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Bertin v. Mann

Supreme Court of Michigan

July 25, 2018

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

          Argued on application for leave to appeal April 25, 2018.

          Chief Justice: Stephen J. Markman, Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Kenneth Bertin brought an action against Douglas Mann in the Oakland Circuit Court, alleging that defendant was negligent in operating a golf cart when defendant hit plaintiff with the cart while the parties were playing a round of golf. The parties offered differing accounts of how the accident occurred. Plaintiff alleged that he had parked the cart and begun walking to his ball when he was suddenly struck by the cart driven by defendant, at which point plaintiff fell to the ground and was hit a second time with the cart. Defendant alleged that when he began accelerating, plaintiff stepped in front of the cart and was hit. Before trial, plaintiff filed a motion in limine arguing that the court should hold defendant negligent as a matter of law. Defendant responded by arguing that the proper standard of care was "reckless misconduct" under Ritchie-Gamester v City of Berkley, 461 Mich. 73 (1999), because the parties were coparticipants in a recreational activity when the accident occurred. The court, Martha D. Anderson, J., denied the motion but did not resolve the applicable standard of care. The issue arose again when the parties filed jury instructions, with plaintiff proposing an instruction on negligence and defendant proposing an instruction on reckless misconduct, and the court concluded that reckless misconduct was the appropriate standard. At trial, the jury found that defendant's action did not constitute reckless misconduct. Plaintiff appealed in the Court of Appeals, and the Court of Appeals, Gadola, P.J., and Fort Hood and Riordan, JJ., reversed, holding that the ordinary-negligence standard should have been applied because the risks posed by the golf cart were not inherent in the game of golf. 318 Mich.App. 425 (2016). The Court of Appeals rejected the argument that inherent risks were merely foreseeable risks, instead holding that "inherent" means something necessary or intrinsic to the activity, without which the activity could not take place. Given the relatively recent advent of the golf cart, the lack of any official rule referring to carts as inherent aspects of golf, and the fact that there was no evidence in the instant case that the golf course where the accident occurred required the use of golf carts, the Court of Appeals concluded that risks associated with carts were not inherent to golf. Accordingly, the Court of Appeals, finding a question of fact regarding defendant's negligence, vacated the jury verdict and remanded the case to the trial court. Defendant sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 869 (2017).

         In a unanimous opinion by Justice Viviano, the Supreme Court, in lieu of granting leave to appeal, held:

         Coparticipants in a recreational activity owe each other a duty not to act recklessly. However, this standard only applies to injuries that arise from risks inherent to the activity. Whether a risk is inherent to a recreational activity depends on whether a reasonable person under the circumstances would have foreseen the particular risk that led to the injury. If a reasonable person could have foreseen the particular risk, then the risk is inherent and the reckless-misconduct standard applies. The risk must be defined by the factual circumstances of the case-it is not enough that the participant could foresee being injured in general; the participant must have been able to foresee that the injury could arise through the mechanism it resulted from. The factual circumstances to be considered include, among other things, the general characteristics of the participants, such as their relationship to each other and to the activity and their experience with the sport. The general rules of the activity can also be considered; however, those rules are not dispositive, and it is also relevant whether the participants engaged in any regular departures from the rules or other practices not accounted for by the rules. Also relevant are any regulations prescribed by the venue at which the activity is taking place. Accordingly, "inherent risks" under Ritchie-Gamester are those that are reasonably foreseeable under the circumstances of the case. In this case, the Court of Appeals erred by meditating upon golf's essence and discerning that golf carts are not within the essence of the sport. This approach is not suited to judicial decision-making, or even legal reasoning, because it represents a sort of philosophical essentialism that posits the existence of abstract essences that courts must discern. Judges have no special insight regarding the nature of golf and, in general, should not be in the business of policing the boundaries of sports. Instead, the proper analysis is whether the risk was reasonably foreseeable. Therefore, the case had to be remanded to the Oakland Circuit Court for that court to determine whether there was a genuine issue of material fact that a participant in the activity in question would, under the circumstances, have reasonably foreseen the risk of this particular injury. If the court finds that there is no genuine issue of material fact that the risk was reasonably foreseeable and the recklessness standard applies, defendant is entitled to the benefit of the jury verdict finding that he was not reckless, and the case shall be dismissed. Conversely, if the trial court finds that there is no genuine issue of material fact that the risk was not reasonably foreseeable and the negligence standard applies, plaintiff is entitled to a new trial. Finally, if the trial court finds a genuine issue of material fact regarding the foreseeability of the risk, the court shall undertake further proceedings not inconsistent with this opinion.

