Rott v. Rott

• Decision Date: 30 July 2021
• Docket Number: 161051
• Citation: 508 Mich. 274,972 N.W.2d 789
• Parties: Doreen ROTT, Plaintiff-Appellant, v. Arthur ROTT, Defendant-Appellee.
• Court: Michigan Supreme Court

508 Mich. 274

972 N.W.2d 789

Doreen ROTT, Plaintiff-Appellant,

v.Arthur ROTT, Defendant-Appellee.

No. 161051

Supreme Court of Michigan.

Argued on application for leave to appeal on April 8, 2021

Decided July 30, 2021

Zamler, Shifman, & Karfis, PC (by James S. Marco ) and Stewart Law PLLC (by Melissa P. Stewart ) for plaintiff.

The Hanover Law Group (by Ronald C. Paul, Bloomfield Hills) for defendant.

BEFORE THE ENTIRE BENCH

Welch, J.

This case arises out of a zip-lining accident in defendant Arthur Rott's backyard.

Plaintiff, Doreen Rott, sued defendant after she was injured when she prematurely touched the ground before the end of the ride. To resolve this case, the Court must address the limits of the law-of-the-case doctrine and the scope of the recreational land use act (RUA), MCL 324.73301(1). Defendant raises the RUA as a defense to plaintiff's negligence and premises-liability claims, while plaintiff claims the statute does not apply. On remand from an interlocutory appeal, the circuit court dismissed plaintiff's claims. In resolving plaintiff's subsequent appeal by right, the Court of Appeals held that plaintiff's arguments concerning the applicability of the RUA had already been decided against her as a part of defendant's interlocutory appeal and that those arguments were, therefore, barred by the law-of-the-case doctrine. Despite this holding, the Court of Appeals reached the merits of plaintiff's RUA arguments and held that the RUA applies and bars plaintiff's claims against defendant.

For the reasons that follow, we reverse the Court of Appeals’ application of the law-of-the-case doctrine and its interpretation of the catchall phrase in MCL 324.73301(1). We hold that plaintiff can contest the RUA's applicability on appeal because her prior claim on the merits was never reviewed, and we hold that zip lining is not an activity covered by the RUA. We also reverse the Oakland Circuit Court's order granting summary disposition to defendant and remand this case to the circuit court for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The events in question occurred in May 2015 while plaintiff attended a weekend social party at defendant's home in West Bloomfield. The defendant, plaintiff's brother, had installed a zip line in his backyard about a year earlier with the assistance of his neighbor. Before the May 2015 party, plaintiff had repeatedly declined to ride the zip line. According to plaintiff, after watching others ride the zip line and in response to continued pressure from defendant, plaintiff agreed to take a single ride on the zip line. Near the end of the ride, while still in motion, plaintiff put her legs down to reach the ground thinking that "the ride was over." The resulting impact with the ground caused two meniscal tears

in plaintiff's left knee that required surgery.

Plaintiff sued defendant on theories of negligence and premises liability. Following discovery, defendant moved for summary disposition under MCR 2.116(C)(8) and (10), arguing that the RUA applied and barred plaintiff's claims unless she could prove that defendant's "gross negligence or willful and wanton misconduct" caused the injury. MCL 324.73301(1). In November 2016, the circuit court agreed that the RUA applied but denied defendant's motion, finding that genuine issues of material fact existed as to whether he engaged in "gross negligence or willful and wanton misconduct" under the RUA.

Both parties sought leave to appeal in the Court of Appeals on an interlocutory basis. In her application, plaintiff argued that the RUA did not apply and also filed a motion for peremptory reversal (Court of Appeals Docket No. 336242). Defendant argued in his application that the circuit court should have granted summary disposition in his favor because no genuine dispute of material fact existed about whether his conduct amounted to gross negligence or was willful and wanton ( Court of Appeals Docket No. 336240). While defendant did not respond to plaintiff's motion for peremptory reversal, the Court of Appeals special motion panel rejected plaintiff's argument, denied her motion for peremptory reversal, and denied her application "for failure to persuade the Court of the need for immediate appellate review." Rott v. Rott , unpublished order of the Court of Appeals, entered May 4, 2017 (Docket No. 336242).

On the same day, the Court of Appeals granted defendant's application "limited to the issues raised in the application and supporting brief." Rott v. Rott , unpublished order of the Court of Appeals, entered May 4, 2017 (Docket No. 336240). In her responsive brief in Docket No. 336240, plaintiff noted the scope of the appeal as defined by the Court of Appeals’ prior orders and stated, "Accordingly, this appeal addresses only those issues raised by Defendant/Appellant." Plaintiff also noted that she had not conceded the applicability of the RUA, stating, "Plaintiff/Appellee vehemently maintains that the RUA does not attach to the instant case."

