12.418(7)

 


Hawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366

Hawkins, v Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366

Bret D. Hawkins and Erin Hawkins, Plaintiffs-Appellants, v Ranch Rudolph, Inc. and Circle H Stables, Inc., Defendants-Appellees.

No. 254771

COURT OF APPEALS OF MICHIGAN

September 27, 2005, Decided

NOTICE: [*1] THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: Grand Traverse Circuit Court. LC No. 03-022735-NO.

DISPOSITION: Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

JUDGES: Before: Meter, P.J., and Murray and Schuette, JJ.

OPINION

PER CURIAM.

Plaintiffs appeal as of right from the order granting defendants summary disposition. Bret Hawkins was injured after falling off a horse during a guided trail ride conducted by defendants. We reverse and remand.

I. FACTS

On June 18, 2002, plaintiffs, who were on their honeymoon, went to defendants’ stables to participate in a guided horseback trail ride. Defendants offered several different types of rides, based on age and level of experience. Plaintiffs chose the “Wrangler Ride,” which was described by defendants’ brochure as a “walk/trot ride” and had the minimum age requirement of eight-years-old. The ride consisted of a four-mile, single-file ride on wooded trails. Plaintiffs chose the “Wrangler Ride” because Bret had never ridden a horse before. Before participating, however, [*2] plaintiffs executed a release and indemnification waiver, in accordance with § 6 of the Equine Activity Liability Act (EALA), MCL 691.1661 et seq. MCL 691.1666.

Prior to beginning the ride, defendants’ trail guide, Kate Ridge, asked all the participants about their riding experience. Erin Hawkins indicated that she had only ridden a horse once before when she was eleven-years-old, and Bret indicated that he had never ridden a horse. In light of Bret’s lack of experience, Ridge assigned him “Tye,” a horse that defendants typically assign to beginning riders, including children, because he was calm and easy to ride. Plaintiffs were given basic instructions regarding how to stay on the horse and how to use the reins. According to Ridge, she saddled the horses before the ride and then double-checked all the saddles both before and after the horses were mounted. Bret claimed that after mounting Tye, he complained to Ridge that his saddle was not securely fastened, and she checked it again. Ridge stated that she did not recall Bret telling her his saddle was loose before the ride and she did not notice that it was loose while he [*3] was mounting the horse.

The ride started out at a slow walk, but after awhile, Ridge asked the participants if they wanted to go a little faster. The group responded, “Yes,” and Ridge told them to hold on to the saddlehorn with one hand and to put the other hand on the back of the saddle, and to yell if they wanted to slow down. According to plaintiffs, Ridge and her horse then “bolted” into a fast, or full-out run, and the other horses followed her lead. Both plaintiffs stated that when their horses began running they were too surprised or shocked to yell and were just trying to hang on. According to Bret, his saddle slid to the right and he grabbed the saddlehorn and the back of the saddle as instructed but was still falling off his horse. He stated that his arm hit a tree so hard that he suffered a humeral fracture. He then fell from the horse.

Defendants and Ridge denied that the horses were running. According to defendants, midway through the ride, Ridge asked the participants if they would like to begin a “short trot.” According to Ridge, a trot is a fast walk, “slower than a canter, and much slower than a run or gallop.” Other experienced riders in the group characterized [*4] a trot in similar language. After asking for but hearing no objections, defendants contended that Ridge then proceeded to trot the horses. Defendant noted that if anyone had stated that they did not want to trot, Ridge would not have began the trot and continued with the walk. Defendant also explained that horses are not permitted to engage in a “fast run” during rides.

Plaintiffs filed a complaint alleging gross negligence. Defendants moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), arguing, in pertinent part, that given the facts, even if there was a question of fact regarding whether defendants’ conduct amounted to negligence, reasonable jurors could not differ that defendants’ conduct did not amount to gross negligence. Defendant pointed out that Ridge attested that a couple seconds after commencing the trot she heard a scream and turned around to see that Bret had dropped his reins and was hanging on to the saddle horn with both hands, which she instructed him not to do. Ridge stated that Bret was losing his balance and leaning far to the right and he fell off his horse after hitting a tree branch. One of the other participants attested [*5] that he checked the saddle after the fall and it was not loose. Defendants argued that Bret’s injuries were not the result of defendants’ negligence, but of “the inherent risk of equine activity,” his own lack of experience, and his failure to follow Ridge’s instructions.

The trial court indicated that there was no question that plaintiffs’ allegations related to securing the saddle and instructing the participants only amounted to negligence. With respect to the allegation that the horses were made to run off at a high rate of speed, defendants continued to contend that there was no question of fact because Ridge and the other experienced participants stated that they began to trot, and the only people who said the horses began to run were plaintiffs, who had little or no riding experience. Plaintiffs responded that the differing accounts meant that there was a factual dispute, thereby precluding summary disposition. The court concluded that, given plaintiffs’ lack of experience compared with the experienced opinions of the guide and other participants, there was no genuine issue of fact that the horses were trotting not running. The court then concluded that even if it were a high [*6] speed run, reasonable minds could not differ that defendants’ conduct did not amount to gross negligence. Accordingly, the court granted defendants summary disposition.

II. STANDARD OF REVIEW

Plaintiffs now argue that the trial court erred in granting defendants summary disposition on the issue of gross negligence. We agree. [HN1] This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich. 331, 337; 572 N.W.2d 201 (1998).

[HN2] Under MCR 2.116(C)(7), a party may move for dismissal of a claim on the ground that a claim is barred because of a release. Neither party is required to file supportive material. Maiden v Rozwood, 461 Mich. 109, 119; 597 N.W.2d 817 (1999). Any documentation that is provided to the court, however, must be admissible evidence and must be considered by the court. MCR 2.116(G)(5). The plaintiff’s well-pleaded factual allegations, affidavits, or other admissible documentary evidence must be accepted as true and construed in the plaintiff’s favor, unless contradicted by documentation submitted by the movant. [*7] Maiden, supra at 119. [HN3] Under MCR 2.116(C)(10), a party may move for dismissal of a claim on the ground that there is no genuine issue with respect to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. The motion tests the factual support for a claim, and when reviewing the motion, the court must consider all the documentary evidence in the light most favorable to the nonmoving party. Id. at 119; see also MCR 2.116(G)(4).

III. ANALYSIS

As an initial matter, [HN4] plaintiffs’ testimony was admissible because it was based on their personal observations and perceptions. MRE 602. To the extent that plaintiffs’ testimony merely amounted to opinion, such testimony would nevertheless be admissible evidence. MRE 701. “MRE 701 allows opinion testimony by a lay witness as long as the opinion is rationally based on the perception of the witness and helpful to a clear understanding of his testimony or a fact in issue.” Sells v Monroe Co, 158 Mich. App. 637, 644-645;405 N.W.2d 387 (1987). “Once a witness’s opportunity to observe is demonstrated, [*8] the opinion is admissible in the discretion of the trial court, and the weight to be accorded the testimony is for the jury to decide.” Id. at 646-647. Moreover, laypersons are permitted to testify regarding speed. Mitchell v Steward Oldford & Sons, Inc, 163 Mich. App. 622, 629-630;415 N.W.2d 224 (1987). Therefore, [HN5] that plaintiffs lacked experience with horses merely goes to the weight of their testimony not to its admissibility.

The concept of gross negligence has developed in recent years, evolving from its common law roots. The common-law rule was originally invoked in Gibbard v Cursan, 225 Mich 311; 196 NW 398 (1923), to “circumvent the harsh rule of contributory negligence[,]” which at the time would have barred the plaintiff’s recovery. Jennings v Southwood, 446 Mich. 125, 129; 521 N.W.2d 230 (1994). The Gibbard definition was not crafted to be a higher degree of negligence; rather, it was simply “mere[] ordinary negligence of the defendant that followed from the negligence of the plaintiff.” Id. at 130. In actuality it was really just “the doctrine of last clear chance [*9] in disguise.” Id. at 132. Noting that such a construction was no longer viable after abandonment of the doctrine of contributory negligence in favor of pure comparative negligence and because it was not in keeping with the Legislature’s intent of limiting liability in certain contexts, the Jennings Court renounced further application of the Gibbard gross negligence definition. Id. at 132, 135

[HN6] Presented with the potentially arduous task of constructing a new definition of gross negligence in the context of the emergency medical services act (EMSA), MCL 333.20901 et seq., 1 the Jennings Court simply borrowed language from the government tort liability act (GTLA), MCL 691.1401 et seq. Jennings, supra at 135-136. The Court reasoned that the short cut was permissible given that the two statutory schemes shared the same purpose of insulating certain employees from liability for ordinary negligence. Id. at 136-137. Thus, the Court stated that in the context of the EMSA, gross negligence should be defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Id. at 136; [*10] see MCL 691.1407(7)(a).

1 MCL 333.20965(1) states:

Unless an act or omission is the result of gross negligence . . ., the acts or omissions of a medical first responder, emergency medical technician, [etc.,] . . . do not impose liability in the treatment of a patient on those individuals or any of the following persons. . . .

Subsequently, the definition has been employed in other Michigan statutes limiting liability for ordinary negligence while still allowing liability for gross negligence. Xu v Gay, 257 Mich App 263, 269; 668 N.W.2d 166 (2003). [HN7] The GTLA definition of gross negligence adopted in Jennings, arises in statutory contexts where there is a public policy rationale for limiting certain parties’ liability while still affording the public recourse when the parties’ conduct rises to the level of recklessness described in the definition. See id. (citing various examples of statutes using the same definition [*11] of gross negligence). Noting that a contractual waiver of liability can similarly serve to insulate against ordinary negligence but not gross negligence, this Court expanded the scope of application of the Jennings/GTLA gross negligence definition, likewise adopting the definition to address a claim of gross negligence where the decedent signed a waiver purporting to release a privately-owned fitness center from liability. Id. The Xu Court concluded that summary disposition for the defendant was proper where, viewing the evidence in the light most favorable to the plaintiff, reasonable minds could not differ that the defendant’s mere ignorance of industry safety standards did not constitute conduct so reckless as to demonstrate a substantial lack of concern for whether an injury resulted to the decedent. Id. at 270-271. [HN8] “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.” Id. at 271.

Here, plaintiffs executed a release and indemnification waiver, in accordance with § 6 of the EALA. MCL 691.1666. By signing the release, plaintiffs agreed that because plaintiffs were participants in an equine [*12] activity defendants were not liable for plaintiffs’ injury or death resulting from an inherent risk of the equine activity. MCL 691.1666(3); MCL 691.1663. “Inherent risk of an equine activity” is defined by the EALA as:

[HN9] a danger or condition that is an integral part of an equine activity, including, but not limited to, any of the following:

(i) An equine’s propensity to behave in ways that may result in injury, harm, or death to a person on or around it.

(ii) The unpredictability of an equine’s reaction to things such as sounds, sudden movement, and people, other animals, or unfamiliar objects.

(iii) A hazard such as a surface or subsurface condition.

(iv) Colliding with another equine or object. [MCL 691.1662(f).]

However, [HN10] the EALA provides exceptions to this general immunity for certain acts, including negligence on the part of the equine professional. 2 Thus, solely applying the EALA, plaintiffs’ claims of negligence and, by implication, gross negligence, would not be barred.

2 MCL 691.1665 states:

[HN11] Section 3 does not prevent or limit the liability of an equine activity sponsor, equine professional, or another person if the equine activity sponsor, equine professional, or other person does any of the following:

(a) Provides equipment or tack and knows or should know that the equipment or tack is faulty, and the equipment or tack is faulty to the extent that it is a proximate cause of the injury, death, or damage.

(b) Provides an equine and fails to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to determine the ability of the participant to safely manage the particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably sufficient detail.

(c) Owns, leases, rents, has authorized use of, or otherwise is in lawful possession and control of land or facilities on which the participant sustained injury because of a dangerous latent condition of the land or facilities that is known to the equine activity sponsor, equine professional, or other person and for which warning signs are not conspicuously posted.

(d) Commits a negligent act or omission that constitutes a proximate cause of the injury, death, or damage.

[*13] However, the release that plaintiffs signed specifically relieved defendants of liability for negligence, and they were bound to the terms as agreed. Thus, in the face of a contractual waiver of liability insulating defendants against ordinary negligence, the trial court properly focused on whether defendants’ conduct constituted gross negligence. See Xu, supra at 269. Accordingly, following the precedent set by Xu, in addressing this claim of gross negligence, we consider “whether reasonable minds could differ regarding whether defendants’ conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.” Xu, supra at 269. Accord Jennings, supra at 130.

[HN12] “Generally, once a standard of conduct is established, the reasonableness of an actor’s conduct under the standard is a question for the factfinder, not the court.” Tallman v Markstrom, 180 Mich. App. 141, 144; 446 N.W.2d 618 (1989). “However, if, on the basis of the evidence presented, reasonable minds could not differ, then the motion for summary disposition should be granted.” Vermilya v Dunham, 195 Mich. App. 79, 83; [*14] 489 N.W.2d 496 (1992). . . . These established precedents form the boundaries of our review. Accordingly, our task is to review the facts, in the light most favorable to the plaintiff, and determine the appropriateness of summary disposition in favor of the defendant. [Jackson v Saginaw Co, 458 Mich. 141, 146-147; 580 N.W.2d 870 (1998).]

Viewing the evidence in the light most favorable to plaintiffs, it should be accepted as true that after asking the trail ride participants if they wanted to speed up a little bit, Ridge then bolted into a high-speed run – or at the very least, a ride that was too fast given plaintiffs’ lack of experience. While the trial court concluded that Ridge’s conduct “would not be gross negligence even if it were a high speed run,” we disagree. We conclude that viewing the evidence in the light most favorable to plaintiffs, reasonable minds could differ regarding whether her conduct of taking a totally inexperienced rider on a fast ride was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted.

In his dissent, our colleague Judge Murray emphasizes that the trail guide [*15] placed plaintiff (1) on a safe horse; (2) tightened the saddle; (3) provided safety instructions; (4) started slowly; and (5) sped up only after all riders including plaintiff agreed. We agree that the first four points referenced above appear reasonable. However, in our collective opinion, our point of departure from our esteemed colleague’s dissenting opinion is the trail guide’s decision to speed up the pace when plaintiff had never ridden a horse before. For a first time rider, yelling “Whoa Nellie” or in this instance, “Whoa Tye” hoping to slow the horse down or to obtain the trail guide’s attention for help could be difficult. Here, reasonable minds could indeed differ as to whether the conduct of the trail guide rose to the level of recklessness required to establish gross negligence. The question of whether the trail guide in this case demonstrated a substantial lack of concern for whether an injury resulted is a question of fact upon which reasonable minds could differ. Therefore, it is appropriate for a jury to make this determination.

