Author(s): Peter B. Worden, Jr.

NORTHERN MICHIGAN
RECREATIONAL ACCIDENTS

An Overview of Civil Liability

COURTESY OF

PETER B. WORDEN, JR.

INTRODUCTION

To those who enjoy outdoor recreational activities, northern Michigan is a veritable
Utopia. Every year, thousands of people flock to places such as Traverse City, Petoskey,
Boyne City, or the Upper Peninsula to enjoy northern Michigan’s natural splendor and
partake in activities such as skiing, fishing, recreational boating, hunting, snowmobiling,
and golf. Some of these recreational activities are so popular in certain areas of northern
Michigan that cities are identified with them and regional economies depend on them.

Unfortunately, however, with these recreational activities comes potential liability for
all involved arising out of accidents resulting in personal injury or property damage. And
with many recreational activities the potential for accidents can be quite high. Most
recreational activities are inherently dangerous, and injuries or property damage tend to
be severe. Skiing, for instance, often involves careening downhill at high rates of speed.
Snowmobiling, recreational boating, and the operation of ORVs all involve powerful and
potentially deadly machinery. Hunting requires the use of lethal weapons. With many
participants the quality of the experience is increased by making the activity more
challenging, and increasing the challenge concomitantly increases the risks involved.
Many recreational activities, such as boating and downhill skiing, are often conducted in
areas open to large numbers of people, whose experience and ability vary greatly.
Because these activities are conducted for recreation, they are often used a social
experience and alcohol is frequently involved.

The purpose of this manual is to provide a general overview of potential liability
issues arising out of various recreational activities common in northern Michigan. While
we briefly address potential liability for other matters, such as recreational trespass, our

primary focus is on potential liability for recreational accidents.

Typically, liability for accidents that occur in recreational activities is premised on a
legal cause of action known as “negligence.” Negligence is a common-law (i.e., judge
made) cause of action that permits a person who has suffered personal injury or property
damage, called the plaintiff, to recover money damages from another person whose fault
caused or contributed to the accident, called the defendant, as compensation for the
plaintiff’s loss.

In order to recover under a negligence theory, the plaintiff must establish four things.
The first is that the defendant had an obligation to avoid creating a risk of injury to the
plaintiff. This, in legal parlance, is known as the defendant’s “duty of care.” The second
is that the defendant failed in his obligation. In legal terminology, this is called “breach” of
the duty of care. The third is that the plaintiff suffered “damages.” These generally consist
both of compensation for out-of-pocket monetary losses and compensation for emotional
or other harm. The fourth, and final, element that the plaintiff must establish is that there
is a legal nexus between the defendant’s breach of his duty of care and the plaintiff’s
damages. This is known as “causation.”

Perhaps the most important of these elements for the purposes of understanding
potential liability arising from recreational activities is the element of “duty.” The reason is
that the element of duty is set by the law, while the other elements depend for the most
part on the facts of the case. That is, there is always some provision of law, such as a
statute, administrative regulation, local ordinance, or judge-made (“common-law”) principle
that either directly dictates or gives guidance as to how one must act in a given situation
to avoid injuring others. The duty of care owed in a particular situation will depend on the

type of recreational activity involved and who the defendant is (i.e., a co-participant, a
landowner, etc). And the higher the duty is, the higher is the potential for liability because
of the increased risk that the duty will be breached.
LAND-BASED RECREATIONAL ACTIVITIES

I. GENERAL LIABILITY PRINCIPLES

A. LANDOWNERS

As a starting proposition, the potential liability of the owner of the land where the
recreational activity occurs is generally governed by the same common-law (i.e., judge
made) tort principles which govern all premises liability actions.1 However, in matters
involving recreational activities which take place out-of-doors, the Michigan Legislature has
enacted statutes which afford landowners greater protection than that afforded by the
common law. In addition, landowners who allow their land to be used for recreational
purposes can also limit their liability contractually.

In order to fully understand how these statutes and contractual methods affect a
northern Michigan landowner’s potential liability, and because the common-law may still
apply in some circumstances, a brief overview of the common-law tort principles applicable
to premises liability actions is necessary.

1. COMMON-LAW TORT LIABILITY

As a general matter, liability depends on the degree of obligation imposed upon the
landowner to protect the recreational user from harm, which in legal parlance is referred
to as the landowner’s “duty of care.” The landowner’s duty of care, in turn, depends largely
upon two factors: (1) the legal “status” of the recreational user, described below, and (2)
whether the injury arises from an activity by the landowner (for example, the operation of

a snow plow) or from a condition on the land itself (such as a building or a pond). Stated

differently, the recreational user is considered to be either a “trespasser,” a “licensee,” or
an “invitee.” A landowner then owes each category different duties with regard to the
landowner’s activities and conditions on the land.

The following is a brief overview of a landowners’ duty of care in relation to these
two factors:

a) TRESPASSERS

One who uses land for recreational purposes without the landowner’s consent has
the legal status of a “trespasser.” Of the three possible classes of plaintiff, a trespasser
is owed the least duties by a landowner.

If the landowner does not know of the trespasser’s presence, the landowner has no
duty to alter his activities for the protection of the trespasser. If the trespasser’s presence
is known or should be known to the landowner (i.e., a “known trespasser”), however, the
landowner must exercise reasonable care in his activities so as not to injure the
trespasser.2 (Where the circumstances are such that the landowner “should have known”
of the presence of the trespasser, it is said the landowner has “constructive knowledge” of
the trespasser’s presence.)

As to conditions on the land, the landowner’s only obligation is not to injure the
trespasser through what is called “wilful and wanton misconduct.”3 This phrase will be
discussed in detail below, but for here it is sufficient to say that it provides the landowner
a relatively high degree of protection from liability because it requires far more than
ordinary negligence; rather, it requires conduct that is quasi-criminal in nature and
manifests an intentional disregard for the safety of others.4

b) LICENSEES

One who uses land for recreational purposes with the landowner’s consent, but who
has not been specifically invited onto the land or paid to use the land has the legal status
of a “licensee.”5 A good example of a licensee is a social guest. The duties owed by a
landowner to a licensee are higher than those owed to a trespasser.

As to the landowner’s activities, the landowner’s duty to a licensee is the same as
with known trespassers. That is, the landowner must exercise a reasonable level of care
so as not to injure the licensee.6

But with regard to conditions on the land itself, the landowner has an obligation to
warn the licensee of any dangerous conditions that the landowner knows of, or has reason
to know of, unless the licensee himself already knows of the dangerous condition or the
dangerous condition is so open and obvious that the licensee should reasonably be
expected to discover it on his own.

c) INVITEES

One who has been invited to use land for recreational purposes where there is
either the prospect of a pecuniary gain, or a direct pecuniary gain (i.e., payment), by the
landowner has the legal status of an “invitee.” 8 With an invitee, the landowner’s duty is at
its highest.

As with known trespassers and licensees, the landowner must exercise a
reasonable level of care in the discharge of his activities so as not to injure the invitee.9

However, the landowner’s duty to protect the invitee from potentially dangerous
conditions on the land is much greater.10 This is because the landowner is not only
obligated to warn the invitee of dangerous conditions that the landowner knows or has
reason to know about and which the invitee might not reasonably be expected to discover
on his own, but is also obligated to inspect the land for potentially dangerous conditions
and either warn the invitee of those dangers or take affirmative actions to protect the
invitee from those dangers.

A landowner does not owe an invitee a duty, however, if the invitee already knows
of the dangerous condition or the dangerous condition is so open and obvious that the
invitee should reasonably be expected to discover it on his own, unless the dangerous
condition presents a uniquely high likelihood of harm or severity of harm (the “open and
obvious danger doctrine”).

Unfortunately there are a myriad of factors that often blur the distinctions between
the different statuses of user and the duties owed to each. For instance, a landowner may
not have expressly or explicitly consented to the use of land for recreational purposes;
however, in some circumstances, the landowner may be held to have impliedly consented
to the recreational use of the land, thereby subjecting the landowner to the same liability
as if the recreational user had been a licensee or invitee.12 Similarly, even when the
recreational user is a trespasser or a licensee, the landowner may be obligated to take
great care to protect the recreational user from dangerous conditions on the land because
of idiosyncratic factors related to the particular recreational user, such as where the
recreational user is a child.13 Furthermore, even where a dangerous condition on the land
is so open and obvious that the recreational user should be expected to discover it on his

2. STATUTORY PROTECTIONS

While the common-law rules outlined above continue to govern a landowner’s
potential liability for many recreational activities, several statutes have significantly limited
the potential liability of landowners whose property is used for “outdoor” recreational
activities common to northern Michigan. It is critical to look beyond the common law
principles and look to these statutes in any case involving outdoor recreational activities.

There are two broad statutes generally applicable to almost any outdoor recreational
activity, as well as several narrow statutes, described in following sections, that apply only
to one specific outdoor activity such as skiing or snowmobiling. In some circumstances,
the broad, generally applicable statutes complement the narrow, activity-specific statutes
to provide a landowner with protection when the narrower, more specific statute would not.

a) OUTDOOR RECREATIONAL ACTIVITIES IN GENERAL: THE RECREATIONAL LAND USE ACT
AND THE RECREATIONAL TRESPASS STATUTE

i) GENERAL OVERVIEW

Principal among the statutes affecting landowners in Northern Michigan are the
Recreational Land Use Act (“RUA”), MCL 324.73301(1), and the Recreational Trespass
Statute (“RTS”), MCL 324.73101, et seq. These two statutes, the RUA in particular, were
enacted by the Legislature to guard landowners (as well as tenants and lessees of the
land) from potential liability for personal injury sustained by persons who utilize the land for
certain “outdoor recreational uses” or “trail uses.” The Legislature’s intent was to ensure
that private lands15 remained open to the public for the enjoyment of outdoor recreational
activities and to promote tourism.16

Although other provisions of these statutes will be discussed later, the most
important provisions for the purposes of the present discussion are MCL 324.73301(1) of
the RUA and MCL 324.73107(1) of the RTS. These provisions broadly apply to any private
lands that are used for “outdoor recreational” and “trail” uses that include, among other
things, fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, and
snowmobiling.17 Simply stated, these provisions bar a personal injury suit against the
landowner unless the injured recreational user paid the landowner a “valuable
consideration” to use the land or the injuries were caused by the “gross negligence or wilful
or wanton misconduct” of the landowner.18

The principal benefit to landowners is that the statutes effectively abolish many of
the common-law “status” distinctions affecting potential liability with respect to dangerous
conditions on the land. This is because, with only one exception, all recreational users are
treated as trespassers for the purpose of determining the landowner’s duty of care. Only
the recreational user who pays to use the land, making him comparable to the common-law
invitee who actually pays to use the land, is owed a greater duty of care by the landowner.
With respect to all other recreational users, the statutes grant the landowner the highest
level of protection that could be obtained at common-law. This often makes irrelevant the
issues of whether the landowner has “impliedly” consented or invited use of his land. Also
significant is that the statutes broadly apply to any person who uses the land for
recreational purposes, thereby rendering the individual characteristics of the recreational
user, such as the user’s age, irrelevant.19

Recall that under the common law principles applicable to premises liability cases,
a distinction is drawn between a landowner’s activities and conditions of the land. It is
unclear at this point whether MCL 324.73301(1) of the RUA and MCL 324.73107(1) of the
RTS alter the landowner’s potential liability for personal injuries arising out of the

trapping, and related activities. See, e.g., MCL 73101; MCL 324.73105. This can also
be inferred, we believe, by the fact that MCL 324.81133(I) of Part 811 of the Natural
Resources and Environmental Protection Act, which governs the use of ORVs, extends
the RTS to trespasses by ORVs. There would be no need for the Legislature to have
done this if it intended that the recreational activities covered by the RTS included
things other than hunting, fishing, and trapping, such as ORV use. landowner’s negligent
activities in addition to potential liability for injuries arising out of
conditions on the land. It is possible that the courts may ultimately construe these
provisions as also altering potential liability for negligent acts of the landowner because
other provisions of the RUA and RTS indicate that they deal only with conditions on the
land, while MCL 324.73301(1) and MCL 324.73107(1) contain no such limitation.

However, until the case law on this issue becomes more clear, we would recommend that
landowners whose lands are used for recreational activities pattern their own activities in
accordance with the common-law rules discussed above, and not simply rely on the
protections of these statutes with respect to their activities; those responding to such
liability claims, similarly, should continue to examine the common law obligations.

It is important to note that these statutes, particularly the RUA, do not protect the
landowner from liability only with regard to personal injuries sustained during the activities
of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, and snowmobiling.
Rather, protection is also granted for other outdoor recreational or trail uses that are similar
in nature or character as those activities.22 While this does not mean that a landowner
enjoys protection for any outdoor recreational or trail use which might occur on his
property, it certainly has the potential to afford coverage for a broad range of outdoor
activities.

For instance, the RUA has been applied to afford protection for a landowner whose
property is utilized for such recreational activities as the operation of off-road and all-terrain
vehicles, swimming and diving, and sledding or tobogganing even though such uses are
not specifically listed in the statute.23 Moreover, although they have not yet been
specifically considered by the courts, we would expect that such outdoor or trail activities
as bicycle riding, outdoor ice skating, skiing of all types, snow boarding, tubing,
snowshoeing, boating on privately owned ponds, horseback riding, and others may well be
covered under the statute.

It is also important to note that these statutes afford protection to a landowner
regardless of the size, location, or characteristics of his land. So long as the land is being
used for an outdoor recreational or trail use covered by the statute and the injured person
has not paid to use the land, the landowner is entitled to the statute’s protection regardless
of whether the land is a large, undeveloped tract of land, such as a forest or farmland, or
a small plot of developed land in an urban or suburban neighborhood.24 Thus, the owner
of a summer home in downtown Petoskey whose guest is injured while taking a dirt bike
hundred-acre orchards are trespassed upon by droves of snowmobilers.

ii) GROSS NEGLIGENCE & WILFUL AND WANTON MISCONDUCT

The protections of the RUA and RTS, while broad, are not limitless. Recall that they
do not bar a landowner’s liability in cases involving either “gross negligence” or “wilful and
wanton misconduct.” It is therefore important to have a firm understanding of what these
legal phrases mean.

“Gross negligence” and “wilful and wanton misconduct” involve acts or omissions
beyond ordinary negligence. Ordinary negligence involves a failure to exercise the same
degree of care as a reasonably prudent landowner would under the same or similar
circumstances.25 In order to be held liable under the “gross negligence” standard, however,
the landowner must be shown to have exercised substantially less care. Specifically, the
landowner must be shown to have acted with such recklessness that his actions evince a
substantial lack of concern for whether an injury would occur. 26 And in order to be held
liable for “wilful and wanton misconduct” conduct, the landowner must be shown to have
engaged in even more blameworthy conduct than gross negligence. 27 This is because
“wilful and wanton misconduct” requires not just a substantial lack of concern for whether
an injury will occur, but “an intent to harm or, if not that, such indifference as to whether
harm will result as to be the equivalent of a willingness that it does.”28 Moreover, a

landowner cannot generally be held liable for wilful and wanton misconduct for a failure to
act. Rather, the landowner must generally take some affirmative action despite it being
apparent that the action is likely to cause an injury.29

As can be imagined, these standards of “gross negligence” and “wilful and wanton
misconduct” afford a relatively high degree of protection from potential liability to a
landowner. For instance, courts have found that landowners were not liable for gross
negligence or wilful or wanton misconduct in cases where snowmobilers and ATV riders
were injured by gullies, gates, and even wires strung between trees, or where the
landowner failed to install signs warning of potential dangers. This was so even though,
in many cases, the landowner knew of the potential for danger and failed to take any action
to warn the recreational user or alleviate the danger. 30 Similarly, in one case involving the
death of a 5-year old boy who was run over by a motorcycle, the court held that the
landowner’s failure to prevent motorcyclists from using his property despite the known
presence of young children did not amount to either gross negligence or wilful and wanton
misconduct.31

However, we would caution landowners that the determination of whether a
landowner has acted with gross negligence or wilful and wanton misconduct depends
largely on the facts of the individual case, as well as the jury deciding it. For instance, in
one case the operator of a dirt bike track was found liable for wilful and wanton misconduct
where a rider ran into a weed-covered stump on the edge of the track because the track
operator knew of the stump’s existence and potential for danger but failed to remove it or
warn riders of its existence32 — facts that are very similar to those in some of the cases in
which gross negligence or wilful and wanton misconduct were found not to have existed.33

iii) THE RECEIPT OF VALUABLE CONSIDERATION

The RUA and RTS also do not protect the landowner in situations where “valuable
consideration” for the use of the land has been paid. It is important to have an
understanding of what constitutes “valuable consideration.”

