ROTT v ROTT
Docket No. 161051
Michigan Supreme Court
July 30, 2021
331 Mich App 102 (2020)
Argued on application for leave to appeal on April 8, 2021. Decided July 30, 2021.
Syllabus
Chief Justice: Bridget M. McCormack
Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kathryn L. Loomis
Doreen Rott brought a negligence and premises-liability action in the Oakland Circuit Court against Arthur Rott, seeking to recover damages for injuries she received after riding defendant’s self-installed zip line at his house. Plaintiff attended a family dinner party at defendant’s house on the day she was injured. She watched several people successfully use the zip line before riding it herself. Plaintiff injured her knee when she prematurely put her legs down to make contact with the ground thinking that the ride was over. Defendant moved for summary disposition under
Both parties sought leave to appeal. In her application, plaintiff argued that the RUA did not apply (Court of Appeals Docket No. 336242). Defendant argued in his application that the trial court should have granted summary disposition in his favor because no genuine dispute of material fact existed about whether his conduct amounted to gross negligence or was willful and wanton (Court of Appeals Docket No. 336240). The Court of Appeals denied plaintiff’s application “for failure to persuade the Court of the need for immediate appellate review,” but it granted defendant’s application for leave to appeal, limited to the issues raised in his application. In an unpublished per curiam opinion issued December 18, 2018 (Rott I), the Court of Appeals, CAVANAGH, P.J., and SERVITTO and CAMERON, JJ., reversed the trial court’s order and remanded for entry of an order granting summary disposition in favor of defendant, concluding that there was no genuine issue of material fact that defendant’s conduct did not amount to gross negligence or willful and wanton misconduct. On remand, the trial court entered an order granting summary disposition in favor of defendant. Plaintiff appealed, and the Court of Appeals, K. F. KELLY, P.J., and BORRELLO and SERVITTO, JJ., affirmed. 331 Mich App 102 (2020) (Rott II). The Court concluded that in Rott I, it had implicitly decided that the RUA applied because it had determined that plaintiff’s factual showing failed to meet the RUA’s standards and that plaintiff was therefore barred under the law-of-the-case doctrine from again raising that issue. Nevertheless, the Court addressed the substance of plaintiff’s arguments. It applied the last-antecedent rule when interpreting the RUA to conclude that the statute applies when a person does not pay the owner of the land a valuable consideration for the purpose of the recreational activity, reasoning that the word “for” modified the immediately preceding phrase “a valuable consideration” in the statute. In addition, the Court determined that under Neal v Wilkes, 470 Mich 661 (2004), the RUA barred her suit because although she had originally entered defendant’s property for a family party, plaintiff was on the property for the purpose of zip lining at the time of the accident and zip lining fit within the plain meaning of the phrase “any other outdoor recreational use.” Plaintiff sought leave to appeal.
In an opinion by Justice WELCH, joined by Chief Justice MCCORMACK and Justices BERNSTEIN, CLEMENT (except for the discussion of the law-of-the-case doctrine in Part III), and CAVANAGH, the Supreme Court, in lieu of granting leave to appeal, held:
The law-of-the-case doctrine may not be invoked to preclude appellate review of a contested question of law that was presumed but not decided against a party in an interlocutory appeal if doing so would deprive the party of their right to appeal an unfavorable trial court decision on that issue. Accordingly, plaintiff could contest the RUA’s applicability on appeal because her prior claim on the merits was never reviewed and because the Court of Appeals presumed but did not decide the RUA’s applicability when resolving defendant’s interlocutory appeal. The Supreme Court’s holding in Neal—that the RUA applies when an individual is injured while on another’s land without paying consideration for access and when their purpose at the time of the accident is participation in an “outdoor recreational use or trail use” that is covered by the statute—was reaffirmed. For purposes of the RUA, we interpret the catchall phrase “any other outdoor recreational use” to include activities in which (1) the activity traditionally could not be engaged in indoors and (2) the activity requires nothing more than access to the land—that is, permission to be present and not trespassing—to engage in the activity or use. Given our caselaw, the language of the RUA, and the evolution of the statute, zip lining was not an activity covered by the RUA’s catchall phrase; the judgment of the Court of Appeals was reversed as was the trial court order granting summary disposition in favor of defendant.
- Under the law-of-the-case doctrine, 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 should not be differently determined on a subsequent appeal in the same case when the facts and law remain materially the same. In other words, as a general rule, an appellate court’s determination of an issue in a case binds lower tribunals on remand and the appellate court in subsequent appeals. The purpose of the doctrine is primarily to maintain consistency and avoid reconsideration of matters once decided during a single continuing suit. The goal of promoting consistency in judgments would not be furthered by applying the law-of-the-case doctrine to legal questions that were presumed without mention but not decided in an interlocutory appeal. Therefore, the doctrine does not operate to preclude appellate review of a contested question of law that was presumed but not decided against a party in an interlocutory appeal if doing so would deprive the party of their right to appeal an unfavorable trial court decision on that issue. The law-of-the-case doctrine applies only to those issues actually decided, either implicitly or explicitly, in the prior appeal. As a result, the doctrine does not apply to orders denying leave to appeal when those orders were not rulings on the merits of the issues presented. Moreover, manifest injustice would result if the law-of-the-case doctrine were invoked in a manner that would deprive a party of its right to appeal an issue decided against it by a trial court. The Court of Appeals did not implicitly decide the applicability of the RUA in Rott I because (1) that issue was outside the scope of the interlocutory review that was granted in defendant’s application and (2) the Court of Appeals denied plaintiff’s request for interlocutory review of the trial court’s decision regarding applicability of the RUA. In granting defendant’s application, the Court of Appeals limited his interlocutory appeal to those issues raised in his application and supporting brief. Because his application and supporting brief did not include an issue related to the applicability of the RUA, that issue was outside the scope of the appeal in Rott I as framed by the Court of Appeals. While the Rott I Court analyzed the case as if the RUA applied, it presumed such application without stating that the trial court correctly determined that the RUA applied, determining that the facts did not establish gross negligence and that defendant was entitled to summary disposition. As a result, Rott I presumed but did not decide, expressly or implicitly, that the RUA applied. The Court of Appeals erred in Rott II by concluding that the law-of-the-case doctrine barred plaintiff’s challenge to the applicability of the RUA. Although the Court of Appeals analyzed the merits of the case despite its conclusion on the applicability of the law-of-the-case doctrine, the issue was not moot because it was unknown the extent to which the panel’s view of the law-of-the-case issue informed its analysis of the merits.
