Ellsworth v. Highland Lakes Development Associates

• Decision Date: 20 January 1993
• Docket Number: No. 128676,128676
• Citation: 198 Mich.App. 55,498 N.W.2d 5
• Parties: Thomas ELLSWORTH, Personal Representative of the Estate of Nathaniel Ellsworth, Plaintiff-Appellant, v. HIGHLAND LAKES DEVELOPMENT ASSOCIATES, Defendant-Appellee, and Michael Combs, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 5

498 N.W.2d 5

198 Mich.App. 55

Thomas ELLSWORTH, Personal Representative of the Estate of Nathaniel Ellsworth, Plaintiff-Appellant, v. HIGHLAND LAKES DEVELOPMENT ASSOCIATES, Defendant-Appellee and Michael Combs, Defendant.

No. 128676.

Court of Appeals of Michigan.

Submitted Dec. 2, 1992.

Decided Jan. 20, 1993, at 9:00 a.m.

Released for Publication April 12, 1993.

Still, Nemier, Tolari & Landry, P.C. by David B. Landry, Farmington Hills, and (Bendure & Thomas by Mark R. Bendure and Victor S. Valenti, of Counsel), Detroit, for plaintiff.

Victor L. Graf, Jr., Ann Arbor, for defendants.

Before CORRIGAN, P.J., and WEAVER and CONNOR, JJ.

PER CURIAM.

In this landowner's liability action, plaintiff Thomas Ellsworth, as personal representative of the estate of Nathaniel Ellsworth, deceased, appeals the grant of summary disposition to defendant Highland Lakes Development Associates pursuant to MCR 2.116(C)(8). We affirm.

On May 2, 1986, Nathaniel, then five years old, was on his way to catch frogs on defendant's land when he was struck by defendant Michael Combs' motorcycle. Nathaniel died from his injuries. Defendant Combs later pleaded guilty to negligent homicide. The accident occurred on what was originally a tract of farmland acquired by defendant in the mid-1960s. After a brief attempt to farm the property, the Highland Lakes partners sold the entire 107-acre parcel on land contract. The vendee sold four small parcels and then defaulted on the contract. The remaining ninety-seven-acre tract was returned to Highland Lakes. The partners were attempting to sell the still untouched property at the time of the accident.

Plaintiff's complaint alleged that Highland Lakes was liable under theories of negligence and attractive nuisance. Highland Lakes sought summary disposition pursuant to MCR 2.116(C)(8) and (C)(10). The trial court granted the motion, relying on M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, the recreational land use act (RUA).

Plaintiff asserts that the RUA is inapplicable. We disagree. The circuit court properly granted immunity to defendants in this case. The act clearly applies to large tracts of undeveloped land, such as this parcel. The act mandates dismissal of ordinary negligence and attractive nuisance claims, and plaintiff cannot prove gross negligence or wilful and wanton misconduct. Finally, landowners are not responsible to protect trespassers from the criminal acts of third parties.

Plaintiff initially argues that the proper authority for summary disposition for immunity granted by law is MCR 2.116(C)(7), and not (C)(8). Alternatively, plaintiff says that the trial court considered evidence beyond the pleadings. Because summary disposition was appropriate under either subrule C(7) or C(10), we will not disturb the result below. If summary disposition is granted under one subpart of the court rule when judgment is appropriate under another subpart, the defect is not fatal. The mislabeling of a motion does not preclude review where the lower court record otherwise permits it. Wilson v. Thomas L. McNamara, Inc., 173 Mich.App. 372, 376, 433 N.W.2d 851 (1988).

At the time of the decedent's injury, the RUA provided:

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 such 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.]

The Supreme Court examined the RUA most recently in Wymer v. Holmes, 429 Mich. 66, 412 N.W.2d 213 (1987). Both Wymer plaintiffs were social guests injured at defendants' residences. One plaintiff drowned in a backyard pond and the other was injured after diving into a man-made lake. The Court ultimately determined that neither defendant was immune under the RUA:

[T]he Legislature intended the act to apply to ... outdoor activities ... which, ordinarily, can be accommodated only on tracts of land which are difficult to defend from trespassers and to make safe for invited persons engaged in recreational activities. The commonality among all these enumerated uses is that they generally require large tracts of open, vacant land in a relatively natural state. This fact and the legislative history of the RUA make clear to us that the statute was intended to apply to large tracts of undeveloped land suitable for outdoor recreational uses. Urban, suburban, and subdivided lands were not intended to be covered by the RUA. The intention of the Legislature to limit owner liability derives from the impracticability of keeping certain tracts of lands safe for public use. [Id. at 79, 412 N.W.2d 213; emphasis supplied.]

