Universal Gym Equipment, Inc. v Vic Tanny International, Inc., 207 Mich. App. 364; 526 N.W.2d 5; 1994 Mich. App. LEXIS 443
Posted: January 24, 2011 Filed under: Health Club, Legal Case, Michigan, Release (pre-injury contract not to sue) | Tags: Excercise Equipment, Excercise Machine, Exculpatory Agreement, Gym, Health club, Release Leave a commentUniversal Gym Equipment, Inc. v Vic Tanny International, Inc., 207 Mich. App. 364; 526 N.W.2d 5; 1994 Mich. App. LEXIS 443
Universal Gym Equipment, Inc., Plaintiff-Appellant, v Vic Tanny International, Inc., and Vic Tanny of Greater Michigan, inc., Defendants-Appellees.
No. 157313
COURT OF APPEALS OF MICHIGAN
207 Mich. App. 364; 526 N.W.2d 5; 1994 Mich. App. LEXIS 443
May 18, 1994, Submitted
November 7, 1994, Decided
SUBSEQUENT HISTORY: [***1] Opinion On Rehearing April 3, 1995, Reported at: 1995 Mich. App. LEXIS 146.
DISPOSITION: Affirmed in part, reversed in part, and remanded.
COUNSEL: Barbier & Barbier, P.C. (by Ralph W. Barbier, Jr.), for the plaintiff.
Petersmarck, Callahan, Bauer & Maxwell, P.C. (by Richard W. West), for the defendants.
JUDGES: Before: Michael J. Kelly, P.J., and Corrigan and C.D. Corwin, * JJ.
* Circuit judge, sitting on the Court of Appeals by assignment.
OPINION BY: MICHAEL J. KELLY
OPINION
[*366] [**6] MICHAEL J. KELLY, P.J.
Plaintiff appeals as of right a circuit court order granting defendants’ motion for summary disposition under MCR 2.116(C)(7) and (8) and dismissing plaintiff’s complaint for contribution and indemnification following settlement of an underlying suit against plaintiff by a third party. We affirm in part, reverse in part, and remand.
I
On March 13, 1990, Catherine Ostroski filed suit against plaintiff Universal Gym Equipment, Inc., after she was injured at a Vic Tanny health club while using an exercise machine manufactured by Universal. Ostroski alleged that Universal was at fault. Because of a release [***2] provision in her health club membership contract, Ostroski did not name Vic Tanny as a defendant. However, Vic Tanny was aware of the proceedings and was requested to participate in settlement negotiations. On November 4, 1991, Ostroski reached a settlement agreement with Universal for $ 225,000.
On July 1, 1991, Universal initiated separate proceedings in a complaint against Vic Tanny alleging that Vic Tanny was liable for failure to maintain safe premises and had an obligation to indemnify against or to contribute toward any settlement between Universal and Ostroski. Universal filed an amended complaint after settlement with Ostroski. On July 6, 1992, Vic Tanny filed a motion for summary disposition, which the circuit court granted on September 15, 1992, on the basis that Vic Tanny could not be liable for contribution [*367] or indemnification where it had a valid defense under the release provision.
II
Universal first argues that the circuit court erred in granting summary disposition of its contribution claim because the release provision in Ostroski’s membership contract was unenforceable as against public policy. Alternatively, Universal contends that any defense provided [***3] by the release clause in an action between Vic Tanny and Ostroski was insufficient to bar recovery by Universal in a separate action for contribution against Vic Tanny.
A
With respect to thefirst argument, Universal now concedes that the release clause is enforceable in cases of ordinary negligence in light of this Court’s recent decision in Skotak v Vic Tanny Int’l, Inc, [**7] 203 Mich. App. 616; 513 N.W.2d 428 (1994). There, the Court upheld the validity of an identical clause, recognizing that [HN1] “[i]t is not contrary to this state’s public policy for a party to contract against liability for damages caused by its own ordinary negligence.” Id. at 617-618. The Court also found that the release provision “clearly expresses [Vic Tanny’s] intention to disclaim liability for all negligence, including its own.” Id. at 619.