- Except as otherwise provided in
MCL 324.73301 , a cause of action does not arise for injuries to a person who is on the land of another without paying 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. When originally enacted, the statute applied only to those coming onto the land of another for the purpose of fishing, hunting, or trapping. The Legislature expanded the scope of included activities by amendment over the years; however, zip lining has never been expressly added to the statute. The general purpose of the RUA is to encourage landowners to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes; it is not intended to shield landowners from all liability from every form of recreation that could conceivably occur outdoors. The RUA limits liability for injuries to a person who is on the owner’s land for the purpose of certain specified activities. Under Neal, the initial purpose for which a person enters the land, such as for a social visit, is not the proper focus for determining whether the act applies. Instead, the RUA applies to individuals who, at the time of the injury, are on the land of another for a specified purpose, i.e., for the purpose of one of the listed recreational uses ending in the catchall phrase “any other outdoor recreational use.” The Court of Appeals unnecessarily applied the last-antecedent rule to the language “for the purpose of” in Rott II because the interpretation of that language was resolved in Neal—which held thatMCL 324.73301(1) applies when an individual was injured while on another’s land, without paying consideration for access, and their purpose at the time of the accident was participation in an “outdoor recreational use or trail use” that was covered by the statute. While plaintiff entered defendant’s property for a family get together (i.e., a social visit), at the time of the accident, she was on defendant’s property for the purpose of zip lining. - The RUA does not apply to any outdoor recreational activity but, instead, is limited to those outdoor recreational uses of the same kind, class, character, or nature as those specifically enumerated in the RUA. The word “recreational” means a refreshment or diversion. The listed activities do not involve any particular heightened degree of physical intensity or inherent risk, and beach play—i.e., building sand castles, throwing stones in the water, and splashing around—is included within the RUA’s catchall phrase. Given our caselaw, the language of the RUA, and the evolution of the statute, the most reasonably unifying characteristics shared by the activities listed in the RUA are that (1) the activity traditionally could not be engaged in indoors and (2) the activity requires nothing more than access to the land—that is, permission to be present and not trespassing—to engage in the activity or use. The listed activities are things that could historically and traditionally only be performed and enjoyed outdoors, with nothing more than access to the land or water. While enjoyment of the listed activities may be enhanced or accompanied by modifications to the land, such as the construction of a deer blind, a dock, or a cleared trail, such modifications are not a prerequisite to engaging in the activities. Although some of the listed activities require or imply that recreational users bring their own equipment, vehicle, or other personal property, that is not uniformly required, and bringing equipment does not require that the user modify the land. Zip lining does not constitute “any other outdoor recreational use” for purposes of the RUA because it meets only one of the two identified unifying characteristics: specifically, although zip lining traditionally could only be enjoyed outdoors, it was not an activity or use that required only access to the land to enjoy. Instead, it could not be performed without artificial modifications of or enhancements to the land—specifically, the construction of zip-lining facilities or the installation of zip-lining equipment. Accordingly, the Court of Appeals erred by holding that under the canon of interpretation ejusdem generis, zip lining was included within the RUA’s catchall phrase “any other outdoor recreational use.”
Court of Appeals judgment reversed, trial court’s 2019 order granting summary disposition to defendant reversed, and case remanded to the trial court.
Justice CLEMENT, concurring in part and concurring in the judgment, agreed with all portions of the majority’s opinion except for its discussion of the law-of-the-case doctrine in Part III. She agreed that Rott I resolved only those issues the Court of Appeals agreed to resolve when it granted defendant’s application and that the opinion ought not be construed as implicitly resolving issues the Court of Appeals had expressly declined to hear when it denied plaintiff’s application. Justice CLEMENT would have concluded that this was an adequate basis for the majority’s decision and would not have invoked equitable principles in addressing the Court of Appeals’ treatment of the law-of-the-case doctrine in Rott II.
Justice VIVIANO, joined by Justice ZAHRA, concurring in part and dissenting in part, agreed with the majority that the Court of Appeals’ construction of “for the purpose of” in the RUA conflicted with Neal and that the portion of the Rott II opinion related to its application of the last-antecedent rule should be vacated. He dissented because he disagreed with the majority’s analysis of the law-of-the-case doctrine and with its conclusion that zip lining is excluded from the scope of the RUA under the ejusdem generis canon of interpretation. Because the Court of Appeals fully and correctly addressed the merits of plaintiff’s arguments related to the RUA, it was unnecessary for that Court to analyze the law-of-the-case doctrine. With regard to zip lining and the RUA, the ejusdem generis canon addresses situations in which the ordinary meaning of the catchall, one which a reasonable reader would discern, is different than the literal, definitional meaning of the catchall. Given the difficulties in the application of the canon, courts should be cautious when applying it; the canon is not always applicable to a list followed by a catchall. Here, the diversity of the enumerated activities makes it difficult to discern a common characteristic. The majority’s attempt to limit the catchall phrase in the RUA to activities that traditionally could not be engaged in indoors was not only vague but was also irrelevant in this case given its conclusion that zip lining was a traditional outdoor activity. The majority’s second limitation—that the activity require nothing more than access to the land to engage in the activity or use—did not arise from a relevant common feature of the enumerated items. Except possibly for hiking and sightseeing, the listed activities in
DOREEN ROTT v ARTHUR ROTT
No. 161051
STATE OF MICHIGAN SUPREME COURT
FILED July 30, 2021
OPINION
Chief Justice: Bridget M. McCormack
Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch
BEFORE THE ENTIRE BENCH
This case arises out of a zip-lining accident in defendant Arthur Rott’s backyard.