Human intervention will most often defeat the protection of the RUA. Cypret v. Lea, 173 Mich.App. 222, 433 N.W.2d 413 (1988). When the land is still in a "relatively natural state," the RUA will bar a cause of action. See James v. Leco Corp., 170 Mich.App. 184, 192, 427 N.W.2d 920 (1988) (undeveloped beachfront property); Randall v. Harrold, 121 Mich.App. 212, 328 N.W.2d 622 (1982) (lagoon); Thomas v. Consumers Power Co., 58 Mich.App. 486, 228 N.W.2d 786 (1975), aff'd. 394 Mich. 459, 231 N.W.2d 653 (1975) (utility company easement).

In contrast, Wilson, supra, held that the RUA did not apply to a man-made pond on a large undeveloped tract of land. "The focus is on the use of the land and whether it remains in a relatively natural state or has been developed and changed in a manner incompatible with the intention of the act." Id. 173 Mich.App. at 377, 433 N.W.2d 851 (emphasis supplied). See also Cypret, supra, where the plaintiff drowned in a gravel pit created by "excavations ... which dramatically changed the features of the land involved." Id. 173 Mich.App. at 229, 433 N.W.2d 413. In Harris v. Vailliencourt, 170 Mich.App. 740, 428 N.W.2d 759 (1988), the RUA was held not to apply to a dock that was "not a natural condition but is a recreational facility, developed by the homeowners association." Id. at 746, 428 N.W.2d 759.

The circuit court did not err in dismissing plaintiff's claim. Defendant's land is a large undeveloped tract. The area was known locally as "Johnson's Field," another indicator of its unspoiled natural state. A sheriff's investigator testified on deposition that the land was being used for other recreational activities (kite flying, bike riding, ball playing, walking, and off-road-vehicle riding) in addition to motorcycle riding. Indeed, it is undisputed that the decedent and defendant Combs both were engaged in activities contemplated by the act.

Plaintiff, relying on Wymer 's exclusion for "urban, suburban, and subdivided lands," 429 Mich. at 79, 412 N.W.2d 213, asserts that whether defendant's land was suburban is a question of fact. We disagree. Plaintiff's evidence on this issue consists of some census figures, a map, and a property survey. ¹ The mere presence of homes near a large, undeveloped tract of land does not make the land "suburban." A suburb is "an outlying part of a city or town; a smaller place adjacent to or sometimes within commuting distance of a city; the residential area on the outskirts of any city or large town." Webster's Third New International Dictionary, Unabridged Edition (1965). ² Defendant's land is neither a "residential area" nor "an outlying part of a city or town."

Next, the decedent's injuries plainly did not occur on developed land. That motorcyclists and others had worn tracks in the grass did not make the field "developed." The RUA is not rendered inapplicable because some human activity occurs on the land. Cypret, supra 173 Mich.App. at 228-229, 433 N.W.2d 413. The decedent's injuries are unrelated to the land itself. The trial court properly applied the RUA.

The RUA excepts from immunity "injuries ... caused by the gross negligence or wilful and wanton misconduct of the owner." Plaintiff argues that defendant's failure to prevent motorcyclists from using the property when it knew that small children also frequented the land is conduct so extreme as to fall within the statutory exception. We disagree.

Plaintiff essentially concedes that these facts do not constitute "gross negligence." In Michigan, "gross negligence" still requires that a defendant act negligently after a plaintiff negligently contributes to his own peril. Pavlov v. Community Emergency Medical Services, 195 Mich.App. 711, 718-719, 491 N.W.2d 874 (1992). Plaintiff pleaded that defendant negligently failed to prevent motorcycle riders from using the land. This alleged negligence preceded the decedent's own actions in going onto the land. Under the present definition of "gross negligence", that exception does not apply.

Plaintiff argues further that defendant's failure to prevent motorcyclists from using the land constitutes "wilful and wanton misconduct." We cannot agree. Mere negligence cannot be cast as "wilfulness" simply for the purposes of bringing a complaint. Pavlov, supra at 716, 491 N.W.2d 874. Wilful negligence is quasi-criminal and manifests an intentional disregard for another's safety. Papajesk v. Chesapeake & O.R. Co., 14 Mich.App. 550, 556, 166 N.W.2d 46 (1968). Plaintiff has not pleaded facts establishing defendant's "intentional disregard" for the decedent's safety. Rather, plaintiff asserts that defendant's failure to recognize and remove the hazard posed by the motorcyclists is "such indifference to whether harm will result as to be the equivalent of a willingness that it does." Burnett v. Adrian, 414 Mich. 448, 455, 326 N.W.2d 810 (1982), citing Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923).

This Court does not easily describe omissions to act as "wilful and wanton...