597 N.W.2d 517 | Mich. | 1999
Jill RITCHIE-GAMESTER, Plaintiff-Appellee,
v.
The CITY OF BERKLEY and D. Hendricks, Defendants/Third-Party Plaintiffs, and
Halley Mann and Douglas K. Mann II, as Guardian Ad Litem for Halley Mann, Defendants/Third-Party Defendants-Appellants.
Supreme Court of Michigan.
*518 Schreier & Weiss, P.C. (by Sherwin Schreier, Mark Schreier, and Alyce M. Haas), Royal Oak, for plaintiff-appellee.
Becker, Lanctot, McCutcheon, Schoolmaster, Taylor & Hom (by Sarah N. Wildgen), Bloomfield Hills; Gross, Nemeth & Silverman, P.L.C., of counsel (by Mary T. Nemeth), Detroit, for defendants-appellants.
Fraser, Trebilcock, Davis & Foster, P.C. (by Mark A. Bush), Lansing, for Michigan Defense Trial Counsel, Inc.
Opinion
YOUNG, J.
We granted leave in this case to consider the appropriate standard of care for those involved in recreational activities. We conclude that coparticipants in recreational activities owe each other a duty not to act recklessly. Because the trial court properly concluded that plaintiff could not show that defendant violated this standard, we reverse the Court of Appeals and reinstate the trial court's grant of summary disposition for defendant.
I
Facts and Procedural Background
This case comes to us after a grant of summary disposition for defendant pursuant to MCR 2.116(C)(10), and therefore we must view the facts in the light most favorable to the plaintiff.[1] According to plaintiff, she was skating at the Berkley Ice Arena during an "open skating" period when defendant,[2] then twelve years old, ran into her, knocking her down and causing serious injury to her knee. Plaintiff alleged in her complaint that defendant was skating backwards in a "careless, reckless, and negligent manner" at the time of the collision. In Oakland Circuit Court, plaintiff sued defendant Halley Mann, the city of Berkley (the owner of the rink), and an ice arena employee. The City of Berkley and the ice arena employee were eventually dismissed with prejudice by stipulation of the parties. Mann moved for summary disposition pursuant to MCR 2.116(C)(10) on the grounds that "no negligent acts were carried out by the minor defendant," and that Mann's "touching of the Plaintiff while skating is *519 foreseeable when skating at an ice arena with a number of other skaters as is to be expected." The trial court granted summary disposition for defendant, finding that an ice rink "is inherently dangerous," and that "defendant's actions were not contrary to the rules governing skating." Plaintiff appealed, and the Court of Appeals reversed, applying an "ordinary care" standard and finding a genuine issue of material fact regarding whether defendant was negligent.
For purposes of appeal, defendant admits that there is a question of fact regarding whether her conduct was negligent. Similarly, plaintiff has admitted that defendant's conduct did not rise to the level of recklessness. Thus, the only question before this Court is which standard governs this case: If it is ordinary negligence, we must affirm the Court of Appeals and remand for trial; if it is recklessness, we must reverse the Court of Appeals and reinstate the trial court's grant of summary disposition for defendant.
II
Standard of Review
MCR 2.116(C)(10) tests the factual support of a plaintiff's claim. In deciding a motion pursuant to subrule (C)(10), the trial court considers the affidavits, pleadings, depositions, admissions, and other documentary evidence in the light most favorable to the nonmoving party to determine whether a genuine issue of any material fact exists to warrant a trial. We review the trial court's decision de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998); Chandler v. Dowell Schlumberger, Inc., 456 Mich. 395, 397, 572 N.W.2d 210 (1998).
III
The Current State of the Law
Before we begin our review of the law in this area, we must recognize the limitations of the scope of the case before us. First, there is no allegation that defendant intended the contact with plaintiff, or that she intended plaintiff's injuries. Second, we are not asked to consider the liability of the owner or operator of the ice rink. Thus, our analysis is limited to a determination of the proper standard of care among coparticipants for unintentional conduct in recreational activities.
A. Michigan Law
We begin by reviewing the current state of Michigan law regarding the appropriate standard of care in the recreational activity context. In one of our older cases, Williams v. Wood, 260 Mich. 322, 244 N.W. 490 (1932), the plaintiff was injured while fishing. Apparently, the defendant tried to cast but instead hit the plaintiff in the head with the end of his rod, and, in so doing lodged a fish-hook in the plaintiff's eye. The Court reviewed a number of earlier cases from Michigan and other jurisdictions dealing with various outdoor sports, and eventually concluded that the defendant's liability was a question of "ordinary care":
The general rule that may be deduced from the cases hereinbefore cited is that certain risks of accident attend all outdoor sports and recovery may be had only if an injury is the result of negligence that could and should have been avoided by the use of ordinary care. [Id. at 327, 244 N.W. 490.]
We note that the Court did not explain the relationship between the risks that "attend all outdoor sports" and a participant's duty to coparticipants.
This Court visited a related issue in Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965). In Felgner, one duck hunter shot another accidentally. The injured hunter sued the shooter for negligence. At trial, the defendant requested that the jury be instructed regarding "assumption of risk." Id. at 29, 133 N.W.2d 136. The defendant argued that, by engaging in the activity of hunting, the plaintiff had assumed the risk of being shot *520 accidentally and, therefore, that the defendant should not be held liable for the plaintiff's injuries. The trial court refused to so instruct the jury, and the defendant appealed. This Court then held that the "assumption of risk" doctrine did not apply in most negligence actions, concluding instead that it should only be applied in cases in which an employment relationship existed between the parties. Id. at 55-56, 133 N.W.2d 136. Importantly, before Felgner, the assumption of risk doctrine was available to defendants in ordinary negligence actions. Waltanen v. Wiitala, 361 Mich. 504, 105 N.W.2d 400 (1960). After Felgner abolished assumption of the risk in this context, some of the published cases began to move away from the "ordinary care" standard.
In Overall v. Kadella, 138 Mich.App. 351, 361 N.W.2d 352 (1984), on which the trial court relied, the plaintiff was injured when the defendant struck him during a fight that occurred after an amateur hockey game. The defendant asserted that participants in a hockey game should not be able to sue for injuries incurred during the game, arguing volenti non fit injuria.[3] The Court rejected this argument, concluding:
Participation in a game involves a manifestation of consent to those bodily contacts which are permitted by the rules of the game. Restatement Torts, 2d, § 50, comment b. However, there is general agreement that an intentional act causing injury, which goes beyond what is ordinarily permissible, is an assault and battery for which recovery may be had. 4 Am.Jur.2d, Amusements and Exhibitions, § 86, p. 211. [Id. at 357, 361 N.W.2d 352.]