“Consideration” is a legal term that basically means that two contracting parties
exchange something pursuant to a bargain.34 With respect to the statutes being discussed
here, the landowner is giving the recreational user the use of his lands. Thus, paying
consideration simply means that the recreational user is giving the landowner something
in exchange. Although they refer to “valuable consideration,” we doubt that these statutes
require the landowner to receive very much money, or even money at all, to be stripped
of their protection. The reason is that courts are generally reluctant to inquire into the
sufficiency of the consideration received, and in one recent case the Michigan Supreme
Court specifically stated that “[a] cent or a pepper corn, in legal estimation, would constitute
a valuable consideration.”35

Nonetheless, although the consideration may only need to be minimal, there are
some other requirements that may prevent some purported “consideration” from stripping
the landowner of the statutes’ protections. Primarily, the statutes both require that
consideration be paid “for” the recreational use of the property. Thus, courts have held that
payment of a specific fee for the use of the particular recreational area is required, which
instance, the payment of a parking fee and purchase of a trail permit sticker have been
held not to qualify where they related only to the recreational user’s ability to use the
parking area or the maintenance of the entire trail and not to the person’s right to use the
particular area where the recreational activity was conducted and the injury occurred.37

As a word of caution, however, we should note that the issue of whether the
consideration paid is considered a specific fee for the use of the particular recreation area
where the injury occurs is very fact specific. Thus, the previously listed examples should
not be seen as an indication that the purchase of a parking permit or trail sticker will never
qualify as valuable consideration. Indeed, if the purchase of a parking permit carries with
it not only the right to park, but also admittance to the recreational area itself, it may indeed
qualify. Moreover, the purchase of a ski lift ticket that grants the skier access to all slopes
rather than just a specific one would almost certainly qualify. It is reasonably safe to
assume, however, that mere gratuities or incidental benefits unrelated to the recreational
user’s ability to use the land do not strip the landowner of the statutes’ protections.

It has also been held that the consideration must actually be paid to the landowner
in order to remove the shield of protection. 38 Thus, the fact that a landowner’s property is
value or confer some future benefit upon the landowner do not qualify.39

iv) LIMITATIONS OF THE STATUTES

It must be stressed that RUA and RTS provisions that have been discussed so far,

despite affording a relatively large amount of protection to landowners, do not provide

protection in all circumstances. Significantly, there are four situations that require special

consideration:

• Neither the RUA nor the RTS apply at all to “indoor” recreational activities.
In such circumstances, the landowner’s potential liability for personal injury
is governed by the common-law rules discussed above. 40 This is not only
significant for landowners who allow their property to be used only “indoor”
recreational activities, but should be thoroughly considered by landowners
who allow their property to be used for both “indoor” and “outdoor”
recreational activities as it will require the landowner to be keenly aware of
his duties with regard to both.
• Some “outdoor recreational uses” and “trail uses” may ultimately be deemed
not to fall within the ambit of the RUA and RTS. While it is unclear precisely
what outdoor recreational or trail uses those might be, we would caution
landowners that such activities as backyard volleyball games, bocce ball,
croquet and lawn dart matches, the recently popular ladder golf, and similar
activities would probably be deemed not to qualify. With other activities,
however, such as softball, baseball, tennis, soccer, flag or conventional
football, and even golf, it is difficult to predict how the courts may eventually
rule. For activities such as these, then, one should err on the side of caution
and adhere to the common-law rules as guidance.
• Even if the recreational activity does qualify as an “outdoor” recreational use”
or “trail use” under the RUA and RTS provisions discussed above, those
provisions do not apply if the landowner has received payment from the
recreational user in exchange for the ability to use the land. In such an
instance, the landowner’s potential liability is governed by the common-law
rules — unless protection is provided by other provisions of the RUA and
RTS, one of the other statutes discussed in subsequent sections of this
manual, or if the landowner has taken contractual steps to limit his liability.
• Finally, neither the RUA nor the RTS protect the landowner from liability for
damage to a recreational user’s property — they only afford protection from
lawsuits seeking to recover damages for personal injuries. Thus, a
landowner’s liability for property damage is governed by the common-law
rules — unless one of the other statutes discussed in subsequent sections
of this manual applies or the landowner has contractually limited his liability.

3. CONTRACTUAL PROTECTIONS

Even in instances where statutes have not been enacted to afford greater protection
than the common law, a landowner may still be able to successfully limit his potential
liability in some circumstances. This is because Michigan law allows persons, such as
landowners who permit their property to be used for recreational purposes, to contractually
insulate themselves from liability for injuries or damages caused by their negligence.

The landowner accomplishes this by requiring the recreational user to sign a
document — sometimes called a release, disclaimer, waiver, indemnity provision, etc. —
as a precondition to using the land wherein the recreational user acknowledges and
accepts the risks and responsibilities associated with the recreational use of the land and
agrees not to be able to sue the landowner if he is injured or sustains other damages, even
if such damages result from the landowner’s own negligence.41

Such releases are generally held to be valid so long as they are supported by
“adequate consideration” and “fairly and knowingly” signed by the recreational user.
For a release to have been supported by adequate consideration requires only: (1)
a legal detriment to the landowner, (2) that induced the recreational user’s promise to
release the landowner from liability, and (3) that the recreational user’s promise to release
the landowner from liability induced the landowner to suffer the detriment.42 These
requirements are generally held to have been met where the recreational user’s execution
of the release prompts the landowner to agree to the recreational use of his or her land.
That a release be “fairly and knowingly” signed by the recreational user does not
necessarily require the recreational user to have read or fully understood the import of the
release when it is signed, so long as the landowner does not fraudulently induce the
recreational user to sign the document without reading it or misrepresent the document’s
contents to the recreational user. It also does not require the release to be specifically
labeled a release, waiver, disclaimer, etc. Rather, such releases will generally only be
found not to have been fairly and knowingly made if: (1) the releasor was dazed, in shock,
or under the influence of drugs at the time the document was signed, (2) the landowner
misrepresented the nature of the instrument, or (3) the landowner engaged in other
fraudulent or overreaching conduct.43

There are, however, certain important limitations to a landowner’s ability to
contractually limit their liability to recreational users. First and foremost, the landowner can
only contractually insulate himself from liability for damages caused by his own ordinary
negligence — a landowner cannot contractually insulate himself from liability for damages
caused by his own gross negligence or wilful and wanton misconduct.44

Second, pre-injury waivers signed by parents on behalf of their minor children are
not enforceable.45

Third, such releases are reviewed by the courts in the same manner as other
contracts. This means that courts look first to the language of the release to determine
whether it evinces an intent by the recreational user to release the landowner from liability.
The courts also look to the language of the release to determine its “scope”; i.e., the type
and amount of liability the recreational user intended to release the landowner from.46
This means that the courts look to the document to determine whether the recreational
user intended to release the landowner from any type of liability. If so, the courts then also
look to the document to determine such things as whether the recreational user intended
to release the landowner from liability for the landowner’s own negligence, or only for the
negligence of other recreational users, and whether the recreational user intended to
release the landowner from liability for personal injury and property damage, or only
personal injury or property damage.

In order for the court to find that the recreational user intended to release the
landowner from liability, or a specific type of liability, the language of the release signed
must clearly and unequivocally express that intention.47 If the language used in the release
is not clear, but rather is reasonably susceptible to more than one interpretation, it will in
most cases be strictly construed against the landowner and be found not to insulate the
landowner from liability.48 This is because, in most cases, the release is drafted either by
the landowner or the landowner’s attorney. Thus, courts give the benefit of the doubt to
the non-drafting recreational user. Accordingly, the landowner who chooses to attempt to
contractually limit his liability should be cautious to ensure that the language in the release
is carefully drafted, which is best accomplished by employing the assistance of a
competent attorney with experience in drafting such releases.

Despite the above limitations, contractual releases can be of great benefit to
landowners in cases where statutory protection is either wholly unavailable or limited.49 For
instance, it will be recalled that neither the RUA nor the RTS provide protection for liability
arising out of property damage, and also provide protection for liability arising out of
personal injury only where the landowner has not received valuable consideration for the
recreational use of the land. Accordingly, the landowner can supplement his statutory
protection by requiring recreational users to sign releases, which would provide the
landowner for protection from liability for personal injury sustained by paying recreational
users, and also provide the landowner for protection from liability for property damage.

B. RECREATIONAL PARTICIPANT LIABILITY

1. LIABILITY FOR PERSONAL INJURY AND PROPERTY DAMAGE

a) LIABILITY TO NON-PARTICIPANTS IN THE RECREATIONAL ACTIVITY

The liability of a person engaged in a recreational activity for personal injury or
property damage caused to others who are not co-participants in the recreational activity
will in most cases be determined under the general, common-law negligence standard.50
Under this standard, the obligation of the person engaged in the recreational activity to
avoid causing injury to others who are not co-participants, called the “duty” or “standard of
care,” is reasonableness. This means that the person engaged in the recreational activity
must exercise the level of care to protect non-participants that a reasonably prudent person
would use under the same or similar circumstances.51

In some cases, a jury determines based on the facts presented what a reasonably
careful person would have done under the circumstances. 52 However, in other instances
the determination of what is reasonable under the circumstances can be affected by a
statute, administrative rule, or a local ordinance. This is because a defendant’s violation
of a statute that was designed to protect persons such as the plaintiff from the type of harm
that occurred creates a rebuttable presumption that the defendant was negligent if the
statutory violation caused or contributed to the harm.53 A defendant’s violation of an
administrative regulation or local ordinance, on the other hand, while not creating a
presumption of negligence, does constitute evidence of negligence.54

There are numerous local ordinances, administrative regulations, and statutes that
may apply in any given case — far too many to list and discuss here. However, a review
of some of the more pervasive statutory enactments that apply to certain recreational
activities — such as skiing, snowmobiling, the operation of off-road vehicles, and hunting
— are summarized in the following sections of this manual.

It should be noted that while the reasonableness standard applies to nonparticipants
who are wholly uninvolved in the recreational activity at issue, a more limited
standard of care may apply to non-participant spectators based upon the notion that they
have voluntarily assumed certain risks inherent in the particular recreational activity.55 The
Courts have not yet addressed this issue. However, we anticipate that when presented
with it the Courts may hold that spectators are owed a standard of care somewhere
between the “reasonableness” standard applicable to other non-participants and the
“recklessness” standard applicable to co-participants (discussed below).

b) LIABILITY TO CO-PARTICIPANTS IN THE RECREATIONAL ACTIVITY
I) THE GENERAL RULE OF RECKLESSNESS

The Michigan Supreme Court has held that participation in many recreational
activities — including both contact and non-contact recreational activities, as well as team
and individual recreational activities — carry with them foreseeable, inherent built-in risks
of harm.56 These foreseeable, inherent risks include, among other things, the adoption of
a set of rules defining the particular activity that may make acceptable conduct that would
otherwise be prohibited in normal social settings,57 occasional injuries that are a natural
among co-participants, carelessness or ordinary negligence by co-participants, and
even rule violations by co-participants.61

Based on the notion that participation in a recreational activity carries with it the
voluntary assumption of such inherent risks, as well as an attempt to encourage vigorous
participation in recreational activities,62 the Court has held that a participant in a
recreational activity cannot seek to hold a co-participant liable for damages when one of
these inherent risks results in injury.63 Accordingly, for most recreational activities in
Michigan, a participant is not liable for injuries caused to a co-participant merely upon a
showing of carelessness or ordinary negligence. Rather, the general rule is that a
participant in a recreational activity is not liable for an injury sustained by a co-participant
unless it is shown that the participant intentionally or wilfully caused the injury64 or acted
with “recklessness.”65

The standard of recklessness, sometimes referred to as “wantonness,” is a term
with a recognized meaning in the law66 that refers to conduct “‘evincing such indifference
to whether harm will result as to be the equivalent of a willingness that it does.’”67 Thus,
even if it results in an injury, an action falling within the range of conduct ordinarily involved
in a particular recreational activity does not suffice to establish recklessness. 68 Moreover,
in most circumstances, a participant will not be found to have acted recklessly even if the
participant has violated formal or informal safety rules applicable to the specific
recreational activity.69

ii) NORTHERN MICHIGAN RECREATIONAL ACTIVITIES TO WHICH THE GENERAL RULE APPLIES

Although the Michigan Supreme Court has made clear that the recklessness
standard applies as a general rule, the Court has also made clear that the recklessness
standard is only the general rule. That is, the Court has expressly declined to adopt
recklessness as the standard to be applied with regard to all recreational activities, leaving
open the possibility that a higher standard of care may apply to some recreational
activities. In doing so, the Court did not intimate which recreational activities would be
susceptible to a higher standard of care than recklessness, stating instead that it would
allow the precise scope of the recklessness standard to emerge on a case-by-case basis
so that its application could be carefully considered in various factual contexts.70
Case law makes clear that the recklessness standard applies to such outdoor
recreational activities popular in northern Michigan as ice skating, golf, and maybe also
to fishing (at least insofar as it does not involve the use of a motorized boat).73 However,
beyond these,74 it is difficult to predict with exact precision which outdoor recreational
activities common in northern Michigan the recklessness standard applies to. One recent
case decided by the Michigan Court of Appeals held that such factors existent during a
particular recreational activity as “disparities in height, weight, age, or skill,” are not
sufficient to heighten the standard of care owed by co-participants above that of
recklessness,75 which is consistent with the Supreme Court’s recognition that varying skill
levels is one of the inherent risks of engaging in most recreational activities.76 Thus, it
seems clear that whether the recklessness standard applies depends on the nature of the
particular recreational activity being conducted, and not on idiosyncratic factors peculiar
to the individual participants.77

In another recent case, the Court of Appeals held that the standard of recklessness
does not apply to recreational activities involving the use of a motorized vehicle, such as
an ORV.78 The Court of Appeals essentially proffered two reasons for its holding. First,
the Court stated that in adopting recklessness as the generally applicable standard of care,
the Supreme Court had been primarily focused on injuries sustained during recreational
activities typically or foreseeably involving contact between co-participants, and that
contact between co-participants is not typical or foreseeable in the recreational operation
of ORVs.79 Second, the Court of Appeals recognized that the duty of care for activities
involving the operation of motorized vehicles, such as ORVs and snowmobiles, as well as
personal watercrafts, is set by statute at ordinary negligence.80

It is unclear whether the first rationale employed by the Court of Appeals for not
applying the recklessness standard to recreational activities involving the operation of a
motorized vehicle — that such recreational activities do not typically or foreseeably involve
physical contact between co-participants — holds any real merit. Indeed, as stated above,
other cases, including the Supreme Court case that adopted the recklessness standard,
foreseeably involve physical contact between co-participants.81

It is certainly the case, however, that the Court of Appeals’ second rationale for not
applying the recklessness standard to recreational activities involving the operation of a
motorized vehicle — that the duty of care for such activities is set by statute — is well
justified and grounded in the law. Indeed, the Supreme Court case adopting recklessness
as the general rule for the standard of care among co-participants specifically recognizes
that it is within the legislative prerogative to alter the common-law of torts regarding
recreational activities, and that the common-law recklessness standard only applies in
circumstances where the Legislature has not seen fit to impose a different standard.82

Accordingly, while it is hard to predict whether the general rule of recklessness will
ultimately be applied as the standard of care for such popular northern Michigan
recreational activities as snowshoeing, hiking, camping, etc., it is clear that the
recklessness standard will not apply for other popular northern Michigan recreational
activities that are governed by legislation. Some of the more pervasive statutory
enactments that apply to certain recreational activities — such as skiing, snowmobiling, the
operation of off-road vehicles, boating, and hunting — are summarized in the sections that
follow.

