Xu v. Gay

• Decision Date: 24 June 2003
• Docket Number: Docket No. 237520.
• Citation: 257 Mich. App. 263,668 N.W.2d 166
• Parties: Junyi XU, Plaintiff-Appellant, and Haini Hou, Plaintiff, v. Hiedi GAY, d/b/a Vital Power Fitness Center, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

668 N.W.2d 166

257 Mich. App. 263

Junyi XU, Plaintiff-Appellant, and Haini Hou, Plaintiff, v. Hiedi GAY, d/b/a Vital Power Fitness Center, Defendant-Appellee.

Docket No. 237520.

Court of Appeals of Michigan.

Submitted March 4, 2003, at Detroit.

Decided June 24, 2003, at 9:20 a.m.

Released for Publication August 20, 2003.

Mark Granzotto, P.C. (by Mark Granzotto) and Donald L. Bramlage, Jr., P.C. (by Donald L. Bramlage, Jr.), Detroit, Farmington Hills, for the plaintiff.

Coticchio & Associates, P.C. (by Stephen A. Coticchio), Mt. Clemens, for the defendant.

Before: HOEKSTRA, P.J., and SMOLENSKI and FORT HOOD, JJ.

SMOLENSKI, J.

In this wrongful-death action, plaintiff Junyi Xu, as personal representative for the estate of decedent Ning Yan, appeals as of right the trial court's entry of two orders granting summary disposition in favor of defendant Hiedi Gay, doing business as Vital Power Fitness Center. We affirm in part, reverse in part, and remand.

I

In February 1999, Ning Yan went to defendant's fitness center to use a oneweek complimentary pass. Yan visited the fitness center on February 16 and 18, 1999. Each time he visited he was required to sign-in and did so. At the top of the sign-in sheet was a paragraph that purportedly constituted a release of liability.

On February 18, 1999, while using one of the treadmills, Yan fell and hit his head. The head injury Yan sustained was severe, and he died on March 12, 1999. The parties dispute the circumstances of Yan's fall. Plaintiff contends that Yan stumbled while jogging and that the belt of the treadmill threw Yan back into the wall or the window ledge, which were only 2-1/2 feet behind him. Defendant asserts that Yan was ill and fell down, hitting his head on the floor. No one actually saw Yan hit the wall, floor, or window ledge.

On July 22, 1999, plaintiff filed this suit alleging ordinary negligence by defendant, loss of consortium, and wrongful death. Defendant filed a motion for summary disposition under MCR 2.116(C)(7), arguing that the release at the top of the sign-in sheet that Yan signed precluded any claims of ordinary negligence against defendant. Following a hearing on May 10, 2000, the trial court agreed with defendant, and on May 19, 2000, the Court granted defendant's motion regarding the claim of ordinary negligence, but also granted plaintiff leave to file his second amended complaint, which was actually filed on April 5, 2000, without the court's permission, and alleged a claim of gross negligence against defendant.¹

In July 2001, defendant renewed her motion for summary disposition to dismiss plaintiff's claims of gross negligence and wrongful death.² On September 12, 2001, following a hearing, the trial court concluded that reasonable minds could not differ and there was insufficient evidence to support a claim of gross negligence. Therefore, because the wrongful-death claim was derivative, both claims failed. On September 24, 2001, the trial court entered an order granting defendant summary disposition on plaintiff's remaining claims pursuant to MCR 2.116(C)(10).

II

Summary disposition against a plaintiff's complaint is proper if there is a valid release of liability between the parties. MCR 2.116(C)(7). A motion under MCR 2.116(C)(10) tests the factual support for a claim. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). We review de novo a trial court's decision on a motion for summary disposition. Id.

When reviewing a motion for summary disposition under MCR 2.116(C)(7), an appellate court accepts all the plaintiff's well-pleaded allegations as true, and construes them most favorably to the plaintiff, unless specifically contradicted by documentary evidence. Sewell v. Southfield Pub. Schools, 456 Mich. 670, 674, 576 N.W.2d 153 (1998). The court must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted, and the motion should be granted only if no factual development could provide a basis for recovery. Skotak v. Vic Tanny Int'l, Inc., 203 Mich.App. 616, 617, 513 N.W.2d 428, mod on other grounds Patterson v. Kleiman, 447 Mich. 429, 526 N.W.2d 879 (1994).

Similarly, when deciding a motion for summary disposition under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Ritchie-Gamester v. City of Berkley, 461 Mich. 73, 76, 597 N.W.2d 517 (1999). If the evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999).

