Ritchie-Gamester v. City of Berkley, Docket No. 109633., Calendar No. 3.

• Decision Date: 30 July 1999
• Docket Number: Docket No. 109633., Calendar No. 3.
• Citation: 461 Mich. 73,597 N.W.2d 517
• Parties: Jill RITCHIE-GAMESTER, Plaintiff-Appellee, v. The CITY OF BERKLEY and D. Hendricks, Defendants/Third-Party Plaintiffs, and Halley Mann and Douglas K. Mann II, as Guardian Ad Litem for Halley Mann, Defendants/Third-Party Defendants-Appellants.
• Court: Michigan Supreme Court

597 N.W.2d 517

461 Mich. 73

Jill RITCHIE-GAMESTER, Plaintiff-Appellee, v. The CITY OF BERKLEY and D. Hendricks, Defendants/Third-Party Plaintiffs, and Halley Mann and Douglas K. Mann II, as Guardian Ad Litem for Halley Mann, Defendants/Third-Party Defendants-Appellants.

Docket No. 109633., Calendar No. 3.

Supreme Court of Michigan.

Argued March 9, 1999.

Decided July 30, 1999.

Schreier & Weiss, P.C. (by Sherwin Schreier, Mark Schreier, and Alyce M. Haas), Royal Oak, for plaintiff-appellee.

Becker, Lanctot, McCutcheon, Schoolmaster, Taylor & Hom (by Sarah N. Wildgen), Bloomfield Hills; Gross, Nemeth & Silverman, P.L.C., of counsel (by Mary T. Nemeth), Detroit, for defendants-appellants.

Fraser, Trebilcock, Davis & Foster, P.C. (by Mark A. Bush), Lansing, for Michigan Defense Trial Counsel, Inc.

Opinion

YOUNG, J.

We granted leave in this case to consider the appropriate standard of care for those involved in recreational activities. We conclude that coparticipants in recreational activities owe each other a duty not to act recklessly. Because the trial court properly concluded that plaintiff could not show that defendant violated this standard, we reverse the Court of Appeals and reinstate the trial court's grant of summary disposition for defendant.

I Facts and Procedural Background

This case comes to us after a grant of summary disposition for defendant pursuant to MCR 2.116(C)(10), and therefore we must view the facts in the light most favorable to the plaintiff.¹ According to plaintiff, she was skating at the Berkley Ice Arena during an "open skating" period when defendant,² then twelve years old, ran into her, knocking her down and causing serious injury to her knee. Plaintiff alleged in her complaint that defendant was skating backwards in a "careless, reckless, and negligent manner" at the time of the collision. In Oakland Circuit Court, plaintiff sued defendant Halley Mann, the city of Berkley (the owner of the rink), and an ice arena employee. The City of Berkley and the ice arena employee were eventually dismissed with prejudice by stipulation of the parties. Mann moved for summary disposition pursuant to MCR 2.116(C)(10) on the grounds that "no negligent acts were carried out by the minor defendant," and that Mann's "touching of the Plaintiff while skating is foreseeable when skating at an ice arena with a number of other skaters as is to be expected." The trial court granted summary disposition for defendant, finding that an ice rink "is inherently dangerous," and that "defendant's actions were not contrary to the rules governing skating." Plaintiff appealed, and the Court of Appeals reversed, applying an "ordinary care" standard and finding a genuine issue of material fact regarding whether defendant was negligent.

For purposes of appeal, defendant admits that there is a question of fact regarding whether her conduct was negligent. Similarly, plaintiff has admitted that defendant's conduct did not rise to the level of recklessness. Thus, the only question before this Court is which standard governs this case: If it is ordinary negligence, we must affirm the Court of Appeals and remand for trial; if it is recklessness, we must reverse the Court of Appeals and reinstate the trial court's grant of summary disposition for defendant.

II Standard of Review

MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. In deciding a motion pursuant to subrule (C)(10), the trial court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence in the light most favorable to the nonmoving party to determine whether a genuine issue of any material fact exists to warrant a trial. We review the trial court's decision de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998); Chandler v. Dowell Schlumberger, Inc., 456 Mich. 395, 397, 572 N.W.2d 210 (1998).

III The Current State of the Law

Before we begin our review of the law in this area, we must recognize the limitations of the scope of the case before us. First, there is no allegation that defendant intended the contact with plaintiff, or that she intended plaintiff's injuries. Second, we are not asked to consider the liability of the owner or operator of the ice rink. Thus, our analysis is limited to a determination of the proper standard of care among coparticipants for unintentional conduct in recreational activities.

