BRET D HAWKINS V RANCH RUDOLPH INC
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STATE OF MICHIGAN
COURT OF APPEALS
BRET D. HAWKINS and ERIN HAWKINS,
UNPUBLISHED
September 27, 2005
Plaintiffs-Appellants,
No. 254771
Grand Traverse Circuit Court
LC No. 03-022735-NO
v
RANCH RUDOLPH, INC. and CIRCLE H
STABLES, INC.,
Defendants-Appellees.
Before: Meter, P.J., and Murray and Schuette, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the order granting defendants summary disposition.
Bret Hawkins was injured after falling off a horse during a guided trail ride conducted by
defendants. We reverse and remand.
I. FACTS
On June 18, 2002, plaintiffs, who were on their honeymoon, went to defendants’ stables
to participate in a guided horseback trail ride. Defendants offered several different types of
rides, based on age and level of experience. Plaintiffs chose the “Wrangler Ride,” which was
described by defendants’ brochure as a “walk/trot ride” and had the minimum age requirement of
eight-years-old. The ride consisted of a four-mile, single-file ride on wooded trails. Plaintiffs
chose the “Wrangler Ride” because Bret had never ridden a horse before. Before participating,
however, plaintiffs executed a release and indemnification waiver, in accordance with § 6 of the
Equine Activity Liability Act (EALA), MCL 691.1661 et seq. MCL 691.1666.
Prior to beginning the ride, defendants’ trail guide, Kate Ridge, asked all the participants
about their riding experience. Erin Hawkins indicated that she had only ridden a horse once
before when she was eleven-years-old, and Bret indicated that he had never ridden a horse. In
light of Bret’s lack of experience, Ridge assigned him “Tye,” a horse that defendants typically
assign to beginning riders, including children, because he was calm and easy to ride. Plaintiffs
were given basic instructions regarding how to stay on the horse and how to use the reins.
According to Ridge, she saddled the horses before the ride and then double-checked all the
saddles both before and after the horses were mounted. Bret claimed that after mounting Tye, he
complained to Ridge that his saddle was not securely fastened, and she checked it again. Ridge
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stated that she did not recall Bret telling her his saddle was loose before the ride and she did not
notice that it was loose while he was mounting the horse.
The ride started out at a slow walk, but after awhile, Ridge asked the participants if they
wanted to go a little faster. The group responded, “Yes,” and Ridge told them to hold on to the
saddlehorn with one hand and to put the other hand on the back of the saddle, and to yell if they
wanted to slow down. According to plaintiffs, Ridge and her horse then “bolted” into a fast, or
full-out run, and the other horses followed her lead. Both plaintiffs stated that when their horses
began running they were too surprised or shocked to yell and were just trying to hang on.
According to Bret, his saddle slid to the right and he grabbed the saddlehorn and the back of the
saddle as instructed but was still falling off his horse. He stated that his arm hit a tree so hard
that he suffered a humeral fracture. He then fell from the horse.
Defendants and Ridge denied that the horses were running. According to defendants,
midway through the ride, Ridge asked the participants if they would like to begin a “short trot.”
According to Ridge, a trot is a fast walk, “slower than a canter, and much slower than a run or
gallop.” Other experienced riders in the group characterized a trot in similar language. After
asking for but hearing no objections, defendants contended that Ridge then proceeded to trot the
horses. Defendant noted that if anyone had stated that they did not want to trot, Ridge would not
have began the trot and continued with the walk. Defendant also explained that horses are not
permitted to engage in a “fast run” during rides.
Plaintiffs filed a complaint alleging gross negligence. Defendants moved for summary
disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), arguing, in pertinent part, that given the
facts, even if there was a question of fact regarding whether defendants’ conduct amounted to
negligence, reasonable jurors could not differ that defendants’ conduct did not amount to gross
negligence. Defendant pointed out that Ridge attested that a couple seconds after commencing
the trot she heard a scream and turned around to see that Bret had dropped his reins and was
hanging on to the saddle horn with both hands, which she instructed him not to do. Ridge stated
that Bret was losing his balance and leaning far to the right and he fell off his horse after hitting a
tree branch. One of the other participants attested that he checked the saddle after the fall and it
was not loose. Defendants argued that Bret’s injuries were not the result of defendants’
negligence, but of “the inherent risk of equine activity,” his own lack of experience, and his
failure to follow Ridge’s instructions.