For the reasons that follow, we reverse the Court of Appeals’ application of the law-of-the-case doctrine and its interpretation of the catchall phrase in
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The events in question occurred in May 2015 while plaintiff attended a weekend social party at defendant’s home in West Bloomfield. The defendant, plaintiff’s brother, had installed a zip line in his backyard about a year earlier with the assistance of his neighbor. Before the May 2015 party, plaintiff had repeatedly declined to ride the zip line. According to plaintiff, after watching others ride the zip line and in response to continued pressure from defendant, plaintiff agreed to take a single ride on the zip line. Near the end of the ride, while still in motion, plaintiff put her legs down to reach the ground thinking that “the ride was over.” The resulting impact with the ground caused two meniscal tears in plaintiff’s left knee that required surgery.
Plaintiff sued defendant on theories of negligence and premises liability. Following discovery, defendant moved for summary disposition under
Both parties sought leave to appeal in the Court of Appeals on an interlocutory basis. In her application, plaintiff argued that the RUA did not apply and also filed a motion for peremptory reversal (Court of Appeals Docket No. 336242). Defendant argued in his application that the circuit court should have granted summary disposition in his favor because no genuine dispute of material fact existed about whether his conduct amounted to gross negligence or was willful and wanton (Court of Appeals
On the same day, the Court of Appeals granted defendant’s application “limited to the issues raised in the application and supporting brief.” Rott v Rott, unpublished order of the Court of Appeals, entered May 4, 2017 (Docket No. 336240). In her responsive brief in Docket No. 336240, plaintiff noted the scope of the appeal as defined by the Court of Appeals’ prior orders and stated, “Accordingly, this appeal addresses only those issues raised by Defendant/Appellant.” Plaintiff also noted that she had not conceded the applicability of the RUA, stating, “Plaintiff/Appellee vehemently maintains that the RUA does not attach to the instant case.”
More than a year later, the Court of Appeals issued an unpublished opinion reversing the circuit court. The Court of Appeals acknowledged that the circuit court had held that the RUA applied and then discussed the RUA, stating, “Absent gross negligence or willful and wanton misconduct on the part of defendant, plaintiff cannot recover for damages resulting from the zip line.” Rott v Rott, unpublished per curiam opinion of the Court of Appeals, issued December 18, 2018 (Docket No. 336240) (Rott I), p 4. The court thus presumed, without any analysis or explanation, that the RUA applied. While the court agreed with the circuit court that summary disposition was inappropriate under
On remand, the circuit court followed the Court of Appeals’ instructions and entered an order on February 8, 2019, granting defendant summary disposition. Plaintiff then exercised her right to appeal, arguing that the RUA did not apply because (1) she was not on the land “for the purpose of” zip lining and (2) zip lining is not a recreational activity covered by the RUA.
The Court of Appeals disagreed in a published opinion, holding that its earlier decision “implicitly decided . . . that the RUA applied to the facts of the case, and plaintiff’s arguments on appeal stemming from whether the RUA applies are therefore subject to the law-of-the-case doctrine.” Rott v Rott, 331 Mich App 102, 107; 951 NW2d 99 (2020) (Rott II). Despite this holding, the Court addressed the merits of plaintiff’s appeal and rejected both of her arguments. Id. at 108-111. Purporting to apply the “last-antecedent rule of statutory construction,” the court held:
Plaintiff argues that the statute should be read so that a cause of action only arises for injuries to a person who has entered another’s land “for the purpose of” the statutorily enumerated activities or any other outdoor recreational use. (Underlining omitted.) 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. MCL 324.73301(1) (emphasis added). Under the plain and unambiguous language of the statute and the last-antecedent rule the word “for” in the statute modifies “a valuable consideration.” [Hardaway v Wayne Co, 494 Mich 423, 427; 835 NW2d 336 (2013).] Therefore, the statute applies if a person does not pay the owner of the land a valuable consideration for the purpose of the recreational activity.MCL 324.73301(1) . Defendant testified that neither he nor his wife collected money from anyone to ride the zip line. A plain reading of the statute does not lend itself to plaintiff’s interpretation that the statute requires a person to be on the property for the purpose of the recreational activity for the statute to apply. Plaintiff’s assertions that she was harassed by defendant into riding the zip line are irrelevant. [Rott II, 331 Mich App at 108-109.]
The panel went on, however, to apply Neal v Wilkes, 470 Mich 661, 670 n 13; 685 NW2d 648 (2004), in which this Court had rejected a similar argument that the RUA did not apply if the purpose for entering the land was a “social visit” as opposed to a recreational use. Rott II, 331 Mich App at 109-110. Relying on Neal, the Court of Appeals held that while plaintiff’s initial purpose for being on defendant’s land may have been a family gathering, at the time of the accident, she was on the land for the purpose of using the zip line. Id. at 110. Finally, the Court held that “zip lining is of the same kind, class, character, or nature of the recreational activities enumerated in the” RUA, and it affirmed summary disposition for defendant. Id. at 110-111.
Plaintiff then sought leave to appeal in this Court. We scheduled oral argument on the application,
II. STANDARD OF REVIEW
We review de novo questions of statutory interpretation and a trial court’s decision to grant or deny summary disposition. DeRuiter v Byron Twp, 505 Mich 130, 139; 949 NW2d 91 (2020). Whether the law-of-the-case doctrine was properly invoked and to what extent it applies to a case are questions of law that we also review de novo. See, e.g., Lenawee Co v Wagley, 301 Mich App 134, 149; 836 NW2d 193 (2013).