By participating in the horseback ride, plaintiffs agreed to undertake the inherent risk of an equine activity. But, absent some unexpected [*16] event, Ridge was in control of the horses’ speed, as the guide riding the lead horse. And Bret’s horse “bolted” not because it was scared, which would clearly be an inherent risk of an equine activity, but because it was following Ridge’s lead. It cannot be disputed that she made the conscious decision to “speed things up a little bit,” knowing that Bret lacked the requisite experience to control the animal on which he rode. It would seem that it was indisputably an important part of Ridge’s job to look after the safety of those placed in her care. And asking an inexperienced horseback rider whether he objected to such a ride cannot insulate her conduct.

[HN13] Horseback riding, an activity in which people are exposed to all the inherent risks of dealing with an animal’s individual propensities and unpredictable nature, is a dangerous activity in and of itself. See MCL 691.1662(f). A reasonable person could conclude that Ridge’s conduct of taking plaintiffs on a fast ride given their known lack of experience unreasonably added to the risks of the already dangerous activity and was thus so reckless as to demonstrate a substantial lack of concern for whether an [*17] injury resulted. Therefore, summary disposition in this case was not appropriate.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Patrick M. Meter

/s/ Bill Schuette

DISSENT BY: MURRAY

DISSENT

MURRAY, J. (dissenting).

With great respect to my esteemed colleagues, I dissent from their decision to reverse the trial court’s grant of defendants’ motion for summary disposition.

As the majority correctly observes, in reviewing the propriety of granting defendants’ motion under MCR 2.116(C)(10), we, like the trial court, must view the admissible evidence in a light most favorable to plaintiffs, the non-moving parties. MCR 2.116(G)(4); Maiden v Rozwood,461 Mich. 109, 119; 597 N.W.2d 817 (1999). With the material facts viewed in that manner, we must then determine whether reasonable minds could differ as to whether the conduct at issue was so reckless as to demonstrate a substantial lack of concern for whether an injury would result. Xu v Gay, 257 Mich. App. 263, 270-271; 668 N.W.2d 166 (2003).

Where I depart from [*18] my colleagues is my conclusion that this evidence, under this standard, does not arise to the recklessness required to establish gross negligence. The material facts, viewed in a light most favorable to plaintiffs, established that the following events occurred at Ranch Rudolph:

1. Plaintiff Bret Hawkins (hereafter “plaintiff”), signed the waiver of liability, and informed the trail guide that he had never ridden a horse;

2. In response, the trail guide put plaintiff on the most cautious horse available, one usually utilized with children;

3. Once atop the horse, plaintiff informed the trail guide that his saddle was loose. The trail guide responded by attempting to tighten the saddle;

4. Before commencing the ride, the trail guide visually and orally instructed all the participants as to how to properly ride and handle the horse;

5. Once the trail ride commenced, the guide and all riders proceeded “extremely slow”;

6. Eventually, the trail guide asked the riders if they wanted to “go a little faster,” to which the group responded “yes”;

7. Before picking up the pace, the trail guide told the riders that they should yell if anyone wanted to [*19] slow down;

8. The trail guide, and all other horses, started on a “high speed run,” and less than a minute later, plaintiff was injured.

These material facts, taken from plaintiffs’ affidavits, answers to interrogatories and photos, do not establish that the trail guide acted so recklessly that she exhibited a substantial lack of concern for whether an injury would result. Rather, the evidence shows that, in response to plaintiff’s concerns, she (1) placed him on the safest possible horse; (2) attempted to further tighten the saddle; (3) instructed the riders on safety and riding procedures; (4) started the ride off “extremely slow;” and (5) sped up only after the riders – including plaintiffs – agreed to do so. Hence, the act at issue 1 was the trail guide’s decision to go too fast for plaintiff to handle, but not all the others, including his wife, who last rode a horse at age eleven. This misjudgment may have been a negligent one, but it did not reveal a recklessness with regard to plaintiff’s safety. Maiden, supra at 122-123(ordinary negligence does not amount to gross negligence). All the evidence of precautions taken, in fact, precludes reasonable [*20] jurors from so concluding. See, e.g., Lindberg v Livonia Public Schools, 219 Mich. App. 364, 368-369; 556 N.W.2d 509 (1996). 2

1 Plaintiff also complains about the trail guide’s inability to properly tighten the saddle. However, in my view, this is no more than an allegation of negligence, because there is no dispute that the trail guide attempted to tighten the saddle, but at best was unsuccessful in doing so.

2 As the trial court correctly observed, there seems to be a varying degree of decisions under this standard of liability. In my view, this results not from any inconsistency in determining the standard itself, but instead arises from the natural difference resulting from each judge’s own objective determination of whether the evidence meets that standard. Because judges do not always agree on the legal impact of the same undisputed set of facts, our decisions will at times necessarily result in different opinions.

I would affirm the trial court’s order.

/s/ [*21] Christopher M. Murray


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.

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

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

Thomas H. Schoonbeck, Plaintiff-Appellant, v Casey J. Kelly, a/k/a Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen, Defendants-Appellees.

No. 318771

COURT OF APPEALS OF MICHIGAN

2015 Mich. App. LEXIS 223

February 10, 2015, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1] Muskegon Circuit Court. LC No. 12-048517-NO.

CORE TERMS: gate, trespassing, cable, gross negligence, wanton misconduct, willful, causes of action, installed, trail, nuisance claims, grossly negligent, recreational, material fact, premises liability, motorcycles, installing, favorable, struck, tenant, lessee, bike, snowmobiles, land use, claims of negligence, facts giving rise, questions of fact, de novo, genuine issue, nonmoving party, reasonable minds

COUNSEL: For THOMAS H. SCHOONBECK: ALANA LYNN WIADUCK, MUSKEGON, MI.

For CASEY J. KELLY: JAMES M SEARER, MUSKEGON, MI.

For ROGER W. NIELSEN: JOSEPH P VANDERVEEN, GRAND RAPIDS, MI.

JUDGES: Before: O’CONNELL, P.J., and SAWYER and MARKEY, JJ.

OPINION

Per Curiam.

Plaintiff, Thomas H. Schoonbeck, appeals as of right the trial court’s order granting summary disposition under MCR 2.116(C)(10) in favor of defendants, Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen. Schoonbeck was injured when he struck a cable gate while riding a dirt bike on property that Nielsen had leased to Donajkowski and Kelly. The trial court ruled that the recreational land use act (the Act), 324.73301, barred Schoonbeck’s claims. We affirm.

I. FACTS

In September 2010, Schoonbeck was riding a dirt bike on Nielsen’s property when he struck a cable gate that was suspended across a trail between two trees. According to Trooper Brian Cribbs’s report of the incident, the cable was installed along a fairly straight section of the trail that had a “very slight curve” about 87 feet before where Schoonbeck struck it. A 10 x 14-inch sign that read “Private Property — No Trespassing” was attached to the middle of the cable. The sign faced the opposite direction from which Schoonbeck was traveling.

At his deposition, Nielsen testified that he had rented the property for hunting [*2] and recreational purposes to Donajkowski and Kelly at the time of the accident. A two-track trail traversed the property from the southwest to the northeast. In affidavits, various neighbors stated that the property did not have “no trespassing” signs and that they walked, rode bikes, and used motorcycles or snowmobiles on the property’s trails. Nielsen testified that he had previously seen some evidence that people rode motorcycles or snowmobiles across the property. However, according to Nielsen and Donajkowski, there were “no trespassing” ribbons at the corners of the property and “no trespassing” signs along its borders.

Kelly testified that he was not aware that motorcycles or snowmobiles crossed the property, but he wanted to inform people that the property was private because it abutted state land. Donajkowski testified that he wanted to put a gate on the trail to stop traffic. Nielsen testified that Donajkowski asked to install a gate on the property and complained that people were trespassing on it with motorcycles and off-road vehicles.

According to Kelly, about a week after leasing the property, he and Donajkowski installed “no trespassing” signs and a cable gate with a “no [*3] trespassing” sign on it. They installed a cable gate because it was the easiest kind of gate to install. It was Kelly’s first time on the property and Donajkowski’s second time on the property. Donajkowski testified that the “no trespassing” sign faced outward from the property.

In August 2012, Schoonbeck filed this suit. He alleged claims of negligence and gross negligence against Nielsen, Donajkowski, and Kelly. In May 2013, Nielsen moved for summary disposition under MCR 2.116(C)(8) and (10). In pertinent part, Nielsen contended that the Act barred Schoonbeck’s claims because Donajkowski and Kelly’s act of installing the cable gate was not grossly negligent or malicious. Donajkowski and Kelly also moved for summary disposition, adopting Nielsen’s arguments and further contending that they were not grossly negligent and did not commit willful or wanton misconduct. Schoonbeck responded that the Act did not apply and, even if it did apply, there were material questions of fact regarding whether Donajkowski and Kelly were grossly negligent or committed willful and wanton misconduct.

In a brief written opinion, the trial court granted the defendants’ motions under MCR 2.116(C)(10). It determined that the Act barred Schoonbeck’s [*4] claims. Schoonbeck now appeals.

II. STANDARDS OF REVIEW

This Court reviews de novo the trial court’s decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must consider all the documentary evidence in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Maiden, 461 Mich at 120. A genuine issue of material fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

This Court reviews de novo issues of statutory interpretation. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). When interpreting a statute, our goal is to give effect to the intent of the Legislature. Id. at 665. The statute’s language is the best indicator of the Legislature’s intent. Id. If the language of a statute is unambiguous, we must enforce the statute as written. United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). This Court should not read language into an unambiguous statute. McCormick v Carrier, 487 Mich 180, 209; 795 NW2d 517 (2010).

III. APPLICATION OF THE RECREATIONAL LAND USE ACT

First, Schoonbeck contends the Act does not apply because it is limited to premises liability causes of action. We disagree.

The Act provides that “a [*5] cause of action” generally does not arise from a nonpaying outdoor recreational user’s use of an owner’s land unless the user’s injuries were caused by the owner’s gross negligence or willful and wanton misconduct:

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. [MCL 324.73301(1).]

A cause of action is a “concurrence of facts giving rise to the obligation sought to be enforced against the defendant.” Davis v Kramer Bros Freight Lines, Inc, 361 Mich 371, 376-377; 105 NW2d 29 (1960); also see Black’s Law Dictionary (9th ed) (“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”).

The plain language of the statute bars any cause of action, not only those [*6] causes of action that sound in premises liability. Had the Legislature wished to limit the statute to a narrower set of circumstances, it could have used the words “cause in action sounding in premises liability” rather than the more general term “cause of action.” See Neal, 470 Mich at 665-666. It did not do so. We decline to read additional language into the statute and, therefore, we reject Schoonbeck’s argument that the Act only applies to claims sounded in premises liability.

Second, Schoonbeck contends that the trial court erred by granting summary disposition because the Act does not apply to nuisance claims. “A public nuisance is an unreasonable interference with a common right enjoyed by the general public.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995). In this case, regardless of whether revoking an implied license to trespass constitutes a nuisance or whether the Act bars nuisance claims, Schoonbeck did not assert a nuisance claim in his complaint. He asserted only claims of negligence and gross negligence. Since Schoonbeck did not plead a nuisance claim, nor does he provide argument to support that the trial court erred by granting summary disposition on potentially meritorious claims that the plaintiff did not raise, we fail to see how he [*7] can be deemed to have addressed a nuisance claim. Moreover, we decline to make Schoonbeck’s arguments for him. See VanderWerp v Plainfield Charter Twp, 278 Mich App 624, 633; 752 NW2d 479 (2008). Accordingly, we reject this assertion because Schoonbeck did not allege a nuisance claim.

IV. GROSS NEGLIGENCE AND WILLFUL OR WANTON MISCONDUCT

Schoonbeck contends that the trial court erroneously granted summary disposition because there was a question of material fact regarding whether Donajkowski and Kelly’s installation of the cable gate showed a deliberate indifference to the likelihood that an injury would result. We conclude that Schoonbeck did not show a genuine issue of material fact regarding whether Donajkowski and Kelly acted with gross negligence or willful and wanton misconduct.

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.” Maiden, 461 Mich at 123; Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). “Evidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Maiden, 461 Mich at 122-123. Willful and wanton misconduct occurs when the defendant acted “with a set purpose to accomplish the results which followed the act,” which “implies malice.” Boumelhem v Bic Corp, 211 Mich App 175, 185; 535 NW2d 574 (1995). “Willful and wanton misconduct is not a high degree [*8] of negligence; rather, it is in the same class as intentional wrongdoing.” Id.

Even accepting Schoonbeck’s assertions that Donajkowski and Kelly should have installed a gate at the other end of the property, faced a second sign inward on the gate, or informed the neighbors they were installing the gate, these allegations do not show a genuine question of material fact on the issue of gross negligence. An allegation that an actor could have done more or acted differently is not evidence of ordinary negligence, much less gross negligence. Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). 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. Id. 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.

In contrast, Donajkowski and Kelly provided evidence that they did not act with a deliberate indifference of whether an injury could result from installing the cable gate. Donajkowski and Kelly installed a “no trespassing” sign near the entrance to the property and hung a “no trespassing” [*9] sign from the cable gate. They installed the cable gate and sign on a fairly straight area of the trail. They also installed additional “no trespassing” signs. These signs faced toward the road, the logical direction from which to expect traffic would approach the gate. We conclude that, viewing the evidence in the light most favorable to Schoonbeck, reasonable minds could not differ concerning whether Donajkowski and Kelly’s action was so reckless that it showed a substantial lack of concern for whether an injury resulted. We conclude that the trial court did not err by granting summary disposition under MCR 2.116(C)(10).

V. CONCLUSION

We conclude that the Act is not limited to premises liability actions. Further, we conclude that the trial court did not err by granting summary disposition under MCR 2.116(C)(10) when Schoonbeck provided no evidence from which a reasonable juror could conclude that Donajkowski and Kelly acted recklessly.

We affirm. As the prevailing parties, defendants may tax costs. MCR 7.219.

/s/ Peter D. O’Connell

/s/ David H. Sawyer

/s/ Jane E. Markey


The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.

A landowner must protect invitees from hidden dangers. If the danger could have been seen or was seen, then it is open and obvious and the landowner must not protect the invitees from the danger.

Watkins, Jr., v St. Francis Camp on the Lake, 2010 Mich. App. LEXIS 1814

State: Michigan, Court of Appeals of Michigan

Plaintiff: Robert Vincent Watkins, Jr.

Defendant: St. Francis Camp on the Lake

Plaintiff Claims:

Defendant Defenses: Open and Obvious defect in the land

Holding: For the defendant

Year: 2010

The plaintiff was attending the defendant camp. The camp was run for people with special needs. The plaintiff suffered from cerebral palsy and was a quadriplegic. At the time of the accident, the plaintiff was 34 years old.

At the camp, a water slide was created. The slide was a 100’ long tarp, 20’ wide and placed upon a hill. Water was prayed on the tarp along with soap. Some of the campers used inner tubes on the slide; others just went down on the buttocks.  

At the bottom was a little ditch, 2.5’ long 2’ wide and 12-18” deep. The ditch had mud and water in it. When someone going down slide hit the ditch it would flip them.

On the day before the incident, the plaintiff had gone down the slide four or five times. He would ride down the hill on an inner tube with a camp counselor in an inner tube behind the plaintiff. After each ride, the plaintiff and tubes would be loaded on a golf cart and taken to the top of the hill.

