Cole v. Ladbroke Racing Michigan, Inc.

• Decision Date: 26 July 2000
• Docket Number: Docket No. 210975.
• Parties: Nathaniel COLE, Plaintiff-Appellant/Cross-Appellee, v. LADBROKE RACING MICHIGAN, INC., d/b/a Detroit Race Course—Ladbroke, Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

614 N.W.2d 169

241 Mich. App. 1

Nathaniel COLE, Plaintiff-Appellant/Cross-Appellee, v. LADBROKE RACING MICHIGAN, INC., d/b/a Detroit Race Course—Ladbroke, Defendant-Appellee/Cross-Appellant.

Docket No. 210975.

Court of Appeals of Michigan.

Submitted January 6, 2000, at Detroit.

Decided May 9, 2000, at 9:00 a.m.

Released for Publication July 26, 2000.

Richard Dorman and Scott H. Gatti, St. Clair Shores, for the plaintiff.

Dawda, Mann, Mulcahy & Sadler, P.L.C. (by Keith James, Gerald J. Gleeson, II, and Suanne Tiberio Trimmer), Bloomfield Hills, for the defendant.

Before: MICHAEL J. KELLY, P.J., and DOCTOROFF and COLLINS, JJ.

MICHAEL J. KELLY, P.J.

Plaintiff appeals as of right from the trial court's order of dismissal entered upon reconsideration of defendant's second motion for summary disposition based on immunity granted by § 4 of the Equine Activity Liability Act (EALA), M.C.L. § 691.1664; MSA 12.418(4). We reverse. Defendant cross appeals as of right the trial court's order denying its first motion for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10). We reverse.

I

Plaintiff is a licensed exercise rider with more than twenty years experience riding thoroughbred horses. Defendant operates a state-licensed, pari-mutuel horse racing facility commonly known as Ladbroke DRC. On February 24, 1995, plaintiff sustained injury when the horse he was exercising was spooked by a kite or piece of plastic in a nearby tree, bolted for the stables, and threw plaintiff to the ground.

Plaintiff was running the horse around the track and, before reaching the finish line, he pulled up on the horse and turned toward the outside of the track. He had passed the gap, which is an opening in the outside rail around the track, and was approaching the pole when the horse became spooked and ran out of control along the outside of the track. Plaintiff yelled for an outrider, but no one responded. There was no attempt to close the gate at the gap. When the horse reached the gap, it made a sharp turn toward the stables, jumped a fence, and threw plaintiff to the ground. Plaintiff suffered a back injury as a result. After the accident, plaintiff observed the kite or other piece of plastic flapping in the tree.

On March 31, 1994, plaintiff signed an acknowledgment and assumption of risk form, which released defendant from liability for any and all injuries arising out of activities within the restricted area. The release stated, in pertinent part, as follows:

The undersigned acknowledges that due to the unique combination of dangerous factors in the restricted area associated with the stabling, exercising and training of a large number of horses, and the presence of tradespeople, jockeys, owner and other personnel in the area, there are inherent dangers in the restricted area which Ladbroke cannot eliminate after exercising reasonable care.

In acknowledgment of the dangerous conditions and inherent risks associated with the restricted area, the undersigned hereby voluntarily assumes all risks of any injury that the undersigned may sustain while on the premises of Ladbroke and hereby waives all liability against Ladbroke, its officers, employees and agents.

Plaintiff signed the release while he was pursuing opportunities as a jockey agent. Jockey agents generally do not exercise horses. He did not sign another release when he assumed the duties of an exercise rider.

Plaintiff filed this action, claiming negligence in that defendant failed to inspect the premises, which inspection would have revealed the kite, and that defendant failed to provide competent outriders at or near the gap. Defendant first sought summary disposition, claiming it owed no duty to protect plaintiff from the ordinary and ever present risks of horse racing. Defendant also relied on the release signed by plaintiff assuming the risks inherent in horse racing.

The trial court was satisfied that, in fact, plaintiff did sign a release, but held that "it was for reasons other than what he was functioning on at the day of the incident." The trial court noted that the release may have been inapplicable and that it was not a total bar of the claims raised in the complaint. The court also ruled that plaintiff's complaint stated a cause of action and that there were material questions of fact for the jury to decide.

Defendant filed a second motion for summary disposition claiming that the EALA barred plaintiff's claims. Plaintiff responded that the EALA specifically excluded "horse race meetings" from its coverage, that it applied only to public riding stables, and that defendant was governed by the Racing Law of 1980, M.C.L. § 431.61 et seq.; MSA 18.966(31) et seq. Plaintiff also argued that defendant had waived the EALA immunity defense because it failed to raise it in its first responsive pleading as required by MCR 2.116(D)(2).

