DOREEN ROTT v ARTHUR ROTT
No. 347609
STATE OF MICHIGAN COURT OF APPEALS
January 21, 2020
Oаkland Circuit Court, LC No. 2015-148771-NO, FOR PUBLICATION, 9:20 a.m.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Before: K. F. KELLY, P.J., and BORRELLO and SERVITTO, JJ.
Plaintiff appeals as of right the trial court order, entered on remand from this Court1, granting defendant summary disposition in this action sounding in negligence and premises liability. We affirm.
This case has already been before this Court, and the facts were provided in a previous opinion as follows:
Plaintiff sustained an injury to her knee after riding defendant‘s self-installed zip line in his backyard. Plaintiff is defendаnt‘s sister, and before the incident,
she would visit defendant‘s home several times a month. Defendant and his neighbor, Gary Kukulka, installed the zip line on defendant‘s property about a year before the incident; subsequently, defendant repeatedly asked plaintiff to ride the zip line, but she declined because she was “not comfortable” doing so. On the day of the incident, plaintiff attended a dinner party at defendant‘s residence. While plaintiff was there, she watched several people ride the zip line and, after some “prodding,” plaintiff decided to ride it. Defendant helped plaintiff put on the zip line harness and attach to the zip line, and Kukulka was at the bottom of the hill to detach her from the zip line. As plaintiff traversed down the zip line, she thоught that her feet were too close to the ground as she approached the end. While still in motion, plaintiff believed “the ride was over” so she put her legs down to make contact with the ground, which caused the injury at issue. Plaintiff suffered two meniscal tears in her left knee, which required restorative surgery. [Rott v Rott, unpublished per curiam opinion of the Court of Appeals, issued December 18, 2018 (Docket No. 336240), pp 1-2.]
The trial court originally determined that the Recreational Use Act (RUA),
Plaintiff now appeals the order entered on remand granting defendant summary disposition, arguing that the RUA does not apply because she was not on defendant‘s property for the purpose of zip lining, and because zip lining is not the same kind, class, character, or nature of the activities enumerated in the act. We disagree.
This Court reviews a trial court‘s ruling on a motion for summary disposition de novo. Bennett v Russell, 322 Mich App 638, 642; 913 NW2d 364 (2018).
A trial court deciding a motion for summary disposition under
MCR 2.116(C)(10) considers “the аffidavits, pleadings, depositions, admissions, and other evidence submitted by the parties . . . .” “Summary disposition is appropriate . . . if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” [Id. (footnotes omitted).]
Matters of statutory interpretation are also reviewed de novo. Barclae v Zarb, 300 Mich App 455, 466; 834 NW2d 100 (2013). Whether the RUA applies to a given set of facts is a question of law that this Court reviews de novo. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004).
Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without pаying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. [
MCL 324.73301(1) .]
The RUA “was designed to restrict suits by persons coming upon the property of another fоr [recreational] purposes, and to declare the limited liability of owners of property within this state.” Ballard v Ypsilanti Twp, 457 Mich 564, 577; 577 NW2d 890 (1998) (quotation marks and citation omitted). The Michigan Supreme Court characterized the RUA as “a ‘liability-limiting’ enactment. Id. It reduces the expоsure to litigation with the goal of “encourag[ing] landowners to open their property to others for recreation.” Id.
As an initial matter, defendant argues that this Court already “tacitly approved” of the application of the RUA to these facts in its previous opinion in Docket No. 336240. Indeed, in its previous opinion in this matter, this Court stated:
Plaintiff accepted the inherent risk associated with riding a self-installed zip line on her brother‘s property. Absent gross negligence or willful and wanton misconduct on the part of defendant, plaintiff cannot recover for damages resulting from the zip line. [Rott, unpub op at 4.]
We determined that defendant‘s conduct was not grossly negligent or willful or wanton misconduct, and thus that defendant was entitled to summary disposition. Id. at 4-5.