The Skotak Court did not address the enforceability of the release clause with respect to a claim of gross negligence. Universal argues that a preinjury release provision absolving a party from liability for grossly negligent conduct [***4] violates Michigan public policy. We agree. See Klann v Hess Cartage Co, 50 Mich. App. 703, 706; 214 N.W.2d 63 [*368] (1973); Island Creek Coal Co v Lake Shore, Inc, 692 F. Supp. 629, 633(WD Va, 1988) (applying Michigan law). See also Sommer v Federal Signal Corp, 79 N.Y.2d 540, 554; 583 N.Y.S.2d 957; 593 N.E.2d 1365 (1992). Universal claims that Vic Tanny was grossly negligent in failing to maintain the exercise equipment and to train its employees and members regarding proper use of the equipment. Although Universal’s original complaint did not sound in gross negligence, it filed a motion for a second amended complaint that did include allegations of gross negligence. The trial court denied the motion, but Vic Tanny’s response to the motion and the order denying the motion are missing from the record. Because motions to amend a complaint are accorded great liberality, see MCR 2.118, and because the grounds for the trial court’s denial of the motion in this case remain a mystery, we reverse the order of denial and remand for a new hearing on the motion to file a second amended [***5] complaint. If the trial court grants the motion it shall allow further proceedings on the claim of gross negligence. If it denies the motion it shall specify the reasons and grounds for the denial.
B
The issue still remaining is whether Vic Tanny may invoke the release provision as a defense against Universal’s contribution claim if its conduct amounted to ordinary negligence.
Because this is an issue of first impression in Michigan, plaintiff relies in part on the opinion of the New York Court of Appeals in Sommer, supra, which found a similar release clause wholly unenforceable against a third-party contribution claimant. We consider the analysis in Sommer inapposite [*369] because we are constrained by the Michigan contribution statute, MCL 600.2925a et seq.; MSA 27A.2925(1) et seq., to reach a different result.
The Sommer court addressed the enforceability of an exculpatory clause in a contract between a fire alarm monitoring service and its customer in a contribution action against the monitoring service by third parties. Although the Court found the release clause violative of public policy only in cases of [***6] gross negligence, it went on to hold that the provision did not provide a defense to the contribution claim even in cases of ordinary negligence:
In contribution cases, we have drawn a distinction between the absence of liability to an injured party, and the absence of a duty. Often, the absence of direct liability to plaintiff is merely the result of a special defense, such as the Statute of Limitations or the exclusivity of workers’ compensation, and not because defendant was free of fault. In such cases, we have held that codefendants may seek contribution from the joint wrongdoer, despite the wrongdoer’s own defense to plaintiff’s claim. This principle is fully in accord with the rationale of Dole [v Dow, 30 N.Y.2d 143; 331 N.Y.S.2d 382; 282 N.E.2d 288 (1972)], which promotes equitable distribution of the loss in proportion to actual fault. [79 N.Y.2d at 558 (Citations omitted; emphasis in original.]
See also Moyses v Spartan Asphalt Paving Co, 383 Mich. 314; 174 N.W.2d 797 (1970); Caldwell v Fox, 394 Mich. 401, 419-420; 231 N.W.2d 46 (1975) [***7] (noting that Moyses “returned the doctrine of contribution among non-intentional wrongdoers to the original equitable rules”).
[**8] The Sommer court further explained that the defendant’s exculpatory provision in that case was “akin to a special defense that does not affect the [*370] codefendants’ ability to obtain contribution.” 79 N.Y.2d 558.
. . . Although [the defendant’s] direct liability to [the plaintiff in the underlying action] (by virtue of the exculpatory clause) is triggered only upon gross negligence, its duty is to avoid ordinary negligence. Upon breach of that duty, fairness requires that [the defendant] contribute to the judgment in proportion to its culpability. [Id. (Emphasis in original.)]
Perhaps most persuasive was the court’s observation that “it would be patently unfair to abrogate the [codefendants’] right to contribution based on an exculpatory clause to which they were not a party.” Id. In this case, Universal was not a party to the membership agreement between Vic Tanny and Ostroski. By asserting the release provision as a defense to the contribution claim, Vic Tanny is able to shift all claims [***8] to Universal without its prior knowledge or consent. 1
1 The effect on Vic Tanny’s insurability for such risks is not before us, but certainly an underwriter would weigh these risks in estimating premiums.
Nonetheless, Vic Tanny contends that the language of the contribution statute, enacted after Moyses, supra, dictates a different result from that which we would reach under the rationale of Sommer. Reluctantly, we agree.
[HN2] MCL 600.2925a; MSA 27A.2925(1) provides in pertinent part:
(3) A tort-feasor who enters into a settlement agreement with a claimant is not entitled to recover contribution from another tort-feasor if any of the following circumstances exist:
(a) The liability of the contributee for the injury or wrongful death is not extinguished by the settlement.
[*371] (b) A reasonable effort was not made to notify the contributee of the pendency of [***9] the settlement negotiations.