Without elaboration, the court denied defendant's motion. Defendant sought reconsideration and, in support of its motion, filed the affidavit of State Representative John T. Llewellyn, who had sponsored the bill that became the EALA. Rep. Llewellyn stated that the EALA was intended to coexist with the Racing Law of 1980 and was not intended to preempt the law. He also stated that the phrase "equine activity sponsor" was broadly defined to include defendant and that the EALA was meant to protect a racetrack owner from liability for injuries suffered by an exercise rider while exercising a horse belonging to a third party. The court granted defendant's motion for reconsideration and entered an order dismissing the case on March 31, 1998.

II

This Court reviews an order granting or denying summary disposition de novo as a question of law. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Immunity granted by law is covered by MCR 2.116(C)(7).¹ This Court reviews all the affidavits, pleadings, and other documentary evidence submitted by the parties and, where appropriate, construes the pleadings in favor of the nonmoving party. A motion brought pursuant to MCR 2.116(C)(7) should be granted only if no factual development could provide a basis for recovery. Amburgey v. Sander, 238 Mich.App. 228, 231, 605 N.W.2d 84 (1999).

A motion under MCR 2.116(C)(10) must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b). The adverse party may not rest on mere allegations or denials of a pleading, but must, by affidavits or other appropriate means, set forth specific facts to show that there is a genuine issue for trial. MCR 2.116(G)(4). All this supporting and opposing material must be considered by the court. MCR 2.116(G)(5).

This Court also reviews de novo questions of law involving statutory interpretation. Michigan Municipal Liability & Property Pool v. Muskegon Co. Bd. of Co. Rd. Comm'rs, 235 Mich.App. 183, 189-190, 597 N.W.2d 187 (1999), citing Watson v. Bureau of State Lottery, 224 Mich.App. 639, 644, 569 N.W.2d 878 (1997). The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent and purpose of the Legislature. Id. The first criterion in determining intent is the specific language of the statute. DiBenedetto v. West Shore Hosp., 461 Mich. 394, 402, 605 N.W.2d 300 (2000). Unless defined in the statute, every word or phrase of a statute should be understood according to the common and approved usage of the language, taking into account the context in which the words are used. MCL 8.3a; MSA 2.212(1); Yaldo v. North Pointe Ins. Co., 217 Mich.App. 617, 621, 552 N.W.2d 657 (1996). If statutory language is clear, judicial construction is normally neither necessary nor permitted, and the statute must be enforced as it is written. Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483 N.W.2d 844 (1992).

The grant or denial of a motion for reconsideration is a matter within the discretion of the trial court. In re Beglinger Trust, 221 Mich.App. 273, 279, 561 N.W.2d 130 (1997).

A

We first address whether defendant waived the affirmative defense of statutory immunity by failing to raise it in its first responsive pleading. MCR 2.116(D)(2) states that when a motion for summary disposition is based on immunity granted by law, that ground must be raised in a party's responsive pleading, unless the grounds are stated in a motion for summary disposition filed before the party's first responsive pleading. A party waives an affirmative defense unless the defense is set forth in its first responsive pleading. MCR 2.111(F); Kelly-Nevils v. Detroit Receiving Hosp., 207 Mich.App. 410, 420, 526 N.W.2d 15 (1994).

Although defendant claimed to have raised immunity granted by law in its first responsive pleading, we hold it did not. Defendant simply asserted the defense that it owed no legal duty to plaintiff. "An affirmative defense is a defense that does not controvert the plaintiff's establishing a prima facie case, but that otherwise denies relief to the plaintiff." Stanke v. State Farm Mut. Automobile Ins. Co., 200 Mich.App. 307, 312, 503 N.W.2d 758 (1993), citing Campbell v. St. John Hosp., 434 Mich. 608, 616, 455 N.W.2d 695 (1990). "In other words, it is a matter that accepts the plaintiff's allegation as true and even admits the establishment of the plaintiff's prima facie case, but that denies that the plaintiff is entitled to recover on the claim for some reason not disclosed in the plaintiff's pleadings." Stanke, supra at 312, 503 N.W.2d 758. The general allegation of "no legal duty" is a denial of an element of plaintiff's prima facie case and does not encompass the specific defense of "immunity granted by law," which is a defense that goes beyond rebutting the plaintiff's prima facie case.

Ordinarily, we would deem the immunity defense waived. However, at the hearing concerning defendant's second motion for summary disposition, the trial court recognized that defendant needed the court's permission to assert the...