Kenneth Bertin v. Douglas Mann , 502 Mich. 603 ( 2018 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Stephen J. Markman Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
BERTIN v MANN
Docket No. 155266. Argued on application for leave to appeal April 25, 2018. Decided
July 25, 2018.
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.
Reversed and remanded.
©2018 State of Michigan
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Stephen J. Markman Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement
FILED July 25, 2018
STATE OF MICHIGAN
SUPREME COURT
KENNETH BERTIN,
Plaintiff-Appellee,
v No. 155266
DOUGLAS MANN,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
VIVIANO, J.
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.
2
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
1
Ritchie-Gamester v City of Berkley, 461 Mich. 73; 597 NW2d 517 (1999).
2
Bertin v Mann, 318 Mich. App. 425, 438; 898 NW2d 243 (2016).
3
Id. at 438-447.
3
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
NW2d 517] (1999).”8
4
Id. at 444 n 11.
5
Id. at 444.
6
Id.
7
Id. at 446.
8
Bertin v Mann, 501 Mich. 869, 869-870 (2017).
4
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
9
Tkachik v Mandeville, 487 Mich. 38, 45; 790 NW2d 260 (2010).
10
Ritchie-Gamester, 461 Mich. at 95.
11
Id. at 87.
12
No party disputes that golf is a recreational activity or that plaintiff and defendant were
coparticipants in that activity.
13
Ritchie-Gamester, 461 Mich. at 75.
14
Id. at 81-82 (“In the majority of other jurisdictions, however, the courts have adopted a
‘reckless or intentional conduct’ or a ‘wilful and wanton or intentional misconduct’
5
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
standard.”); see also 1 Lindahl, Modern Tort Law: Liability and Litigation (2d ed, 2018
update), § 3:71 (“[A] majority of courts hold that participants in an athletic event owe a
duty to other participants to refrain from reckless misconduct and that liability may be
based on the breach of such duty.”).
15
Ritchie-Gamester, 461 Mich. at 86-87.
16
Id. at 87.
17
Id. at 89.
18
Bertin, 318 Mich. App. at 444 n 11 (citing Ritchie-Gamester and noting that it
“implicitly recogniz[ed] a difference between something’s being foreseeable and being
natural”).
19
Ritchie-Gamester, 461 Mich. at 88, quoting Hathaway v Tascosa Country Club, Inc,
846 S.W.2d 614, 616 (Tex App, 1993) (quotation marks omitted).
6
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
20
Ritchie-Gamester, 461 Mich. at 94.
21
Id.
22
Murphy v Steeplechase Amusement Co, Inc, 250 NY 479; 166 N.E. 173 (1929).
23
Id. at 482.
24
Id. at 483.
25
Id.
7
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,
26
Ritchie-Gamester, 461 Mich. at 87-88.
27
See, e.g., id. at 86-87.
28
Bertin, 318 Mich. App. at 438, quoting Black’s Law Dictionary (10th ed). The Court
noted that Black’s also defined “inherent risk” as “ ‘[a] fairly common risk that people
normally bear whenever they decide to engage in a certain activity.’ ” Bertin, 318 Mich
App at 438, quoting Black’s Law Dictionary (10th ed). That definition, more in line with
the foreseeability approach—as it looks to the commonality of the risk rather than the
risk’s necessity to the activity—was not discussed further by the Court of Appeals.
29
Id. at 439, quoting Merriam-Webster’s Collegiate Dictionary (11th ed).
8
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
30
Id., quoting Random House Webster’s Unabridged Dictionary (2d ed).
31
Other courts have treated the word “inherent” as synonymous with “foreseeable.” Cf.
Demelio v Playmakers, Inc, 19 Misc. 3d 911, 913; 855 NYS2d 878 (2008) (“[T]here is no
indication in any of the authorities that the [foreseeability] formulation differs in
substance from the ‘inherency’ . . . standard[]. . . . [T]he risks that ‘inhere’ in a sport or
recreational activity are ‘reasonably foreseeable consequences.’ ”). This is consistent
with one of the dictionary definitions of “inherent” that the Court of Appeals disregarded
below. See note 28 of this opinion and Black’s Law Dictionary (10th ed), p 1524.
32
Ritchie-Gamester, 461 Mich. at 87; see also Steeplechase, 250 NY at 482-483
(explaining that the plaintiff could see the risk of injury with his own eyes before he
participated).
