Kropff v. City of Monroe , 128 Mich. App. 450 ( 1983 )

128 Mich. App. 450 (1983) 340 N.W.2d 119

KROPFF
v.
CITY OF MONROE

Docket No. 65495.

Michigan Court of Appeals.

Decided August 31, 1983.

Stalburg, Bean, Laritz & Fischel, P.C. (by Armin G. Fischer), for plaintiff.

William J. Braunlich, Jr., P.C. (by Thomas P. Russow), for defendant.

Before: R.M. MAHER, P.J., and MacKENZIE and M.B. BREIGHNER,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's order granting the defendant's motion for accelerated judgment, GCR 1963, 116.1(5).

On August 11, 1978, the plaintiff was injured in a recreational softball game sponsored by the defendant. Subsequently, plaintiff brought this lawsuit, alleging that defendant was negligent in its maintenance of the ball field. Defendant then moved for an accelerated judgment on the basis of a release signed by the plaintiff. The release states in full:

"I hereby agree to play for the indicated team during the 1978 season, as provided by local rules.

"In consideration of this registration being accepted, I hereby, for myself, my heirs, executors, administrators and assignees, waive and release any all all [sic] rights and claims for damages and losses I may have against the Michigan Recreation Association and/or member units, their respective agents, representatives, successors and assigns for any and all injuries suffered by me during the life of this contract."

Considerable deposition testimony had been taken concerning the conditions surrounding the signing of the release. Following oral argument on defendant's motion, the court concluded that it could not "find that there was anything fraudulent about obtaining this release". Accordingly, the court granted the defendant's motion for accelerated judgment.

Plaintiff contends that the trial court erred in granting the defendant's motion for accelerated judgment.

GCR 1963, 116.1(5) allows a party to move for entry of judgment dismissing a claim against him on the ground that "the claim is barred because of release * * *". A motion for accelerated judgment is proper only if no material factual dispute exists between the parties. See Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981); Kelleher v Mills, 70 Mich App 360, 365; 245 NW2d 749 (1976). If a court, in ruling on a motion for accelerated judgment, engages in fact-finding, reversal is required. Baker v Detroit, 73 Mich App 67, 72; 250 NW2d 543 (1976).

In the present case, a material factual dispute existed. Plaintiff testified in her deposition that the release form was presented as a team roster, not as a release. The team manager testified in her deposition that the players were made aware that they were signing a release. Moreover, the trial court, in ruling on defendant's motion, resolved this factual dispute. It found that there was nothing "fraudulent about obtaining this release". Thus, the court erred in granting the defendant's motion for accelerated judgment.

Reversed. Costs to appellant.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.