The second day the plaintiff was injured on the slide during the flip, injuring his foot. He had already gone down the slide twice before his injury.

The plaintiff sued for his injuries. The trial court dismissed the plaintiff’s complaint, and the plaintiff appealed.

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

The basis for the dismissal was the condition of the land that caused the plaintiff’s injuries was open and obvious. The plaintiff argued that this was a case not based upon the land but based upon the actions of the defendant. The actions of the defendant would set up a negligence claim. A claim based upon the condition of the land would be determined on the duty owed by the landowner to the plaintiff as an invitee.

Under Michigan’s law, the duty owed by a landowner to an invite was:

Generally, a premises possessor owes a duty of care to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. This duty generally does not encompass a duty to protect an invitee from “open and obvious” dangers. However, if there are “special aspects” of a condition that make even an “open and obvious” danger “unreasonably dangerous,” the premises possessor maintains a duty to undertake reasonable precautions to protect invitees from such danger.

The appellate court also found the claims rose from the land; therefore, the liability was from the relationship between the landowner and the plaintiff-invitee.

That is, the question was whether defendant had a duty as the owner of the land to protect plaintiff from harm and thus provide a water slide activity that was free from danger by not allowing a ditch at the bottom of the slide to exist, which propelled participants into the air.

Even if actions of the defendants contributed to the injury it was not enough to alter the relationship to create a negligence claim.

Consequently, although some alleged conduct on the part of defendant may have been involved-i.e. failing to protect plaintiff from harm, allowing the ditch to form, and/or failing to train staff to recognize the danger involved in allowing participants to hit the ditch and be propelled into the air-this does not change the fact that, as a matter of law, this negligence claim was based on premises liability law.

Because the condition was open and obvious, one that the plaintiff knew about normally because they could have or should have seen it and in this case did see it and did encounter it, there was no liability owed by the landowner-defendant.

Plaintiff argued that because the counselor’s did not recognize the danger, the danger could not be open and obvious.  

However, simply because one counselor did not see any danger in operating the slide (all the evidence pointed to the conclusion that all campers enjoyed the slide) does not result in a conclusion that an average user of ordinary intelligence would not have been able to discover the danger and the risk presented upon casual inspection by going down a water slide, hitting the ditch, and flipping into the air.

Evidence of prior injuries would be needed to convert the actions of the counselors from that of a landowner to simple defendants. If the counselors kept the slide open after a person had been injured and then the plaintiff received his injury, then the open and oblivious claim may not work.

This argument fails for the simple reason that in a premises liability action when determining whether a condition is open and obvious, “the fact-finder must consider the ‘condition of the premises,’ not the condition of the plaintiff.”

The appellate court affirmed the dismissal of the case by the trial court.

So Now What?

In this specific case, you can look at the open and obvious defense as similar to the defense of assumption of the risk.

More importantly always examine every possible defense when you are faced with a suit. Here, the answer was easy, although having campers launched into the air may not provide an open and obvious defense in all states.

If you are a camp or landowner, what you need to constantly be aware of and even search for are the non-open and obvious dangers on the land. Those things that cannot be seen by casual observation or that should have been seen by observation are what will hold you liable.

What do you think? Leave a comment.

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Watkins, Jr., v St. Francis Camp on the Lake, 2010 Mich. App. Lexis 1814

Watkins, Jr., v St. Francis Camp on the Lake, 2010 Mich. App. Lexis 1814

Robert Vincent Watkins, Jr., Plaintiff-Appellant, v St. Francis camp on the lake, Defendant-Appellee.

No. 292578

Court of Appeals of Michigan

2010 Mich. App. LEXIS 1814

September 28, 2010, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Hillsdale Circuit Court. LC No. 08-000601-NI.

CORE TERMS: water slide, ditch, camper, slide, went down, premises liability, amend, times, counselor, tube, matter of law, nuisance, flipped, invitee, futile, hit, air, obvious danger, pleaded, bottom, rolled, feet, leave to amend, physical condition, duty to protect, duty of care, liability case, liability claim, dangerous condition, ordinary intelligence

JUDGES: Before: MURPHY, C.J., and SAWYER and MURRAY, JJ. MURPHY, C.J. (concurring).

OPINION

PER CURIAM.

Plaintiff Robert Watkins, Jr., appeals by leave granted the trial court’s June 1, 2009, order granting defendant summary disposition, and its order denying his motion to amend. We affirm.

I. FACTS

Plaintiff, who is disabled, was injured using a water slide at a summer camp that defendant St. Francis Camp on the Lake runs for people with special needs. Plaintiff, who suffers from cerebral palsy and is confined to a wheelchair because he is a quadriplegic, was approximately 34 years old at the time of the accident and was living with his parents. At the time of the accident, plaintiff was employed at the Roscommon county courthouse as a mail clerk, where he worked for the previous 15 years for about 20 hours per week. Plaintiff did not have a legal guardian.

A water slide was at the camp. The water slide consisted of a tarp, which was approximately 100 feet long and 20 feet wide, placed on a hill. Water was then sprayed onto the tarp and soap was put onto the campers so that the campers would slide down the tarp faster. Some of the campers would use inner tubes [*2] when going down the hill and some would slide down the hill on their buttocks. At the bottom of the slide was a “little ditch,” which was approximately two and one-half feet long, two feet wide, and 12 to 18 inches deep. There was water and mud in the ditch, and if a camper hit the ditch when sliding down the hill, which “pretty much everybody hit the ditch,” the camper would flip.

Robert Seger was a camp counselor while plaintiff was at the camp. Seger indicated that the camp basically “let the campers decide what they feel they can and can’t do. They try not to place any limitations on anybody. They want them to have the best experience possible there.” Camp counselors kept notes throughout the week about the campers. Seger’s notes about plaintiff reflected, “July 15th, Sunday. Robert W. excited to be at the new camp. Very happy and pleasant all day. Likes to try new things and is determined to do as much as he can do on his own.” Seger’s notes also reflected, “July 17th, Tuesday. Robert W. says he really likes the camp. The best one he has been to. Took him on the slip and slide. He does not let his physical limitations stop him from trying anything new. He loves the water slide.” [*3] 1

1 Plaintiff’s mother completed plaintiff’s camper medical information form and indicated on the form that plaintiff has suffered from cerebral palsy since birth, was a quadriplegic, used an electric wheelchair, and had a colostomy as well as arthritis and speech problems. One of the questions on the form provided, “Should camper’s activities be limited due to physical condition or illness?” Plaintiff’s mother circled “Yes” and explained “Spine/disc narrowing-disc bulging, and disc herniation.”

Seger testified that, on Tuesday, plaintiff went down the water slide four or five times. Seger testified that plaintiff was loaded onto a tube at the top of the hill, then a camp counselor sat in a tube behind plaintiff’s tube and went down the hill holding onto plaintiff’s tube. Plaintiff was subsequently loaded onto a golf cart and driven back up to the top of the hill. On Wednesday, plaintiff went down the water slide approximately four more times. Seger testified:

So Robby rolled a couple times, got up laughing. It was fine the first day. And that’s when, I believe the second day, he really took a good flip. Elizabeth went down with him on the slide as well. I believe that’s the day he might [*4] have, when he rolled might have hit his foot on the ground too hard. He might have caught it in the ditch down at the bottom. I am not quite too sure exactly the circumstances that led to bones being broken in his foot. But when he complained about it I noticed the bruising and said something to the nurse and had her examine it.

Seger further testified regarding the last two times that plaintiff went down the water slide on Wednesday:

The third time I do remember him flipping. He went one time after that which he flipped as well. So-I’m sorry. Like I said, I can’t necessarily-I don’t remember specific times, but his last two times he flipped really hard. And that’s when he decided he was done. He didn’t want to go anymore. And he had some scratches caused from the gravel from the rolling over. And I think I remember that there was-he complained-got the wind knocked out of him when they rolled over, because he had lain there for a bit. And we went down to check everything out, make sure he was okay, checked his colostomy bag. Because I mean, like I said, he rolled over pretty good. And he said he just kind of had the wind knocked out of him but he was fine. So we got him cleaned up, wiped [*5] the mud off of his face, put him back in the golf cart, took him to the top of the hill. And that was close to the end of the activity, but he didn’t want to go anymore anyways.

On March 6, 2008, plaintiff filed a complaint, which alleged the following:

7. On or about July 19, 2007, the Defendant and its agents and employees, including all camp instructors and supervisors, owed certain duties and obligations to the Plaintiff and those similarly situated, including but not limited to:

a. Ensuring that they were kept from harm;

b. Utilizing all means and methods to ensure that they would not cause serious and permanent injury to Plaintiff;

c. To abide by the wishes and request of any guardian or parent of the Plaintiff or other similar situated individuals so as to ensure that the Plaintiff was not exposed to an increase[d] risk of harm and injury in the activities undertaken during said time at the camp;

d. To ensure that individuals attending the facility such as the Plaintiff herein were protected from severe and permanent injury and damage during the course of normal activity;

e. To ensure that injuries and damages sustained by the Plaintiff or other[s] similar[ly] situated while staying [*6] at the camp were properly and adequately diagnosed and treated and then appropriate and prompt medical attention was provided to these individuals and the Plaintiff herein by qualified and competent medical professionals;

f. To ensure that the facility properly and adequately trained its personnel to recognize the dangers in activities, which they may undertake with campers so as to reduce or eliminate the danger for severe and permanent injury and damage; and

g. Such other duties and obligations as may be identified throughout the course of discovery.

On April 17, 2009, defendant moved for summary disposition, pursuant to MCR 2.116(C)10), arguing that this was a premises liability case and that the alleged hazard was open and obvious. Plaintiff moved to amend his complaint in order to add a claim of nuisance in fact and moved to amend the scheduling order in order to extend scheduling dates 60 days so that he would have enough time to complete discovery. Plaintiff also opposed defendant’s motion.

At the hearing on the motion to amend the complaint, the trial court concluded:

This isn’t a nuisance case. This isn’t an issue that’s something open to the general public. It is for simply the [*7] private campers. You’ve got a negligence action, I think. It would appear that Mr. Watkins-at least from the briefs I’ve read thus far, subject to the arguments of both of you, I believe it’s Friday-didn’t even agree to this activity. It would appear that he simply was picked up out of a wheelchair, put on an inner tube, and he was accompanied by a counselor down the hill. This isn’t a nuisance case, it’s a negligence case. Doesn’t even appear to be a premises liability case.

So I think we’re-it would be futile to amend the complaint at this time. We’ll proceed with the complaint as drafted . . . .

At the hearing, the trial court also indicated that it was denying plaintiff’s request to have the scheduling order dates extended.

At the subsequent hearing on defendant’s motion for summary disposition, the trial court held:

This case has been described as a premises liability case. The reason the Court doesn’t consider it a negligence case in general is that I’m not sitting here with a patient that — or an individual that is not cognizant of what is going on around him. The staff followed his directions.

* * *

[I]n this particular case I’m dealing with a ditch at the bottom of a hill where [*8] water accumulates. As I have described here, based on the depositions, the condition was open, the condition was obvious, it was observed by Mr. Watkins, it was observed by everyone around. This could not be expected that this would result in a serious injury-severe injury. The condition of the premises cannot be considered unreasonable. You don’t have a situation where we could have an especially high likelihood of injury.

Hence, the trial court concluded that defendant’s motion for summary disposition should be granted because plaintiff’s claims were based on premises liability law and the condition was open and obvious and without special aspects that would remove the condition from the open and obvious danger doctrine. The trial court noted, however, that the claim relating to the failure to obtain proper medical services in a timely fashion remained pending. At the end of the hearing on the motion for summary disposition, the trial court entertained plaintiff’s motion for entry of order to dismiss the case without prejudice, which the trial court also granted.

II. ANALYSIS

Plaintiff argues that his claims of negligence should not have been summarily dismissed as claims sounding only [*9] in premises liability because it was defendant’s conduct in not properly and adequately training its personnel to recognize the dangers in activities that led to his injuries. Further, an objective reading of the complaint results in a finding that the negligence clearly involved the conduct of individuals with regard to the water slide activity. Thus, plaintiff’s claims should not have been dismissed on the basis of premises liability law because premises liability law does not apply to conduct.

We review de novo a trial court’s decision to grant summary disposition. Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins, 458 Mich 288, 294; 582 NW2d 776 (1998). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). In evaluating a motion for summary disposition brought under this subsection, a reviewing court considers affidavits, pleadings, depositions, admissions and other evidence submitted by the parties, MCR 2.116(G)(5), in the [*10] light most favorable to the party opposing the motion. Coblentz, 475 Mich at 567-568. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10); MCR 2.116(G)(4); Coblentz, 475 Mich at 568.

Generally, where an injury arises out of a condition on the land, rather than conduct or activity, the action lies in premises liability. James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001); Laier v Kitchen, 266 Mich App 482, 493; 702 NW2d 199 (2005). In other words:

In a premises liability claim, liability emanates merely from the defendant’s duty as an owner, possessor, or occupier of land. However, that does not preclude a separate claim grounded on an independent theory of liability based on the defendant’s conduct . . . . [Id.]

Premises liability law has been summarized by the Michigan Supreme Court as follows:

Generally, a premises possessor owes a duty of care to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land. This duty generally does not encompass a duty to protect an invitee from “open [*11] and obvious” dangers. However, if there are “special aspects” of a condition that make even an “open and obvious” danger “unreasonably dangerous,” the premises possessor maintains a duty to undertake reasonable precautions to protect invitees from such danger. [Mann v Shusteric Enterprises, Inc, 470 Mich 320, 328; 683 NW2d 573 (2004) (citations omitted).]

The test to determine if a danger is open and obvious is whether an average user of ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002).

We conclude, viewing the evidence in the light most favorable to plaintiff, that defendant’s alleged liability emanated from its duty as the owner of the land. Coblentz, 475 Mich at 568; Laier, 266 Mich App at 493. That is, the question was whether defendant had a duty as the owner of the land to protect plaintiff from harm and thus provide a water slide activity that was free from danger by not allowing a ditch at the bottom of the slide to exist, which propelled participants into the air. Id. The theory of liability directly related to a condition on the land, i.e. the premises. James, 464 Mich at 18-19. [*12] Consequently, although some alleged conduct on the part of defendant may have been involved-i.e. failing to protect plaintiff from harm, allowing the ditch to form, and/or failing to train staff to recognize the danger involved in allowing participants to hit the ditch and be propelled into the air-this does not change the fact that, as a matter of law, this negligence claim was based on premises liability law. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995); Laier, 266 Mich App at 489. 2 Indeed, in Laier we specifically held that the open and obvious doctrine applied to a claim pleaded as “a failure to warn of a dangerous condition or as a breach of a duty in allowing the dangerous condition to exist.” Id. at 489 (emphasis added). Accordingly, the trial court correctly determined that this case was based on premises liability law and analyzed the case under that theory. Id.

2 That is, of course, except for the negligence claim related to plaintiff’s subsequent care and treatment at the camp, which the trial court indicated remained pending, at least until the order dismissing the case without prejudice.

