Raphaela Allen v. Spring Loaded I LLC ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RAPHAELA ALLEN, Legal Guardian of MACK UNPUBLISHED
KELLY, III, September 22, 2022
Plaintiff-Appellant,
v No. 357231
Oakland Circuit Court
SPRING LOADED I, LLC, LC No. 2019-177801-NO
Defendant-Appellee.
Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.
PER CURIAM.
Plaintiff, Raphaela Allen, legal guardian of Mack Kelly, III, appeals as of right the trial
court order granting defendant, Spring Loaded I, LLC, summary disposition. Plaintiff argues that
she was entitled to an adverse inference because defendant intentionally destroyed evidence, and
that questions of fact and the adverse inference precluded summary disposition in favor of
defendant. We affirm.
I. FACTUAL BACKGROUND
Plaintiff is the mother of Mack, a nonverbal autistic individual. On November 12, 2016,
plaintiff brought Mack and several other children to Airtime trampoline park in Troy. Plaintiff
filled out a waiver form for Mack and some of the other children before paying for them to
participate. Mack was 15 years old and still a minor at the time. The children were given
wristbands and jump socks, and they proceeded to a jumping area. Plaintiff reviewed the safety
rules with the children, including Mack.
After no more than five minutes, Mack was jumping or running from one trampoline to
another and caught his foot on the orange divider that separated the individual trampolines. Mack’s
ankle went forward but his foot went back. Plaintiff witnessed the injury. She ran onto the
trampoline to retrieve Mack, who was also having an asthma attack. The park manager arrived,
and she called the police and emergency medical services. An ambulance took plaintiff and Mack
to Beaumont Royal Oak, where it was determined that Mack’s right ankle was fractured.
Emergency surgery was scheduled for the next morning, and Mack stayed in the hospital for three
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to four days. Mack wore a cast from his ankle to his knee for about three months. His schoolwork
was sent home. After the cast was removed, he wore a walking boot for six weeks. Physical
therapy was recommended, but given his regular therapy schedule for his autism, it was never
completed. Mack still has screws in his ankle, and may need another surgery to remove them.
II. PROCEDURAL HISTORY
Plaintiff initially filed a complaint against RPT Realty Properties, Limited Partnership and
WB Holdings, LLC, both doing business as Airtime Trampoline & Game Park, but both of these
parties were dismissed when defendant stipulated that it was the owner of the trampoline park on
the day of the incident. Plaintiff filed an amended complaint, alleging that on November 12, 2016,
Mack was a “business invitee” at the trampoline park when he
tripped and fell on a camouflaged, uneven, bunched, improperly secured and loose
defective pad, which was not stapled, tacked down, taped down, or matted down to
the trampoline, which posed a danger and was not enclosed, and was entrusted to
the Defendant’s care, resulting in injuries and damages hereinafter set forth due to
Defendants’ active negligence causing Plaintiff to sustain serious and disabling
injuries.
Plaintiff alleged that defendant was responsible for the active negligence of its employees, and
therefore liable for the injuries sustained by Mack. Defendant owed a duty to Mack, and breached
that duty by permitting a dangerous condition to exist in a public area, failing to repair or replace
the padding, and failing to keep the area in a fit condition. As a direct and proximate result of
defendant’s negligence, Mack suffered injuries.
Defendant filed an initial motion for summary disposition, but at the hearing, the court
determined that it needed pictures of the trampoline park and the dividers to make a decision, so it
denied the motion without prejudice, and entered an order allowing defendant to file a
supplemental brief to its motion or to file a new motion, with pictures attached.
Shortly after this hearing, an estate sale was held at the trampoline park to satisfy unpaid
rent as a result of the park’s closure beginning in March 2020 because of the COVID-19 pandemic.
When defendant moved to adjourn the deadline for summary disposition motions because the
trampoline park had closed, and the corporate entity named as defendant had dissolved, plaintiff
filed a response in opposition, arguing that now there was a spoliation issue because defendant
sold or destroyed all the equipment at the exact location where the incident occurred. The court
held a hearing and granted the motion over plaintiff’s objection, allowing defendant to file a
supplemental brief or renewed motion for summary disposition. The court instructed plaintiff to
incorporate her spoliation argument into her response.
Instead, plaintiff moved to exclude evidence and for an adverse inference or presumption
based on defendant’s intentional spoliation of evidence. Defendant filed a response in opposition,
and the court held a hearing wherein it decided to “postpone” making a decision, and again advised
plaintiff to incorporate her spoliation argument into her response to defendant’s motion for
summary disposition.
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Defendant filed a renewed motion for summary disposition under MCR 2.116(C)(8) and
(C)(10), arguing that (1) the Michigan Trampoline Court Safety Act, MTCSA, MCL 691.1731 et
seq., bars plaintiff’s action because it provides that individuals who trampoline accept the danger
inherent in the activity, including injuries that result from landing on the trampoline, pad, or
platform, (2) plaintiff consented to the risks inherent in trampolining, (3) the risks inherent in
trampolining are open and obvious, and (4) plaintiff’s theory that the trampolines were defectively
designed was not supported by expert testimony as required.