(c) The contributee was not given a reasonable opportunity to participate in the settlement negotiations.
(d) The settlement was not made in good faith.
(4) In an action to recover contribution commenced by a tort-feasor who has entered into a settlement, the defendant may assert the defenses set forth in subsection (3) and any other defense he may have to his alleged liability for such injury or wrongful death. [Emphasis added.]
Vic Tanny contends that the release provision qualifies as “any other defense,” thereby exonerating it from liability for contribution. We agree that the plain language of the statute cannot be read any other way. The reference to a defendant’s “alleged liability for such injury or wrongful death” clearly refers to liability to the injured party. The statute allows the defendant to apply “any” defense available against such liability to the contribution claim. [HN3] Where the language of a statute is clear, the Legislature must have intended the meaning plainly expressed, and the statute must be enforced as written. Gebhardt v O’Rourke, 444 Mich. 535, 541-542; [***10] 510 N.W.2d 900 (1994). In this case, the release clause effectively provides Vic Tanny with a defense against liability to Ostroski if its conduct constituted ordinary negligence.
Accordingly, while we remand for further proceedings, we conclude that Vic Tanny may be liable for contribution only for gross negligence.
III
Universal also argues that summary disposition [*372] was improper with respect to its indemnification claim. We disagree.
In Williams v Litton Systems, Inc, 433 Mich 755, 760;449 N.W.2d 669 (1989), the Supreme Court held that [HN4] an action for indemnification can be maintained only on the basis of an express contract or, in the case of common-law or implied contractual indemnification, by a party who is free from negligence or fault. In addition, where the complaint in the underlying action does not contain allegations of derivative or vicarious liability, a claim of implied indemnification is precluded. Employers Mutual Casualty [**9] Co v Petroleum Equipment, Inc, 190 Mich. App. 57, 65-66; [***11] 475 N.W.2d 418 (1991); Hadley v Trio Tool Co, 143 Mich. App. 319, 331; 372 N.W.2d 537 (1985).
Universal’s indemnification claim is not based on an express contractual agreement. Further, Ostroski’s complaint in the underlying action alleged active negligence on the part of Universal. Universal argues that, if the matter had proceeded to trial, the evidence would have shown that Vic Tanny improperly maintained its facilities and failed to apply a warning sticker. [HN5] Where, as here, there are no allegations of vicarious liability and the partyseeking indemnification disputes its own active negligence, it must do so against the plaintiff in the underlying action. See Gruett v Total Petroleum, Inc, 182 Mich. App. 301, 307; 451 N.W.2d 608 (1990), rev’d on other grounds 437 Mich. 876, 463 N.W.2d 711 (1990). Accordingly, the circuit court properly granted Vic Tanny’s motion for summary disposition of the indemnification claim.
Affirmed in part, reversed in part, and remanded for proceedings consistent with [***12] this opinion. We do not retain jurisdiction if the motion to file a second amended complaint is granted. We do retain jurisdiction if it is denied.
/s/ Michael J. Kelly
/s/ Maura D. Corrigan
/s/ Charles D. Corwin
McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
Posted: December 27, 2010 Filed under: Cycling, Legal Case, Michigan, Release (pre-injury contract not to sue) | Tags: biking, Cycling, Day Care, Minor, Release, School Leave a commentMcPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
Scott Kondrad, a minor, by and through Shari McPhail as next friend, Plaintiff and Appellant v. Bismarck Park District, Defendant and Appellee
No. 20020196
Supreme Court of North Dakota
2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3
January 17, 2003, Filed
Prior History: [***1] Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
Disposition: AFFIRMED.
Counsel: Michael Ray Hoffman, Bismarck, N.D., for plaintiff and appellant.
Randall J. Bakke, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellee.
Judges: Opinion of the Court by Maring, Justice. Mary Muehlen Maring, William A.
Neumann, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.
Opinion By: Mary Muehlen Maring
Opinion
[**412] Maring, Justice.
[*P1] Scott Kondrad, a minor, by and through his mother, Shari McPhail, as next friend, appealed from a summary judgment dismissing his action for damages against the Bismarck Park District for injuries suffered in a bicycle accident.
We hold a waiver and release signed by McPhail exonerates the Park District for its alleged negligence in this case, and we affirm.
