JULIE NEAL V TERRY WILKES
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 20, 2004
JULIE NEAL,
Plaintiff-Appellee,
v
No. 122498
TERRY WILKES,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We
defendant
granted
is
recreational
leave
exempt
land
use
to
appeal
from
act
to
liability
(RUA),
MCL
consider
pursuant
whether
to
324.73301(1),
the
for
injuries plaintiff sustained while riding an all-terrain
vehicle (ATV) on defendant’s property.
granted
defendant’s
motion
for
The trial court
summary
disposition,
concluding that the RUA bars plaintiff’s cause of action
against defendant.
The Court of Appeals reversed, holding
that defendant is not exempt from liability for injuries
that occurred to plaintiff while riding an ATV on the mowed
portion
pertains
of
to
defendant’s
injuries
undeveloped land.”
backyard
that
because
occur
on
the
“large
RUA
only
tracts
of
Because there is nothing in the RUA
that indicates that it pertains only to “large tracts of
undeveloped land,” we reverse the judgment of the Court of
Appeals and reinstate the trial court’s order of summary
disposition in favor of defendant.
I. FACTS
AND
PROCEDURAL HISTORY
Plaintiff injured her back while riding as a passenger
on defendant’s ATV, which was being driven by defendant’s
brother
on
Dimondale.1
defendant’s
property
in
the
village
of
When defendant’s brother drove over an uneven
area of defendant’s lawn, plaintiff was bounced on the ATV,
causing
her
to
suffer
injuries
to
her
lower
back.
Defendant’s property is an eleven-acre lot that is zoned
residential.
Although
portions
of
the
lot
are
wooded,
plaintiff was injured while riding on the mowed portion of
defendant’s backyard.
The trial court granted defendant’s
motion for summary disposition on the basis that the RUA
bars
plaintiff’s
cause
of
action
1
against
defendant.
An “ATV” is defined as a “3- or 4-wheeled vehicle
designed for off-road use that has low-pressure tires, has
a seat designed to be straddled by the rider, and is
powered by a 50cc to 500cc gasoline engine or an engine of
comparable size using other fuels.” MCL 324.81101(a).
2
However, on the basis of this Court’s decision in Wymer v
Holmes, 429 Mich 66, 79; 412 NW2d 213 (1987), that the RUA
only applies to "large tracts of undeveloped land," the
Court
of
continued
Appeals
reversed
proceedings.2
and
After
remanded
this
Court
the
case
for
directed
the
parties to present oral argument on whether to grant the
application
or
take
other
action
permitted
by
MCR
7.302(G)(1),3 and having heard such argument, we granted
defendant’s application for leave to appeal.4
II. STANDARD
OF
REVIEW
At issue in this case is the proper interpretation of
MCL 324.73301(1).
The proper interpretation of a statutory
provision is a question of law that this Court reviews de
novo.
Morales v Auto-Owners Ins Co, 469 Mich 487, 490; 672
NW2d 849 (2003).
Likewise, a trial court’s ruling on a
summary disposition motion is a question of law that this
Court reviews de novo.
Schmalfeldt v North Pointe Ins Co,
469 Mich 422, 426; 670 NW2d 651 (2003).
III. ANALYSIS
The RUA, MCL 324.73301(1), provides:
2
Unpublished opinion per curiam, issued September 17,
2002 (Docket No. 230494).
3
469 Mich 870 (2003).
4
469 Mich 936 (2003).
3
Except
as
otherwise
provided
in
this
section, a cause of action shall not arise for
injuries to a person who is on the land of
another without paying to the owner, tenant, or
lessee of the land a valuable consideration for
the
purpose
of
fishing,
hunting,
trapping,
camping,
hiking,
sightseeing,
motorcycling,
snowmobiling, or any other outdoor recreational
use or trail use, with or without permission,
against the owner, tenant, or lessee of the land
unless the injuries were caused by the gross
negligence or willful and wanton misconduct of
the owner, tenant, or lessee.
In Wymer, the plaintiff’s decedent suffered injuries
while swimming on the defendants’ property.
held
that
the
plaintiff’s
apply
to
defendants
injuries
large
could
because
tracts
of
outdoor recreational uses.
be
“the
held
[RUA]
undeveloped
This Court
liable
was
land
for
intended
suitable
the
to
for
Urban, suburban, and subdivided
lands were not intended to be covered by the RUA.”
