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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.

Marketing is not a way to manage risks or stop lawsuits. Marketing Makes Promises that Risk Management Must Pay For.
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


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)

 


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.


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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