JACQUELINE ANN RECKLING V PONTIAC 358 INC
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STATE OF MICHIGAN
COURT OF APPEALS
JACQUELINE ANN RECKLING,
UNPUBLISHED
January 5, 1999
Plaintiff-Appellant,
v
No. 205581
Oakland Circuit Court
LC No. 96-516529 NO
PONTIAC 358 INC. d/b/a THE ULTIMATE
SPORTS BAR AND GRILL,
Defendant-Appellee.
Before: Holbrook, Jr., P.J., and O’Connell and Whitbeck, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(8) and (10). We affirm.
I. Basic Facts And Procedural History
Plaintiff participated in an arm wrestling contest sponsored by defendant. Defendant hired the
referee, a patron, paid him $50 and provided him with free drinks. On the night in question, plaintiff arm
wrestled two women. Plaintiff defeated her first opponent, possibly suffering some muscle stress in the
process. Plaintiff’s second opponent, however, was muscular and two inches taller than plaintiff.
During the second match, plaintiff’s opponent allegedly stepped on the lower supports of the wrestling
table and moved her shoulders across the centerline of the table. After her opponent raised herself out
of her chair for a few minutes, plaintiff’s humerus bone broke.
Plaintiff filed a premises liability lawsuit for personal njuries against defendant, alleging the
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individual who defendant chose to referee the contest failed to stop, prevent or otherwise intervene in
the arm wrestling match when the referee should have known to do so. Pursuant to the discovery
order, discovery closed in April of 1997. Defendant filed its motion for summary disposition in May of
1997. During oral argument on the motion, the trial court asked if both parties were satisfied with their
briefs. In response to defendant’s counsel’s request, the trial court allowed defendant to file a
supplemental brief. Defendant filed its supplemental brief in June of 1997, and attached to its
supplemental brief, the affidavit of a purported expert on arm wrestling and a list entitled “Armsports
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Rules and Regulations.” In the affidavit, the purported expert averred that if a competitor lifts her feet
from the ground during an arm wrestling match, the competitor is violating a rule intended solely to
preserve the integrity of the game and not to protect the safety of the competitors. Plaintiff filed a
supplemental reply brief in June of 1997 in which she asserted that she did not believe the assertions
contained in the purported expert’s affidavit. The trial court granted defendant’s motion for summary
disposition pursuant to MCR 2.116(C)(8) and (10) in July of 1997.
II. Standard of Review
A. Discovery Violations
This Court reviews for an abuse of discretion the trial court’s decision whether to impose
sanctions for discovery violations. Beach v State Farm Mutual Automobile Ins Co, 216 Mich App
612, 618; 550 NW2d 580 (1996).
B. Summary Disposition Under MCR 2.116(C)(8)
MCR 2.116(C)(8) permits summary disposition when the “opposing party has failed to state a
claim on which relief can be granted.” A motion for summary disposition brought under MCR
2.116(C)(8) tests the legal sufficiency of a claim to determine whether the opposing party’s pleadings
allege a prima facie case. Smith v Kowalski, 223 Mich App 610, 612-613; 567 NW2d 463 (1997).
This Court reviews a motion under MCR 2.116(C)(8) de novo to determine if the claim is so clearly
unenforceable as a matter of law that no factual development could establish the claim and justify
recovery. Smith, supra. In a negligence action, summary disposition under MCR 2.116(C)(8) is
appropriate if it is determined that, accepting the alleged facts, the defendant did not owe a duty to the
plaintiff as a matter of law. Smith, supra at 613.
C. Summary Disposition Under MCR 2.116(C)(10)
MCR 2.116(C)(10) permits summary disposition when “[e]xcept as to the amount of damages,
there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” This Court considers the factual support for the claim, giving the benefit
of any reasonable doubt to the nonmoving party, to determine whether a record might be developed
which might leave open an issue upon which reasonable minds could differ. Portelli v I. R. Const
Products Co, Inc, 218 Mich App 591, 596; 554 NW2d 591 (1996). When deciding a motion for
summary disposition under MCR 2.116(C)(10), a court must consider the pleadings, depositions,
affidavits, admissions and other documentary evidence available to it. Foster v Cone-Blanchard
Machine Co, 221 Mich App 43, 48; 560 NW2d 664 (1997). This Court reviews the grant of
summary disposition pursuant to MCR 2.116(C)(10) de novo. McGuirk Sand & Gravel, Inc v
Meridian Mut Ins Co, 220 Mich App 347, 352; 559 NW2d 93 (1996).
III. Discovery Violations
Plaintiff alleges on appeal that the trial court should not have considered the affidavit and list of
rules in ruling on defendant’s motion for summary disposition. We disagree. During the two-week
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period following the filing of defendant’s supplemental brief, plaintiff could have noticed the deposition
of the purported expert prior to the summary disposition hearing, requested an adjournment of the
summary disposition hearing until the purported expert’s deposition was completed or found her own
arm wrestling expert to dispute defendant’s expert’s claims. However, plaintiff took none of these
actions. Rather, plaintiff merely made the bare assertion in her reply to defendant’s supplemental brief
that she did not believe the assertions contained in defendant’s expert’s affidavit. Therefore, we find no
merit in this issue, and no abuse of discretion by the trial court. Beach, supra.
IV. Summary Disposition Under MCR 2.116(C)(8)
A. Introduction
Plaintiff argues that the trial court erred in granting defendant’s motion for summary disposition
based on MCR 2.116(C)(8). We again disagree.