Wymer,
supra at 79.
Defendant contends that our decision in Wymer should
be
overruled
because
language of the RUA.
it
is
inconsistent
We agree.
with
the
plain
“[O]ur primary task in
construing a statute, is to discern and give effect to the
intent of the Legislature.”
Sun Valley Foods Co v Ward,
460 Mich 230, 236; 596 NW2d 119 (1999).
“The words of a
statute provide ‘the most reliable evidence of its intent
. . . .’”
Id., quoting United States v Turkette, 452 US
576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981).
4
Although
the Wymer Court noted that its task was to ascertain the
legislative
intent,
it
failed
to
recognize
that
the
language of the statute is the best source for determining
legislative intent.
Instead, Wymer found it “reasonable to
assume that the Michigan statute has the similar general
purpose of similar acts in other jurisdictions . . . .”5
Wymer, supra at 77.
That purpose being to “open[] up and
mak[e] available vast areas of vacant but private lands to
the
use
tourism.”
of
the
general
public”
in
order
to
Id. at 78, quoting Thomas v Consumers Power Co,
58 Mich App 486, 495-496; 228 NW2d 786 (1975).
were
the
“promot[e]
Legislature’s
purpose,
it
could
have
If that
used
the
words “vacant or undeveloped land of another,” rather than
the words “the lands of another.”6
5
It is impossible for us to determine whether these
other acts are indeed “similar” to Michigan’s act in any
particular respect because Wymer failed to cite any of
these “similar acts.”
6
Immediately before Wymer, supra, stated that the
purpose of the RUA is to make available to the public “vast
areas of vacant but private lands,” id. at 78, it asserted
that the purpose of the RUA is “to encourage owners of land
to make land and water areas available to the public for
recreational purposes by limiting their liability toward
persons entering thereon for such purposes.”
Id. at 77.
Although we agree that the purpose of the RUA is to
encourage owners of private land to make their land
available to the public, we can find no basis to conclude
(continued…)
5
Before Wymer, in Winiecki v Wolf, 147 Mich App 742,
745;
383
injured
NW2d
backyard,
while
precluded
the
119
(1985),
playing
Court
plaintiff’s
of
in
with
which
“land
Appeals
action
the
skis”
in
concluded
against
plaintiff
defendants’
that
the
was
the
RUA
defendants,
stating:
[The RUA], as the trial court has already
observed, is clear and unambiguous.
Plaintiff
was a person on the lands of another, without
paying a consideration, for the purpose of an
outdoor recreational use.
The statute offers
nothing
on
its
face
excluding
from
its
application the backyard of residential property.
If the Legislature did not intend the statute to
apply to parcels of land this size, it was within
its power to insert words limiting the statute’s
application, e.g., to lands in their natural
state. As we, however, are constrained to apply
the statute as written, we cannot say that the
trial court erred in relieving defendants of
liability based on the recreational use statute.
This understanding of the RUA is truer to the language of
the RUA than is the Wymer Court’s interpretation of the
RUA.
There is absolutely no indication in the language of
the RUA that the Legislature intended its application to be
limited to vacant or undeveloped lands.
As the Court of
Appeals in the instant case stated, “[a]lthough nothing in
the statutory language indicates that the statute is not
(…continued)
that the purpose of the RUA is to encourage only owners of
vast areas of vacant private land in this regard.
6
applicable to the backyards of residential property such as
defendant’s, the statute has been construed to apply ‘to
large
tracts
recreational
subdivided
omitted).7
of
undeveloped
uses,’
lands
.
not
.
.
land
to
.’”
suitable
‘[u]rban,
Slip
op
for
outdoor
suburban,
at
2
and
(citations
Because this construction is, as the Court of
Appeals itself recognized, not supported by the statutory
language, we are compelled to abandon this construction and
overrule Wymer.8
The RUA makes no distinction between large tracts of
land
and
small
tracts
of
developed
land,
vacant
land
suitable
for
outdoor
land,
and
recreational
undeveloped
occupied
uses
and
land
land,
land
and
land
not
suitable for outdoor recreational uses, urban or suburban
land and rural land, or subdivided land and unsubdivided
7
This language suggests that the Court of Appeals
might well have reached a different conclusion in this case
had it not been bound by Wymer.
