RITCHIE-GAMESTER v CITY OF BERKLEY
Docket No. 109633. Argued March 9, 1999 (Calendar No. 3). Decided July 30,
1999.
Oakland Circuit Court, Robert L. Templin, J.
Court of Appeals, D. E. Holbrook, Jr., P.J., and Fitzgerald and Smolenski,
JJ. (Docket No. 194024).
FILED JULY 30, 1999
JILL RITCHIE-GAMESTER,
Plaintiff-Appellee,
v No. 109633
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.
BEFORE THE ENTIRE BENCH
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 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 NW2d 201 (1998); Chandler v Dowell
Schlumberger, Inc, 456 Mich 395, 397; 572 NW2d 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 NW 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.]
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 NW2d 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. The defendant argued that, by
engaging in the activity of hunting, the plaintiff had
assumed the risk of being shot 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.
Importantly, before Felgner, the assumption of risk doctrine
was available to defendants in ordinary negligence actions.
Waltanen v Wiitala, 361 Mich 504; 105 NW2d 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 NW2d 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.]
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 NW2d 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 425.4
Another Court of Appeals case, decided only weeks
before Higgins, took a different tack. In Schmidt v Youngs,
215 Mich App 222; 544 NW2d 743 (1996), the plaintiff was
injured when he was struck by a golf ball. Contrary to the
custom of staying 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 225.]
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.
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 P2d 1039 (1994); Lestina v West
Bend Mut Ins Co, 176 Wis 2d 901; 501 NW2d 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 A2d
332 (1997) (adopting a “reckless or intentional conduct”
standard in a case involving a coed recreational soccer
game); Hoke v Cullinan, 914 SW2d 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 NJ 494; 643
A2d 600, 601 (1994) (adopting a “reckless or intentional”
standard in a case involving a pickup softball game);
Hathaway v Tascosa Country Club, Inc, 846 SW2d 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
P2d 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
NE2d 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 NE2d 94 (1989)
(adopting a “reckless disregard of safety” standard in a
case involving a college hockey game); Turcotte v Fell, 68
NY2d 432; 510 NYS2d 49; 502 NE2d 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 SW2d 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
100. 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 NY2d 437-
439 (citations omitted).]
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 SW2d 14.
One might well conclude that something is
terribly wrong with a society in which the most
commonly-accepted aspects of play—a 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 NJ 508.]
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 409-
410.]
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 NW2d 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’
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 NY
479, 482-483; 166 NE 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
Scontact” 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 SW2d 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
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 ice—that it is both hard and slippery—builds
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 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 Slip op at 12-13. 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, 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 two-minute 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., concurred
with Young, J.
S T A T E O F M I C H I G A N
SUPREME COURT
JILL RITCHIE-GAMESTER,
Plaintiff-Appellee,
v No. 109633
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.
____________________________
BRICKLEY, J. (concurring).
As the majority notes, many state courts have addressed
the question of the appropriate standard of care in sports
injury cases. Slip op at 10-11. 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 ALR5th 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 P2d 1039 (1994); Lestina v West Bend Mut Ins
Co, 176 Wis 901; 501 NW2d 28 (1993); Estes v Tripson, 188
Ariz 93; 932 P2d 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 NW2d 136 (1965); Williams
v Wood, 260 Mich 322; 244 NW 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
NW2d 743 (1996); Carey v Toles, 7 Mich App 195; 151 NW2d 396
(1967), and that recklessness is the proper standard of
care, Higgins v Pfeiffer, 215 Mich App 423; 546 NW2d 645
(1996); Overall v Kadella, 138 Mich App 351; 361 NW2d 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. Slip op at 19. 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. [Slip op at 15-16.]
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. [Slip op at 19.]
