918 N.W.2d 707
Mich.2018Background
- Kenneth Bertin and Douglas Mann, playing a casual round of golf, were using a golf cart when Mann struck Bertin; accounts differed on whether Bertin walked into the cart or was struck while walking to his ball.
- Bertin sued for negligence; Mann argued the reckless-misconduct standard for coparticipants in recreational activities (per Ritchie-Gamester) applied instead of ordinary negligence.
- The trial court instructed the jury on reckless misconduct; the jury found Mann not reckless.
- The Michigan Court of Appeals reversed, holding golf-cart risks were not "inherent" to golf and that ordinary negligence applied, so it remanded for a new trial on negligence.
- The Michigan Supreme Court granted review (in lieu of leave), rejected the Court of Appeals’ ‘‘essence of the sport’’ approach, and remanded to the trial court to determine whether the specific risk was reasonably foreseeable.
- The Supreme Court held that if the risk was reasonably foreseeable under the circumstances, the reckless-misconduct standard governs; if not, ordinary negligence governs; factual foreseeability is for the trial court (or jury if disputed).
Issues
| Issue | Plaintiff's Argument (Bertin) | Defendant's Argument (Mann) | Held |
|---|---|---|---|
| Applicable duty standard: negligence vs. reckless misconduct | Ordinary negligence applies to golf-cart operation | Reckless-misconduct governs because parties were coparticipants and risk is "inherent" to the activity | Coparticipants owe duty not to act recklessly, but that lower standard applies only where the injury arises from a risk that was reasonably foreseeable under the circumstances |
| Meaning of "inherent risk" under Ritchie-Gamester | Inherent risks include risks like being struck by a cart on a golf course | Inherent risks justify reckless standard because participants implicitly accept such risks | "Inherent risks" are those reasonably foreseeable under the circumstances; foreseeability, not philosophical essentialism, is the test |
| Proper analytic focus for courts deciding inherent risk | Focus on whether carts are part of the game (essence) or prevalent practice | Same (argued that carts are inherent/common) | Courts should assess foreseeability based on factual circumstances (participants’ relationship, experience, rules, venue practices), not metaphysical "essence" of the sport |
| Remedy on remand given differing potential findings | New trial if ordinary negligence applies | If foreseeable risk -> defendant entitled to jury verdict (no reckless misconduct) | Remand: trial court to determine factual foreseeability; outcomes: (1) if no factual dispute and risk foreseeable -> dismiss (jury verdict stands); (2) if not foreseeable -> new trial on negligence; (3) if genuine factual dispute -> further proceedings consistent with opinion |
Key Cases Cited
- Ritchie-Gamester v. City of Berkley, 461 Mich 73 (1999) (establishes reckless-misconduct standard among coparticipants and frames the ‘‘inherent risk’’ issue)
- Bertin v. Mann, 318 Mich App 425 (2016) (Court of Appeals decision reversing jury verdict and holding golf-cart risks not inherent to golf)
- Murphy v. Steeplechase Amusement Co., 250 NY 479 (1929) (Cardozo analysis endorsing obvious/foreseeable risks as those participants assume)
- PGA Tour, Inc. v. Martin, 532 US 661 (2001) (discussed to illustrate the problem of courts policing the "essence" of a sport)
- Moning v. Alfono, 400 Mich 425 (1977) (foreseeability noted as relevant to duty and proximate cause)