III

Plaintiff first argues that the trial court erred in dismissing his gross-negligence claim pursuant to MCR 2.116(C)(10). Plaintiff asserts that, on the basis of the facts of this case, it was possible for a reasonable jury to conclude that defendant was grossly negligent, and, thus, summary disposition was inappropriate. We disagree.

Historically, for a claim of gross negligence to survive under Michigan common law, the plaintiff had to show that defendant knew or should have known of the plaintiff's precedent negligence, and by defendant's subsequent negligence caused injury to the plaintiff. Gibbard v. Cursan, 225 Mich. 311, 319, 196 N.W. 398 (1923); Fuga v. Comerica Bank-Detroit, 202 Mich.App. 380, 383, 509 N.W.2d 778 (1993). Common-law gross negligence is not a higher degree of negligence, but rather ordinary negligence of the defendant that follows the negligence of the plaintiff. Jennings v. Southwood, 446 Mich. 125, 130, 521 N.W.2d 230 (1994).

However, this common-law definition was rejected by our Supreme Court in Jennings, supra.

The Jennings Court reasoned,

Gibbard's formulation of gross negligence is really the doctrine of last clear chance in disguise; accordingly, its usefulness is dubious at best in light of our holding in Petrove [v. Grand Trunk W. R. Co., 437 Mich. 31, 33, 464 N.W.2d 711 (1991) ].

* * *

This is an instance in which precedent fails to promote justice. We have repudiated the traditional justification for Gibbard's gross negligence. Contributory negligence no longer holds a place in Michigan jurisprudence, compelling the demise of its attendant legal theories. "The reasons for the old rule no longer obtaining, the rule falls with it." Montgomery v. Stephan, 359 Mich. 33, 49, 101 N.W.2d 227 (1960). [Id. at 132-133, 521 N.W.2d 230.]

The Jennings Court acknowledged that it needed to adopt a new definition of gross negligence, and noted that most jurisdictions did not agree on an exact definition. Id. at 135-136, 521 N.W.2d 230.

Jennings involved the applicability of gross negligence in the context of the emergency medical services act (EMSA), M.C.L. § 333.20901 et seq. Therefore, instead of embarking on an analysis of the various standards used in different jurisdictions, the Court turned to the definition of gross negligence provided in the government tort liability act (GTLA), M.C.L. § 691.1401 et seq. Because the EMSA and the GTLA shared the same purpose—insulating employees from ordinary negligence liability, the Court adopted the GTLA definition as the standard for gross negligence under the EMSA. Jennings, supra at 136-137, 521 N.W.2d 230. Gross negligence is defined in the GTLA as "conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results." Id. at 136, 521 N.W.2d 230. See also M.C.L. § 691.1407(2)(c).

This definition is used in many other Michigan statutes that provide limited immunity to certain groups, but allow liability for gross negligence. See M.C.L. § 257.606a (Michigan Vehicle Code); MCL 324.81131 and M.C.L. § 324.81124 (Recreational Use Act); MCL 500.214 (Insurance Code); MCL 600.2945 (Revised Judicature Act). Additionally, Michigan's standard jury instruction for gross negligence also incorporated the GTLA's definition. M. Civ. J.1 14.10.

A contractual waiver of liability also serves to insulate against ordinary negligence, but not gross negligence. Lamp v. Reynolds, 249 Mich.App. 591, 594, 645 N.W.2d 311 (2002). Thus, because the underlying purpose is the same, we adopt the statutory definition of gross negligence as defined in the GTLA and incorporated into the EMSA by the Jennings Court. Therefore, applying this definition, the question becomes whether reasonable minds could differ regarding whether defendant's conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted to decedent. Jennings, supra; Vermilya v. Dunham, 195 Mich.App. 79, 83, 489 N.W.2d 496 (1992). We find that reasonable minds could not.³

As evidence of defendant's gross negligence, plaintiff offered the testimony of Dr. Mark Rabinoff, an expert in recreational safety. Rabinoff testified with respect to the industry's standard of care regarding the safety distance behind treadmills, which should be a minimum of five feet. Rabinoff admitted that these are only recommended standards and are not mandatory. Rabinoff also stated that a similar accident was sure to happen again if the treadmill was not moved farther from the wall. However, we note that there was no evidence establishing that Yan actually hit his head on the wall, as opposed to the floor.

Defendant admitted that she knew a treadmill user could stumble while on the moving belt. However, defendant denied knowing that such a loss of balance could cause the user to be propelled backwards off the treadmill. Rabinoff testified that defendant's statement was "the dumbest statement I have ever heard from anyone I think in thirty years who had anything to do with the fitness field about a treadmill." Further, Rabinoff found defendant's lack of knowledge regarding safety standards for a fitness club to be incredulous, stating that defendant was "the worst, poorly educated owner/operator of a health club I have...