The undisputed facts reveal that the condition was also open and [*13] obvious. Joyce, 249 Mich App at 238. The testimony reflected that almost every time a camper went down the water slide, they hit the ditch and flipped or became covered in mud. In addition, plaintiff specifically testified that before he went down the water slide, he saw other people go down the water slide and fly into the air. Further, the testimony established that plaintiff went down the water slide several times before he was injured and that plaintiff was enjoying the water slide. We find on the record before us that an average user of ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. Id. Based on the foregoing, the danger of going down the water slide, hitting the ditch, and flipping into the air, was open and obvious. Id.

Plaintiff argues that because a counselor at the camp did not recognize the danger, there was genuine issue of material fact on whether the condition was open and obvious. However, simply because one counselor did not see any danger in operating the slide (all the evidence pointed to the conclusion that all campers enjoyed the slide) does not result in a conclusion that an average user of ordinary [*14] intelligence would not have been able to discover the danger and the risk presented upon casual inspection by going down a water slide, hitting the ditch, and flipping into the air. Joyce, 249 Mich App at 238. Additionally, there was no evidence of prior injuries. Viewing the evidence in a light most favorable to plaintiff, there is no genuine issue of material fact whether the condition was open and obvious, Coblentz, 475 Mich at 567-568, and no special aspects to this condition were presented. Lugo v Ameritech Corp, 464 Mich 512, 516-520; 629 NW2d 384 (2001). Hence, plaintiff’s claim was barred by the open and obvious doctrine.

In addition, plaintiff argues that defendant should have known or anticipated that, given plaintiff’s physical condition and his parent’s requested restrictions, plaintiff could have been hurt if propelled into the air after hitting the ditch. This argument fails for the simple reason that in a premises liability action when determining whether a condition is open and obvious, “the fact-finder must consider the ‘condition of the premises,’ not the condition of the plaintiff.” Mann, 470 Mich at 329. Hence, plaintiff’s physical condition was not pertinent to [*15] the determination that the condition was open and obvious. Id.

Plaintiff also argues that the trial court abused its discretion when it denied him the opportunity to amend his pleadings with additional theories of ordinary negligence. The grant or denial of leave to amend is within the trial court’s discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). Thus, “[we] will not reverse a trial court’s decision regarding leave to amend unless it constituted an abuse of discretion that resulted in injustice.” PT Today, Inc v Comm’r of the Office of Financial & Ins Servs, 270 Mich App 110, 142; 715 NW2d 398 (2006). “Leave to amend the pleadings should be freely granted to the nonprevailing party upon a grant of summary disposition unless the amendment would be futile or otherwise unjustified.” Lewandowski v Nuclear Mgt, Co, LLC, 272 Mich App 120, 126-127; 724 NW2d 718 (2006). Specifically, “[a]n amendment is futile where the paragraphs or counts the plaintiff seeks to add merely restate, or slightly elaborate on, allegations already pleaded.” Dowerk v Oxford Charter Twp, 233 Mich App 62, 76; 592 NW2d 724 (1998).

For two reasons the trial court did not abuse it’s discretion. First, [*16] the exclusive focus of plaintiff’s motion to amend was to amend the complaint to allege a “nuisance”, and plaintiff does not challenge the trial court’s conclusion that nuisance is not properly pleaded under these facts. Second, an amendment would have been futile because plaintiff’s alleged additional theories of ordinary negligence merely restated, and slightly elaborated on, the theories of negligence that plaintiff already pleaded. Id. And, as already stated above, the open and obvious doctrine applied because defendant’s alleged liability emanated from defendant’s duty as the owner of the land to protect plaintiff from harm, including in allowing the danger to exist. Bertrand, 449 Mich at 609; Laier, 266 Mich App at 493. In other words, the open and obvious doctrine applied to plaintiff’s alleged theories of negligence, which were set forth in his complaint, as well as plaintiff’s alleged additional theories of ordinary negligence (except as noted in footnote 2, supra) because defendant’s alleged liability emanated from defendant’s duty as the owner of the land to protect plaintiff from harm. Id. Thus, there was no abuse of discretion that resulted in an injustice because granting [*17] plaintiff leave to amend his complaint would have been futile. Dowerk, 233 Mich App at 76; Weymers, 454 Mich at 654.

Affirmed.

/s/ David H. Sawyer

/s/ Christopher M. Murray

CONCUR BY: William B. Murphy

CONCUR

MURPHY, C.J. (concurring).

I find it unnecessary to determine whether plaintiff’s lawsuit sounded solely in premises liability law. Assuming that plaintiff alleged an independent cause of action on a pure negligence theory, I would hold, as a matter of law, that defendant owed no specific duty of care to plaintiff that encompassed protecting him from or keeping him off the water slide. I would also analyze the premises liability claim in a slightly different manner. Accordingly, I respectfully concur.

“The elements of an action for negligence are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.” Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). As a general rule, there is no common law duty that obligates one person to protect another person from danger. Dawe v Dr Reuven Bar-Levav & Associates, PC, 485 Mich 20, 25; 780 NW2d 272 (2010). An exception exists when there is a special relationship between a plaintiff [*18] and the defendant. Id. at 25-26. The Dawe Court, quoting Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988), observed:

“The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is best able to provide a place of safety.” [Dawe, 485 Mich at 26.]

Here, plaintiff’s allegations that presumably sounded in negligence were in the nature of claims that defendant had failed to protect him from or keep him off the water slide. Despite his physical limitations, plaintiff is an adult who was fully aware of the ditch at the end of the water slide, and there is nothing in the record to suggest that he was incapable of appreciating any potential dangers, nor that he was incapable of making his own informed decision whether to engage in the activity of using the water slide. The record reflects that plaintiff did not have a guardian and that he was employed as a mail clerk. This case does not present a situation in which plaintiff [*19] entrusted himself to the control and protection of defendant, as he never lost the ability to protect himself, which could have been accomplished by simply declining to participate in the activity. Defendant never forced plaintiff to use the water slide. Indeed, plaintiff later decided against further using the slide. I would hold, as a matter of law, that defendant owed no specific duty of care to plaintiff that encompassed protecting him from or keeping him off the water slide.

With respect to plaintiff’s claims predicated on premises liability law, this case is not truly one that concerns the open and obvious danger doctrine. Rather, we have a situation in which defendant had no duty because plaintiff had actual knowledge of the hazard and chose to proceed. Plaintiff knew that camp patrons, including himself, had flipped over in the ditch, considering that he had slid down the slide and flipped previously, and given that he observed others doing the same. As indicated in Bertrand v Alan Ford, Inc, 449 Mich 606, 610; 537 NW2d 185 (1995), liability will not be imposed on a landowner where a hazard is known or is open and obvious. “[T]he open and obvious doctrine will cut off liability [*20] if the invitee should have discovered the condition and realized its danger.” Id. at 611 (emphasis added). Thus, liability or a duty evaporates when a danger is open and obvious, as it should have been discovered, or when the danger was actually known, as it had been discovered, which is the case here. Plaintiff’s premises liability claim thus fails, as I do not find that the condition remained unreasonably dangerous despite plaintiff’s knowledge of it. Id.

In all other respects, I agree with the majority’s opinion.

I respectfully concur.

/s/ William B. Murphy


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

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

Diane A Winiecki, Plaintiff-Appellant, v. Herbert Wolf and Katherine Wolf, Defendants-Appellees, and Richard George, Defendant

Docket No. 80207

Court of Appeals of Michigan

147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127

June 26, 1985, Submitted

August 22, 1985, Decided

COUNSEL: Marshal E. Hyman, Birmingham, for plaintiff.

W. J. Zotter, Coticchio, Zotter & Sullivan, P.C., Detroit, for defendants.

JUDGES: R. M. Maher, P.J., and Bronson and D. F. Walsh, JJ.

OPINION BY: PER CURIAM

OPINION

[*743] [**120] Plaintiff appeals from an order of the Macomb County Circuit Court granting defendants Wolfs’ motion for summary judgment of dismissal, GCR 1963, 117.2(1).

Defendants Herbert and Katherine Wolf held a family reunion at their home in Tuscola County. Plaintiff is a cousin of Katherine Wolf. Another cousin, defendant Richard George, brought “land skis”, two wooden planks with foot holes made from pieces of inner tube which he manufactured himself, to the reunion. A game was played with the land skis involving two teams which were to race down to a tree in the yard and back. According to defendants, everyone fell down when they played. The third time plaintiff fell, she sustained injuries to her hip and pelvis which may require [*744] long-term medical care. Plaintiff filed this action to recover damages for her injuries.

The trial court granted defendants Wolfs’ motion for summary judgment based solely on the ground that the [***2] recreational use statute, MCL 300.201; MSA 13.1485, precluded plaintiff’s action against the defendant landowners. The issue on appeal is the correctness of the trial court’s application of that statute to this case.

The recreational use statute provides:

[HN1] “No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.”

Plaintiff, citing various indications of legislative intent, argues that the statute was not intended to protect landowners from liability for injuries occurring in their backyards. Defendants Wolf own a tract of land measuring 7.8 acres, but the land ski game was allegedly played on the lawn behind the garage.

[HN2] The duty of the courts is to interpret statutes as we find them. Melia v Employment Security Comm, 346 Mich 544, 561; 78 [***3] NW2d 273 (1956). A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself. Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959). The courts may not speculate as to the probable intent of the Legislature beyond the words employed in the act. Id. Ordinary words are to be given their plain and [*745] ordinary meaning. Carter Metropolitan Christian Methodist Episcopal Church v Liquor Control Comm, 107 Mich App 22, 28; 308 NW2d 677 (1981).

This statute, as the trial court has already observed, is clear and unambiguous. Plaintiff was a person on the lands of another, without paying a consideration, for the purpose of an outdoor recreational use. [HN3] The statute offers nothing on its face excluding from its application the backyard of residential property. If the Legislature did not intend the statute to apply to parcels of land this size, it was within its power to insert words limiting the statute’s application, e.g., to lands in their natural state. As we, however, are constrained to apply the statute as written, we cannot say that the trial court erred in relieving defendants of liability based on the [***4] recreational use statue.

[HN4] The recreational use statute does not protect landowners from liability for gross negligence or for wilful and wanton misconduct. Plaintiff’s complaint, however, does not include allegations sufficient to make out a claim either of gross negligence or of wilful and wanton misconduct. McNeal v Dep’t of Natural Resources, 140 Mich App 625, 633; 364 NW2d 768 (1985); Matthews v Detroit, 141 Mich App 712, 717-718; 367 NW2d 440 (1985). The trial court correctly concluded that plaintiff had failed to state a claim of gross negligence or of wilful and wanton misconduct.

Affirmed.


Michigan Recreational Use Statute

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

 

Chapter 324. NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION

NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT

Article III. NATURAL RESOURCES MANAGEMENT

Chapter 4. RECREATION

Subchapter 1. RECREATION

RECREATIONAL TRESPASS

Part 733. LIABILITY OF LANDOWNERS

Current through P.A. 42 of the 2015 Legislative Session

§ 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

(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.

(2)       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 entering or exiting from or using a Michigan trailway as designated under part 721 or other public trail, 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. For purposes of this subsection, a Michigan trailway or public trail may be located on land of any size including, but not limited to, urban, suburban, subdivided, and rural land.

(3)A cause of action shall not arise against the owner, tenant, or lessee of land or premises for injuries to a person who is on that land or premises for the purpose of gleaning agricultural or farm products, unless that person’s injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.

(4)       A cause of action shall not arise against the owner, tenant, or lessee of a farm used in the production of agricultural goods as defined by section 35(1)(h) of the former single business tax act, 1975 PA 228, or by section207(1)(d) of the Michigan business tax act, 2007 PA 36, MCL 208.1207, for injuries to a person who is on that farm and has paid the owner, tenant, or lessee valuable consideration for the purpose of fishing or hunting, unless that person’s injuries were caused by a condition which involved an unreasonable risk of harm and all of the following apply:

(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.

(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe, or to warn the person of the condition or risk.

(c) The person injured did not know or did not have reason to know of the condition or risk.

(5) A cause of action shall not arise against the owner, tenant, or lessee of land or premises for injuries to a person, other than an employee or contractor of the owner, tenant, or lessee, who is on the land or premises for the purpose of picking and purchasing agricultural or farm products at a farm or “u-pick” operation, unless the person’s injuries were caused by a condition that involved an unreasonable risk of harm and all of the following apply:

(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.

(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe, or to warn the person of the condition or risk.

(c) The person injured did not know or did not have reason to know of the condition or risk.

(6) As used in this section, “agricultural or farm products” means the natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary, including, but not limited to, trees and firewood.

Cite as MCL 324.73301

History. Amended by 2007, Act 174, s 4, eff. 12/21/2007.

Add. 1995, Act 58, Imd. Eff. May 24, 1995 .


A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Plaintiff crashed her bike suffering head injuries. Plaintiff was wearing a bicycle helmet that was subject to a recall, earlier. Plaintiff hoped her injury could be paid by the helmet manufacturer using the recall as the influence with the jury.

Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)

State: Michigan

Plaintiff: Tracy Ann Jenish

Defendant: Monarch Velo Llc dba Catlike USA, a Texas Corporation, The Kreb Cycle, a New York Corporation, and Catlike Sport Components SL

Plaintiff Claims: negligence, gross negligence, and breach of warranty

Defendant Defenses:

Holding: for the defendant

Year: 2007

This is why recalls are such a problem. The recalls themselves are a nightmare for the outdoor recreation industry because the problems don’t fit in the Consumer Product Safety Council (CPSC) mold. The cost goes through the roof trying to comply with the requirements of the recall and deal with the resulting bad publicity.

The biggest problem is recalls immediately show up on plaintiff attorney’s websites with the line have you been hurt using/wearing this product “call us.”

In this case, the plaintiff purchased a bicycle helmet from the defendant retailer. The bicycle helmet was subject to a recall prior to the plaintiff’s crash. The plaintiff exchanged the helmet for a newer one due to the recall, prior to her crash. The plaintiff fell while riding her bike suffering head and other injuries and sued.

The first defendant was a retailer in New York. The retailer purchased the helmet from a distributor in Texas. The distributor imported the helmet from the manufacturer, a Spanish corporation. All three, the manufacturer, distributor and retailer were defendants to the litigation. All three were in the chain of sale from the manufacturer to the consumer.

The theory behind allowing suits against everyone involved in the litigation is anyone in the chain could have spotted the defect and prevented the consumer from purchasing a defective product. That was a great theory when wagon wheels were being sold. Everyone understood wagon wheels and could see a flaw or defect in a wagon wheel before the consumer purchased the wheel.

That general theory does not work any longer in software, computers or in this case a bike helmet. If you could understand the physics and engineering behind the creation of the helmet, you could not see the defects in many cases because the defects are covered by plastic.

The suit was filed in Michigan the home state of the plaintiff in the United States District Court for the Eastern District of Michigan, Southern Division. Federal courts are the courts in place to deal with litigation between parties from different states or of the US and another country. The federal courts are not subject to the issue of “hometowning” or deciding a case solely on the issue of where the parties live the courts’ hometown.