The trial court indicated that there was no question that plaintiffs’ allegations related to
securing the saddle and instructing the participants only amounted to negligence. With respect to
the allegation that the horses were made to run off at a high rate of speed, defendants continued
to contend that there was no question of fact because Ridge and the other experienced
participants stated that they began to trot, and the only people who said the horses began to run
were plaintiffs, who had little or no riding experience. Plaintiffs responded that the differing
accounts meant that there was a factual dispute, thereby precluding summary disposition. The
court concluded that, given plaintiffs’ lack of experience compared with the experienced
opinions of the guide and other participants, there was no genuine issue of fact that the horses
were trotting not running. The court then concluded that even if it were a high speed run,
reasonable minds could not differ that defendants’ conduct did not amount to gross negligence.
Accordingly, the court granted defendants summary disposition.
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II. STANDARD OF REVIEW
Plaintiffs now argue that the trial court erred in granting defendants summary disposition
on the issue of gross negligence. We agree. This Court reviews de novo a trial court’s ruling on
a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572
NW2d 201 (1998).
Under MCR 2.116(C)(7), a party may move for dismissal of a claim on the ground that a
claim is barred because of a release. Neither party is required to file supportive material.
Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). Any documentation that is
provided to the court, however, must be admissible evidence and must be considered by the
court. MCR 2.116(G)(5). The plaintiff’s well-pleaded factual allegations, affidavits, or other
admissible documentary evidence must be accepted as true and construed in the plaintiff’s favor,
unless contradicted by documentation submitted by the movant. Maiden, supra at 119. Under
MCR 2.116(C)(10), a party may move for dismissal of a claim on the ground that there is no
genuine issue with respect to any material fact and the moving party is entitled to judgment or
partial judgment as a matter of law. The motion tests the factual support for a claim, and when
reviewing the motion, the court must consider all the documentary evidence in the light most
favorable to the nonmoving party. Id. at 119; see also MCR 2.116(G)(4).
III. ANALYSIS
As an initial matter, plaintiffs’ testimony was admissible because it was based on their
personal observations and perceptions. MRE 602. To the extent that plaintiffs’ testimony
merely amounted to opinion, such testimony would nevertheless be admissible evidence. MRE
701. “MRE 701 allows opinion testimony by a lay witness as long as the opinion is rationally
based on the perception of the witness and helpful to a clear understanding of his testimony or a
fact in issue.” Sells v Monroe Co, 158 Mich App 637, 644-645; 405 NW2d 387 (1987). “[O]nce
a witness’s opportunity to observe is demonstrated, the opinion is admissible in the discretion of
the trial court, and the weight to be accorded the testimony is for the jury to decide.” Id. at 646647. Moreover, laypersons are permitted to testify regarding speed. Mitchell v Steward Oldford
& Sons, Inc, 163 Mich App 622, 629-630; 415 NW2d 224 (1987). Therefore, that plaintiffs
lacked experience with horses merely goes to the weight of their testimony not to its
admissibility.
The concept of gross negligence has developed in recent years, evolving from its
common law roots. The common-law rule was originally invoked in Gibbard v Cursan, 225
Mich 311; 196 NW 398 (1923), to “circumvent the harsh rule of contributory negligence[,]”
which at the time would have barred the plaintiff’s recovery. Jennings v Southwood, 446 Mich
125, 129; 521 NW2d 230 (1994). The Gibbard definition was not crafted to be a higher degree
of negligence; rather, it was simply “mere[] ordinary negligence of the defendant that follow[ed]
from the negligence of the plaintiff.” Id. at 130. In actuality it was really just “the doctrine of
last clear chance in disguise.” Id. at 132. Noting that such a construction was no longer viable
after abandonment of the doctrine of contributory negligence in favor of pure comparative
negligence and because it was not in keeping with the Legislature’s intent of limiting liability in
certain contexts, the Jennings Court renounced further application of the Gibbard gross
negligence definition. Id. at 132, 135
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Presented with the potentially arduous task of constructing a new definition of gross
negligence in the context of the emergency medical services act (EMSA), MCL 333.20901 et
seq.,1 the Jennings Court simply borrowed language from the government tort liability act
(GTLA), MCL 6911.1401 et seq. Jennings, supra at 135-136. The Court reasoned that the short
cut was permissible given that the two statutory schemes shared the same purpose of insulating
certain employees from liability for ordinary negligence. Id. at 136-137. Thus, the Court stated
that in the context of the EMSA, gross negligence should be defined as “conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.” Id. at 136; see MCL
691.1407(7)(a).