Defendant cites Overall for the proposition that a plaintiff involved in a sport may not sue for injuries caused by conduct that is merely negligent. While some of the language in Overall tends to support defendant's position, Overall involved an intentional act, and, to the extent it suggested a standard for nonintentional acts, it did so only in dicta.
The dicta from Overall became a holding in Higgins v. Pfeiffer, 215 Mich.App. 423, 546 N.W.2d 645 (1996). The plaintiff in Higgins was injured by an errant baseball. Before a game, a pitcher and catcher on the plaintiff's team were warming up by throwing a baseball back and forth. The plaintiff was sitting in the dugout, and the pitcher was throwing toward the dugout. On one particular throw, the ball sailed over the catcher's head and struck the plaintiff in the eye. The plaintiff sued, and the trial court granted summary disposition for the coach, the pitcher, and the catcher. The Court of Appeals affirmed in a two-to-one decision, with the majority concluding that a participant in a sporting activity "consent[s] to the risk of injury inherent in the contest...." Id. at 425, 546 N.W.2d 645.[4]
Another Court of Appeals case, decided only weeks before Higgins, took a different tack. In Schmidt v. Youngs, 215 Mich.App. 222, 544 N.W.2d 743 (1996), the plaintiff was injured when he was struck by a golf ball. Contrary to the custom of staying *521 behind the ball of the person who is about to hit, the plaintiff had positioned himself some thirty yards in front and to the right of the point where defendant was to play his ball. The defendant shanked the ball and hit the plaintiff. The Court of Appeals affirmed summary disposition for the defendant, quoting Am. Jur. 2d:
"A person who engages in the game of golf is not an insurer of the safety of others, and he is only required to exercise ordinary care for the safety of persons reasonably within the range of danger.
"Generally, one who is about to strike a golf ball must, in the exercise of ordinary care, give an adequate and timely notice to those who are unaware of his intention to play and who may be endangered by the play. Conversely, there is no duty to give advance warning to persons who are on contiguous holes or fairways, and not in the line of play, if danger to them is not reasonably to be anticipated. Also, where the person injured was in a place where he should have been reasonably safe, and he was aware of the player's intention to play the ball, an oral or audible warning would have been superfluous and is therefore unnecessary." [4 Am.Jur.2d, Amusements and Exhibitions, § 87, pp. 211-212 (1995 interim pamphlet).] [215 Mich.App. at 225, 544 N.W.2d 743.]
Although it affirmed summary disposition for the defendant, the Court in Schmidt applied an ordinary care standard. In doing so, the Court posited that, while one may consent to the inherent risks of being a spectator or participant in a sport, "one does not ordinarily consent to another's negligence." Id. at 228, 544 N.W.2d 743.
On the basis of a review of the published cases in Michigan, there seems to be general agreement that participants in recreational activities are not liable for every mishap that results in injury, and that certain risks inhere in all such activities. Our older opinions generally applied an ordinary care standard. However, the more recent cases from the Court of Appeals appear to be divided regarding the level of duty, or the standard of care, owed to coparticipants.
B. The Law in Other Jurisdictions
Other jurisdictions have generally taken one of two approaches to this issue. In a few states, ordinary care continues to be the standard. See Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994); Lestina v. West Bend Mut. Ins. Co., 176 Wis. 2d 901, 501 N.W.2d 28 (1993).[5] In the majority of other jurisdictions, however, the courts have adopted a "reckless or intentional conduct" or a "wilful and wanton or intentional misconduct" standard. See, e.g., Jaworski v. Kiernan, 241 Conn. 399, 408, 696 A.2d 332 (1997) (adopting a "reckless or intentional conduct" standard in a case involving a coed recreational soccer game); Hoke v. Cullinan, 914 S.W.2d 335, 337 (Ky., 1995) (adopting a "reckless disregard for the safety of others" standard in a case involving a person hit by a ball between points in a tennis match); Crawn v. Campo, 136 N.J. 494, 643 A.2d 600, 601 (1994) (adopting a "reckless or intentional" standard in a case involving a pickup softball game); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex.App., 1993) (adopting a "reckless or intentional" standard in a case involving a golfer struck by another golfer's ball); Knight v. Jewett, 3 Cal. 4th 296, 302,11 Cal. Rptr. 2d 2, 834 P.2d 696 (1992) (adopting a "reckless or intentional" standard in a case involving an injury suffered in a touch football game); Marchetti v. Kalish, 53 Ohio St. 3d 95, 559 N.E.2d 699 (1990) (adopting a "reckless or intentional" standard in a case involving children playing "kick the can"); Gauvin v. Clark, 404 Mass. 450, 454, 537 N.E.2d 94 *522 (1989) (adopting a "reckless disregard of safety" standard in a case involving a college hockey game); Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986) (adopting a "reckless or intentional" standard in a case involving a professional jockey injured in a fall during a thoroughbred horse race); Ross v. Clouser, 637 S.W.2d 11, 14 (Mo., 1982) (adopting a "reckless disregard for the safety of the other player" standard in a case involving a slow-pitch, church league softball game).[6]
The cases adopting a recklessness standard have recognized different reasons for departing from the ordinary negligence standard. Some courts have held that a participant "assumes the risk" of the activity: "We hold that where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant's actions were either `reckless' or `intentional'...." Marchetti, supra, 53 Ohio St.3d at 100, 559 N.E.2d 699. In states where assumption of the risk has been abolished, some courts have held that a participant "consents" to conduct normally associated with the activity:
Traditionally, the participant's conduct was conveniently analyzed in terms of the defensive doctrine of assumption of risk. With the enactment of the comparative negligence statute, however, assumption of risk is no longer an absolute defense. Thus, it has become necessary, and quite proper, when measuring a defendant's duty to a plaintiff to consider the risks assumed by the plaintiff. The shift in analysis is proper because the "doctrine [of assumption of risk] deserves no separate existence (except for express assumption of risk) and is simply a confusing way of stating certain no-duty rules." Accordingly, the analysis of care owed to plaintiff in the professional sporting event by a coparticipant and by the proprietor of the facility in which it takes place must be evaluated by considering the risks plaintiff assumed when he elected to participate in the event and how those assumed risks qualified defendants' duty to him.
The risk assumed has been defined a number of ways but in its most basic sense it "means that the plaintiff, in advance, has given his ... consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. The situation is then the same as where the plaintiff consents to the infliction of what would otherwise be an intentional tort, except that the consent is to run the risk of unintended injury.... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence."