8
Although we recognize the importance of stare
decisis, we conclude that it is appropriate to overrule
Wymer because it is clearly inconsistent with the language
of the RUA and, thus, was wrongly decided. Further, there
are
no
relevant
"reliance"
interests
involved
and
overruling
Wymer
would,
therefore,
not
produce
any
“practical real-world dislocations.”
See Robinson v
Detroit, 462 Mich 439, 465-466; 613 NW2d 307 (2000).
7
land.9
To introduce such distinctions into the act is to
engage in what is essentially legislative decision-making.
The RUA simply states that an owner of land is not liable
to a person who injures himself on the owner’s land if that
person has not paid for the use of the land and that person
was using the land for a specified purpose,10 unless the
injuries were caused by the owner’s gross negligence or
willful and wanton misconduct.
The statute contains no
limitation on the type of land involved, but rather applies
to specified activities that occur “on the land of another
. . . .”
MCL 324.73301(1).
That is, the act limits its
application to specified activities, but it does not limit
its application to any particular type of land.
Therefore,
an owner is not liable to a nonpaying outdoor recreational
user of his land, unless the user’s injuries are caused by
9
We disagree with the dissent’s assertion that an
“urban residential backyard” is not a natural resource.
Post at 4 (emphasis in original). Rather, in our judgment,
land is a natural resource whether it is urban or rural,
residential or non-residential, someone’s backyard or a
state park. See Random House Webster’s College Dictionary
(1991)(defining “natural resources” as “the natural wealth
of a country, consisting of land . . . .”).
10
We use the terms “specified purpose” and “specified
activity” throughout this opinion as a summary phrase for
describing “fishing, hunting, trapping, camping, hiking,
sightseeing, motorcycling, snowmobiling, or any other
outdoor recreational use or trail use . . . .”
See MCL
324.73301(1).
8
the
owner’s
gross
negligence
or
willful
and
wanton
misconduct.11
11
Plaintiff and the dissent argue that the fact that
the Legislature amended the RUA after Wymer was decided,
but did not amend the language at issue here, means that
the Legislature must have agreed with the Wymer Court’s
interpretation of the RUA.
However, as we recently
explained in People v Hawkins, 468 Mich 488, 507-510; 668
NW2d 602 (2003), neither “legislative acquiescence” nor the
“reenactment doctrine” may “be utilized to subordinate the
plain language of a statute.”
“Legislative acquiescence”
has been repeatedly rejected by this Court because
“Michigan courts [must] determine the Legislature’s intent
from its words, not from its silence.”
Donajkowski v
Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999).
Although, where statutory language is ambiguous, the
reenactment doctrine
may be a more useful tool of
construction, “[i]n the absence of a clear indication that
the Legislature intended to either adopt or repudiate this
Court’s
prior
construction,
there
is
no
reason
to
subordinate
our
primary
principle
of
construction—to
ascertain the Legislature’s intent by first examining the
statute’s language—to the reenactment rule.”
Id. at 508509.
The
dissent
concludes
that
the
fact
that
the
Legislature amended § 73301(2) of the RUA to apply to “land
of any size, including, but not limited to, urban,
suburban, subdivided, and rural land,” but did not
similarly amend § 73301(1) is a “clear indication” of its
intentions.
Post at 6.
The dissent is correct that the
amendment of § 73301(2) represents a clear indication of
intentions. It is a clear indication that the Legislature
intended § 73301(2) to apply to “land of any size
including, but not limited to, urban, suburban, subdivided,
and rural land.”
However, contrary to the dissent’s
assertion, it is
not a clear indication that the
Legislature intended § 73301(1) to only apply to “large,
undeveloped tracts of land.”
Post at 5, 6 n 2.
Section
73301(1) of the RUA refers to “the land of another.”
“Land” is defined as “any part of the earth’s surface . . .
not covered by a body of water.”
Random House Webster’s
(continued…)
9
The dissent mischaracterizes our opinion by stating
that
our
“interpretation
eliminates
the
liability
of
a
landowner, tenant, or lessee when a person who does not pay
consideration
and
recreational
activity
(emphasis
in
suggestion,
participates
is
injured
original).
the
recreational
who
RUA
.
.
