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Bertin v. Mann

Court of Appeals of Michigan

December 27, 2016

KENNETH BERTIN, Plaintiff-Appellant,
DOUGLAS MANN, Defendant-Appellee.

         Oakland Circuit Court LC No. 2014-139901-NO

          Before: Gadola, P.J., and Fort Hood and Riordan, JJ.

          RIORDAN, J.

         Plaintiff appeals as of right the trial court's entry of a judgment of no cause of action in favor of defendant following the jury's verdict that defendant did not engage in reckless misconduct while operating a motorized golf cart at the Farmington Hills Golf Club. The only issue in this appeal is whether the trial court correctly ruled before trial that the applicable standard of care for the operation of a golf cart is reckless misconduct and not ordinary negligence. For the reasons stated below, we vacate the jury's verdict, reverse the trial court's order finding that reckless misconduct is the applicable standard in this case, and remand for further proceedings consistent with this opinion.


         This case arises from an accident involving a golf cart driven by defendant, which occurred while plaintiff and defendant were golfing together on May 22, 2013. Except for the parties' differing accounts of how defendant struck plaintiff, the underlying facts of this case are not in dispute.

         According to plaintiff, while the parties were at the 17th hole, defendant hit his golf ball onto the green, and plaintiff's landed to the right of the green. Plaintiff then drove the cart toward his ball and parked it in nearby rough off the green. He exited the cart, while defendant remained in the passenger seat, and grabbed his putter and wedge, intending to use the latter to chip the ball onto the green. However, after laying his putter on the ground, plaintiff struck his ball too hard, it traveled further than plaintiff intended, and it stopped on the other side of the green. Plaintiff then picked up the putter from where he had set it on the ground and began to walk toward his ball. Plaintiff did not believe that he stepped in front of the cart while walking, as he was moving in the opposite direction of the cart. After he had gone about 10 to 15 feet, defendant drove the cart and struck plaintiff in the buttocks. Plaintiff was pushed forward and knocked to the ground due to the impact. After impact, plaintiff rolled to the right, and the cart struck him a second time, running over his leg.

         Defendant's recollection was similar to plaintiff's except with regard to the cart. Defendant testified that after he took a shot to get his ball on the green, he returned to the cart, intending to drive it to the other side of the green so that it would be ready for them to drive to the tee box for next hole. Defendant thought plaintiff was to the right and slightly behind the cart, not in front of it. Defendant based his conclusion on the direction that he had seen plaintiff walk from the cart, not from actually seeing plaintiff's location. Defendant started the cart and began to turn left toward a cart path. However, "the minute [defendant] hit the accelerator[, ] [plaintiff] was in front of [the cart]." Defendant testified that, prior to driving into plaintiff, he had looked to see if there was anyone in front of the cart and he saw no one. Thus, defendant claims the first time that he noticed plaintiff was when the impact occurred. According to defendant, the cart struck plaintiff in the lower legs and knocked him over. He did not recall the cart then rolling over plaintiff's leg.

         In April 2014, plaintiff filed a complaint primarily alleging that defendant acted "with active negligence" and "without due care and caution" when he struck plaintiff. In particular, plaintiff alleged, among other things, that defendant breached his duty to safely, dependably, and reliably operate the golf cart in order to ensure plaintiff's safety and, as a result, caused plaintiff to sustain serious injuries and incur significant damages.

         In his answer, defendant largely denied plaintiff's allegations and expressly denied plaintiff's allegations of negligence and carelessness. However, defendant also raised two affirmative defenses: the event was an unforeseeable accident, and plaintiff's own negligence or comparative negligence was the sole cause or a contributing cause to the injuries and damages claimed by plaintiff.