33
1 Dobbs, Hayden & Bublick, Torts (2d ed), § 240, p 865.
9
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
34
This rule is consistent with using the phrase “inherent risk,” which as noted in note 28
of this opinion can mean “[a] fairly common risk . . . .” Black’s Law Dictionary (10th
ed). See also note 31 of this opinion.
35
The Restatement explains the related doctrine of implied assumption of risk in this
manner, grounding it on the fact that a plaintiff “fully understands a risk of harm to
himself . . . and . . . nevertheless voluntarily chooses to enter or remain . . . .” 2
Restatement Torts, 2d, § 496 C, pp 569-570. The relevant question is “what the plaintiff
knows, understands, and is willing to accept.” Id. at § 496 C, comment e, p 571; see also
Wharton, A Treatise on the Law of Negligence (2d ed), § 200, p 181 (noting the “general
principle that a party cannot recover for injury he incurs in risks, themselves legitimate,
to which he intelligently submits himself”). As one treatise states, implied assumption of
risk (i.e., when there has been no express agreement to assume a risk) still requires the
injured participant to have known and appreciated the risk, but such knowledge will be
imputed to the participant if the risk was “clear and obvious” or, in other words,
reasonably foreseeable. Prosser & Keeton, Torts (5th ed), § 68, pp 487-488; see also
Dobbs, § 236 (noting that the standard was whether “a reasonable person in her [i.e., the
plaintiff’s] position would have appreciated” the risk).
While Ritchie-Gamester, 461 Mich. at 87, did not state that its standard was based
only on the assumption-of-risk doctrine, it noted the similar underpinnings—the
voluntary consent of the participants—shared by that doctrine and the lower standard of
care in the present context. Therefore, to the extent the rationales are similar, the doctrine
is useful in understanding cases like the present, although the doctrine (fully immunizing
a defendant rather than merely reducing the defendant’s standard of care) has been
abolished in this context. See Ritchie-Gamester, 461 Mich. at 78 (noting that Felgner v
Anderson, 375 Mich. 23; 133 NW2d 136 (1965), “abolished assumption of risk in this
context,” after which the caselaw “began to move away from the ‘ordinary care’
standard”).
10
was reasonably foreseeable or obvious,36 including in cases involving golf cart
accidents.37
36
Some of the following cases involved the liability of nonparticipants, such as owners of
golf courses, but all examined the same basic question as the one here, i.e., how to determine
which risks are inherent. See, e.g., Yoneda v Tom, 110 Haw. 367, 373; 133 P3d 796 (2006)
(“ ‘[T]he defense [of assumption of risk] applies to those injury-causing events which are
known, apparent or reasonably foreseeable consequences of the participation[,] except for
acts which are reckless or intentional.’ ”), quoting Foronda v Hawaii Int’l Boxing Club, 96
Haw. 51, 62; 25 P3d 826 (App, 2001) (first and third alterations in original); Thompson v
McNeill, 53 Ohio St 3d 102, 104; 559 NE2d 705 (1990) (“Thus a player who injures another
in the course of a sporting event by conduct that is a foreseeable, customary part of the sport
cannot be held liable for negligence . . . .”), abrogated on other grounds by Anderson v City
of Massillon, 134 Ohio St 3d 380 (2012); Maddox v City of New York, 66 NY2d 270, 278;
487 NE2d 553 (1985) (“There is no question that the doctrine [of assumption of risk]
requires not only knowledge of the injury-causing defect but also appreciation of the
resultant risk . . . . It is not necessary to the application of assumption of risk that the injured
plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or
she is aware of the potential for injury of the mechanism from which the injury results.”);
Simmons v Quarry Golf Club, LLC, 2016-Ohio-525, ¶ 20; 60 NE3d 454 (Ohio App, 2016)
(“ ‘The types of risks associated with [an] activity [for purposes of assumption of risk] are
those that are foreseeable and customary risks of the . . . recreational activity.’ ”) (citation
omitted; first and third alterations in original); American Powerlifting Ass’n v Cotillo, 401
Md 658, 670; 934 A2d 27 (2007) (“ ‘[V]oluntary participants in sports activities may be held
to have consented, by their participation, to those injury-causing events which are known,
apparent, or reasonably foreseeable consequences of their participation.’ ”), quoting Conway
v Deer Park Union Free Sch Dist No 7, 234 App Div 2d 332, 332; 651 NYS2d 96 (1996);
Hathaway, 846 S.W.2d at 616 (applying the standard from Thompson asking whether the risk
was foreseeable and customary); 27A Am Jur 2d, Entertainment and Sports Law, § 91, p 491
(“A voluntary participant in any lawful game, sport, or contest, in legal contemplation by the
fact of his or her participation, assumes all risks incidental to the particular game, sport, or
contest which are obvious and foreseeable[.]”); see also Pfenning v Lineman, 947 NE2d 392,
398, 404 (Ind, 2011) (addressing claims against a participant of a sport by examining the
breach of duty—the existence of which includes asking whether harm is reasonably
foreseeable—and holding that “if the conduct of [the] participant is within the range of
ordinary behavior of participants in the sport, the conduct is reasonable as a matter of law
and does not constitute a breach of duty”).