         BEFORE THE ENTIRE BENCH

          OPINION

          VIVIANO, JUDGE

         At issue in this tort case is whether getting hit by a golf cart is an inherent risk of golfing. If so, then defendant, who ran over plaintiff with a cart while golfing, owed a duty only to refrain from reckless misconduct, but cannot be held liable for negligent conduct. If not, then defendant will be held to the negligence standard of conduct. The question boils down to how we determine which risks in a recreational activity are inherent, such that the reckless standard of conduct applies. The Court of Appeals answered this question by meditating upon golf's essence and discerning that golf carts are not within the essence of the sport. We decline to endorse this philosophical mode of analysis. Instead, when determining whether a risk is inherent in a recreational activity for purposes of establishing the relevant standard of conduct, the fact-finder should ask whether the risk was reasonably foreseeable. Because the courts below did not apply this test, we reverse the judgment of the Court of Appeals and remand the case to the trial court for consideration of this issue.

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiff and defendant were enjoying a round of golf together on May 22, 2013, when defendant hit plaintiff with the golf cart they had been using to navigate the course. The parties offer differing accounts of how the accident occurred. Plaintiff testified that he had been doing most of the driving that day. On the eighth hole of their round, defendant's shot landed on the green while plaintiff's golf ball was in the rough nearby. According to plaintiff, he parked the cart 10 to 15 feet behind his ball, with defendant remaining in the passenger seat. Plaintiff hit his shot and began walking directly to his ball when he was suddenly struck by the cart driven by defendant. Falling to the ground, the cart hit him a second time, rolling over his right leg. For his part, defendant testified that although he had not looked to see where plaintiff was when he began driving, he believed plaintiff was behind the cart and to the right. When he began accelerating, plaintiff stepped in front of the cart and was hit, although defendant did not recall running over plaintiff's leg.

         Plaintiff filed the present case in April 2014, alleging that defendant was negligent in operating the golf cart. Prior to trial, plaintiff filed a motion in limine arguing that the court should hold defendant negligent as a matter of law. Defendant responded by arguing, among other things, that negligence was not the appropriate standard of care. Instead, under this Court's decision in Ritchie-Gamester v City of Berkley, [1] the proper standard was "reckless misconduct" because the parties were coparticipants in a recreational activity when the accident occurred. The trial court denied plaintiff's motion but did not resolve the applicable standard of care. The issue arose again, however, when the parties filed jury instructions. Plaintiff proposed an instruction on negligence-the ordinary standard of care-and defendant once more sought the Ritchie-Gamester reckless-misconduct standard. This time, the court concluded that reckless misconduct was the appropriate standard. At trial, the jury found that defendant's action did not constitute reckless misconduct.

