Wilson v. Thomas L. McNamara, Inc.

• Decision Date: 13 January 1989
• Docket Number: Docket No. 94195
• Citation: 173 Mich.App. 372,433 N.W.2d 851
• Parties: Lucille WILSON, Personal Representative of the Estate of Robert Kevin Wilson, deceased, Plaintiff-Appellant, v. THOMAS L. McNAMARA, INC., Thomas L. McNamara, Bernestine A. McNamara, Gary Robert Markwart, Lynn Marie Markwart, and Lamar Corporation, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 851

433 N.W.2d 851

173 Mich.App. 372

Lucille WILSON, Personal Representative of the Estate of Robert Kevin Wilson, deceased, Plaintiff-Appellant, v. THOMAS L. McNAMARA, INC., Thomas L. McNamara, Bernestine A McNamara, Gary Robert Markwart, Lynn Marie Markwart, and Lamar Corporation Defendants-Appellees.

Docket No. 94195.

Court of Appeals of Michigan.

Submitted Feb. 10, 1988.

Decided Dec. 5, 1988.

Released for Publication Jan. 13, 1989.

Zimmer & Deitrick, P.C. by Noreen K. Myers, Charlotte, for plaintiff-appellant.

Scodeller, DeLuca, Vogel & Schober by Henry W. Schober, Jr., Lansing, for defendants-appellees McNamara.

Smith, Haughey, Rice & Roegge by Jon D. Vander Ploeg, Grand Rapids, for defendants-appellees Markwart.

Before MAHER, P.J., and SHEPHERD and TERTZAG, ^* JJ.

SHEPHERD, Judge.

In this wrongful death action, plaintiff appeals as of right from two orders granting summary disposition in favor of defendants under MCR 2.116(C)(8). The trial court held on October 22, 1985, that plaintiff's negligence and attractive nuisance claims were barred by the recreational land use act, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, and on July 3, 1986, that plaintiff failed to state a claim for wilful and wanton misconduct. We reverse the trial court's holding that the act applied and remand for further proceedings consistent with this opinion.

Plaintiff commenced this action in September, 1984, stating claims for negligence and attractive nuisance. Plaintiff amended the complaint twice to name additional parties as defendants and twice in an effort to comply with the court's October 22, 1985, ruling that plaintiff must allege facts which sufficiently state a claim against the defendants under the act.

Defendants are the alleged private owners and possessors of a parcel of land containing a man-made pond where plaintiff's young son drowned. The pond is located on a large tract of land which, for the most part, is undeveloped. Plaintiff's fourth amended complaint alleged that the pond was clearly visible and accessible from the public streets and that the parcel was situated in a residential area. The pond itself was allegedly constructed by defendants Thomas and Bernestine McNamara in the course of removing gravel for a commercial venture, and the area adjacent to the pond was allegedly used to store machinery, a steam shovel, and old cars. Part of the parcel, including a shoreline of the pond, was allegedly sold to defendant Lamar Corporation as a business acquisition and the rights to the water surface were leased to defendants Gary Robert and Lynn Marie Markwart, who then used the pond for a water skiing school.

On appeal, plaintiff argues that the trial court erred in ruling that the recreational land use act barred her wrongful death action stemming from the drowning of her son in the man-made pond. We agree.

Originally, plaintiff based her wrongful death action against defendants on negligence and attractive nuisance theories of liability. The trial court's ruling in response to defendants' motions for summary disposition under MCR 2.116(C)(8) that the claims were barred because the act applied was essentially one implying that plaintiff must plead facts in avoidance of the act. With the exception of certain claims made against governmental entities, MCR 2.116(C)(7) is the appropriate rule under which a defendant may raise a defense by asserting that a claim is barred. See Hoffman v. Genesee Co., 157 Mich.App. 1, 403 N.W.2d 485 (1987), lv. den. 428 Mich. 902 (1987). We do not believe that MCR 2.116(C)(8), which tests the adequacy of the plaintiff's complaint, was an appropriate rule upon which to grant summary disposition to defendants.

In any event, the mislabeling of a motion does not preclude review where the lower court record otherwise permits review. Hoffman, supra, 157 Mich.App. p. 9, 403 N.W.2d 485. Plaintiff was provided with an opportunity to amend her complaint and the parties' dispute focused on the application of the act to the facts pled, assuming that they could be proven. To the extent that the parties present a legal issue which would need to be addressed on remand, we believe that it warrants review.

It is not disputed that plaintiff's young son drowned in a man-made pond situated on a large tract of land. The parties disputed whether the commercial development of a portion of the tract, including the man-made pond, rendered the act inapplicable. The act, as applied in the instant case, stated:

"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee." M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485.

In Wymer v. Holmes, 429 Mich. 66, 412 N.W.2d 213 (1987), our Supreme Court stated that the act was not intended to apply to urban, suburban, or subdivided lands, without making any qualification for the size of the tract of land involved. See also Murday v. Bales Trucking, Inc., 165 Mich.App. 747, 419 N.W.2d 451 (1988). Instead, the act was designed to limit owner liability on large tracts of undeveloped land which are suitable for outdoor recreational use and are difficult to defend from trespassers and to make safe for invited persons engaged in recreational activities. Wymer, supra, 429 Mich. p. 79, 412 N.W.2d 213; and see Harris v. Vailliencourt, 170 Mich.App 740, 428 N.W.2d 759 (1988). Noting the impracticability of keeping such tracts safe, the Court stated:

"The intention of the Legislature to limit owner liability derives from the impracticability of keeping certain tracts of lands safe for public use. The same need to limit owner liability does not arise in the case of recreational facilities which, in contrast, are relatively easy to supervise and monitor for safety hazards." Wymer, supra, 429 Mich. p. 79, 412 N.W.2d 213.

While the act does look to the size of the tract for purposes of deciding whether the act applies to a particular claim, it is not concerned with the ownership of the tract. The focus is on the use of the land and whether it remains in a relatively natural state or has been developed and changed in a manner incompatible with the intention of the act. Whether or not one is the "owner, tenant, or lessee" of the lands relates to the issue of whether one is a proper defendant in the action. The two issues central to the determination of the act's application to an injured person's claim are the injured person's purpose for going onto the land and the character of the land. Wymer, supra, pp. 79-80, 412 N.W.2d 213. The central issue in this case is the character of the land.

While it is true that the tract of land is large and, for the most part, undeveloped, plaintiff alleges that her son drowned in a portion of the tract that was commercially developed. The gravel pit was filled with water and leased to a water-ski school. The land adjacent to the pond was accessible from the public streets and used to store equipment and old cars. This was not open, vacant land in a relatively natural state. Wymer, supra, p. 79, 412 N.W.2d 213. The need to limit liability does not arise where, as here, the use of a portion of the tract has been changed in a manner incompatible with the purpose of the act. Accordingly, we hold that plaintiff's allegations, if proven, could demonstrate that the portion of the land where...