In this landowner’s liability action, plaintiff Thomas Ellsworth, as personal representative of the estate of Nathaniel Ellsworth, deceased, appeals the grant of summary disposition to defendant Highland Lakes Development Associates pursuant to MCR 2.116(C)(8). We affirm.
On May 2, 1986, Nathaniel, then five years old, was on his way to catch frogs on defendant’s land when he was struck by defendant Michael Combs’ motorcycle. Nathaniel died from his injuries. Defendant Combs later pleaded guilty to negligent *57 homicide. The accident occurred on what was originally a tract of farmland acquired by defendant in the mid-1960s. After a brief attempt to farm the property, the Highland Lakes partners sold the entire 107-acre parcel on land contract. The vendee sold four small parcels and then defaulted on the contract. The remaining ninety-seven-acre tract was returned to Highland Lakes. The partners were attempting to sell the still untouched property at the time of the accident.
Plaintiffs complaint alleged that Highland Lakes was liable under theories of negligence and attractive nuisance. Highland Lakes sought summary disposition pursuant to MCR 2.116(C)(8) and (0(10). The trial court granted the motion, relying on MCL 300.201; MSA 13.1485, the recreational land use act (rua).
Plaintiff asserts that the rua is inapplicable. We disagree. The circuit court properly granted immunity to defendants in this case. The act clearly applies to large tracts of undeveloped land, such as this parcel. The act mandates dismissal of ordinary negligence and attractive nuisance claims, and plaintiff cannot prove gross negligence or wilful and wanton misconduct. Finally, landowners are not responsible to protect trespassers from the criminal acts of third parties.
Plaintiff initially argues that the proper authority for summary disposition for immunity granted by law is MCR 2.117(C)(7), and not (C)(8). Alternatively, plaintiff says that the trial court considered evidence beyond the pleadings. Because summary disposition was appropriate under either subrule C(7) or C(10), we will not disturb the result below. If summary disposition is granted under one sub-part of the court rule when judgment is appropriate under another subpart, the defect is not fatal. The mislabeling of a motion does not preclude
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review where the lower court record otherwise permits it.
Wilson v Thomas L McNamara, Inc,
At the time of the decedent’s injury, the rua provided:
No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of such premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee. [MCL 300.201; MSA 13.1485.]
The Supreme Court examined the rua most recently in
Wymer v Holmes,
[T]he Legislature intended the act to apply to . . . outdoor activities . . . which, ordinarily, can be accommodated only on tracts of land which are difficult to defend from trespassers and to make safe for invited persons engaged in recreational activities. The commonality among all these enumerated uses is that they generally require large tracts of open, vacant land in a relatively natural state. This fact and the legislative history of the rua make clear to us that the statute was intended to apply to large tracts of undeveloped land suitable for outdoor recreational uses. Urban, suburban, and subdivided lands were not intended to be covered by the rua. The intention of the Legis *59 lature to limit owner liability derives from the impracticability of keeping certain tracts of lands safe for public use. [Id. at 79; emphasis supplied.]
Human intervention will most often defeat the protection of the rua.
Cypret v Lea,
In contrast,
Wilson, supra,
held that the rua did not apply to a man-made pond on a large undeveloped tract of land. "The focus is on the use of the land and
whether it remains in a relatively natural state
or has been developed and changed in a manner incompatible with the intention of the act.”
Id.
at 377 (emphasis supplied). See also
Cypret, supra,
where the plaintiff drowned in a gravel pit created by "excavations . . . which dramatically changed the features of the land involved.”
Id.
at 229. In
Harris v Vailliencourt,
The circuit court did not err in dismissing plaintiff’s claim. Defendant’s land is a large undeveloped tract. The area was known locally as "Johnson’s Field,” another indicator of its unspoiled natural state. A sheriff’s investigator testified on deposition that the land was being used for other recreational activities (kite flying, bike riding, ball *60 playing, walking, and off-road-vehicle riding) in addition to motorcycle riding. Indeed, it is undisputed that the decedent and defendant Combs both were engaged in activities contemplated by the act.
Plaintiff, relying on Wymer’s exclusion for "urban, suburban, and subdivided lands,”
Next, the decedent’s injuries plainly did not occur on developed land. That motorcyclists and others had worn tracks in the grass did not make the field "developed.” The rua is not rendered inapplicable because some human activity occurs on the land. Cypret, supra at 228-229. The decedent’s injuries are unrelated to the land itself. The trial court properly applied the rua.
The rua excepts from immunity "injuries . . . caused by the gross negligence or wilful and wan *61 ton misconduct of the owner.” Plaintiff argues that defendant’s failure to prevent motorcyclists from using the property when it knew that small children also frequented the land is conduct so extreme as to fall within the statutory exception. We disagree.
Plaintiff essentially concedes that these facts do not constitute "gross negligence.” In Michigan, "gross negligence” still requires that a defendant act negligently
after
a plaintiff negligently contributes to his own peril.
Pavlov v Community Emergency Medical Services,
Plaintiff arguesi further that defendant’s failure to prevent motorcyclists from using the land constitutes "wilful and wanton misconduct.” We cannot agree. Mere negligence cannot be cast as "wilfulness” simply for the purposes of bringing a complaint.
Pavlov, supra
at 716. Wilful negligence is quasi-criminal and manifests an intentional disregard for another’s safety.
Papajesk v Chesapeake & O R Co,
This Court does not easily describe omissions to
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act as "wilful and wanton misconduct.”
Wilson, supra
at 379, rejected the contention that the defendant’s failure to fence a pond met the
Burnett
standard. See also
Hill v Guy,
"Wilful and wanton misconduct” goes beyond ordinary negligence. In
Burnett, supra,
the plaintiff claimed that the defendant city knew about a dangerous structure beneath the waters of a man-made lake and knew that the structure created a hazardous undertow. The Supreme Court held that these facts barely made out an allegation of wilful misconduct.
Plaintiff here has pleaded no more than ordinary negligence. Even if defendant can be charged with knowledge that both motorcyclists and chil *63 dren were on the property, defendant’s alleged negligence in not protecting one from the other does not rise to the level of "wilful and wanton misconduct.” The court did not err in dismissing plaintiffs complaint on this basis.
The court also properly dismissed plaintiffs attractive nuisance claim because it duplicated the negligence claim. See
Graham, supra
at 391;
Hill, supra
at 525 (nuisance action cannot be recognized concurrently with action covered by rua, citing
Burnett, supra).
The rua applies regardless of the decedent’s age, see
Randall, supra
at 214. It is irrelevant that the decedent could not be charged with comparative negligence because he was under seven years old. In any case, plaintiff has not made out a claim for attractive nuisance. The law of attractive nuisance "places an affirmative duty on landowners to carry on activities involving a risk of death or serious bodily harm with reasonable care for the safety of known trespassing children.”
Byrne v Schneider’s Iron & Metal, Inc,
Finally,
Gouch v Grand Trunk W R Co,
As long as the landowner does not actively create or maintain the criminal activity or fail to act reasonably to end criminal activity which takes place in its presence, there should bé no *64 liability for injuries that result from the criminal acts of those third parties.
We find this logic especially compelling in a trespass situation, be the trespasser an adult or child. [Id. at 417.]
Affirmed. Costs to defendant.
Notes
Contrary to plaintiffs claim in his brief, no "aerial photographs” of the land appear anywhere in the record. Those were apparently deposition exhibits that were not filed with the transcripts.
Plaintiff would have us apply a definition of "suburban” found in
Minnesota v White Bear,
255 Minn 28;