Sherry v. East Suburban Football League

• Decision Date: 17 March 2011
• Docket Number: Docket No. 295792.
• Parties: SHERRY v. EAST SUBURBAN FOOTBALL LEAGUE.
• Court: Court of Appeal of Michigan — District of US

292 Mich.App. 23

807 N.W.2d 859

SHERRY

v.EAST SUBURBAN FOOTBALL LEAGUE.

Docket No. 295792.

Court of Appeals of Michigan.

Submitted March 1, 2011, at Detroit.Decided March 17, 2011, at 9:05 a.m.

The Erskine Law Group, P.C., Rochester (by Scott M. Erskine), for Jessicca Sherry.

Garan Lucow Miller, P.C., Detroit (by Caryn A. Gordon), for the East Suburban Football League, the Macomb Youth Football Club, Julie Lange, and Stephanie Vallie.

Before: MARK J. CAVANAGH, P.J., and JANSEN and SERVITTO, JJ.

PER CURIAM.

Jessicca Sherry, a minor, by her next friend, Renee Sherry, ¹ appeals as of right the trial court's order granting summary disposition in favor of defendants the East Suburban Football League (ESFL), the Macomb Youth Football Club (MYFC), Julie Lange, Stephanie Vallie, Jane Doe 1, and Jane Doe 2.² We reverse the trial court's order granting summary disposition to defendants and remand the case for further proceedings consistent with this opinion.

Plaintiff sustained injuries while performing a stunt, called a full extension cradle,³ at “Spirit Day,” a camp for cheerleaders of the ESFL. At the time, plaintiff cheered on the junior varsity team for the Macomb Mustangs, a team organized through the MYFC. The MYFC is a nonprofit organization and franchise member of the ESFL. Stephanie Vallie served as cheer coordinator for the Macomb Mustangs, and Julie Lange served as coach for the junior varsity cheerleading team. According to plaintiff, her injuries occurred as a result of defendants' negligence and gross negligence in, among other things, failing to properly train and supervise the cheerleaders.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), contending that there was no evidence that defendants were grossly negligent or engaged in reckless misconduct, so that they could not be held liable for plaintiff's injuries. The trial court, quoting Gibbard v. Cursan, 225 Mich. 311, 196 N.W. 398 (1923), overruled by Jennings v. Southwood, 446 Mich. 125, 521 N.W.2d 230 (1994), agreed that plaintiff must demonstrate reckless misconduct and that, because she failed to do so, summary disposition in defendants' favor was appropriate. In denying plaintiff's motion for reconsideration, the trial court relied on Ritchie–Gamester v. City of Berkley, 461 Mich. 73, 94, 597 N.W.2d 517 (1999), to find that plaintiff's argument lacked merit.

I. APPLICABLE STANDARD OF CARE

Plaintiff first argues that the trial court erred by applying the reckless-misconduct standard of care adopted in Ritchie–Gamester. According to plaintiff, ordinary negligence principles apply, and genuine issues of material fact remain regarding whether defendants acted negligently in the supervision of plaintiff. We agree.

We review de novo decisions on motions for summary disposition. Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008). Summary disposition under MCR 2.116(C)(10) is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rose v. Nat'l Auction Group, 466 Mich. 453, 461, 646 N.W.2d 455 (2002). In reviewing the trial court's decision, “we consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion.” Id. The general standard of care is a question of law for the courts, and thus subject to review de novo. Moning v. Alfono, 400 Mich. 425, 438, 254 N.W.2d 759 (1977).

In Ritchie–Gamester, the Michigan Supreme Court set out to decide “the proper standard of care among coparticipants for unintentional conduct in recreational activities.” 461 Mich. at 77, 597 N.W.2d 517. The undisputed facts of the case were that the defendant, a 12–year–old girl, while skating backwards during an open-skating period at an ice rink, ran into the plaintiff and knocked her to the ground, causing serious injury to the plaintiff's knee. Id. at 75, 597 N.W.2d 517. The Court stated:

[W]e join the majority of jurisdictions and adopt reckless misconduct as the minimum standard of care for coparticipants in recreational activities. We believe that this standard most accurately reflects the actual expectations of participants in recreational activities.... [W]e believe that participants in recreational activities do not expect to sue or be sued for mere carelessness. A recklessness standard also encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Finally, this standard lends itself to common-sense application by both judges and juries. [ Id. at 89, 597 N.W.2d 517.]