III. LAW-OF-THE-CASE DOCTRINE
The law-of-the-case doctrine is a judicially created, self-imposed restraint designed to promote consistency throughout the life of a lawsuit. The idea is 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 determined on a subsequent appeal in the same case where the facts remain materially the same.’ ” Grievance Administrator v Lopatin, 462 Mich 235, 259-260; 612 NW2d 120 (2000), quoting CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). “Thus, as a general rule, an appellate court’s determination of an issue in a case binds lower tribunals on remand and the appellate court in subsequent appeals.” Lopatin, 462 Mich at 260. The purpose of the doctrine is “primarily to ‘maintain consistency and avoid
In Lopatin we made clear that the doctrine applies “only to issues actually decided, either implicitly or explicitly, in the prior appeal.” Lopatin, 462 Mich at 260 (emphasis added). We have specifically held that the law-of-the-case doctrine also does not apply to orders denying leave to appeal when those orders “were not rulings on the merits of the issues presented.” People v Poole, 497 Mich 1022 (2015). See also Brownlow v McCall Enterprises, Inc, 315 Mich App 103, 112; 888 NW2d 295 (2016) (holding that the law-of-the-case doctrine does “not apply to claims that were not decided on the merits“). This case presents a different situation—one in which the previous ruling was on an interlocutory appeal and the interlocutory ruling presumed a certain decision on the merits but did not actually decide the issue.
In this case, the Court of Appeals held in Rott II that it had implicitly decided the applicability of the RUA against plaintiff by ruling in favor of defendant in the Rott I interlocutory appeal. We disagree.
To straightjacket proceedings subsequent to a decision on a case by an appellate court by making assumptions regarding the disposition of arguments which the appellate court did not see fit to consider is not, in our opinion, the wisest of policies. [People v Fisher, 449 Mich 441, 447; 537 NW2d 577 (1995) (quotation marks and citation omitted).]
The law-of-the-case doctrine ” ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.’ ” Locricchio, 438 Mich at 109 (emphasis added), quoting Messenger v Anderson, 225 US 436, 444; 32 S Ct 739; 56 L Ed 1152 (1912). We also heed the United States Supreme Court’s astute observation that the “doctrine does not apply if the court is convinced that its prior decision is clearly erroneous and would work a manifest injustice.” Pepper v United States, 562 US 476, 506-507; 131 S Ct 1229; 179 L Ed 2d 196 (2011) (quotation marks, citations, and brackets omitted).
Invocation of the law-of-the-case doctrine in a manner that would effectively deprive a party of its right to appeal an issue decided against it by a trial court would be a manifest injustice. While not as extreme as the risk of manifest injustice in a death penalty habeas corpus case, see Dobbs v Zant, 506 US 357; 113 S Ct 835; 122 LEd2d 103 (1993), the deprival of the right to appeal is at least as much an injustice as holding a party to an erroneous concession of law, see United States v Miller, 822 F2d 828, 831-833 (CA 9, 1987). We further believe that the goal of promoting consistency in judgments would not be furthered by application of the law-of-the-case doctrine to legal questions that were presumed without mention but not decided in an interlocutory appeal. Accordingly, we hold that the law-of-the-case doctrine should not be invoked to preclude appellate review of a contested question of law that was presumed but not decided against a party in an interlocutory appeal if doing so would deprive the party of their right to appeal an unfavorable trial court decision on that issue.1
Having framed the case as it did in its two May 4, 2017 orders, the Court of Appeals did not leave itself the option of deciding that the RUA did not apply. Taking the Court at its word, it had committed to resolving defendant’s arguments in the interlocutory appeal, and also committed to not resolving plaintiff’s arguments in that appeal, instead expressing a preference to resolve her arguments on the appeal of right to which she was entitled after the trial court entered a final judgment. Thus, while Rott I analyzed the case as if the RUA applied, it did so under the unstated presumption that the trial court’s ruling as to the applicability of the RUA was correct. Based on this presumption, Rott I determined that the evidence could not support a finding of gross negligence and accordingly held that defendant was entitled to summary disposition on remand. The procedural history of this case, coupled with the Rott I opinion, lead us to conclude that Rott I presumed but did not decide, expressly or implicitly, that the RUA applied to the facts of this case.3
Under these facts, the Court of Appeals’ application of the law-of-the-case doctrine in Rott II was incorrect. The court could not have implicitly decided the applicability of the RUA in Rott I because that issue was outside the scope of the interlocutory review that was granted and because plaintiff’s request for interlocutory review of the trial court’s decision on that issue was denied. The Court of Appeals then, despite having invoked the law-of-the-case doctrine, went on to review the merits of plaintiff’s arguments. While the merits were ultimately reviewed in this matter, there is no way to know the extent to
IV. INTERPRETATION AND APPLICATION OF THE RUA
This case requires us to once again consider the scope and application of the RUA. In Wymer v Holmes, 429 Mich 66, 77; 412 NW2d 213 (1987), overruled on other grounds by Neal, 470 Mich 661, we stated that that the general purpose of the RUA was “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.”4 While in Neal we subsequently reversed portions of Wymer, the broader statement of the RUA’s purpose remains true today. See Neal, 470 Mich at 666 n 6.
The RUA has a long history in Michigan that is tied to the use of our state’s land and water. The RUA was first introduced in 1953 as a standalone piece of legislation (1953 HB 241), the first of its kind in the nation that “applied only to persons coming upon the lands of another for the purpose of ‘hunting.’ ” Wymer, 429 Mich at 74, quoting 1953 House Journal 374, 483. When actually enacted, the law applied only to those coming upon the land of another ” ‘for the purpose of fishing, hunting or trapping[.]’ ” Wymer, 429 Mich at 74, quoting 1953 PA 201 (emphasis omitted). The RUA was expanded in 1964 to add ” ‘camping, hiking, sightseeing or other similar outdoor recreational use.’ ” Wymer, 429 Mich at 74, quoting 1964 PA 199. Then, in another expansion, ” ‘motorcycling, snowmobiling, or any other outdoor recreational use’ ” was added by 1974 PA 177. Wymer, 429 Mich at 75, quoting 1974 PA 177. Through 1995 PA 58, the Legislature incorporated the RUA into the Natural Resources and Environmental Protection Act (NREPA),5 the purpose of which is to “protect the environment and natural resources of the state.” 1994 PA 451, title. See also Neal, 470 Mich at 674 (CAVANAGH, J, dissenting). Since 1995, the RUA has been codified as
When properly invoked,
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 paying 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) , as amended by 2007 PA 174 (emphasis added).]
In this case, we are focused on the meaning of the language “for the purpose of” and on the meaning of the catchall phrase “any other outdoor recreational use[.]”
