Cypret v. Lea, Docket Nos. 101560
| Decision Date | 13 January 1989 |
| Docket Number | Docket Nos. 101560,101561 |
| Citation | 433 N.W.2d 413,173 Mich.App. 222 |
| Parties | Linda CYPRET, personal representative of the Estate of Sherry Marie Jacoby, deceased, Plaintiff-Appellant, v. Kelly S. LEA, Scott Oberlin, Albert Lea, LaVerne Burley, Bertha Burley, Vira L. Pierce, Ron Weaver Gravel Company, Wicker, Inc., and Spartan Aggregates, Inc., jointly and severally, Defendants-Appellees, and Van L. Wertz, Defendant. Kenneth H. OLMSTEAD, personal representative of the Estate of Denise Marie Olmstead, deceased, v. Kelly S. LEA, Scott Oberlin, Albert Lea, LaVerne Burley, Bertha Burley, Vira L. Pierce, Ron Weaver Gravel Company, Wicker, Inc., and Spartan Aggregates, Inc., jointly and severally, Defendants-Appellees. 173 Mich.App. 222, 433 N.W.2d 413 |
| Court | Court of Appeal of Michigan — District of US |
[173 MICHAPP 223] McGinty, Brown, Jakubiak, Frankland & Hitch, P.C. by Charles E. Henderson, East Lansing, for plaintiffs-appellants.
Cholette, Perkins & Buchanan by Robert E. Attmore, Grand Rapids, for LaVerne Burley and Bertha Burley.
Foster, Swift, Collins & Coey, P.C. by Scott L. Mandel, Lansing, for Spartan Aggregates, Inc.
Denfield, Timmer & Taylor by George H. Denfield and James S. Jamo, Lansing, for Vira L. Pierce.
Willingham & Cote', P.C. by Ray Foresman and Curtis R. Hadley, East Lansing, for Ron Weaver Gravel Co.
Before BEASLEY, P.J., and SAWYER and FOLEY, * JJ.
Plaintiffs appeal following the entry of orders of summary disposition in favor of defendants on plaintiffs' wrongful death claims. The orders of summary disposition were certified [173 MICHAPP 224] as final judgments pursuant to MCR 2.604(A). We reverse.
On July 24, 1983, a group of young people, including plaintiffs' decedents, had gathered at a gravel pit known as the Barnes Road Gravel Pit, located in an area bordered by Barnes, Toles, Arch, and Waverly Roads in Eaton County. The pit was relatively isolated in that it was one-third to one-half miles from the roads, but three unimproved, unnamed roads led from the surrounding roads to the pit. Apparently, young people frequently used the pit as a place to congregate, swim, and drive off-road vehicles. Defendant Kelly Lea, who had taken his four-wheel drive vehicle to the pit, agreed to take plaintiffs' decedents for a ride around the pit. Lea had driven around the pit once earlier in the evening. Lea started around the pit, driving in the direction opposite that which he had driven earlier. At some point, the vehicle started to roll over onto the driver's side. The vehicle slid on its side down a bank and hit the water, slid down the underwater bank to the bottom of the pit, and came to rest on its roof. Lea was able to escape, and although several persons jumped into the water to help, plaintiffs' decedents were not able to escape and drowned.
At the time of the accident, the gravel pit was located on adjoining properties owned by defendant Pierce and by defendants LaVerne and Bertha Burley. The property line ran through the pit. The pit was created by separate operations by Ron Weaver Gravel Company and Spartan Aggregates, Inc. In 1976, Weaver Gravel and the Burleys orally agreed that Weaver Gravel would extract gravel from the vein on the Burleys' property, paying the Burleys twenty-five cents per cubic yard for the gravel. Weaver Gravel ceased work on the property in May, 1979. In June, 1978, Spartan [173 MICHAPP 225] Aggregates and Pierce signed an agreement allowing Spartan Aggregates to remove gravel from a section of Pierce's property in return for the payment of twenty-five cents per cubic yard. Although there is some confusion about the dates of Spartan Aggregate's work on the Pierce property, Spartan Aggregates did no work on the property after April, 1982. At some point, the separate pits created by Weaver Gravel and Spartan Aggregates were merged near the Burley/Pierce property line.
Weaver Gravel and Spartan Aggregates performed reclamation work on their respective areas. According to Spartan Aggregates, Pierce planned to use the pit as a receptacle for debris, and thus did not want it to be filled. Even after the reclamation work was finished, the pit walls were still quite steep. The pit's structure does not appear to have changed significantly between the time Spartan Aggregates finished its work and the time the accident occurred.
Plaintiffs filed suit alleging negligence, gross negligence, and wilful and wanton misconduct on the part of defendants in that they failed to maintain the property in a safe condition, failed to post signs restricting access to the property and thus acquiesced in the use of the property by others, failed to post signs warning of the dangerous condition of the pit, failed to place a barricade or a sign in front of the precipice over which Lea's vehicle slid, and failed to bulldoze the banks of the pit to make them less steep. The trial court granted summary disposition on the basis that the recreational land use act (RUA), M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, barred recovery by plaintiffs.
At the time of the accident which gave rise to the instant litigation, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485 provided as follows:
[173 MICHAPP 226] "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."
The Supreme Court had the opportunity to interpret this statute in Wymer v. Holmes, 429 Mich. 66, 412 N.W.2d 213 (1987). In doing so, the Court in Wymer, supra at 79-80, 412 N.W.2d 213, concluded that the statute is applicable only to large tracts of undeveloped lands in a relatively natural state which are suitable for outdoor recreational uses:
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