Van Guilder v. Collier

• Decision Date: 06 March 2002
• Docket Number: Docket No. 223987.
• Citation: 248 Mich. App. 633,650 N.W.2d 340
• Parties: Reed J. VAN GUILDER and Lorie Ann Van Guilder, Plaintiffs-Appellants, v. Brad COLLIER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

650 N.W.2d 340

248 Mich. App. 633

Reed J. VAN GUILDER and Lorie Ann Van Guilder, Plaintiffs-Appellants, v. Brad COLLIER, Defendant-Appellee.

Docket No. 223987.

Court of Appeals of Michigan.

Submitted November 13, 2001, at Detroit.

Decided December 11, 2001, at 9:00 a.m.

Released for Publication March 6, 2002.

Roy J. Transit, Glen A. Kampman, Romeo, for the plaintiffs.

Secrest, Wardle, Lynch, Hampton, Truex and Morley by Michael L. Updike, Farmington Hills, for the defendant.

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

MARK J. CAVANAGH, P.J.

Plaintiffs appeal as of right from the trial court's grant of summary disposition, pursuant to MCR 2.116(C)(10), in favor of defendant in this negligence action. We reverse and remand for further proceedings.

This action arises as a consequence of injuries sustained by plaintiff,¹ Reed J. Van Guilder, while riding an off-road recreation vehicle (ORV). In July 1998, plaintiff and defendant, Brad Collier, were each riding four-wheel ORVs on vacant land. In the course of attempting to travel up a hill, plaintiff's ORV began slowing and experiencing difficulty as it neared the top of the hill. Defendant, who was riding his ORV directly behind plaintiff, gave his ORV some gas and "nudged" the rear of plaintiff's ORV in an apparent attempt to push plaintiff to the top of the hill. However, instead, plaintiff's ORV flipped over backwards, throwing plaintiff onto the ground where he landed on his back. Defendant, who was "going at a pretty good speed," proceeded to run over plaintiff. As a consequence of the incident, plaintiff allegedly sustained injuries, including a broken neck.

Thereafter, plaintiffs filed this negligence action. The trial court, relying on Ritchie-Gamester v. Berkley, 461 Mich. 73, 597 N.W.2d 517 (1999), granted defendant's motion for summary disposition, holding that the standard of care for claims arising out of recreational activity is recklessness and plaintiffs' allegations, as well as the evidence, supported only a claim of ordinary negligence. The trial court also denied plaintiffs' motion to amend their complaint to include a count of recklessness, holding that such amendment would be futile because it was unsupported by the evidence. Subsequently, plaintiffs moved for reconsideration arguing that the applicable standard of care is negligence and that Ritchie-Gamester was inapplicable because the operation of ORVs was not the type of "recreational activity" contemplated by the holding. The trial court denied plaintiffs' motion.

On appeal, plaintiffs argue that the trial court erred in applying a recklessness standard of care because the type of recreational activity considered in Ritchie-Gamester did not include the operation of motorized recreation vehicles. We agree. This Court reviews de novo a trial court's grant or denial of summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998).

To establish a prima facie case of negligence, a plaintiff must prove four elements: "(1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant's breach was a proximate cause of the plaintiff's injuries, and (4) the plaintiff suffered damages." Spikes v. Banks, 231 Mich.App. 341, 355, 586 N.W.2d 106 (1998). In this case, the issue is whether defendant owed plaintiff a duty to avoid negligent conduct or merely to avoid reckless conduct in the operation of his ORV. We conclude that the applicable standard of care is negligence.

In Ritchie-Gamester, supra, the plaintiff was injured while ice skating during an open skating session when another skater, who had been skating backwards, ran into her causing her to fall and allegedly sustain injuries. The plaintiff brought an action against the skater alleging negligence and our Supreme Court affirmed the trial court's dismissal of the case, holding that "coparticipants in a recreational activity owe each other a duty not to act recklessly." Id. at 95, 597 N.W.2d 517. The Supreme Court premised its holding, in part, on the proposition that persons who engage in recreational activities temporarily adopt a set of rules applicable to the particular pastime or sport and, by the nature of the activities, inherent risks of harm are foreseeable. Id. at 86, 88, 597 N.W.2d 517.

The instant case, however, is distinguishable from Ritchie-Gamester. In that case, the Court primarily focused its analysis on injuries sustained during the course of recreational activities that typically or foreseeably involve physical contact between coparticipants. To the contrary, a person operating a motorized recreation vehicle does not reasonably expect or anticipate the risk of physical contact, nor is such risk an obvious or necessary danger inherent to its normal operation. The Ritchie-Gamester Court did not contemplate injuries that occur as a result of physical contact between two such vehicles. This distinction is dispositive. We decline to adopt defendant's speculative conclusion that our Supreme Court intended that a recklessness standard of care apply with regard to the operation of motorized recreation vehicles simply because they are usually used for recreational purposes. The operation of motor vehicles, including ORVs, is not governed by the "rules of the game," but by the law.

A "motor vehicle" is defined by the Michigan Vehicle Code (MVC), M.C.L. § 257.33, as "every vehicle that is self-propelled...." A "vehicle" is further defined by the MVC as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway...." M.C.L. § 257.79. An ORV is self-propelled and "may be transported or drawn upon a highway," therefore, it is a motor vehicle under the MVC.² Further, this Court has held that ORVs are vehicles to which certain provisions of the MVC apply. See People v. O'Neal, 198 Mich. App. 118, 120, 497 N.W.2d 535 (1993). Subsection 401(1) of the civil liability act of the MVC, M.C.L. § 257.401(1), allows for the imposition of liability for injury caused by ordinary negligence in the operation of a motor vehicle. See Alex v. Wildfong, 460 Mich. 10, 16, 594 N.W.2d 469 (1999). Whether M.C.L. § 257.401(1) applies to the operation of an ORV appears to present an issue of first impression; however, we hold that the statute is controlling and imposes a negligence, rather than a recklessness, standard of care.³

The primary goal of statutory interpretation is to give effect to the intent of the Legislature. 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 intent of the Legislature. Charboneau v. Beverly Enterprises, Inc., 244 Mich.App. 33, 40, 625 N.W.2d 75 (2000). If the plain and ordinary meaning of the statute's language is clear, judicial construction is inappropriate. Id. Further, statutes that relate to the same subject or that share a common purpose are in pari materia and must be read together as one law, even if they were enacted on different dates. Travelers Ins. v. U-Haul of Michigan, Inc. 235 Mich. App. 273, 279-280, 597 N.W.2d 235 (1999).

In this case, it appears that two statutory schemes apply to the operation of ORVs; the off-road recreation vehicles section of the Natural Resources and Environmental Protection Act (NREPA),⁴ M.C.L. § 324.81101 et seq., and the MVC, specifically the civil liability act, M.C.L § 257.401. M.C.L.§ 257.401(1) provides, in relevant part:

This section shall

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