Contrary
does
in
.
any
.”
to
Post
the
not
apply
to
Rather,
activity.
outdoor
it
only
at
3
dissent’s
any
outdoor
applies
to
“fishing, hunting, trapping, camping, hiking, sightseeing,
motorcycling,
snowmobiling,
recreational use . . . .”
or
any
other
MCL 324.73301(1).
outdoor
Under the
statutory construction doctrine known as ejusdem generis,
where a general term follows a series of specific terms,
the general term is interpreted “to include only things of
the
same
kind,
specifically
Resources,
class,
character,
enumerated.”
464
Mich
711,
Huggett
718-719;
or
nature
as
those
v
Dep’t
of
Natural
629
NW2d
915
(2001).
Therefore, the language “other outdoor recreational use”
must
be
interpreted
to
include
only
those
outdoor
(…continued)
College Dictionary (1991).
Section 73301(1) unambiguously
applies to “land,” and “a court may read nothing into an
unambiguous statute.”
Roberts v Mecosta Co Gen Hosp, 466
Mich 57, 63; 642 NW2d 663 (2000). Therefore, we reject the
dissent’s view that the word “land” in § 73301(1) means
only “large, undeveloped tracts of land.” Post at 5.
10
recreational uses “of the same kind, class, character, or
nature,”
id.,
hiking,
sightseeing,
. . . .”
as
“fishing,
hunting,
motorcycling,
MCL 324.73301(1).12
trapping,
[and]
camping,
snowmobiling
While the dissent apparently
believes that jump-roping and playing hopscotch, pin-thetail-on-the-donkey, shuffleboard, and horseshoes are of the
"same
kind,
hunting,
class,
character,
trapping,
or
camping,
nature”
as
hiking,
motorcycling, and snowmobiling . . . .”
“fishing,
sightseeing,
post at 3, 6 n 2,
9, we see no need to address these or any other activities
that are not at issue in this case.
In this case, plaintiff was injured “on the land of
another
without
paying
to
the
owner
.
.
.
a
valuable
consideration for the purpose of . . . an[] . . . outdoor
12
The dissent uses the doctrine of ejusdem generis to
conclude that the RUA only applies to “large undeveloped
tracts of land.” Post at 5. As noted above, the doctrine
of ejusdem generis, applies where a general term follows a
listing of several specific terms.
The RUA uses the
general term “land.”
The dissent applies the doctrine of
ejusdem generis to define the term “land.”
However, the
term “land” does not follow a listing of specific terms.
Therefore, while it is appropriate to apply the doctrine of
ejusdem generis to “other recreational uses” because it
follows a listing of several specific types of recreational
uses, it is not appropriate to apply the doctrine of
ejusdem generis to “land” because “land” does not follow a
listing of several specific types of land.
11
recreational use . . . .”13
Id.
Plaintiff does not contest
the fact that riding an ATV on another’s land is an outdoor
recreational use of another’s land within the meaning of
the RUA.
There is no evidence that plaintiff’s “injuries
were caused by the gross negligence or willful and wanton
misconduct of the owner . . . .”14
Id.
Thus, pursuant to
13
Plaintiff argues in the alternative that the RUA
does not apply because plaintiff was not on defendant’s
property for the "purpose" of an outdoor recreational use,
but, rather, was on defendant’s property for the "purpose"
of a social visit.
In other words, plaintiff argues that
the RUA only applies to individuals who enter upon land
with the specific intent of using the land for a specified
purpose; it does not apply to individuals who enter the
land for some other purpose, such as a social visit, and
who, incidentally to this purpose, subsequently use the
land for a specified purpose.
We disagree.
Plaintiff,
like the Court in Wymer, is adding words to the act that
simply are not there. The RUA states that an owner of land
is not liable for injuries to a person who is "on the
[owner’s] land” “for the purpose of” a specified activity.
Nothing in the act’s language limits its application to
individuals who enter the land for the purpose of a
specified activity.
Rather, the act clearly applies to
individuals who, at the time of the injury, are on the land
of another for a specified purpose. One’s initial purpose
for entering the land is not relevant.
14
Plaintiff contends that defendant should be held
liable for plaintiff’s injuries even if the RUA does apply
because plaintiff’s injuries were caused by defendant’s
gross
negligence
or
willful
and
wanton
misconduct.