* * *
As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation. [Turcotte, supra, 68 N.Y.2d at 437-439, 510 N.Y.S.2d 49, 502 N.E.2d 964 (citations omitted).] *523 Finally, courts have almost universally recognized a policy rationale for an elevated standard of care. Courts have recognized that a fear of litigation could alter the nature of recreational activities and sports: "Fear of civil liability stemming from negligent acts occurring in an athletic event could curtail the proper fervor with which the game should be played and discourage individual participation...." Ross, supra, 637 S.W.2d at 14.
One might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of playa traditional source of a community's conviviality and cohesion spurs litigation. The heightened recklessness standard recognizes a commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing fields and should not be second-guessed in courtrooms. [Crawn, supra, 136 N.J. at 508, 643 A.2d 600.]
Courts have also recognized the potential flood of litigation that might result from the use of an ordinary negligence standard:
If simple negligence were adopted as the standard of care, every punter with whom contact is made, every midfielder high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted. When the number of athletic events taking place ... over the course of a year is considered, there exists the potential for a surfeit of lawsuits when it becomes known that simple negligence, based on an inadvertent violation of a contest rule, will suffice as a ground for recovery for an athletic injury. This should not be encouraged. [Jaworski, supra, 241 Conn. at 409-410, 696 A.2d 332.]
IV
Analysis
We note that the Legislature has yet to modify the common law of torts regarding recreational activities, except in two narrow areas not at issue here.[7] Thus, the development of this area of the law, for now, is up to the courts. Const.1963, art. 3, § 7; Placek v. Sterling Heights, 405 Mich. 638, 656-657, 275 N.W.2d 511 (1979).
A. The Nature of Recreational Activities
In developing the common law in this area, we must recognize the everyday reality of participation in recreational activities. A person who engages in a recreational activity is temporarily adopting a set of rules that define that particular pastime or sport. In many instances, the person is also suspending the rules that normally govern everyday life. For example, it would be a breach of etiquette, and possibly the law, to battle with other shoppers for a particularly juicy orange in the grocery store, while it is quite within the rules of basketball to battle for a rebound. Some might find certain sports, such as boxing or football, too rough for their own tastes. However, our society recognizes that there are benefits to recreational activity, and we permit individuals to agree to rules and conduct that would otherwise be prohibited.
There are myriad ways to describe the legal effect of voluntarily participating in a recreational activity. The act of stepping onto the field of play may be described as "consent to the inherent risks of the activity," or a participant's knowledge of the rules of a game may be described as "notice" sufficient to discharge the other participants' duty of care.[8] Similarly, participants' *524 mutual agreement to play a game may be described as an "implied contract" between all the participants, or a voluntary participant could be described as "assuming the risks" inherent in the sport. No matter what terms are used, the basic premise is the same: When people engage in a recreational activity, they have voluntarily subjected themselves to certain risks inherent in that activity. When one of those risks results in injury, the participant has no ground for complaint. Justice Cardozo made this point quite eloquently in a case involving a young man injured on a ride at an amusement park:
One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.
* * *
Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe.... One might as well say that a skating rink should be abandoned because skaters sometimes fall. [Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482-483, 166 N.E. 173 (1929) (citations omitted).]
Justice Cardozo's observations apply just as well to the conduct of coparticipants in a recreational activity as they do to the conduct of a person enjoying an amusement park ride. Indeed, while most of the cited cases have addressed "contact" sports or team sports, Justice Cardozo's comments help illustrate that the same general analysis applies to noncontact and individual recreational activities. In all these activities, there are foreseeable, built-in risks of harm.
In Hathaway, supra, the Texas Court of Appeals faced a similar issue regarding the difference between contact sports and other activities when it addressed golfers' duties to each other. Before Hathaway, Texas had recognized a "reckless or intentional" standard of care for "competitive contact sports." Connell v. Payne, 814 S.W.2d 486, 489 (Tex.App., 1991). The Hathaway court extended this standard to golf, explaining:
While the genteel game of golf can hardly be described as a "competitive contact sport," we believe the reckless and intentional standard is every bit as appropriate to conduct on the links as it is to conduct on the polo field.
* * *
Acts that would be negligent if performed on a city street or in a backyard are not negligent in the context of a game where a risk of inadvertent harm is built into the sport.
As those persons who play golf well know, "shanking the ball is a foreseeable and not uncommon occurrence." "The same is true of hooking, slicing, pushing, or pulling a golf shot." Because of the great likelihood of these unintended and offline shots, it can indeed be said that the risk of being inadvertently hit by a ball struck by another competitor is built into the game of golf.... Many bad shots carry the ball to the right or the left of an intended line of play. Golfers playing to the right or left of *525 that line will of course be endangered by such shots. "This risk all golf players must accept." [Id. at 616-617 (citations omitted).]
The risks on an ice rink are no less obvious than those on a golf course. One cannot ice skate without ice, and the very nature of icethat it is both hard and slipperybuilds some risk into skating. In addition, an "open skate" invites those of various ages and abilities onto the ice to learn, to practice, to exercise, or simply to enjoy skating. When one combines the nature of ice with the relative proximity of skaters of various abilities, a degree of risk is readily apparent: Some skaters will be unable to control their progress and will either bump into other skaters, or fall. All skaters thus take the chance that they will fall themselves, that they will be bumped by another skater, or that they will trip over a skater who has fallen.
B. Adoption of the Reckless Misconduct Standard
With these realities in mind, we join the majority of jurisdictions and adopt reckless misconduct as the minimum standard of care for coparticipants in recreational activities. We believe that this standard most accurately reflects the actual expectations of participants in recreational activities. As will be discussed in more detail below, we believe that participants in recreational activities do not expect to sue or be sued for mere carelessness. A recklessness standard also encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Finally, this standard lends itself to common-sense application by both judges and juries.[9]
C. Application of the Law
Applying a recklessness standard in this case, we conclude that summary disposition was properly granted to defendant. Although plaintiff used the word "reckless" in her complaint, a review of the pleadings, depositions, and other documentary evidence reveals that plaintiff merely contends that defendant was skating backward without keeping a proper lookout behind her. These allegations amount to, at most, carelessness or ordinary negligence.[10] Thus, the trial court properly granted summary disposition for defendant.
V
Response to the Concurrence
Whatever else we disagree upon, those in the concurrence do agree that defendant's conduct in this case is not actionable. The fundamental difference between the two opinions turns on the standard of care each believes should apply to this and cases of like kind. As stated above, we believe that a recklessness standard most nearly comports with the expectations of participants in recreational activities. While reasonable people can differ on this issue, in rejecting our standard, the concurrence purports to apply an ordinary negligence standard. In fact, it does not.