2. LIABILITY FOR TRESPASS

While potential liability for recreational accidents is the primary focus of this manual,
persons who engage in recreational activities on lands belonging to others need also be
aware of the potential ramifications of doing so without the landowner’s permission. This
is because Michigan, like other jurisdictions, adheres to the concept that the ownership of
property carries with it the sacrosanct right to exclude others.83 Accordingly, under the
common-law, a person who enters onto the land of another without permission for any
reason — including to use the property for recreational purposes — is liable to the
landowner for trespass.84

Even if the trespasser does not physically damage the property itself, the landowner
is entitled to recover at least nominal damages from the trespasser based on the
presumption that every trespass is an injury to the landowner’s exclusive and private right
to possess the property. 85 Thus, for instance, in one case decided nearly one hundred
years ago, a defendant who traversed upon the plaintiff’s property to fish in the plaintiff’s
private lake without permission and after having been told to leave was held liable for
trespass and ordered to pay the plaintiff nominal damages of 6 cents.86 If the trespasser
does cause damage to the property, however, the landowner is entitled to recover his or
her actual damages in addition to the presumed nominal damages.87 The landowner’s
actual damages generally consist of the cost of repairing or restoring the damage done to
the property, such as fixing ruts left by an ORV, etc.88

Common-law trespass remains a viable cause of action for a landowner against a
recreational trespasser. However, a few statutes have been enacted that provide a
landowner the ability to recover increased damages for certain recreational trespasses.
The most important of these is MCL 324.73109 of the RTS, which sets forth certain
statutory trespasses. They include:

• Entering or remaining upon farmland, or a wooded area connected to
farmland, without the permission of the property’s owner, regardless of
whether the property is fenced, posted, or enclosed for the purpose of
engaging in any recreational activity or trapping. This does not apply to a
person who enters the property on foot and without a firearm to retrieve a
hunting dog, so long as the landowner has not previously prohibited the
person from entering and the person does not remain on the property
beyond the time reasonably necessary to retrieve the dog;89
• Entering or remaining upon any private property other than farm property
without the permission of the property’s owner for the purpose of engaging
in any recreational activity or trapping if the property is either (1) fenced,
enclosed, and maintained in a manner so as to exclude trespassers, or (2)
conspicuously posted against entry with signs at least 50 inches square that
contain letters at least 1 inch high and are spaced in such a manner that at
least 1 sign can be seen at any point on the property. Again, this does not
apply to a person who enters the property on foot and without a firearm to
retrieve a hunting dog, so long as the landowner has not previously
prohibited the person from entering and the person does not remain on the
property beyond the time reasonably necessary to retrieve the dog;90

• Exiting a navigable public stream open to fishing by means of wading or
floating and entering onto fenced or posted property or farm property without
permission from the property’s owner. This does not apply if it is necessary
for the fisherman to exit the stream in order to avoid a natural or artificial
hazard or obstruction, such as a deep hole, a dam, a fence, or some other
obstacle constructed by the landowner. In such a case, however, the
fisherman must stay within the clearly defined banks of the stream. If it is
impossible for the fisherman to stay within the clearly defined banks of the
stream, the fisherman may walk a route that is as close to the clearly defined
bank as possible so long as he does not damage farm products;91
• In the case of a person who has obtained permission from the owner of
fenced or posted property or farm property to use the land for a recreational
activity or trapping, the failure to comply with any conditions that the
landowner has established for the recreational user’s entry upon the land;92
• Entering upon or remaining upon fenced or posted property or farm property
after the landowner’s consent has been amended or revoked, unless the
initial consent was in writing and the written consent prohibited the landowner
from revoking or amending his or her consent;93
• Removing, defacing, or destroying a sign or poster prohibiting entry;94
• Posting or enclosing private property belonging to another for the purpose
of prohibiting hunting, fishing, trapping, or other recreational activities on that
property without written permission from the property’s owner;95

If a recreational trespasser engages in any one of these statutorily defined
trespasses, the landowner is entitled to recover either $250 or actual property damages,
whichever is greater. Thus, in essence, the statute sets a minimal amount of nominal
damages that the recreational user may be liable for. Moreover, unlike at common-law,
the statute allows the landowner to recover his or her actual and reasonable attorneys
fees96 for bringing the trespass action.97

C. RECREATIONAL ACTIVITIES AND GOVERNMENTAL IMMUNITY

1. RECREATIONAL ACTIVITIES ON GOVERNMENT-OWNED LANDS

The potential liability of governmental agencies that own lands on which recreational
activities occur is significantly different from the potential liability of public landowners.98
This is because, with few narrowly construed exceptions,99 the Governmental Tort Liability
Act (“GTLA”), MCL 691.1401, et seq., broadly immunizes a governmental agency from tort
liability for injuries or damages that arise when the governmental agency is engaged in a
“governmental function.”100

The phrase “governmental function” is defined as “an activity that is expressly or
impliedly mandated or authorized by constitution, statute, local charter or ordinance, or
other law.” This definition is broadly construed, and there are numerous statutory
provisions authorizing governmental entities to operate recreational facilities.103 Thus, the
Michigan courts have recognized that the GTLA’s broad grant of immunity applies when
personal injury or property damage occurs on government-owned lands being used for
such recreational purposes as public parks and swimming areas,104 public golf courses,
and public ski areas,105 thus precluding liability unless an exception applies.

The GTLA enumerates only six exceptions to its broad grant of immunity.106 While
the Legislature may create further exceptions outside of the GTLA itself, Michigan case law
makes clear that statutory provisions such as the RUA and the RTS do not do so and,
thus, are inapplicable in the context of potential liability for injuries occurring on
government-owned property.107 Moreover, while existent case law on the topic is less
clear, it seems apparent that a governmental agency’s failure to comply with statutes
regulating certain recreational activities, such as the Watercraft and Marine Safety Act
(discussed in the recreational boating section of this manual) also does not create an
exception to the broad grant of immunity to governmental agencies.108

Of the six exceptions enumerated in the GTLA regarding governmental agencies,
only one, commonly referred to as the “highway exception,”109 merits discussion in the
context of outdoor recreational activities110 because of its potential relevance to a few
activities such as bicycling, snowmobiling, and the operation of ORVs. This exception
imposes upon each governmental agency having jurisdiction over a public “highway” (which
also includes roads or streets, whether paved or unpaved, so long as they are open for
public travel) a duty to maintain the highway in reasonable repair so that it is reasonably
fit for public (not just vehicular) travel. It further permits persons who suffer personal injury
or property damage as a result of the governmental agency’s failure to do so (including
pedestrians and bicyclists) to recover damages from the governmental agency.111

While the highway exception appears broad at first glance, it is, like the other
exceptions to governmental immunity, in actuality extremely narrow for several reasons.
First, it only applies where the injury or property damage arises from the governmental
agency’s failure to repair or maintain the actual, traveled portion of highway itself — it does
not create an exception where the governmental agency has negligently designed the
roadway, failed to correct a defect in the original design, or been negligent with respect to
some action outside of the roadway, such as failing to post adequate signs, etc.112

Also limiting the highway exception is the fact that although the GTLA imposes the
duty to repair and maintain highways upon all governmental agencies it differentiates
between governmental agencies with respect to the scope of this duty. This is because
the duty of the state and county road commissions to repair and maintain only extends to
the improved portions of the highway that are “designed for vehicular travel;” i.e., the actual
lanes of the highway. Thus, while the state and county road commissions must
reasonably maintain and repair the actual lanes of a highway so that they are reasonably
safe for pedestrian or bicycle travel as well as vehicular travel, they have no such duty with
respect to such things as trails or bike paths designated immediately beside such lanes or
on the shoulder of the highway.113

The duty of municipalities to maintain and repair, on the other hand, is somewhat
broader because it does extend to portions of a highway that are not designed for vehicular
travel, including “a sidewalk, a trailway, a crosswalk, or other installation.”114 Although the
courts have not yet been presented with the issue, we believe that this would in some
instances require municipalities to repair and maintain bicycle paths that exist alongside
highways.115 Note, however, that the statute creates a rebuttable presumption that the
municipality maintained a sidewalk, trailway, crosswalk, or other installation in reasonable
repair if the personal injury or property damage resulted from a defect consisting of a
discontinuity of less than two inches.116

Further limitations upon the highway exception, and further delineation between the
duties of various types of governmental agencies, exists with respect to the operation of
snowmobiles and ORVs. Specifically, with only two narrow exceptions, neither county road
commissions nor municipalities have a duty to maintain a highway in a condition
reasonably safe and convenient for the operation of ORVs. In fact, they are both
completely immune from tort liability for personal injury or property damage arising in any
way out of the operation or use of an ORV on any maintained or unmaintained highway,
shoulder, or right-of-way under their jurisdiction, unless they engage in an action
constituting gross negligence. A similar limitation applies to county road commissions with
respect to snowmobiles, but does not expressly apply to municipalities. Moreover, neither
limitation expressly applies to the state.117

Finally, even where the duty to repair and maintain does apply to a governmental
agency, liability cannot be imposed unless certain conditions precedent are satisfied. With
respect to defective conditions outside of the portion of the highway designed for vehicular
travel — for which only municipalities possess a duty to maintain — it must be established
that the municipality either knew of the defect, or in the exercise of reasonable diligence
should have known of the defect at least 30 days before the personal injury or property
damage occurred.118 With respect to defective conditions within the portion of the highway
designed for vehicular traffic — for which the state, county road commissions, and
municipalities possess a duty to maintain — it must also be established that the
governmental agency either knew of the defect, or in the exercise of reasonable diligence
should have known of the defect, and had a reasonable time to repair the defect before the
personal injury or property damage occurred.119

2. GOVERNMENTAL EMPLOYEES AND RECREATIONAL ACTIVITIES

As with governmental agencies, the GTLA broadly immunizes government
employees (as well as officers and volunteers) from tort liability. This immunity exists so
long as the government employee at least reasonably believes that he or she is acting
within the scope of his or her authority during the exercise or discharge of a governmental
function. 120 In the context of outdoor recreational activities, such immunity would be
applicable to various types of governmental employees, such as officers of the Michigan
Department of Natural Resources or employees of governmentally operated public parks
or recreation areas.

There are essentially only two exceptions to the broad immunity conferred upon
governmental employees. The first is where the governmental employee commits an
intentional tort. 121 This exception, however, presumably will rarely be applicable in the
context of outdoor recreational activities.

The second is where the governmental employee engages in “gross negligence.”
While this second exception has more potential to be germane to outdoor recreational
activities, it is difficult to establish. This is because the plaintiff must establish that the
governmental employee engaged in “conduct so reckless as to demonstrate a substantial

lack of concern for whether an injury results.”122 Moreover, the plaintiff must establish that
the governmental employee’s wrongful conduct was “the one most immediate, efficient,
and direct cause of the injury or damage.”123 This is markedly different from a standard tort
case brought against a non-governmental person, where the plaintiff may recover damages
even though the defendant’s wrongful conduct was merely one of several causes, and
need not even be the most immediate cause of the plaintiff’s injuries.

D. RECREATIONAL ACTIVITIES AND MOTOR VEHICLE ACCIDENTS

For many recreational activities, such as ice skating and downhill skiing, accidents
involving motor vehicles are extremely rare. However, in other recreational activities, such
as snowmobiling, the operation of ORVs, and road cycling, where recreational participants
often venture onto public roads, injuries arising from collisions with motor vehicles are an
all too common occurrence. Participants in such recreational activities should therefore
be aware that potential liability for motor vehicle related accidents is dramatically different
from potential liability for non-motor vehicle related accidents because of the Michigan No-
Fault Automobile Insurance Act, MCL 500.3101, et seq.

The Michigan No-Fault Act is a substantial topic in and of itself, and is already the
subject of a number of Garan Lucow Miller, P.C., publications, including the periodically
issued Automobile No-fault Manual. Reference to these materials is suggested for a more
in-depth discussion of the nuances of the no-fault act. This manual will touch upon some
issues particular to the act’s applicability in recreational accidents.

The no-fault act for the most part abolishes the common-law fault-based tort system
of liability for accidents involving motor vehicles.124 This is because it automatically entitles
persons injured in motor vehicle related accidents to recover compensation for certain,
limited “economic” damages (i.e. medical expenses, reimbursement for lost wages,
compensation for property damage, etc.), called no-fault benefits, regardless of whether
the injured person was at fault in causing the accident so long as the injured person either
maintained a no-fault policy or was not required by the no-fault act to maintain a no-fault
policy.125

As a trade-off for this automatic entitlement to no-fault benefits, the no-fault act
significantly limits an injured person’s ability to file a lawsuit seeking additional damages
from another person who was at-fault and either maintained a no-fault policy or was not
required to maintain a no-fault policy.126 Most importantly, the injured party may not sue
an at-fault party for “non-economic” damages (i.e., pain and suffering, etc.) unless the
injured person was less than 50% at fault in causing the accident127 and either dies or
suffers a “serious impairment of body function” or a “permanent serious disfigurement.”128

Other limitations are also placed on the injured party’s ability to recover economic damages
beyond those recoverable as no-fault benefits,129 and the injured party’s ability to recover
for property damages.130

In order for the no-fault act to apply, the accident must involve a “motor vehicle.”131
For the purposes of the no-fault act, the term “motor vehicle” is defined as “a vehicle,
including a trailer, operated or designed for operation upon a public highway by power
other than muscular power which has more than 2 wheels.” The definition further provides
that motorcycles, mopeds, and farm tractors that are not required by law to be registered
do not qualify as motor vehicles. 132 This definition obviously encompasses such things
as cars, trucks, SUVs, etc., since they are designed to be operated on a public highway,
have more than 2 wheels, and operate on other than muscular power.

129 The injured party’s recovery for economic damages is limited to the type of
economic damages recoverable as no-fault benefits. See, MCL 500.3135(3)(c);
Cassidy v McGovern, 415 Mich 32 (1986) (“The act . . . does not assure payment for all
economic losses.”) Thus, the injured party can only sue to recover any amounts by
which those economic damages exceed the amounts recoverable a no-fault benefits,
and cannot sue for economic damages of a different type.

130 Most significantly, with only one small exception the no-fault act prohibits an
injured person from suing the at-fault party for damages to the injured person’s
automobile and personal property. Rather, the injured person can only recover for
these damages from his own insurer, and only if he has purchased property protection
insurance. The small exception to this is that the injured person may sue the at-fault
party for no more than $500 as compensation for damage to the injured person’s
automobile. This provision, essentially, allows the injured person to recover the amount
of his property protection insurance deductible.

Accordingly, if a person is injured by car, truck, or SUV while engaging in a
recreational activity — for example, road cyclists, snowmobilers, etc., who are struck by
cars — they are entitled to recover no-fault PIP benefits. Similarly, if the owner or
registrant of the car has obtained and maintained a policy of no-fault insurance as required
by the no-fault act, the injured person’s ability to sue the at-fault driver for additional
damages is limited as described above.

However, the no-fault act’s potential affect on liability becomes more complicated
when the above definition of “motor vehicle” is applied to vehicles commonly involved in
recreational activities, such as ORVs, snowmobiles, and motorcycles. We have,
accordingly, addressed the no-fault act’s applicability to accidents involving such vehicles
in the respective sections of this manual related to activities involving such vehicles.
II.SKIING

A. SKI AREA OPERATOR LIABILITY

Historically, the liability of those who operated ski areas for personal injury sustained
by a skier was governed by the common-law principles discussed above, with the ski area
operator owing the skier the stringent duties owed to an invitee.133 This left ski area
operators unduly prone to lawsuits, resulting in operators having to increase the price of
such things as lift tickets and equipment rentals in order to offset continually increasing
insurance premiums. The impact this had on the ski industry and tourism in Michigan
prompted the Legislature to enact the Ski Area Safety Act (“SASA”), MCL 408.321, et seq.
Among other things, the SASA was intended to reduce the number of lawsuits filed against
ski area operators. The hope was that by protecting ski area operators in this way the
SASA would help to stabilize Michigan’s ski industry, thereby promoting the economy.134

The SASA provides protection to anyone who owns, controls, or who has
operational responsibility for an area that is used for skiing and is served by 1 or more ski
lift. This includes areas used for alpine skiing, cross-country skiing, snow boarding, and
to slide on a slope.135

The act primarily accomplishes its purpose of reducing the number of lawsuits filed
against ski area operators in 2 ways. The first is by imposing certain duties upon skiers
to ensure their own safety and the safety of others. Among others, these duties require
the skier to:

• Ski within the limits of his or her own individual ability;
• Refrain from acting or skiing in a manner that may contribute to the skier’s
own injury or the injury of anyone else;
• Avoid snow-grooming equipment and vehicles;
• Heed posted signs and warnings;
• Only ski in areas that are marked as open for skiing;
• Refrain from dropping or throwing objects from ski lifts;
• Refrain from using a ski lift without having the ability to do so safely;
• Refrain from interfering with the operation of a ski lift through such activities
as bouncing or swinging on the lift or skiing out of the designated ski lift exit
area; and
• Ensure that all ski restraining devices are properly engaged before using a
ski lift.136

The second, and more important, way that the SASA protects ski area operators
from litigation is by providing that skiers assume the risk of injury from certain natural and
man-made hazards common to the sport of skiing, thereby limiting or relieving altogether
the ski area operator’s obligation or “duty” to protect the skier from those harms.137
Examples of some of the natural hazards that the skier is deemed to have assumed are
set forth in the statute, and include terrain variations, snow and ice conditions, bare spots,
rocks, trees,138 and other forms of natural growth or debris. Examples of assumed man-
made hazards are also set forth by the statute, and include collisions with ski lift towers,
ski lift tower components, other skiers, or properly marked or plainly visible snow-
making or snow-grooming equipment.