         The Court of Appeals reversed, holding that the ordinary-negligence standard should have been applied because "the risks posed by the golf cart were not risks inherent in the game of golf."[2] Noting that Michigan caselaw had not defined a precise approach to determining the "inherent" risks of a recreational activity, the Court looked to various dictionary definitions of the term "inherent," as well as foreign caselaw analyzing that term in the context of recreational sports.[3] The Court explicitly rejected the argument that "inherent" risks were merely foreseeable risks.[4] Instead, "inherent" was taken to mean something necessary or intrinsic to the activity, without which it could not take place.[5] Given the relatively recent advent of the golf cart, the lack of any official rule referring to carts as inherent aspects of golf, and the "fact that there is no evidence in the instant case that the golf course where the accident occurred required the use of golf carts," the Court concluded that risks associated with carts were not inherent to golf.[6] Put differently, carts could be banned and golf would "remain virtually unchanged," and so they did not pose an inherent risk.[7] Accordingly, the Court, finding a question of fact regarding defendant's negligence, vacated the jury verdict and remanded.

         Defendant sought leave to appeal in this Court, and we ordered briefing "addressing whether the reckless misconduct standard of care or the ordinary negligence standard of care applies to an injury resulting from the operation of a golf cart while playing golf recreationally. Ritchie-Gamester v City of Berkley, 461 Mich. 73, 87-89 [597 N.W.2d 517] (1999)."[8]

         II. STANDARD OF REVIEW

         We review de novo the interpretation of a common-law doctrine.[9]

         III. ANALYSIS

         Our caselaw holds that "coparticipants in a recreational activity owe each other a duty not to act recklessly."[10] But this standard only applies to injuries that arise from risks inherent to the activity.[11] We have never explained how to determine whether a particular risk is inherent, and we now take the opportunity to do so.[12]

         A. RITCHIE-GAMESTER

         We established our general approach to the reckless-misconduct standard in Ritchie-Gamester. There, the parties were participating in an "open skating" period at an ice arena when the defendant, skating backwards, ran into the plaintiff, knocking her down and causing serious injuries.[13] In deciding whether to retain the ordinary-negligence standard for claims made in these general circumstances, or to adopt a reckless-misconduct standard, we noted that the majority of jurisdictions had opted for the latter.[14] The reasons for the rule were many, including the participants' "consent" to the inherent risks, their participation with "notice" of the rules "sufficient to discharge the other participants' duty of care," their creation of an "implied contract," or their "assum[ption]" of the inherent risks.[15] Underlying all of these rationales was the observation that "[w]hen people engage in a recreational activity, they have voluntarily subjected themselves to certain risks inherent in that activity."[16] With regard to those risks, we held that coparticipants owed a duty only to refrain from reckless misconduct.[17]

         Our opinion in Ritchie-Gamester did not expressly establish the proper analysis for assessing whether a particular risk is inherent in an activity. But as the Court of Appeals noted below, our Court did use language suggestive of two different ways to approach this inquiry.[18] The first, and more extensive, discussion focused on foreseeability. As an example of an inherent risk, Ritchie-Gamester cited a Texas case, which noted that" 'shanking the ball [in golf] is a foreseeable and not uncommon occurrence.' "[19] Later, we said "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 . . . ."[20] In another place, we noted that "no liability will arise unless a participant's actions exceed the normal bounds of conduct associated with the activity."[21]

         We also relied on the analysis set out by Justice Cardozo in Murphy v Steeplechase Amusement Co, [22] which indicated that foreseeability was the touchstone for assessing risk in these circumstances. In Steeplechase, a customer at an amusement park was injured after falling in "the Flopper," which consisted of a moving belt that made it difficult to remain standing. Justice Cardozo established the general rule that "[o]ne who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious as necessary, just as a fencer accepts the risk of a thrust by his antagonist . . . ."[23] The plaintiff could see participants tumbling about when he decided to join them-"He took the chance of a like fate . . . ."[24] It was important to the analysis that the risks were obvious, as Justice Cardozo noted the case might be different "if the dangers inherent in the sport were obscure or unobserved."[25] By relying on this case in Ritchie-Gamester, we indicated our approval of its approach, stating: "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. . . . In all these activities, there are foreseeable, built-in risks of harm."[26]

