Lamp v. Reynolds

• Decision Date: 01 May 2002
• Docket Number: Docket No. 223346.
• Citation: 249 Mich. App. 591,645 N.W.2d 311
• Parties: Scott LAMP and Michelle Lamp, Plaintiffs-Appellees, v. Fred REYNOLDS and Linda Reynolds d/b/a Baja Acres, M.C., Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

645 N.W.2d 311

249 Mich. App. 591

Scott LAMP and Michelle Lamp, Plaintiffs-Appellees, v. Fred REYNOLDS and Linda Reynolds d/b/a Baja Acres, M.C., Defendants-Appellants.

Docket No. 223346.

Court of Appeals of Michigan.

Submitted November 13, 2001, at Detroit.

Decided February 5, 2002, at 9:05 a.m.

Released for Publication May 1, 2002.

Michael J. Kelly, Flint, for the plaintiffs.

Ward, Anderson, Porritt & Bila (by Russell W. Porritt, II), Bloomfield Hills, for the defendants.

Before: MARK J. CAVANAGH, P.J., and DOCTOROFF and JANSEN, JJ. MARK J. CAVANAGH, Presiding Judge.

Defendants appeal as of right from a judgment in plaintiffs' favor following a bench trial in this premises liability action involving the condition of defendants' motocross racetrack, Baja Acres. We affirm.

In 1996, plaintiff¹ Scott Lamp was a participant in a motocross race at Baja Acres. In second place during the last lap of the race, plaintiff proceeded through a straightaway section of the dirt racetrack and completed a jump, landing in control of his bike. However, after apparently encountering uneven ground, plaintiff veered toward the outside perimeter of the racetrack where the ground was smoother. Located along the edge of the track were weeds approximately four feet tall. While traveling between forty and fifty miles an hour, within feet from the outside edge of the racetrack and through the weeds, plaintiff struck a tree stump causing him to sustain left knee injuries. Thereafter, plaintiffs filed the present action alleging, in pertinent part, that defendants' failure to remove the tree stump amounted to wilful and wanton misconduct. Following a bench trial, the lower court agreed and rendered a verdict in plaintiffs' favor. Further, the court held that comparative negligence would not be assessed against plaintiffs' damages award because the defense was not available in a claim based on wilful and wanton misconduct.²

On appeal, defendants first argue that the trial court erred in denying their motion for summary disposition with regard to plaintiffs' wilful and wanton misconduct claim. Defendants allege that they were entitled to judgment as a matter of law because plaintiff had executed two clear and unambiguous releases waiving any potential causes of action that might accrue while he was participating in the motocross event. We disagree. This Court reviews de novo a trial court's grant or denial of summary disposition. Harrison v. Olde Financial Corp., 225 Mich.App. 601, 605, 572 N.W.2d 679 (1997).

It is well established in this jurisdiction that, although a party may contract against liability for harm caused by his ordinary negligence, a party may not insulate himself against liability for gross negligence or wilful and wanton misconduct. See Universal Gym Equipment, Inc. v. Vic Tanny Int'l, Inc., 207 Mich.App. 364, 367-368, 526 N.W.2d 5 (1994), vacated in part on other grounds, (On Rehearing), 209 Mich.App. 511, 531 N.W.2d 719 (1994); Skotak v. Vic Tanny Int'l, Inc., 203 Mich.App. 616, 617-618, 513 N.W.2d 428 (1994); Wagner v. Regency Inn Corp., 186 Mich.App. 158, 169, 463 N.W.2d 450 (1990). Consequently, plaintiff's execution of two general releases did not automatically bar his wilful and wanton misconduct claim; therefore, the trial court properly rejected this argument.

Next, defendants argue that the trial court erred in finding that their conduct was wilful and wanton because the evidence did not establish their intent to harm or indifference equivalent to a willingness that harm result. See Jennings v. Southwood, 446 Mich. 125, 140, 521 N.W.2d 230 (1994), quoting Burnett v. City of Adrian, 414 Mich. 448, 455, 326 N.W.2d 810 (1982). We disagree. On appeal following a bench trial, a trial court's conclusions of law are reviewed de novo and its findings of fact are reviewed for clear error. MCR 2.613(C); Walters v. Snyder, 239 Mich.App. 453, 456, 608 N.W.2d 97 (2000). "A finding is clearly erroneous when, although evidence supports it, this Court is left with a firm conviction that the trial court made a mistake." Featherston v. Steinhoff, 226 Mich.App. 584, 588, 575 N.W.2d 6 (1997).