I
[*P2] The bicycle accident occurred on September 9, 1999, at the Pioneer Elementary School while Kondrad was [***2] participating in BLAST, an after-school care program operated by the Park District. Kondrad fell on the school grounds while riding a bicycle owned by a child who was not part of the BLAST program. Kondrad injured his arm in the fall, and McPhail subsequently sued the Park District for damages on Kondrad’s behalf, asserting Kondrad’s injuries were the result of the Park District’s negligent supervision of the children in the BLAST program. The Park District moved for a summary judgment, claiming McPhail had released the Park District from liability for the accident.
The district court construed the waiver and release signed by McPhail, determined it exonerated the Park District from liability, and granted the Park District’s motion for dismissal of the case.
II
[*P3] On appeal, Kondrad asserts the district court erred in granting the summary judgment dismissal and in concluding that the waiver and release signed by McPhail exonerated the Park District from liability for its alleged negligence.
[*P4] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to [***3] the nonmoving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Jose v. Norwest Bank, 1999 ND 175, P7, 599 N.W.2d 293. Whether the district court properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, P6, 615 N.W.2d 160. On appeal, we review the evidence in the light most favorable to the party opposing the motion for summary judgment, giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence. Olander [**413] Contracting Co. v. Gail Wachter Invs., 2002 ND 65, P9, 643 N.W.2d 29.
[*P5] Resolution of this appeal requires us to interpret the “Parent Agreement” signed by McPhail when she enrolled Kondrad in the BLAST program, which included the following waiver and release language:
I recognize and acknowledge that there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of [***4] severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ward on account of my participation of my child/ward in this program.
Kondrad argues this language must be interpreted as exonerating the Park District from liability for damages only as to injuries sustained during “activities associated with” the BLAST program. The Park District has conceded that riding a bicycle was not an activity associated with the program. Kondrad asserts the release does not, therefore, exonerate the Park District from liability if its negligence resulted in Kondrad incurring injuries while riding the bicycle. The Park District asserts the waiver is unambiguous and released the Park District from liability for any and all injuries sustained by Kondrad while participating in the BLAST program. The Park District argues the waiver and release exonerated it from [***5] liability for negligence resulting in injury or damages to Kondrad while participating in the program irrespective of whether, at the time of the injury, Kondrad was involved in a planned activity associated with the program.
[*P6] Generally, the law does not favor contracts exonerating parties from liability for their conduct. Reed v. Univ. of North Dakota, 1999 ND 25, P22, 589 N.W.2d 880. However, the parties are bound by clear and unambiguous language evidencing an intent to extinguish liability, even though exculpatory clauses are construed against the benefitted party. Id. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Meide v. Stenehjem ex rel. State, 2002 ND 128, P7, 649 N.W.2d 532. The construction of a written contract to determine its legal effect is a question of law for the court to decide, and, on appeal, this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation of it. Egeland v. Continental Res., Inc., 2000 ND 169, P10, 616 N.W.2d 861. [***6] The issue whether a contract is ambiguous is a question of law. Lenthe Invs., Inc. v. Serv. Oil, Inc., 2001 ND 187, P14, 636 N.W.2d 189. An unambiguous contract is particularly amenable to summary judgment. Meide, 2002 ND 128, P7, 649 N.W.2d 532.
[*P7] We conclude the language of waiver and release under the agreement signed by McPhail is clear and unambiguous. We construe all provisions of a contract together to give meaning to every sentence, phrase, and word. U.S. Bank Nat’l Ass’n v. Koenig, 2002 ND 137, P9, 650 N.W.2d 820. The assumption of risk and waiver clauses are separate and distinct. Each contains a clearly expressed meaning and consequence. Under the assumption of risk clause, McPhail agreed to assume the full risk of injury and damages resulting from Kondrad participating in [**414] any activities associated with the BLAST program. In addition, under the waiver and release clause, McPhail waived and relinquished all claims against the Park District for injuries or damages incurred on account of Kondrad’s participation in the BLAST program. The language of waiver and release is not limited to only those injuries incurred [***7] while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.
[*P8] It is undisputed that Kondrad’s bicycle accident occurred on the school grounds while Kondrad was participating in the BLAST program. This is the very type of situation for which the Park District, under the release language, insulated itself from liability for alleged negligence while operating the after-school care program. Under the unambiguous language of the agreement, McPhail exonerated the Park District from liability for injury and damages incurred by Kondrad while participating in the program and caused by the alleged negligence of the Park District. 1
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -1
Under N.D.C.C. § 9-08-02 a party is precluded from contractually exonerating itself from liability for willful acts. See Reed v. Univ. of North Dakota, 1999 ND 25, P22 n.4, 589 N.W.2d 880. The release in this case is not specifically limited to exonerating the Park District from liability for only negligent conduct.