Plaintiff filed a response in opposition, arguing that because defendant intentionally
disposed of relevant evidence, plaintiff was entitled to a presumption or inference that the evidence
was adverse to defendant, and this precluded summary disposition. Additionally, plaintiff argued
that defendant was liable for the negligence of its employees in allowing a defective condition to
exist that caused Mack’s injury, and neither the MTCSA or the assumption of risk doctrine
absolved defendant of liability. Plaintiff argued that the risk of injury from an improperly installed
or maintained trampoline and defendant’s employees’ negligence was not open and obvious, nor
does this doctrine bar her claim for ordinary negligence. Lastly, plaintiff argued that Mack was
not injured because of a defective design, but because the risk presented by the dividers was not
apparent or foreseeable, and defendant’s disposal of the equipment precludes the expert
examination that defendant claims is necessary.
Defendant filed a reply in support of its renewed motion for summary disposition, asserting
that plaintiff never made any discovery requests related to the trampoline equipment, or explain
how the equipment, rather than the photos, is required to support her claim of negligence.
Defendant also asserted that plaintiff’s negligence claim is a premises liability claim in disguise.
The court held a hearing on defendant’s renewed motion, and the parties argued consistent
with their briefs. The court stated that it “agrees with defendant,” and granted the motion. Plaintiff
moved for reconsideration, again asserting her spoliation argument. Defendant filed an objection,
and the court denied the motion for failure to demonstrate a palpable error by which the court and
the parties had been misled.
III. ANALYSIS
Plaintiff argues that she was entitled to an adverse inference because defendant
intentionally destroyed evidence, and that questions of fact and the adverse inference precluded
summary disposition in favor of defendant. We conclude that the trial court properly granted
defendant summary disposition, and as such, begin our analysis with plaintiff’s second issue on
appeal.
The grant or denial of summary disposition is reviewed by this Court de novo. Glasker-
Davis v Auvenshine, 333 Mich App 222, 229; 964 NW2d 809 (2020). Defendant filed its renewed
motion for summary disposition under MCR 2.116(C)(8) and (C)(10). The trial court did not
specify under which subrule it granted the motion. Where the trial court fails to do this, but the
court relied on matters outside the pleadings, review under MCR 2.116(C)(10) is appropriate.
Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 457; 750 NW2d 615 (2008). Because
summary disposition under MCR 2.116(C)(8) relies on the pleadings alone, and the trial court
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specifically directed defendant to file photographs in support of its motion, review under MCR
2.116(C)(10) is appropriate.
“[A] motion under MCR 2.116(C)(10) test the factual sufficiency of the complaint[.]”
Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). “A trial court may
grant a motion for summary disposition under MCR 2.116(C)(10) when the affidavits or other
documentary evidence, viewed in the light most favorable to the nonmoving party, show that there
is no genuine issue as to any material fact and the moving party is therefore entitled to judgment
as a matter of law.” Glasker-Davis, 333 Mich App at 229 (quotation marks and citation omitted).
A genuine issue of fact exists if, when reviewing the record in the light most favorable to the
nonmoving party, reasonable minds could differ. Gorman v American Honda Motor Co, Inc, 302
Mich App 113, 116; 839 NW2d 223 (2013).
A. THE COURT APPLIED THE PROPER STANDARD
As an initial matter, plaintiff argues that the trial court applied the wrong standard in
deciding defendant’s motion for summary disposition, alleging that the trial court required plaintiff
to prove her case by a preponderance of the evidence. We disagree.
“Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the
nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the
pleadings to set forth specific facts showing that a genuine issue of material fact exists.” Pena v
Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003) (quotation marks and
citation omitted). At the hearing on defendant’s renewed motion, the court asked plaintiff’s
counsel several times what evidence plaintiff was relying on to prove the elements of her
negligence claim, in particular, what evidence she would use to prove substandard installation or
maintenance. Plaintiff’s counsel stated there was plaintiff’s testimony that she did not see any
reason for the dividers, as well as any conversations plaintiff may have had with employees of
defendant. The court noted that it was only seeing speculation, and that plaintiff was making a res
ipsa argument. The court saw no evidence of substandard maintenance or installation of the
trampoline dividers. “[P]arties opposing a motion for summary disposition must present more
than conjecture and speculation to meet their burden of providing evidentiary proof establishing a
genuine issue of material fact.” Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App
482, 486; 502 NW2d 742 (1993).
Therefore, the trial court used the proper standard in analyzing defendant’s renewed motion
for summary disposition, and plaintiff’s argument that any procedural error precludes summary
disposition lacks merit.
B. ORDINARY NEGLIGENCE
The trial court properly granted defendant summary disposition because there were no
genuine issues of material fact that the dangers associated with trampolining were reasonably
foreseeable, and Mack accepted those dangers.
To establish a prima facie case of negligence, plaintiff must establish that (1) defendant
owed plaintiff a duty, (2) defendant breached that duty, (3) the breach was a proximate cause of
plaintiff’s damages, and (4) plaintiff suffered damages. Latham v Nat’l Car Rental Sys, Inc, 239
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Mich App 330, 340; 608 NW2d 66 (2000). The threshold issue is whether the defendant owed the
plaintiff a legal duty. Johnson v Bobbie’s Party Store, 189 Mich App 652, 659; 473 NW2d 796(1991). It is undisputed that plaintiff and Mack were invitees on defendant’s premises—the
trampoline park. Generally, merchants do not have a duty to protect invitees from unreasonable
risks that are not foreseeable. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d 33 (2001).
