Opinion
No. 351866
12-22-2020
WENDY MCBRIDE, as Conservator of ALEXIS WASHBURN, Plaintiff-Appellant, v. BOBBY BROOKS, Defendant-Appellee, and RACHEL BEDARD, Defendant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court
LC No. 18-111895-NI Before: O'BRIEN, P.J., and M. J. KELLY and REDFORD, JJ. PER CURIAM.
In this negligence action, plaintiff challenges the trial court's order granting defendant Bobby Brooks' motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact). We affirm.
I. BACKGROUND
This case arose after eight-year-old Alexis Washburn operated Brooks' all-terrain vehicle (ATV) on Brooks' property—with Brooks' permission—and crashed it, causing injuries. At the time of the accident, Rachel Bedard was living with Brooks, and Washburn, who was friends with Bedard's daughter, was at Brooks' for a sleepover. Brooks allowed Washburn and Bedard's daughter to use the ATV, and he testified that before Washburn operated the ATV, he instructed her on how to do so. According to Brooks, he showed Washburn how to push in the gas, brake, and steer. He also told Washburn to always maintain a slow speed and that if she did not drive the ATV responsibly, he would not allow her to operate it in the future. When Washburn was injured, Brooks was not at home, but Bedard was. According to Washburn, while going up a hill on a designated path on Brooks' property, she accidentally pushed too hard on the gas, causing her to lose control of the ATV and fall off the side. The ATV then rolled and landed on Washburn's legs, causing injuries.
Plaintiff filed a complaint against Brooks and Bedard alleging negligence and improper supervision. Brooks moved for summary disposition, arguing that the recreational land use act (RUA), MCL 324.73301, barred relief because the pleaded causes of action failed to allege gross negligence or willful and wanton misconduct, and plaintiff could not establish that Brooks' conduct constituted gross negligence or willful and wanton misconduct. In response, plaintiff moved to amend her complaint to allege gross negligence and willful and wanton misconduct. After a hearing, the trial court granted Brooks' motion for summary disposition and denied plaintiff's motion to amend her complaint. This appeal followed.
II. SUMMARY DISPOSITION
Plaintiff argues that the trial court erred by granting Brooks' motion for summary disposition. We disagree.
A. STANDARD OF REVIEW
We review a trial court's ruling on a motion for summary disposition de novo. Pugno v Blue Harvest Farms LLC, 326 Mich App 1, 11; 930 NW2d 393 (2018). Though Brooks moved for summary disposition under MCR 2.116(C)(8) and (10), the trial court considered deposition testimony when granting Brooks' motion, so we consider the motion granted solely under subsection (C)(10). Summary disposition under MCR 2.116(C)(10) is appropriate when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." In reviewing a (C)(10) motion, courts are to consider the "pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Piccione v Gillette, 327 Mich App 16, 19; 932 NW2d 197 (2019) (quotation marks and citation omitted). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). To the extent that resolution of this issue requires us to interpret relevant statutes, issues of statutory interpretation are reviewed de novo. Vanalstine v Land O'Lakes Purina Feeds, LLC, 326 Mich App 641, 648; 929 NW2d 789 (2018).
B. ANALYSIS
The trial court reasoned that Brooks was entitled to summary disposition because Washburn's cause of action against Brooks was precluded by the RUA, which provides:
Except as otherwise provided in this section, a cause of action does not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross
negligence or willful and wanton misconduct of the owner, tenant, or lessee. [MCL 324.73301(1).]In other words, "an owner of land is not liable to a person who injures himself on the owner's land if that person has not paid for the use of the land and that person was using the land for a specified purpose, unless the injuries were caused by the owner's gross negligence or willful and wanton misconduct." Neal v Wilkes, 470 Mich 661, 667-668; 685 NW2d 648 (2004) (footnote omitted). The RUA "provide[s] immunity for landowners from personal-injury lawsuits by persons using their property recreationally, regardless of age, i.e., even when minors are injured." Woodman ex rel Woodman v Kera LLC, 486 Mich 228, 291; 785 NW2d 1 (2010) (opinion by MARKMAN, J.). The RUA is "a liability-limiting" rather than "a liability-imposing, act," meaning it "did not create a cause of action against landowners" but instead "eliminated [a landowner's] liability for negligence," leaving "liability only for gross negligence and wilful and wanton misconduct." Ballard v Ypsilanti Twp, 457 Mich 564, 577-578; 577 NW2d 890 (1998).
