Circuit Court LC No. 2016-002879-NI
Before: Markey, P.J., and Fort Hood and Gadola, JJ.
interlocutory appeal, defendants, Michalina Albrecht and
Piotr Albrecht, as next friend of Philip Albrecht (Philip),
appeal on leave granted the trial court's orders granting
a motion in limine establishing the standard of care
applicable in this negligence suit, and denying
defendants' motion for summary disposition. We reverse
and remand to the trial court for proceedings consistent with
facts underlying this case are essentially undisputed. On
August 2, 2015, plaintiff, Thomas Composto, was walking on
the Hike-Bike Trail at Stony Creek Metropark. The Hike-Bike
Trail, as its name implies, is used for both walking and
bicycling, as well as for running and inline skating. On that
day, then nine-year-old Philip was riding his bicycle on the
trail with his parents, Michalina and Piotr. Philip was
riding down a hill and saw plaintiff walking ahead of him.
Philip braked and tried to swerve to avoid striking
plaintiff, but because there were oncoming trail users, he
failed to avoid plaintiff and struck him from behind.
Plaintiff tore his quadriceps, and suffered other lacerations
initiated this action, alleging that Philip caused the
collision by riding his bicycle negligently, resulting in
plaintiff's injuries. Before the trial court, plaintiff
filed a motion in limine seeking to establish that the
applicable standard of care Philip owed in this case was that
of ordinary negligence. Plaintiff argued that the reckless
misconduct standard, usually applied when parties are engaged
in recreational activities, did not apply in this case
because plaintiff and Philip were engaged in different
activities at the time of their collision. Defendants moved
for summary disposition pursuant to MCR 2.116(C)(8) and
(C)(10), arguing that Philip's conduct did not amount
either to ordinary negligence or reckless misconduct.
hearing, the trial court granted plaintiff's motion in
limine, determining that the applicable standard of care was
that of ordinary negligence. The trial court denied
defendants' motion seeking reconsideration of the
determination, and after a further hearing, denied without
prejudice defendants' motion for summary disposition as
premature. This Court thereafter granted defendants'
application for leave to appeal.
contend that the trial court erred in determining that the
applicable standard of care in this case is that of ordinary
negligence. The issue of the applicable standard of care 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).
to establish a prima facie case of negligence, a plaintiff
must establish (1) a duty owed by the defendant to the
plaintiff, (2) breach of that duty by the defendant, (3)
damages suffered by the plaintiff, and (4) that the damages
were caused by the defendant's breach of duty.
Finazzo v Fire Equip Co, 323 Mich.App. 620, 635; 918
N.W.2d 200 (2018). Duty is the legal obligation to conform
one's conduct to a particular standard to avoid
subjecting others to an unreasonable risk of harm.
Burnett v Bruner, 247 Mich.App. 365, 368; 636 N.W.2d
773 (2001). The duty a defendant typically owes to a
plaintiff often is described as an ordinary negligence
standard of care. See Sherry, 292 Mich.App. at 28.
Under ordinary negligence principles, a defendant owes a
plaintiff a duty to exercise ordinary care under the
circumstances. See Id. at 29-30.
"[w]hen people engage in a recreational activity, they
have voluntarily subjected themselves to certain risks
inherent in that activity." Ritchie-Gamester v City
of Berkley, 461 Mich. 73, 87; 597 N.W.2d 517 (1999). As
a result, "coparticipants in a recreational activity owe
each other a duty not to act recklessly." Id.
at 95. This recklessness standard of care, however, extends
only to "injuries that arise from risks inherent to the
activity." Bertin v Mann, 502 Mich. 603, 609;
918 N.W.2d 707 (2018). Thus, to determine the standard of
care applicable when an injury arises involving
coparticipants in a recreational activity, a court must
consider whether the injuries arose from risks inherent to
that recreational activity.
determine the applicable standard of care in this case, the
first inquiry is whether plaintiff and Philip were
coparticipants in a recreational activity. Both plaintiff and
Philip were engaging in recreational activity at the time of
the accident; Philip was biking, while plaintiff was walking.
In doing so, both were using a trail specifically designated
for the mixed uses of walking and biking, among other
recreational activities. We compare the circumstances of this
case to those of Ritchie-Gamester, where both
parties were ice skating during an "open skate" at
a public ice rink when they collided. In adopting the
reckless misconduct standard, the Ritchie-Gamester
Court recognized "the everyday reality of participation
in recreational activities," where "[a] person who
engages in a recreational activity is temporarily adopting a
set of rules that define that particular pastime or
sport." Ritchie-Gamester, 461 Mich. at 86.
Ultimately, the Court stressed that coparticipants engaging
in a recreational activity have "voluntarily subjected
themselves to certain risks inherent in that activity."
Id. at 87. Applying these principles in the context
of ice skaters participating in an open skate at a public ice
arena, the Court in Ritchie-Gamester explained:
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 to simply 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 ...