More than a year later, the Court of Appeals issued an unpublished opinion reversing the circuit court. The Court of Appeals acknowledged that the circuit court had held that the RUA applied and then discussed the RUA, stating, "Absent gross negligence or willful and wanton misconduct on the part of defendant, plaintiff cannot recover for damages resulting from the zip line."

Rott v. Rott , unpublished per curiam opinion of the Court of Appeals, issued December 18, 2018 (Docket No. 336240) (Rott I ), p. 4, 2018 WL 6625162. The court thus presumed, without any analysis or explanation, that the RUA applied. While the court agreed with the circuit court that summary disposition was inappropriate under MCR 2.116(C)(8), it went on to hold that no genuine dispute of material fact existed as to whether defendant's conduct was grossly negligent. Accordingly, the Court of Appeals held that defendant was entitled to summary disposition under MCR 2.116(C)(10) and remanded the case to the circuit court "for entry of an order granting summary disposition for defendant." Id. at 6.

On remand, the circuit court followed the Court of Appeals’ instructions and entered an order on February 8, 2019, granting defendant summary disposition. Plaintiff then exercised her right to appeal, arguing that the RUA did not apply because (1) she was not on the land "for the purpose of" zip lining and (2) zip lining is not a recreational activity covered by the RUA.

The Court of Appeals disagreed in a published opinion, holding that its earlier decision "implicitly decided ... that the RUA applied to the facts of the case, and plaintiff's arguments on appeal stemming from whether the RUA applies are therefore subject to the law-of-the-case doctrine." Rott v. Rott , 331 Mich. App. 102, 107, 951 N.W.2d 99 (2020) ( Rott II ). Despite this holding, the Court addressed the merits of plaintiff's appeal and rejected both of her arguments. Id. at 108-111, 951 N.W.2d 99. Purporting to apply the "last-antecedent rule of statutory construction," the court held:

Plaintiff argues that the statute should be read so that a cause of action only arises for injuries to a person who has entered another's land "for the purpose of" the statutorily enumerated activities or any other outdoor recreational use. (Underlining omitted.) However, the statute actually reads that a cause of action does not arise for injuries to a person "on the land of another without paying ... a valuable consideration for the purpose of " the enumerated activities or any other outdoor recreational use. MCL 324.73301(1) (emphasis added). Under the plain and unambiguous language of the statute and the last-antecedent rule the word "for" in the statute modifies "a valuable consideration." [ Hardaway v. Wayne Co. , 494 Mich. 423, 427, 835 N.W.2d 336 (2013).] Therefore, the statute applies if a person does not pay the owner of the land a valuable consideration for the purpose of the recreational activity. MCL 324.73301(1). Defendant testified that neither he nor his wife collected money from anyone to ride the zip line. A plain reading of the statute does not lend itself to plaintiff's interpretation that the statute requires a person to be on the property for the purpose of the recreational activity for the statute to apply. Plaintiff's assertions that she was harassed by defendant into riding the zip line are irrelevant. [ Rott II , 331 Mich. App. at 108-109, 951 N.W.2d 99.]

The panel went on, however, to apply Neal v. Wilkes , 470 Mich. 661, 670 n. 13, 685 N.W.2d 648 (2004), in which this Court had rejected a similar argument that the RUA did not apply if the purpose for entering the land was a "social visit" as opposed to a recreational use. Rott II , 331 Mich. App. at 109-110, 951 N.W.2d 99. Relying on Neal , the Court of Appeals held that while plaintiff's initial purpose for being on defendant's land may have been a family gathering, at the time of the accident, she was on the land for the purpose of using the zip line. Id. at 110, 951 N.W.2d 99. Finally, the Court held that "zip lining is of the same kind, class, character, or nature of the recreational activities enumerated in the" RUA, and it affirmed summary disposition for defendant. Id. at 110-111, 951 N.W.2d 99.

Plaintiff then sought leave to appeal in this Court. We scheduled oral argument on the application, MCR 7.305(H)(1), and directed the parties to address: (1) whether the Court of Appeals erred in its application of the law-of-the-case doctrine; (2) the proper interpretation of the "for the purpose of" language in the RUA, MCL 324.73301(1) ; and (3) whether zip lining is within the scope of the RUA. Rott v. Rott , 506 Mich. 951, 950 N.W.2d 56 (2020).

II. STANDARD OF REVIEW

We review de novo questions of statutory of interpretation and a trial court's decision to grant or deny summary disposition. DeRuiter v. Byron Twp. , 505 Mich. 130, 139, 949 N.W.2d 91 (2020)....