Among this Court's prime concerns must be the obligation to create common law rules that create certainty and predictability in the law. We believe that the standard we adopt is consistent with our existing jurisprudence and lends itself to easy, common-sense application. On the other hand, the concurrence offers a bowdlerization of our traditional negligence *526 standard that we believe would be exceedingly difficult to apply.
The instant case provides a prime illustration of our point: As noted in the statement of facts, defendant concedes that questions of fact exist regarding whether her conduct was negligent. Even without this admission, it seems readily apparent that questions of fact abound under a negligence standard. All agree that defendant was permitted to skate backward at an open skate, but, as the concurrence acknowledges, an ordinary negligence standard required defendant to maintain a lookout in order to avoid running into other skaters. Here, defendant says she kept a lookout, but admits that she still bumped into plaintiff and knocked her down. Under these circumstances, could not reasonable jurors conclude that defendant failed to maintain a sufficient lookout? Surely, the question whether defendant's conduct was sufficiently careful under an ordinary negligence standard presents a question of material fact. Yet the concurrence declares, as a matter of law, that defendant's conduct was not negligent. The concurrence can only reach that point by ignoring the appropriate standard of review pursuant to MCR 2.116(C)(10), which requires us to draw inferences in favor of plaintiff, and by ignoring defendant's admission that questions of fact exist regarding whether her conduct was negligent. We find it hard to reconcile the concurrence's position with the facts of this case and traditional negligence law, and we are not persuaded that the concurrence's position corners the market on common sense.
Ignoring the foregoing problem, the concurrence attempts to support its hybrid negligence standard by suggesting that participants who conduct themselves within the rules of the game are not subject to liability under its proposed standard.[11] Op. at 532-33. It is proposed that breaches of "formal or informal rules of safety" should be actionable, id., but apparently breaches of other rules should not. We think this endeavor to draw a distinction between "safety rules" (which apparently are inviolate) and non-safety rules (which apparently may be disregarded with legal impunity) attempts to draw a fruitless distinction that even participants themselves do not, and probably cannot, draw.[12] The concurrence's revised formulation of the conventional negligence standard would lead to profound doctrinal confusion, and more, rather than fewer, ancillary disputes.[13] More to the point, *527 what direction would the concurrence's standard give to our beleaguered trial judges who are required to referee such questions in the crucible of litigation? We think the answer is "precious little."
Let us consider real-world examples to test whether the concurrence has presented a workable standard. In the case of soccer, which is officially a "non-contact" sport, where would the concurrence draw the "negligence line" if a participant is injured when she is fouled? Is a minor foul actionable? Is a foul that draws a "yellow card" actionable? Or would the concurrence find the foul actionable if it results in a "red card"? Similarly, in hockey, is a player who receives a twominute penalty for slashing liable for any injuries caused by his rule violation, or is he even liable for the type of foul that results in a major misconduct penalty? Presumably, the concurrence would not preclude liability where a referee missed a foul, but what about a case where the referee saw the activity and concluded that no rule violation was committed? May a jury look beyond that decision and overturn it?
Surely all who participate in recreational activities do so with the hope that they will not be injured by the clumsiness or over-exuberant play of their coparticipants. However, we suspect that reasonable participants recognize that skill levels and play styles vary, and that an occasional injury is a foreseeable and natural part of being involved in recreational activities, however the "informal and formal rules" are structured and enforced.
Thus, we question whether participants in recreational activities make the kind of fine, Philadelphia lawyer-like distinctions regarding rules and their violation that the concurrence would use as the touchstone of liability. We doubt it. When a player steps on the field, she must recognize that an injury may occur, but she does not know whether she will be injured, or whether she will inadvertently injure another player. We do not believe that a player expects an injury, even if it results from a rule violation, to give rise to liability. Instead, we think it more likely that players participate with the expectation that no liability will arise unless a participant's actions exceed the normal bounds of conduct associated with the activity.
Consequently, we believe that the line of liability for recreational activities should be drawn at recklessness. Recklessness is a term with a recognized legal meaning and, more importantly, is a term susceptible of a common-sense understanding and application by judges, attorneys, and jurors alike in the myriad recreational activities that might become the backdrop of litigation. Just as important, our standard more nearly comports with the common-sense understanding that participants in these activities bring to them. While the concurrence may disagree whether we have accurately assessed participant expectations, we think that our standard has the significant value of providing an explicit, easy to apply rule of jurisprudence. The concurrence has failed to present a sounder, clearer alternative standard.
VI
Conclusion
For the reasons set forth above, we conclude that coparticipants in a recreational activity owe each other a duty not to act recklessly. Because the trial court properly concluded that plaintiff could not show that defendant violated this standard, summary disposition was proper. Thus, we reverse the Court of Appeals decision and reinstate the grant of summary disposition for defendant.
WEAVER, C.J., and TAYLOR, and CORRIGAN, JJ., concur with YOUNG, J.
BRICKLEY, J. (concurring).
As the majority notes, many state courts have addressed the question of the appropriate *528 standard of care in sports injury cases. Op. at 521-22. Recently, most courts have held that, in order to state a cause of action, the plaintiff is required to allege that the defendant's actions were either reckless or intentional. Id.; 55 A.L.R. 5th 529, 537. Three jurisdictions, Nevada, Wisconsin, and Arizona, explicitly judge sports injury cases according to the "ordinary care" standard. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994); Lestina v. West Bend Mut. Ins. Co., 176 Wis. 2d 901, 501 N.W.2d 28 (1993); Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364 (Ariz.App., 1997).
This Court has twice held that the proper standard of care for sports injury cases is ordinary care. Felgner v. Anderson, 375 Mich. 23, 32, 56, 133 N.W.2d 136 (1965); Williams v. Wood, 260 Mich. 322, 244 N.W. 490 (1932). More recently, after this Court abolished the "assumption of risk" doctrine in Felgner, supra, panels of the Michigan Court of Appeals have held both that ordinary negligence is the proper standard of care, Schmidt v. Youngs, 215 Mich.App. 222, 544 N.W.2d 743 (1996); Carey v. Toles, 7 Mich.App. 195, 151 N.W.2d 396 (1967), and that recklessness is the proper standard of care, Higgins v. Pfeiffer, 215 Mich.App. 423, 546 N.W.2d 645 (1996); Overall v. Kadella, 138 Mich.App. 351, 361 N.W.2d 352 (1984).[1]
The majority now holds that the Court of Appeals in Higgins and Overall got it right: A participant in a sporting event owes a coparticipant a duty not to act recklessly. Op. at 525-26. One of the reasons advanced by the majority is evident in the following passage:
There are myriad ways to describe the legal effect of voluntarily participating in a recreational activity. The act of stepping onto the field of play may be described as "consent to the inherent risks of the activity," or a participant's knowledge of the rules of a game may be described as "notice" sufficient to discharge the other participants' duty of care. Similarly, participants' mutual agreement to play a game may be described as an "implied contract" between all the participants, or a voluntary participant could be described as "assuming the risks" inherent in the sport. No matter what terms are used, the basic premise is the same: When people engage in a recreational activity, they have voluntarily subjected themselves to certain risks inherent in that activity. [Op. at 523-24.]