However, Kondrad’s claim against the Park District is based on negligence, and he has not argued the release is invalid because it purports to exonerate the Park District from liability for intentional or willful acts. We do not, therefore, address that issue in this opinion.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
[***8] III
[*P9] We hold the Parent Agreement signed by McPhail clearly and unambiguously exonerates the Park District for injuries sustained by Kondrad while participating in the BLAST program and which were allegedly caused by the negligent conduct of the Park District. We further hold, therefore, the district court did not err in granting summary judgment dismissing Kondrad’s action against the Park District, and we affirm.
[*P10] Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
Carol Ronning Kapsner
Gerald W. VandeWalle, C.J.
Land Owner of cycling track not liable for those dangers you can see.
Posted: December 20, 2010 Filed under: Assumption of the Risk, Cycling, Michigan | Tags: BMX, BMX racer, dirt track, Licensee, Michigan, Open and Obvious, Premises Liability, USA Cycling Leave a commentCottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745
In this Federal District Court case from Michigan, the court discusses the open and obvious rule applied to people on another’s land. In this case, the plaintiff entered an unfinished BMX or dirt bike track being built by USA Cycling, Inc., and was injured in loose dirt. Because the condition of the track was open and obvious he could not recover from the defendant.
The plaintiff was a fairly experienced BMX rider. He had seen the dirt track being built and went over to investigate. He saw construction workers as well as cyclists on the track. He rode around the track once without incident. On the second lap, he fell when he hit a rock or slipped on loose gravel hyperextended his knee, and broke his leg.
Under Michigan’s law, the plaintiff was identified as a licensee. A licensee is someone who:
…is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.
The issue is whether the danger that injured the plaintiff was hidden or open and obvious. To prove the danger that injured the plaintiff was not open and obvious the plaintiff must complete a two-step test.
- The plaintiff must prove that the defendant should have known of the potentially dangerous condition; and,
- The plaintiff did not know about the dangerous condition.
The court stated the plaintiff failed to prove the second part of the test because there is no requirement to safeguard licensees from dangers that are open and obvious because those dangers come with their own warnings. The open and obvious test is an objective one, whether a reasonable person in the position of the plaintiff would have foreseen the danger.
Cottom, an experienced BMX cyclist, was able to inspect the track and the track conditions before his accident by watching other bikers on the track and then riding on the track once himself. A reasonable person in this position would foresee the dangers the track presented, making the condition of the track open and obvious. In fact, most Americans have ridden bicycles in their youth and know that bike riders lose control of their bikes in loose dirt or that a rock will cause a bike to lose traction and fall.
First, the unpacked, gravelly condition of the track surface did not make the likelihood of injury higher than an ordinary, complete bike track. It is just as difficult for an ordinarily prudent person to ride a bike on a race track of loose dirt without losing control of the bike or falling as it is on any other dirt track. Second, there was not a high potential for severe harm. Thousands of people ride bikes every day, and many of them fall while riding their bikes on sidewalks, bike paths, tracks, or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case.
Because the plaintiff could inspect the track himself, had seen other bikers on the track, and had ridden the track once before falling on this second lap the plaintiff had a chance to see any dangers. The danger that caused the injury, therefore, was open and obvious and the defendant did not owe any greater duty to the defendant licensee for the danger.
So?
This decision besides explaining the landowner’s duty for hidden dangers and the defense of open and obvious danger has great language in it for any cycling decision. The court sets forth facts that falling is a part of cycling. “Bumps, bruises, and scrapes or occasionally broken bones or more serious injures” are normal for bike riders. If you are a land owner, bike rental company, or cycling retailer this is important language to keep available or even incorporate into your release.
What do you think? Leave a comment.
James H. “Jim” Moss
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk
Outdoor Recreation Insurance, Risk Management, and Law
Management, and Law. To Purchase Go Here:
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
If you are interested in having me write your release, download the form and return it to me.