Although plaintiff alleged in her complaint that her
injuries were caused by defendant’s negligence, nowhere in
her complaint does she allege that her injuries were caused
by defendant’s gross negligence or willful and wanton
misconduct.
Moreover, even if plaintiff’s allegations are
accepted as true, i.e., that defendant knew of the dangers
(continued…)
12
the RUA, defendant owner cannot be held liable for these
injuries.
IV. CONCLUSION
The RUA exempts an owner of land from liability for
injuries suffered by a person while that person is using
the owner’s land for specified purposes if that person has
not paid the owner a valuable consideration for such use,
unless
the
negligence
injuries
or
were
willful
caused
and
by
wanton
the
owner’s
gross
misconduct.
This
exemption applies to the owners of large tracts of land and
small tracts of land, undeveloped land and developed land,
vacant land and occupied land, land suitable for outdoor
recreational
uses
and
land
not
suitable
for
outdoor
recreational uses, urban or suburban land and rural land,
and
subdivided
injured
specified
land
herself
purpose
and
while
unsubdivided
using
(riding
an
land.
defendant’s
ATV)
without
Plaintiff
land
for
having
a
paid
defendant a valuable consideration for this use, and her
injuries were not caused by defendant’s gross negligence or
(…continued)
of operating an ATV with a passenger on it, and of driving
the ATV over the uneven area of his backyard, and yet
failed
to
warn
plaintiff
of
these
dangers,
these
allegations still do not support plaintiff’s contention
that her injuries were caused by defendant’s gross
negligence or willful and wanton misconduct.
13
willful and wanton misconduct.
Thus, pursuant to the RUA,
defendant cannot be held liable for plaintiff’s injuries.
Accordingly,
we
reverse
the
judgment
of
the
Court
of
Appeals and reinstate the trial court’s order of summary
disposition in favor of defendant.
Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
14
S T A T E
O F
M I C H I G A N
SUPREME COURT
JULIE NEAL,
Plaintiff-Appellee,
v
No. 122498
TERRY WILKES,
Defendant-Appellant.
_______________________________
CAVANAGH, J. (dissenting).
Today, the majority holds that the Recreational Land
Use
Act
(RUA),
MCL
324.73301(1),
applies
recreational activities on all types of land.
to
outdoor
Therefore,
the majority believes that it must overrule this Court’s
prior unanimous opinion in Wymer v Holmes, 429 Mich 66; 412
NW2d 213 (1987).
Because I believe the majority ignores
the words of the statute, the intent of the Legislature,
and the amendment of the statute by the Legislature, I must
respectfully dissent.
I.
THE RECREATIONAL LAND USE ACT AND WYMER v HOLMES
MCL
following:
324.73301
states,
in
pertinent
part,
the
(1) Except as otherwise provided in this
section, a cause of action shall not arise for
injuries to a person who is on the land of
another without paying to the owner, tenant, or
lessee of the land a valuable consideration for
the
purpose
of
fishing,
hunting,
trapping,
camping,
hiking,
sightseeing,
motorcycling,
snowmobiling, or any other outdoor recreational
use or trail use, with or without permission,
against the owner, tenant, or lessee of the land
unless the injuries were caused by the gross
negligence or willful and wanton misconduct of
the owner, tenant, or lessee.
(2) A cause of action shall not arise for
injuries to a person who is on the land of
another without paying to the owner, tenant, or
lessee of the land a valuable consideration for
the purpose of entering or exiting from or using
a Michigan trailway as designated under part 721
or
other
public
trail,
with
or
without
permission, against the owner, tenant, or lessee
of the land unless the injuries were caused by
the gross negligence or willful and wanton
misconduct of the owner, tenant, or lessee. For
purposes of this subsection, a Michigan trailway
or public trail may be located on land of any
size including, but not limited to, urban,
suburban, subdivided, and rural land.
In Wymer, supra at 79, this Court held that the RUA
“was intended to apply to large tracts of undeveloped land
suitable for outdoor recreational uses.
Urban, suburban,
and subdivided lands were not intended to be covered by the
Id.1
RUA.”
This Court read the plain language of the
statute in light of the statute’s general purpose.
1
Id. at
Wymer interpreted a former version of the RUA, but
the difference is not relevant to the issue or outcome of
this case.