As we have often stated, the purpose of statutory interpretation is to understand and give effect to the intent of the Legislature. See, e.g., Bisio v Village of Clarkston, 506 Mich 37, 44; 954 NW2d 95 (2020); South Dearborn Environmental Improvement Ass’n, Inc v Dep’t of Environmental Quality, 502 Mich 349, 360-361; 917 NW2d 603 (2018). We must consider “both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme.” Speicher v Columbia Twp Bd of Trustees, 497 Mich 125, 133-134; 860 NW2d 51 (2014) (quotation marks and citation omitted). Each word and phrase in a statute “must be assigned such meanings as are in harmony with the whole of the statute, construed in light of history and common sense.” Honigman Miller Schwartz & Cohn LLP v Detroit, 505 Mich 284, 295; 952 NW2d 358 (2020) (quotation marks and citation omitted). When the language of the statute remains obscure or doubtful, we may also consider the historical context surrounding its enactment. See People v Hall, 391 Mich 175, 191; 215 NW2d 166 (1974).
A. “FOR THE PURPOSE OF”
The RUA is only triggered when someone is injured while on the land of another for certain purposes and under certain conditions. Plaintiff argues that she was not on defendant’s property for the purpose of using the zip line or for any other outdoor recreational use. Rather, she argues that she was on defendant’s property for the purpose of a family gathering and that she was coerced into riding the zip line. In rejecting this argument, the Court of Appeals rendered two holdings—one based on the last-antecedent canon of statutory construction and one based on a footnote in Neal.
The Court of Appeals attempted to apply the last-antecedent canon to the phrase “for the purpose of” and concluded that it modified the preceding phrase of “a valuable consideration.” Rott II, 331 Mich App at 108-109. The Court of Appeals held that “the statute applies if a person does not pay the owner of the land a valuable consideration for the purpose of the recreational activity.” Id. at 109. Conversely, plaintiff argues that “for the purpose of” modifies the subsequent list of activities and catchall provision in
It is not clear why the Court of Appeals performed its last-antecedent analysis, given that the interpretation of the “for the purpose of” text was resolved in Neal,
Applying this rationale, we affirm in part and vacate in part the Court of Appeals’ analysis of the language “for the purpose of” in
B. “ANY OTHER OUTDOOR RECREATIONAL USE”
This Court has not previously defined the outer limits of what activities and uses the RUA covers. While the diversity of the recreational uses and activities listed in
recreational uses ‘of the same kind, class, character, or nature’ ” as those specifically enumerated in
Building on the statutory text, our prior decisions, and the historic evolution of the RUA, we hold that the most reasonable unifying characteristics shared by the activities listed in
to be present and not trespassing—to engage in the activity or use.9 The listed activities—fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, and snowmobiling—are things that traditionally could only be performed outdoors and that one can enjoy with nothing more than access to the land or water. While enjoyment of the listed activities may be enhanced or accompanied by modifications to the land, such as the construction of a deer blind, a dock, or a neatly cleared trail,10 these modifications are not prerequisites to engaging in the activity. Additionally, some of the listed activities require or imply that recreational users bring their own equipment, vehicle, or other personal property (for example, a tent or motorcycle), but this is not a uniform requirement. And bringing equipment does not require that the user modify the land.
This construction is consistent with our longstanding view that “the purpose of the RUA is to encourage owners of private land to make their land available to the public[.]” Neal, 470 Mich at 666, n 6. See also Ballard v Ypsilanti Twp, 457 Mich 564, 576-577; 577 NW2d 890 (1998) (“The [RUA] passed in 1953 in response to fears that potential negligence liability would discourage property owners from allowing others to use their property for recreational purposes. . . . The act limited liability in order
C. ZIP LINING DOES NOT FALL WITHIN THE RUA’S CATCHALL PROVISION
The next question is whether zip lining falls within the RUA’s catchall provision of “any other outdoor recreational use[.]” The Court of Appeals held that “zip lining is of the same kind, class, character, or nature of the recreational activities enumerated in the [RUA]” and therefore “the trial court properly granted summary disposition” to defendant. Rott II, 331 Mich App at 110-111. Rott II purported to rely on the interpretive canon ejusdem generis11 and our decisions in Neal and Otto. Plaintiff argues that zip lining is distinguishable because it requires construction of an artificial feature on the land whereas all of the enumerated activities can be accomplished through direct interaction with flora and fauna in their unaltered state. Plaintiff further compares zip lining to amusement park rides and asserts that it is an activity undertaken for adrenaline-pumping and thrill-seeking purposes, not refreshment and diversion. To the contrary, defendant asserts that zip lining is an outdoor activity done for refreshment and diversion, like the beach play at issue in Otto, and that it thus fits within the RUA’s catchall provision. We agree with plaintiff that zip lining is not a use of the land covered by
While the zip line at issue was not commercialized and was constructed by defendant for his own personal recreation, we find that zip lining itself does not constitute “any other outdoor recreational use” as that phrase is used in the RUA. This is because zip lining meets only one of the two unifying characteristics that we have identified. Despite being an activity that traditionally could only be performed outdoors,12 zip lining is not an activity or use that requires only access to the land to enjoy. As argued by plaintiff, one is required to construct zip-lining facilities or install zip-lining equipment on the land as a prerequisite to engaging in the activity. But it is not the presence of an artificial construct itself that takes zip lining
Our analysis should not be confused as undermining the principal holding of Neal. The RUA continues to apply to large and small tracts of land, both developed and undeveloped, as we previously held. Neal, 470 Mich at 671-672. Once one moves beyond those activities specifically listed in the RUA, however, one must consider whether the unlisted activity or use is something that (a) traditionally could only occur outdoors and (b) can be engaged in by merely having access to the land without needing to change it. Riding a zip line does not fit within these parameters because it requires, at a minimum, the construction of launching and stopping points/platforms and the rigging of a cable or wire to support riders. These things must be installed onto the land (and may even become fixtures). This is distinguishable from a hunting tree stand because, as already noted, a tree stand is not a prerequisite to engaging in hunting, even if it may enhance hunting.