Subsequently, the definition has been employed in other Michigan statutes limiting
liability for ordinary negligence while still allowing liability for gross negligence. Xu v Gay, 257
Mich App 263, 269; 668 NW2d 166 (2003). The GTLA definition of gross negligence adopted
in Jennings, arises in statutory contexts where there is a public policy rationale for limiting
certain parties’ liability while still affording the public recourse when the parties’ conduct rises
to the level of recklessness described in the definition. See id. (citing various examples of
statutes using the same definition of gross negligence). Noting that a contractual waiver of
liability can similarly serve to insulate against ordinary negligence but not gross negligence, this
Court expanded the scope of application of the Jennings/GTLA gross negligence definition,
likewise adopting the definition to address a claim of gross negligence where the decedent signed
a waiver purporting to release a privately-owned fitness center from liability. Id. The Xu Court
concluded that summary disposition for the defendant was proper where, viewing the evidence in
the light most favorable to the plaintiff, reasonable minds could not differ that the defendant’s
mere ignorance of industry safety standards did not constitute conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury resulted to the decedent. Id. at
270-271. “Evidence of ordinary negligence does not create a question of fact regarding gross
negligence.” Id. at 271.
Here, plaintiffs executed a release and indemnification waiver, in accordance with § 6 of
the EALA. MCL 691.1666. By signing the release, plaintiffs agreed that because plaintiffs were
participants in an equine activity defendants were not liable for plaintiffs’ injury or death
resulting from an inherent risk of the equine activity. MCL 691.1666(3); MCL 691.1663.
“Inherent risk of an equine activity” is defined by the EALA as:
a danger or condition that is an integral part of an equine activity, including, but
not limited to, any of the following:
1
MCL 333.20965(1) states:
Unless an act or omission is the result of gross negligence . . . , the acts or
omissions of a medical first responder, emergency medical technician, [etc.,] . . .
do not impose liability in the treatment of a patient on those individuals or any of
the following persons . . . .
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(i) An equine’s propensity to behave in ways that may result in injury,
harm, or death to a person on or around it.
(ii) The unpredictability of an equine’s reaction to things such as sounds,
sudden movement, and people, other animals, or unfamiliar objects.
(iii) A hazard such as a surface or subsurface condition.
(iv) Colliding with another equine or object. [MCL 691.1662(f).]
However, the EALA provides exceptions to this general immunity for certain acts, including
negligence on the part of the equine professional.2 Thus, solely applying the EALA, plaintiffs’
claims of negligence and, by implication, gross negligence, would not be barred.
However, the release that plaintiffs signed specifically relieved defendants of liability for
negligence, and they were bound to the terms as agreed. Thus, in the face of a contractual
waiver of liability insulating defendants against ordinary negligence, the trial court properly
focused on whether defendants’ conduct constituted gross negligence. See Xu, supra at 269.
Accordingly, following the precedent set by Xu, in addressing this claim of gross negligence, we
2
MCL 691.1665 states:
Section 3 does not prevent or limit the liability of an equine activity
sponsor, equine professional, or another person if the equine activity sponsor,
equine professional, or other person does any of the following:
(a) Provides equipment or tack and knows or should know that the
equipment or tack is faulty, and the equipment or tack is faulty to the extent that it
is a proximate cause of the injury, death, or damage.
(b) Provides an equine and fails to make reasonable and prudent efforts to
determine the ability of the participant to engage safely in the equine activity and
to determine the ability of the participant to safely manage the particular equine.
A person shall not rely upon a participant’s representations of his or her ability
unless these representations are supported by reasonably sufficient detail.