These, however, are only examples and do not represent the only hazards covered
by the statute. Rather, the skier is deemed to have assumed the risk of any natural or
man-made hazards that “inhere” in the sport of skiing, so long as they are “obvious and
necessary” to the sport of skiing.141 As a general matter this would include natural and
man-made hazards that are similar in nature or character to those specifically listed,142 and
has been interpreted to include such things as structures housing ski-race timing
equipment, fence posts, safety netting, snow board ramps or jumps, snow board

rails,147 and tow ropes.148

If a skier is injured by one of the statutorily assumed hazards, the skier is typically
precluded from bringing a personal injury lawsuit against the ski area operator. It does not
matter that the ski area operator failed to act reasonably to prevent the injury or comply
with some common-law duty;149 nor does it matter that the ski area operator failed to
comply with one or more administratively promulgated rules or regulations.150 Thus, for
example, courts have held that where skiers are injured by colliding with such things as ski
lifts or ski-racing timing shacks, the skier is precluded from filing suit against the ski area
operator even though the skier claims that the ski lift was improperly constructed or that
the timing shack was larger and more dangerous than necessary.151

Similarly, the reasonableness of the skier’s own conduct is irrelevant. Therefore,
it does not matter that the skier was skiing carefully or was injured through no fault of his
own.152 Moreover, because the SASA broadly applies to all skiers, unlike at common-law
the idiosyncracies of the particular skier injured do not matter. Thus, for instance, ski area
operators are not obligated to take special measures to protect minors from hazards
covered by the statute.153

Also significant is that the SASA may preclude a lawsuit against the ski area
operator even where the injury is not directly caused by one of the statutorily assumed
hazards. For instance, in one case it was held to bar a lawsuit brought by a skier who was
injured while trying to avoid colliding with another skier, even though only collisions with
other skiers are directly covered by the statute.154 Furthermore, the SASA makes no
distinction between hazards common in different types of skiing. Thus, even if the injured
skier was only participating in alpine skiing, he or she is deemed to have assumed hazards

that are inherent in snow boarding or cross-country skiing as well as those inherent in
alpine skiing.155

Perhaps most important is that the SASA does not require that the injured person
have been actually skiing at the time that the accident occurred. Thus, it has been applied
to preclude lawsuits by skiers who were injured while riding ski lifts156 or even standing in
line. 157 In fact, because of the statute broadly defines “skier” to include even persons not
wearing skis who are at a ski area for the purpose of skiing, one court has explained that
it would prevent recovery by a person who is injured by slipping on a patch of ice while
walking from the ski lodge to their equipment.158

1. LIMITATIONS OF THE SASA’S PROTECTION

Although the SASA provides ski area operators with significant protection from
lawsuits by deeming skiers to have assumed the above-described hazards, it does not
completely insulate ski area operators from potential personal injury lawsuits. Rather,
there are three primary issues that all ski area operators should keep in mind:

a) VIOLATIONS OF SASA DUTIES

While skiers are typically precluded from suing ski area operators for injuries arising
out of statutorily assumed hazards, they are not always precluded from doing so. This is
because the SASA provides that an operator who violates the SASA is liable for the portion
of a loss or damage resulting from that violation. Thus, the ski area operator may be held
at least partially liable for the skier’s injuries if the operator violates one of several duties
specifically imposed on ski area operators by the SASA.159 These duties can generally be
described as follows:

• Equipping snow-grooming and other vehicles with a flashing or rotating
yellow light and operate the light while using the vehicle on or near a ski run;
• Utilizing headlights on snowmobiles that are operated on or near ski runs;
• Marking snow-making equipment, hydrants, and other fixtures with visible
signs;
• Marking each ski run with a sign indicating the run’s degree of difficulty;
• Marking the top of each run that is closed to skiing. This is only applies to
areas that are ordinarily open to skiing. It does not require the ski area
operator to mark as closed, or instance, clusters of trees to the side of a
slope that are considered out of bounds;160
• Maintaining at least one board at a prominent location in the ski area
showing the area’s network of runs and each run’s degree of difficulty;
• If snow making operations are being performed on a run while the run is
open for skiing, placing a sign at the beginning of the run to warn skiers of
the operations;
• Maintaining signs in conspicuous places around the ski area listing the duties
of skiers and ski lift passengers;
• Obtaining a permit before operating a ski lift.161

Accordingly, if the injured skier can produce evidence that the ski area operator
violated one of these duties and that the violation contributed to his injury, the ski area
operator may be held liable for the portion of the injured skier’s damages that resulted from
the violation even though the injury was ultimately caused by one of the hazards the SASA
deems the skier to have assumed.162

b) HAZARDS THAT ARE NOT STATUTORILY ASSUMED

The SASA’s protections only apply to injuries arising from the hazards that skiers
are statutorily deemed to have assumed. Therefore, if a skier’s injury is caused by
something other than a statutorily assumed hazard, general common-law negligence
principles apply to determine the extent to which the ski area operator may be liable.163
Basically, this means the jury will determine whether the ski area operator’s breach of a
common-law or SASA imposed duty contributed to the skier’s injury. If so, under the
common-law doctrine of comparative negligence the damages that the skier can recover
from the ski area operator are then adjusted downward by the percentage that the injuries
were caused either by the skier’s own negligence or the negligence of a third party (such
as another skier).

c) AREAS WITHOUT SKI LIFTS

Although the SASA’s protections appear to broadly apply to many ski areas,
regardless of whether skiers are required to pay to use the ski area, they do not apply to
all ski areas. This is because the act defines a “ski area” to include only areas served by
1 or more ski lifts. Thus, the SASA may not prevent lawsuits against persons who operate
purely cross-country ski areas or alpine and snow boarding areas that are not served by
a ski lift. In such a case, the operator’s liability for personal injury sustained by a skier
would be determined by the provisions of the RUA and RTS or common-law principles
described above.

d) PROPERTY DAMAGE

It is, as of yet, unclear whether the SASA shields ski area operators only from
lawsuits seeking damages for personal injury, or whether it also precludes lawsuits seeking
damages for injury to property. The reason is that unlike the RUA and the RTS, the SASA
does not specifically state that it applies only to causes of action for personal injury.164 But,
the SASA also does not specifically state that it applies to both causes of action for
personal injury and property damage; which makes the SASA different from other, similar
statutes that do specifically reference property damage in addition to personal injury.165
Rather, the SASA simply states that skiers accept certain dangers inherent in the sport of
skiing, which “include, but are not limited to, injuries” resulting from the natural and man-

made hazards described above. However, we believe that if the issue is presented to the
Courts, it will ultimately be determined that the SASA provides protection for both personal
injury and property damage.

The reason is that the term “injury” is broad and can encompass a variety of injuries
other than personal injury unless there is something about the grammatical or structural
context of the statutory language that clearly indicates that the Legislature intended to limit
the protection only to physical injuries.166 Here, there does not appear to be anything about
the grammatical or structural context of the SASA that would limit its protection only to
lawsuits against a ski area operator seeking damages for personal injury. Rather, we
believe that the statutory context may be viewed by the Courts as requiring the opposite
conclusion. This is because, as described above, another provision of the SASA states
that a ski area operator who violates a duty imposed by the SASA is liable for the portion
of the “loss or damage” that results from the violation.167

B. SKIER LIABILITY

Although the Legislature’s primary purpose in enacting SASA was to provide
protection to ski area operators, the SASA also affects the potential liability of skiers
themselves, primarily with respect to injuries sustained by co-participants, in much the
same way that it affects the potential liability of landowners.

First, the SASA imposes several duties upon skiers, outlined above, which
essentially supplant the recklessness standard of care generally applicable among coparticipants
in other recreational activities. Second, and perhaps more importantly, the
SASA provides that all skiers assume the risk of collisions with other skiers. Thus, just as
with ski area operators, an injured skier is generally precluded from filing suit against the
skier that caused the collision, even if that skier was negligent. The only exception to this
is if the injured skier can establish that the collision was caused or contributed to by the
other skier’s violation of one of the SASA imposed duties. In such a case, the inured skier
may recover damages from the violating skier in relation to the portion of the injury or
damage that resulted from the violation of the SASA imposed duty.168

III. OFF ROAD VEHICLES

Off road vehicles, or “ORVs” consist of any off-road recreational vehicle capable of
cross-country travel over natural terrain and without the benefit of a road or trail that is
motor driven and derives its power from any source other than muscle or wind. This
encompasses a broad number of vehicles, including 3 or 4 wheeled ATVs, motorcycles,
amphibious machines, hovercraft, and similar vehicles such as dune buggies, etc. In
fact, the only vehicles specifically excluded from the definition of ORV are registered
snowmobiles, farm vehicles when used for farming, construction logging vehicles,
registered aircraft, and vehicles used by utility companies, oil or gas companies, the
military, a fire department or emergency service, or a law enforcement agency.

Because of the shear number of vehicles that qualify as ORVs, potential liability for
injuries arising out of the operation of such vehicles is an important topic in northern
Michigan where numerous types of vehicles are operated either as a recreational activity
in itself or in conjunction with other popular outdoor recreational activities such as hunting
and ice fishing.

A. LANDOWNER LIABILITY

Unlike skiing, discussed above, or snowmobiling, discussed below, the Michigan
Legislature has not enacted a statutory assumption of the risk provision granting greater
protection to landowners than is available under the RUA and RTS, the common law, and
contract. Accordingly, persons who allow their lands to be used for the recreational
operation of ORVs should refer to the above section regarding general liability principles
for landowners for a discussion of their potential liability.

B. OPERATOR LIABILITY

Because an ORV must be motor-driven it qualifies as a “motor vehicle” under the
Motor Vehicle Code.171 The significance of this two pronged. First, the Motor Vehicle Code
provides that liability for injuries to person or property arising out of the operation of a motor
vehicle may be imposed for ordinary negligence.172 Accordingly, the ordinary negligence
or “reasonableness” standard applies in all cases involving damages arising out of the
operation of an ORV, even cases involving injury to a co-participant.173 Second, under the
Motor Vehicle Code, the owner of a motor vehicle is liable for the motor vehicle’s negligent
operation if the motor vehicle is being driven with the owner’s express or implied consent
or knowledge. Consent is presumed where the operator of the motor vehicle is an
immediate family member of the owner.174

As stated above, in some cases the determination of what is reasonable under the
circumstances can be affected by statute, administrative rule, or local ordinance. Because
the definition of ORV encompasses such a broad number of vehicles, among other
reasons, the operation of ORVs may be governed by several different local ordinances,
administrative regulations, and statutes.175 However, one statutory provision that is
universally applicable to the operation of ORVs is Part 811 of the Natural Resources and
Environmental Protection Act, MCL 324.81101, et seq. Part 811 is a comprehensive
statutory scheme governing numerous aspects of ORV ownership and use. But most
important to the present topic is that Part 811 contains many provisions that may be
relevant to determining what is reasonable for an ORV operator to do in certain
circumstances. In cases involving injury to a co-participant, some of these provisions may
also be relevant to the determination of a claim of comparative negligence. Highlights of
these provisions include:

1. REQUIRED EQUIPMENT FOR ORVS AND OPERATORS

• Both operators and passengers of ORVs must wear a crash helmet and
protective eye wear approved by the US Department of Transportation
unless the ORV is equipped with a roof and the operator and passengers are
wearing safety belts;176
• An ORV may not be operated unless it is equipped with: (1) a breaking
system capable of being operated by hand or foot and capable of
decelerating the ORV by 14 feet per second at a speed of 20 miles per hour,
(2) a throttle designed to immediately and automatically return to idle when
pressure is removed, and (3) if the ORV is operated between ½ hour after
sunset to ½ hour before sunrise, a lighted headlight, lighted tail light, and a
brake light that is brighter than the tail light;177
• An ORV cannot be used to transport passengers unless it is manufactured
to do so.178

2. GENERAL OPERATIONAL PROVISIONS

• An ORV may not be operated at “a rate of speed greater than is reasonable
and proper, or in a careless manner having due regard for conditions then
existing”;179
• A person may not operate an ORV if their license to operate a motor vehicle
has been suspended or revoked;180
• A person may not operate an ORV if they are under the influence of alcohol
or a controlled substance, or a combination of alcohol and a controlled
substance. Similarly, the owner or person in charge of the ORV, if different
from the operator, may not authorize or knowingly permit such a person to
operate the ORV;181
• If an ORV is operated within 100 feet of a dwelling (300 feet in an area
zoned residential), it cannot be operated at a speed greater than the
minimum required to maintain controlled forward movement unless the ORV
is being operated on the ORV operator’s own property or property on which
the operator is an invited guest, or the ORV is being operated on a roadway,
forest trail under the jurisdiction of the Department of Resources, or access
route established by local ordinance;182
• If an ORV is operated on frozen public waters, it cannot be operated within
100 feet of: (1) a person that is not in or upon a vehicle, (2) an ice fishing
shanty, or (3) an area cleared for ice skating, unless it is operated at the
minimum speed required to maintain controlled forward movement;183
• An ORV may not be operated within 100 feet of a slide, ski, or skating area
unless the ORV is being used to service the area;184
• An ORV may not be operated in an area open to the public for hunting during
the regular firearm deer season except in limited situations;185
• An ORV may not be used to transport a firearm unless the firearm is
unloaded and encased or equipped with a keylocked trigger housing
mechanism. An ORV may not be used to transport a bow unless the bow is
unstrung or encased;186
• The operator of an ORV that is involved in an accident involving the injury to
or death of another person must immediately stop at the scene and render
reasonable assistance in securing medical aid or transportation. The
operator must also immediately notify the state police or county sheriff’s
office. This notification provision also applies if the accident involves
property damage in an estimated amount of $100 or more;187
• A person operating an ORV on the lands of another must immediately stop
the ORV and provide personal identification when visibly hailed by the
property owner or the property owner’s agent.188

3. THE OPERATION OF ORVS ON STREETS AND HIGHWAYS

• ORVs may not be operated on public highways or streets, or within the right-
of-way of public highway or street (i.e., the area beside the shoulder) 189,
unless one of the following exceptions apply:
a. The ORV is registered with the Secretary of State as a motor
vehicle in compliance with the Motor Vehicle Code;
b. An ORV operator can cross a public highway (but not a limited
access highway)190 at right angles in order to get from 1 area
to another so long as the operator can do so safely. However,
the ORV operator must bring the ORV to a complete stop
before crossing the highway and must yield the right-of-way to
oncoming traffic;
c. If a permit has been issued by a local governmental unit, an
ORV may be operated on a street or highway for special
events;
d. Farmers, their employees, and their family members, so long
as they are at least 16 years old, can operate ORVs on the
roadway or within the right-of-way of the road way in order to
travel to or from home, fields, or work locations during the
course of farming operations and during daylight hours.
However, this only applies when it is impracticable to operate
the ORV off the roadway or right-of-way, and the ORV may
only be operated on the extreme right side of the roadway or
right-of-way;
e. ORVs may be operated along the side of a street or highway
under the jurisdiction of a local unit of government if the local
unit of government has by ordinance established an access
route along the street or highway;
f. A person who is permanently disabled may operate an ORV
along a street or highway within a municipality if the
municipality has enacted an ordinance allowing such
operation;191
• Significantly, if an ORV is operated on a roadway and is involved in an
accident with a motor vehicle, a rebuttable presumption arises that the ORV
operator was negligent in causing the accident;192

4. THE OPERATION OF ORVS BY MINORS

• A child under the age of 16 may not operate an ORV unless they have
completed a safety education course that has been approved by the
Department of Natural Resources;193
• A child under the age of 16 may not operate a 3-wheeled ATV, nor may the
parent or legal guardian of the child or the owner or person in charge of the
3-wheeled ATV permit the child to operate the ATV;194
• A child under the age of 10 may not operate a 4-wheeled ATV, unless the
ATV is being used in agricultural operations, nor may the child’s parent or
legal guardian or the owner or person in charge of the 4-wheeled ATV permit
the child to operate the ATV;195
• A child between the ages of 10 and 11 may not operate a 4-wheeled ATV,
nor may the child’s parent or legal guardian or the owner or person in charge
of the ATV permit the child to operate the ATV, unless the child: (1) is
operating the ATV on private land owned by the child’s parent or legal
guardian, (2) has in his or her possession an ORV safety certificate, and (3)
is under the direct visual supervision of an adult,196 which means that the
child is under the direct, unaided visual observation of an adult who is able
to come to the child’s immediate aid.197 This does not apply if the ATV is
being used in agricultural operations;
• A child between the ages of 12 and 15 may not operate a 4-wheeled ATV,
nor may the child’s parent or legal guardian or the owner or person in charge
of the ATV permit the child to operate the ATV, unless the child: (1) has in
his or her immediate possession an ORV safety certificate, and (2) is under
the direct visual supervision of an adult;198
• A child under the age of 16 may not operate an ORV (other than a 3wheeled
or 4-wheeled ATV), nor may the child’s parent or legal guardian or
the owner or person in charge of the ORV permit the child to operate the
ORV, unless the child: (1) has in his or her immediate possession an ORV
safety certificate, and (2) is under the direct visual supervision of an adult.199
• A child who is less than 12 years and is operating an ORV may not cross a
street or highway;200
• A child who is between the ages of 12 and 15 and is operating an ORV may
not cross a street or highway unless the child: (1) has in his or her immediate
possession an ORV safety certificate, (2) is under the direct visual
supervision of an adult.201 Also, although not specifically stated in the
provision governing the crossing of streets and highways by minors, a child
between the ages of 12 and 16 presumably cannot cross a street or highway
unless the child also complies with the general provisions governing the
operation of ORVs along and across streets and highways, which have been
summarized above.

C. ORVS AND GOVERNMENTAL IMMUNITY

As discussed at length in the beginning section of this manual, the general tort
liability act, MCL 600.1401, et seq., broadly immunizes governmental agencies from tort
liability with few exceptions, the most pertinent being the so-called “highway exception” that
in some instances strips governmental agencies of immunity for injuries occurring on public
highways that are not reasonably repaired or maintained so as to be reasonably fit for
public travel. With respect to the operation of ORVs, however, the highway exception is
greatly altered by MCL 324.81131(3), which provides that counties and municipalities do
not have a duty to maintain highways under their jurisdiction in a condition that is
reasonably safe and convenient for the operation of ORVs unless the ORV is registered
as a motor vehicle or is being operated upon the highway pursuant to a municipal
ordinance allowing permanently disabled persons to operate ORVs upon highways within
the municipality.202

Moreover, MCL 324.81131(4) provides that counties and municipalities are immune
from tort liability for injuries or damages that arise in any way from the operation or use of
an ORV on maintained or unmaintained highways, shoulders, and rights-of-way over which
the county or municipality has jurisdiction unless the county or municipality engages in
“gross negligence,” which means “conduct so reckless as to demonstrate a substantial lack
of concern for whether an injury results.”

D. ORVS AND THE NO-FAULT ACT

Determining the no-fault act’s potential applicability to ORV accidents requires
consideration of an important date – July 17, 2008. The reason is that a legislative
amendment to the no-fault act became affective on that expressly excludes ORV’s from
the definition of the term “motor vehicle” in the no-fault act. Thus, if an accident occurred
after July 17, 2008, the no-fault act does not apply to ORV accidents unless another
vehicle constituting a motor vehicle (i.e., a car or truck, etc.) was also involved.

