Rodgers v. Sydow
| Decision Date | 02 March 2023 |
| Docket Number | 358698 |
| Parties | CRYSTAL RODGERS, Plaintiff-Appellant, v. CHRISTIE SYDOW, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Kalkaska Circuit Court LC No. 2020-013348-NO
Before: JANSEN, P.J., and REDFORD and YATES, JJ.
The Recreational Land Use Act (RUA), MCL 324.73301(1), encourages property owners to "make [their] land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." Rott v Rott, 508 Mich. 274, 291; 972 N.W.2d 789 (2021) (quotation marks omitted). Plaintiff Crystal Rodgers, was injured while riding in an off-road vehicle (ORV) that defendant, Christie Sydow, owned, so she sued defendant for negligent entrustment, gross negligence and owner's liability. The trial court granted summary disposition to defendant under MCR 2.116(C)(7) on each of plaintiff's claims, citing the immunity conferred by the RUA as the basis for its ruling. On appeal, plaintiff contends that all of her claims are viable in spite of the RUA, so the trial court erred in awarding summary disposition on each of the claims. We conclude that the claims for negligent entrustment and owner's liability are barred by the RUA, but summary disposition was not warranted on the gross-negligence claim.
On June 9, 2018, plaintiff drove to defendant's house and then went with defendant to pick up Josh Kowalewski for a social visit. For two hours, plaintiff, defendant, and Kowalewski drank beer. Then, at about midnight, defendant showed off her ORV and asked Kowalewski and plaintiff if Kowalewski wanted to take plaintiff for a ride. They both agreed, so plaintiff and Kowalewski climbed into the ORV. Kowalewski drove the ORV on a dirt path on defendant's property at high speed with plaintiff in the passenger's seat. As they rounded a curve, the ORV tipped over onto the passenger's side. Kowalewski and defendant lifted plaintiff out of the ORV and saw that she was bleeding from her forehead. Then defendant's mother took plaintiff to the hospital, where she remained for several days because of her injuries.
Plaintiff filed suit against defendant on March 12, 2020, alleging negligence, but plaintiff's second amended complaint filed on July 24, 2020, modified and expanded her theories to include a claim for negligent entrustment of the ORV to Kowalewski, a claim for gross negligence, and a claim for owner's liability under MCL 257.401. Defendant responded to those claims by moving for summary disposition, which the trial court granted pursuant to MCR 2.116(C)(7) by relying on the RUA, MCL 324.73301(1). The trial court memorialized its ruling from the bench in a written final order entered on September 13, 2021. Plaintiff then appealed.
We review de novo the trial court's ruling on defendant's motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). The trial court based its award of summary disposition upon MCR 2.116(C)(7), which affords relief when a claim is foreclosed by "immunity granted by law[.]" When reviewing a motion under MCR 2.116(C)(7), the "contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant." Maiden v Rozwood, 461 Mich. 109, 119; 597 N.W.2d 817 (1999). When "no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court." Dextrom v Wexford Co, 287 Mich.App. 406, 429; 789 N.W.2d 211 (2010). But when "a question of fact exists to the extent that factual development could provide a basis for recovery, dismissal is inappropriate." Id. Applying these standards, we must determine whether each of plaintiff's three claims is barred by immunity under the RUA.
When it applies, the RUA, MCL 324.73301(1), immunizes a landowner "from liability for injuries occurring on the land 'unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner[.]'" Rott, 508 Mich. at 292. But immunity under the RUA "is only triggered when someone is injured while on the land of another for certain purposes and under certain conditions." Id. at 293. As MCL 324.73301(1) makes clear, a cause of action does not arise for injuries to a person who is on the land of another without paying the owner . . . a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner . . . unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner[.]