(c) Owns, leases, rents, has authorized use of, or otherwise is in lawful
possession and control of land or facilities on which the participant sustained
injury because of a dangerous latent condition of the land or facilities that is
known to the equine activity sponsor, equine professional, or other person and for
which warning signs are not conspicuously posted.
(d) Commits a negligent act or omission that constitutes a proximate cause
of the injury, death, or damage.
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consider “whether reasonable minds could differ regarding whether defendant[s’] conduct was so
reckless as to demonstrate a substantial lack of concern for whether an injury resulted.” Xu,
supra at 269. Accord Jennings, supra at 130.
“[G]enerally, once a standard of conduct is established, the reasonableness of an
actor’s conduct under the standard is a question for the factfinder, not the court.”
Tallman v Markstrom, 180 Mich App 141, 144; 446 NW2d 618 (1989).
“However, if, on the basis of the evidence presented, reasonable minds could not
differ, then the motion for summary disposition should be granted.” Vermilya v
Dunham, 195 Mich App 79, 83; 489 NW2d 496 (1992). . . . [T]hese established
precedents form the boundaries of our review. Accordingly, our task is to review
the facts, in the light most favorable to the plaintiff, and determine the
appropriateness of summary disposition in favor of the defendant. [Jackson v
Saginaw Co, 458 Mich 141, 146-147; 580 NW2d 870 (1998).]
Viewing the evidence in the light most favorable to plaintiffs, it should be accepted as
true that after asking the trail ride participants if they wanted to speed up a little bit, Ridge then
bolted into a high-speed run – or at the very least, a ride that was too fast given plaintiffs’ lack of
experience. While the trial court concluded that Ridge’s conduct “would not be gross negligence
even if it were a high speed run,” we disagree. We conclude that viewing the evidence in the
light most favorable to plaintiffs, reasonable minds could differ regarding whether her conduct of
taking a totally inexperienced rider on a fast ride was so reckless as to demonstrate a substantial
lack of concern for whether an injury resulted.
In his dissent, our colleague Judge Murray emphasizes that the trail guide placed plaintiff
(1) on a safe horse; (2) tightened the saddle; (3) provided safety instructions; (4) started slowly;
and (5) sped up only after all riders including plaintiff agreed. We agree that the first four points
referenced above appear reasonable. However, in our collective opinion, our point of departure
from our esteemed colleague’s dissenting opinion is the trail guide’s decision to speed up the
pace when plaintiff had never ridden a horse before. For a first time rider, yelling “Whoa Nellie”
or in this instance, “Whoa Tye” hoping to slow the horse down or to obtain the trail guide’s
attention for help could be difficult. Here, reasonable minds could indeed differ as to whether
the conduct of the trail guide rose to the level of recklessness required to establish gross
negligence. The question of whether the trail guide in this case demonstrated a substantial lack
of concern for whether an injury resulted is a question of fact upon which reasonable minds
could differ. Therefore, it is appropriate for a jury to make this determination.
By participating in the horseback ride, plaintiffs agreed to undertake the inherent risk of
an equine activity. But, absent some unexpected event, Ridge was in control of the horses’
speed, as the guide riding the lead horse. And Bret’s horse “bolted” not because it was scared,
which would clearly be an inherent risk of an equine activity, but because it was following
Ridge’s lead. It cannot be disputed that she made the conscious decision to “speed things up a
little bit,” knowing that Bret lacked the requisite experience to control the animal on which he
rode. It would seem that it was indisputably an important part of Ridge’s job to look after the
safety of those placed in her care. And asking an inexperienced horseback rider whether he
objected to such a ride cannot insulate her conduct.
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Horseback riding, an activity in which people are exposed to all the inherent risks of
dealing with an animal’s individual propensities and unpredictable nature, is a dangerous activity
in and of itself. See MCL 691.1662(f). A reasonable person could conclude that Ridge’s
conduct of taking plaintiffs on a fast ride given their known lack of experience unreasonably
added to the risks of the already dangerous activity and was thus so reckless as to demonstrate a
substantial lack of concern for whether an injury resulted. Therefore, summary disposition in
this case was not appropriate.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Patrick M. Meter
/s/ Bill Schuette
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