The three defendants filed a motion for summary judgment, which was granted.

Federal District Court decisions are reported. Very few states report trial court decisions. However, this is different in the federal system, and we have an interesting case.

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

The plaintiff dismissed its negligence and gross negligence claims and proceeded on its breach of warranty claims prior to this motion. The plaintiff stated there was no express warranty claim, only a breach of implied warranty. Implied warranties are warranties that attach to any sale. They are not written down on in the manual, they occur whenever there is a sale. Implied warranty of merchantability and implied warranty of fitness for a particular purpose are warranties that go with every sale and are the two main claims in lawsuits.

These warranties are not in writing and unless disclaimed, they go with any sale. The first, warranty of merchantability means the product meets the requirements of the industry where they are sold. The implied warranty of fitness for a particular purpose is a warranty that the promises made by the sellers will be met by the product. For more information on these warranties see The legal relationship created between manufactures and US consumers.

No specific warranty was mentioned in the decision other than the warranty of fitness and merchantability. There were also allegations that there was a breach of warranty under Michigan’s law, which may be the same or different from the warranties explained above.

The plaintiff’s case was based on the recall. The CPSC required recall “poster” which was entered into evidence as proof of the recall and the defect. The plaintiff also had an expert who opined that plaintiff’s head injury “directly related to the inadequacies of the Catlike Kompact bike helmet.”

No other evidence was introduced. The expert’s opinion was not specific, and did not provide any cause for the injury or the failure of the helmet. The court held that because there was no analysis of the crash, speed, location of impact or details of the accident that the expert’s opinion was of no value.

As discussed at oral argument, plaintiff has not brought forth any evidence of the reason the Catlike Kompact helmet failed impact testing. All that has been presented is a one-page press release from the CPSC, set forth above, including a statement that “[t]he helmets fail impact testing required un-der CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.” Without additional information from the CPSC or any other source, or the results of any independent testing, it is the opinion of the court that Dr. Kress’ statement that “[t]he severity of the head injury sustained by Ms. Jenish is a direct result of the inability of the Catlike Kompact to comply to the CPSC’s safety standards” can be nothing but inadmissible speculation.

Although warranty claims require very little evidence to prove, in this case, no evidence was presented that the court could rely upon to uphold the claims of the plaintiff. The court granted the three defendants motion and dismissed the case.

So Now What?

This case has little value in teaching about helmet crashes, and the liability issues involved in manufacturing helmets. What it does teach is the unintended consequence of dealing with a recall and the CPSC.  

It is impossible, probably, now days to create a product that will never have a recall. However, that does not mean you should try. As important, if you are looking at a recall, make sure you fully understand the consequences and work with counsel to lessen the impacts of the recall on your company and the effects it may have.

You also must disclaim all warranties other than the warranties you want for your product. If the proper disclaimer had been part of the information going with the sale of the helmet than this case would not have gone this far.

It is common for many products in the outdoor recreation industry to be brought into the US without the proper warranties and disclaimers. Additionally, many times when translated a product manual the word warranty will be translated into the word guaranty in English, which creates even greater liability issues.

 

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Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)

Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)

Tracy Ann Jenish, Plaintiff, vs. Monarch Velo Llc dba Catlike USA, a Texas Corporation, The Kreb Cycle, a New York Corporation, and Catlike Sport Components SL, a Spanish Corporation, Defendants.

Case No. 05-CV-73648

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754

May 9, 2007, Decided

May 9, 2007, Filed

CORE TERMS: helmet, catlike, bicycle, safety standard, summary judgment, head injuries, consumer, warranty, material fact, brain, acceleration, testing, seller, bike, Bicycle Helmets Final Rule, entitled to judgment, traumatic, hematoma, usa, Consumer Product Safety Act, matter of law, genuine issue, implied warranty, proximate cause, manufactured, manufacturer, distributor, attenuation, deposition, violating

COUNSEL: [*1] For Tracy Ann Jenish, Plaintiff: Lawrence S. Katkowsky, LEAD ATTORNEY, Lawrence S. Katkowsky Assoc., Bingham Farms, MI.

For Kreb Cycle, Defendant: Matthew A. Brauer, LEAD ATTORNEY, Rutledge, Manion, (Detroit), Detroit, MI.

JUDGES: GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE.

OPINION BY: GEORGE CARAM STEEH

OPINION

OPINION AND ORDER GRANTING DEFENDANT THE KREB CYCLE’S MOTION FOR SUMMARY JUDGMENT (DOCUMENT # 38)

INTRODUCTION

Before the court in this product liability lawsuit is a motion for summary judgment brought by defendant The Kreb Cycle, a New York seller of bicycle equipment, in which it asserts it is entitled to judgment on all counts in the complaint. 1 Because the court agrees that plaintiff has not raised a question of material fact as to causation of her injuries by an allegedly defective bicycle helmet, defendant’s motion is granted as set forth below.

1 The other defendants to this action have not filed answers to the complaint.

BACKGROUND

Plaintiff Tracy Jenish was riding with a bicycling [*2] club on Wing Lake Road in the area of Bloomfield Hills, Michigan on September 26, 2002, when she fell off her bike and suffered serious bodily injuries, including injuries to her head. She was wearing a helmet called a “Catlike Kompact,” manufactured by defendant Catlike Sport Components SL, a Spanish corporation, distributed by defendant Monarch Velo LLC, a Texas corporation 2, and sold to the plaintiff by movant-defendant Kreb Cycle, a New York corporation.

2 Answers to the complaint by the remaining defendants have not been filed, and defendant Kreb Cycle states in its motion that the other defendants are in default. The docket reflects that a clerk’s entry of default was filed as to defendant Monarch Velo, L.L.C. on June 2, 2006.

The Kreb Cycle (hereinafter “defendant”) started carrying these helmets after its owner attended a trade show in Las Vegas, where a model of the Catlike Kompact helmet was on display. Defendant ordered the helmets from Monarch Velo LLC, d/b/a “Catlike USA,” a Texas distributor. [*3] The helmets came with the manufacturer’s label stating they complied with U.S. Consumer Product Safety Commission (“CPSC”) standards. Although there are no records of the sale, defendant does not dispute that it sold the helmet to plaintiff. Plaintiff’s recollection, according to her deposition, is that she called in with a credit card or ordered it online, at some point during the year preceding the accident.

In 2003, some months after plaintiff’s accident, the Catlike Kompact helmet was the subject of a voluntary manufacturer recall. Defendant has produced a copy of the CPSC’s announcement of this recall, which is reproduced below in its entirety, with the exception of the generic CPSC headings and contact numbers:

*****

CPSC, Monarch Velo, LLC doing business as Catlike USA Announce Recall of Bike Helmets

Washington, D.C. — The U.S. Consumer Product Safety Commission announces the following recall in voluntary cooperation with the firm below. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product: Catlike Kompact TM Bike Helmets

Units: 2,250

Distributor: Monarch Velo, LLC, doing business [*4] as Catlike USA, of Houston, Texas

Hazard: The helmets fail impact testing required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.

Incidents/Injuries: None reported.

Description: This recall involves Catlike Kompact TM adult bicycle helmets. The helmets were sold in two sizes (small/medium and large/extra large) and various colors. The sizing label inside the helmets reads “Kompact” and “SM/MD” or “LG/XL.”

Sold at: Bicycle shops nationwide sold the helmets from March 2002 through February 2003 for about $ 130.

Manufactured in: Spain

Remedy: Contact Monarch Velo for information on receiving a free replacement helmet.

Consumer Contact: Contact Monarch Velo toll-free at (877) 228-5646 between 9 a.m. and 5 p.m. CT Monday through Friday or visit the firm’s web site at http://www.catlike-usa.com

Media Contact: Chris Watson at (877) 228-5646.

Exhibit D to Defendant’s Motion. Plaintiff obtained a replacement Catlike helmet after announcement of the recall.

This action was filed in federal court on the basis of diversity of citizenship in September 2005. [*5] Plaintiff’s First Amended Complaint, filed September 29, 2005, makes a common claim against all three defendants, asserting negligence, gross negligence, and breach of warranty in the design, manufacture, and distribution of an unmerchantable, “untested” bicycle helmet that failed to protect against injury to the head.

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment “forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court’s use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995).

The [*6] standard for determining whether summary judgment is appropriate is “‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The evidence and all reasonable inferences therefrom must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). [*7]

If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with “specific facts showing that there is a genuine issue for trial.” First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant’s pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence on which a jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).

ANALYSIS

Kreb Cycle asserts in its motion that it is entitled to judgment as to all three of plaintiff’s claims: negligence, gross negligence, and breach of warranty. In response, plaintiff asserts it is “only relying on the implied warranty of fitness and merchantability as to this Defendant and will not, therefore, respond to [*8] Defendant’s arguments as to negligence and gross negligence.” Accordingly, judgment is hereby granted for Kreb Cycle as to plaintiff’s negligence and gross negligence claims.

The sole claim remaining as to this defendant is plaintiff’s breach of warranty claim. Plaintiff concedes defendant made no express warranty regarding this helmet. Accordingly, proceeding on a cause of action for breach of an implied warranty, plaintiff asserts that she has established a prima facie case of breach of implied warranty under Michigan law, 3 citing to this court’s case of Konstantinov v. Findlay Ford Lincoln Mercury, 2006 U.S. Dist. LEXIS 85836, 2006 WL 3299487. As set forth in that case, under the Michigan Tort Reform Act, effective in 1996,

(6) In a product liability action, a seller other than a manufacturer is not liable for harm allegedly caused by the product unless either of the following is true:

(a) The seller failed to exercise reasonable care, including breach of any implied warranty, with respect to the product and that failure was a proximate cause of the person’s injuries.

(b) The seller made an express warranty as to the product, the product failed to conform to the warranty, and the [*9] failure to conform to the warranty was a proximate cause of the person’s harm.

Mich. Comp. Laws Ann. § 600.2947(6).

3 Although the retailer was a New York seller, neither party asserts applicable law other than that of Michigan.

Defendant’s argument for summary judgment on this claim is that plaintiff has not come forward with any evidence of a specific defect in the helmet, and has not drawn any kind of causal connection between the alleged defect and her head injuries. It cites to Mascarenas v. Union Carbide, 196 Mich. App. 240, 249, 492 N.W.2d 512 (1992) for the elements of a product liability case under Michigan law: proof that the defendant supplied a defective product, and that the defect proximately caused the plaintiff’s injury. Defendant argues that plaintiff relies only on the helmet’s later recall, disclosed in a 5/22/03 CPSC press release (stating that the recall was occurring “in voluntary cooperation with” the U.S. distributor) and conclusory statements [*10] by an expert, neither of which establish a question of material fact as to proximate cause. 4

4 Defendant also addresses plaintiff’s weak assertion, in answers to interrogatories, that defendant “had a duty to determine whether the model helmet in question did in fact meet CPSC standards.” As defendant argues, there is no such duty required by Mich. Comp. Laws Ann. § 600.2947(6), set forth above.

The court agrees with the defendant. Although precedent such as Mills v. Curioni, Inc., 238 F. Supp. 2d 876, 886 (E.D. Mich. 2002) and the very recent decision in Coleman v. Maxwell Shoe Co., 475 F. Supp. 2d 685, 2007 U.S. Dist. LEXIS 11513, 2007 WL 551608 (E.D. Mich. 2007) lend support to defendant’s argument concerning non-manufacturing sellers and the need for a showing of negligence in failing to detect a product’s defect, this case must be dismissed whether or not such evidence is required.

Plaintiff’s expert’s initial report, created by Tyler A. Kress, Ph.D. in Knoxville, Tennessee, dated [*11] October 6, 2006, summarily lists plaintiff’s injuries following the accident. It then lists all of the expert’s qualifications, his fees, and the records he reviewed. These are a 9/26/2002 CT scan of plaintiff’s head; the hospital’s discharge summary; a letter of April 3, 2003 by a Jon Wardner, M.D. stating plaintiff’s disability; the CPSC announcement of the helmet recall; and the plaintiff’s deposition. Dr. Kress also states that he met with the plaintiff. The remainder (and the entire substance) of his letter/report stated only a conclusion that a “defect” of the helmet was “directly related to the inadequacies of the Catlike Kompact bike helmet.”

Defendant then brought a motion, granted by the magistrate, for sanctions and to require a supplemental report by November 15, 2006, containing a “complete statement of all opinions to be expressed and the basis and reasons therefor…” A supplemental report was subsequently created by Dr. Kress. That report, dated November 15, 2006, is set forth below in its entirety:

Dear Mr. Katkowsky:

This is to supplement my report of October 6, 2006, regarding the above-styled cause.

1) Use: It is my opinion that it is foreseeable [*12] that some consumers will sustain a preventable head injury due to the impact performance (or lack thereof) of the helmet while using it in an appropriate manner as it is intended to be used.

Protective head gear and bicycle helmets have the ability to eliminate or greatly reduce traumatic head and brain injury when properly designed an manufactured. To ensure that bicycle helmets available in the consumer market adequately serve these goals, the Consumer Product Safety Commission has created safety standards for a range of criterion, including impact attenuation (CPSC’s Safety Standard for Bicycle Helmets Final Rule: 16 CFR Part 1203).

Bicycle helmets that have adequate impact attenuation performance, as set forth by the CPSC’s safety standards, and are used in an appropriate, reasonable, and correct manner are highly successful in preventing or greatly reducing traumatic head and brain injury. As found in a 1989 study by Thompson et al and explicitly cited in the CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203, pg. 11713), riders with helmets had an 85% reduction in head injury risk, and 88% reduction in brain injury risk.

2) Reason for Injury: [*13] Ms. Jenish’s head injury is directly related to the inadequacies of the Catlike Kompact bike helmet.

The CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203) explicitly establishes a performance test to “ensure that helmets will adequately protect the head in a collision” (pg. 11714). As a component of this performance test, helmets are required to not exceed a peak headform acceleration of 300 g for any impact. This pass/fail criterion of 300g or below is consistent with other standards such as the ANSI, Snell, and ASTM (CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203, pg. 11714; Halstead 2001). The Catlike Kompact bike helmet is inadequate due to the fact that it failed impact standards that pertain to the design and performance of the helmet in a foreseeable use that may result in an impact to the head.

In the accident on September 26, 2002, Ms. Jenish hit a curb while riding her bicycle, was ejected, and impacted her head. She reported a loss of consciousness at the scene, and her relevant injuries include, but are not limited to, a traumatic brain injury and a subdural hematoma. Ms. Jenish sustained a direct impact to the back [*14] of the head (occipital region) which corresponds to a right occipatal scalp hematoma and the area of impact and failure seen in the helmet. Contact head impacts, such as this, result in predominantly linear acceleration of the head and brain, with small components of angular acceleration. Linear acceleration can product focal brain injuries, such as subdural hematomas, as well as concussions; as seen in Ms. Jenish.

