Jessicca Sherry, a minor, by her next friend, Renee Sherry,
Plaintiff sustained injuries while performing a stunt, called a full extension cradle,
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), contending that there was no evidence that defendants were grossly negligent or engaged in reckless misconduct, so that they could not be held liable for plaintiffs injuries. The trial court, quoting Gibbard v Cursan,
I. APPLICABLE STANDARD OF CARE
Plaintiff first argues that the trial court erred by applying the reckless-misconduct standard of care adopted in Ritchie-Gamester. According to plaintiff, ordinary negligence principles apply, and genuine issues of material fact remain regarding whether defendants acted negligently in the supervision of plaintiff. We agree.
We review de novo decisions on motions for summary disposition. Latham v Barton Malow Co,
In Ritchie-Gamester, the Michigan Supreme Court set out to decide “the proper standard of care among coparticipants for unintentional conduct in recreational activities.”
[W]e 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.. .. [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 stillproviding protection from egregious conduct. Finally, this standard lends itself to commonsense application by both judges and juries. [Id. at 89.]
Unlike the claim in Ritchie-Gamester, plaintiffs claim in this case is not against a coparticipant. Therefore, the reckless-misconduct standard adopted in Ritchie-Gamester is inapplicable. The Court in RitchieGamester was careful, in fact, to note the limited reach of its holding. In addition, the justifications that the Supreme Court cited for adopting the reckless-misconduct standard do not support extending the standard to coaches and organizations. Coaches and organizations can expect to be sued for their carelessness, and holding coaches and organizations to an ordinary negligence standard of care does not discourage vigorous participation in recreational activities. Had plaintiff brought her claim against other cheerleaders, who may properly be considered coparticipants in the recreational activity of cheerleading, then, perhaps, the reckless-misconduct standard announced in Ritchie-Gamester would apply. Nothing in RitchieGamester, however, precludes ordinary-negligence claims against coaches and organizations involved in recreational sports.
The case of Behar v Fox,
Further, in several cases involving recreational activities, this Court has held nonparticipating parties to an ordinary-negligence standard in the absence of an applicable immunity statute. See Woodman v Kera, LLC,
A prima facie case of negligence requires the establishment of four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v Dow Chem Co,
Here, there remain genuine issues of material fact regarding whether defendants exercised ordinary care under the circumstances. Viewing the evidence in the light most favorable to plaintiff, it cannot be said as a matter of law that defendants provided proper supervision of the stunting station or that plaintiffs injuries were unforeseeable. Although a coach was supposed to be positioned at the stunting station, no coach was present when plaintiff suffered her injury. Without proper supervision, the girls in plaintiffs group who were in high school became inattentive and engaged in horseplay. Although a coach was notified, she simply threatened the high school girls with running laps if they dropped plaintiff. Despite this threat, the high school girls continued horsing around and were not counting properly to ensure their synchronization. The girls then attempted to execute an advanced cheerleading stunt with plaintiff, who had never before performed the maneuver. On the whole, we find that reasonable minds could differ regarding whether an individual exercising ordinary care would foresee that a young girl without proper supervision or training would become injured in an attempt to execute an advanced cheerleading stunt with a group of high school girls on a grass football field.
Defendants argue that, applying any standard of care, plaintiff cannot establish the requisite element of causation. We disagree. Reasonable minds could differ regarding whether it is foreseeable that unsupervised, high school girls assisting in the execution of difficult cheerleading stunts will become inattentive to the point of creating a risk of harm. Exercising due care, perhaps defendants would have maintained supervision at the stunting station, removed the girls who were incapable of focusing, or introduced only those stunts that were appropriate given the cheerleaders’ ages and skill levels. Thus, we are unable to conclude as a matter of law that defendants did not cause plaintiffs damages. At the very least, questions of fact remain, and summary disposition in defendants’ favor was improper.
II. FAILURE TO CONSIDER THE AFFIDAVIT OF PLAINTIFF’S EXPERT
Plaintiff next challenges the trial court’s refusal to consider the affidavit of plaintiffs expert witness. “[T]he decision whether to admit or exclude evidence is reviewed for an abuse of discretion.” Elezovic v Ford Motor Co,
To be valid, an affidavit must be (1) a written or printed declaration or statement
Plaintiff also argues that, although notarization was lacking, plaintiffs expert signed the affidavit and swore to its validity. That the affidavit comported with some elements required for validity, however, is not a basis to ignore that the affidavit failed to comport with all elements required for validity.