To prove a claim of wilful and wanton misconduct, the plaintiff must establish that the defendant (1) knew of a situation requiring the exercise of ordinary care and diligence to avert injury to another, (2) had the ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand, and (3) failed to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Taylor v. Laban, 241 Mich.App. 449, 457, 616 N.W.2d 229 (2000), quoting Miller v. Inglis, 223 Mich.App. 159, 166, 567 N.W.2d 253 (1997).

In this case, the evidence showed that defendants knew about the tree stump for years, knew that the stump was located a short distance from the outside perimeter of the racetrack, and knew that motocross racing involved high rates of speed and that it was common for racers to leave the track during the race. The evidence also showed that defendants did not cut the weeds around the edges of the racetrack or around the tree stump, failed to remove the stump although they had the equipment to remove it with little effort, failed to make the stump's presence known to the motocross racers, and admitted that a hidden tree stump near a racetrack was a dangerous condition that could cause serious injury. Consequently, we find no error in the trial court's determination that defendants' conduct was wilful and wanton.

Defendants finally argue that the trial court erred in failing to reduce plaintiffs' damages award by twenty-five percent, the degree of comparative fault attributed to plaintiff. Defendants argue that M.C.L. § 600.2959 mandates such a reduction. We disagree. Statutory interpretation is a question of law subject to review de novo on appeal. Crowe v. Detroit, 465 Mich. 1, 6, 631 N.W.2d 293 (2001).

This state has legislatively adopted a comparative fault system for apportioning damages awarded in personal injury, property, and wrongful death actions. The enactment of several in pari materia statutes,³ in particular M.C.L. § 600.6304, M.C.L. § 600.2957, and M.C.L. § 600.2959, reveals a legislative intent to allocate liability according to the relative fault of all persons contributing to the accrual of a plaintiff's damages. See Wysocki v. Felt, 248 Mich.App. 346, 364, 639 N.W.2d 572 (2001). The issue in this case is whether comparative fault should be assessed against a plaintiff, pursuant to our comparative fault statutes, when a defendant's conduct was found to be wilful and wanton. This question appears to present an issue of first impression in this state.

Well-established principles of statutory interpretation direct our attempt to give effect to the Legislature's intent. In re Messer Trust, 457 Mich. 371, 379-380, 579 N.W.2d 73 (1998). This Court first looks to the specific language of the statute to discern the Legislature's intent. Charboneau v. Beverly Enterprises, Inc., 244 Mich.App. 33, 40, 625 N.W.2d 75 (2000). We must presume that every word, phrase, and clause in the statute has meaning and avoid any construction that would render any part of the statute surplusage or nugatory. Bieber v. Keeler Brass Co., 209 Mich.App. 597, 604, 531 N.W.2d 803 (1995). If the plain and ordinary meaning of the statute's language is clear, judicial construction is inappropriate. Ypsilanti Housing Comm. v. O'Day, 240 Mich.App. 621, 624, 618 N.W.2d 18 (2000).

Next, we consider the relevant comparative fault statutes. First, M.C.L. § 600.2957 provides, in pertinent part:

(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304 [MCL 600.6304], in direct proportion to the person's percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.

Second, M.C.L. § 600.2959 provides, in pertinent part:

In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the court shall reduce the damages by the percentage of comparative fault of the person upon whose injury or death the damages are based as provided in section 6306 [MCL 600.6306].

Third, M.C.L. § 600.6304 provides, in pertinent part:

(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:

(a) The total amount of each plaintiff's damages.

(b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff....

(2) In determining the percentages of fault under subsection (1)(b), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed.

* * *

(8) As used in this section, "fault" includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.

After consideration of the principles of statutory construction and the relevant comparative fault statutes, we conclude that the Legislature's intent is clear—a plaintiff, including a plaintiff's...