Connect
If you like this let your friends know or post it on FB, Twitter, or LinkedIn
Facebook Page: Outdoor Recreation & Adventure Travel Law
LinkedIn https://www.linkedin.com/in/recreationlaw/
Threads https://www.threads.net/@recreation_law
X https://twitter.com/RecreationLaw
Email: Jim@Rec-Law.US
By Recreation Law Rec-law@recreation-law.com James H. Moss
@2010-2023 Summit Magic Publishing, LLC
G-YQ06K3L262
Keywords: #recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #cycling, #BMX, #Open and Obvious, #track, #bike track, #land owner, #dangerous condition, #Michigan,
Technorati Tags: Land,Owner,dangers,Cottom,Dist,LEXIS,Federal,District,Court,Michigan,plaintiff,dirt,bike,defendant,rider,construction,workers,incident,knee,Under,licensee,person,virtue,possessor,landowner,inspection,premises,danger,requirement,licensees,warnings,accident,bikers,fact,Americans,bicycles,youth,riders,bikes,traction,injury,Second,Thousands,sidewalks,paths,Bumps,injuries,incidents,decision,rental,retailer,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,areas,negligence,Open,Obvious,whether,himself
Windows Live Tags: Land,Owner,dangers,Cottom,Dist,LEXIS,Federal,District,Court,Michigan,plaintiff,dirt,bike,defendant,rider,construction,workers,incident,knee,Under,licensee,person,virtue,possessor,landowner,inspection,premises,danger,requirement,licensees,warnings,accident,bikers,fact,Americans,bicycles,youth,riders,bikes,traction,injury,Second,Thousands,sidewalks,paths,Bumps,injuries,incidents,decision,rental,retailer,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,areas,negligence,Open,Obvious,whether,himself
WordPress Tags: Land,Owner,dangers,Cottom,Dist,LEXIS,Federal,District,Court,Michigan,plaintiff,dirt,bike,defendant,rider,construction,workers,incident,knee,Under,licensee,person,virtue,possessor,landowner,inspection,premises,danger,requirement,licensees,warnings,accident,bikers,fact,Americans,bicycles,youth,riders,bikes,traction,injury,Second,Thousands,sidewalks,paths,Bumps,injuries,incidents,decision,rental,retailer,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,areas,negligence,Open,Obvious,whether,himself
Blogger Labels: Land,Owner,dangers,Cottom,Dist,LEXIS,Federal,District,Court,Michigan,plaintiff,dirt,bike,defendant,rider,construction,workers,incident,knee,Under,licensee,person,virtue,possessor,landowner,inspection,premises,danger,requirement,licensees,warnings,accident,bikers,fact,Americans,bicycles,youth,riders,bikes,traction,injury,Second,Thousands,sidewalks,paths,Bumps,injuries,incidents,decision,rental,retailer,Leave,Recreation,Edit,Gmail,Twitter,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Keywords,Moss,James,attorney,tourism,management,Human,areas,negligence,Open,Obvious,whether,himself
Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745
Posted: December 20, 2010 Filed under: Assumption of the Risk, Cycling, Legal Case, Michigan, Mountain Biking | Tags: BMX, BMX Racing, Cycling, Gier Park, Land Owner, Michigan, Mountain biking, Premises Liability, USA Cycling Leave a commentTo Read an Analysis of this decision see
Land Owner of the cycling track is not liable for those dangers you can see.
You can’t sue for a danger that you could have seen when biking on someone’s land
Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745
Bradley J. R. Cottom and Melissa Cottom, Plaintiffs, v. USA Cycling, Inc., Defendant.
Case No. 1:01-CV-474
United States District Court for the Western District of Michigan, Southern Division
2002 U.S. Dist. LEXIS 6745
April 11, 2002, Decided
April 11, 2002, Filed
Counsel: For BRADLEY J.R. COTTOM, MELISSA COTTOM, plaintiffs: Michael J. Cronkright, Michael J. Cronkright, PC, Lansing, MI.
For USA CYCLING INC, defendant: John J. Hoffman, Thomas, DeGrood, Witenoff & Hoffman, Southfield, MI.
Judges: GORDON J. QUIST, UNITED STATES DISTRICT JUDGE.
Opinion By: GORDON J. QUIST
Opinion:
Plaintiffs, Bradley Cottom (“Cottom”) and his wife Melissa, filed this premises liability action against Defendant, USA Cycling, Inc. (“USA Cycling”), in state court after Cottom suffered injuries in a bicycling accident. USA Cycling removed the action to this Court based on diversity jurisdiction, and the matter is now before the Court on USA Cycling’s motion for summary judgment. Oral argument on the Motion was heard on April 9, 2002.
