972 N.W.2d 789
Mich.2021Background
- Plaintiff Doreen Rott was injured on a zip line installed in defendant/brother Arthur Rott’s backyard during a family gathering after she rode the line and hit the ground prematurely, tearing menisci.
- She sued for negligence and premises liability; defendant invoked the Recreational Land Use Act (RUA), MCL 324.73301(1), arguing the RUA bars her claims because she was on the land for a recreational use (zip lining), had not paid, and her injury was not caused by gross negligence or willful/wanton misconduct.
- The trial court agreed the RUA applied but denied summary disposition, finding disputed facts on gross negligence. Parties sought interlocutory review in the Court of Appeals; the court granted defendant’s limited appeal and denied plaintiff’s request for interlocutory review.
- In Rott I the Court of Appeals presumed the RUA applied, decided no gross-negligence issue of fact existed, and remanded for dismissal; on remand the trial court dismissed, and the Court of Appeals (Rott II) affirmed, holding the RUA applied (using the last-antecedent rule and Neal) and that zip lining fit the catchall.
- The Michigan Supreme Court reversed: it held the law-of-the-case doctrine did not bar plaintiff’s challenge because the Court of Appeals in Rott I had presumed but not decided the RUA’s applicability on the interlocutory appeal; it reaffirmed Neal on “for the purpose of” and held zip lining is not covered by the RUA’s catchall phrase because it requires artificial installations beyond mere access to land. Case remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law-of-the-case barred plaintiff from contesting RUA applicability on appeal | Rott argued RUA applicability was never decided on the interlocutory appeal and thus remains open | Rott argued RUA applicability was implicitly decided in Rott I and so plaintiff is bound | Court: law-of-the-case does not bar review where an interlocutory opinion presumed but did not decide an issue; plaintiff may challenge applicability |
| How to read “for the purpose of” in MCL 324.73301(1) | Rott: RUA applies only when person is on land at time of injury for purpose of listed recreational activity | Rott: last-antecedent reading — “for the purpose of” modifies “valuable consideration,” so statute applies when person does not pay for the recreational activity | Court reaffirmed Neal: focus is the person’s purpose at time of injury (RUA applies if, at time of injury, person was on land for a covered recreational use) and rejected the last-antecedent reading |
| Scope of catchall “any other outdoor recreational use” — does it include zip lining? | Rott: zip lining is not an RUA activity because it requires construction/installation and thus is not of the same kind/class as listed activities | Rott: zip lining is an outdoor recreational use of the same kind as listed activities and falls within the catchall | Court held catchall is limited by ejusdem generis to activities that (1) traditionally could not be done indoors and (2) require nothing more than access to the land; zip lining fails the second requirement (needs installed equipment) and is not covered |
| Proper disposition below after RUA analysis | Rott: dismissal improper if RUA does not apply; remand for further proceedings | Rott: dismissal proper if RUA applies and no gross-negligence exception shown | Court reversed summary disposition for defendant and remanded for further proceedings consistent with holding that RUA does not cover zip lining |
Key Cases Cited
- Neal v. Wilkes, 470 Mich 661 (2004) (RUA applies based on purpose at time of injury; initial reason for entry is not dispositive)
- Grievance Administrator v. Lopatin, 462 Mich 235 (2000) (law-of-the-case applies only to issues actually decided)
- Wymer v. Holmes, 429 Mich 66 (1987) (history/purpose of RUA to encourage land access by limiting owner liability)
- Sands Appliance Servs., Inc. v. Wilson, 463 Mich 231 (2000) (discussion of ejusdem generis canon and interpretive principles)
- Otto v. Inn at Watervale, Inc., 501 Mich 1044 (2018) (definition of “recreational” and prior application of RUA catchall to beach play)