If the accident occurred before July 17, 2008, then the amendment does not apply.
Therefore, the determination of whether the no-fault act applies to the particular ORV
accident depends on whether the particular ORV constitutes a “motor vehicle” as that term
was defined prior to July 17, 2008. As previously discussed, that definition generally
encompassed any vehicle “operated or designed for operation upon a public highway by
power other than muscular power which has more than 2 wheels.”203

Many ORVs are not designed to be operated upon a public highway, and thus, the
no-fault act does not apply when they are operated on trails, etc., that do not constitute
public highways. However, because the no-fault act’s definition of “motor vehicle” applies
anytime a vehicle having more than 2 wheels and operated by other than muscular power
is operated on a public highway, regardless of whether it was designed to do so or not,
many ORVs do qualify as motor vehicles when they are operated upon a public highway.204

It is also important to note that although many ORVs do qualify as motor vehicles
for the purposes of the no-fault act when they are operated upon a public highway, the
owner or registrant of the ORV is not required to maintain a policy of no-fault automobile
insurance so long as the ORV meets the definition of ORV set forth in Part 811 of the
Natural Resources and Environmental Protection Act, which was previously discussed in
this manual. This is because Part 811 expressly provides that ORVs are exempt from the
no-fault act.205 Accordingly, in the scenario described above, the operator of the ORV
enjoys the tort immunities outlined previously even if the ORV operator is also the owner
or registrant of the ORV and has not obtained a policy of no-fault insurance for the ORV.
Similarly, if the ORVs owner or registrant themself is injured while operating the ORV upon
a public highway, he or she is entitled to recover no-fault PIP benefits even though they
have not obtained a policy of no-fault insurance for the ORV.206

Accordingly, the no-fault act does not apply to accidents involving motorcycles unless the
accident also involves another vehicle that qualifies as a “motor vehicle” under the no-fault
act.207 If a motorcycle is involved in an accident with a “motor vehicle,” however, special
rules apply to govern the motorcyclist’s ability to collect no-fault benefits and qualify for tort
immunity.

Because a motorcycle does not qualify as a “motor vehicle,” its owner or registrant
is not required to maintain a policy of no-fault insurance for the motorcycle. However, the
no-fault act does require owners and registrants of motorcycles to maintain another type
of insurance that covers injuries that the motorcyclist causes to third persons. This is
sometimes called “public liability” insurance.208 If the motorcycle operator who is involved
in the accident is also the motorcycle’s owner or registrant, he or she may not collect no-
fault PIP benefits for any injuries sustained if they have not obtained this public liability
insurance for the motorcycle. Similarly, they do not enjoy the above-described tort
immunity for injuries caused to third persons.

There is an exception to this, however, for certain motorcycles that are designed
specifically for off-road use and qualify as ORVs under Part 811 of the Natural Resources
and Environmental Protection Act. This is because, as described above in the discussion

maintain a no-fault policy covering the go-cart. The Court of Appeals did not discuss
whether the no-fault exclusion for ORVs applied to the go-cart, but we do not believe
that it would.

Accordingly, if a motorcycle that qualifies as an ORV is involved in an accident with a
“motor vehicle,” the motorcycle operator is entitled to collect no-fault PIP benefits even if
the operator is also the motorcycle’s owner or registrant and has not obtained public
liability insurance for the motorcycle.209

IV. SNOWMOBILING
A. LANDOWNER LIABILITY

Snowmobiling is one of the most popular winter-time recreational activities in
northern Michigan, and is undoubtedly one of the biggest contributors to the northern
Michigan economy.210 This is due in no small part to a statewide network of over 6,100
miles of designated snowmobile trails, most of which are located in the northern lower
peninsula and the upper peninsula.211 Interestingly, according to the Michigan Department
of Natural Resources approximately half of this trail system is located on private lands
rather than in state parks or forests.212 Moreover, thousands of additional acres of privately
owned northern Michigan property is utilized by snowmobilers each year, either with or
without the landowner’s permission.

This is significant because snowmobiling, which necessarily requires the operation
of a motorized vehicle, 213 can be a dangerous activity. High speeds are involved. Visibility
can be limited. Hazards, such as trees, rocks and other snowmobiles, abound. Operators
and passengers are unprotected, as on a motorcycle or personal watercraft. And alcohol
use is often a factor.

Because of snowmobiling’s inherent danger, the Legislature has enacted
comprehensive legislation governing various aspects of snowmobiling. This legislation is
contained in Part 821 of the Natural Resources and Environmental Protection Act, MCL
324.82101 through MCL 324.82160. The most significant aspect of Part 821 with regard
to the liability of landowner’s whose property is used for snowmobiling is MCL
324.82126(6), which contains an assumption of the risk provision very similar to the one
found in the Ski Area Safety Act described above. That is, this provision of Part 821
provides that anyone who participates in the sport of snowmobiling is deemed to have
assumed the risk of injury presented by certain natural and man-made hazards common
to the sport of snowmobiling; thereby limiting or relieving altogether the landowner’s
obligation or “duty” to protect the snowmobiler from those harms.214

Examples of some of the natural hazards that the snowmobiler is deemed to have
assumed are set forth in the statute and are the same as those assumed by a skier under
the SASA. They include terrain variations, snow and ice conditions, bare spots, rocks,
trees, and other forms of natural growth and debris. Examples of assumed man-made
hazards are also set forth by the statute, and include collisions with “signs, fences, or other
snowmobiles or snow-grooming equipment.” 215 As with the SASA, however, these are
only examples and do not represent the only hazards covered by the statute. Rather, a
snowmobiler is deemed to have assumed the risk of any natural or man-made hazards that
“are obvious and inherent” in the sport of snowmobiling.216

The assumption of the risk provision in Part 821 operates in essentially the same
manner as the assumption of the risk provision of the SASA. That is, if a snowmobiler is
injured by one of the statutorily assumed hazards, the snowmobiler is typically precluded
from bringing a personal injury lawsuit against the landowner. And, although to date there
have been very few cases that have interpreted the assumption of the risk provision of Part
821, those cases that have considered it seem to foretell that in the future it will be
interpreted consistently with the SASA.217 There are, however, some important nuances
of the assumption of the risk provision in Part 821 that make it somewhat different than the
215Note that the SASA precludes liability when a skier collides with “properly
marked or plainly visible snow-making or snow-grooming equipment,” whereas Part 821
precludes liability collides with other snowmobiles or snow-grooming equipment
regardless of whether they were properly marked or plainly visible.

First, the SASA only appears to provide protection for a landowner if the landowner
operates a “ski area,” which requires the landowner to have 1 or more ski lift on his
property before the assumption of risk provision applies to provide protection.218 There is
no similar limitation with respect to the protection provided by Part 821. Rather, Part 821
seems to broadly apply to protect anyone whose land is used for snowmobiling.219

Second, unlike the SASA, Part 821 expressly provides protection for both personal
injury and property damage.

Third, and perhaps most importantly, the SASA protects a ski area operator from
suit when a skier is injured as a result of a collision with another, negligent skier. This is
because only a violation of an SASA-imposed duty subjects the ski area operator to
liability, and the SASA does not impose a duty upon ski area operators to ensure that its
patrons ski in a non-negligent manner.220 Part 821, however, arguably does not provide
such a blanket protection to landowners for injuries caused by collisions with other,
negligent snowmobilers. The reason is that Part 821 expressly states that the risks
assumed by snowmobilers do not include injuries that result from another person’s use of
a snowmobile in a careless or negligent manner likely to endanger person or property.

This, obviously, allows the injured snowmobiler to bring a lawsuit against the
second, negligent snowmobiler. What is debatable, however, is whether this
simultaneously signifies that a landowner has a duty to employ reasonable measures to
ensure that every snowmobiler who uses the property operates their snowmobile in a
careful and non-negligent manner. We believe that if Part 821 does impose such a duty
on the landowner, the duty would be limited unless the landowner has received valuable
consideration for the use of his land by the snowmobiler.

The reason is that we believe that Part 821 would have to be read together with the
RUA, which was discussed earlier, and which expressly applies to snowmobiling. Under
the RUA, a landowner who has not received valuable consideration from a snowmobiler
can only be held liable for personal injury sustained by the snowmobiler upon a showing
of gross negligence or wilful and wanton misconduct. Accordingly, the landowner could
only be held to the higher duty to employ reasonable measures to protect a snowmobiler
from personal injuries caused by the negligence of another snowmobiler if the landowner
has received valuable consideration for the use of his land. It should be remembered,
however, that the RUA does not limit a landowner’s liability for property damage and, thus,
would not affect the landowner’s potential liability for property damage claims.

B. OPERATOR LIABILITY

As with ORVs, the ordinary negligence or “reasonableness” standard of care applies
in all cases involving injury arising out of the operation of a snowmobile, even cases
involving injury to a co-participant.
There are two reasons for this. First, under Part 821 the term “snowmobile”

encompasses any motor-driven vehicle that is not registered with the Secretary of State
as a motor-vehicle and is designed to travel primarily on snow or ice by using skis, sled-
type runners, an endless belt tread, or any combination of those or other similar
components.221 Thus, as with ORVs, the fact that a snowmobile must be motor-driven
makes it qualify as a “motor vehicle” under the Motor Vehicle Code.222 The Motor Vehicle
Code, as explained in the section regarding ORVs, provides that liability for injuries to
person or property arising out of the operation of a motor vehicle may be imposed for
ordinary negligence. It also renders the vehicle’s owner liable for the vehicle’s negligent
operation in addition to the vehicle’s operator so long as the vehicle is being driven with the
owner’s express or implied consent or knowledge, and consent is presumed if the operator
is an immediate family member of the owner.223

Second, as discussed in the section regarding landowner liability, Part 821 contains
an assumption of the risk provision that bars an injured snowmobiler from recovering
damages for injuries arising out of certain dangers that are obvious and inherent in the
sport of snowmobiling. Specifically excluded from this list are injuries to persons or
property arising from another persons use of a snowmobile in a careless or negligent
manner likely to endanger a person or property.224 This expressly indicates that the
ordinary negligence or “reasonableness” standard of care, rather than the common-law
recklessness standard, applies to injuries among co-participants.225

As with ORVs, what is considered “reasonable” for a snowmobiler to do under the
circumstances can be affected by several different local ordinances, administrative
regulations, and statutes.226 However, because Part 821 is universally applicable to the
operation of snowmobiles, the following is a summary of some of its provisions that may
be relevant to determining a snowmobile operators duty of care in certain circumstances.
In cases involving injury to a co-participant, some of these provisions may also be relevant
to the determination of a claim of comparative negligence.

1. REQUIRED EQUIPMENT FOR SNOWMOBILES AND OPERATORS

• Both operators and passengers of snowmobiles must wear a crash helmet
that has been approved by the US Department of Transportation unless the
snowmobile is being operated on the operator’s own private property;227
• A snowmobile may not be operated unless it is equipped with: (1) brakes
capable of stopping the snowmobile in a distance of less than 40 feet when
carrying an operator weighing 175 pounds or more and traveling 20 miles per
hour across packed snow, (2) a headlight, and (3) a taillight.228 The headlight
and taillight must be lighted any time the snowmobile is being operated and
the headlight cannot be covered with a lens cap or any cover.229

2. GENERAL OPERATIONAL PROVISIONS

• A snowmobile may not be operated at “a rate of speed greater than is
reasonable and proper having due regard for the conditions then existing”;230
• A person may not operate an snowmobile if their license to operate a motor
vehicle has been suspended or revoked;231
• A person may not operate a snowmobile if they are under the influence of
alcohol or a controlled substance, or a combination of alcohol and a
controlled substance. Similarly, the owner or person in charge of the
snowmobile, if different from the operator, may not authorize or knowingly
permit such a person to operate the snowmobile;232
• A snowmobile may not be operated within 100 feet of a dwelling between
midnight and 6 a.m. at a speed greater than the minimum required to
maintain forward movement;233

• If a snowmobile is operated on frozen public waters, it cannot be operated
within 100 feet of: (1) a person that is not in or upon a snowmobile, (2) an ice
fishing shanty, unless it is operated at the minimum speed required to
maintain forward movement of the snowmobile, or (3) an area cleared for ice
skating, unless it is necessary to operate the snowmobile across the area to
gain access to public water;234
• A snowmobile may not be operated within 100 feet of a slide, ski, or skating
area unless the snowmobile is being operated on a county road right-of-way
or a snowmobile designed and maintained by the Department of Natural
Resources, or the snowmobile is being used to service the area or for a
medical emergency;235
• A snowmobile may not be operated in an area open to the public for hunting
during the regular firearm deer season except in limited situations;236
• A snowmobile may not be used to transport a firearm unless the firearm is
unloaded and encased. A snowmobile may not be used to transport a bow
unless the bow is unstrung or encased;237
• The operator of a snowmobile that is involved in an accident involving the
injury to or death of another person must immediately and by the quickest
means of communication notify the state police, county sheriff, or local
police. This notification provision also applies if the accident involves
property damage in an estimated amount of $100 or more;238

3. THE OPERATION OF SNOWMOBILES ON STREETS, HIGHWAYS, AND OTHER AREAS

• Snowmobiles may not be operated on public highways or streets, on land
used as an airport, or on public or private parking lots that are not specifically
designated for the use of snowmobiles unless one of the following exceptions
apply:

• Unless it has been prohibited by the Departments of Transportation and
Natural Resources, a snowmobile may be operated on the right-of-way of a
public highway (i.e., the area beside the shoulder of the highway),240 but not
a limited access highway,241 if it is operated at the extreme right of the open
portion of the right-of-way and with the flow of traffic. The snowmobile may
be operated against the flow of traffic, or in the right-of-way of a limited
access highway, only if the right-of-way is a snowmobile trail maintained by
the Department of Natural Resources. All snowmobiles traveling within the
right-of-way must travel single file unless when passing another snowmobile.
Unless another speed limit is posted, the snowmobile cannot exceed the
speed limit posted for traffic traveling upon the highway;
• A snowmobile may be operated on the shoulder of a roadway, or the
roadway itself, only when necessary to cross a bridge or culvert and only if
the snowmobile is brought to a complete stop before entering the roadway
or shoulder and the snowmobile operator yields the right of way to
approaching vehicles;
• A snowmobile operator may cross a public highway (but not a limited access
highway) at right angles in order to get from 1 area to another so long as the
operator can do so safely and another vehicle is not crossing the highway at
the same time in the same general area. However, the snowmobile operator
must bring the snowmobile to a complete stop before crossing the highway
and must yield the right-of-way to oncoming traffic;
• A snowmobile may be operated on a highway in a county road system that
is not normally snow plowed for vehicular traffic if the highway is outside of
the corporate limits of a city or village and has been designated and marked
for snowmobile use by the county road commission;
• A snowmobile may be operated on the shoulder or right-of-way of a highway
in a county road system that has been plowed if the highway is outside of the
corporate limits of a city or village and the shoulder or right-of-way have been
designated for snowmobile use by the county road commission;
• Snowmobiles may be operated on public highways or streets when
authorized by law enforcement officers during an emergency when snow or
other conditions prevent the use of other types of motor vehicles for
transportation;
• Snowmobiles may be operated on highways or streets when permitted by a
local unit of government for special events;
• A snowmobile may be operated upon a public highway or street that a local
unit of government has by ordinance designated as an egress and ingress
route for snowmobiles;242
• Significantly, if a snowmobile is operated on a roadway and is involved in an
accident with a motor vehicle, a rebuttable presumption arises that the
snowmobile operator was negligent in causing the accident;243

4. THE OPERATION OF SNOWMOBILES BY MINORS

• A child between the ages of 12 and 16 may not operate a snowmobile, nor
may the snowmobile’s owner permit the child to operate the snowmobile,
unless: (1) the child is under the direct supervision of an adult that is at least
21 years of age, or (2) the child has completed an approved snowmobile
safety education program and has a snowmobile safety certificate in their
immediate possession, or (3) the child is operating the snowmobile on land
that is owned or under the control of the child’s parent or legal guardian;244
• A child between the ages of 12 and 16 may not cross a street or highway,
nor may the snowmobile’s owner permit the child to cross a street or
highway, unless the child has a snowmobile safety certificate in his or her
immediate possession;245
• A child that is under the age of 12 may not operate a snowmobile, nor may
the child’s parent or legal guardian or the snowmobile’s owner permit the
child to operate the snowmobile, unless the snowmobile is being operated
on land owned or under the control of the child’s parent or legal guardian and
the child is under the direct supervision of an adult that is at least 21 years
of age;246
• A child that is under the age of 12 may not cross a street or highway, nor
may the snowmobile’s owner permit the child to cross a street or highway.247

C. Snowmobiles and Governmental Immunity

As discussed at length in the beginning section of this manual, the general tort
liability act, MCL 600.1401, et seq., broadly immunizes governmental agencies from tort
liability with few exceptions, the most pertinent being the so-called “highway exception” that
in some instances strips governmental agencies of immunity for injuries occurring on public
highways that are not reasonably repaired or maintained so as to be reasonably fit for
public travel. With respect to the operation of snowmobiles, however, the highway
exception is greatly altered by MCL 324.82124(2), which provides that counties do not
have a duty to maintain highways under their jurisdiction in a condition that is reasonably
safe and convenient for the operation of snowmobiles.248

Moreover, MCL 324.82124(3) provides that counties are immune from tort liability
for injuries or damages that arise in any way from the operation or use of a snowmobile on
maintained or unmaintained highways, shoulders, and rights-of-way over which the county
jurisdiction unless the county engages in “gross negligence,” which means “conduct so
reckless as to demonstrate a substantial lack of concern for whether an injury results.”

