Kenneth Bertin v. Douglas Mann
502 Mich. 603, 918 N.W.2d 707 (2018)
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Rule of Law:
Co-participants in a recreational activity owe each other a duty not to act recklessly, but this standard applies only to injuries arising from risks inherent to the activity. An 'inherent risk' is one that is reasonably foreseeable under the specific factual circumstances, rather than being determined by a court's philosophical assessment of a sport's 'essence'.
Facts:
- Kenneth Bertin and Douglas Mann were playing a round of golf together on May 22, 2013.
- On the eighth hole, Mann's shot landed on the green, while Bertin's golf ball was in the rough nearby.
- Bertin parked the golf cart 10 to 15 feet behind his ball, with Mann remaining in the passenger seat.
- After hitting his shot, Bertin began walking directly to his ball.
- Mann, believing Bertin was behind and to the right of the cart, began accelerating.
- Mann struck Bertin with the golf cart, causing Bertin to fall to the ground.
- The golf cart hit Bertin a second time, rolling over his right leg.
Procedural Posture:
- Kenneth Bertin brought an action against Douglas Mann in the Oakland Circuit Court (trial court) alleging negligence.
- Prior to trial, Bertin filed a motion in limine arguing the court should hold Mann negligent as a matter of law.
- Mann responded by arguing that the proper standard of care was 'reckless misconduct' under Ritchie-Gamester.
- The trial court denied Bertin's motion in limine but did not resolve the applicable standard of care.
- During jury instructions, Bertin proposed a negligence instruction, while Mann proposed a reckless misconduct instruction.
- The trial court concluded that reckless misconduct was the appropriate standard of care.
- At trial, the jury found that Mann's action did not constitute reckless misconduct.
- Bertin appealed to the Michigan Court of Appeals (intermediate appellate court).
- The Court of Appeals reversed the trial court's decision, holding that the ordinary-negligence standard should have been applied because golf cart risks were not inherent in the game of golf, vacated the jury verdict, and remanded the case.
- Douglas Mann (defendant-appellant) sought leave to appeal in the Michigan Supreme Court (highest court).
- The Michigan Supreme Court ordered and heard oral argument on whether to grant the application or take other action.
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Issue:
Does the reckless misconduct standard of care for co-participants in a recreational activity apply to injuries that arise from risks that are 'inherent' to the activity, and should 'inherent risk' be defined by whether the risk is reasonably foreseeable under the circumstances?
Opinions:
Majority - Justice Viviano
Yes, the reckless misconduct standard of care applies to injuries arising from risks inherent to recreational activities, and 'inherent risks' are those that are reasonably foreseeable under the circumstances, not those based on a sport's 'essence.' The Michigan Supreme Court affirmed its precedent from Ritchie-Gamester v City of Berkley, which established that co-participants in recreational activities owe each other a duty to refrain from reckless misconduct for injuries stemming from inherent risks. The Court clarified that the rationale for this limited duty is rooted in participants' voluntary subjection to certain risks, implying that the relevant risks are those they knew or should have known about. Therefore, the concept of 'inherent risk' is best defined by 'reasonable foreseeability,' which is an objective test focusing on what a reasonable participant would have foreseen under the specific circumstances, including the particular 'mechanism' of injury. The Court explicitly rejected the Court of Appeals' approach of 'philosophical essentialism,' which involved meditating on a sport's 'essence' (e.g., whether golf carts are 'essential' to golf). This method was deemed unsuitable for judicial decision-making, as judges possess no special insight into the fundamental nature of sports. The Court noted that foreseeability is a common and familiar concept in tort law and is consistent with legislative definitions of 'inherent risk' in other recreational activity statutes, which encompass risks from non-essential equipment. The assessment of foreseeability is a question of fact, and factors to consider include the specific factual circumstances of the case, the general characteristics of the participants (their relationship and experience), the general rules of the activity (which are not dispositive), any regular departures from those rules, and regulations prescribed by the venue. The case was remanded to the trial court to apply this foreseeability test.
Analysis:
This decision significantly clarifies the 'inherent risk' doctrine in Michigan, providing a more objective and judicially manageable standard for determining tort liability in recreational activities. By explicitly rejecting 'philosophical essentialism' in favor of 'reasonable foreseeability,' the Michigan Supreme Court ensures that courts will focus on practical participant expectations rather than abstract definitions of a sport's core components. This approach likely broadens the application of the reckless-misconduct standard, making it more challenging for plaintiffs to succeed on ordinary negligence claims for injuries sustained between co-participants in recreational settings, as the bar for proving recklessness is higher. Future cases will require a fact-intensive inquiry into the specific circumstances and participant knowledge regarding potential risks.
