Wright v. Dudley

• Decision Date: 06 May 1987
• Docket Number: Docket No. 89326
• Citation: Wright v. Dudley, 404 N.W.2d 217, 158 Mich.App. 154 (Mich. App. 1987)
• Parties: Janice WRIGHT, Next Friend of Terry Wright, Plaintiff-Appellant, v. Yvonne DUDLEY, Defendant-Appellee. 158 Mich.App. 154, 404 N.W.2d 217
• Court: Court of Appeal of Michigan

Page 217

404 N.W.2d 217

Janice WRIGHT, Next Friend of Terry Wright Plaintiff-Appellant, v. Yvonne DUDLEY, Defendant-Appellee.

Docket No. 89326.

158 Mich.App. 154, 404 N.W.2d 217

Court of Appeals of Michigan.

Submitted June 19, 1986.

Decided December 22, 1986.

Released for Publication May 6, 1987.

[158 MICHAPP 155] Woll, Crowley, Berman, Olsman & Nolan, P.C. by Alan F. Giles, Southfield, for plaintiff-appellant.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for defendant-appellee.

Before SHEPHERD, P.J., and J.H. GILLIS and MacKENZIE, JJ.

PER CURIAM.

Plaintiff appeals as of right from an opinion and order of summary disposition in favor of defendant. MCR 2.116(C)(10). We affirm.

This case arises from a diving accident which occurred at defendant's residence on Clear Lake. On June 17, 1984, Terry Wright and a group of friends were social guests at defendant's home. At [158 MICHAPP 156] the rear of defendant's property was a boat dock extending into the lake. Beyond the end of the dock was a raft. When persons on the raft encouraged Wright to join them, Wright ran down a hill where he had been standing onto the dock and dove headfirst off the end of the dock toward the raft. As he began his dive, he heard someone yell, "don't dive." The water at the end of the dock was approximately three feet deep. There were no depth markers or posted warnings not to dive. Wright struck his head on the bottom and broke his neck. He is permanently paralyzed from the chest down. Plaintiff, Wright's mother, subsequently filed this action on Wright's behalf to recover damages for his injuries.

The trial court granted defendant's motion for summary disposition on the ground that the recreational land use act, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, applied to defendant's residence. The statute provides:

"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."

The trial court further ruled that plaintiff had failed to establish that Wright's injuries were caused by defendant's gross negligence or wilful and wanton misconduct.

On appeal, plaintiff argues that the recreational land use act was not intended to protect landowners[158 MICHAPP 157] from liability for injuries sustained in their backyards by social invitees. A similar argument was rejected by this Court in Winiecki v. Wolf, 147 Mich.App. 742, 744-745, 383 N.W.2d 119 (1985):

"The duty of the courts is to interpret statutes as we find them. Melia v Employment Security Comm, 346 Mich 544, 561; 78 NW2d 273 (1956). A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself. Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959). The courts may not speculate as to the probable intent of the Legislature beyond the words employed in the act. Id. Ordinary words are to be given their plain and ordinary meaning. Carter Metropolitan Christian Methodist Episcopal Church v Liquor Control Comm, 107 Mich App 22, 28; 308 NW2d 677 (1981).

"This statute, as the trial court has already observed, is clear and unambiguous. Plaintiff was a person on the lands of another, without paying a consideration, for the purpose of an outdoor recreational use. The statute offers nothing on its face excluding from its application the backyard of residential property. If the Legislature did not intend the statute to apply to parcels of land this size, it was within its power to insert words limiting the statute's application, e.g., to lands in their natural state. As we, however, are constrained to apply the statute as written, we cannot say that the trial court erred in relieving defendants of liability based on the recreational use statute."

Accord: Yahrling v. Belle Lake Ass'n, Inc., 145 Mich.App. 620, 378 N.W.2d 772 (1985). C.F., Wymer v. Holmes, 144 Mich.App. 192, 199, 375 N.W.2d 384 (1985), lv. gtd. 424 Mich. 877 (1986).

We agree with the reasoning of the Winiecki and Yahrling panels, and conclude that the trial court did not err in ruling that the recreational land use act applied to defendant's property.

[158 MICHAPP 158] The recreational use statute does not protect landowners from liability for wilful and wanton misconduct. Plaintiff argues that even if the statute applies in this case, summary disposition was improperly granted because a question of fact exists as to whether defendant's acts constituted wilful and wanton misconduct. We disagree.

The test for wilful and wanton misconduct was set out in Gibbard v. Cursan, 225 Mich. 311, 322, 196 N.W. 398 (1923), and requires:

"(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another."

Although the Supreme Court criticized the language of this test in Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d 810 (1982), the...