A. Michigan Law

We begin by reviewing the current state of Michigan law regarding the appropriate standard of care in the recreational activity context. In one of our older cases, Williams v. Wood, 260 Mich. 322, 244 N.W. 490 (1932), the plaintiff was injured while fishing. Apparently, the defendant tried to cast but instead hit the plaintiff in the head with the end of his rod, and, in so doing lodged a fish-hook in the plaintiff's eye. The Court reviewed a number of earlier cases from Michigan and other jurisdictions dealing with various outdoor sports, and eventually concluded that the defendant's liability was a question of "ordinary care":

The general rule that may be deduced from the cases hereinbefore cited is that certain risks of accident attend all outdoor sports and recovery may be had only if an injury is the result of negligence that could and should have been avoided by the use of ordinary care. [Id. at 327, 244 N.W. 490.]

We note that the Court did not explain the relationship between the risks that "attend all outdoor sports" and a participant's duty to coparticipants.

This Court visited a related issue in Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965). In Felgner, one duck hunter shot another accidentally. The injured hunter sued the shooter for negligence. At trial, the defendant requested that the jury be instructed regarding "assumption of risk." Id. at 29, 133 N.W.2d 136. The defendant argued that, by engaging in the activity of hunting, the plaintiff had assumed the risk of being shot accidentally and, therefore, that the defendant should not be held liable for the plaintiff's injuries. The trial court refused to so instruct the jury, and the defendant appealed. This Court then held that the "assumption of risk" doctrine did not apply in most negligence actions, concluding instead that it should only be applied in cases in which an employment relationship existed between the parties. Id. at 55-56, 133 N.W.2d 136. Importantly, before Felgner, the assumption of risk doctrine was available to defendants in ordinary negligence actions. Waltanen v. Wiitala, 361 Mich. 504, 105 N.W.2d 400 (1960). After Felgner abolished assumption of the risk in this context, some of the published cases began to move away from the "ordinary care" standard.

In Overall v. Kadella, 138 Mich.App. 351, 361 N.W.2d 352 (1984), on which the trial court relied, the plaintiff was injured when the defendant struck him during a fight that occurred after an amateur hockey game. The defendant asserted that participants in a hockey game should not be able to sue for injuries incurred during the game, arguing volenti non fit injuria.³ The Court rejected this argument, concluding:

Participation in a game involves a manifestation of consent to those bodily contacts which are permitted by the rules of the game. Restatement Torts, 2d, § 50, comment b. However, there is general agreement that an intentional act causing injury, which goes beyond what is ordinarily permissible, is an assault and battery for which recovery may be had. 4 Am.Jur.2d, Amusements and Exhibitions, § 86, p. 211. [Id. at 357, 361 N.W.2d 352.]

Defendant cites Overall for the proposition that a plaintiff involved in a sport may not sue for injuries caused by conduct that is merely negligent. While some of the language in Overall tends to support defendant's position, Overall involved an intentional act, and, to the extent it suggested a standard for nonintentional acts, it did so only in dicta.

The dicta from Overall became a holding in Higgins v. Pfeiffer, 215 Mich.App. 423, 546 N.W.2d 645 (1996). The plaintiff in Higgins was injured by an errant baseball. Before a game, a pitcher and catcher on the plaintiff's team were warming up by throwing a baseball back and forth. The plaintiff was sitting in the dugout, and the pitcher was throwing toward the dugout. On one particular throw, the ball sailed over the catcher's head and struck the plaintiff in the eye. The plaintiff sued, and the trial court granted summary disposition for the coach, the pitcher, and the catcher. The Court of Appeals affirmed in a two-to-one decision, with the majority concluding that a participant in a sporting activity "consent[s] to the risk of injury inherent in the contest...." Id. at 425, 546 N.W.2d 645.⁴

Another Court of Appeals case, decided only weeks before Higgins, took a different tack. In Schmidt v. Youngs, 215 Mich.App. 222, 544 N.W.2d 743 (1996), the plaintiff was injured when he was struck by a golf ball. Contrary to the custom of staying behind the ball of the person who is about to hit, the plaintiff had positioned himself some thirty yards in front and to the right of the point where defendant was to play his ball. The defendant shanked the ball and hit the plaintiff. The Court of Appeals affirmed summary disposition for the defendant, quoting Am. Jur. 2d:

"A person who engages in the game of golf is not an insurer of the safety of others, and he is only required to exercise ordinary care for the safety of persons reasonably within the range of danger.

"Generally, one who is about to strike a golf ball must, in the exercise of ordinary care, give an adequate and timely notice to those who are unaware of his intention to play and who may be endangered by the play. Conversely, there is no duty to give advance warning to persons who are on contiguous holes or fairways, and not in the line of play, if danger to them is not reasonably to be anticipated. Also, where the person injured was in a place where

...