Facts
Cottom, an avid dirt bicycle rider, participated in competitive BMX bicycle racing from age 14 to 20. (Cottom Dep. at 4-5, Pl.’s Br. Resp. Ex. A.) Since that time, he has primarily restricted himself to recreational riding on streets and bike trails. n1 (Id. at 10-11, 20.) At approximately 5 p.m. on July 12, 2000, Cottom took his high performance Diamondback Reactor BMX bicycle to Gier Park in Lansing, Michigan. (Id. at 6, 15.) USA Cycling was constructing a dirt bike race track at the park, and Cottom went to investigate the progress of the track construction. (Id. at 6-7.) Cottom had been to the park approximately one month before and had seen a bulldozer working at the site. (Id. at 7-9.) At that time, he observed approximately 12 riders using the track. (Id. at 9.) When Cottom arrived at the park on July 12, he saw a bulldozer and men who appeared to be construction workers, but they were not working on the track at the time. (Id. at 47, 103.) Other people present at the park were picking up rocks and removing them from the track. (Id. at 93, 103.) There was no fence or other barricade around the track, and no warning or construction signs were posted. (Compl. PP 8-9, 19f.) Other riders were using the dirt track, and Cottom retrieved his bike from his truck in order to join them on the track. (Cottom Dep. at 26-28.) The track was dry, and it was still daylight when he began to ride. (Id. at 26.)
n1 Cottom was 36 years old at the time of his deposition in November 2001. (Cottom Dep. at 4.)
Cottom rode his bike around the track one time without incident. (Id. at 29.) Plaintiffs allege in the Complaint that Cottom stopped to discuss the track conditions with a worker at the track and that the worker assured him that the track was safe. (Compl. P 10.) Plaintiffs have not presented evidence regarding the identity of this person. It is unknown whether the person was an employee or agent of USA Cycling, a construction worker employed by an independent contractor, or merely a bystander, a passerby, or a volunteer picking up rocks. There is nothing in the record to indicate that the person had any more experience on the track or knowledge of the track conditions than Cottom had.
On his second lap around the track, Cottom was riding through a banked turn and heading toward a jump when he lost control of his bike. (Cottom Dep. at 61.) He hyperextended his knee while attempting to recover control and fell to the ground, injuring his leg. (Id. at 32-34, 40.) Cottom testified at his deposition that he was not sure exactly what caused his accident, but he surmised that his tire may have hit a rock or a rut or sank into loose, gravelly dirt. (Id. at 30-32, 92-93.) According to Cottom, his bike was functioning properly and he was “taking it easy” by traveling between 5-10 miles per hour at the time, so neither the condition of his bike nor his speed caused him to lose control. (Id. at 41, 91-92.) Cottom’s wife was present at the park at the time, but she did not see the fall. (Id. at 42.)
Cottom was taken to a hospital where he was admitted for four days. (Compl. P 13.) He fractured his lower left leg in the fall and has undergone three corrective surgeries on his leg and knee since the accident. n2 (Medical Records, Pl.’s Br. Resp. Ex. B.)
n2 The Complaint states that Cottom injured his right leg, but at his deposition, Cottom testified that it was his left leg that was injured. (Compl. PP 11, 23; Cottom Dep. at 33.) Cottom’s medical records confirm that it was his left leg that was fractured. (Medical Records, Pls.’ Br. Resp. Ex. B.)
Standard
[HN1] Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S. Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S. Ct. at 2511 (citing Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L. Ed. 867 (1872)).
[HN2] A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with “concrete evidence” that there is a genuine issue of material fact for trial. Id.; Frank v. D’Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992)(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Analysis
The parties agree that Michigan law governs the substantive issues of this case because all of the events occurred in Michigan, the forum state. (Def.’s Br. Supp. at 8-9; Pls.’ Br. Resp. at 4.) See Haque Travel Agency, Inc. v. Travel Agents Int’l, Inc., 808 F. Supp. 569, 572 (E.D. Mich. 1992).
USA Cycling makes several arguments as to why it is entitled to summary judgment. Because the Court believes that the “open and obvious” argument is dispositive, the Court will address only that argument.
USA Cycling argues that because the condition of the track was open and obvious, it did not owe Cottom a duty of protection or warning. USA Cycling notes that Cottom was able to observe the track prior to riding, that he rode around the track one time without falling, and that he was able to get a feel for the track conditions prior to his accident. Thus, according to USA Cycling, there were no hidden dangers present and it cannot be held liable for Cottom’s accident. The Court agrees.
For the purposes of this motion, the parties agree that Cottom entered USA Cycling’s premises as a licensee. (Def.’s Br. Supp. at 10; Pls.’ Br. Resp. at 8-9.) The Michigan Supreme Court has defined licensee status and explained the duty owed to a licensee by a premises owner:
[HN3] A “licensee” is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.
Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596-97, 614 N.W.2d 88, 91-92 (2000)(citation omitted).
