395 N.W.2d 75 | Mich. Ct. App. | 1996
SCHILLER
v.
MUSKEGON STATE PARK
Michigan Court of Appeals.
McCroskey, Feldman, Cochrane & Brock, P.C. (by J. Walter Brock), for plaintiffs.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Theodore E. Hughes, Assistant Attorney General, for defendant.
Before: SHEPHERD, P.J., and ALLEN and G.R. COOK,[*] JJ.
G.R. COOK, J.
On November 28, 1984, plaintiffs filed a complaint in the Court of Claims, alleging negligence in the maintenance of a state park boat launch. On August 7, 1985, Judge James T. Kallman granted defendant's motion for summary disposition, pursuant to MCR 2.116(C)(7), based on governmental immunity and the recreational use act. Plaintiffs appeal as of right.
On June 16, 1984, plaintiff Patrick Schiller slipped and fell while unloading his boat from a trailer at a boat launch in the Muskegon State Park. The park is owned and operated by the Michigan Department of Natural Resources.
*474 Plaintiffs alleged that, at the time Schiller fell, the boat dock was wet and slippery as a result of water washing over the dock; that defendant had a duty to exercise reasonable care to maintain the dock in reasonably safe condition and to warn invitees of any unreasonable conditions; that defendant knew or should have known that its dock was wet and slippery and involved an unreasonable risk of harm to persons using it; that defendant failed to inspect the dock and remedy hazards, failed to warn of hazards and failed to exercise due diligence; and that plaintiff Patrick Schiller injured his right knee in the fall.
Defendant moved for summary disposition, contending that a state-owned park qualified for governmental immunity and that the recreational use act protected the park from claims of ordinary negligence. A hearing on defendant's motion was held July 24, 1985. Judge Kallman granted summary disposition.
We are asked to decide whether plaintiffs' purchase of a state park vehicle permit constitutes payment of a valuable consideration so as to remove plaintiffs from any application of the recreational use act, and whether the act applies to a state park.
The recreational use act provides protection for landowners from gratuitous users of their property. The act provides:
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 said premises unless the injuries were caused by the gross negligence or wilful *475 and wanton misconduct of the owner, tenant, or lessee. [MCL 300.201; MSA 13.1485.]
Plaintiffs contend the act does not bar the instant suit because they paid for a park permit upon entering the park. Authorization for the setting and collecting of fees for entry into a state park is prescribed by statute, MCL 318.310; MSA 13.1053(10):
(2) An annual park permit shall be issued and shall authorize the entry of the motor vehicle to which it is originally attached within the confines of any state park or recreation area during the calendar year in which issued. The fee for the annual park permit shall be $10.00....
(3) A daily park permit, valid for 1 day only, shall be issued for a fee to be fixed by the commission, but in an amount not to exceed $2.00 for resident motor vehicles and $3.00 for nonresident motor vehicles. [Emphasis added.]
The statute further provides that the permit allows a motor vehicle into the park, but other fees may be assessed for other services or privileges:
(5) This act shall apply only to the entry of motor vehicles into the state parks and to the park permits authorized in this act and shall not obviate the necessity of obtaining additional permits for special services or park privileges as previously or subsequently may be required by law or by rules promulgated by the commission.
The $2.00 fee applies only to motor vehicles; no fee is authorized for recreational users who walk, bicycle, or ride on horseback into the park. The park permit is a fee for the use of the roads and parking lots of the park and not valuable consideration for use of the park.
*476 Plaintiffs also contend that the statute does not apply to recreational facilities which invite the general public to come onto the land. A panel of this Court has held the act applicable to state-owned land, McNeal v Dep't of Natural Resources, 140 Mich. App. 625; 364 NW2d 768 (1985). Further support for application of the act to state-owned parks comes from Matthews v Detroit, 141 Mich. App. 712, 717; 367 NW2d 440 (1985), lv den 422 Mich. 978 (1985). In Matthews, a six-year-old child drowned in the water surrounding the fountain on Belle Isle. Plaintiffs sought to avoid the act by claiming it did not apply to invitees. Matthews held that the recreational use act applied to a public invitee who uses a public recreational area, Id., p 717.
Lastly, defendant correctly argues that the plaintiffs have not alleged facts establishing gross negligence or wilful and wanton misconduct sufficient to avoid immunity. Plaintiffs do not argue on appeal that they have pled gross negligence or wilful and wanton misconduct. Thus, this is not an issue before this Court.
We hold the recreational use act bars the instant suit. Accordingly, we need not consider the question of governmental immunity.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
