Opinion
No. 354534
12-28-2021
ESTATE OF Riley ROBINSON, BY Rebecca MILNE, Personal Representative, Plaintiff-Appellant, v. Larry ROBINSON, Sr., and Ann Robinson, Defendants-Appellees.
Giroux Trial Attorneys, PC, Southfield (by Matthew D. Klakulak ) for Rebecca Milne, Personal Representative of the Estate of Riley Robinson. Garon Lucow Miller, PC, Detroit (by Daniel S. Saylor) and Ogne Alberts & Stuart, PC, Troy (by Jeffrey Bullard and Jared J. Andrzejewski) for Larry Robinson, Sr.
Giroux Trial Attorneys, PC, Southfield (by Matthew D. Klakulak ) for Rebecca Milne, Personal Representative of the Estate of Riley Robinson.
Garon Lucow Miller, PC, Detroit (by Daniel S. Saylor) and Ogne Alberts & Stuart, PC, Troy (by Jeffrey Bullard and Jared J. Andrzejewski) for Larry Robinson, Sr.
Before: Murray, C.J., and Markey and Riordan, JJ.
Murray, C.J. Plaintiff, as personal representative of the estate of Riley Robinson, appeals as of right the trial court's order granting defendant Larry Robinson, Sr., summary disposition under MCR 2.116(C)(10). Plaintiff argues that the trial court erred when it determined that the recreational land use act (RUA), MCL 324.73301, applied to this case over the owner's liability provision, MCL 257.401(1), of the Michigan Vehicle Code (MVC), MCL 257.1 et seq . Plaintiff also challenges the trial court's denial of her motion for leave to amend her complaint on the basis that adding an owner's liability claim under the MVC was futile. For the reasons expressed below, we affirm.
While plaintiff indicated in her brief that she is also challenging the trial court's order granting summary disposition under MCR 2.116(C)(10) in favor of defendant Ann Robinson, plaintiff does not argue that the trial court erred by granting her motion. As plaintiff has failed to adequately brief this argument, it is abandoned. See Ypsilanti Charter Twp. v. Kircher , 281 Mich.App. 251, 287, 761 N.W.2d 761 (2008) ("Defendant's failure to properly address the merits of his assertion of error constitutes an abandonment of this issue on appeal."). Therefore, we will address plaintiff's arguments on appeal solely as to defendant Larry Robinson, Sr. Moreover, because plaintiff moved to add owner's liability claims under MCL 257.401(1) against Larry Robinson, Sr., only, all references to "defendant" in this opinion are to Larry Robinson, Sr., only.
I. BACKGROUND AND PROCEDURAL HISTORY
This action arises as a consequence of an ORV accident occurring on defendant's property, involving his grandchildren, Payton Robinson and Riley Robinson, which resulted in Riley's death. Rebecca Milne took her children, Payton, Riley, and Tyler Robinson, to visit defendant at his cabin in northern Michigan. The northern Michigan land consists of a cabin, pole barn, several wooded acres, and three trails often used for riding ORVs. On the day of the accident, 14-year-old Payton operated defendant's ATV on the trail while 12-year-old Riley sat as her passenger. After some time, Tyler borrowed his mother's keys to go looking for the girls. Tyler traveled down the trail where he discovered the ATV flipped over with Payton stuck underneath the center portion and Riley lying down in front of it. Payton and Riley were immediately transported to the hospital with life-threatening injuries, with Riley passing away soon after. Payton could not recall the details of the accident.
An "ORV" is a "motor-driven off-road recreation vehicle capable of cross-country travel without benefit of a road or trail, on or immediately over land, snow, ice, marsh, swampland, or other natural terrain. ... An ATV is an ORV." MCL 324.81101(u).
Before the accident, Payton and Riley frequently took ATV rides on their grandfather's property. Payton testified that she had been on an ATV more than 30 times before the accident and had received informal training on operating an ATV from her father, Larry Robinson, Jr. However, the ATV used on the day of the accident was bigger and more powerful than the ATVs Payton previously rode.
Plaintiff filed the instant action, alleging that defendant was liable for Riley's injuries because defendant was negligent. Defendant moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing that the claim was barred under the RUA because Riley was using defendant's land to participate in the outdoor recreational activity of riding an ORV. Defendant also argued that he was entitled to summary disposition because plaintiff failed to plead gross negligence or willful and wanton misconduct, a consideration required for liability to attach under the RUA. MCL 324.73301(1). In response, plaintiff argued that the owner's liability provision of the MVC should instead be imposed on defendant for negligent operation of the ORV notwithstanding the protections afforded landowners under the RUA. However, because plaintiff had failed to specifically state a claim under the MVC in her complaint, she sought leave to amend her complaint under MCR 2.118 to cure the deficiency. Plaintiff argued in the alternative that, to the extent the RUA was applicable, there were questions of material fact as to whether defendant's conduct amounted to gross negligence.
The trial court granted summary disposition to defendant under MCR 2.116(C)(10), concluding that the RUA applies to the underlying activities and that plaintiff's ordinary negligence claims under the MVC were "trumped" by the RUA. The court denied plaintiff's motion to amend her complaint to include the MVC claim since the amendment would have been futile or moot. The court also concluded that the record did not support a finding of gross negligence or willful and wanton misconduct sufficient to establish a question of material fact regarding the level of defendant's negligence.
Plaintiff now raises only two issues on appeal. First, plaintiff argues that the RUA does not apply to her claim because the owner's liability provision of the MVC, MCL 257.401(1), is the more applicable statute. Second, plaintiff argues that she should have been permitted to amend her complaint to add a claim under the owner's liability provision of the MVC.
II. ANALYSIS—RECREATIONAL LAND USE ACT
Plaintiff argues that the trial court erred by granting summary disposition because the RUA does not apply to these circumstances, and thus she can maintain an owner's liability claim against defendant.
