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Fastabend v. Karberg

United States District Court, W.D. Michigan, Southern Division

February 8, 2017

JAMES FASTABEND, as next friend of C.F., Plaintiff,


          JANET T. NEFF United States District Judge.

         Plaintiff filed this diversity action seeking recovery for personal injuries sustained by his minor child, C.F., while she was tubing on a lake at the home of Defendants Merle and Barbara Karberg, husband and wife. Pending before the Court is Defendants' Motion to Dismiss and/or for Declaration Regarding Applicable Standard of Care (Dkt 24). Plaintiff has filed a Response (Dkt 25) in opposition, and Defendants have filed a Reply (Dkt 26). Having fully considered the parties' submissions, the Court concludes that oral argument would not assist in the disposition of the issues presented. See W.D. Mich. LCivR 7.2(d).

         I. Facts

         Plaintiff summarizes the facts as follows.[1] On August 8, 2014, C.F., a 16-year-old girl from Schererville, Indiana, was a guest at Defendants' cottage on Dewey Lake in Dowagiac, Michigan.C.F. was taken there by Defendants' son and daughter-in-law without her parents' knowledge. Accompanying C.F. were several other minors. Defendants owned a speedboat, which they were using to tow the kids on inflatable tubes on the lake. At the time of the incident, Merle Karberg was using his boat to pull two inflatable devices, each with two riders, around the lake. One of the riders was C.F.

         As outlined in Plaintiffs complaint, Merle Karberg began making sharp turns, flinging the riders outside the wake at high speeds. Near the end of the ride, Karberg again turned the boat and applied the throttle in such a way as to fling the tubes at high speed, this time into a large wave generated by the boat. Upon striking the wave with her tube, C.F. was ejected with enough force to crush part of her spine. She sustained severe injuries requiring surgery to fuse her vertebrae together, and subsequent physical therapy and rehabilitation.

         II. Legal Standards

         Defendants move to dismiss Plaintiffs Complaint under Federal Rule of Civil Procedure Rule 12(b)(6) or for a declaration as a matter of law, pursuant to Rule 57, 22 U.S.C. § 2201, or as otherwise appropriate, that this action is governed by the "reckless misconduct" standard of care.

         A. Rule 12(b)(6)

         Rule 12(b)(6) authorizes the court to dismiss a complaint if it "fail[s] to state a claim upon which relief can be granted." In deciding a motion to dismiss for failure to state a claim, the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations in the complaint as true. Thompson v. Bank of Am., N.A., 113 F.3d 741, 750 (6th Cir. 2014). However, a court "need not... accept as true legal conclusions or unwarranted factual inferences." Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir. 2006). The complaint must present "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Newberry v. Silverman, 789 F.3d 636, 640 (6th Cir. 2015).[2]

         "The complaint should give the defendant fair notice of what the plaintiff s claim is and the grounds upon which it rests." German Free State of Bavaria v. Toyobo Co, Ltd., 480 F.Supp.2d 958, 963 (W.D. Mich. 2007); see also Twombly, 550 U.S. at 555 (citing FED. R. Civ. P. 8(a)(2)). Accordingly, the "'complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Bavaria, 480 F.Supp.2d at 963 (quoting Lillard v. Shelby Cty. Bd. of Educ, 76 F.3d 716, 726 (6th Cir. 1996) (citation and quotations omitted)). Further, "a plaintiff s obligation to provide the 'grounds' of his ' entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do ...." Twombly, 550 U.S. at 555 (citation omitted).

         B. Declaratory Judgment

         Under Rule 57, the Federal Rules of Civil Procedure "govern the procedure for obtaining a declaratory judgmentunder28 U.S.C. §2201." FED.R.C1V.P. 57. The Declaratory Judgment Act provides that "[i]n a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28U.S.C.§2201.

         III. Analysis

         The dispositive issue before the Court is the standard of care applicable to Plaintiffs claim. Plaintiff asserts liability against the Karbergs based on a negligence standard of care, alleging that Defendant Merle Karberg at all times owed Plaintiff a duty of "ordinary care" with respect to operating a watercraft pulling individuals on inflatable devices (see Dkt 1, Compl. ¶ 17).[3]

         Plaintiff asserts that Michigan's statutory scheme imposes a negligence standard on the operation of personal watercraft (PI. Resp., Dkt 25 atPagelD. 117-118). Specifically, Mich. Comp. LAWS § 324.80157 provides that "[t]he owner of a vessel is liable for any injury occasioned by the negligent operation of the vessel, whether the negligence consists of a violation of the statutes of this state, or in the failure to observe such ordinary care in the operation as the rules of the common law require." Further, a narrower, but potentially even more relevant statute, MICH. COMP. LAWS § 324.80158, makes the owner of a vessel liable for "damage to life or property resulting from a wake or swell created by the negligent operation or propulsion of the vessel." Finally, Mich. Comp. LAWS § 324.80145 requires operators of a vessel to "operate it in a careful and prudent manner and at such a rate of speed so as not to endanger unreasonably the life or property of any person." Plaintiff argues that the negligence standard thus applies in this case involving a recreational watercraft, as reflected by the holdings in court decisions involving watercraft and motor vehicles. See, e.g., Estate of White v. Beauchamp, 82 N.W.2d 472 (Mich. 1957) (holding that a negligence standard applied to the operation of a motorboat where the plaintiffs decedent drowned after being thrown from a motorboat when it capsized).

         Defendants move for dismissal and/or a declaration that, to the contrary, the reckless misconduct standard of care applies under the circumstances presented-as the minimum standard of care for coparticipants in recreational activities pursuant to Michigan common law-under the holding of Ritchie-Gamester v. City of Berkley, 597 N.W.2d517, 525 (Mich. 1999). Defendants cite the Michigan Supreme Court's explanation in adopting this standard:

[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. 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.


         Defendants argue that Plaintiff attempts to bypass the clear application of the holding in Ritchie-Gamester, and abrogate this common law standard by relying on the Natural Resources and Environmental Protection Act (NREPA), MICH. COMP. LAWS § 324.101 et seq., which does not statutorily override the common law standard of care articulated by Ritchie-Gamester. Further, Plaintiffs reliance on other statutes relating ...

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