2
76.
We
noted
that
the
RUA
listed
activities
that
ordinarily can be accommodated on land that is difficult to
defend
from
trespassers
and
difficult
to
make
safe
for
people invited to participate in recreational activities.
“The commonality among all these enumerated uses is that
they generally require large tracts of open, vacant land in
a relatively natural state.”
The
current
Id. at 79.
majority
now
states
that
there
“is
absolutely no indication in the language of the RUA that
the Legislature intended its application to be limited to
vacant or undeveloped lands.”
Ante at 6.
interpretation
liability
tenant,
or
eliminates
lessee
when
consideration
and
recreational
activity
tenant,
or
lessee
who
a
person
injured,
grossly
willful and wanton misconduct.
of
who
participates
is
was
the
The majority’s
in
unless
negligent
a
landowner,
does
not
any
the
or
pay
outdoor
landowner,
engaged
in
A person participating in
an outdoor recreational activity on the land of another is
now essentially treated as a trespasser.
Our citizens will
be surprised to learn that when their children go to their
friends’
homes
and
jump
rope
or
play
hopscotch,
the
landowner is now only liable for acts of gross negligence
or willful and wanton misconduct.
3
II.
While
the
THE LEGISLATURE’S INTENT
majority
contends
that
its
decision
is
dictated by the words used by the Legislature, the majority
conveniently discounts and ignores facts that are contrary
to its opinion.
Notably, the RUA is found in the Natural
Resources and Environmental Protection Act, MCL 324.101 et
seq., the purpose of which is “to protect the environment
and natural resources of the state . . . .”
1994 PA 451.
Other sections of the act deal with forest and mineral
resource development, MCL 324.701 et seq.; use of water in
mining low-grade iron ore, MCL 324.3501 et seq.; sand dune
protection and management, MCL 324.35301 et seq.; and state
forest recreation, MCL 324.83101 et seq., to name just a
few.
It
is
highly
unlikely
that
an
urban
residential
backyard was among the state’s natural resources considered
in the RUA.
Further, the doctrine of ejusdem generis also supports
the conclusion reached in Wymer and confirms the folly of
the majority’s interpretation.
This Court explained the
doctrine in Sands Appliance Servs, Inc v Wilson, 463 Mich
231, 242; 615 NW2d 241 (2000):
“[Ejusdem generis] is a rule whereby in a
statute
in
which
general
words
follow
a
designation of particular subjects, the meaning
4
of the general words will ordinarily be presumed
to be and construed as restricted by the
particular designation and as including only
things of the same kind, class, character or
nature
as
those
specifically
enumerated.”
[Quoting People v Brown, 406 Mich 215, 221; 277
NW2d 155 (1979).]
The
camping,
RUA
refers
hiking,
to
“fishing,
sightseeing,
hunting,
motorcycling,
trapping,
snowmobiling,
or any other outdoor recreational use or trail use . . . .”
MCL 324.73301(1).
The activities described in the statute
are all activities that take place on large, undeveloped
tracts
of
land.
With
the
exception
of
house
hunting,
bargain hunting, and the occasional actions of Elmer Fudd
in a Bugs Bunny cartoon, hunting is an activity that is
actually
When
prohibited
the
in urban and suburban neighborhoods.
Legislature
wrote
about
snowmobiling,
it
is
doubtful that it was referring to riding a snowmobile back
and
forth
carnival
in
a
shooting
residential
game.
backyard
The
fact
like
that
a
the
duck
at
a
Legislature
listed activities that can only be accomplished on large,
undeveloped tracts of land indicates that it did not intend
for the statute to cover residential lawns.2
2
The majority improperly characterizes my use of the
doctrine of ejusdem generis. Because the majority ignores
the Legislature’s intent, I use the doctrine to examine the
types of activities the Legislature meant to include when
(continued…)
5
Finally, in support of its conclusion that § 73301(1)
applies
to
Legislature
all
land,
“could
the
have
majority
used
the
states
words
that
the
‘vacant
or
undeveloped land of another’” in § 73301(1) if the RUA was
only meant to apply to vast areas of land.
Ante at 5.
This, however, ignores the fact that the Legislature has
shown in § 73301(2) that it knows how to use clear wording
when it wants the statute to apply to all land.