Unlike with ORVs, the above limitations apply only to counties, not municipalities.
249 Thus, a municipality’s potential liability for injuries sustained while operating a
snowmobile upon land owned by a municipality will be governed by the general provisions
of the governmental tort liability act discussed in the beginning section of this manual.

D. SNOWMOBILES AND THE NO-FAULT ACT

The Michigan Court of Appeals has recognized that although snowmobiles are
capable of being operated upon a public highway, they are not designed for operation upon
a public highway within the meaning of the no-fault act’s definition of “motor vehicle.”250
The Court of Appeals has also held that the no-fault act’s requirement that a vehicle have
more than 2 wheels in order to qualify as a “motor vehicle” refers only to wheels that
actually touch the ground and propel the vehicle, and not “extraneous wheels or those
used with runners or belt-type treads.”251 Accordingly, the result is that a snowmobile does
not qualify as a “motor vehicle” for the purposes of the no-fault act even when operated
upon a public highway.

Thus, the provisions of the no-fault act (including the tort threshold) only apply to
accidents involving snowmobiles if the accident also involves another vehicle that does
qualify as a “motor vehicle” under the no-fault act. If such is not the case, than potential
liability for accidents involving snowmobiles is governed by the common-law tort principles
described above.

V. HUNTING

At one time hunting accidents were a relatively common occurrence in Michigan. For
instance, according to statistics published by the Department of Natural Resources,
approximately 700,000 hunting licenses were sold in 1940 and there were 77 hunting-
related injuries and 35 deaths. In 1974, approximately 1.1 million licenses were sold and
there were 275 hunting-related injuries and 13 deaths.

However, in the 1970s the Legislature began enacting laws to promote safety within
the sport, including among other things the requirements that all hunters wear orange
clothing and complete safety education courses. Undoubtedly due in large part to such
measures, as well as increased safety awareness and hunter education, the number of
hunting accidents has decreased significantly — even despite the rapidly increasing
number of people who hunt each year.

Indeed, in 2005 there were approximately 2 million hunting licenses sold — nearly
triple the number sold in 1940 and almost double the number sold in 1974. However, there
were only 19 hunting-related injuries and 3 deaths in that year. 252 In 2006, in all of northern
Michigan — including all counties contiguous with or north of Clare — there were only 11
hunting-related injuries and only 2 deaths, and 7 of those injuries and 1 of the deaths were
self-inflicted.253

Nevertheless, the sheer popularity of the sport combined with the fact that it
necessarily entails the use of a firearm or other dangerous weapon warrants a brief
discussion of the attendant standards of care.

A. LANDOWNER LIABILITY

Because of hunting’s immense popularity in Michigan, the Legislature has provided
special protections for landowners (as well as tenants and lessees of the land) who allow
others to hunt on their land in order to ensure that adequate lands are available to hunters.

The first of these special protections is contained in Part 435254 of the Natural
Resources and Environmental Protection Act, which governs hunting and fishing licensing.
MCL 324.43556 of Part 435 allows the Department of Natural Resources to use money
gathered from, among other things, the sale of hunting licenses to lease privately owned
lands for use by hunters. If a landowner enters into such a lease, the statute provides that
the landowner cannot be sued by an injured hunter unless the injury is caused by the
landowner’s gross negligence or wilful and wanton misconduct.255 This is the same
standard made applicable by the RUA and the RTS (discussed above) to landowners who
have not received payment or other valuable consideration for the recreational use of their
lands.

The other special protection is found in MCL 324.73301(4) of the RUA and MCL
324.73107(2) of the RTS, which apply when a landowner receives payment or other valuable
consideration directly from a recreational user who uses the land for the purposes
of hunting (as well as fishing or trapping).256 These provisions provide the landowner with
less protection than is afforded by the RUA and RTS when the landowner does not receive
consideration because the extremely high “gross negligence” or “wanton and wilful
misconduct” standard does not apply.

The landowner receiving compensation still receives more protection under the RUA
and RTS than he would under the common law, however, because liability can only be
imposed for a personal injury arising from a condition on the land that: (1) the landowner
knew about or should have known about, (2) the injured person did not know about or have
reason to know about, and (3) that the landowner did not use reasonable care to warn the
injured person about or protect the injured person from. Accordingly, even though the user
would technically qualify as an invitee at common law, this statute essentially makes the
landowner’s obligation the same as if the user were a licensee — with one other significant
advantage. That is, the landowner’s obligation does not extend to all dangerous conditions
on the land but, rather, only ones that present an “unreasonable risk of harm.”

This means that even though the landowner is required to take reasonable steps to
protect the land user, the landowner is not required to absolutely insure the land user’s
safety.257 Rather, the landowner need only warn or protect the land users from conditions
that have “special aspects” creating a high risk of severe harm.258 An effective illustration
of a condition posing an “unreasonable risk of harm,” based heavily on one presented in
a recent decision of the Michigan Supreme Court, would be a thirty-foot deep pit in the
middle of a field rented to bird hunters. Even though the pit may be so open and obvious
that the bird hunters would be expected to see it and avoid falling in, the landowner would
still be required to provide warnings, cover the pit, or place a fence around it, etc. This is
because the pit would present such a substantial risk of death or severe injury if a bird
hunter were to fall in that it would be unreasonably dangerous for the landowner to
maintain the pit while inviting bird hunters onto his land.259

What is unclear about these two provisions of the RUA and RTS is whether they will
ultimately be interpreted as altering a landowner’s potential liability for injuries sustained
due to the landowner’s activities. The reason is that these provisions arguably afford even
greater protection to the landowner who receives valuable consideration for the right to
hunt, fish, or trap on his property than the landowner who does not receive valuable
consideration for such uses. This is because, by their plain terms, these statutes provide
that a personal injury action cannot be brought against such a landowner unless the
injuries are caused by a condition on the land; no reference is made to the landowner
being subject to liability of any kind for injuries caused by the landowner’s activities. Thus,
reading these provisions literally, a landowner cannot be sued by a hunter, fisher, or
trapper who is injured by an activity of the landowner, even if the landowner was grossly
negligent in the performance of that activity.260

While it is possible that the courts may ultimately interpret these provisions in such
a manner, we believe there is an equally strong chance that the courts would ultimately
reject such an interpretation and hold that the provisions only affect the landowner’s
potential liability for injuries caused by conditions on the land, and not for injuries caused
by the landowner’s actions. This is because courts sometimes construe statutes altering
the common law so as to make the least change in the common law.261 If the courts
ultimately take this approach, landowners who received payment for the use of their lands
for hunting, fishing, and trapping would be subject to the common law rules of liability for
personal injury sustained by a paying recreational user as a result of a negligent act by the
landowner.

B. HUNTER LIABILITY

The standard of care owed by a hunter — both to co-participants and nonparticipants
— has historically been the ordinary negligence standard, which means that
a hunter is required to exercise the degree of care that a reasonable person would exercise
under the same or similar circumstances.262

Although the issue has not yet been considered by the Courts, we believe that the
recklessness standard recently adopted by the Michigan Supreme Court as the general
standard of care among co-participants will likely not apply to hunting — at least insofar as
hunting activities involving the actual use of a firearm or bow.263 The reason is that several
statutes make it unlawful to negligently or carelessly discharge a firearm or bow so as to
cause death, personal injury, or property damage.264 Thus, we believe that the
reasonableness standard will continue to apply to all hunting accidents.

There are a myriad of statutes, administrative regulations, and local ordinances that
may have some bearing on the reasonableness of a hunter’s actions, and it would be
impossible for us to discuss all of them here. Accordingly, what follows is a brief overview
of some of the most important statutory provisions that may apply:

• A person may not hunt or discharge a firearm within 150 yards of an
occupied building, dwelling, house, residence, or cabin, or within 150 yards
of any barn or other farm building, without first obtaining written permission
from the property’s owner, renter, or occupant;265
• A person may not discharge a firearm within the right-of-way of a public
highway that abuts platted property, or fenced, enclosed, or posted property,
or farm property, or a wooded area that is connected to farm property, unless
the person obtains permission from the owner of the property;266
• Between August 15 and April 30, a person may not hunt during established
daylight hunting hours unless they are wearing as their outermost garment
an orange cap, hat, vest, jacket, or rain gear that is visible from all sides,
unless the person is bow hunting for deer during archery season, bow
hunting for bear, or hunting for turkey or certain migratory birds. Importantly,
a hunter’s failure to wear hunter orange cannot be used as evidence of
contributory negligence in a personal injury or wrongful death action;267
• A person may not hunt or carry a firearm or other weapon while intoxicated
or under the influence of alcohol or a controlled substance, or a combination
of both;268
• A child that is less than 10 years old cannot obtain a license to hunt any type
of game;269
• A child that is less than 12 years old cannot obtain a license to hunt deer,
bear, or elk with a firearm;270
• A parent or legal guardian of a child that is less than 14 years old may not
allow the child to hunt deer, bear, or elk with a firearm unless the child is
hunting on private land and is accompanied by someone who is at least 18
years old.271 For the child to be accompanied by the adult means that the
adult stays close enough to the child to have uninterrupted and unaided
visual and auditory communication with the child and be able to come to the
child’s immediate aid;272
• A parent or legal guardian of a child that is less than 17 years old may not
allow the child to hunt any type of game unless the child hunts only on the
parent or guardian’s land or, if the child is to hunt on other lands, the child is
accompanied by someone who is at least 18 years old;273
• A person may not intentionally or knowingly obstruct or interfere with another
person’s attempt to hunt or otherwise lawfully take animals. Intentional or
knowing obstruction or interference includes, among other things:
1. Driving or disturbing the animals,
2. Blocking, impeding, or harassing the hunter,
3. Trying to affect animal behavior with natural or artificial stimuli
such as scents, sounds, lights or other visual emanations, etc.,
4. Erecting barriers around property where the hunter is lawfully
entitled to take game (i.e., public lands or property not owned
by the intervenor), or trying to deny the hunter ingress or
egress to the area,
5. Interjecting oneself into the hunter’s line of fire,
6. Doing anything to affect the condition of, or impair the
usefulness of, public or private property intended to be used by
a hunter (such as tearing down a hunter’s blind),
7. Trespassing on private lands for the purpose of doing any of
the above.274

VI. FISHING

Fishing rivals, and perhaps even surpasses, hunting as one of Michigan’s most
popular outdoor recreational activities. In 1999 the Department of Natural Resources
estimated that there were as many as two million anglers in Michigan,275 which is roughly
the same number of hunting licenses sold in 2005.276 Moreover, according to the DNR
estimates, licensed anglers contribute approximately $2 billion annually to the Michigan
economy, as compared to approximately $1.3 billion contributed annually by licensed
hunters.277 Accordingly, as with hunting, fishing’s sheer popularity warrants a brief
discussion of potential liability arising therefrom.

A. LANDOWNER LIABILITY

As with hunting, the Legislature has provided special protection to landowners who
allow others to use their lands for recreational fishing. This special protection is found in
MCL 324.73301(4) of the RUA and MCL 324.73107(2) of the RTS, which are discussed
in the previous section regarding landowner liability for hunting. Because we have already
discussed those provisions in that section, we will not repeat our discussion here but rather
refer the reader to that section.

B. ANGLER LIABILITY

For the most part, the general liability principles discussed at the beginning of this
manual will apply. That is, with respect to injuries caused to persons other than coparticipants,
an angler’s liability will be governed by the general negligence, or
“reasonableness” standard of care.

With regard to an angler’s liability for injuries caused to co-participants, although the
courts have not yet specifically addressed the issue it appears that the “recklessness”
standard, rather than the ordinary negligence standard, applies — unless the injury arises
from the angler’s use of a motorboat or personalized watercraft. In such a case, as is
discussed in the following section of this manual regarding recreational boating accidents,
the ordinary negligence standard is made applicable by statute.278 Further, just as with
ORVs and snowmobiles, the owner of the recreational watercraft is responsible for its
negligent operation if the owner has expressly or impliedly consented to the operation, and
consent is presumed where the operator is an immediate family member of the owner.279

VII. EQUINE ACTIVITIES

Horseback riding enjoys wide popularity in northern Michigan due to several large
equestrian facilities in the area and several hundred miles of accessible riding trails, such
as the approximately 230 mile long Shore-to-Shore trail that runs from Empire on Lake
Michigan across the Lower Peninsula to Oscoda on Lake Huron. And, horseback riding
can be an extremely dangerous activity for many reasons, including the individual
propensities and unpredictable nature of horses themselves.280

A. STABLE OWNER LIABILITY

At common-law, liability for equestrian-related accidents was generally determined
in one of two ways. In most cases, general negligence principles similar to those that have
been discussed previously were applied, such as in cases where the injury arose from a
dangerous condition on the land281 or an activity by the landowner. However, in some
cases where the injury was caused by the dangerous propensity of the equine itself, liability
was strictly imposed, meaning that the landowner (if also the owner or custodian of the
equine282) was held to be liable for damages regardless of whether the landowner himself
was at fault in causing the injury.283 These common-law liability principles left stable
owners and others who allowed horseback riding on their property prone to lawsuits,
concomitantly resulting in significantly increased premiums for liability insurance. Indeed,

the situation became so dire that at one point in the 1980s insurance carriers altogether
stopped issuing policies to horse rental facilities. This, coupled with other problems such
as increased costs for horses and equipment, had such a negative impact on stable
owners that over one-third of Michigan’s public riding stables ceased operations during a
ten-year period between the mid 1980s and mid 1990s.284

This prompted the Legislature to enact the Equine Activity Liability Act (“EALA”),
MCL 691.1661, et seq., in an effort to protect commercial riding stables by shrouding
owners and other individuals with immunity from litigation in certain situations. Specifically,
the EALA prevents a participant in an equine activity who is injured, dies, or sustains
property damage from suing equine activity sponsors, equine professionals, or other
persons when the damages arise out of an inherent risk of an equine activity.285 The
Legislature’s hope was that this would stabilize the ever-increasing costs of liability
insurance premiums and stop public stable operators from having to close down.286

1. WHEN THE EALA APPLIES: EQUINE ACTIVITIES

The EALA applies when there is an accident involving an “equine” — which includes
not only horses but also ponies, mules, donkeys, and hinny’s (a hybrid of a male stallion
and female donkey)287 — so long as the accident occurs during an “equine activity.” This
equine training and teaching, equine boarding and daily care, equine breeding, and farrier
duties. It further includes riding, inspecting, or evaluating equines belonging to others
regardless of whether the equine owner receives consideration, as well as equine rides,
trips, hunts, or other activities that are sponsored by equine activity sponsors (defined
below) even if the event is merely informal or impromptu.

Finally, the phrase “equine activity” encompasses almost any equine show, fair,
parade, performance, or competition. Examples of such events provided by the statute
include dressages, hunter and jumper shows, grand prix jumps, 3-day events, combined
training, rodeos, riding events, driving events, pulling events, cutting events, polo events,
steeplechasing, English and western performance riding, endurance trail riding, gymkhana
games, and hunting events. However, the statute expressly provides that this list is not all-
inclusive, thus meaning that the statute also applies to other events that share traits
common to the ones specifically enumerated.288

About the only equine activities that are expressly excluded from the EALA are
“horse race meeting[s].” 289 Although the EALA does not define the term “horse race
meeting,” case law indicates that it would include any equine race licensed by the

commissioner of racing or another regulatory body whose authority is acknowledged by the
commissioner of racing. Furthermore, the case law has interpreted this phrase to include
not only the actual race itself, but also activities occurring before or after the race or away
from the track that are regulated in conjunction with the race. Thus, for example, in one
case it was held that the EALA did not afford protection to a race track owner where the
plaintiff was injured while exercising a horse in preparation for a race rather than during the
race itself.290

2. TO WHOM THE EALA APPLIES
a) WHO THE EALA PROVIDES IMMUNITY TO

The EALA provides immunity to anyone who qualifies as an “equine activity sponsor,
an equine professional, or another person.”

The phrase “equine activity sponsor” is very broad and includes any individual,
group, club, partnership, or corporation that sponsors, organizes, or provides the facilities
for an equine activity. As examples, the statute lists stable and farm owners, as well as
persons who operate, instruct at, or promote equine facilities such as stables, clubhouses,
ponyride strings, fairs, or arenas. Other examples listed include 4-H clubs, hunt clubs,
riding clubs, and therapeutic riding programs.291

The phrase “equine professional” is also very broad and includes anyone who
engages in certain equine activities for compensation, including persons who provide
instruction, rent equines, rent equine equipment, rent tack, care for boarded horses, train
equines, or breed equines for resale or stock replenishment.292 Accordingly, under these
definitions, the EALA would provide protection not only to the person who owns the land
where an equine activity occurs, but also to various other persons such as those who
sponsor or promote equine activities, employees of equine facilities, etc.