The majority offers further, more succinct, advantages that it discerns in the recklessness standard:
We believe that this standard most accurately reflects the actual expectations of participants in recreational activities.... [W]e believe that participants in recreational activities do not expect to sue or be sued for mere carelessness. A recklessness standard also encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Finally, this standard lends itself to common-sense application by both judges and juries. [Op. at 525.]
None of the rationales advanced by the majority withstands scrutiny. The first group of reasons, quoted above, states in essence that the recklessness standard is appropriate because participants in recreational activities "assume the risk" of certain injuries. Not only is this a novel use of the assumption of risk doctrine (which was a complete bar to liability in tort), but, more importantly, it overlooks the fact that the assumption of risk doctrine was abrogated by this Court in Felgner. Furthermore, common sense dictates that none of the advantages of the recklessness standard that the majority cites actually *529 support its conclusion.[2] I believe that the majority is wrong in overruling this aspect of our holdings in Felgner and Wood.
I
I begin with the majority's assertion that the recklessness standard "encourages vigorous participation in recreational activities." Op. at 525; see id. at 523-24, quoting Ross v. Clouser, 637 S.W.2d 11, 14 (Mo., 1982); Crawn v. Campo, 136 N.J. 494, 643 A.2d 600, 607 (1994). This observation echoes the reasoning of an earlier case in this area: "the law should not place unreasonable burdens on the free and vigorous participation in sports by our youth," Nabozny v. Barnhill, 31 Ill.App.3d 212, 215, 334 N.E.2d 258 (1975).
The flaw in this reasoning, at least as applied to the state of Michigan, is that this state has observed the more exacting "ordinary care" standard in sporting and recreational events at least since 1932, Williams, supra, and, despite this higher standard of care, there is no sign of any wane in the "vigorousness" of recreational sports in Michigan.[3] Perhaps the majority would like to see even greater vigorousness in these activities, and plainly believes that the recklessness standard would serve this end. But, without any empirical evidence that participation or vigorousness in the state's recreational sports and activities would reach even greater heights under the recklessness standard, this Court should not attempt any social engineering in this area by altering long-existing rules of tort law.
The majority assumes that its decisions regarding tort standards of care are relevant considerations for those deciding whether to participate in recreational activities. I have my doubts regarding this proposition.[4] But, even if we accept it as *530 true, the majority's conclusion does not necessarily follow. Indeed, if participants in recreational activities have the legal foresight with which the majority credits them, it is just as likely that many would choose not to participate in these activities because the recklessness standard might encourage dangerous behavior or make it too difficult for participants to recover in the event they are injured. This heightened possibility of injury and unavailability of recovery would discourage vigorous participation, or any participation at all, by those who are less bold, or who might not want to take the financial risks presented by the possibility of injury.
These questions warn us that such policy issues are difficult for courts.[5] Should we require that the parties submit statistical analyses of the increased or decreased participation in recreational sports in those jurisdictions that have adopted the negligence and recklessness standards? Should we commission a study on the comparative vigorousness of play in these jurisdictions? Should we compare the per capita incidence of sports injury litigation in different jurisdictions? In the absence of reliable evidence that the negligence standard actually has an effect on the participation in or the vigorousness of recreational activities, this Court should not overrule its precedent on the basis of such a policy judgment, particularly in light of this state's longstanding policy that, "[w]here there is a person negligently injured by another, normally there is recovery therefor." Williams v. Polgar, 391 Mich. 6, 11, 215 N.W.2d 149 (1974); see Parker v. Port Huron Hosp., 361 Mich. 1, 11, 105 N.W.2d 1; 361 Mich. 1, 105 N.W.2d 1 (1960) ("[N]ot only at the common law but also at the present time the general rule has been that one is liable for his negligence or tortious acts").[6]
II
In Felgner, we stated that "[a]ssumption of risk should not again be used in this State as a substitute for, or as a supplement to, or as a corollary of, contributory *531 negligence.... The traditional concepts of contributory negligence are more than ample to present that affirmative defense to established negligent acts." Id. at 56, 133 N.W.2d 136. Later, we noted that "the doctrine of contributory negligence has caused substantial injustice since it was first invoked in England in 1809," and replaced it with comparative negligence. Placek v. Sterling Heights, 405 Mich. 638, 652, 275 N.W.2d 511 (1979).[7] Thus, juries are responsible for deciding the degree to which a plaintiff's negligence including the assumption of the risk), contributed to an injury, and reducing the damage award accordingly.
The majority recognizes our abrogation of the doctrine of assumption of risk in Felgner. Op. at 519-20. More important, the majority properly notes that assumption of risk includes the doctrine of volenti non fit injuria, and that in light of Felgner, "[i]t is questionable whether this maxim retains any meaning in this state...."[8]Id. at 520, n. 3. Regardless, the majority depends upon the notion of violenti non fit injuria to grant partial immunity to the defendant in this case: "When people engage in a recreational activity, they have voluntarily subjected themselves to certain risks inherent in that activity. When one of those risks results in injury, the participant has no ground for complaint." Op. at 524. The majority's statement is simply a paraphrasing of the maxim: "[T]o a willing person a wrong is not done." Op. at 520, n. 3.[9]
Certainly, there is a sense in which assumption of risk has been recognized as surviving the adoption of contributory negligence schemes. This has been described as "primary assumption of risk," or the "duty perspective" on assumption of risk. Prosser & Keeton, Torts (5th ed.), § 68, pp. 480-481.
[W]here the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation ... [h]e may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take his own chances. [Id. at 481.]
This is presumably the sense of "assumption of risk" that the majority means to invoke when it discusses "consent to the inherent risks of the activity,"[10] "`notice' *532 sufficient to discharge the other participants' duty of care,"[11] or the "`implied contract' between all the participants." Op. at 523-24; see id. at 522, quoting Turcotte v. Fell, 68 N.Y.2d 432, 437-439, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986).