Finally, plaintiff argues that the trial court should have admitted the affidavit because she was prejudiced by its exclusion. To support this argument, plaintiff cites the harmless-error rule — where a trial court considers a defective affidavit on a motion for summary disposition, a challenging party must show prejudice resulting from the defect, or any error is harmless. Hubka v Pennfield Twp,
III. FAILURE TO RULE ON PLAINTIFF’S MOTION IN LIMINE
Plaintiff next argues that the trial court erred by refusing to hear her motion in limine to preclude any undisclosed witnesses and evidence from use or admission at trial. We agree.
We review a trial court’s evidentiary decisions for an abuse of discretion. People v Martzke,
The trial court never heard plaintiffs motion in limine, scheduled for the same day as defendants’ motion for summary disposition. Likely the trial court found it unnecessary to rule on the motion in limine considering that it decided to grant defendants’ motion for summary disposition — there would be no trial. After the trial court granted defendants’ motion for summary disposition, plaintiff filed a motion for reconsideration, in part, requesting an inference that defendants’ witnesses would be adverse, since defendants had failed to produce the names of any coach or other personnel who witnessed plaintiff’s fall. In denying plaintiffs motion for reconsideration, the trial court indicated that plaintiff waived her right to assert any ongoing discovery issues.
Defendants argue that the trial court did not abuse its discretion by refusing to hear plaintiffs motion in limine because, given that the trial court granted defendants’ motion for summary disposition, there would be no trial. Because we find that the trial court erred by granting defendant’s motion for summary disposition, however, defendants’ argument lacks merit.
There now being no valid ground for refusing to rule on the motion in limine, the trial court is instructed to consider the same. Accordingly, we remand the case for consideration of plaintiffs motion.
IV JUDGMENT UNDER MCR 2.116(I)(2)
In her last argument on appeal, plaintiff argues that the trial court erred by refusing to enter judgment as a matter of law in her favor as an opposing party under MCR 2.116(I)(2). We review de novo a trial court’s decision to grant or deny summary disposition. Rossow v Brentwood Farms Dev, Inc,
Plaintiff asserts the following undisputed facts, which she contends entitled her to judgment as a matter of law under MCR 2.116(I)(2): (1) no coach was present at the stunting station; (2) the girls stunting with plaintiff were reprimanded by a coach for engaging in horseplay; (3) despite being on notice of the risks, the coach walked away; (4) the MYFC supervisors were not supervising plaintiff at the time of the incident; and (5) defendants did not make it known that stunting would be incorporated into Spirit Day’s curriculum. Plaintiff further argues that an expert opined that defendants were negligent and even grossly negligent. According to plaintiff, an adult could have prevented plaintiffs injuries. Therefore, she argues, the trial court erred by granting summary disposition in favor of defendants, and should have granted judgment as a matter of law in favor of plaintiff under MCR 2.116(1)(2). We disagree.
Even assuming that the facts set forth above are undisputed, genuine issues of material fact remain regarding whether defendants failed to exercise the appropriate level of care to ensure plaintiffs safety. Given that ordinary negligence rather than reckless misconduct is the appropriate test in this case, certainly plaintiff has set forth sufficient evidence to survive defendants’ motion for summary disposition. It remains the case, however, that plaintiff must prove (1) duty, (2) breach, (3) causation, and (4) damages before judgment
Reversed and remanded for further proceedings. We do not retain jurisdiction.
Notes
We refer to Jessicca as plaintiff.
The trial court had entered a consent order dismissing all claims against defendant Carol Bommarito on November 10, 2009. Accordingly, Bommarito is not a party in the instant appeal notwithstanding the fact that defendants’ appellate counsel’s appearance includes Bommarito. The order also dismissed count III of plaintiffs complaint alleging violation of the Michigan Consumer Protection Act, MCL 445.901 et seq.
In a half extension, two bases each hold one of the flier’s feet at their chest level and a third base stands in back as a spotter. In a full extension, the bases extend their arms straight, lifting the flier above their head level. To finish the extension, the bases catch the flier in a cradle.