         In contrast to its rather frequent references to the concept of foreseeability, Ritchie-Gamester barely discussed or distinguished a second possible way to approach the analysis, which would ask whether the risk arose from a necessary or essential aspect of the activity. Our only reference to this more demanding approach to risks was our use of the term "inherent" to describe the type of risks subject to the reckless-misconduct standard.[27] While we never defined "inherent" as absolutely essential to the activity, the Court of Appeals in this case did, turning to dictionaries to determine that "inherent risk" means a risk" 'necessarily entailed in a given activity . . . .' "[28] The Court of Appeals further defined "inherent" as involving the" 'constitution or essential character of something,' "[29] or something existing" 'as a permanent and inseparable element, quality, or attribute[.]' "[30] But Ritchie-Gamester never emphasized the word "inherent."[31]

         B. FORESEEABILITY

         While Ritchie-Gamester did not explicitly adopt a mode of analysis for determining which risks were "inherent" in a recreational activity, its frequent mentions of foreseeability point in the right direction. For the reasons that follow, we now hold that the analysis must focus on whether the risk was reasonably foreseeable under the circumstances.

         Ritchie-Gamester adopted the reckless-misconduct standard because it reflects the participants' expectations when they voluntarily subject themselves to the risks in an activity.[32] As a leading treatise notes, "The limited duty or standard of care is derived directly from the plaintiff's limited expectations of safety."[33] This reasoning naturally lends itself to a foreseeability test: because the rationale for the limited duty is that the participants have voluntarily elected to participate knowing that they might be injured, it makes sense to define the "inherent risks" in an activity by what is reasonably foreseeable-by what the participants did foresee or should have foreseen-rather than a court's metaphysical ponderings about the essence of the sport.[34] In other words, to the extent the lower standard of care is justified by a participant's consent to certain risks, it follows that the relevant risks are the ones that the participant knew or should have known about.[35] For these reasons, in cases like this, numerous courts ask whether a risk was reasonably foreseeable or obvious, [36] including in cases involving golf cart accidents.[37]

         An approach based on foreseeability has the further benefit that it is common in the law, unlike speculation about the essence of a sport. We recently relied on the well-established definition of "foreseeability" in Iliades v Dieffenbacher North America Inc to explain that "[u]nder Michigan common law, foreseeability depends on whether a reasonable person 'could anticipate that a given event might occur under certain conditions.' "[38] In the context of other torts, the foreseeability of consequences is used as the standard for proximate causation.[39] Similarly, we have stated that "determining whether a duty exists" in a negligence claim depends on, among other things, "the foreseeability and nature of the risk."[40] Accordingly, our law frequently requires assessing the foreseeability of risks and events, and courts are familiar with the analysis.[41]

         The approach adopted by the Court of Appeals below, asking whether a risk arose from a necessary or essential aspect of the game, is flawed for multiple reasons. Most importantly, it is not an approach suited to judicial decision-making, or even legal reasoning. Instead, it represents a sort of philosophical essentialism that posits the existence of abstract essences that courts must discern.[42] There is, under this thinking, an ideal form of golf, or any other recreational activity. What the Court of Appeals did here was examine this ideal of golf, asking whether it included golf carts.[43]

         This manner of reasoning is better left to philosophers than judges. In his dissent in PGA Tour, Inc v Martin, Justice Scalia explained why.[44] In that case, the plaintiff challenged the PGA Tour's ban on golf carts in tournament play, requesting an accommodation under the Americans with Disabilities Act (ADA) on the ground that allowing him to ride in a cart would not "fundamentally alter the nature" of the golf tournaments.[45] The majority agreed, holding that golf cart usage would not fundamentally alter the nature of the game.[46] In dissent, Justice Scalia explained that sports are social constructs-they lack an essential character that is immutable.[47] The sport's players and rulemakers can change how the game is played for any reason or no reason at all, and the "nature" of the game will change accordingly. If, as the majority assumed, the PGA Tour was obligated "to play classic, Platonic golf," then the Court was faced with "an awesome responsibility":

It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several States," to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot re ...

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