SCOTT LAMP V FRED REYNOLDS
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STATE OF MICHIGAN
COURT OF APPEALS
SCOTT LAMP and MICHELLE LAMP,
FOR PUBLICATION
February 5, 2002
9:05 a.m.
Plaintiffs-Appellees,
v
No. 223346
Tuscola Circuit Court
LC No. 97-015696-NO
FRED REYNOLDS and LINDA REYNOLDS
d/b/a BAJA ACRES, M.C.,
Defendants-Appellants.
Updated Copy
April 26, 2002
Before: Cavanagh, P.J., and Doctoroff and Jansen, JJ.
CAVANAGH, P.J.
Defendants appeal as of right from a judgment in plaintiffs' favor following a bench trial
in this premises liability action involving the condition of defendants' motocross racetrack, Baja
Acres. We affirm.
In 1996, plaintiff1 Scott Lamp was a participant in a motocross race at Baja Acres. In
second place during the last lap of the race, plaintiff proceeded through a straightaway section of
the dirt racetrack and completed a jump, landing in control of his bike. However, after
apparently encountering uneven ground, plaintiff veered toward the outside perimeter of the
racetrack where the ground was smoother. Located along the edge of the track were weeds
approximately four feet tall. While traveling between forty and fifty miles an hour, within feet
from the outside edge of the racetrack and through the weeds, plaintiff struck a tree stump
causing him to sustain left knee injuries. Thereafter, plaintiffs filed the present action alleging, in
pertinent part, that defendants' failure to remove the tree stump amounted to wilful and wanton
misconduct. Following a bench trial, the lower court agreed and rendered a verdict in plaintiffs'
favor. Further, the court held that comparative negligence would not be assessed against
1
Because Michelle Lamp's loss of consortium claim is derivative, we refer to Scott Lamp as
"plaintiff."
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plaintiffs' damages award because the defense was not available in a claim based on wilful and
wanton misconduct.2
On appeal, defendants first argue that the trial court erred in denying their motion for
summary disposition with regard to plaintiffs' wilful and wanton misconduct claim. Defendants
allege that they were entitled to judgment as a matter of law because plaintiff had executed two
clear and unambiguous releases waiving any potential causes of action that might accrue while he
was participating in the motocross event. We disagree. This Court reviews de novo a trial
court's grant or denial of summary disposition. Harrison v Olde Financial Corp, 225 Mich App
601, 605; 572 NW2d 679 (1997).
It is well established in this jurisdiction that, although a party may contract against
liability for harm caused by his ordinary negligence, a party may not insulate himself against
liability for gross negligence or wilful and wanton misconduct. See Universal Gym Equipment,
Inc v Vic Tanny Int'l, Inc, 207 Mich App 364, 367-368; 526 NW2d 5 (1994), vacated in part on
other grounds, (On Rehearing), 209 Mich App 511; 531 NW2d 719 (1995); Skotak v Vic Tanny
Int'l, Inc, 203 Mich App 616, 617-618; 513 NW2d 428 (1994); Wagner v Regency Inn Corp, 186
Mich App 158, 169; 463 NW2d 450 (1990). Consequently, plaintiff 's execution of two general
releases did not automatically bar his wilful and wanton misconduct claim; therefore, the trial
court properly rejected this argument.
Next, defendants argue that the trial court erred in finding that their conduct was wilful
and wanton because the evidence did not establish their intent to harm or indifference equivalent
to a willingness that harm result. See Jennings v Southwood, 446 Mich 125, 140; 521 NW2d 230
(1994), quoting Burnett v City of Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982). We
disagree. On appeal following a bench trial, a trial court's conclusions of law are reviewed de
novo and its findings of fact are reviewed for clear error. MCR 2.613(C); Walters v Snyder, 239
Mich App 453, 456; 608 NW2d 97 (2000). "A finding is clearly erroneous when, although
evidence supports it, this Court is left with a firm conviction that the trial court made a mistake."
Featherston v Steinhoff, 226 Mich App 584, 588; 575 NW2d 6 (1997).