37
One case, decided shortly before the Court of Appeals’ decision below, determined that
11
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
an accident between golf carts driven by coparticipants was an inherent risk. Wooten v
Caesars Riverboat Casino, LLC, 63 NE3d 1069, 1076 (Ind App, 2016). The rationale
was that golf cart usage was “part and parcel of the modern golf game, with an
unremitting presence on the fairway,” and accidents between golf carts were “common
and expected.” Id. Consequently, such risk was “ ‘within the range of ordinary behavior
of participants’ in golf and therefore, as a matter of law, it cannot support a claim for
negligence.” Id., quoting Pfenning, 947 NE2d at 404. See also Valverde v Great
Expectations, LLC, 131 App Div 3d 425, 426; 15 NYS3d 329 (2015) (holding that
“ ‘[g]olfers . . . must be held to a common appreciation of the fact that there is a risk of
injury from improperly used carts on a fairway which is inherent in and aris[es] out of the
nature of the sport’ ”), quoting Brust v Town of Caroga, 287 App Div 2d 923, 925; 731
NYS2d 542 (2001). We do not comment on whether these cases were correctly decided;
rather, we highlight them to demonstrate that the foreseeability framework has been
applied in similar cases.
38
Iliades v Dieffenbacher North America Inc, ___ Mich___; ___ NW2d___ (2018)
(Docket No. 154358); slip op at 10, quoting Samson v Saginaw Prof Bldg, Inc, 393 Mich.
393, 406; 224 NW2d 843 (1975).
39
See, e.g., Skinner v Square D Co, 445 Mich. 153, 163; 516 NW2d 475 (1994) (“On the
other hand, legal cause or ‘proximate cause’ normally involves examining the
foreseeability of consequences, and whether a defendant should be held legally
responsible for such consequences.”).
40
Schultz v Consumers Power Co, 443 Mich. 445, 450; 506 NW2d 175 (1993); see also
12
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
Moning v Alfono, 400 Mich. 425, 439; 254 NW2d 759 (1977) (noting that the concepts of
duty and proximate cause are related, as each “depend[s] in part on foreseeability—
whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim,
and whether the result of that conduct and intervening causes were foreseeable”).
41
It is also consistent with statutes on this topic. The Legislature has consistently defined
“inherent risk” as including dangers involving technology or equipment not essential to
an activity—for example, collisions with ski-tower components and snow-grooming
equipment are inherent risks of skiing. MCL 408.342(2) (“Each person who participates
in the sport of skiing accepts the dangers that inhere in the sport insofar as the dangers are
obvious and necessary,” including “collisions with ski lift towers and their components,
with other skiers, or with” various property and equipment such as snow-making or
snow-grooming equipment.). See also MCL 445.1725 (providing that a participant “in
roller skating accepts the danger that inheres in that activity insofar as the dangers are
obvious and necessary,” including collisions with objects “properly” placed within the
path of the roller skater); MCL 324.82126(8) (providing that individuals participating in
snowmobiling accept “risks associated with that sport insofar as the dangers are obvious
and inherent,” including the risk of injuries arising from both natural and artificial
objects); MCL 691.1736 (providing that participants in trampolining “accept[] the danger
that inheres in that activity insofar as the dangers are obvious and necessary,” including
injuries involving “objects or artificial structures properly within the intended travel of
the trampoliner”). What these statutes demonstrate is that “inherent risk” is linked not to
a narrowly defined essence of an activity, but rather to the participants’ reasonable
expectations.
