Feliciano v. Department of Natural Resources

• Decision Date: 14 May 1987
• Docket Number: Docket No. 84822
• Citation: 405 N.W.2d 178,158 Mich.App. 497
• Parties: Carmen FELICIANO, Administratrix of the Estate of Elizabeth Feliciano, Deceased, Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee, and Jill Irvine, Jeffrey Eder, and Gregory Osborne, Defendants. 158 Mich.App. 497, 405 N.W.2d 178
• Court: Court of Appeal of Michigan — District of US

Page 178

405 N.W.2d 178

Carmen FELICIANO, Administratrix of the Estate of Elizabeth Feliciano, Deceased, Plaintiff-Appellant, v. DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellee and Jill Irvine, Jeffrey Eder, and Gregory Osborne, Defendants.

Docket No. 84822.

158 Mich.App. 497, 405 N.W.2d 178

Court of Appeals of Michigan.

Submitted June 4, 1986.

Decided March 16, 1987.

Released for Publication May 14, 1987.

[158 MICHAPP 498] James F. Finn, Detroit (Thomas A. Ricca, of counsel), for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Wallace T. Hart, Asst. Atty. Gen., for defendant-appellee.

[158 MICHAPP 499] Before KELLY, P.J., and HOLBROOK and GREEN, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from an order of the Court of Claims granting the motion of defendant State of Michigan, Department of Natural Resources for summary judgment on the ground that plaintiff's complaint failed to alleged sufficient facts to show gross negligence for a viable cause of action under the recreational use statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485. We reverse the trial court's grant of summary judgment in defendant's favor and remand to allow plaintiff to amend her complaint to allege gross negligence.

On July 19, 1978, fifteen-year-old Elizabeth Feliciano drowned while on a field trip with an arts and crafts group at Silver Lake State Park. Decedent's mother filed this wrongful death action on December 1, 1978, alleging that decedent drowned as a direct and proximate result of the negligence of the defendants, the DNR and the three individual lifeguards who were working at the beach when the drowning occurred. On December 8, 1978, defendants filed a motion for summary judgment, alleging that plaintiff's complaint failed to set forth a factual basis constituting a recognized exception to defendants' immunity from tort liability. Defendants' motion was subsequently granted by the Court of Claims. This Court reversed in Feliciano v. Dep't of Natural Resources, 97 Mich.App. 101, 293 N.W.2d 732 (1980), on the basis that operation of a swimming and bathing area was not a governmental function to which the defense of immunity applied. The case was remanded to the Court of Claims for trial. Thereafter, the individual [158 MICHAPP 500] defendants were dismissed from the proceedings.

On June 22, 1984, defendant DNR was granted leave to amend its answer to include as an affirmative defense the recreational use statute. On March 6, 1985, defendant filed a motion for summary judgment contending that plaintiff's claim was barred by both the recreational use statute and the doctrine of governmental immunity as outlined in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). The Court of Claims denied the motion with respect to the governmental immunity defense on the basis that this Court's holding in the earlier Feliciano decision constituted the law of the case. The court granted the motion with respect to the recreational use statute defense on the basis that plaintiff's complaint failed to allege sufficient facts to establish gross negligence.

On appeal plaintiff contends that the trial court erred in granting defendant summary judgment without providing plaintiff an opportunity to amend her complaint to add allegations of gross negligence. When a party seeks leave of the court to amend a pleading, leave shall be freely given when justice so requires. MCR 2.118(A)(2). When deciding a motion for summary judgment or summary disposition which alleges failure to state a valid claim or defense or that no genuine issue as to any material fact exists, the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified. MCR 2.116(I)(5). Entry of a grant of summary judgment does not preclude amendment of the complaint. See Midura v. Lincoln Consolidated Schools, 111 Mich.App. 558, 561, 314 N.W.2d 691 (1981). Pursuant to MCR 7.216(A)(1) this Court [158 MICHAPP 501] and the Supreme Court may also grant leave to amend.

MCR 2.118 and its predecessor GCR 1963, 118.1 were designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result. Ben P Fyke & Sons v. Gunter Co, 390 Mich. 649, 656, 213 N.W.2d 134 (1973). The Court in Fyke & Sons held that denial of leave to amend is justified only "for particularized reasons":

" 'In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be "freely given". Foman v. Davis, 371 US 178, 182; 83 SCt 227, 230; 9 LEd2d 222, 226 (1962).' " Fyke & Sons, supra, p. 656, 213 N.W.2d 134.

"Prejudice" refers to matters which would prevent a party from having a fair trial, or matters which a party could not properly contest, e.g., when surprised. It does not refer to the effect on the result of the trial otherwise. Fyke & Sons, supra, p. 657, 213 N.W.2d 134. The question of prejudice is presented by the time at which the amendment is offered rather than by the substance of what is offered. Id., pp. 657-658, 213 N.W.2d 134. The possible prejudice must stem from the fact that the new allegations are offered late rather than in the original pleadings and not from the fact that the opponent may lose his case on the merits if the amendment is allowed. Id., p. 658, 213 N.W.2d 134.

Here defendant was allowed to amend its answer, 2 1/2 years after commencement of the action, to include the recreational use statute...