The severity of the head injury sustained by Ms. Jenish is a direct result of the inability of the Catlike Kompact to comply to the CPSC’s safety standards. Subdural hematomas, similar to the one sustained by Ms. Jenish, are commonly caused by an impact to the occipital region (Kleiven 2003, Zhou et al 1995). The acceleration of the head in an occipital impact exceeded the values of what a reasonably designed and protective headgear would have given the wearer. Due to the failure of the Catlike Kompact bicycle helmet to comply to the CPSC’s impact safety standards Ms. Jenish’s head experienced higher acceleration values resulting in a more serious traumatic brain injury than would have been experienced if the helmet was compliant with the impact standards of the CPSC. [*15]

3) Design Defect: The helmet is inherently dangerous and defective by design in that it fails to comply with impact testing standards required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.

The impact attenuation standards of the CPSC’s Safety Standard for Bicycle Helmets Final Rule (16 CFR Part 1203) was created in order to “ensure that helmets will adequately protect the head in a collision” (p. 11714). Failure to meet this standard endangers consumers by failing to prevent or reduce injury.

If you have any questions or need anything further please do not hesitate to contact me.

Sincerely,

/s/

Tyler Kress, Ph.D., CIE

Exhibit I to Defendant’s Motion and Exhibit 2 to Plaintiff’s Response.

Defendant contends that all this report arguably establishes is that the helmet failed to “meet standards;” and that plaintiff has failed to connect that alleged, undefined defect to her injuries. As defendant asserts, there is no evaluation of items such as plaintiff’s speed at the time of the crash, location of impact, descriptive information concerning the object struck or other details of the accident. Defendant [*16] points to the serious injuries sustained by the plaintiff in the crash, including fractured vertebrae, a crushed rib cage, fractured collarbone, bulging spinal discs, and a collapsed lung, and asserts that helmets don’t rule out any and all head injuries, in any crash or at any speed, but serve to help protect against head injuries. Plaintiff has not identified the manufacturing or design elements of the helmet that led to voluntary recall nor has accident reconstruction tied these elements to the plaintiff’s injuries.

As discussed at oral argument, plaintiff has not brought forth any evidence of the reason the Catlike Kompact helmet failed impact testing. 5 All that has been presented is a one page press release from the CPSC, set forth above, including a statement that “[t]he helmets fail impact testing required under CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.” Without additional information from the CPSC or any other source, or the results of any independent testing, it is the opinion of the court that Dr. Kress’ statement that “[t]he severity of the head injury sustained by Ms. Jenish is a direct result of the inability [*17] of the Catlike Kompact to comply to the CPSC’s safety standards” can be nothing but inadmissible speculation. Accordingly, it is the court’s determination that plaintiff has not produced evidence to raise a question of material fact regarding causation. Defendant’s motion will be granted.

5 Plaintiff has failed to identify any specific claimed defect, such as deficiencies in the suspension or cushioning system, hardness or thickness of the plastic, ventilation engineering, overall shape, the strapping mechanism, or any other particular aspects of the helmets in general, much less the helmet worn by plaintiff. Without knowing the defect that motivated a voluntary recall, and without testing of the helmet worn by plaintiff, it is impossible to conclude that a defect caused her injury.

CONCLUSION

Because plaintiff has failed to raise a question of material fact as to the proximate causation of her head injuries by an alleged defect in her bicycle helmet, summary judgment will enter as to all claims brought [*18] by the plaintiff against this defendant.

IT IS SO ORDERED.

Dated: May 9, 2007

S/ George Caram Steeh

UNITED STATES DISTRICT JUDGE


Making statements contrary to release can be barred by a release, maybe, but may be gross, wilful and wanton negligence which the release does not stop.

Plaintiff signed a release to participate in the Warrior Dash race. An employee of the race was encouraging participants to dive into a mud pit. Plaintiff dove into the mud pit rendering himself a quadriplegic.

Sa v. Red Frog Events, LLC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

State: Federal District Court for the Eastern District of Michigan

Plaintiff: James Sa

Defendant: Red Frog Events, LLC, an Illinois corporation

Plaintiff Claims: negligence, gross negligence, and willful and wanton misconduct

Defendant Defenses: release and failure to state a claim upon which relief may be granted

Holding: for the defendant on the negligence claim because of the release, for the plaintiff on the gross negligence, and willful and wanton misconduct claims

Year: 2013

This case is possible still ongoing. How the final decision will evolve is unknown. However, the federal district court did arrive at some great analysis of the case.

This case comes out of the new fad, extreme obstacle racing. In these races participants run through live electrical wires, jump through fire and here, crawl through a mud pit. These races are known by various names, Warrior Dash, Spartan Race and Tough Mudder are the most well-known.

In this case, the plaintiff signed up for a Warrior Dash 5K race and signed a release. The release specifically warned against diving into the mud pit. The mud pit was right in front of the bleachers and the last obstacle on the course.

At the mud, pit was an employee of the defendant with a microphone, and loudspeaker “acting as an emcee” for the event.

Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged.

So many people were diving into the mud pit that people were blogging about it and posting photos online.

The plaintiff followed the emcee’s “encouragement” and dove into the mud pit resulting in paralysis from the chest down. The plaintiff sued, and the defendant filed a motion to dismiss.

A motion to dismiss is usually filed by the defendant prior to filing an answer. The basis is the pleadings are so lacking in any facts or there is no law to support a claim. In reviewing the motion, the court must accept the allegations and facts in the complaint as true. It is unclear in reading this case when the motion to dismiss was filed. This opinion is the court’s response to the motion to dismiss.

Summary of the case

The court first looked at whether the release acted to stop the negligence claims of the plaintiff. Releases are valid in Michigan. Under Michigan law a release’s validity:

…turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.

Whether the release is valid is a question of law. The plaintiff did not argue that he signed the release. The court pointed out possible ways the plaintiff could void the release which the plaintiff did not use.

He does not argue, for example, that (1) he “was “dazed, in shock, or under the influence” when he signed the Waiver; (2) “the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.

Ninety-nine percent of the time plaintiff’s attack the validity of the release based on their competence or understanding of the release. In not doing so, I would guess the plaintiff shocked the judge so he put in this language. The plaintiff’s first argued the release was invalid because:

…that “Red Frog fails to indemnify itself from its own negligent acts” because it “did not use the term ‘negligent’ and/or ‘negligence’ anywhere within the four corners of it’s (sic) Waiver & Release Agreement.

(This argument has been used endlessly and is so easily avoided. Use the word negligence in your release.)

Here the language used by the defendant met the requirements to put the plaintiff on notice that he was giving up his rights to sue for negligence. “…although an indemnity provision does not expressly state that the indemnitee will be shielded from its own negligence, such language is not mandatory to provide such indemnification.”

The release language under Michigan’s law is called the indemnity provision or clause. That translation of the phrase is different from most other states. Here, it is like saying, by signing the release the plaintiff agrees to indemnify himself for his injuries.

…the Waiver, titled as a “Waiver and Release of Claims, Assumption of Risk and Warning of Risk,” informed Plaintiff that he was relinquishing his right to sue Defendant for claims resulting from his participation in the Warrior Dash.

The next argument of the plaintiff’s is brilliant and if successful would bring down hundreds of releases across the United States. Releases written by attorneys or non-attorneys in an attempt to soften the blow will put statements in the release about how safe the activity is, how well run the operation is or that accidents rarely happen.

The plaintiff argued that other statements in the release gave the plaintiff the impression that the defendant would not be negligent in the operation of the race.

For support, Plaintiff points to the disclaimer portion of the Waiver stating that Red Frog: (1) “is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard;” and (2) “continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety.

The court did not accept this argument because the paragraph this language was in went on stating there was a risk of injury entering the race.

The final argument by the plaintiff was also unique and if accepted would invalidate dozens of releases. The plaintiff argued that the statements by the employee of the defendant, the emcee, invalidated the release. In legal language, the statements of the emcee “constituted a waiver and modification of the release of liability.”

In sum, Plaintiff argues, “[t]his conduct led James [the plaintiff] to believe a waiver had occurred and it was okay and safe to dive into the mud pit. Red Frog failed to correct the actions of participants who dove into the mud pit or further instruct through the speaker system that this type of behavior was not permitted.”

Under Michigan’s law, any waiver of a written contract must be in writing unless the waiver language is consistent with the strict compliance language of the contract. Meaning the waiver language must be of the same type and of the same legal tone as the original contract.

Even assuming that Michigan law permits parties to orally modify a waiver and release, the most Plaintiff has alleged is that Defendant’s actions modified the provision prohibiting Plaintiff from diving into the mud pit head first. Defendant’s actions cannot be interpreted, as pled by Plaintiff, as an agreement to modify the Waiver such that Plaintiff could hold Defendant liable for negligence due to injuries arising out of his participation in the Warrior Dash. Therefore, the Waiver bars Plaintiff’s negligence claim.

The court upheld the validity of the release and held the release stopped the simple negligence claims of the plaintiff.

On the second and third claims, gross negligence, and willful and wanton misconduct, a release under Michigan’s law does not work. The issue then becomes are there enough allegations to the facts in the complaint and documents filed with the court to this point to support the plaintiff’s claim of gross negligence, and willful and wanton misconduct.

Under Michigan’s law:

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” M.C.L. § 600.2945(d); Xu, 257 Mich. App. at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.”

Under Michigan’s law, a release does not stop claims for gross negligence. So the gross negligence claim survives the defense of release. The issue then is whether the plaintiff as plead enough facts that a jury may find give rise to gross negligence.

…it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless to demonstrate a substantial lack of concern for whether an injury would result.

The court, based upon the statements of the emcee at the mud pit encouraging people to dive into the pit were enough to possibly support a claim for gross negligence.

Under Michigan’s law, Wilful and Want misconduct is different and distinct from gross negligence.

“[W]ilful and wanton misconduct . . . [is] qualitatively different from and more blameworthy than ordinary, or even gross, negligence.”). The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to an-other, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.”

…willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.

Here again, the court found the actions of the emcee in encouraging participants to dive into the mud pit might be found to be an intent to harm or an indifference.

Here, a reasonable jury might conclude that the act of encouraging participants to jump head-first into the mud pit despite knowing the risks, to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such “indifferen[ce] to the likelihood that catastrophe would come to a [race participant.]”

Consequently, the court granted the motion to dismiss on the negligence claims and denied the motion to dismiss on the claims of gross negligence and wilful and wanton misconduct.

Again, this case probably is not over yet.

So Now What? 

Don’t give an injured participant the opportunity to sue you. Don’t dance with the possibility that your language you use instead of the word negligence will meet the requirements of the law.

JUST USE THE WORD NEGLIGENCE IN YOUR RELEASE!

Second, don’t allow anyone who is an employee or may appear to participants to be an employee to encourage people to take actions that might injure them or is contrary to the rules of your activity.

It seems to be common sense; however, in the heat of the activity or an unfounded belief the release is ironclad, people get excited and might encourage a participant to take risks they are not expected or ready for.

What do you think? Leave a comment.

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#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, Warrior Dash, Spartan Race, Tough Mudder, Race, Obstacle Course, Release, Michigan, Gross Negligence, Wilful and Wanton Misconduct, Negligence,

 

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Sa v. Red Frog Events, LlC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

Sa v. Red Frog Events, LlC, 979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

James Sa, Plaintiff, vs. Red Frog Events, LlC, an Illinois corporation, Defendant.

No. 2:13-cv-10294

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

979 F. Supp. 2d 767; 2013 U.S. Dist. LEXIS 151355

October 22, 2013, Decided

October 22, 2013, Filed

CORE TERMS: mud, dive, pit, own negligence, willful, wanton misconduct, obstacle, gross negligence, diving, indemnity, negligence claim, indemnitee, indemnify, negligent acts, indemnification, disclaim, pit head, risk of injury, citation omitted, unambiguous, encouraged, summary judgment, claim arising, recreational activities, reasonable care, encouraging, disclaimer, hazardous, choosing, ladder

COUNSEL: [**1] For James Sa, Plaintiff: Michael J. Behm, Behm and Behm, Flint, MI.

For Red Frog Events, LLC, Defendant: Brian T. McGorisk, Plunkett & Cooney, Flint, MI.

JUDGES: Hon. GERALD E. ROSEN, CHIEF UNITED STATES DISTRICT JUDGE.

OPINION BY: GERALD E. ROSEN

OPINION

[*769] OPINION AND ORDER PARTIALLY GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This action arises out of an unfortunate and tragic accident during a running race organized by Defendant Red Frog Events, resulting in Plaintiff James Sa’s paralysis from his chest down. On January 23, 2013, Plaintiff filed a three-count Complaint, asserting negligence, gross negligence, and willful and wanton misconduct. 1 Defendant has now moved to dismiss Plaintiff’s Complaint on the grounds that Plaintiff waived his negligence claim and that his two other claims fail to state a claim upon which relief may be granted. 2 Having reviewed and considered the parties’ briefs and supporting documents and the entire record of this matter, the Court has determined that the pertinent allegations and legal arguments are sufficiently addressed in these materials and that oral [*770] argument would not assist in the resolution of these motions. Accordingly, the Court will decide Defendant’s [**2] motion “on the briefs.” See L.R. 7.1(f)(2). This Opinion and Order sets forth the Court’s ruling.

1 Michigan courts use “willful” and “wilful” interchangeably. For consistency, this Court uses the former, unless in the context of a direct quote.

2 Though captioned as a “Motion for Summary Judgment,” Defendant’s Motion makes clear that it seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, pursuant to Rule 56. As discussed in more detail in footnotes 3 and 4, this Court applies Rule 12(b)(6) to this Motion.

II. PERTIENT FACTS

In July 2011, Plaintiff participated in a two-day event known as the “Warrior Dash” in Mt. Morris, Michigan. (Plf’s Compl., Dkt. # 1, at ¶¶ 5, 8). The Warrior Dash is a 5k running race with obstacles, including jumping over fire, wall climbing, and a mud pit. (Id. at ¶ 7). Plaintiff was injured as a result of diving head first into the mud pit. (Id. at ¶¶ 21-22).

Positioned directly across from bleachers and right before the finish line, the mud pit was the last obstacle of the race. (Id. at ¶¶ 13-14). One of Defendant’s employees or agents was stationed near the mud pit with a microphone and loudspeaker, acting as an emcee for the [**3] event. (Id. at ¶ 15). Over the course of the event, this individual continually enticed, encouraged, and specifically told participants to dive into the mud pit. (Id. at ¶¶ 16, 26, 27). It was common knowledge among participants that diving into the mud pit was not only permitted, but encouraged. (Id. at ¶ 17). As an example of this “common knowledge,” bloggers commented about mud diving online. (Id. at ¶ 18). One noted the following:

When I arrived at the Warrior Dash on Saturday morning I found out rather quickly that “mud diving” was rather popular on the last obstacle before the finish line. . . . A good mud dive at this point makes perfect sense since runners are tired from the grueling course yet rejuvenated as they see the last obstacle. I’m sure the spectator attention also gives a little more motivation for participants to bring their best mud dive as well. . . . Hopefully this joy is worth the pain they may have endured to make this happen since my brother-in-law had to go to the hospital after attempting a cannon ball.