42
See Freeman, Lloyd’s Introduction to Jurisprudence (London: Sweet & Maxwell, 8th
ed, 2008), p 34 (“Essentialism . . . has a history stretching back to Plato’s notion of ideal
universals, namely, the notion that every class or group of things has an essential or
13
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
fundamental nature, common to every member of the class, and that the process of
defining consists in isolating and identifying this common nature or intrinsic property.”).
43
Bertin, 318 Mich. App. at 446.
44
PGA Tour, Inc v Martin, 532 U.S. 661; 121 S. Ct. 1879; 149 L. Ed. 2d 904 (2001).
45
42 USC 12182(b)(2)(A)(ii); see Martin, 532 U.S. at 664-665.
46
Martin, 532 U.S. at 690-691.
47
Id. at 699-700 (Scalia, J., dissenting).
14
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 really a golfer? The
answer, we learn, is yes. The Court ultimately concludes, and it will
henceforth be the Law of the Land, that walking is not a “fundamental”
aspect of golf.
Either out of humility or out of self-respect (one or the other) the
Court should decline to answer this incredibly difficult and incredibly silly
question. To say that something is “essential” is ordinarily to say that it is
necessary to the achievement of a certain object. But since it is the very
nature of a game to have no object except amusement (that is what
distinguishes games from productive activity), it is quite impossible to say
that any of a game’s arbitrary rules is “essential.” Eighteen-hole golf
courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football
fields—all are arbitrary and none is essential. The only support for any of
them is tradition and (in more modern times) insistence by what has come
to be regarded as the ruling body of the sport . . . .[48]
Our case is different, but the lesson is the same. In both Martin and the present
matter, the judiciary has been asked to define the essence of a sport. 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. Rather than requiring courts to engage in such a
nebulous endeavor, we hold that the proper analysis should focus on reasonable
foreseeability.
48
Id. at 700-701 (citation omitted).
15
C. ASSESSING FORESEEABILITY
In this context, the assessment of whether a risk is inherent to an activity depends
on whether a reasonable person under the circumstances would have foreseen the
particular risk that led to injury. If so, then the risk is inherent and the reckless-
misconduct standard of care applies. The foreseeability of the risk is a question of fact,
and it is useful to describe a few of the considerations that should inform the
determination.49
As an initial matter, it is the risk of harm that must be reasonably foreseeable.50
The Court of Appeals below focused broadly on the use of carts in golf rather than the
risk of being hit by one. While the questions are not unrelated—the prevalence of carts
might indicate a more obvious and increased risk of accident—the proper analysis centers
49
Foreseeability, in similar contexts, has been treated as a factual issue. See Lego v Liss,
498 Mich. 559, 562-563; 874 NW2d 684 (2016) (noting that there was “no question of
material fact” regarding the foreseeability of a police officer’s getting shot by a fellow
officer while engaging a shooter, and thus holding that the plaintiff’s injury arose from an
inherent risk under MCL 600.2966 and the defendant was immune from liability). And
factual disputes regarding the applicable standard of care have likewise been treated as
factual issues. Cf. Stitt v Holland Abundant Life Fellowship, 462 Mich. 591, 595; 614
NW2d 88 (2000) (“As a general rule, if there is evidence from which invitee status
[which determines the level of duty a defendant owes] might be inferred, it is a question
for the jury.”), citing Nezworski v Mazanec, 301 Mich. 43, 58; 2 NW2d 912 (1942)
(noting that whether the plaintiff was an invitee or trespasser for purposes of determining
the defendant’s duty was a question of fact). Of course, if no genuine issue of material
fact remains, then a court can decide the issue under MCR 2.116(C)(10).
50
See Maddox, 66 NY2d at 278 (“It is not necessary to the application of assumption of
risk that the injured plaintiff have foreseen the exact manner in which his or her injury
occurred, so long as he or she is aware of the potential for injury of the mechanism from
which the injury results.”).