Furthermore, by using the phrase “or another person,” the statute makes clear that
immunity is not granted only to the broad class of persons who qualify as equine activity
sponsors or equine professionals, but also to other persons or entities that share traits
common to equine activity sponsors and equine professionals.293

b) WHO THE EALA PREVENTS LAWSUITS BY

The EALA prevents lawsuits by “participants” and representatives of participants.
A “participant” includes anyone who “engages in an equine activity,” regardless of whether
they paid to participate in the equine activity and regardless of whether they are an
amateur or a professional.294

Like most other phrases used in the EALA, the phrase “engage in an equine activity”
is very broad and includes most activities in which a person is actively involved with an
equine, including riding, training, driving, breeding, providing or assisting in veterinary
treatment, or being a passenger upon an equine295 regardless of whether the passenger
was actually in control of the equine. 296 However, the phrase “engage in an equine activity”
is not limited only to activities in which a person is actively involved with the equine.
Rather, it also includes utilizing an equine facility as part of an organized event or activity,
assisting a participant or show management at an organized event or activity, and even
visiting or touring an equine facility.297

The only activity that is specifically excluded from the definition of “engage in an
equine activity” is being a “spectator” at an equine activity. 298 The EALA does not define
the term “spectator.” However, cases interpreting the statute have indicated that the term
encompasses only those persons who attend equine events solely as onlookers or
observers.299 Thus, in one case a woman was found to be a “participant” rather than a
“spectator” where she went to a stable merely to watch a riding lesson but also toured the
facility and briefly engaged in the grooming of a horse.300 Similarly, in another case, a
woman was found to be a “participant” rather than a “spectator” when she attended a horse
auction with no intention of purchasing a horse but did speak to owners about their horses
with the intention of contacting them if she decided to purchase a horse in the future.301

It is also the case that even if a person would otherwise qualify as a mere “spectator” rather
than a “participant,” they are still precluded from filing suit if at the time the damage occurs
the spectator had ventured into an unauthorized area and was in immediate proximity to
an equine activity.302

3. WHAT LAWSUITS THE EALA PRECLUDES

It is important to recognize that the EALA does not provide immunity from all
lawsuits for personal injury, death, or property damage arising out of an equine activity.
Rather, the EALA only provides immunity if the injury, death, or property damage results
from “an inherent risk of an equine activity.”303 An “inherent risk of an equine activity” is a
“danger or condition that is an integral part of an equine activity.” Such dangers or
conditions include:

• The propensity of an equine to behave in ways that may result in damage;
• The impossibility of predicting an equine’s reaction to such things as sounds,
sudden movement, people, other animals, or unfamiliar objects;
• Hazards such as surface or subsurface conditions; and
• Collisions with other objects or equines.304

These are only examples of inherent risks of equine activities, however, and not an
all-inclusive list. Thus, the phrase “inherent risk of an equine activity” would include other
dangers or conditions that share traits common to the ones specifically enumerated.305

By defining “inherent risk of an equine activity” in this manner, the EALA has
essentially abolished the common-law theory of strict liability for damages caused by the
dangerous propensity of the equine itself.306 It also limits liability for damages caused by
dangerous conditions on the land, such as surface or subsurface conditions or collisions
with objects.

Importantly, however, the EALA does not provide complete immunity from liability
for damages caused by dangerous conditions on the land, nor does it alter in any way the
liability for damages caused by negligent activities that do not involve an “inherent risk of
an equine activity.”307 The statute makes this clear by stating that immunity from liability
is not provided by the EALA if the equine activity sponsor, equine professional, or other
person does any of the following:308

• Provides a participant with faulty tack or equipment that is a proximate cause
of the damages sustained by the participant, and either knows or should
know that the tack or equipment was faulty;
• Provides a participant with an equine without making reasonable and prudent
efforts to determine the participant’s ability to safely manage the particular
equine and safely engage in the equine activity. Reliance upon the
participant’s representations of his or her ability does not suffice as
reasonable and prudent efforts unless the participant supports his
representations of ability with reasonably sufficient detail;
• Owns, leases, rents, authorizes the use of, or otherwise has lawful
possession and control of land or facilities containing a known dangerous
latent condition and fails to post conspicuous warning signs;
• Commits a negligent act or omission that is a proximate cause of the
participant’s damages.309

It should be kept in mind that the fact that a participant’s damages are caused by
one of the acts or omissions listed above only means that complete immunity from liability
is not provided by the EALA — it does not mean that other, more limited protection may
not be provided by another statute. This is of particular importance to landowners
because, depending on the circumstances of the case, the RUA or the RTS may afford
protection to the landowner even though the EALA does not.
One final point that should be noted about the EALA is that it expressly requires
equine professionals to post signs and place provisions in certain contracts advising equine
activity participants that the EALA provides the equine professional with immunity from

liability for damages resulting out of inherent risks of equine activities.310 The statute does
not specify any penalty for lack of compliance, and in one recent case the Court of Appeals
stated that an equine professional’s failure to post such signs does not eliminate the
restrictions in liability provided by the EALA.311

We would note, however, that the Courts statement in this regard was made after
the Court had already resolved the case on another basis. Thus, the Court’s statement is,
technically, non-binding obiter dictum since it is not essential to the Courts resolution of the
case. Thus, it is possible that future cases may hold that an equine professional’s failure
to comply with the notice requirements results in a forfeiture of the EALA’s protections.312
Accordingly, we would caution equine professionals to make every effort to comply with the
statute by ensuring that adequate signs conforming to the statutory requirements are
properly posted, and that appropriate provisions are placed in contracts with equine
participants.

B. PARTICIPANT LIABILITY

The potential liability of a participant in an equine activity for injury caused to
someone that is not a co-participant in the equine activity has not been altered or affected
by statute. However, the EALA significantly alters potential liability among co-participants
in equine activities in certain instances. This is because the common-law recklessness
standard does not apply if the co-participant causing the injury qualifies as “an equine
activity sponsor, and equine professional, or another person” and the injury results from
an “inherent risk of an equine activity.” In such a case, the injury-sustaining co-participant
is completely prohibited from bringing suit.

VIII. BICYCLING

Bicycling refers to the operation of any device that can be ridden which has 2 or 3
wheels over 14 inches in diameter and is propelled by human power. 313 It is undeniable
that bicycling — including road cycling, mountain biking, and leisurely spins through town
or along a designated trail such as the Traverse Area Recreational Trail in Traverse City

— is one of the most popular recreational activities in northern Michigan

A. LANDOWNER LIABILITY

Despite the popularity of bicycling, the Legislature has not enacted any statutory
scheme related specifically to a landowner’s liability for injuries or property damage
sustained by persons who use their lands for recreational bicycling. Accordingly,
landowner liability with regard to bicycling is governed by the general liability principles
(including the RUA and RTS) discussed at the beginning of this manual.

B. BICYCLIST LIABILITY

The duties owed by a bicyclist depend to a great degree upon the type of riding
being done or, more specifically, where the riding occurs. Bicycling that does not take
place on a street or highway, or on a sidewalk, (i.e., mountain biking, etc.) is largely
unaffected by statute, except for a few provisions of the Motor Vehicle Code which are
discussed below.

Accordingly, for the most part the common law duties described above will govern
the standard of care owed by the cyclist, unless the duty is affected by administrative
regulations or local ordinances governing such things as whether certain areas are open

313 MCL 257.4.
to bicycling, speed limits, etc. For example, in Traverse City the City Commission is

empowered by ordinance to post certain public areas as being off limits to bicycles.314
Traverse City has also, like many Michigan municipalities, adopted the Uniform Traffic
Code 315 (“UTC”) promulgated by the Michigan State Police, which contains a few
regulations applicable to bicycles that are ridden on public paths designated for use
exclusively by bicycles.316 Thus, persons who engage in recreational biking in areas other
than upon a street or highway, such as off-road trails or designated bike paths, should be
careful to research and review any local ordinances or administrative rules that may apply
to the particular area.

If a bicycle is ridden on a street or highway the duty of care owed by the cyclist is
greatly impacted by statute. This is because a person that rides a bicycle on a roadway
is subject to the same duties and requirements as a person operating a motor vehicle on
the roadway. 317 Accordingly, a person riding a bicycle upon a street or highway must abide
right-of-way rules, speed restrictions, traffic signals, and other rules of the road set forth
in Chapter 6 of the Motor Vehicle Code, MCL 257.601, et seq, just as they would if they
were driving a car upon the same street or highway. Since we presume that most persons
reading this manual are already familiar with these laws, we will not summarize them here.

However, the Motor Vehicle Code also contains a few provisions specifically
governing the operation of bicycles upon streets or highways, which are contained in MCL

257.656 through MCL 257.662. The following is a summary of some of these provisions
that may be relevant to determining a bicyclists’ duty of care in certain circumstances. In
cases involving injury to a co-participant, some of these provisions may also be relevant
to the determination of a claim of comparative negligence:

1. REQUIRED EQUIPMENT AND GENERAL OPERATIONAL PROVISIONS

• A bicyclist may not ride anywhere other than upon the actual bicycle seat.318
• A bicycle cannot be used to carry more persons than it is designed and
equipped to carry;319
• A bicyclist cannot carry any package or other object that prevents the
bicyclist from keeping both hands on the handle bars;320
• A bicycle must have brakes capable of making the bike skid on dry, clean,
and level pavement when applied by the cyclist. 321 Note that this provision,
as well as the three proceeding ones, are not limited by their terms only to
bikes operated upon a street or highway and, thus, likely apply to any type
of recreational bicycling;
• A bicycle being ridden on a roadway cannot be pulled or otherwise attached
to a motor vehicle;322
• A bicycle that is ridden on a roadway between ½ hour after sunset and ½
hour before sunrise must have a white headlight that is visible from at least
500 feet in front of the bike, and a red reflector on the back of the bike that
can be seen from 600 feet behind the bike when struck with car headlights;323
• There is no statutory requirement that a bicyclist wear a helmet, and
according to information provided by the Bicycle Helmet Safety Institute no
northern Michigan municipality that has enacted an ordinance requiring
bicyclists to wear helmets.324 However, we would note that the Michigan
Department of Transportation reports that head injuries account for most
fatalities and serious injuries among bicyclists.325

2. MANNER OF OPERATION UPON A ROADWAY

• A bicycle that is being ridden upon a street or highway at a rate of speed that
is slower than existing traffic must stay as close as possible to the right-hand
curb or edge of the road unless:
(a) The cyclist is passing another bicycle or other vehicle that is
traveling in the same direction,
(b) The cyclist is preparing to turn left,
(c) The cyclist is riding in a lane in which traffic is turning right but
the cyclist intends to go straight,
(d) The cyclist is riding on a one-way street that is two lanes wide,
in which case the cyclist may ride near the left-hand curb or
edge of the roadway, or
(e) It is unsafe for the cyclist to ride on the right-hand edge of the
road, or the right-hand edge of the road is reasonably
unusable. This can occur because of the presence of, among
other things, surface hazards, unevenness in the roadway
surface, drain openings, debris, parked or moving vehicles or
bicycles, pedestrians, animals, or other obstacles, or if the lane
is not wide enough for a motor vehicle to safely overtake and
pass the cyclist;326
• Unless they are riding on a path or portion of a street or highway specifically
designated for bicycle use, bicyclists riding upon a street or highway cannot
ride more than 2 cyclists abreast;327

3. MANNER OF OPERATION UPON A SIDEWALK OR CROSSWALK

• Persons riding bicycles on a sidewalk or in a crosswalk have the same duties
and responsibilities that apply to pedestrians;
• A bicycle may not be ridden on a sidewalk or crosswalk if prohibited by an
official traffic control device;
• Persons riding bicycles on sidewalks or crosswalks must yield the right-ofway
to pedestrians and must give an audible warning before passing
pedestrians;328
4. MANNER OF PARKING A BICYCLE

• Bicycles may be parked along a street or highway wherever motor vehicles
are allowed to park, so long as the bicycle does not obstruct the movement
of parked motor vehicles;
• Bicycles may be parked on sidewalks, so long as they do not impede
pedestrian or other traffic, except where prohibited by an official traffic
control device.329

The duty of a person riding a bicycle upon a roadway, like the duty of a non-roadway
bicyclist, can also be affected by local ordinances or administrative rules. Accordingly, the
road cyclist should be careful to research and review any local ordinances or administrative
rules that may apply to the particular area.

WATER-BASED RECREATIONAL ACTIVITIES: RECREATIONAL BOATING

I. INTRODUCTION

In addition to being surrounded by four of the Great Lakes, Michigan also has
11,000 inland lakes and rivers and over 7,000 miles of streams that are accessible for such
activities as canoeing and kayaking.330 It is no surprise, then, that recreational boating is
a major activity in Michigan. Indeed, according to United States Coast Guard statistics, in
2006 there were over 820,000 registered boats in Michigan, making Michigan fourth among
all other US states and territories in terms of the number of registered boats behind only
California, Florida, and Minnesota. And, the total number of recreational water craft in the
state of Michigan is undoubtedly much higher, as the above number does not include
canoes, kayaks, non-motorized boats less than 16 feet in length, or boats whose owners
failed to comply with registration laws.331

Recreational boating’s popularity in Michigan, unfortunately, has a down side. As
with all recreational activities, with recreational boating comes recreational boating
accidents. And, accidents involving recreational water craft tend to be serious; unlike
automobiles, there are generally no seat belts, air bags, or other protective equipment.
Recreational boating and alcohol consumption often go hand-in-hand. In the event of a
collision or other accident, damage to the vessel and its occupants can be extreme.

Indeed, according to United States Coast Guard statistics, of the 185 recreational boating
accidents that were reported in Michigan in 2006, 134 resulted in injuries, 30 resulted in
fatalities, and the combined property damage exceeded $500,000.332 And these numbers
only represent the recreational boating accidents that were reported to the Coast Guard;
they do not include the potential hundreds or even thousands of boating accidents that
were not reported to the Coast Guard. 333 With these accidents, of course, comes potential
liability for personal injury and property damage.

II. THE LAW GOVERNING RECREATIONAL BOATING ACCIDENTS:
FEDERAL ADMIRALTY LAW VERSUS MICHIGAN LAW

Potential liability for recreational boating accidents is a more complex subject than
potential liability for the land-based recreational activities discussed previously. This is
because potential liability for the land-based recreational activities, with few exceptions, is
governed exclusively by Michigan law; i.e., statutes enacted by the Michigan Legislature,
cases decided by the Michigan Courts, rules promulgated by Michigan administrative
agencies, or local or municipal ordinances. The same is not true for recreational boating
accidents. Rather, recreational boating accidents often require consideration of a separate
body of federal law known as “admiralty and maritime law.”
The concept of a separate body of law devoted to maritime matters goes back to
ancient times, but admiralty law as we know it today was first developed by England. In
the 18 and 19 centuries that country was a great seafaring nation; so important was
maritime commerce to it that it developed a special body of law relating to admiralty
matters and special admiralty courts to apply it. This system ultimately was adopted in the
New World; the colonies established their own tribunals devoted to admiralty law, and
applied that law as it had been developed in England. This practice continued even after
the Declaration of Independence and the Revolutionary War. When the United States was
eventually formed, maritime commerce was so important that the drafters of the
Constitution believed in continuing the tradition of a system of admiralty jurisdiction, all
under national as opposed to state control. Accordingly, they included within the
Constitution, at Article III, § 2, the statement that the judicial powers of the federal courts
“. . . shall extend . . . to all cases of admiralty and maritime jurisdiction.”

In 1789, Congress enacted the Judiciary Act to carry out its constitutional directive
to establish a system of federal courts. The Act in its present form states:

The [federal] district court shall have original jurisdiction, exclusive of the

courts of the states, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to
suitors in all cases all other remedies to which they are
otherwise entitled.334

Taken together, these mean that admiralty law is primarily a creature of federal law.
Congress can pass statutes revising and supplementing admiralty law; the federal courts
can apply and interpret admiralty law. Accordingly, the federal maritime law consists of
three elements. The first is statutes of a maritime nature that have been promulgated by

Congress. The second is regulations promulgated by federal administrative agencies
pursuant to federal maritime statutes. The third is a body of law that has been developed
by the Courts itself known as the “General Maritime Law.” The General Maritime Law
functions as a sort of federal common law in the maritime setting that addresses or
supplements issues that are not directly addressed by federal maritime statutes.

If the federal admiralty law applies in a particular instance, then it must be applied.
Michigan law can supplement the federal law, but cannot contradict it. Accordingly, in
cases where the federal admiralty law applies, the potentially applicable laws can be
ranked as follows:

1. Federal statutes passed by Congress, and federal regulations
promulgated pursuant to those statutes;
2. Decisions of the federal courts, both interpreting and applying the
above and also those developing a judge-made body of law known as
the “General Maritime Law;” and
3. State and local laws and regulations, to the extent that they do not
contradict the first two.

The test for determining whether the federal admiralty law applies in a given case
is whether the case could be filed in a federal district court pursuant to the federal district
court’s admiralty jurisdiction. It is important to note that, with only a few exceptions which
will be discussed later, the vast majority of admiralty claims can be filed in either the federal
or Michigan courts. This is because, in legal parlance, the federal and state courts have
“concurrent jurisdiction” over most lawsuits in the recreational boating setting. However,

the determining factor for whether the federal admiralty law applies is not whether the law
suit is actually filed in federal district court, but rather whether it could be filed in federal
district court on the basis of admiralty jurisdiction. If the law suit could be filed in federal

district court on the basis of federal admiralty jurisdiction, then the federal admiralty law
applies even if the lawsuit is filed in a Michigan court and the Michigan court must apply
that law. Accordingly, it is important to have a general understand of the reach of the
admiralty jurisdiction of the federal district courts.

The traditional reach of admiralty jurisdiction is the sea, including waters within the
ebb and flow of the tide. In the 19th Century, jurisdiction was extended over all public
navigable waters as well, so as to include rivers, streams, lakes, and other bodies of water
so long as they were “navigable.” Therefore, a locality test — the place of the wrong — was
historically used to determine whether a lawsuit fell within the scope of the admiralty
jurisdiction of the federal courts. Today, however, that approach has been replaced with
a two part test. The elements for admiralty jurisdiction are now as follows:

1. The wrong must occur in navigable waters, and
2. The wrong must bear a significant relationship to traditional maritime
activity (the “nexus” requirement).