We further note that zip lines were not established as a form of outdoor recreation at the time of the last two amendments of the RUA. When the language “motorcycling, snowmobiling, or any other outdoor recreational use” was added to the RUA by 1974 PA 177, zip lining was not considered a recreational activity.13 When the RUA was made a part of the NREPA and codified at
As a result, the Court of Appeals erred when it held that “zip lining fits the plain meaning of ‘any other outdoor recreational
V. CONCLUSION AND RELIEF
We hold that the law-of-the-case doctrine did not preclude plaintiff from challenging the applicability of the RUA,
Elizabeth M. Welch
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement (except for the discussion of the law-of-the-case doctrine in Part III)
Megan K. Cavanagh
DOREEN ROTT, Plaintiff-Appellant, v ARTHUR ROTT, Defendant-Appellee.
No. 161051
STATE OF MICHIGAN SUPREME COURT
CLEMENT, J. (concurring in part and concurring in the judgment).
I concur in the result reached by the Court, and I concur in the analysis of all portions of the majority opinion except for its discussion of the law-of-the-case doctrine in Part III. Both parties filed interlocutory applications for leave to appeal in the Court of Appeals challenging the trial court’s rulings, and in addressing those applications, the Court of Appeals agreed to resolve defendant’s issues but declined to resolve plaintiff’s. I agree with the majority that the Court of Appeals’ opinion in Rott I must be construed as resolving only those issues the Court of Appeals had agreed to resolve when it granted defendant’s application and that it ought not be construed as implicitly resolving issues the Court of Appeals had expressly declined to resolve when it denied plaintiff’s application. However, I believe this is an adequate basis for our decision, and therefore, I would not also invoke equitable principles in addressing the Court of Appeals’ treatment of the law-of-the-case doctrine in Rott II.
Elizabeth T. Clement
DOREEN ROTT, Plaintiff-Appellant, v ARTHUR ROTT, Defendant-Appellee.
No. 161051
STATE OF MICHIGAN SUPREME COURT
VIVIANO, J. (concurring in part and dissenting in part).
The majority opinion contains three holdings: (1) the Court of Appeals improperly applied the law-of-the-case doctrine; (2) it misinterpreted the phrase “for the purpose of” in the recreational land use act (RUA),
I. LAW OF THE CASE
Plaintiff, Doreen Rott, first challenges the Court of Appeals’ application of the law-of-the-case doctrine in its second opinion in this case to bar her arguments.1 The majority is troubled by the Court of Appeals’ invocation of the law-of-the-case doctrine, and rightly so. The combination of the Court of Appeals’ order denying plaintiff’s interlocutory appeal on the grounds that it did not warrant immediate attention and its later opinion applying the doctrine would have deprived plaintiff of the opportunity to have her appellate arguments heard and decided on the merits. But the Court of Appeals did not need to reach this issue and, consequently, neither would I. Because the Court of Appeals fully addressed the merits of plaintiff’s statutory arguments and correctly decided the case on those grounds, it had no reason to opine on the law-of-the-case doctrine. I would therefore vacate its discussion of the doctrine as unnecessary and leave the matter for another day.2
II. THE RUA
With regard to the issues of statutory interpretation, at the time of plaintiff’s accident the RUA stated:
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 paying 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) , as amended by 1974 PA 177.]3
A. “FOR THE PURPOSE OF”
Plaintiff first focuses on the phrase “for the purpose of.” She argues that the RUA “turns upon the reason an individual is on the land of another . . . .” If she enters for recreation, plaintiff explains, the statute applies. In this case, she claims that she went to defendant Arthur Rott’s house for a party, not to ride on a zip line.
The Court of Appeals rejected this argument in a two-part analysis. The first part attempted to apply the last-antecedent canon to the phrase “for the purpose of.” Rott v Rott, 331 Mich App 102, 107; 951 NW2d 99 (2020) (Rott II). Under that canon, “a modifying or restrictive word or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent, unless something in the statute requires a different interpretation.” Stanton v Battle Creek, 466 Mich 611, 616; 647 NW2d 508 (2002). The Court of Appeals explained that plaintiff reads “for the purpose of” as modifying the earlier phrase, “on the land of another.” Rott II, 331 Mich App at 108. In other words, her interpretation requires that the plaintiff be “on the land of another . . . for the purpose of” engaging in recreational activities. See
But, in the second part of its discussion, the Court of Appeals properly applied our decision in Neal as an independent reason to reject plaintiff’s argument that she was not at defendant’s house “for the purpose of” zip lining. Id. at 109-110. There, we rejected an argument quite similar to plaintiff’s here; specifically, that the plaintiff had not entered the property to participate in recreation but, rather, for the purpose of “a social visit.” Neal, 470 Mich at 670 n 13. We explained that the RUA limited liability “for injuries to a person who is ‘on the [owner’s] land’ ‘for the purpose of’ a specified activity,” by which we meant the statutory list of recreational uses ending in the catchall, “any other outdoor recreational use . . . .” Id. (alternation in original); see also id. at 668 n 10. “Nothing in the act’s language limits its application to individuals who enter the land for the purpose of a specified activity.” Id. at 670 n 13. That initial purpose was irrelevant. “Rather, the act clearly applies to individuals who, at the time of the injury, are on the land of another for a specified purpose.” Id. Applying Neal’s holding in this case, the Court of Appeals upheld the trial court’s determination that the statute applied because, although she originally entered defendant’s
I agree with the majority here that the second rationale given by the Court of Appeals is consistent with Neal and represents the correct resolution of plaintiff’s argument: she was on the land for the purpose of zip lining when the injury occurred. The Court’s reliance on the last-antecedent canon was therefore unnecessary to its holding. Moreover, in stating that the RUA did not “require[] a person to be on the property for the purpose of the recreational activity,” Rott II, 331 Mich App at 109, the Court’s interpretation clashed with Neal’s statement that the RUA indeed applies when an individual is on another’s land at the time of the accident for the purpose of participating in a “recreational use,” Neal, 470 Mich at 670 n 13. See also id. at 667-668 (“The RUA simply states that an owner of the land is not liable [absent gross negligence or willful and wanton misconduct] to a person who injures himself on the owner’s land if that person has not paid for the use of the land and that person was using the land for a specified purpose, [i.e., recreation].”). For these reasons, I agree with the majority that we should vacate the first part of the Court of Appeals’ discussion of this issue.
