951 N.W.2d 99
Mich. Ct. App.2020Background
- Plaintiff Doreen Rott injured her knee (two meniscal tears requiring surgery) after riding a self-installed zip line on her brother Arthur Rott’s backyard property.
- The zip line had been installed about a year earlier by defendant and a neighbor; Doreen had previously declined to ride despite repeated invitations.
- At a dinner party at defendant’s home, Doreen rode after prodding; defendant helped harness her and the neighbor detached her at the bottom. While still moving she put her feet down, injuring her knee.
- The trial court initially applied the Recreational Use Act (RUA), found a factual dispute about gross negligence/wanton misconduct, and denied summary disposition. This Court remanded, concluding no genuine issue of gross negligence and directing summary disposition for defendant under MCR 2.116(C)(10).
- On remand the trial court granted summary disposition; plaintiff appealed, arguing the RUA does not apply because (a) she was on the property for a social visit, not for zip lining, and (b) zip lining is not of the same kind/class as the statute’s enumerated activities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the RUA applies when plaintiff’s initial purpose was a social visit | Rott: RUA doesn’t apply because she was at a family gathering, not on the land "for the purpose" of a recreational activity | Rott: RUA applies because statute looks to whether injured person paid for recreational use; initial purpose irrelevant | Court: RUA applies; statute’s wording and Neal reject requiring initial entry for recreational purpose |
| Scope of "other outdoor recreational use" (ejusdem generis) — does zip lining qualify? | Rott: Zip lining is not same kind/class as listed activities, so excluded from RUA | Rott: Zip lining is an outdoor recreational activity akin to listed examples | Court: Zip lining fits "any other outdoor recreational use" under ejusdem generis and Neal/Otto precedents |
| Whether law-of-the-case bars relitigation of RUA applicability | Rott: Challenges applicability despite prior panel language | Rott: Prior appellate opinion implicitly decided RUA applies | Court: Law-of-the-case applies to issues decided (implicitly); prior opinion treated RUA as applicable |
| Whether defendant’s conduct amounted to gross negligence or willful/wanton misconduct | Rott: Defendant’s prodding and setup may show misconduct precluding RUA defense | Rott: No evidence of gross negligence or willful/wanton misconduct | Court: On remand no genuine issue of material fact; defendant not grossly negligent or willful/wanton — summary disposition affirmed |
Key Cases Cited
- Neal v Wilkes, 470 Mich 661 (Michigan Supreme Court interpreting the RUA and applying ejusdem generis and the "purpose" analysis)
- Ballard v Ypsilanti Twp, 457 Mich 564 (RUA is a liability-limiting enactment encouraging landowners to open property for recreation)
- Otto v Inn At Watervale, Inc., 501 Mich 1044 (RUA applied to beach play; rejected requirement of heightened physical intensity or risk)
- Hardaway v Wayne Co, 494 Mich 423 (articulation of the last antecedent rule of statutory construction)
- Bennett v Russell, 322 Mich App 638 (standard of review for summary disposition under MCR 2.116(C)(10))
- Grievance Administrator v Lopatin, 462 Mich 235 (law-of-the-case doctrine)