In §
73301(2) of the statute, the Legislature used the phrasing
“land of any size including, but not limited to, urban,
suburban, subdivided, and rural land.”
admits
that
this
is
a
“clear
The majority even
indication”
of
the
Legislature’s intent for § 73301(2) to apply to land of any
size.
Ante at 9 n 11.
If the Legislature meant for both
subsections of the statute to apply to all land of any
size,
then
it
would
not
have
chosen
to
use
different
phrasing to mean the exact same thing.
(…continued)
it used the phrase “any other outdoor recreational use.” A
proper use of ejusdem generis leads to the conclusion that
the activities covered by the statute are only those
engaged in on large, open tracts of land, consistent with
Wymer’s interpretation of the statute.
While I do not
believe that the Legislature meant to include activities
such as a rousing game of shuffleboard or horseshoes, the
majority’s strained reading of the statute now covers
activities such as those.
6
III.
Under
reenacts
the
a
THE REENACTMENT RULE
reenactment
statute
rule,
without
“[i]f
modifying
a
a
legislature
high
court’s
practical construction of that statute, that construction
is implicitly adopted.”
People v Hawkins, 468 Mich 488,
519; 668 NW2d 602 (2003) (CAVANAGH, J., dissenting), citing
28 Singer, Statutes and Statutory Construction (2000 rev),
Contemporaneous
Construction,
§
49.09,
pp
103-112.
The
Legislature “is presumed to be aware of an administrative
or judicial interpretation of a statute and to adopt that
interpretation when it [reenacts] a statute without change
. . . .”
Lorillard, a Div of Loew’s Theatres, Inc v Pons,
434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 40 (1978). “The
reenactment rule differs from the legislative-acquiescence
doctrine in that the former canon provides ‘prima facie
evidence of legislative intent’ by the adoption, without
modification,
of
a
statutory
provision
received judicial interpretation.”
that
had
already
Hawkins, supra at 488,
quoting Singer at 107.
The
amendments
majority
of
the
chooses
RUA
to
dismiss
because
they
the
are
indication” of the Legislature’s intent.
Legislature’s
not
“clear
But the actions
of the Legislature could not be much clearer.
7
a
After this
Court’s decision in Wymer, the Legislature twice amended
the RUA, yet the Legislature did not address the alleged
“error”
in
Wymer.
Notably,
the
Legislature
amended
§
73301(2) of the statute to indicate that it applied to
“land of any size, including, but not limited to, urban,
suburban, subdivided, and rural land.”
The Legislature did
not incorporate this same language in § 73301(1).
If this
Court’s decision in Wymer were incorrect, the Legislature
could
have
resolved
this
“error”
by
adding
the
language to subsection 1 as it did to subsection 2.
amending
the
statute,
the
Legislature
stated
subsection 2 applied to “land of any size . . . .”
the
Legislature
did
not
make
a
similar
same
In
that
Because
amendment
of
subsection 1, the Legislature’s manifest intent that Wymer
was correctly decided could not be clearer.
IV. CONCLUSION
Plaintiff’s injury occurred while at defendant’s home,
which is located in a residential subdivision.
was
injured
while
on
defendant’s
defendant had mowed that very day.
lawn;
a
Plaintiff
lawn
that
While the majority
asserts that the RUA bars plaintiff’s claim, the practical
import of the majority’s tortuous reasoning is that any
outdoor recreational activity that occurs on any parcel of
land will fall within the purview of the statute.
8
On the
basis of the words chosen by the Legislature, as well as
its actions in amending the statute, I do not believe that
our Legislature intended for the RUA to cover activities
such
as
those
that
routinely
outdoor birthday parties.3
that
a
statute
found
take
place
at
children’s
While the majority may believe
in
the
Natural
Resources
and
Environmental Protection Act was meant to cover a spirited
game of pin-the-tail-on-the-donkey, I have more faith in
the wisdom of our Legislature and more respect for the
actions it has taken.
Accordingly, I respectfully dissent and would affirm
the decision of the Court of Appeals because plaintiff’s
claim is not barred by the Recreational Land Use Act.
Michael F. Cavanagh
Marilyn Kelly
3
Following today’s decision, people invited to such a
party, or to a neighborhood barbecue, should be forewarned
to “be sure to bring a dish (consideration) to pass.”
9
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