To prove a claim of wilful and wanton misconduct, the plaintiff must establish that the
defendant (1) knew of a situation requiring the exercise of ordinary care and diligence to avert
injury to another, (2) had the ability to avoid the resulting harm by ordinary care and diligence in
the use of the means at hand, and (3) failed to use such care and diligence to avert the threatened
danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous
to another. Taylor v Laban, 241 Mich App 449, 457; 616 NW2d 229 (2000), quoting Miller v
Inglis, 223 Mich App 159, 166; 567 NW2d 253 (1997).
2
However, the trial court noted that if this Court determined that comparative negligence was a
defense to wilful and wanton misconduct actions, it would assign twenty-five percent to
plaintiff's comparative negligence.
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In this case, the evidence showed that defendants knew about the tree stump for years,
knew that the stump was located a short distance from the outside perimeter of the racetrack, and
knew that motocross racing involved high rates of speed and that it was common for racers to
leave the track during the race. The evidence also showed that defendants did not cut the weeds
around the edges of the racetrack or around the tree stump, failed to remove the stump although
they had the equipment to remove it with little effort, failed to make the stump's presence known
to the motocross racers, and admitted that a hidden tree stump near a racetrack was a dangerous
condition that could cause serious injury. Consequently, we find no error in the trial court's
determination that defendants' conduct was wilful and wanton.
Defendants finally argue that the trial court erred in failing to reduce plaintiffs' damages
award by twenty-five percent, the degree of comparative fault attributed to plaintiff. Defendants
argue that MCL 600.2959 mandates such a reduction. We disagree. Statutory interpretation is a
question of law subject to review de novo on appeal. Crowe v Detroit, 465 Mich 1, 6; 631
NW2d 293 (2001).
This state has legislatively adopted a comparative fault system for apportioning damages
awarded in personal injury, property, and wrongful death actions. The enactment of several in
pari materia statutes,3 in particular MCL 600.6304, MCL 600.2957, and MCL 600.2959, reveals
a legislative intent to allocate liability according to the relative fault of all persons contributing to
the accrual of a plaintiff 's damages. See Wysocki v Felt, 248 Mich App 346, 364; 639 NW2d
572 (2001). The issue in this case is whether comparative fault should be assessed against a
plaintiff, pursuant to our comparative fault statutes, when a defendant's conduct was found to be
wilful and wanton. This question appears to present an issue of first impression in this state.
Well-established principles of statutory interpretation direct our attempt to give effect to
the Legislature's intent. In re Messer Trust, 457 Mich 371, 379-380; 579 NW2d 73 (1998). This
Court first looks to the specific language of the statute to discern the Legislature's intent.
Charboneau v Beverly Enterprises, Inc, 244 Mich App 33, 40; 625 NW2d 75 (2000). We must
presume that every word, phrase, and clause in the statute has meaning and avoid any
construction that would render any part of the statute surplusage or nugatory. Bieber v Keeler
Brass Co, 209 Mich App 597, 604; 531 NW2d 803 (1995). If the plain and ordinary meaning of
the statute's language is clear, judicial construction is inappropriate. Ypsilanti Housing Comm v
O'Day, 240 Mich App 621, 624; 618 NW2d 18 (2000).
3
In pari materia statutes are those that arguably relate to the same subject or that share a common
purpose and must be read together as one law, even if they were enacted on different dates.
Travelers Ins v U-Haul of Michigan, Inc, 235 Mich App 273, 279-280; 597 NW2d 235 (1999).
The comparative fault statutes at issue in this matter are in pari materia because they all relate to
the reduction of civil liability through the apportionment of fault. See Wysocki v Felt, 248 Mich
App 346, 364; 639 NW2d 572 (2001).
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Next, we consider the relevant comparative fault statutes. First, MCL 600.2957 provides,
in pertinent part:
(1) In an action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death, the liability of each person
shall be allocated under this section by the trier of fact and, subject to section
6304 [MCL 600.6304], in direct proportion to the person's percentage of fault. In
assessing percentages of fault under this subsection, the trier of fact shall consider
the fault of each person, regardless of whether the person is, or could have been,
named as a party to the action.
Second, MCL 600.2959 provides, in pertinent part:
In an action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death, the court shall reduce the
damages by the percentage of comparative fault of the person upon whose injury
or death the damages are based as provided in section 6306 [MCL 600.6306].