This doctrine does not, however, support the majority's result in this case.[12] The plaintiff did not consent to any conduct of the defendant or the other participants in the free skate. The plaintiff's implied consent in entering into this recreational activity is based upon the relationship that she entered into with her coparticipants. Prosser & Keeton, supra, pp. 480-481. Since most recreational activities and sporting events have formal or informal rules regarding safety,[13] we must assume that the plaintiff entered into this relationship with her coparticipants with knowledge of these rules, and the expectation that they would be obeyed. We cannot assume most participants in such activities consent to others' behavior that is either accidentally or purposefully outside those safety rules.
Indeed, it would likely be a great surprise to the millions of participants in Michigan's recreational sports and activities that, by participating, they were legally consenting to their coparticipants' breach of the safety rules of those activities. One must wonder about the effect on the "vigorousness" of these sports, if it became common knowledge that this Court sanctioned breaches of these activities' safety rules, as long as the breaches did not amount to recklessness.
The fact that such rules exist supplies a ready definition of the legal duties that participants in sporting activities must observe: Participants have a tort-enforceable duty to one another to obey the safety rules of the sport or activity. If a participant *533 engages in conduct outside these rules, that participant has potentially breached her legal duty to her coparticipants, and the factfinder must determine whether her conduct was reasonable under the circumstances. Participants in a sporting or recreational activity consent to actions by their coparticipants that would not satisfy the strictures of "ordinary care" in everyday activity, but they do not consent to behavior unconstrained by the safety rules of the particular activity.
By participating in the open skate, the plaintiff in the instant case impliedly consented to the defendant's backward skating, knowing that this was likely to be more dangerous than behavior that the plaintiff would encounter, for example, on a walk in her neighborhood. Cf. op. at 523-24. The parties agree, however, that one of the safety rules of free skating is that, while skating backward, the skater should periodically look behind her to see if she is going to run into anyone. Thus, the plaintiff consented to the heightened risk of the defendant's behavior with the knowledge that the defendant would lessen that risk by periodically looking behind her as she was skating backward.
If the defendant was skating backward and obeying the safety rules by looking behind her, and then collided with the plaintiff, she cannot be held liable because she had no duty to behave more cautiously. Prosser & Keeton, supra at 481. If, however, the defendant ran into the plaintiff while she was skating backward and not periodically looking behind her, then she engaged in conduct that the plaintiff had not consented to, and can be held to have breached her duty toward the plaintiff if she did not act with reasonable care.[14]Id.
Because there is no basis in fact or law for holding that participants impliedly consent to any behavior that is more dangerous than that allowed by the activity's safety rules, primary assumption of risk is not a basis for holding that coparticipants in sporting activities have only the duty to refrain from acting recklessly. Id. This Court should not dash participants' expectations by insisting, without reason, that their participation indicates their consent to more dangerous conduct.
III
Despite my disagreement with the majority's reasoning, I reach its result because the plaintiff in this case submitted no evidence that the defendant breached any safety rules during free skating. The plaintiff has urged that the relevant rule of free skating is that "the skater has the responsibility for looking behind her when skating backward and should not rely upon others." The only evidence in the record regarding whether the defendant did look behind her while skating backward, is the defendant's deposition testimony:
Q. Now, when you skate backward are you able or do you attempt to look *534 where you're going by turning your head from one side to the other?
A. Yes.
Q. Do you feel that when you're skating backward you can see everything behind you or is there some limitation in that?
A. Well, I would look and then the people that were facing me, like I was skating backwards this way and you would be facing me, you would say there's people behind me.
Q. So you were depending somewhat on the person that was skating forward to let you know if someone was behind you?
A. Yeah, I would check and they told me. [Emphasis supplied.]
While it is clear that the defendant partially relied on those skating with her to warn her about other skaters, she also unambiguously stated that she "looked" or "checked" behind her. Thus, there is no basis on which to say that she violated any safety rules of the free skate, and no basis for finding that she violated any duty that she owed to the plaintiff.[15] MCR 2.116(C)(10). The trial court properly granted her motion for summary disposition, and, like the majority, I would reverse the judgment of the Court of Appeals.
MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., concur with BRICKLEY, J.
NOTES
[1] Kammer Asphalt Paving Co. v. East China Twp. Schools, 443 Mich. 176, 179, 504 N.W.2d 635 (1993).
[2] We will use the term "defendant" to refer to defendant Halley Mann.
[3] Translated literally, this Latin phrase means "to a willing person a wrong is not done." Garner, Dictionary of Modern Legal Usage (2d ed.) (New York: Oxford Univ Press, 1995), p. 921. This maxim is probably most accurately categorized as an expression of the "assumption of the risk" doctrine. See Reedy v. Goodin, 285 Mich. 614, 620, 281 N.W. 377 (1938), overruled in part in Felgner, supra. In the most obvious example, a boxer would not be permitted to recover for injuries caused by blows landed within the rules of the boxing match. See, i.e., McAdams v. Windham, 208 Ala. 492, 94 So. 742 (1922). It is questionable whether this maxim retains any meaning in this state in light of this Court's abolition of the assumption of the risk doctrine in Felgner.
[4] Defendant relies on Higgins for exactly this proposition. However, as the dissenting judge pointed out, the majority relied on out-of-state cases, because there was no Michigan precedent for the majority position. We also note that the majority seemed to ignore the fact that this Court had already articulated an "ordinary care" standard in Williams, supra.
[5] See also Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364 (Ariz.App., 1997) (applying a "reasonable care" standard on the ground that the Arizona Constitution prohibited adoption of a higher standard).
[6] A few states have limited application of this standard to "contact" sports. See, e.g., Zurla v. Hydel, 289 Ill.App.3d 215, 216-217, 224 Ill. Dec. 166, 681 N.E.2d 148 (1997) (In Illinois, a "wilful and wanton" standard applies to contact sports, including soccer and recreational softball, but a "simple negligence" standard applies to golf); Dotzler v. Tuttle, 234 Neb. 176, 449 N.W.2d 774 (1990) (finding liability for conduct that is "either willful or with a reckless disregard for the safety of the other player" in contact sports such as basketball); Kabella v. Bouschelle, 100 N.M. 461, 463, 672 P.2d 290 (N.M.App., 1983) (adopting a "reckless or wilful conduct" standard for contact sports in a case involving an informal tackle football game). See also Jaworski, supra, 241 Conn. at 412, 696 A.2d 332, and Knight, supra, 3 Cal.4th at 320, n. 7, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (both adopting a "reckless or intentional" standard, but recognizing that some activities, such as golf, might warrant a different standard).