(Id.). This same person also posted “sweet pictures of an assortment of some of the best mud dives” and requested that readers “vote” for their favorite. (Id.).

Before [**4] Plaintiff’s race wave began, he witnessed many participants dive into the mud pit, heard the emcee encourage others to dive into the mud pit, and never saw anyone tell participants not to dive into the mud pit. (Id. at ¶¶ 19, 27). Defendant also did not post any signs instructing individuals not to dive into the mud pit. (Id. at ¶ 20). Accordingly, Plaintiff followed the emcee’s encouragement and the lead of other participants and dove into the mud pit, resulting in paralysis from the chest down. (Id. at ¶ 22).

Prior to participating in the Warrior Dash, Plaintiff — as well as all other participants — signed a “Waiver and Release of Claims” (Waiver). (Id. at ¶ 9). The Waiver provides, in no uncertain terms, that Plaintiff “agree[s] not to dive into or enter the mud pit head first.” (Ex. A. to Def’s Br., Dkt. # 4-1, at ¶ 17). 3 Other pertinent language includes:

1. I understand that entering Warrior Dash is a hazardous activity.

2. I understand that Warrior Dash presents extreme obstacles including, but not limited to: fire, mud [*771] pits with barbed wire, cargo climbs, junk cars, and steep hills.

* * *

7. I assume all risks associated with competing in Warrior Dash, including, but not limited [**5] to: falls, contact with other participants, negligent or wanton acts of other participants, completing all obstacles, any defects or conditions of premises, and the effects of weather including high heat and/or humidity, all such risks being known and appreciated by me.

* * *

DISCLAIMER

I understand that Red Frog Events, LLC is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard. I understand that Red Frog Events, LLC continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety. I also understand, however, that participants . . . registering for the race, programs, and activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities and programs.

* * *

WAIVER & RELEASE OF ALL CLAIMS; ASSUMPTION OF RISK

I recognize and acknowledge that there are certain risks of physical injury to participants in Warrior Dash, and voluntarily assume the full risk of any and all injuries, damages, or loss, regardless of severity, that I . . . may sustain as a result of said participation. [**6] . . . I assume all risks and hazards incidental to such participation in Warrior Dash, and I hereby waive, release, absolve, indemnify, and agree to hold harmless . . . Red Frog Events, LLC . . . for any claim arising out of an injury to me . . . and from any and all claims, causes of action, obligations, lawsuits, charges, complaints, contracts, controversies, covenants, agreements, promises, damages, costs, expenses, responsibilities, of whatsoever kind, nature, or description, whether direct or indirect, in law or in equity, in contract or tort, or otherwise, whether known or unknown, arising out of or connected with my . . . participation in Warrior Dash.

(Id.) In accepting these terms, Plaintiff checked that he had read and fully understood the Waiver and signed with his own free act and deed. (Id.).

3 Defendant attached a signed copy of the Waiver in support of its Motion. This Court may consider this document without treating Defendant’s Motion as one for summary judgment because it is referred to in Plaintiff’s Complaint and is central to his claim. Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997).

III. DISCUSSION

A. Applicable Standards

1. Rule 12(b)(6) Standard

In [**7] deciding a motion brought under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to Plaintiffs and accept all well-pled factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). To withstand a motion to dismiss, however, a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The factual allegations in the complaint, accepted as true, “must be enough to raise a right to relief above the speculative level,” and must “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “The plausibility of [*772] an inference depends on a host of considerations, including common sense and the strength of competing explanations for defendant’s conduct.” 16630 Southfield Limited P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013).

The Sixth [**8] Circuit has emphasized that the “combined effect of Twombly and Iqbal [is to] require [a] plaintiff to have a greater knowledge . . . of factual details in order to draft a ‘plausible complaint.'” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (citation omitted). Put another way, complaints must contain “plausible statements as to when, where, in what or by whom,” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 373 (6th Cir. 2011), in order to avoid merely pleading “unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.

2. Application of Michigan law

This Court applies Michigan law as enunciated by the Michigan Supreme Court because subject matter jurisdiction in the matter is premised solely on diversity jurisdiction. See, e.g., Corrigan v. U.S. Steel Corp., 478 F.3d 718, 723 (6th Cir. 2007); Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995). “Where the Michigan Supreme Court has not addressed an issue, [courts] may look to opinions issued by the Michigan appellate courts and should follow their reasoning unless [they] are ‘convinced by other persuasive data that the [**9] highest court of the state would decide otherwise.'” Tooling, Mfg. & Technologies Ass’n v. Hartford Fire Ins. Co., 693 F.3d 665, 670 (6th Cir. 2012) (quoting Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 517 (6th Cir. 2001)).

B. The Waiver bars Plaintiff’s negligence claim (Count I)

In Michigan, “the validity of a release turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.” Batshon v. Mar-Que Gen. Contractors, Inc., 463 Mich. 646, 650 n.4, 624 N.W.2d 903 (2001). “The interpretation of [a] release [is] a question of law.” Cole v. Ladbroke Racing Michigan, Inc., 241 Mich. App. 1, 13, 614 N.W.2d 169 (2000).

Michigan law expressly permits “a party to contract against liability or damages caused by its own ordinary negligence.” Skotak v. Vic Tanny Intern., Inc., 203 Mich. App. 616, 617-18, 513 N.W.2d 428 (1994). Plaintiff does not dispute that he signed the Waiver and provides no factual support to avoid the consequences of the Waiver. He does not argue, for example, that (1) he “was “dazed, in shock, or under the influence” when he signed the Waiver; [**10] (2) “the nature of the instrument was misrepresented, or (3) there was other fraudulent or overreaching conduct.” Xu v. Gay, 257 Mich. App. 263, 273, 668 N.W.2d 166 (2003). 4 Rather, Plaintiff asserts [*773] that “Red Frog fails to indemnify itself from its own negligent acts” because it “did not use the term ‘negligent’ and/or ‘negligence’ anywhere within the four corners of it’s (sic) Waiver & Release Agreement.” (Plf’s Resp., Dkt. # 8, at 6). For this proposition, Plaintiff begins with a citation to an Eastern District of Michigan case, Buffa v. General Motors Corporation, 131 F. Supp. 478 (E.D. Mich. 1955), finding that “a contract of indemnity which purportedly indemnifies against the consequences of one’s own negligence is subject to strict construction and will not be so construed unless it clearly appears from the language used that it was intended to have that effect.” Id. at 482.

4 In response to Defendant’s Motion, Plaintiff submitted various materials outside the pleadings, including an unsigned and different version of the Waiver, an affidavit from Plaintiff, affidavits from two participants, a press release from Defendant regarding the Warrior Dash, and an excerpt from the above quoted blog picturing [**11] participants’ dives and requesting that readers vote for the best dive. To the unsigned Waiver, the Court notes that while slightly different, the material language at issue is the same — including that Plaintiff agreed to “not dive into or enter the mud pit head first,” that the Warrior Dash is a “hazardous activity,” that he “assum[ed] the full risk of any and all injuries,” and that he agreed to release Defendant from “any and all” claims. Plaintiff’s affidavit also fails to raise any issues challenging the factual circumstances of his signing of the Waiver. Finally, the remaining materials just supplement his Complaint assertions — namely, that Defendant’s agent encouraged participants to dive into the mud pit. Such materials “simply fill[] in the contours and details of the [P]laintiff’s complaint, and add[] nothing new.” Yeary v. Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997). In short, nothing in these materials provides the Court with any basis for finding that there would be any facts that could be developed through discovery that would provide a factual predicate to support Plaintiff’s negligence cause of action. Accordingly, the Court declines to consider [**12] these materials and therefore evaluates the sufficiency of Plaintiff’s Complaint under Federal Rule of Civil Procedure 12(b)(6).

There is no doubt that Michigan courts have adopted this general proposition, but not in the manner in which Plaintiff suggests. See, e.g., Skinner v. D-M-E Corp., 124 Mich. App. 580, 586, 335 N.W.2d 90 (1983) (“It is universally recognized that a contract which purports to confer an express right to indemnification against the consequences of one’s own negligence is subject to strict construction and will not be so construed unless the contract language clearly evidences that such was the intended effect.”). Instead, Michigan courts hold that “indemnity clauses need not expressly mention the indemnitee’s own acts to provide coverage for them.” Badiee v. Brighton Area Sch., 265 Mich. App. 343, 353, 695 N.W.2d 521 (2005) (citing Sherman v. DeMaria Bldg. Co., Inc., 203 Mich. App. 593, 513 N.W.2d 187 (1994)). As the Sherman court explained:

Michigan courts have discarded the additional rule of construction that indemnity contracts will not be construed to provide indemnification for the indemnitee’s own negligence unless such an intent is expressed clearly and unequivocally in the contract. Instead, broad indemnity [**13] language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from “other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.”

Sherman, 203 Mich. App. at 596-97 (citation omitted); see also Chrysler Corp. v. Brencal Contractors, Inc., 146 Mich. App. 766, 771, 381 N.W.2d 814 (1985) (“Earlier cases imposed the additional rule of construction that indemnification contracts will not be construed to indemnify the indemnitee against losses from his own negligent acts unless such an intent is expressed in unequivocal terms. That rule of construction no longer applies.”) (internal citations omitted). Put another way, “although an indemnity provision does not expressly state that the indemnitee will be shielded from its own negligence, such language is not mandatory to provide such indemnification.” Fischbach-Natkin Co. v. Power Process Piping, Inc., 157 Mich. App. 448, 452-53, 403 N.W.2d 569 (1987); Harbenski v. Upper Peninsula Power Co., 118 Mich. App. 440, 454, 325 N.W.2d 785 (1982) (“The [*774] contention that the intent to indemnify an indemnitee against his own negligence must be expressly stated has been rejected.”) (citing Vanden Bosch v. Consumers Power Co., 394 Mich. 428, 230 N.W.2d 271 (1975)).

Plaintiff [**14] contends that Sherman does not so hold, and rather only stands for the narrow proposition that “if there is no unequivocal language in the agreement indemnifying defendant for its own negligent acts then the indemnity language may be interpreted to protect the indemnitee against its own negligence if this intent can be ascertained from other language in the contract, surrounding circumstances, or from the purpose sought to be accomplished by the parties.” (Plf’s Resp., Dkt. # 8, at 8) (citation and internal quotations omitted). For support, Plaintiff argues that the presence of an exclusionary clause in Sherman — excluding indemnification for claims based on the defendant’s sole negligence — “evince[d the] . . . intent to indemnify [defendant] against losses from its own negligence but not from loses caused solely by [defendant].” (Id.) (quoting Sherman, 203 Mich. App. at 598-99). 5 Though the Waiver here contains no such clause, Sherman cannot be read as requiring such juxtaposing language to either read in or read out coverage for a party’s own negligence. Instead, Sherman counsels that courts must examine, among other things, the contract’s “other language” in the absence of an [**15] unequivocal statement regarding a party’s own negligence.

5 Sherman also notes that the waiver referenced the “owner’s continuing operations, which indicated that the parties realized their employees would be on the job site at the same time . . . [t]hus, the possibility that an injury or damage could result from [the defendant]’s negligence was apparent at the time the parties entered the contract.” Sherman, 203 Mich. App. at 599. The Court addresses this language below.

Here, the Waiver’s “other language” “clearly expresses [D]efendant’s intention to disclaim liability for all negligence, including its own.” Skotak, 203 Mich. App. at 619. Michigan law plainly holds that the phrases “‘any’ and ‘all’ and of the phrase ‘any and all’ . . . include[s] one’s own negligence.” Paquin v. Harnischfeger Corp., 113 Mich. App. 43, 50, 317 N.W.2d 279 (1982). This is because “there cannot be any broader classification than the word ‘all.’ In ‘its ordinary and natural meaning, the word “all” leaves no room for exceptions.'” Id. (citation omitted).

In personal injury cases interpreting language nearly identical to the Waiver’s language, Michigan courts find that such phrases disclaim one’s own negligence. Take Skotak [**16] for example. There, the Michigan Court of Appeals addressed the scope of a waiver in a matter alleging negligence — failing to train staff to respond to a heart attack — against a health club after a club member suffered a fatal heart attack while sitting in a steam room. 203 Mich. App. at 617. In construing the waiver to include the defendant’s own negligence, the Skotak court noted that the waiver’s “inclusive language, ‘any and all claims, demands, damages, rights of action, or causes of action, . . . arising out of the Member’s . . . use of the . . . facilities,’ clearly expresses defendant’s intention to disclaim liability for all negligence, including its own.” Id. at 619 (alterations in original). The Skotak court also emphasized the breadth of the word “all,” rejecting the plaintiff’s argument that it covered certain kinds of negligence (slip and fall injuries resulting from use of exercise equipment), but not others (like negligent training and supervision):

[*775] We fail to see how such a line can be drawn. We do not believe that the risk that medical assistance might not be available is somehow less foreseeable than the danger of a slip and fall injury. In any event, there is no [**17] broader classification than the word “all.” In its ordinary and natural meaning, the word “all” leaves no room for exceptions. Therefore, assuming that defendant was negligent in failing adequately to train and supervise its employees, any claim arising out of that negligence would be barred by the release clause the decedent signed.

Id. (internal citation omitted).

Other personal injury cases — of which Defendant features prominently and Plaintiff avoids all together — also interpret similar waiver language to include one’s own negligence. 6 See Cole, 241 Mich. App. at 14 (release covering “all risks of any injury that the undersigned may sustain while on the premises . . . clearly expressed defendant’s intention to disclaim liability for all injuries, including those attributable to its own negligence”); Gara v. Woodbridge Tavern, 224 Mich. App. 63, 67, 568 N.W.2d 138 (1997) (“The language whereby the participant agreed to assume ‘any risks inherent in any other activities connected with this event in which I may voluntarily participate’ and to take responsibility for ‘any and all injuries (including death) and accidents which may occur as a result of my participation in this event . . . ‘ clearly [**18] expressed defendants’ intention to disclaim liability for all negligence, including their own.”).

6 None of the cases cited by Plaintiff discuss this line of cases. Instead, he relies upon older cases that do not hold that releases must include the magic words of “negligence” or “negligent acts” and do not substantively analyze whether “any” or “all” language covers negligence claims. See, e.g., Gen. Acc. Fire & Life Assur. Corp., Ltd. v. Finegan & Burgess, Inc., 351 F.2d 168 (6th Cir. 1965); Tope v. Waterford Hills Racing Corp., 81 Mich. App. 591, 265 N.W.2d 761 (1978). He also distinguishes this matter from a recent unpublished Sixth Circuit case, Fish v. Home Depot USA, Inc. 455 F. App’x 575 (6th Cir. 2012). There, the Sixth Circuit found that a ladder rental contract favored indemnification for several reasons: (1) the waiver included a rental “as is” provision; (2) the waiver had an acknowledgment that the plaintiff inspected the ladder; (3) the plaintiff had rented other equipment from the defendant before; and (4) because the plaintiff was renting and not purchasing the ladder, he was “undoubtedly aware” that others had used the ladder before him, and was therefore aware that there was a possibility [**19] that “latent equipment problems can be caused by ordinary wear and tear.” Id. at 580. Plaintiff distinguishes Fish, asserting that he did not agree to an “as is” provision,” had not dealt with Red Frog or the Warrior Dash before, did not inspect the course beforehand, and was not aware that the course would “become dangerous though the ‘wear and tear’ of other participants.” (Plf’s Resp., Dkt. # 8, at 10). Fish is not binding authority, and even if it was, it is not applicable to the instant matter because it still does not address the core issue of whether the Waiver’s “any” or “all” language covered Defendant’s own negligent conduct.