A duty only arises on behalf of invitees that are easily identifiable as being foreseeably endangered.
Id. Once a duty is established, breach of that duty is a question of fact. Boumelhem v Bic Corp,
211 Mich App 175, 181; 535 NW2d 574 (1995). The determination of duty and proximate cause
are closely related because the issue of whether there is a requisite relationship giving rise to a
legal duty, and the issue of whether the cause is so significant to be considered a proximate cause,
both depend on foreseeability. Babula v Robertson, 212 Mich App 45, 53; 536 NW2d 834 (1995).
In 2014, the Legislature enacted the MTCSA, MCL 691.1731 et seq., to provide the duties
and liabilities of trampoline court operators and individuals who use trampoline courts. Under
MCL 691.1733(b), a trampoline court operator shall “[c]omply with the safety standards specified
in [American Society for Testing and Materials (ASTM)] F2970-13, ‘Standard Practice for Design,
Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of
Trampoline Courts’ published in 2013 by the American society for testing and materials.” MCL
691.1736 provides:
An individual who participates in trampolining accepts the danger that
inheres in that activity insofar as the dangers are obvious and necessary. Those
dangers include, but are not limited to, injuries that result from collisions with other
trampoliners or other spectators, injuries that result from falls, injuries that result
from landing on the trampoline, pad, or platform, and injuries that involve objects
or artificial structures properly within the intended travel of the trampoliner that are
not otherwise attributable to the operator’s breach of his or her common law duties.
The trial court properly granted defendant summary disposition because plaintiff failed to
establish any genuine issues of material fact whether defendant breached its duty to Mack as an
invitee because the risks associated with trampolining are foreseeable. The plain language of the
statute provides that people who trampoline accept the danger inherent in the activity that are
obvious and necessary, including falls, injuries from landing on the trampoline or padding, and
injuries involving objects within the intended travel of the participating individual. Id. The
dividers plaintiff asserts were negligently maintained can properly be considered “padding” or an
object within the intended travel of the trampoliner. Id.Plaintiff and Mack were both aware of the safety rules and precautions of trampolining.
Plaintiff signed the safety waiver on Mack’s behalf, and explained the rules to him. Although
plaintiff did not remember, a safety audio recording and video were playing at the entrance of the
trampoline park. The audio recording warned that “jumping on a trampoline can be dangerous,”
and advised jumpers, “do not flip over pads,” “land with both feet,” and “do not land or jump on
padding.” The safety video that played had no sound, but displayed written warnings, including,
“do not jump or land on the padding,” and “failure to follow the rules may result in injury . . . .”
Although autistic, Mack had no issues with his vision or hearing, and understood English.
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Mack’s injury occurred when he was running or jumping from one trampoline to another,
divided by the orange barrier, when his foot caught the divider. That plaintiff testified that she did
not see a reason for the dividers does not create a question of fact. In fact, the ASTM safety
standards require trampoline operators to have separate trampolines rather than one big trampoline,
and to have padding over the frames of each trampoline, ASTM F2970-15, ¶¶ 7.5.3, 7.11.3,1 and
these standards are incorporated into the MTCSA, MCL 691.1733(b). Therefore, there is no
genuine issue of material fact regarding whether Mack accepted the inherent danger of sustaining
an injury from landing on the trampoline pad, and plaintiff cannot recover unless Mack’s injury
was otherwise attributable to defendant’s breach of its common law duties. MCL 691.1736.
The common law regarding recreational activity was provided in Ritchie-Gamester v City
of Berkley, 461 Mich 73, 87; 597 NW2d 517 (1999): “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.” Although not
applicable to this case, the Ritchie-Gamester case concerned multiple participants, and the Court
concluded that “coparticipants in a recreational activity owe each other a duty not to act
recklessly.” Id. at 95. Regardless, the common law establishes that defendant did not breach any
of its duties because Mack accepted the risks inherent in trampolining. Id. at 87. Plaintiff signed
the waiver on his behalf, and he was made aware of the safety rules.
Therefore, there is no genuine issue of material fact that the risks associated with
trampolining were foreseeable, Mack accepted those risks, plaintiff’s claim for ordinary
negligence fails, and summary disposition in favor of defendant was proper. This conclusion
renders discussion of defendant’s alternate theory for affirming based on premises liability
unnecessary, as well as plaintiff’s spoliation argument.
Affirmed.
/s/ Kathleen Jansen
/s/ Brock A. Swartzle
1
¶ 7.5.3 provides:
Except for necessary seams, the frame padding, where required, shall cover
the top surface of the frame, be wide enough to completely cover the top surface of
the suspension system including frame, and D rings at rest.
¶ 7.11.3 provides:
The impact attenuation material shall cover the entire top surface of the
frame and be wide enough to completely cover the entire top surface of the
suspension system.
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