Third, MCL 600.6304 provides, in pertinent part:
(1) In an action based on tort or another legal theory seeking damages for
personal injury, property damage, or wrongful death involving fault of more than
1 person, including third-party defendants and nonparties, the court, unless
otherwise agreed by all parties to the action, shall instruct the jury to answer
special interrogatories or, if there is no jury, shall make findings indicating both of
the following:
(a) The total amount of each plaintiff 's damages.
(b) The percentage of the total fault of all persons that contributed to the
death or injury, including each plaintiff . . . .
(2) In determining the percentages of fault under subsection (1)(b), the
trier of fact shall consider both the nature of the conduct of each person at fault
and the extent of the causal relation between the conduct and the damages
claimed.
* * *
(8) As used in this section, "fault" includes an act, an omission, conduct,
including intentional conduct, a breach of warranty, or a breach of a legal duty, or
any conduct that could give rise to the imposition of strict liability, that is a
proximate cause of damage sustained by a party.
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After consideration of the principles of statutory construction and the relevant
comparative fault statutes, we conclude that the Legislature's intent is clear—a plaintiff,
including a plaintiff 's decedent, will be considered at fault if his conduct4 was a proximate cause
of his damages and any damages awarded must be reduced by the percentage of fault attributed to
him by the trier of fact. Consequently, before assigning a percentage of fault to a plaintiff for
apportionment purposes, the trier of fact must first conclude that the plaintiff was at fault, i.e., his
conduct was a proximate cause of his damages. A defendant attempting to mitigate his liability
through a comparative fault defense has the burden of alleging and proving that the plaintiff 's
conduct was a proximate cause of his own damages. See MCL 600.2960; MCL 600.6304(8).
To establish the requisite proximate cause between the alleged wrongful act and resulting
damages, as required when liability is at issue in any action, the defendant must prove that the
plaintiff 's conduct was both a cause in fact and a legal, or proximate, cause of his damages.5 See
Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). The plaintiff 's conduct
will be considered a cause in fact of his damages if his damages, more than likely, would not
have occurred but for his at-fault conduct. See Haliw v Sterling Heights, 464 Mich 297, 310;
627 NW2d 581 (2001); Skinner, supra at 163. If this "but for" element is established, then the
defendant must prove that, in light of the foreseeability of the consequences of the plaintiff 's atfault conduct, the plaintiff should be held legally responsible for such consequences, i.e., it is
socially and economically desirable to hold the plaintiff liable. See Haliw, supra at 310, quoting
Skinner, supra at 163; Helmus v Dep't of Transportation, 238 Mich App 250, 256; 604 NW2d
793 (1999); Wechsler v Wayne Co Rd Comm, 215 Mich App 579, 596; 546 NW2d 690 (1996).
Legal, or proximate, cause is "that which operates to produce particular consequences without the
intervention of any independent, unforeseen cause, without which the injuries would not have
occurred." Helmus, supra at 256.
In this case, the trial court held that plaintiff 's comparative fault should not be assessed
against his damages award because defendants' conduct was wilful and wanton. Although the
trial court reached the right result, it did so for the wrong reason. Here, plaintiff 's alleged at-fault
conduct consisted of him racing his motocross bike just off the outside edge of the racetrack,
through the weeds. However, it is uncontested that plaintiff 's injuries arose solely as a
consequence of him hitting an unknown, unexpected, and concealed tree stump; therefore,
defendants have failed to prove that plaintiff 's conduct was a cause in fact of his damages.
4
We use only the word "conduct" from MCL 600.6304(8) for convenience purposes.
5
For purposes of comparative fault, the standard of care applicable to the plaintiff, "while
differing in perspective, is theoretically indistinguishable" from the standard applied to determine
a defendant's liability. See Lowe v Estate Motors Ltd, 428 Mich 439, 455-456; 410 NW2d 706
(1987). Similarly, whether a plaintiff 's conduct was a proximate cause of his damages for
purposes of comparative fault is determined by the same standards used to establish a defendant's
liability.