More recently, the Michigan Court of Appeals distinguished this line of cases in Xu v. Gay. In that matter, a man using a treadmill at a fitness center fell, hit his head, and died. 257 Mich. App. at 265. Distinguishing Skotak and Cole, the Michigan Court of Appeals rejected the notion that the parties intended to release the fitness center from liability stemming from its own negligence:

We find that the language in the alleged release is unambiguous, and clearly states that defendant would not assume responsibility for “any injuries and/or sicknesses [**20] incurred to [sic] me or any accompanying minor person as a result of entering the premises and/or using any of the facilities.” However, this provision does not inform the reader that he is solely responsible for injuries [*776] incurred or that he waives defendant’s liability by relinquishing his right to sue, nor does it contain the words “waiver,” “disclaim,” or similar language that would clearly indicate to the reader that by accepting its terms he is giving up the right to assert a negligence claim.

Id. at 275.

Here, as with Skotak, Cole, and Gara, the Waiver unambiguously covered Defendant’s own negligence. The Waiver warned Plaintiff that “enter[ing] Warrior Dash [was] a hazardous activity” and that it presented “extreme obstacles.” Plaintiff agreed to “assume all risks associated with competing in Warrior Dash” and acknowledged that there was “an inherent risk of injury when choosing to participate in recreational activities and programs.” Most critically, Plaintiff “voluntarily assume[d] the full risk of any and all injuries, damages or loss, regardless of severity, that [he] . . . may sustain as a result of . . . participation [in the Warrior Dash].” Likewise, he also agreed to “waive, [**21] release, absolve, indemnify, and agree to hold harmless . . . Red Frog Events, LLC . . . for any claim arising out of an injury to me and from any and all claims . . . [including] tort . . . arising out of or connected with [his] participation in Warrior Dash.” 7 The Waiver therefore unambiguously covered Defendant’s own negligence. Finally and unlike Xu, the Waiver, titled as a “Waiver and Release of Claims, Assumption of Risk and Warning of Risk,” informed Plaintiff that he was relinquishing his right to sue Defendant for claims resulting from his participation in the Warrior Dash.

7 Plaintiff’s argument that “[t]here was nothing in Red Frog’s indemnity provision that warned participants that Red Frog’s agents would be interfering with the actual race or to notify James that there was potential that the risks of the race would be or could be heightened by the presence of Red Frog’s agents, or that injury could result from the negligence of Red Frog or its agents” misses the mark. (Plf’s Resp., Dkt. # 8, at 9) (contrasting with Sherman, see footnote 5). Whether the indemnity provision warned of certain negligent acts or not, just as in Skotak, any claim arising out of negligence is [**22] barred given the Waiver’s express and unambiguous language.

Notwithstanding this clear language, Plaintiff claims other language contained in the Waiver “gave James the false impression that Red Frog would not be negligent in the operation and performance of this racing event.” (Plf’s Resp., Dkt. # 8, at 10). For support, Plaintiff points to the disclaimer portion of the Waiver stating that Red Frog: (1) “is committed to conducting its race and activities in a safe manner and holds the safety of participants in high regard;” and (2) “continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants’ safety.” Plaintiff omits, however, the remainder of the disclaimer, which provides that “participants . . . registering for the race, programs, and activities must recognize that there is an inherent risk of injury when choosing to participate in recreational activities and programs.”

This argument is without merit. In Cole, the Michigan Court of Appeals rejected a similar argument in a personal injury case arising out of an accident at a horse-racing facility. There, the plaintiff “acknowledge[d] [**23] that due to the unique combination of dangerous factors in the restricted area associated with the stabling, exercising and training of a large number of horses, and the presence of tradespeople, jockeys, owner and other personnel in the area, there are inherent dangers in the restricted area which [the defendant] cannot eliminate after exercising [*777] reasonable care.” 241 Mich. App. at 14. In rejecting the argument that the “which [the defendant] cannot eliminate after exercising reasonable care” language limited the scope of the release (to not cover negligent acts), the court reasoned that the language “specifically addressed the dangerous conditions and inherent dangers in the restricted area of the racetrack.” Id. The “reasonable care” language was, therefore, “an unambiguous emphasis of the fact that being in the restricted area entails dangers that cannot be eliminated by exercising reasonable care.” Id.

Just as in Cole, the Waiver’s language here regarding Defendant’s commitment to conducting the Warrior Dash in a safe manner and to reducing risks cannot be read to carve out Defendant’s negligence from the Waiver’s scope. The very next sentence expressly warns participants of the [**24] “inherent risk of injury when choosing to participate in recreational activities and programs.” The disclaimer language, read in toto, and pursuant to Cole, serves only as “an unambiguous emphasis” that participating in the Warrior Dash carries a risk of injury. This is especially true when, as discussed above, read in conjunction with the fact that the Waiver releases liability with respect to “any and all injuries” sustained as a result of participation in the Warrior Dash. Id. at 14-15.

In the alternative, Plaintiff presents an interesting theory with respect to the Waiver’s enforceability: Defendant’s conduct — the emcee’s statements encouraging participants to dive head first into the mud pit — “constituted a waiver and modification of the release of liability.” (Plf’s Resp., Dkt. # 8, at 14). In sum, Plaintiff argues, “[t]his conduct led James to believe a waiver had occurred and it was okay and safe to dive into the mud pit. Red Frog failed to correct the actions of participants who dove into the mud pit or further instruct through the speaker system that this type of behavior was not permitted.” (Id.)

To find an implied waiver, the conduct of the party against whom waiver is [**25] asserted must be inconsistent with strict compliance with the terms of the contract. H J Tucker & Associates, Inc. v Allied Chucker & Eng’g Co., 234 Mich. App 550, 564-65, 595 N.W.2d 176 (1999). Though Plaintiff does not articulate this theory as such, Plaintiff essentially argues a waiver by estoppel theory. “[A] waiver by estoppel implied from conduct focuses not on the intent or purpose of the waiving party but on the effect of its conduct on the other party.” 13 Williston on Contracts § 39:29 (4th ed). “To prove waiver by estoppel, a party need only show that it was misled to its prejudice by the conduct of the other party into the honest and reasonable belief that the latter was not insisting on, and was therefore giving up, some right.” Id.

Plaintiff’s argument, however, is untenable. Even assuming that Michigan law permits parties to orally modify a waiver and release, 8 the most Plaintiff has alleged is that Defendant’s actions modified the provision prohibiting Plaintiff from diving into the mud pit head first. Defendant’s actions cannot be interpreted, as pled by Plaintiff, as an agreement to modify the Waiver such that Plaintiff could hold Defendant liable for negligence due to injuries [**26] arising out of his participation in the Warrior Dash. Therefore, the Waiver bars Plaintiff’s negligence claim.

8 Neither Plaintiff nor Defendant briefed this issue. The Court also notes that the Waiver does not include an integration clause.

[*778] C. Plaintiff’s gross negligence (Count II) and willful and wanton misconduct (Count III) claims9

9 These claims are not within the Waiver’s scope as “a party may not insulate himself against liability for gross negligence or wilful and wanton misconduct.” Lamp v. Reynolds, 249 Mich. App. 591, 594, 645 N.W.2d 311 (2002).

1. Plaintiff has stated a claim for gross negligence

Gross negligence is “conduct so reckless as to demonstrate a substantial lack of concern for whether injury results.” M.C.L. § 600.2945(d); Xu, 257 Mich. App. at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.” Xu, 257 Mich. App. at 271. Taking Plaintiff’s allegations as true, Plaintiff’s gross negligence count states a claim for relief. As Plaintiff emphasizes, Defendant not only made participants acknowledge that the Warrior Dash is a “hazardous” activity and that it presents “extreme obstacles,” it expressly enumerated rules regarding how participants [**27] were to enter the mud pit without doing so for other obstacles. Simply, Plaintiff has adequately alleged that Defendant was aware of the dangers presented by the obstacles throughout the Warrior Dash and especially those presented by diving headfirst into the mud pit. Despite this awareness, it is plausible that the act of encouraging Plaintiff — and other participants — to dive into the mud pit head first was so reckless to demonstrate a substantial lack of concern for whether injury would result. Cf. Kahn v. East Side Union High Sch. Dist., 31 Cal. 4th 990, 1012-13, 4 Cal. Rptr. 3d 103, 75 P.3d 30 (2003) (finding issue of fact regarding swimming coach’s recklessness where a student broke her neck after diving into shallow water after the coach, among other things, allegedly “ignored her overwhelming fears and made a last-minute demand that she dive during competition, in breach of a previous promise that she would not be required to dive”); Falgoust v. Richardson Indus., Inc., 552 So. 2d 1348 (La. Ct. App. 1989) (affirming apportionment of fault to pool owner who “not only failed to warn or reprimand plaintiff [for diving into a non-diving pool], but [who also] encouraged diving by doing it himself”).

This is therefore [**28] distinguishable from the case relied upon by Defendant where the plaintiff just alleged that the defendant “acted in a grossly negligent manner.” See Thomas v. Rijos, 780 F. Supp. 2d 376, 380 (D.V.I. 2011). Moreover, that “there are no specific allegations that [Defendant] knew when Plaintiff approached the mud pit that he would dive into it or that he would be injured,” as Defendant asserts (Def’s Br., Dkt. # 4, at 19), is irrelevant to the present inquiry. Defendant’s knowledge of Plaintiff’s intent before he dove into the mud pit is immaterial as to whether the act of encouraging Plaintiff to dive head first demonstrated a substantial lack of concern for whether injury would result. 10

10 Defendant urges this Court to “take into account the undisputed fact that Plaintiff expressly acknowledged the danger prior to encountering it when he signed the Waiver . . . and was specifically instructed not to ‘dive or enter the mud pit head first.'” (Def’s Br., Dkt. # 4, at 19). Such an argument has no bearing on whether Defendant demonstrated a substantial lack of concern for whether an injury results with respect to Plaintiff’s claim that Defendant encouraged Plaintiff to dive head first into [**29] the mud pit. This is not to say that Defendant’s argument might not have some merit down the road as, for example, Michigan law requires the allocation of damages “in direct proportion to the person’s percentage of fault.” M.C.L. § 600.2957(1).

[*779] In sum, Plaintiff has stated a claim for gross negligence.

2. Plaintiff has stated a claim for willful and wanton misconduct

Willful and wanton misconduct is separate and distinct from gross negligence. Xu, 257 Mich. App. at 269 n.3 (citing Jennings v. Southwood, 446 Mich. 125, 138, 521 N.W.2d 230 (1994)); Burnett v. City of Adrian, 414 Mich. 448, 462, 326 N.W.2d 810 (1982) (Moody, J., concurring) (“[W]ilful and wanton misconduct . . . [is] qualitatively different from and more blameworthy than ordinary, or even gross, negligence.”). The elements of a willful and wanton misconduct claim are: “(1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous [**30] to another.” Miller v. Bock, 223 Mich. App. 159, 166, 567 N.W.2d 253 (1997) (citing Jennings, 446 Mich. at 137). Michigan’s Supreme Court has clarified that “willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not . . . a high degree of carelessness.” Jennings, 446 Mich. at 138 (1994) (emphasis omitted). It is, therefore, “in the same class as intentional wrongdoing.” Boumelhem v. Bic Corp., 211 Mich. App. 175, 185, 535 N.W.2d 574 (1995).

The seminal Michigan case on point with respect to willful and wanton misconduct is Burnett v. City of Adrian. In that case, the City of Adrian created Lake Adrian to use as a reservoir for its water treatment facilities. 414 Mich. at 458. According to the plaintiffs’ complaint, a 14-year old boy drowned after walking off the edge of a submerged structure that the City of Adrian failed to destroy or level when it created the lake. Id. The boy drowned after being swept away by “an unnatural current” created by the submerged structure. Id. Finally, the complaint alleged that “that the city [**31] knew that the structure existed from maps at the time of flooding and from the fact that the structure is visible when the water level is low; that the city knew or had reason to know of the potential harm created for swimmers, including children, who used the area; and that it failed to avert the danger by destroying the structure, fencing the lake, or posting warnings.” Id. at 458-59. Taking these allegations as true, the Michigan Supreme Court found that the plaintiffs “barely” asserted enough facts to make out the claim that the City of Adrian “was indifferent to the likelihood that catastrophe would come to a member of the public using the lake, an indifference essentially equivalent to a willingness that it occur.” Id. at 456.

Applying this standard, it is plausible — though barely — that Defendant’s actions amounted to willful and wanton misconduct. The Michigan Supreme Court has often noted that “[i]t is most difficult to determine, in a particular case, where negligence ends and wilful and wanton begins.” Id. at 477 (Moody, J, concurring) (citing Goss v. Overton, 266 Mich. 62, 253 N.W. 217 (1934) and Finkler v. Zimmer, 258 Mich. 336, 241 N.W. 851 (1932)). “This caution is appropriate in the case at hand, [**32] because the [gross] negligence claim stands.” Bondie v. BIC Corp., 739 F. Supp. 346, 352 [*780] (E.D. Mich. 1990). Here, a reasonable jury might conclude that the act of encouraging participants to jump head first into the mud pit despite knowing the risks to the contrary — at the end of a grueling physical endurance challenge when participants are likely to be physically and mentally exhausted — could be interpreted as such “indifferen[ce] to the likelihood that catastrophe would come to a [race participant.]” Burnett, 414 Mich. at 456. The Court reaches this conclusion with some significant reservation as to whether discovery will produce such facts. However, giving Plaintiff the benefit of every doubt and knowing that he need only “nudge[ his] claims across the line from conceivable to plausible” in order to survive a motion to dismiss under Rule 12(b)(6), Twombly, 550 U.S. at 570, it seems appropriate here to allow Plaintiff the opportunity to try to develop his case. This is particularly so given that the facts set forth in Burnett also “barely” stated a claim and that Plaintiff’s gross negligence claim also survives. Accordingly, Plaintiff has pled enough facts sufficient to plausibly [**33] state a claim for willful and wanton misconduct.

IV. CONCLUSION

For all of the foregoing reasons,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (Dkt. # 4) is partially granted. Accordingly, the Court dismisses Plaintiff’s Count I (negligence) with prejudice.

IT IS SO ORDERED.

Dated: October 22, 2013

/s/ Gerald E. Rosen

GERALD E. ROSEN

CHIEF, U.S. DISTRICT COURT