Don’t charge for your backyard BBQs and your state Recreational Use Statute probably applies
Posted: June 22, 2015 Filed under: Michigan | Tags: Backyard, Land Skis, Michigan, Recreational Use Statute Leave a commentIt 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.
What do you think? Leave a comment.
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Winiecki v. Wolf, 147 Mich. App. 742; 383 N.W.2d 119; 1985 Mich. App. LEXIS 3127
Posted: June 19, 2015 Filed under: Legal Case, Michigan, Skiing / Snow Boarding | Tags: Backyard, Land Skis, Michigan, Recreational Use Statute Leave a commentWiniecki 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.
Recreation Law 