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Further, even if there was a tenuous "but for" relationship between plaintiff 's conduct and
his damages, defendants have failed to establish that plaintiff 's conduct was a legal, or
proximate, cause of his damages. It was not foreseeable that plaintiff would strike a tree stump
as a consequence of riding just off the outside edge of the motocross racetrack, an act that,
according to the evidence, was a well-known practice in the sport of motocross racing. Because
defendants failed to prove that plaintiff 's conduct was a proximate cause of his damages, their
comparative fault defense was defeated. Accordingly, we affirm the trial court's refusal to reduce
plaintiffs' damages in accordance with our comparative fault statutes. See Detroit v Presti, 240
Mich App 208, 214; 610 NW2d 261 (2000).
While holding that a plaintiff 's comparative fault will be assessed against his damages
award only if the plaintiff 's conduct was a proximate cause of his damages, we are aware that the
trial court's reasoning has found support in other jurisdictions. It appears that there is a national
split of authority on the issue whether the nature of the defendant's underlying conduct affects the
application of comparative fault principles. Some jurisdictions have held that when a defendant's
conduct is wilful and wanton or intentional, the comparative negligence doctrine does not apply
because, generally, the defendant's conduct is not comparable to the plaintiff 's ordinary
negligence, i.e., the conduct differs in kind. See, e.g., Kellerman v Zeno, 64 Ark App 79, 88-89;
983 SW2d 136 (1998) (intentional conduct); Mansfield v Circle K Corp, 877 P2d 1130, 1136, n
16 (Okla, 1994) (wilful, wanton, or intentional conduct); Krivijanski v Union R Co, 357 Pa Super
196, 203; 515 A2d 933 (1986) (wilful or wanton misconduct); Davies v Butler, 95 Nev 763, 772;
602 P2d 605 (1979) (wilful or wanton misconduct). To the contrary, other jurisdictions have
held that such categorical labels only render distinctions without a difference, i.e., the conduct
only differs in degree, and, therefore, apply comparative negligence principles. See, e.g., Teton
Co Bd of Comm'rs v Bassett, 8 P3d 1079, 1083-1084 (Wy, 2000) (wilful and wanton misconduct
or intentional conduct); Wareing v Falk, 182 Ariz 495, 500; 897 P2d 1381 (Ariz App, 1995)
(wilful or wanton misconduct); White v Hansen, 837 P2d 1229, 1234 (Colo, 1992) (wilful and
wanton misconduct); Blazovic v Andrich, 124 NJ 90, 106-107; 590 A2d 222 (1991) (wilful and
wanton misconduct or intentional conduct).
However, our comparative fault statutes, particularly MCL 600.2957, MCL 600.2959,
and MCL 600.6304, are just that, comparative fault statutes. Although the bench and bar may
still refer to the defense as one of "comparative negligence," that description is a misnomer and
defies the true nature of the statutes as legislatively enacted. This Court may not assume that the
Legislature's use of one word or phrase over another was inadvertent. Robinson v Detroit, 462
Mich 439, 459; 613 NW2d 307 (2000). Because the statutes refer only to "fault" and the word
"negligence" is not used in any of the relevant statutes, we must deem the absence a deliberate
omission and an intent by the Legislature that all at-fault conduct, not just negligence, be within
the reach of the statutes.
Further, MCL 600.6304(8) specifically defines "fault" as "an act, an omission, conduct,
including intentional conduct, . . . that is a proximate cause of damage sustained by a party."
Consequently, the application of the comparative fault statutes in Michigan does not depend on
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the type of at-fault conduct of either a plaintiff or a defendant.6 Instead, the comparative fault
statutes are operative against each person, including a plaintiff, whose conduct is found to be a
proximate cause of the plaintiff 's damages. See MCL 600.6304(1)(b); MCL 600.6304(8). In
effect, by defining "fault" so broadly, the Legislature vaporized the skeletal remains of the longdefunct contributory negligence doctrine. That doctrine required the contributorily negligent
plaintiff to assert "wilful and wanton" or "gross negligence" claims simply to avoid the doctrine's
harsh effect of totally barring the plaintiff 's recovery of damages. See Jennings, supra at 130131; Lowe v Estate Motors Ltd, 428 Mich 439, 459-460; 410 NW2d 706 (1987); Vining v
Detroit, 162 Mich App 720, 727-728; 413 NW2d 486 (1987). Our comparative fault statutes do
not require, or permit, such linguistic maneuvering.