A trial court's decision on a motion for summary disposition is reviewed de novo. El-Khalil v. Oakwood Healthcare, Inc. , 504 Mich. 152, 159, 934 N.W.2d 665 (2019). This Court also reviews de novo whether a trial court properly interpreted a statute. Neal v. Wilkes , 470 Mich. 661, 664, 685 N.W.2d 648 (2004). Summary disposition is appropriate under MCR 2.116(C)(10) when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." A motion under MCR 2.116(C)(10) "tests the factual sufficiency of a claim." El-Khalil , 504 Mich. at 160, 934 N.W.2d 665 (emphasis omitted). When the record "leave[s] open an issue upon which reasonable minds might differ," a genuine issue of material fact exists. Johnson v. Vanderkooi , 502 Mich. 751, 761, 918 N.W.2d 785 (2018) (quotation marks and citation omitted; alteration in original). When reviewing a motion under MCR 2.116(C)(10), this Court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. Id.
The RUA applies to ATV accidents on recreational property, and it provides:
Except as otherwise provided in this section, a cause of action does not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. [ MCL 324.73301(1).]
Simply put, "an owner of land is not liable to a person who injures himself on the owner's land if that person has not paid for the use of the land and the person was using the land for a specified purpose, unless the injuries were caused by the owner's gross negligence or willful and wanton misconduct." Neal , 470 Mich. at 667-668, 685 N.W.2d 648. The purpose of the RUA is to "provide immunity for landowners from personal-injury lawsuits by persons using their property recreationally, regardless of age, i.e., even when minors are injured." Woodman v. Kera LLC , 486 Mich. 228, 291, 785 N.W.2d 1 (2010) (opinion by MARKMAN , J.). The RUA is "a liability-limiting," rather than "a liability-imposing, act," meaning that it "did not create a cause of action against landowners" but instead "eliminated liability for negligence," leaving "liability only for gross negligence and wilful and wanton misconduct." Ballard v. Ypsilanti Twp. , 457 Mich. 564, 577-578, 577 N.W.2d 890 (1998).
Plaintiff's complaint alleges that defendant was liable in negligence for the injuries plaintiff sustained while riding the ATV on defendant's property and argues that she has a viable owner's liability claim against defendant notwithstanding the RUA. The owner's liability provision of the MVC, MCL 257.401(1), provides:
[t]he owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law. The owner is not liable unless the motor vehicle is being driven with his or her express or implied consent or knowledge.
The MVC broadly imposes liability for the negligent operation of a motor vehicle if the owner knows or has consented to the operation of that motor vehicle. Id. Under the MVC, an ORV is a motor vehicle for the purposes of MCL 257.401(1), and an ATV is an ORV, MCL 324.81101(u). Similarly, the RUA, MCL 324.73301(1), undoubtedly includes the use of an ORV or ATV within the meaning of "outdoor recreational use or trail use." See Neal , 470 Mich. at 670-671, 685 N.W.2d 648 ("Plaintiff does not contest the fact that riding an ATV on another's land is an outdoor recreational use of another's land within the meaning of the RUA."). Additionally, the statute lists both "motorcycles" and "snowmobiles" as types of vehicles covered by the act, and an ATV is similar in nature to those.
An "ATV" is currently defined as "a vehicle with 3 or more wheels that is designed for off-road use, has low-pressure tires, has a seat designed to be straddled by the rider, and is powered by a 500 cc to 1,000 cc gasoline engine or an engine of comparable size using other fuels." MCL 324.81101(b).
Because both the RUA and the MVC apply to ATVs, we must determine which to apply. Typically, the statute that more specifically applies to the subject matter must control. Livonia Hotel, LLC v. Livonia , 259 Mich.App. 116, 131, 673 N.W.2d 763 (2003) ("When two statutes or provisions conflict, and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails."); see also Miller v. Allstate Ins. Co. , 481 Mich. 601, 613, 751 N.W.2d 463 (2008) ("In order to determine which provision is truly more specific and, hence, controlling, we consider which provision applies to the more narrow realm of circumstances, and which to the more broad realm."). We conclude that the RUA governs as it applies with greater specificity to the circumstances of the case than does the MVC. The RUA applies when a person who is on the land of another, without paying the owner, for the purpose of "motorcycling, snowmobiling, or any other outdoor recreational use or trail use" is injured. See MCL 324.73301(1). Clearly, the RUA is the more-specific statute as it deals directly with the potential liability of landowners when other persons recreationally use their property with ATVs. By contrast, the MVC applies to all motor vehicles in all places and circumstances. The Legislature's intention to have the provisions of the RUA apply to ATV accidents on recreational property is clear from the express language of the statute.
Having determined that the RUA applies, we turn to the question of whether the circumstances surrounding the accident on defendant's property fall directly within the purview of the statute so as to bar plaintiff's claims. Riley did not pay defendant any consideration to use his land for the recreational activity, riding ATVs. As such, plaintiff's action is clearly subject to the RUA. Accordingly, defendant cannot be liable under a theory of negligence as the "liability-limiting" nature of the RUA eliminates a landowner's liability for negligence. Ballard , 457 Mich. at 577-578, 577 N.W.2d 890.
Plaintiff concedes on appeal that defendant was not grossly negligent and that his actions did not constitute wanton and willful misconduct.
Given our conclusion that the MVC does not apply, we also hold that the trial court did not abuse its discretion by denying plaintiff's motion to amend the complaint because plaintiff's proposed amendment to add an owner's liability claim would be futile. Wolfenbarger v. Wright , 336 Mich.App. 1, 21, 969 N.W.2d 518 (2021).
Affirmed.
Markey and Riordan, JJ., concurred with Murray, C.J.