[7] See the Roller Skating Safety Act, M.C.L. § 445.1721 et seq.; M.S.A. § 18.485(1) et seq., and the Ski Area Safety Act, M.C.L. § 408.321 et seq.; M.S.A. § 18.483(1) et seq.
[8] See Felgner, supra at 36, 133 N.W.2d 136 ("If after such notice plaintiff ... is injured, defendant is not liable, not because plaintiff assumed the risk of injury, but, rather, because defendant discharged his duty towards plaintiff by the giving of notice").
[9] We recognize that we have stated this standard broadly as applying to all "recreational activities." However, the precise scope of this rule is best established by allowing it to emerge on a case-by-case basis, so that we might carefully consider the application of the recklessness standard in various factual contexts.
[10] Indeed, plaintiff conceded that defendant's actions did not rise to the level of reckless misconduct. As the California Supreme Court has noted, conduct within the range of the ordinary activity involved in the sport can hardly be termed reckless. Knight, supra, 3 Cal.4th at 319-321, 11 Cal. Rptr. 2d 2, 834 P.2d 696.
[11] Interestingly, the concurrence accuses us of implicitly overruling Felgner, supra, and reviving assumption of the risk because we recognize that participants consent to certain conduct that would otherwise be negligent. Op. at 529. We find this odd, as the concurrence also recognizes that participants consent to conduct that might otherwise be negligent. The only difference we can discern is that the concurrence believes that such consent is strictly limited to conduct within the formal or informal rules regarding safety, op. at 532, while we believe that the consent is somewhat broader.
[12] What, for example, is an informal safety rule? Who makes such a rule, and how do we determine when it actually exists or when it is violated?
[13] The concurrence makes light of our concern over the effect of increased litigation on recreational activities. While it is difficult to quantify such an effect, we see clear evidence that litigation can exact a toll on what most would consider valuable social activities. See "Litigation League," by Creighton Hale, The Wall Street Journal, February 13, 1995 (briefly describing some of the effects of litigation on Little League baseball); "The Price of Free Work is Rising, Nonprofits Find," by John Gallagher, The Detroit Free Press, December 4, 1997 (noting that Girl Scouts in metro Detroit must sell 36,000 boxes of cookies each year just to pay for liability insurance).
Our duty is to adopt rules that balance the need to ensure that victims of tortuous injury have a remedy without creating a harbor for trivial suits, or destructive levels of litigation that will inhibit important social activity. While reasonable minds can differ regarding how best to strike that balance, we believe that the concurrence standard would provoke litigation on questions like "what are the informal safety rules in football?" and "must a plaintiff provide expert testimony in order to establish a breach of a safety rule?" As a matter of policy, we believe that the citizens of this state are better served by a standard that avoids proliferation and reduces the complexity of such litigation.
[1] As the majority notes, the majority of the Court of Appeals panel in Higgins (and the panel in Overall) "seemed to ignore the fact that this Court had already articulated an `ordinary care' standard in Williams, supra." Op. at 520, n. 4.
[2] For example, it is not at all apparent why the recklessness standard "lends itself" more to "common-sense application by both judges and juries" than does the ordinary negligence standard, which looks to whether the defendant's conduct was reasonable under the circumstances. See n. 12; cf. op. at 525.
[3] For example, the state Department of Natural Resources estimates that there are one million hunters and fur harvesters in Michigan, and as many as two million anglers. Michigan Department of Natural Resources, Hunting and Fishing (last modified June 30, 1999) . Travel Michigan reports "nearly a million sailors, power boaters, and canoeists" on Michigan waters, Travel Michigan, Great Outdoors (visited June 30, 1999) , as well as the fact that Michigan "builds and opens more [golf] courses than any other state." Travel Michigan, Golf in Michigan (visited June 30, 1999) .
Furthermore, the fact that Michigan has observed the "ordinary care" standard in this area at least since 1932, Williams, supra, calls into doubt any concern that, "`[w]hen the number of athletic events taking place ... over the course of a year is considered, there exists the potential for a surfeit of lawsuits when it becomes known that simple negligence, based on an inadvertent violation of a contest rule, will suffice as a ground for recovery for an athletic injury.'" Op. at 523, quoting Jaworski v. Kierman, 241 Conn. 399, 409-410, 696 A.2d 332 (1997). Given that ordinary negligence has been the rule in Michigan for at least sixty-seven years, and there has not yet been any cry raised over "a surfeit" of sports injury cases, either Michiganders are exceptionally slow in discovering that "simple negligence ... will suffice as a ground for recovery" in this area, or Michiganders are not nearly as litigious as some might fear. Regardless, we should not alter the ordinary negligence standard of care to stem excessive lawsuits in this area until it appears that such lawsuits are actually a possibility.
[4] In overturning the doctrine of charitable immunity, for example, this Court noted the observations of a federal court addressing the same issue:
"No statistical evidence has been presented to show that the mortality or crippling of charities has been greater in States which impose full or partial liability than where complete or substantially full immunity is given. Nor is there evidence that deterrence of donation has been greater in the former. Charities seem to survive and increase in both, with little apparent heed to whether they are liable for torts...." [Parker v. Port Huron Hosp., 361 Mich. 1, 17, 105 N.W.2d 1 (1960), quoting President & Directors of Georgetown College v. Hughes, 76 U.S. App. D.C. 123, 136, 130 F.2d 810 (1942).]
[5] Further warning us is the fact that the Legislature, which has far greater access to the proper studies and statistics, has reinstated the assumption of risk doctrine with respect to sports accidents at roller rinks and ski resorts. M.C.L. § 408.342; M.S.A. § 18.483(22)(Ski Area Safety Act); M.C.L. § 445.1725; M.S.A. § 18.485(5)(Roller Skating Safety Act). The Legislature has not, however, reinstated assumption of risk in all sporting activities. This Court should not seek to fill the Legislature's policy-making role without compelling reasons and sound explanations.
[6] Another relevant consideration is this Court's abolition of charitable tort immunity and interfamily tort immunity, though both these rules are supported by more compelling policy rationales than encouraging the vigorousness of sports. In Parker, supra, we noted that Michigan courts have prohibited tort suits against charities since 1894, relying upon "public policy that benevolence should not be impaired by recovery of damages for torts of the employees of the charitable trust." Id., p. 13, 105 N.W.2d 1. The Parker Court held that this policy could not justify "`the injured individual's having to bear the loss wrongfully inflicted upon him...." Id., p. 19, 105 N.W.2d 1, quoting President & Directors of Georgetown College v. Hughes, n. 4 supra, p. 137, 130 F.2d 810.