Plaintiff's complaint alleged that Brooks was liable in negligence for the injuries that Washburn suffered while riding the ATV on Brooks' property. Washburn did not pay Brooks for the use of his land, and plaintiff does not dispute that riding an ATV was a recreational activity subject to the RUA. See Neal, 470 Mich at 670-671 ("Plaintiff does not contest the fact that riding an ATV on another's land is an outdoor recreational use of another's land within the meaning of the RUA."). Therefore, plaintiff's action was subject to the RUA. Because the RUA "eliminated [a landowner's] liability for negligence," Ballard, 457 Mich at 577-578, Brooks cannot be held liable for Washburn's injuries under a negligence theory, see Neal, 470 Mich at 671.
Plaintiff argues that the RUA only applies if the complainant was on a landowner's land "for the purpose of" a recreational activity, and so it does not apply here because Washburn was on Brooks' property "for the purpose of" socializing with Bedard's daughter, not to ride the ATV. This argument was rejected by this Court in Rott v Rott, ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 347609); slip op at 4. The Rott Court explained that the "for the purpose of" language in the RUA modified "a valuable consideration," so a person need not be on the land "for the purpose of" a recreational activity but must not have paid valuable consideration "for the purpose" of a recreational activity for the RUA to apply. Id. For the reasons explained in Rott, we reject plaintiff's argument.
Plaintiff contends that even if the RUA applies, her action against Brooks should be allowed to proceed because there is a question of fact whether Brooks' conduct amounted to gross negligence or willful and wanton misconduct so as to subject Brooks to liability. We disagree.
Gross negligence is conduct that is so reckless that it demonstrates a substantial lack of concern for whether injury results. Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). The gross-negligence standard is demanding, and it suggests "almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks." Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). "It is as though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge." Id. It follows that "evidence of ordinary negligence does not create a material question of fact concerning gross negligence." Maiden v Rozwood, 461 Mich 109, 122-123; 597 NW2d 817 (1999). "Rather, a plaintiff must adduce proof of conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." Id. at 123 (quotation marks and citation omitted).
Based on the evidence presented by the parties, no reasonable juror could conclude that Brooks' conduct rose to the level of gross negligence. Brooks presented evidence that he had expressed concern for Washburn's safety by showing her how to operate the ATV, telling her to go slow, and emphasizing the importance of driving the ATV in a safe manner. Plaintiff contends that Brooks' "cursory" or "rudimentary" instructions were not enough to establish that Brooks' conduct was not grossly negligent, and that he should have done more like require Washburn to wear protective clothing or a helmet. Yet, as explained in Tarlea, 263 Mich at 90, "saying that a defendant could have taken additional precautions is insufficient to find ordinary negligence, much less recklessness." Thus, that Brooks could have done more to ensure Washburn's safety does not create a question of fact whether Brooks' conduct was grossly negligent.
The larger thrust of plaintiff's argument is that the circumstances surrounding Brooks' allowing Washburn to use the ATV—like that the ATV is intended for adults and has a top speed of 50 miles per hour or more—created a question of fact whether Brooks' conduct was grossly negligent. While the facts that plaintiff points to are certainly evidence of negligence, "evidence of ordinary negligence does not create a material question of fact concerning gross negligence." Maiden, 461 Mich at 122-123. That is, the evidence that plaintiff points to does not create a material question of fact concerning whether Brooks had a substantial lack of concern for whether Washburn was injured, particularly in light of the fact that Brooks instructed Washburn on how to operate the ATV. Based on the evidence presented, we agree with the trial court that no reasonable juror "could conclude, reasonably, that [Brooks] simply did not care about the safety or welfare of Washburn. Tarlea, 263 Mich App at 90. In other words, no reasonable juror could find that Brooks conduct was grossly negligent.