Consequently, under the comparative fault statutes at issue here, there will be cases in
which a plaintiff 's at-fault conduct will be compared to a defendant's wilful and wanton
misconduct or intentional conduct and the plaintiff 's damages will be reduced in proportion to
his fault, if any. This result is consistent with the goal of the "comparative negligence doctrine"
at its inception; it promotes "a fair system of apportionment of damages." Placek v Sterling
Heights, 405 Mich 638, 660; 275 NW2d 511 (1979). However, these comparative fault statutes
accomplish this goal by disavowing labels that distinguish types of at-fault conduct in favor of a
more accurate measure for determining apportionment liability—proximate cause. The clear
import of this design is that the statutes cannot be implemented by a bright-line rule but, instead,
their application is as individualized as the circumstances giving rise to a cause of action.
We are, however, cognizant of case law in this jurisdiction holding that a comparative
fault analysis is inappropriate when an intentional act causes the plaintiff 's damages. In Hickey v
Zezulka (On Resubmission), 439 Mich 408, 442; 487 NW2d 106 (1992), reh den and amended
440 Mich 1203 (1992), our Supreme Court held:
[O]ur courts and other jurisdictions do not extend comparative fault
analysis to cases where a party acted intentionally in causing harm. Rather than
apportioning fault between the parties, one of whom was only negligent and one
of whom acted intentionally, courts have placed one hundred percent of the fault
on the party whose actions were intentional.
It appears that the trial court in the present case may have relied on this exception when it
apparently concluded that wilful and wanton misconduct was the legal equivalent of an
intentional act and, therefore, refused to reduce plaintiffs' damages. However, Hickey was
decided before the 1995 tort reform legislation that included revisions of MCL 600.6304 and,
significantly, defined the term "fault" to include intentional conduct. See MCL 600.6304(8).
6
Similarly, before the Legislature's adoption of the comparative fault statutes, this Court, in
Vining v Detroit, 162 Mich App 720, 727-728; 413 NW2d 486 (1987), held that the comparative
"negligence" doctrine was applicable when a defendant's conduct was found to be wilful and
wanton.
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Because the Legislature amended MCL 600.6304 after Hickey, and did not include this
"intentional exception," it appears that the doctrine of stare decisis is inapplicable. See
Robinson, supra at 464; Brown v Manistee Co Rd Comm, 452 Mich 354, 367-368; 550 NW2d
215 (1996). Consequently, distinguishing types of at-fault conduct is no longer a proper
consideration when determining the viability of a comparative fault defense pursuant to the
statutes at issue here; therefore, we need not do so in this case.
In summary, our comparative fault statutes, particularly MCL 600.6304, MCL 600.2957,
and MCL 600.2959, mandate the allocation of liability among all persons who contributed to the
accrual of a plaintiff 's damages. These statutes do not distinguish between types of at-fault
conduct that resulted in the plaintiff 's sustaining damages. Consequently, the comparative fault
statutes apply to all persons, including the plaintiff, who are found to be at fault, i.e., whose
conduct is a proximate cause of the plaintiff 's damages. A plaintiff will be considered at fault if
a defendant proves that the plaintiff 's conduct was both a cause in fact and a legal, or proximate,
cause of his own damages. Once the at-fault persons are determined, the trier of fact assigns
percentages of fault to each person after considering the nature of each person's conduct and the
extent of the causal relation between the conduct and the resulting damages. See MCL
600.6304(1)(b); MCL 600.6304(2).
In this case, although defendants' conduct was found to be wilful and wanton, defendants
were entitled to assert and attempt to prove the affirmative defense of comparative fault.
However, because plaintiff 's alleged at-fault conduct was not a proximate cause of his damages,
the defense was defeated. Accordingly, the trial court properly entered a judgment against
defendants for the full amount of plaintiffs' damages.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Martin M. Doctoroff
/s/ Kathleen Jansen
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