B. The Elements Of Negligence
Plaintiff stated in her complaint that defendant was negligent in failing to hire a referee who could
have prevented plaintiff’s broken humerus. Plaintiff must prove four elements to prevail on her
negligence claim: (1) a legal duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3)
the plaintiff suffered damages; and (4) the defendant’s breach was the proximate cause of the damages
suffered. Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993); Terry v
Detroit, 226 Mich App 418, 424; 573 NW2d 348 (1997).
C. Duty
“Duty is a legally recognized obligation to conform to a particular standard of conduct toward
another.” Halbrook v Honda Motor Co, Ltd, 224 Mich App 437, 440-441; 569 NW2d 836
(1997). If, as a matter of law, a defendant owes no duty to a plaintiff, summary disposition is properly
granted under MCR 2.116(C)(8). Halbrook, supra at 441.
Duty is a “question of whether the defendant is under any obligation for the benefit of the
particular plaintiff and concerns the problem of the relation between individuals which imposes upon one
a legal obligation for the benefit of the other.” Id. at 441-442 (citations omitted). Plaintiff argues that
the following paragraphs in her complaint specifically allege defendant’s duty:
8. That Defendant selected and employed personnel to act as referee(s) to protect the
safety of the participants, maintain the integrity of the contest and ensure that the rules of
the contest were followed.
9. That the personnel that Defendant selected and employed to act as referee(s) of said
contest failed to stop, prevent or otherwise intervene in the match between Plaintiff and
the other as yet unidentified individual when the necessity of doing so was known or
should have been known to said personnel.
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We find that plaintiff failed to establish in these paragraphs that defendant owed her a duty. Plaintiff
consented by her participation in the arm wrestling match to the risk of events such as a broken arm,
which are known, apparent and are reasonably foreseeable. Defendant did not have a duty to ensure
that plaintiff’s humerus did not break. Plaintiff did not allege that her opponent engaged in criminal
activity. In fact, plaintiff testified that her opponent was not trying to injure her. Therefore, defendant
did not have a duty to protect plaintiff from the events leading to her broken humerus.
D. Assault And Battery
Plaintiff argues that her opponent committed assault and battery. Merchants can be liable in tort
for failing to take reasonable measures to protect their invitees from harm caused by the criminal acts of
third parties. Mason v Royal Dequindre, Inc, 455 Mich 391, 393; 566 NW2d 199 (1997). “The
harm must be foreseeable to an identifiable invitee and preventable by the exercise of reasonable care.”
Id. To show assault and battery in this context, plaintiff must also show that defendant intended to injure
her. See CJI2d 17.2. This is a specific intent crime. People v Lardie, 452 Mich 231, 264; 551
NW2d 656 (1996). There is no showing, circumstantial or otherwise, that plaintiff’s opponent intended
to break plaintiff’s arm or otherwise injure her. Merely because her opponent may have leaned over the
centerline of the table or raised her feet from the ground, without more, does not show that she intended
to physically harm plaintiff.
Moreover, participants may be held to have consented, by their participation, to injury-causing
events which are known, apparent or reasonably foreseeable. Higgins v Pfeiffer, 215 Mich App 423,
426; 546 NW2d 645 (1996). However, they are not deemed to have consented to acts which are
reckless or intentional. Id. Here, plaintiff was an adult and was not compelled to enter the arm
wrestling contest for work or for any other overriding or substantial motivation. She chose to
participate in a sport where the risk of an arm injury is inherent.
E. Amendment Of The Complaint
Plaintiff contends that she should have been allowed to amend her complaint in the lower court,
even though no request was made. In our opinion, amendment of the pleadings would be futile since no
factual development could establish the claim and justify recovery. Even if the trial court had allowed
plaintiff to amend her complaint to allege that her opponent committed a criminal activity and defendant
had a duty to protect her from it, the amendment would be futile since there is no factual evidence to
support it.
V. Summary Disposition Under MCR 2.116(C)(10)
Plaintiff asserts that there were genuine issues of material fact that the trial court should have
allowed to go to the jury. Once again, we disagree. Even assuming that the referee had a duty toward
plaintiff to enforce the rules of arm wrestling by requiring plaintiff’s opponent to remain seated, plaintiff
did not produce any evidence to demonstrate that this was the proximate cause of her broken humerus.
The only evidence that has been produced in the lower court was from defendant and this evidence
showed that plaintiff’s broken humerus was unrelated to plaintiff’s opponent placing her feet on the table
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support. Moreover, even if defendant had provided a referee that would have instructed plaintiff’s
opponent to return to her seat the moment plaintiff’s opponent raised herself off her chair, it is pure
speculation as to whether plaintiff’s opponent actually would have returned to her seat prior to breaking
plaintiff’s humerus.
An event may be one without which a particular injury would not have
occurred, but if it merely provided the condition or occasion affording opportunity for
the other event to produce the injury, it is not the proximate cause thereof. Negligence
which merely makes possible the infliction of injuries by another, but does not put in
motion the agency by which the injuries are inflicted, is not the proximate cause thereof.
Causes of injury which are mere incidents of the operating cause, while in a sense
factors, are so insignificant that the law cannot fasten responsibility upon one who may
have set them in motion. [Singerman v Municipal Service Bureau, Inc, 455 Mich
135, 145 (Weaver, J., joined by Boyle and Riley, JJ.), 146 (Mallett, C.J., joined by
Brickley and Cavanagh, JJ.) (agreeing with this part of Justice Weaver’s opinion); 565
NW2d 383 (1997), quoting 57A Am Jur 2d, Negligence, § 473, pp 454-455.]
Therefore, the competency, or the lack thereof, of the referee provided by defendant was not a
proximate cause of plaintiff’s broken humerus.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Peter D. O’Connell
/s/ William C. Whitbeck
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