B. “ANY OTHER OUTDOOR RECREATIONAL USE OR TRAIL USE”
1. THE EJUSDEM GENERIS CANON
I disagree, however, that zip lining falls outside the scope of the phrase “any other outdoor recreational use . . . .”
But a wrinkle arises when we consider the context in which the phrase “any other outdoor recreational use” is used. In particular, the phrase consists of general words that follow a list of specific recreational uses. When a statute is set up that way, the general terms sometimes bear a restricted meaning—one that is less comprehensive than their literal meaning. This interpretive principle is known as the ejusdem generis canon:
“[Ejusdem generis] is a rule whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated.” [Sands Appliance Servs, Inc v Wilson, 463 Mich 231, 242; 615 NW2d 241 (2000), quoting People v Brown, 406 Mich 215, 221; 277 NW2d 155 (1979) (alteration in original).]
Put differently, the list of similar items leads a reasonable reader to expect any catchall to apply only to things that resemble the items on the list. United States v Daddato, 996 F2d 903, 904 (CA 7, 1993). Otherwise, “when the tagalong general term is given its broadest application, it renders the prior enumeration superfluous.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), pp 199-200; see also 2A Sutherland, Statutory Construction (7th ed), § 47:17 (“If the general words are given their full and natural abstract meaning, they would include the objects designated by the specific words, making the latter superfluous.”). Ejusdem generis thus addresses the situations in which the ordinary meaning of the catchall—the meaning a reasonable reader would discern—is different than the literal, definitional meaning of the catchall. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation (2015), pp 186-187. For instance, consider two different signs: (a) “No dogs, cats, birds, or other animals allowed” and (b) “No animals allowed.” Id. at 197. Both signs have the same literal meaning, but the “other” clause in (a) “has a conventional meaning that is stereotypically exemplified through the other items on the list.” Id. at 198. Had the drafter wanted the full literal meaning, he or she could have simply used (b) without the list. Id.
Although the canon might reflect linguistic realities, the gap between ordinary and literal meanings poses a significant problem for courts, one that cautions against overuse of the canon. This gap means that the restrictions on the general term are unexpressed. By failing to be explicit, a legislature leaves courts with the challenging task of inferring the implicit limitations on the scope of the catchall. See Hills, The Problem of Canonical Ambiguity in Ali v. Federal Bureau of Prisons, 44 Tulsa L Rev 501, 504 (2009) (observing that the doctrine requires a court “to infer some unwritten limiting principle from a series of specific terms”).
Discovering a limiting principle often proves difficult. At a broad level, a court might ask itself why, if the list of enumerated items is meant to display a characteristic or category that the legislature meant to capture, did the legislature not expressly mention the characteristic or category? See Ordinary Meaning, p 191; Sinclair, Law and Language: The Role of Pragmatics in Statutory Interpretation, 46 U Pitt L Rev 373, 411-412 (1985). As then Judge Brett Kavanaugh has noted, the absence of a legislatively prescribed limitation cautions against reading too much into the statute. See Kavanaugh, Fixing Statutory Interpretation, 129 Harv L Rev 2118, 2160 (2016) (book review) (“It seems to me that we have to be wary of adding implicit limitations to statutes that the statutes’ drafters did not see fit to add.”). More concretely, what makes the canon tricky is the need to discern a relevant commonality among the specific items. Ordinary Meaning, p 187. Judges must undertake the “very indeterminate task” of “com[ing] up with their own sense of the connective tissue that binds the terms in the statute,” i.e., what characteristics make the enumerated items similar. Fixing Statutory Interpretation, 129 Harv L Rev at 2160-2161. Usually, there are “multiple ways in which the general catchall term . . . can be given limited meaning.” Ordinary Meaning, p 187. On top of that, nothing in the canon’s usage specifies how broadly or narrowly to characterize the common class embraced by the enumerated items. See generally Reading Law, p 207.
As a result, courts have substantial “flexibility to frame the classification . . . .” Ordinary Meaning, p 198. A close examination of the listed items and the general terms is necessary, but not often sufficient. Cf. Reading Law, p 207.
I would not jettison the canon because, as discussed, it rests on a sound linguistic footing. But the difficulties in applying it should make us cautious. That is why even its proponents recognize that the canon is not always applicable to a list followed by a catchall. In this vein, we have noted that even when a statute contains this formulation, the canon should apply to restrict the scope of the general phrase “only where the specific words relate to subjects of a single kind, class, character or nature[.]” In re Mosby, 360 Mich 186, 192; 103 NW2d 462 (1960). “Where the language used, considered in its entirety, discloses no purpose of limiting the general words used, the rule of ejusdem generis may not be invoked to defeat or limit the purpose of the enactment.” Id. Moreover, it is not always necessary to find the relevant limiting similarity in order to resolve the case at hand. Reading Law, p 208. For example, the last time the Court considered the canon’s application to the RUA, we decided it was “unnecessary to define the outer parameters of the common class” because the activity at issue—beach play—fit within the catchall no matter how the catchall could be reasonably limited by the list. Otto, 501 Mich at 1045 n 1.
2. APPLICATION
The majority recognizes that the “diversity” of the enumerated activities in
With regard to the second limitation, the majority opines that the enumerated items are activities “that one can enjoy with nothing more than access to the land or water” and that while structures such as deer blinds or docks might enhance the activities, “these modifications are not prerequisites to engaging in the activity.” The majority cannot possibly mean what it says here. One cannot go motorcycling or snowmobiling simply by accessing land—one needs to bring a motorcycle or snowmobile onto the land. Nor does one typically hunt without a weapon, fish without a pole, or camp without a tent (or other equipment). The majority instead seems to mean that these activities do not require artificial structures be constructed on the land, nor do they require modifications or enhancements to be made upon the land. It is under this rationale that the majority resolves the case, finding that zip lining does not fall within the catchall because it requires the installation of “human-made zip-lining equipment on the land . . . .”