16
on whether a reasonable person in the position of the injured participant could have
foreseen that risk. The test is objective and focuses on what risks a reasonable
participant, under the circumstances, would have foreseen.51 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.52 Relatedly, those factual
circumstances include the general characteristics of the participants, such as their
relationship to each other and to the activity53 and their experience with the sport.54
51
Yoneda, 110 Haw. at 373 (“The inquiry into what constitutes an inherent risk ‘is an
objective one, and must be, for the vagaries of prior knowledge or perception of risk
would undermine the doctrine’s underlying policy[] that the law should not place
unreasonable burdens on the free and vigorous participation in sports[.]’ ”), quoting
Foronda, 96 Haw. at 67 (alterations in original); see generally Iliades, ___ Mich ___;
slip op at 10 (focusing on a reasonable person); cf. 2 Restatement Torts, 2d, § 289, p 41
(providing, in the context of establishing a standard of reasonable conduct, that an actor is
required to foresee risks “if a reasonable man would [recognize the risk] . . . while
exercising . . . such attention, perception of the circumstances, memory, knowledge of
other pertinent matters, intelligence, and judgment as a reasonable man would have”).
52
Maddox, 66 NY2d at 278; see also Cooperman v David, 214 F3d 1162, 1167 (CA 10,
2000) (noting, under a Wyoming statute providing a defense for “inherent risks,” that the
risk could not be considered “in a vacuum, apart from the factual setting,” and instead
must be defined with the “specificity permitted by the factual record”).
53
Yoneda, 110 Haw. at 373 (“ ‘In determining whether the defendant’s conduct is an
inherent risk of the sports activity, we consider the nature of the activity, the relationship
of the defendant to the activity and the relationship of the defendant to the plaintiff.’ ”),
quoting Foronda, 96 Haw. at 66.
54
Maddox, 66 NY2d at 278 (“[A]wareness of risk is not to be determined in a vacuum. It
is, rather, to be assessed against the background of the skill and experience of the
particular plaintiff . . . .”).
17
The general rules of the activity can also be considered, as the Court of Appeals
did here; but 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.55 Also relevant are any regulations prescribed by the venue at
which the activity is taking place. In this case, for example, the Court of Appeals
correctly considered whether the use of golf carts was required,56 and it is also relevant
whether golf carts were banned or confined to certain areas of the course.57 In sum, the
usual approach to reasonable foreseeability applies in the present context.
IV. CONCLUSION
For the reasons above, we hold that “inherent risks” under Ritchie-Gamester are
those that are reasonably foreseeable under the circumstances of the case. When an
55
See, e.g., Lux v Cox, 32 F Supp 2d 92, 102 (WDNY, 1998) (“In conducting this
analysis, the court may consider such factors as the accepted and applicable rules or
standards of the sport, published guidelines, evidence of common usage, conditions that
exist at similar facilities, proof of prior accidents at the same place under substantially
similar circumstances, or the absence of prior accidents, or other relevant factors.”). The
formal or informal rules may be consulted, but they are not the dispositive criterion in
determining what is foreseeable. As Ritchie-Gamester pointed out, using the rules in this
manner would fail to reflect the reasonable expectations of participants, who surely
anticipate injuries regardless of how the rules “are structured and enforced.” Ritchie-
Gamester, 461 Mich. at 94. As one scholar has noted, “[E]ven violation of a rule of the
game does not in itself result in liability; if the violation is one that is ordinary to the way
the game is played, the defendant will be liable only if he is reckless or intends harm.”
Dobbs, § 240, p 866.
56
Bertin, 318 Mich. App. at 444.
57
See, e.g., Forman v Kreps, 2016-Ohio-1604, ¶¶ 27-31; 50 NE3d 1 (Ohio App, 2016)
(noting, with regard to the assumption of risk, arguments regarding a golf course’s
customs and requirements regarding golf carts).
18
injury arises from such a risk, the reckless-misconduct standard applies. Accordingly, we
remand this case to the Oakland Circuit Court for that court to determine whether there is
a genuine issue of material fact as to whether 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 Court’s opinion.58
David F. Viviano
Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement
58
Plaintiff has alternatively argued that Ritchie-Gamester is inapplicable because the golf
cart here was subject to the Michigan Vehicle Code (MVC), MCL 257.1 et seq., and thus
the standard of care is ordinary negligence. See Van Guilder v Collier, 248 Mich. App.
633; 650 NW2d 340 (2001). The Court of Appeals determined that the MVC did not
apply to the golf cart or parties at issue. Bertin, 318 Mich. App. at 437-438. We see no
clear error in the Court of Appeals’ analysis, and therefore we decline to reach this issue.
19