We also overturned the rule that members of a family may not sue one another in tort. Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972). This rule was based on "`the interest of the peace of the family and of society, and [was] supported by sound public policy.'" Id., p. 5, 199 N.W.2d 169, quoting Elias v. Collins, 237 Mich. 175, 177, 211 N.W. 88 (1926). Such policy gave way, however, to the greater concern that those who are injured by negligent conduct be allowed to recover. Id.
In light of the abrogation of these rules, based upon the public policy of encouraging charitable giving and "the peace of the family and of society," it seems strange to base partial tort immunity in sports injury suits on a desire to encourage vigorous recreational activities. Even if we accept as true that a recklessness standard would encourage vigorous participation in sports (again, a doubtful proposition), we must take note of this Court's treatment of tort immunities based upon far more compelling rationales than this one.
[7] The Legislature has recently partially affirmed and partially overturned Placek, replacing "pure" comparative negligence with "hybrid" comparative negligence. M.C.L. §§ 600.2958, 600.2959; M.S.A. §§ 27A.2958, 27A.2959. Under this scheme, a plaintiff's recovery is limited to economic damages if the degree of fault in causing the injury was greater than the aggregate fault of all others causing the injury. Id.
[8] A leading treatise on torts states that some courts "have been compelled to invent other names for [assumption of risk], such as `incurred risk,' or `violenti non fit injuria.' This appears to be largely a distinction without a difference; and most courts have made general use of the one term." Prosser & Keeton, Torts (5th ed.), § 68, p. 480.
[9] The majority quotes at length from Chief Judge Cardozo's oft-cited opinion in Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482-483, 166 N.E. 173 (1929). Op. at 524. But this opinion is based upon the doctrine of assumption of risk, which, as the majority recognizes, has been abolished in Michigan. Felgner, supra. Indeed, immediately preceding the section quoted by the majority is the phrase "violenti non fit injuria," Murphy, supra at 482, 166 N.E. 173, which, as already noted, the majority sees as probably not "retain[ing] any meaning" after Felgner. Op. 520 at n. 3.
[10] Restatement Torts 2d, § 50, comment b, p. 86, is frequently cited as authority for the proposition that consent is an appropriate basis for heightening the standard of care in sports injury cases. See op. at 520. But consent, in this sense, is a privilege only to intentional invasions of person or property. See id., § 50, p. 85 ("The rule stated in § 892 [2] as to apparent consent to the invasion of an interest applies to the intentional invasion of interests of personality" [emphasis supplied] ); 4 Restatement Torts, 2d, § 892A(1), p. 364 ("One who consents to conduct of another intended to invade his interests cannot recover" [emphasis supplied] ); Prosser & Keeton, supra, § 18, p. 112 ("The problem discussed here is the meaning and effect of consent in relation to intentional interferences with person or property" [emphasis supplied]).
[11] The majority's quotation of Felgner at this point, op. at 523, n. 8, is the Felgner Court's paraphrasing of the holding of an earlier English case that refused to impose liability for injuries inflicted by a spring gun that the plaintiff knew was on the premises. Id. at 36, 133 N.W.2d 136, citing Ilott v. Wilkes, 3 Barb. & Aid. 304; 106 Eng.Rep. 674 (KB 1820). The Felgner Court did not rely on or approve this case, however. Indeed, it observed that the case had not been cited by earlier Michigan cases, and "assume[d] either that the Justices [in earlier decisions] did not approve of its principles or they thought it not pertinent." Id. at 39, 133 N.W.2d 136. Despite this treatment by the Felgner Court, Ilott might be an early example of "primary" assumption of risk.
[12] Our analysis of "consent" is hampered by the fact that this word has been used to describe a number of different legal concepts. For example, consent is a defense to an action alleging an intentional tort, but such consent cannot be a defense to a tort sounding in negligence. See n. 10. Indeed, the nearest thing to "consenting" to negligence is the doctrine of assumption of the risk, which was abrogated in Felgner as a defense in negligence actions.
The "consent" that I refer to is the only variety of consent that is viable under the facts of the instant case, and that is "primary assumption of risk," as discussed above. Prosser & Keeton, supra at 481. The effect of primary assumption of the risk is to relieve the defendant of a legal duty to protect the plaintiff from the consented-to conduct; here, conduct that is within the safety rules of the particular sport. Id. at 496 ("[A]ssumption of risk in this form is really a principle of no duty, or no negligence, and so denies the existence of any underlying cause of action").
[13] A formal safety rule would be a safety rule that is written into the rule books of a particular sport or activity, while an informal safety rule would be one that is widely recognized by participants in the absence of a formal rule. The parties in the instant case agree that the relevant safety rule of free skating is that a skater looks behind her when skating backward. This would presumably be an "informal" rule, as no rule book has been presented by the parties.
A "safety" rule, as opposed to a non-safety rule, is a rule that increases the safety of the sport or activity, rather than merely increasing the fairness or competitiveness of the activity. The parties to the instant case have agreed that the relevant safety rule of free skating is that a backward-skating participant should look behind her while skating backward; there is no basis for questioning whether this is a safety rule or not. ward; there is no basis for questioning whether this is a safety rule or not.
[14] It might be argued that this conduct would be reckless behavior under the circumstances. But there is far more room for disagreement about whether this behavior is "reckless" or "negligent," than there is for disagreement about whether this behavior is outside the agreed-upon safety rules of the activity. Where the parties agree upon the applicable safety rule of a sport, or where the rule is written into a rule book, this determination will be particularly straightforward. Where the parties disagree about the relevant safety rule, and reasonable minds could differ, a factual determination will be necessary. MCR 2.116(C)(10). Such a determination is certainly not beyond the capabilities of trial courts and juries in Michigan.
If the factfinder determines that the defendant's conduct was within these rules, the case ends because the defendant had no legal duty to the plaintiff. If the trial judge or jury finds that the defendant's conduct was outside the rules, an actionable duty exists. The trial would then continue to determine whether the defendant breached this duty by failing to use reasonable care under the circumstances. Thus, in contrast to the majority, I believe that the "ordinary care" standard that I propose is at least as susceptible to "common-sense application by both judges and juries" as is the recklessness standard. Cf. op. at 525.
[15] It is immaterial, for these purposes, that the defendant stipulated that questions of fact remain regarding whether she was negligent. As the above discussion makes clear, the plaintiff has not presented facts sufficient to maintain that the defendant owed her a tort-enforceable duty, and therefore summary judgment is appropriate.