The law-of-the-сase doctrine provides that, “if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determinеd on a subsequent appeal in the same case where the facts remain materially the same.” Grievance Administrator v Lopatin, 462 Mich 235, 259; 612 NW2d 120 (2000) (quotation marks and citation omitted). The doctrine only applies “to issues actually decided, either implicitly or explicitly, in the prior appeal.” Brownlow v McCall Enterprises, Inc, 315 Mich App 103, 118; 888 NW2d 295 (2016) (quotation marks and citations omitted). This Court implicitly decided that the RUA applied in its previous opinion, and plaintiff‘s arguments on appeal stemming from whether the RUA applies are therefore subject to the law of the case doctrine. Although this determination resolves plaintiff‘s arguments on appeal, we will nonetheless briefly address the issues raised.
Plaintiff first argues that the RUA does not apply because she was not on defendant‘s property “for the purpose” оf zip lining, but rather for a family gathering. We disagree.
“The goal of statutory interpretation is to discern and give effect to the
Plaintiff seemingly argues that the statute should be read so that a cause of action does not arise for injuries to a person who is “on the land of another . . . for the purpose of” the statutorily enumerated activities or any other outdoor recreational use. However, the statute actually reads that a cause of action does not arise for injuries to a person “on the land of another without paying . . . a valuable consideration for the purpose of” the enumerated activities or any other outdoor recreational use.
Moreover, the Michigan Supreme Court has expressly rejected plaintiff‘s argument in this regard:
Plaintiff argues in the alternative that the RUA does not apply because plaintiff was not on defendant‘s property for the “purpose” of an outdoor recreational use, but, rather, was on defendant‘s property for the “purpose” of a sоcial visit. In other words, plaintiff argues that the RUA only applies to individuals who enter upon land with the specific intent of using the land for a specified purpose; it does not apply to individuals who enter the land for some other purpose, such as a social visit, and who, incidentally to this purpose, subsequently use the land for a specified purpose. We disagree. Plaintiff, like the Court in Wymer2, is adding words to the act that simply are not there. The RUA states that an owner of land is not liable for injuries to a person who is “on the [owner‘s] land” “for the purpose of” a specified activity. Nothing in the act‘s language limits its application to individuals who enter the land for the purpose of a specified activity. Rather, the act
clearly apрlies to individuals who, at the time of the injury, are on the land of another for a specified purpose. One‘s initial purpose for entering the land is not relevant. [Neal, 470 Mich at 670 n 13.]
Thus, although plaintiff‘s initial purpose for entering defendant‘s property may have been for a family gathering, the trial court did not err in its determination that plaintiff‘s “specific purpose for being on the land at the time of the accident, was for the purpose of using the [zip line].”
Plaintiff also argues that the RUA did not apply to bar her claims because zip lining is not the same kind, class, character, or nature of the enumerated activities within the statute. We disagree.
The Neal Court explained what activities are covered under the RUA:
Contrary to the dissent‘s suggestion, the RUA does not apply to any outdoor recreational activity. Rather, it only apрlies to “fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use . . . .”
MCL 324.73301(1) . Under the statutory construction doctrine known as [ejusdem generis], where a general term follows a series of specific terms, the general term is interpreted “to include only things of the same kind, class, character or nature as those specifically enumerated.” Therefore, the language “other outdoor recreational use” must be interpreted to include only those outdoor recreational uses “of the same kind, class, character, or nature,” id., as “fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, [and] snowmobiling . . . .”MCL 324.73301(1) . [Neal, 470 Mich at 669 (citations and footnote omitted).]
Plaintiff is correct in her assertion that there is no published caselaw applying the RUA to zip lining. Nonetheless, we conclude that zip lining is of the same kind, class, character or nature of the recreational activities enumerated in the statute. Neal, 470 Mich at 669. The Michigan Supreme Court has determined that the RUA applies to “beach play,” including ‘building sand castles, throwing stones in the water, and splashing around,’ because such activities “occurred outdoors and were done for refreshment or diversion, and consequently were recreational.” Otto v Inn At Watervale, Inc, 501 Mich 1044, 1044; 909 NW2d 265 (2018). The Supreme Court rejected this Court‘s characterization of the enumerated activities involving “any pаrticular heightened degree of physical intensity or inherent risk.” Id. Riding an all-terrain vehicle (ATV) has also been considered a recreational activity under the act. Neal, 470 Mich at 671-672. Therefore, because zip lining fits the plain meaning of “any other outdoor rеcreational use,” and is not excluded by any interpretation of the general provision in the RUA under ejusdem generis, the RUA applies. As such, the trial court properly granted defendant summary disposition under
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Deborah A. Servitto