That language yields several principles. First, "the RUA applies 'to individuals who, at the time of the injury, are on the land of another for a specified purpose.'" Rott, 508 Mich. at 295. Thus, "the initial purpose for which one 'enter[s]' the land [is] not the proper focus." Id. Second, under the RUA, immunity is "limited to include only those outdoor recreational uses of the same kind, class, character, or nature as those specifically enumerated in MCL 324.73301(1)." Id. (quotation marks omitted). Therefore, the use must be similar to "motorcycling, snowmobiling," or another type of activity expressly identified in MCL 324.73301(1). Third, such similar uses are limited to activities (1) "that could not be engaged in indoors" and (2) "require[ ] nothing more than access to the land[.]" Id. at 296-297.
Here, applying those three principles leads to the conclusion that plaintiff was engaging in an activity subject to immunity under the RUA when she suffered her injuries. Plaintiff was riding in an ORV at the time she was injured. The fact that she initially went to defendant's home for a social visit does not matter. Id. at 295. What matters is that she was riding in an ORV at the time of her injuries. Id. In addition, plaintiff was engaging in an activity contemplated by the RUA at the time of her injuries. Although riding in an ORV is not an activity identified in the RUA, riding in an ORV is very similar to the listed activities of motorcycling and snowmobiling. See Neal v Wilkes, 470 Mich. 661, 671; 685 N.W.2d 648 (2004) ("riding an ATV . . . is an outdoor recreational use . . . within the meaning of the RUA"). Beyond that, riding in an ORV cannot be done indoors and it requires nothing more than access to the land. See id. at 296-297. Finally, because the ORV tipped over on land owned by defendant, the RUA may be interposed as a defense to civil claims in this case.
To be sure, the applicability of the RUA does not completely absolve defendant of liability because the immunity conferred by the RUA does not extend to "injuries . . . caused by the gross negligence or willful and wanton misconduct of the owner[.]" See MCL 324.73301(1). The RUA does, however, afford defendant immunity from any "cause of action" based on conduct that does not rise to the level of "gross negligence or willful and wanton misconduct." Id. Under Michigan law, gross negligence refers to conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Xu v Gay, 257 Mich.App. 263, 269; 668 N.W.2d 166 (2003). Willful and wanton misconduct exists "if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does." Id. at 270 n 3 (quotation marks omitted). Accordingly, plaintiff must offer evidence that satisfies one of those stringent standards in order to survive defendant's motion for summary disposition. With that concern in mind, we shall address each of plaintiff's three claims in turn.
Plaintiff's first claim asserts that defendant negligently entrusted her ORV to Kowalewski, who recklessly drove the ORV on defendant's land and thereby caused plaintiff's injuries. "[T]he tort of negligent entrustment imposes liability on one who supplies a chattel for the use of another whom the supplier knows or has reason to know is, because of youth, inexperience, or otherwise, likely to use it in a manner involving unreasonable risk of physical harm." Bennett v Russell, 322 Mich.App. 638, 643; 913 N.W.2d 364 (2018). A claim for negligent entrustment has two elements: (1) "the entrustor [was] negligent in enstrusting the instrumentality to the entrustee"; and (2) "the entrustee . . . negligently or recklessly misuse[d] the instrumentality." Allstate Ins Co v Freeman, 160 Mich.App. 349, 357; 408 N.W.2d 153 (1987), aff'd 432 Mich. 656; 443 N.W.2d 734 (1989), mod 433 Mich. 1202; 446 N.W.2d 291 (1989). "To establish negligent entrustment, a plaintiff need show only simple negligence in the entrustment and in the behavior which caused the activity" resulting in the injury. Hendershott v Rhein, 61 Mich.App. 83, 89-90; 232 N.W.2d 312 (1975). Because that claim rests on proof of simple negligence, see id., it cannot survive the immunity conferred by the RUA, MCL 324.73301(1).[1] Accordingly, the trial court properly awarded summary disposition to defendant on that claim under MCR 2.116(C)(7).
Plaintiff's second claim, which alleges gross negligence, relies upon a theory that is viable as a matter of law under the RUA, which excepts from immunity the claim that plaintiff's "injuries were caused by the gross negligence . . . of the owner" of the land on which the injuries occurred. See MCL 324.73301(1). But the trial court concluded, as a matter of fact, that the gross-negligence claim is fatally flawed. Whether a defendant's "conduct constituted gross negligence is generally a...
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