I cannot agree with the majority’s contrived limitation. To be sure, it has some superficial appeal in that all the enumerated activities can, generally speaking, be undertaken without any artificial structures on or modifications to the land. But the ejusdem generis canon does not task courts with finding any possible commonality among the enumerated items but only those that would occur to a reasonable reader as sensibly applying to and limiting the catchall. Cf. Daddato, 996 F2d at 904. There may be many unifying characteristics of the listed items that, like the majority’s proffered limitation, do not translate to a coherent limitation on the catchall. Under the majority’s interpretation, extensive structures and modifications to the land are allowed as long as, in some theoretical sense, they are not necessary. But if they are needed to engage in the activity, then even the most minor modifications—like the ones here—operate to exclude the activity from the RUA.
For example, motorcycling has long used tracks that required relatively elaborate construction. See, e.g., Schonauer, The Early, Deadly Days of Motorcycle Racing, Smithsonian Magazine (April 2011) (discussing board-track courses and other motorcycle riding venues), available at <https://www.smithsonianmag.com/arts-culture/the-early-deadly-days-of-motorcycle-racing-787614/> [https://perma.cc/W8CL-BE4B]. Even less formal tracks might contain groomed trails, artificial mounds, or boundary markers. Indeed, given that the RUA applies to, among other things, large, undeveloped tracts of land, one wonders how a person can go motorcycling or snowmobiling unless a
Presumably, under the majority’s view, the RUA would apply to injuries that occur in those places even though they might involve artificial structures being affixed to the land or modifications being made to the land. But, by contrast, the majority would not extend the RUA to someone injured gliding along a rope attached to two trees. The juxtaposition of these two scenarios is, to my mind, jarring. Activities such as motorcycling and snowmobiling involve significant artificial structures or modifications to the land and dangerous “human-made” equipment, while zip lining involves, in essence, a cable and the equipment needed to attach it to natural features of the land.
Under the majority’s logic, the distinction is that the motorcycling and snowmobiling could have occurred without the artificial features or modifications but the zip lining could not. But this is not a very persuasive distinction when one compares the actual “artificial” features and modifications. To motorcycle on land, one needs at least a motorcycle. To zip line, one needs a rope or cable and equipment to glide on it. The scope and danger of the artificial materials required to motorcycle on land vastly exceed those needed to zip line, and the need for a path clear of debris is the same for both activities.
Nor can I see why it matters that the zip line is attached to trees on the land. The majority’s reasoning would seem to mean that a person who hangs a hammock or puts a homemade tire swing around a tree branch—recreational activities that closely resemble beach play, are done as a means of refreshment or diversion, and would seemingly be covered under the RUA, see Otto, 501 Mich at 1044—has installed an artificial structure upon the land to engage in an activity (hammocking or swinging) that could not be done without the structure, i.e., purely by accessing the land. Putting up a zip line might be moderately more involved than a hammock or swing, but the difference is one of degree. The pictures of the zip line here show a cable stretched between two trees, with a thin belt of wood circling the tree where the cable is wrapped around it. Defendant testified that he ordered a zip-line kit online containing a bungee cord stop, a trolley, hardware, and a cable; additional pieces were added over time, some for aesthetics. It required a few rudimentary tools to put up and a mechanism for measuring the slope of the line. There is no indication that the installation was lengthy, and neither building permits nor city inspections were required according to defendant. Nothing indicates that the zip line would be difficult to remove.
From this perspective, the zip line at issue here is not much different, in kind, from the types of tree swings or hammocks long used for recreation. No permanent structures were erected, and little more was done than would be required to hang a hammock or a swing. Although zip lining perhaps requires more artificial materials, the zip line relied on the land just as much, if not more than, a hammock or swing. The zip line was anchored to trees and used the land’s natural elevation to propel the individual. The activity, in other words, could not occur without the natural surroundings, and the artificial equipment had no use or function without the land itself.
For these reasons, I cannot agree that the RUA contains the majority’s second limitation regarding activities that require only bare access to the land. This limitation does not arise from a relevant common feature of the enumerated items. With the possible exception of sightseeing and hiking, all the listed activities involve
I would instead conclude that zip lining falls within the RUA’s catchall and is not excluded from any conceivable limitation arising from the enumerated list of recreational And even then, many people hike or sightsee using marked trails.
activities. The parties have not offered any plausible limitation, and the majority—which adopts an interpretation not put forward by any party—has not either. The backyard zip lining that occurred here is no more removed from the land than is fishing on a dock or hunting in a deer blind. In fact, as noted, the zip lining here used the land in ways that fishing and hunting do not. Thus, in this case, as in many others involving the ejusdem generis canon, it is unnecessary to decide whether any such limitation on the catchall exists. See Otto, 501 Mich at 1045 n 1. Because no limitation applies and zip lining falls within the meaning of “any other outdoor recreational use or trail use,” I would conclude that the statute applies here.
In reaching the opposite conclusion, the majority seems to construct its limitation out of concerns that the RUA would otherwise be too expansive. The majority says that “if zip lining were within the scope of the RUA, it would be difficult to conceive how the RUA’s catchall provision could have any reasonable limitations.” It then trots out a parade of horribles—the RUA’s potential extension to trampoline jumping, hopscotch, and jumping rope—which do not seem so horrible. But in any event, we are not in the business of constructing “reasonable limitations” to statutes—rather, we must interpret the limitations the Legislature imposed. And when those limitations arise, if at all, from a list of specific items preceding a general catchall, we should be chary of leaning too heavily on the ejusdem generis canon. That canon does not always provide determinate results, and consequently, its use calls for more circumspection than the majority has shown today.
III. CONCLUSION
For the reasons above, I do not believe we need to decide whether or how the ejusdem generis canon applies in the present case because, under any conceivable limitation, zip lining would fall within the plain meaning of the RUA’s catchall. And because the Court of Appeals appropriately resolved the merits of the interpretive issues, I would simply vacate as unnecessary its application of the law-of-the-case doctrine. Because the majority takes a different approach, I dissent.
David F. Viviano
Brian K. Zahra