Plaintiffs contend that USA Cycling knew of the dangers presented by an unfinished dirt track, and they submit as evidence publications from USA Cycling regarding safety guidelines and its recommendations concerning BMX track conditions that discuss the dangers of unpacked, loose dirt tracks. (Insurance Guidelines and Safety Manual, Pls.’ Br. Resp. Ex. F; Building the Track – Suggestions, Pls.’ Br. Resp. Ex. E.) Even assuming that USA Cycling knew of the dangers presented by the track at Gier Park, this assertion only gets Plaintiffs halfway over their burden of proof. In order to hold USA Cycling liable for Cottom’s accident, Plaintiffs must not only show that USA Cycling knew or should have known of the potential danger on the premises but also that Cottom did not know about it. This is because [HN4] there is no duty to take steps to safeguard licensees from conditions that are open and obvious, for “such dangers come with their own warning.” Pippin v. Atallah, 245 Mich. App. 136, 143, 626 N.W.2d 911, 914 (2001). A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.'” Abke v. Vandenberg, 239 Mich. App. 359, 361-62, 608 N.W.2d 73, 75 (2000) (per curiam) (alteration in original) (quoting Novotney v. Burger King Corp., 198 Mich. App. 470, 475, 499 N.W.2d 379, 381 (1993)). The test is an objective one, asking whether a reasonable person in the position of the plaintiff would foresee the danger. Hughes v. PMG Bldg., Inc., 227 Mich. App. 1, 11, 574 N.W.2d 691, 696 (1997).
Cottom, an experienced BMX cyclist, was able to casually inspect the track and the track conditions before his accident by watching other bikers on the track and then riding on the track once himself. A reasonable person in this position would foresee the dangers the track presented, making the condition of the track open and obvious. In fact, most Americans have ridden bicycles in their youth and know that bike riders lose control of their bikes in loose dirt or that a rock will cause a bike to tip over. Therefore, USA Cycling is absolved of potential liability unless Plaintiffs can show that the condition of the track posed “an unreasonable risk of harm.” Abke, 239 Mich. App. at 361, 608 N.W.2d at 75 (citing Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich. App. 490, 498-99, 595 N.W.2d 152, 156-57 (1999)). Michigan courts have explained that “special aspects of a condition [might] make even an open and obvious risk unreasonably dangerous.” Lugo v. Ameritech Corp., 464 Mich. 512, 517, 629 N.W.2d 384, 386 (2001). In Lugo, the Michigan Supreme Court discussed the “special aspect” exception to the open and obvious doctrine:
[HN5] With regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.
. . . .
. . . In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.
Id. at 517-19, 629 N.W.2d at 387-88. For example, a pothole in a parking lot presents an open and obvious risk for which the premises owner would not normally be liable if someone were to trip and fall because of the hole. An unguarded, 30-foot-deep pit might present an unreasonable risk, however, because of the danger of death or severe injury. Id. at 520, 629 N.W.2d at 388.
Cottom has failed to present a genuine issue of material fact about whether the unfinished condition of the track made it unreasonably dangerous. First, the unpacked, gravelly condition of the track surface did not make the likelihood of injury higher than an ordinary, complete bike track. It is just as difficult for an ordinarily prudent person to ride a bike on a race track of loose dirt without losing control of the bike or falling as it is on any other dirt track. Second, there was not a high potential for severe harm. Thousands of people ride bikes everyday, and many of them fall while riding their bikes on sidewalks, bike paths, tracks or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case. The track at Gier Park presented these same types of dangers, making it more like an ordinary pothole and less like a deep, unguarded pit. Finally, Cottom has failed to support with any evidence the allegation that an employee or agent working on the track assured him that it was safe for use. There is no indication in the record that this person was actually an employee or agent of USA Cycling rather than a passerby or bystander who came to watch people ride on the track. Moreover, there is nothing to demonstrate that he or she was any more knowledgeable about the safety of the track conditions than was Cottom. In fact, Cottom had the benefit of riding around the track one time and experiencing the track conditions firsthand, and he himself concluded that the track was suitable for riding. (Cottom Dep. at 48-49.)
USA Cycling is entitled to summary judgment because the dangers presented by the track were open and obvious and Plaintiffs have failed to show that there were special aspects of the track making it unreasonably dangerous.
Conclusion
For the foregoing reasons, the Court will grant USA Cycling’s motion for summary judgment.
An Order consistent with this Opinion will be entered.
Dated: APR 11 2002
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
ORDER
For the reasons stated in the Opinion filed this date,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (docket no. 24) is GRANTED.
This case is closed.
Dated: APR 11 2002
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
Recreation Law 