Composto v. Albrecht, No. 340485

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: Gadola, J.
• Citation: 938 N.W.2d 755,328 Mich.App. 496
• Parties: Thomas COMPOSTO, Plaintiff-Appellee, v. Michalina ALBRECHT and Piotr Albrecht, as Next Friend of Philip Albrecht, Defendants-Appellants.
• Decision Date: 30 May 2019
• Docket Number: No. 340485

328 Mich.App. 496
938 N.W.2d 755

Thomas COMPOSTO, Plaintiff-Appellee,
v.
Michalina ALBRECHT and Piotr Albrecht, as Next Friend of Philip Albrecht, Defendants-Appellants.

No. 340485

Court of Appeals of Michigan.

Submitted April 12, 2019, at Detroit.
Decided May 30, 2019, at 9:05 a.m.

Richard E. Shaw and Macomb Law Group, PLC (by James L. Spagnuolo, Jr., Southfield, and Zachary Morgan ) for plaintiff.

Cardelli Lanfear, PC, Royal Oak (by Anthony F. Caffrey III, R. Carl Lanfear, Jr., and Paul Kittinger ) for defendants.

Before: Markey, P.J., and Fort Hood and Gadola, JJ.

Gadola, J.

328 Mich.App. 497

In this interlocutory appeal, defendants Michalina Albrecht and Piotr Albrecht, individually

328 Mich.App. 498

and as next friend of Philip Albrecht, appeal by leave granted the trial court's orders granting a motion in limine establishing the standard of care applicable in this negligence suit and denying defendants’ motion for summary disposition. We reverse and remand to the trial court for proceedings consistent with this opinion.

I. FACTS

The facts underlying this case are essentially undisputed. On August 2, 2015, plaintiff, Thomas Composto, was walking on the Hike-Bike Trail at Stony Creek Metropark. The Hike-Bike Trail, as its name implies, is used for both walking and bicycling, as well as for running and in-line skating. On that day, then nine-year-old Philip was riding his bicycle on the trail with his parents, Michalina and Piotr. Philip was riding down a hill and saw plaintiff walking ahead of him. Philip braked and tried to swerve to avoid striking plaintiff, but because there were oncoming trail users, he failed to avoid plaintiff and struck him from behind. Plaintiff tore his quadriceps and suffered other lacerations and contusions.

Plaintiff initiated this action, alleging that Philip had caused the collision by riding his bicycle negligently, resulting in plaintiff's injuries. Before the trial court, plaintiff filed a motion in limine, seeking to establish that the applicable standard of care Philip owed in this case was that of ordinary negligence. Plaintiff argued that the reckless-misconduct standard, usually applied when parties are engaged in recreational activities, did not apply in this case because plaintiff and Philip were engaged in different activities at the time of their collision. Defendants moved for summary disposition

328 Mich.App. 499

under MCR 2.116(C)(8) and (10), arguing that Philip's conduct did not amount to either ordinary negligence or reckless misconduct.

After a hearing, the trial court granted plaintiff's motion in limine, determining that the applicable standard of care was that of ordinary negligence. The trial court denied defendants' motion seeking reconsideration of the determination and, after a further hearing, denied without prejudice defendants' motion for summary disposition as premature. This Court thereafter granted defendants' application for leave to appeal.¹

938 N.W.2d 758

II. DISCUSSION

Defendants contend that the trial court erred by determining that the applicable standard of care in this case is that of ordinary negligence. The issue of the applicable standard of care is a question of law that we review de novo. Sherry v. East Suburban Football League , 292 Mich. App. 23, 27, 807 N.W.2d 859 (2011).

Generally, to establish a prima facie case of negligence, a plaintiff must establish (1) a duty owed by the defendant to the plaintiff, (2) breach of that duty by the defendant, (3) damages suffered by the plaintiff, and (4) that the damages were caused by the defendant's breach of duty. Finazzo v. Fire Equip. Co. , 323 Mich. App. 620, 635, 918 N.W.2d 200 (2018). Duty is the legal obligation to conform one's conduct to a particular standard to avoid subjecting others to an unreasonable risk of harm. Burnett v. Bruner , 247 Mich. App. 365, 368, 636 N.W.2d 773 (2001). The duty a defendant typically owes to a plaintiff often is described as an ordinary-negligence

328 Mich.App. 500

standard of care. See Sherry , 292 Mich. App. at 28, 807 N.W.2d 859. Under ordinary-negligence principles, a defendant owes a plaintiff a duty to exercise ordinary care under the circumstances. See id. at 29-30, 807 N.W.2d 859.

However, "[w]hen people engage in a recreational activity, they have voluntarily subjected themselves to certain risks inherent in that activity." Ritchie-Gamester v. City of Berkley , 461 Mich. 73, 87, 597 N.W.2d 517 (1999). As a result, "coparticipants in a recreational activity owe each other a duty not to act recklessly." Id. at 95, 597 N.W.2d 517. This recklessness standard of care, however, extends only to "injuries that arise from risks inherent to the activity." Bertin v. Mann , 502 Mich. 603, 609, 918 N.W.2d 707 (2018). Therefore, to determine the standard of care applicable when an injury arises involving coparticipants in a recreational activity, a court must consider whether the injuries arose from risks inherent in that recreational activity.

To determine the applicable standard of care in this case, the first inquiry is whether plaintiff and Philip were coparticipants in a recreational activity. Both plaintiff and Philip were engaging in recreational activity at the time of the accident: Philip was biking while plaintiff was walking. In doing so, both were using a trail specifically designated for the mixed uses of walking and biking, among other recreational activities. We compare the circumstances of this case to those of Ritchie-Gamester , in which both parties were ice skating during an "open skate" at a public ice rink...