Burnett v. City of Adrian

Decision Date23 November 1982
Docket NumberNo. 1,Docket No. 63981,1
Citation414 Mich. 448,326 N.W.2d 810
PartiesGloe-Etta BURNETT, as Administratrix of the Estate of Christopher Shawn Burnett, Gloe-Etta Burnett and Bradford Burnett, Individually, Plaintiffs-Appellants, v. The CITY OF ADRIAN, a Michigan Municipal Corporation, Defendant-Appellee. Calendar414 Mich. 448, 326 N.W.2d 810
CourtMichigan Supreme Court

Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C. by Kathleen L. Bogas, Detroit, for plaintiffs-appellants.

Foster, Swift, Collins & Coey, P.C. by John L. Collins, James D. Adkins, Lansing, for defendant-appellee.

RYAN, Justice.

This is an appeal from a Court of Appeals affirmance of a summary judgment dismissing the plaintiffs' case for failure to state an actionable claim under the so-called recreational use statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485. The only question before us is whether the plaintiffs have alleged facts sufficient to state a claim for gross negligence or willful and wanton misconduct. 1 Our task is thus limited because the recreational use law authorizes recovery in the circumstances of this case only if gross negligence or willful and wanton misconduct is shown.

We agree that no actionable claim for gross negligence is made out in the plaintiffs' pleadings because there is no allegation therein of the defendant's subsequent negligence. See Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923).

We also agree that the plaintiff has alleged facts sufficient, if barely so, to make out a case for willful and wanton misconduct as that concept is defined in Gibbard, supra.

This separate opinion is written however, because we do not subscribe to much of the analysis in our brother's opinion, particularly his assessment of the cases of Thone v. Nicholson, 84 Mich.App. 538, 269 N.W.2d 665 (1978), and Thomas v. Consumers Power Co., 394 Mich. 459, 231 N.W.2d 653 (1975).

The interlocutory posture of this litigation suggests that this appeal is an inappropriate opportunity to attempt to reconcile the confused and disparate pronouncements of Michigan's appellate judiciary concerning the concepts of gross negligence and willful and wanton misconduct. To accomplish that desirable task, it is necessary, we think, to disown much of what has been written in this Court and in the Court of Appeals in earlier cases, and to enunciate a simple and easily understood test defining both gross negligence and willful and wanton misconduct. The more appropriate occasion for that effort will be the time when a case is before us upon a factual record adequate to enable those who will read our pronouncement to better understand it because of the illuminating reflection of the factual and legal context in which it is said. That cannot and ought not to be done on an appeal from the grant of a motion for summary judgment for failure to plead an actionable claim under GCR 1963, 117.2(1).

Until such record is made and presented, we should be guided, indeed bound, as the lawyers before us are, by this Court's last best effort to define gross negligence and willful and wanton misconduct. That effort was last accomplished best, even if not in the context of the recreational use act, in Gibbard, supra. Gibbard is a well-reasoned case whose three-element formula for determining willful and wanton misconduct, however, is poorly stated. 2 If the three-prong test is read in the context of the instructive analysis which precedes it in Gibbard, it becomes evident that the rule of the case is that 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, as the Gibbard Court observed, a high degree of carelessness. The poorly phrased three-prong test for willful and wanton misconduct in Gibbard is cast entirely in language of ordinary negligence until, in the third element, it is said that it must be shown that an injury "is likely". It is in that concept--the notion that in the circumstances of a given case the injury is probable, or to be expected, or likely--that is found the requisite indifference to harm tantamount to a willingness that it occur, if not a specific intent that it does, which distinguishes willful and wanton misconduct from ordinary negligence.

Upon careful examination of the allegations of the plaintiffs' fourth amended complaint, conceding the truth of all the well-pleaded allegations and resolving all inferences properly to be drawn therefrom in plaintiffs' favor, we are satisfied that, on the whole, the plaintiff has alleged, if barely, facts essentially equivalent to an assertion that the City of Adrian, in its acts and omissions, was indifferent to the likelihood that catastrophe would come to a member of the public using the lake, an indifference essentially equivalent to a willingness that it occur.

We do not find the language of the three-prong test of Gibbard a satisfactory expression of the standard to be used for identifying willful and wanton misconduct, and do not think it is a faithful summarization of the analysis which it is intended to encapsulate. We would describe the test differently, but only upon a fully developed factual record.


MOODY, Justice.

Plaintiffs brought this action to recover damages from the City of Adrian for the drowning of 14-year-old Christopher Shawn Burnett in Lake Adrian. The trial court granted defendant's motion for summary judgment for failure to state a cause of action. GCR 1963, 117.2(1). The Court of Appeals affirmed.

We reverse in part. Plaintiffs have alleged sufficient facts to state the claim of "gross negligence or wilful and wanton misconduct" required to maintain an action under M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, the recreational use act. We reaffirm that a threshold test to withstand a motion for summary judgment under this statute is based on the common-law elements of wilful and wanton misconduct as first set forth by this Court in Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923).

However, we find that the trial court's grant of summary judgment with respect to plaintiffs' other claims for relief was proper. The recreational use statute, which governs this case, bars an action based solely upon attractive nuisance.


A motion for summary judgment based on GCR 1963, 117.2(1) tests the legal sufficiency of the pleadings, viewing the facts alleged in the light most favorable to the non-moving party. Therefore, in examining the pleadings in the instant case, this Court must accept as true plaintiffs' well-pleaded facts 1 and any reasonable inferences that can be drawn therefrom. Bielski v. Wolverine Ins. Co., 379 Mich. 280, 150 N.W.2d 788 (1967). Summary judgment will be affirmed only if this review indicates that plaintiffs' claim is "so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery". Crowther v. Ross Chemical & Mfg. Co., 42 Mich.App. 426, 431, 202 N.W.2d 577 (1972). Where reasonable minds can differ in resolving an issue, however, summary judgment is improper, and the question must be submitted to the jury. Kieft v. Barr, 391 Mich. 77, 214 N.W.2d 838 (1974).


Lake Adrian is an artificial body of water created by defendant City of Adrian for use as a reservoir for its water treatment facilities. Defendants acquired the flooding rights to the land underneath the lake in 1941 and shortly thereafter contracted with a land surveyor to dam and flood the area.

According to plaintiffs' fourth amended complaint, young Christopher Burnett, a non-swimmer, 2 drowned after walking off the edge of a submerged structure that defendant failed to destroy or level at the time of flooding. Plaintiffs claim that the continued existence of this structure created an unnatural current, "a sudden drop-off and downpull". This undertow swept decedent downward to his death as he unknowingly stepped off the building some 50 feet from shore. Deputy sheriffs recovered Christopher's body from a corner of the structure approximately two hours after he disappeared into the lake.

Plaintiffs allege further that the city knew that the structure existed from maps at the time of flooding and from the fact that the structure is visible when the water level is low; that the city knew or had reason to know of the potential harm created for swimmers, including children, who used the area; and that it failed to avert the danger by destroying the structure, fencing the lake, or posting warnings.

The trial judge ruled that decedent's non-paying use of the lake for swimming brought his activities under the recreational use statute. This statute provides:

"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." M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485.

Thus, to recover, plaintiffs are required to prove that defendant was guilty of "gross negligence or wilful and wanton misconduct". The trial court held that plaintiffs failed to allege sufficient facts to charge defendant with this higher standard of culpability and granted the city's motion for summary judgment on the gross negligence and wilful and wanton misconduct counts. The court also held that the recreational use statute barred any claim of attractive nuisance based on ordinary negligence. 3

In an unpublished opinion, the Court of Appeals held that a claim of...

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