         Before trial, plaintiff filed a motion in limine through which he requested that the trial court hold that defendant was negligent as a matter of law based on his deposition testimony so that the case would proceed to trial only on the issue of damages. In response, defendant argued that plaintiff's filing of a motion in limine was improper, as it was, in effect, an untimely motion for summary disposition on the issue of negligence that cited a lower-and incorrect-standard of review. As such, he argued that the trial court should deny plaintiff's motion and allow the issue of negligence to proceed to trial because the events that transpired on the golf course were factually disputed, essentially consisting of plaintiff's word against defendant's word. In addition, defendant asserted that, under Ritchie-Gamester v City of Berkley, 461 Mich. 73; 597 N.W.2d 517 (1999), "reckless misconduct" was the standard of care applicable in this case because the parties were coparticipants in a recreational activity when the incident occurred. Defendant further argued that plaintiff was not entitled to a dispositive ruling on the issue of negligence since plaintiff misstated the proper standard of care that defendant owed to plaintiff, and plaintiff could not establish that defendant was, in fact, reckless. The trial court denied plaintiff's motion without prejudice, explaining at the motion hearing that it believed that this issue involved factual questions for the jury to decide. It did not explicitly decide the applicable standard of care.

         Later, the parties further disputed the standard of care when they filed their proposed jury instructions, prompting defendant to file a motion to settle the instructions.[1] The trial court ultimately agreed with defendant that a reckless misconduct standard applies in this case because "it is involved with the game of golf." Accordingly, the court entered an order granting defendant's motion to settle the jury instructions and accepting defendant's proposed instructions based on the reckless misconduct standard. It later denied plaintiff's motion for reconsideration.

         At trial, the parties provided testimony regarding their respective observations and opinions of defendant's conduct in this case, and plaintiff ultimately agreed that defendant was, at most, being "careless and not paying attention" when the collision occurred. The trial court denied each party's motion for a directed verdict at the close of the proofs. Ultimately, the jury concluded that defendant had not acted with reckless misconduct, and the trial court entered a judgment of no cause of action against plaintiff.

         Plaintiff appeals as of right from the trial court's judgment, arguing that the trial court applied an incorrect standard of care.


         The standard of care that a defendant owes to a plaintiff is a question of law that we review de novo. Sherry v East Suburban Football League, 292 Mich.App. 23, 27; 807 N.W.2d 859 (2011); In re Petition of Attorney General for Investigative Subpoenas, 274 Mich.App. 696, 698; 736 N.W.2d 594.

         III. ANALYSIS

         This case presents an issue of first impression in Michigan. As discussed further below, the parties were, without dispute, coparticipants in a recreational activity. Under the broad language in Ritchie-Gamester, 461 Mich. at 75, "coparticipants in recreational activities owe each other a duty not to act recklessly." However, as plaintiff emphasizes, Ritchie-Gamester does not establish that any coparticipant conduct that causes injury during a recreational activity must meet the reckless misconduct standard. See id. at 89 n 9. Likewise, even though numerous golf-related cases in Michigan and other jurisdictions have applied the reckless misconduct standard to a participant who was injured by a golf ball or a club, we have not found a single Michigan case, or a case in any other jurisdiction, where the driver of an injury-causing golf cart during a game of golf was held to any standard other than ordinary negligence.

         Therefore, although the language in Ritchie-Gamester may superficially support a decision in favor of defendant, a thorough reading of that opinion, along with an examination of relevant caselaw, the rules of the game of golf, and secondary sources, compels us to conclude that golf-cart injuries are not a risk inherent in the game of golf, and that the trial court erred when it ruled that a reckless misconduct standard, instead of an ordinary negligence standard, applies in this case.


         In Ritchie-Gamester, 461 Mich. at 75, 77, the plaintiff's injuries resulted from an accidental collision with the defendant while the parties were skating during an "open skate" at an ice arena. Id. at 75, 77. The Court reviewed caselaw from Michigan and other jurisdictions, see id. at 77-83, and crafted the guiding principles for liability between coparticipants in recreational activities in Michigan, see id. at 85-86. It explained, "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." Id. at 86. The Court concluded that no matter how the elevated standard is described or justified (for example, as having notice of the inherent risks, as "consent[ing] to the inherent risks, " or assuming the risks, etc.), "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." Id. at 87 (emphasis added). The Court noted that "there are foreseeable, built-in risks of harm" in all recreational activities, including both contact and noncontact sports and team as well as individual activities. Id. at 88.

         In light of these principles, the Court adopted the following standard of care in recreational activities cases:

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 ...

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