Sherry v. East Suburban Football League
292 Mich. App. 23
| Mich. Ct. App. | 2011Background
- Jessicca Sherry, a minor, injured during a full-extension cradle stunt at Spirit Day, a cheer event.
- Plaintiff cheered for the Macomb Mustangs, organized through the Macomb Youth Football Club (MYFC).
- MYFC is a nonprofit and a franchise member of the East Suburban Football League (ESFL); Vallie was a cheer coordinator and Lange a junior varsity coach.
- Plaintiff alleged negligence and gross negligence by defendants for failure to train and supervise the cheerleaders.
- Defendants moved for summary disposition under MCR 2.116(C)(8)/(10) asserting no gross-negligence or reckless misconduct; trial court granted in their favor.
- On appeal, the court reversed, remanding for further proceedings, finding ordinary negligence applicable and genuine issues of material fact remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard of care for nonparticipants | Sherry argues ordinary negligence applies, not reckless misconduct. | Defendants contend Ritchie-Gamester reckless-misconduct standard applies to co-participants. | Ordinary negligence applies; Ritchie-Gamester is inapplicable to nonparticipants. |
| Admissibility of plaintiff's expert affidavit | Affidavit should be considered as evidence of negligence/gross negligence. | Affidavit was invalid due to lack of notarization and need not be considered. | Trial court did not abuse in excluding the defective notarized affidavit. |
| Failure to rule on motion in limine | Trial court should address undisclosed witnesses/evidence prior to trial. | No trial would occur if summary disposition granted. | Remand to consider the motion in limine; failure to rule on it requires reversal. |
| Judgment as a matter of law under MCR 2.116(I)(2) | Undisputed facts show entitlement to JMOL for plaintiff. | Genuine issues remain; expert conclusions are insufficient to establish breach/cauation. | Genuine issues of material fact remain; not entitled to JMOL; reversed and remanded. |
Key Cases Cited
- Ritchie-Gamester v City of Berkley, 461 Mich 73 (Mich. 1999) (reckless-misconduct standard for coparticipants in recreational activities)
- Behar v Fox, 249 Mich App 314 (Mich. Ct. App. 2002) (distinguishes Behar's application of reckless-misconduct to coach)
- Woodman v Kera, LLC, 280 Mich App 125 (Mich. Ct. App. 2008) (nonparticipating parties and ordinary negligence; immunity context)
- Tarlea v Crabtree, 263 Mich App 80 (Mich. Ct. App. 2004) (nonparticipating parties standard in recreational activity context)
- Gibbard v Cursan, 225 Mich 311 (Mich. 1923) (earlier standard cited for recreational activities (overruled))