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
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.” Slip op at 19; see id. at 13-14,
quoting Ross v Clouser, 637 SW2d 11, 14 (Mo, 1982); Crawn v
Campo, 136 NJ 494; 643 A2d 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 NE2d 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 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
NW2d 149 (1974); see Parker v Port Huron Hosp, 361 Mich 1,
11; 105 NW2d 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 negligence
. . . . The traditional concepts of contributory negligence
are more than ample to present that affirmative defense to
established negligent acts.” Id. at 56. 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 NW2d 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. Slip op at 5-6. 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 7,
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.” Slip op at 16. The majority’s
statement is simply a paraphrasing of the maxim: “[T]o a
willing person a wrong is not done.” Slip op at 6, 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’ sufficient
to discharge the other participants’ duty of care,”11 or the
“‘implied contract’ between all the participants.” Slip op
at 15-16; see id. at 12-13, quoting Turcotte v Fell, 68 NY2d
432, 437-439; 510 NYS2d 49; 502 NE2d 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 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. slip op at
15-16. 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 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.
Cavanagh and Kelly, JJ., concurred with Brickley, J.
Ritchie-Gamester v City of Berkley
Schreier & Weiss, P.C. (by Sherwin Schreier, Mark
Schreier, and Alyce M. Haas) [28000 Woodward Ave., Suite
201, Royal Oak, MI 48067] [(248) 548-4000], for plaintiff-
appellee.
Becker, Lanctot, McCutcheon, Schoolmaster, Taylor & Hom
(by Sarah N. Wildgen) [2000 N. Woodward Ave., Suite 200,
Bloomfield Hills, MI 48304] [(248) 258-2200]; Gross, Nemeth
& Silverman, P.L.C., of counsel (by Mary T. Nemeth) [535
Griswold St., Ste. 1850, Detroit, MI 48226] [(313) 963-
8200], for defendants-appellants.
Amicus Curiae:
Fraser, Trebilcock, Davis & Foster, P.C. (by Mark A.
Bush) [1000 Michigan National Tower, Lansing, MI 48933]
[(517) 482-5800], for Michigan Defense Trial Counsel, Inc.
_______________________________
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1Kammer Asphalt Paving Co v East China Twp Schools, 443
Mich 176, 179; 504 NW2d 635 (1993).
2We will use the term “defendant” to refer to defendant
Halley Mann.
3Translated 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 NW 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.
4Defendant 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.
5See also Estes v Tripson, 188 Ariz 93; 932 P2d 1364
(Ariz App, 1997) (applying a “reasonable care” standard on
the ground that the Arizona Constitution prohibited adoption
of a higher standard).
6A 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 NE2d 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 NW2d 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 NM
461, 463; 672 P2d 290 (NM 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 412, and Knight, supra, 3 Cal 4th
320, n 7 (both adopting a “reckless or intentional”
standard, but recognizing that some activities, such as
golf, might warrant a different standard).
7See the Roller Skating Safety Act, MCL 445.1721 et
seq.; MSA 18.485(1) et seq., and the Ski Area Safety Act,
MCL 408.321 et seq.; MSA 18.483 (1) et seq.
8See Felgner, supra at 36 (“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”).
9We 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.
10Indeed, 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 319-321.
11Interestingly, 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. Slip op at 3-4. 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, slip op at 12,
while we believe that the consent is somewhat broader.
12What, 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?
13The 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.” Slip op at
8, 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. slip op at 19.
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.’” Slip op at 14, quoting Jaworski v Kiernan, 241
Conn 399, 409-410; 696 A2d 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
NW2d 1 (1960), quoting President & Directors of
Georgetown College v Hughes, 76 US App DC 123,
136; 130 F2d 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. MCL 408.342; MSA 18.483(22)(Ski Area Safety Act);
MCL 445.1725; MSA 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. 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, quoting President &
Directors of Georgetown College v Hughes, n 4 supra, p 137.
We also overturned the rule that members of a family
may not sue one another in tort. Plumley v Klein, 388 Mich
1; 199 NW2d 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, quoting
Elias v Collins, 237 Mich 175, 177; 211 NW 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. MCL
600.2958, 600.2959; MSA 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 NY 479, 482-483; 166 NE 173 (1929). Slip
op at 16-17. 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,
which, as already noted, the majority sees as probably not
“retain[ing] any meaning” after Felgner. Slip op 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 slip op at 6. 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,
slip op at 16, 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, citing
Ilott v Wilkes, 3 B & Ald 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.
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.
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. slip op at
19.
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.
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