Plaintiff complains that the trial court engaged in impermissible fact-finding when it concluded that Brooks' conduct was not grossly negligent. While it is true that whether "conduct constituted gross negligence . . . is generally a question of fact," Tarlea, 263 Mich App at 88, the trial court was permitted to grant summary disposition "if, on the basis of the evidence presented, reasonable minds could not differ," Jackson v Co of Saginaw, 458 Mich 141, 146; 580 NW2d 870 (1998) (quotation marks and citation omitted). For the reasons explained, we agree with the trial court that, on the basis of the evidence presented, reasonable minds could not disagree that Brooks' conduct did not rise to the level of gross negligence.
Brooks could nonetheless be liable to plaintiff if his conduct amounted to willful and wanton misconduct, but we agree with the trial court that Brooks' conduct did not. Willful and wanton misconduct is when one's conduct demonstrates an "intent to harm or indifference to harm tantamount to a willingness that it occur." Montgomery v Dep't of Natural Resources, 172 Mich App 718, 721; 432 NW2d 414 (1988). See also Xu, 257 Mich App at 270 n 3 ("[W]illful and wanton misconduct is established 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.") (Quotation marks and citations omitted.) Plaintiff does not point to any evidence that demonstrates that Brooks intended to harm Washburn. Plaintiff instead argues that, based on the totality of the circumstances surrounding Brooks' allowing Washburn to use the ATV, a reasonable juror could conclude that Brooks was so indifferent to whether Washburn would be harmed that it was tantamount to a willingness that the harm occur. Yet the evidence that plaintiff points to is, again, evidence of ordinary negligence. Moreover, that Brooks instructed Washburn on how to operate the ATV directly undercuts any inference that Brooks was so indifferent to whether Washburn was harmed that he essentially demonstrated a willingness that the harm occur. We therefore agree with the trial court that no reasonable juror could conclude that Brooks' allowing Washburn to operate the ATV amounted to willful and wanton misconduct.
Plaintiff also argues that there was an issue of material fact as to whether Brooks's conduct constituted gross negligence because he violated MCL 324.81129 and MCL 324.81130. Assuming without deciding that Brooks violated these statutes, plaintiff's argument fails because the violation of a statutorily-imposed duty is evidence of ordinary negligence, not gross negligence. Poppen v Tovey, 256 Mich App 351, 358; 664 NW2d 269 (2003).
MCL 324.81129(5) provides, in relevant part, that "the owner or person in charge of an ATV with 4 or more wheels shall not knowingly permit the vehicle to be operated by a child less than 12 years of age unless the child is not less than 10 years of age and is on private land owned by a parent or legal guardian of the child."
MCL 324.81130(1) provides, in relevant part, that "[a] person who is under 16 years of age, before operating an ATV or ORV, shall complete an ORV safety education course approved by the department."
III. CONCLUSION
Overall, Washburn was injured on Brooks' land without paying him a valuable consideration for the purpose of operating the ATV, and plaintiff has failed to establish a question of fact whether Washburn's injuries were caused by Brooks' gross negligence or willful and wanton misconduct. Therefore, plaintiff's cause of action was foreclosed by the RUA, MCL 324.73301(1), and the trial court did not err by granting Brooks' motion for summary disposition.
Because Brooks' conduct did not amount to gross negligence or willful and wanton misconduct, plaintiff's amending of the complaint would have been futile, so the trial court did not abuse its discretion by denying plaintiff's motion to amend. See Lane v KinderCare Learning Ctrs, Inc, 231 Mich App 689, 697; 588 NW2d 715 (1998).
Plaintiff does not argue on appeal that she can still maintain a cause of action against Brooks if the RUA does not apply. Therefore, our conclusion that the RUA applies to this case ends our analysis. --------
Affirmed.
/s/ Colleen A. O'Brien
/s/ James Robert Redford