Unlike the claim in Ritchie–Gamester, plaintiff's claim in this case is not against a coparticipant. Therefore, the reckless-misconduct standard adopted in Ritchie–Gamester is inapplicable. The Court in Ritchie–Gamester was careful, in fact, to note the limited reach of its holding. In addition, the justifications that the Supreme Court cited for adopting the reckless-misconduct standard do not support extending the standard to coaches and organizations. Coaches and organizations can expect to be sued for their carelessness, and holding coaches and organizations to an ordinary negligence standard of care does not discourage vigorous participation in recreational activities. Had plaintiff brought her claim against other cheerleaders, who may properly be considered coparticipants in the recreational activity of cheerleading, then, perhaps, the reckless-misconduct standard announced in Ritchie–Gamester would apply. Nothing in Ritchie–Gamester, however, precludes ordinary-negligence claims against coaches and organizations involved in recreational sports.

The case of Behar v. Fox, 249 Mich.App. 314, 316–318, 642 N.W.2d 426 (2002), in which a panel of this Court applied the reckless-misconduct standard from Ritchie–Gamester to a soccer coach, is distinguishable from the case at hand. In Behar, the plaintiffs sued the defendant, their son's soccer coach, after he collided with or kicked their son in the knee during a soccer scrimmage, resulting in a torn anterior cruciate ligament. Id. at 315, 642 N.W.2d 426. The plaintiffs contended that the ordinary-negligence standard should apply, but this Court disagreed. Id. at 316, 642 N.W.2d 426. This Court stated, “the mere fact that [the] plaintiffs' minor son was injured in a collision with an adult coach rather than with a larger child coparticipant is of insufficient distinction to take this case out of the realm of the Ritchie–Gamester standard.” Id. at 318, 642 N.W.2d 426. It further noted that the defendant “was as much a ‘coparticipant’ in the scrimmage as he was a coach.” Id. Thus, although the reckless-misconduct standard applies in cases where a coach is acting as a coparticipant, the ordinary-negligence standard remains applicable in typical failure-to-supervise cases.

Further, in several cases involving recreational activities, this Court has held nonparticipating parties to an ordinary-negligence standard in the absence of an applicable immunity statute. See Woodman v. Kera, LLC, 280 Mich.App. 125, 127–130, 760 N.W.2d 641 (2008), aff'd 486 Mich. 228, 785 N.W.2d 1 (2010); Tarlea v. Crabtree, 263 Mich.App. 80, 687 N.W.2d 333 (2004). The gross-negligence standard applies in cases involving coaches of publicly sponsored athletic teams who are entitled to governmental immunity, id. at 83–89, 687 N.W.2d 333, and the reckless-misconduct standard applies in cases alleging negligence on the part of coparticipants in recreational activities, Ritchie–Gamester, 461 Mich. at 89, 597 N.W.2d 517. Defendants, however, cite no authority to support their position that the reckless-misconduct standard announced in Ritchie–Gamester, or any other heightened standard, applies in cases alleging negligence on the part of nonparticipating coaches and organizations involved in privately sponsored recreational activities.

A prima facie case of negligence requires the establishment of four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v. Dow Chem. Co., 473 Mich. 63, 71–72, 701 N.W.2d 684 (2005). Having determined that ordinary care is the appropriate standard of care in this case, the next question is whether genuine issues of material fact remain regarding whether defendants' conduct fell below that standard. In ordinary negligence cases, whether the defendant has breached his or her duty of care owed to the plaintiff is dependent on foreseeability. Laier v. Kitchen, 266 Mich.App. 482, 494, 702 N.W.2d 199 (2005). The question is whether the defendant's action or inaction created a risk of harm to the plaintiff, and whether the resulting harm was foreseeable. Schuster v. Sallay, 181 Mich.App. 558, 563, 450 N.W.2d 81 (1989).

Here, there remain genuine issues of material fact regarding whether defendants exercised ordinary care under the circumstances. Viewing the evidence in the light most favorable to plaintiff, it cannot be said as a matter of law that defendants provided proper supervision of the stunting station or that plaintiff's injuries were unforeseeable. Although a coach was supposed to be positioned at the stunting station, no coach was present when plaintiff suffered her injury. Without proper supervision, the girls in plaintiff's group who were in high school became inattentive and engaged in horseplay. Although a coach was notified, she simply threatened the high school girls with running laps if they dropped plaintiff. Despite this threat, the high school girls continued horsing around and were not counting properly to ensure their synchronization. The girls then attempted to execute an advanced cheerleading stunt with plaintiff, who had never before performed the maneuver. On the whole, we find that reasonable minds could differ regarding whether an individual exercising ordinary care...