By Lee Dryden
BridgeTower Media Newswires
DETROIT—A Michigan Court of Appeals panel ruled for the defendant in a case where his sister sued him after she was injured on a zip line in his backyard.
In Rott v. Rott, the panel agreed with the defendant’s argument that the Oakland County Circuit Court erred when it concluded “there were genuine issues of material fact as to
whether defendant acted with gross negligence or engaged in wanton and willful misconduct.”
The appeals court reversal cited the “considerable time” the defendant spent “planning, installing, enhancing, and operating the zip line.” It also mentioned how, unlike other riders, the plaintiff put her legs down to make contact with the ground before the ride was over.
The Dec. 18 unpublished per curiam opinion was issued by Judges Mark J. Cavanagh, Deborah A. Servitto and Thomas C. Cameron.
Plaintiff Doreen Rott is the sister of defendant Arthur Rott. The defendant and his neighbor, Gary Kukulka, installed the zip line on the defendant’s property about a year before the incident. She declined several invitations from her brother to ride the zip line, according to the appeals court opinion.
The plaintiff eventually decided to ride it at a dinner party after some “prodding” and watching others.
“Defendant helped plaintiff put on the zip line harness and attach to the zip line, and Kukulka was at the bottom of the hill to detach her from the zip line,” the opinion stated. “As plaintiff traversed down the zip line, she thought that her feet were too close to the ground as she approached the end.
“While still in motion, plaintiff believed ‘the ride was over’ so she put her legs down to make contact with the ground, which caused the injury at issue. Plaintiff suffered two meniscal tears in her left knee, which required restorative surgery.”
In August 2015, she filed a complaint against the defendant, claiming negligence and premises liability. The defendant claimed the Recreational Land Use Act (RUA) precluded liability, and that the danger at issue was open and obvious so he was under no obligation to warn the plaintiff.
The trial court concluded that a premises liability claim could not be sustained because the action fell under the RUA.
“Instead, the question turned on whether defendant’s installation of the zip line constituted gross negligence,” the opinion stated. “The trial court determined there were genuine issues of material fact and denied defendant’s motion for summary disposition.”
The appeals court panel disagreed with the defendant’s argument that “because the RUA requires either gross negligence or wanton and willful misconduct to sustain liability, and because plaintiff’s complaint failed to explicitly allege this conduct, summary disposition was proper under MCR 2.116(C)(8) based on the pleadings alone.”
The panel determined that “it was conceivable that plaintiff might establish that defendant engaged in gross negligence or wanton and willful misconduct, if given the opportunity to plead additional factual development.”
But the panel agreed with the defendant that “considering the affidavits and other record evidence, no question of material fact exists as to whether he was grossly negligent or engaged in wanton and willful misconduct.”
“First and foremost, the RUA is a ‘liability-limiting’ act, eliminating liability for negligence related to recreational activities,” the opinion stated, citing Ballard v. Ypsilanti Twp (1998).
“Plaintiff accepted the inherent risk associated with riding a self-installed zip line on her brother’s property. Absent gross negligence or willful and wanton misconduct on the part of defendant, plaintiff cannot recover for damages resulting from the zip line.
“Reviewing the record, nothing indicates that defendant acted with the intent to injure plaintiff,” according to the opinion. “In fact, the record demonstrated defendant’s intent to make the zip line system safe. Defendant testified that he diligently researched zip line systems prior to purchasing one appropriate for his yard. After defendant purchased the zip line in 2013, he and Kukulka, who is a mechanic, installed the zip line according to the supplied instructions.”
The defendant testified that he inspected the zip line whenever he was going to operate it. He stated that he explained to the plaintiff, as he does with all riders, about the automatic braking system.
“Defendant explained that he would get riders safely harnessed onto the zip line and Kukulka would be at the bottom to help remove the riders. Defendant testified that no other person had been hurt by placing their feet down on the ground while the ride was in motion.”
Both sides testified that the defendant did not advise the plaintiff to lift her legs at the low area. The defendant, however, believed that “it’s an automatic response to keep your feet up” while riding a zip line, according to the opinion.
“While defendant did not instruct plaintiff specifically on how to avoid the low area, it is reasonable to expect that plaintiff would have lifted her ‘knees up a little bit’ to avoid the ground, just as she had seen other riders do,” the panel stated.
“Defendant did not engage in wanton and willful misconduct as he clearly did not intend plaintiff’s injury; furthermore, his conduct did not demonstrate such an indifference to whether harm would result as to be the equivalent of a willingness that it does.”
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