Both requirements must be met separately.
A finding of navigable waters involves two requirements. First, an interstate nexus
must be present; the body of water in question must be available as a continuous highway
for commerce between ports and places in different states. Second, the water must be
used or capable of being used for the customary modes of trade and travel on water. To
meet this test, proof of present or potential commercial shipping is required. For that
reason, inland lakes (located wholly within a state) are not navigable waters because they
are not capable of interstate commerce and often cannot sustain commercial shipping.
The second part of the test is more difficult to apply. In 1990 the U. S. Supreme

Court held that, in order for a wrong to bear a significant relationship to traditional maritime
activity, the incident must have the potential to disrupt maritime commerce and must be
substantially related to traditional maritime activity.335 The particular facts do not control
the result; rather, the general nature of the incident is to be considered in determining its
potential impact and the general character of the activity is considered in evaluating the
relationship to traditional maritime activity. Thus, “traditional maritime activity” is not limited
to actual navigation or operation of a vessel.

The case in which the Supreme Court clarified the “traditional maritime activity” test
involved a fire which destroyed a marina on Lake Michigan. The fire had originated in a
washer/dryer unit on the pleasure boat Ultorian, which was docked at the marina. There
was no real possibility of disruption to commerce. However, the Supreme Court held that
the general nature of the incident — a fire aboard a vessel at a marina on navigable waters
— satisfied the requirement of “potentially disruptive impact on maritime commerce.” As
for whether any “traditional maritime activity” was involved, the Court stated:

Our cases have made it clear that the relevant “activity” is defined not by the
particular circumstances of the incident, but by the general conduct from
which the incident arose . . . Thus, in this case, we need not ascertain the
precise cause of the fire to determine what “activity” Sisson was engaged in;
rather, the relevant activity was the storage and maintenance of a vessel at
a marina on navigable waters.

In short, even accidents which at first glance have nothing to do with “traditional
maritime activity” might meet the test.

Examples of how the “traditional maritime activity” test has been applied in
recreational boating accident claims include:

• Collisions: Collisions involving recreational craft in navigable waters clearly
meet the nexus test and accordingly admiralty jurisdiction applies. Similarly,
cases where pleasure boats have come into contact with navigation hazards,
obstructions, and shore structures have traditionally been held subject to
admiralty jurisdiction.

• Swimmers: Tort claims by swimmers where no vessel is involved have been
excluded from admiralty jurisdiction on the grounds that no “traditional
maritime activity” is involved. If a vessel was involved but played no role in
the accident — such as a person diving from an anchored vessel — courts
have declined to apply admiralty law, on the theory that no actual navigation
of the vessel was involved; however, this reasoning has been rejected by the
Supreme Court case discussed above. It is our anticipation that in the wake
of that decision such claims will be deemed to meet the admiralty jurisdiction
test. Finally, in cases where a swimmer is struck by a vessel in navigable
waters, the courts have held that the test is met and admiralty law applies.

• Waterskiing: This activity has historically been held to meet the “traditional
maritime activity” test; accordingly, where the accident occurs on
“navigable waters,” admiralty law will apply.

• Storage, Repair and Maintenance: In regard to damage to boats at marinas
or in storage, if the vessel is in navigable waters — i.e., it is at a dock — then
the admiralty jurisdiction test is met. However, the test is not met if the
vessel is on land for purposes of storage, repair or maintenance.

The majority of recreational boating accidents will most likely meet the “traditional
maritime activity” element of the test. Therefore, as a very rough rule of thumb, in most
instances one can employ the old locality test — i.e., a “where did it happen” test. In most
recreational boating cases, if the accident occurs on a navigable waterway, most likely it
involves a traditional maritime activity as well such that admiralty jurisdiction is invoked and
admiralty law applies. However, the precise application of this test can vary according to
the precise circumstances of the accident and it is strongly recommended that an admiralty
attorney be consulted before making any final determination.

If the admiralty jurisdiction test is not met, then only Michigan law applies to govern
potential liability. However, if the admiralty jurisdiction test is met, then federal admiralty
law applies to the claim. The application of the federal admiralty law, however, does not
call for a complete rejection of Michigan law. Rather, Michigan law can still apply in two
ways.

First, the federal admiralty law only takes precedence over Michigan law to the
extent that it is “substantive” rather than “procedural.” Examples of “procedural” aspects
of Michigan law would be such things as Michigan statutes regarding proper venue in
personal injury cases (i.e., which county court the lawsuit must be filed in). Even if the
federal admiralty law applies, if the lawsuit is filed in a Michigan court the Michigan court
is free to apply Michigan’s rules of procedure.

Second, and more importantly, if Michigan law regarding recreational boating
accidents does not contradict the federal admiralty law, then the Michigan law can still
apply to supplement the federal admiralty law. The provisions of Michigan law that we will
discuss infra, in particular the Michigan Watercraft and Marine Safety Act, do not, in our
opinion, contradict any aspect of the federal admiralty law. Accordingly, they may still
apply to determine potential liability in many cases co-equally with the federal admiralty
law. The same would be true of any administrative regulations or local ordinances so long
as they do not contradict the federal admiralty law.

Thus, because Michigan law alone will apply in some instances, such as where an
accident occurs on an inland, non-navigable lake, and because Michigan law may still
apply even if the federal admiralty law also applies, it is important to have a general
understanding of both the Michigan law regarding recreational boating accidents and the
federal admiralty law.

A. Michigan Law

Under Michigan law, accidents involving recreational watercraft (including
motorboats and motorized personal watercraft) are governed by the same common-law tort
principles discussed in previous sections of this manual. The cause of action will typically
be negligence. Just as with ORVs and snowmobiles, the default standard of care of
“recklessness” does not apply to the operation of recreational watercraft. Rather, by
statute, the ordinary negligence or “reasonableness” standard applies as the standard of
care.336 Moreover, just as with ORVs and snowmobiles, the owner of the recreational
watercraft is responsible for its negligent operation of the owner has expressly or impliedly
consented to the operation, and consent is presumed where the operator is an immediate
family member of the owner.337

As with the operation of such things as ORVs and snowmobiles, in some cases a
jury will determine based on the facts of the case what was reasonable under the
circumstances. But, in other instances the determination of what is reasonable under the
circumstances will be affected by a statute, administrative rule, or local ordinance. This is
because, as previously discussed, a defendant’s violation of a statute that was designed
to protect persons such as the plaintiff from the type of harm that occurred creates a
rebuttable presumption that the defendant was negligent if the statutory violation caused
or contributed to the harm. 338 A defendant’s violation of an administrative regulation or
local ordinance, on the other hand, while not creating a presumption of negligence, does
constitute evidence of negligence.339

There are numerous of local laws and regulations which might pertain to a specific
body of water and thereby apply in a given case. For example, many local municipalities
enact speed control measures for watercraft within their jurisdiction. Various townships
might enact rules on operating boats on inland lakes. These measures are too numerous
to list here. A person involved in recreational boating should be careful to note the location
where the boating will occur and determine whether there are any geographic-specific
measures which might apply.

One statutory provision which would be applied throughout Michigan, however, is
the Watercraft and Marine Safety Act contained at MCL 324.80101, et seq. There are
actually three parts to this Act, two of which are pertinent here. The first, Part 801,
contains rules that are generally applicable to the operation of all “vessels” — which
include every type of watercraft that is used or capable of being used as a means of
transportation upon Michigan waters. 340 The second is Part 802, which supplements Part
801 by setting forth specific rules applicable to “personal watercraft,”341 which includes
vessels that are propelled by a motor-driven propeller or water jet pump and designed to
be operated by 1 or more persons positioned on the hull rather than within it;342 for
example, such things as “Jet Skis” and “Sea Doos.” Highlights of these provisions include:

1. WATER & MARINE SAFETY ACT PART 801: ALL VESSELS

a) GENERAL OPERATIONAL PROVISIONS

• A vessel operator must operate the vessel in a careful and prudent
manner;343
• A vessel operator may not operate a vessel in a manner that unreasonably
interferes with the lawful us of any waters by others;344
• It is a crime to operate a vessel carelessly and heedlessly “in disregard of the
rights or safety of others, without due caution and circumspection, or at a
rate of speed or in a manner that endangers or is likely to endanger a person
or property”;345
• As a general rule, except in well defined channels, canals, rivers, or streams,
vessels must be operated in a counter-clockwise fashion;346
• As a general rule, vessels and persons being towed behind vessels (such a
skiers, tubers, etc.) must stay at least 100 feet from any dock, raft, buoyed
or occupied bathing area, or moored or anchored vessel unless the vessel
is being operated at a slow-no wake speed or when the vessel is picking up
or dropping off water skiers;347
• A vessel may not be operated within a restricted area that is prohibited to
vessels and which is clearly marked by buoys, beacons, or other devices;348
• Unless doing so would put his or her own vessel in danger, the operator of
any vessel must render reasonable assistance to persons injured as a result
of a collision, accident, or other casualty, including transporting the injured
person to a hospital for medical treatment if it is apparent that treatment is
needed or the injured person requests it. This duty applies regardless of
whether the operator’s vessel was itself involved in the accident. A person
who offers such assistance cannot be held liable for civil damages as a result
of having rendered such assistance, or for an act or omission in providing or
arranging towage, medical treatment, or other assistance, if the injured
person did not object to the assistance and the assisting person acted as an
ordinary, reasonably prudent person would have acted under the
circumstances.349
• The operator of any vessel involved in a collision, accident, or other casualty
must report the accident to the nearest peace officer as soon as possible.350
• A vessel operator or occupant of a vessel that is under way may not sit,
stand, or walk upon any portion of the vessel that is not designed for that
purpose unless to do so is immediately necessary for the vessel’s safe and
reasonable navigation or operation;351
• A non-occupant of a vessel may not intentionally rock, tip, jostle, or otherwise
interfere with the vessel’s operation;352
• A person may not operate a vessel, and the owner or person in charge or
control of the vessel shall not allow the person to operate the vessel, if the
person is under the influence of intoxicating liquor or a controlled substance,
or both.353

b) PROVISIONS REGARDING SPEED

• A vessel operator must operate the vessel at a rate of speed that does not
unreasonably endanger the life or property of another, and must not operate
the vessel at a rate of speed greater than will allow him or her to stop the
vessel within the assured clear distance ahead;354
• Unless otherwise set by regulation or local ordinance, the maximum speed
for motorboats is 55 miles per hour. This does not apply to the Great Lakes
or Lake St. Clair, except within 1 mile of the shoreline;355
• A motorboat may not be operated at greater than a slow-no wake speed if
(1) a person is located on the bow, or (2) a person or a portion of a person’s
body extends beyond the motorboat’s exterior port or starboard walls. This
does not apply if the person is attempting to anchor, moor, dock, or
otherwise secure the motorboat, or if the vessel is a sailboat that is not being
powered by a motor;356
• Generally, a motorboat that is within 100 feet of the shoreline where the
water is less than 3 feet deep must maintain a slow-no wake speed or the
minimum speed necessary for the motorboat to maintain forward
movement;357

c) RIGHT OF WAY RULES

• When 2 vessels are approaching each other head-on, the operator of each
vessel must cause his or her vessel to pass on the port (left) side of the other
vessel;358
• When overtaking another vessel that is proceeding in the same direction, the
overtaking vessel must pass on the port side of the vessel being overtaken,
unless it is not feasible to do so;359
• When 2 vessels are approaching each other at right angles, the vessel that
has the other on its starboard (right) side must give way to the other vessel
by reducing its speed, or stopping or reversing, if necessary, and cross
behind the other vessel;360
• When a motorboat and a non-motorized boat are proceeding in a manner
that involves the risk of collision, the motorboat must give way to the non-
motorized boat;361
• When a vessel is required to give way to another vessel, the other vessel
must maintain its direction and speed;362

d) PROVISIONS REGARDING WATER SKIING, SWIMMING, AND SCUBA DIVING

• A vessel operator may not tow another person on skis or other similar
contrivance during the period of 1 hour after sunset and 1 hour before
sunrise;363
• A vessel operator shall not tow a person on water skis or similar contrivance
unless a person is on board the vessel who can observe the person being
towed and communicate their condition and needs to the vessel operator;364
• A scuba diver must place a buoy or boat at or near their point of
submergence bearing a red flag that is at least 14 inches by 16 inches with
a 3½ inch diagonal white stripe, and must stay within 100 feet of the flag;365
• A vessel that is not involved in a diving operation may not be operated within
200 feet of a diver’s flag.366
• The owner or person in charge of a beach maintained for public use may not
permit bathing or swimming unless buoys outlining a safe bathing or
swimming area have been established.367
• A person bathing or swimming from a beach maintained for public use may
not venture more than 100 feet beyond the designated swimming or bathing
area.

e) PROVISIONS REGARDING CHILDREN AND MINORS

• A child under the age of 12 may not operate a motor boat having more than
6 horsepower unless: (1) he or she is accompanied by at least one person
16 years of age or older, and (2) the motor has less than 35 horsepower;369
• A child between the ages of 12 and 15 may not operate a motor boat having
more than 6 horsepower unless: (1) he or she is accompanied by at least
one person 16 years of age or older, or (2) he or she has completed a
boating safety course approved by the Department of Natural Resources and
has in his or her possession a boating safety certificate.370
• It is unlawful to operate a vessel upon any Michigan waters unless every
child less than 6 years of age is wearing a personal floatation device (unlike
adults, who only have to have one readily available);371
• A parent or guardian of a child less than 6 years of age who accompanies
the child on board a vessel must ensure that the child is wearing a personal
floatation device, unless the vessel is a charter boat that has been certified
by the Department of Natural Resources or the United States Coast
Guard.372

2. WATER & MARINE SAFETY ACT PART 802: PERSONAL WATERCRAFT

a) GENERAL OPERATIONAL AND SPEED PROVISIONS

• A personal watercraft must be operated in a reasonable and prudent
manner;373
• It is unlawful to operate a personal watercraft recklessly, which includes
careless and heedless operation “in disregard of the rights or safety of
others, without due caution and circumspection, or at a rate of speed or in
a manner that endangers or is likely to endanger a person or property.”374
Reckless operation entails maneuvers that unreasonably or unnecessarily
endanger life, limb, or property, including but not limited to: (1) weaving
through congested vessel traffic, (2) jumping the wake of another vessel
while close to the other vessel or when visibility around the other vessel is
obstructed, or (3) waiting until the last possible moment to swerve and avoid
a collision;375
• A person may not operate a personal watercraft while carrying more persons
than the personal watercraft is designed to carry. A person that does so is
prima facie guilty of reckless operation of the personal watercraft;376
• A person who operates a personal watercraft in excess of the speeds set
forth in Part 801 for vessels is guilty of reckless operation of the personal
watercraft;377
• It is unlawful to operate a personal watercraft unless each person riding on
or being towed by the personal watercraft is wearing a personal floatation
device. Personal floatation devices worn by persons on board the personal
watercraft may not be inflatable;378
• If a personal watercraft is manufactured with a lanyard-type engine cutoff
switch, the operator must have the lanyard attached to his or her person,
clothing, or flotation device;379
• A person may not operate a personal watercraft after 1 hour before sunset
or before 8 a.m.;380
• A personal watercraft may not cross within 150 feet behind another vessel
unless the other vessel is also a personal watercraft or the passing personal
watercraft is operating at a slow-no wake speed;381
• A personal watercraft may not be operated in water that is less than 2 feet
deep unless it is being docked or launched or is being operated at a slow-no
wake speed;382
• A person operating a personal watercraft in one of the Great Lakes must stay
at least 200 feet from the shoreline unless traveling perpendicular to the
shoreline and at slow-no wake speed;383
• A personal watercraft and anyone being towed by a personal watercraft,
such as skiers, etc., must stay at least 100 feet from a dock, raft, buoyed or
occupied swimming or bathing area, person in the water, person on the
water in a flotation device, a moored or anchored vessel, or a vessel that is
drifting or sitting dead in the water. This does not apply if the personal
watercraft is being operated at slow-no wake speed or being operated in a
navigable channel, canal, stream, or river that is not otherwise posted;384
• A personal watercraft or a person being towed by a personal watercraft must
stay at least 200 feet from a submerged diver, vessel engaged in underwater
diving activities, or a flotation device displaying the diving insignia;385

b) PROVISIONS REGARDING AGE AND CHILDREN

• No person born after December 31, 1978, may operate a personal watercraft
unless they have obtained a boating safety certificate;386
• A child under the age of 12 may not operate a personal water craft;387
• A child of 12 or 13 may only operate a personal watercraft if all of the
following are met: (1) the child is accompanied solely by his or her parent or
guardian, (2) both the child and his or her parent or guardian have obtained
a boating safety certificate, (3) the personal watercraft is designed to carry
2 or more persons, and (4) the personal watercraft is equipped with a
lanyard-type engine cutoff switch and the parent or legal guardian has the
lanyard attached to his or her person, clothing, or personal flotation device;388
• The owner or person having charge or control of a personal watercraft may
not knowingly permit it to be operated in violation of the above restrictions
regarding certification and operation by minors;389
• A person shall not operate a personal watercraft if a child under the age of
7 is a passenger on, or being towed behind, the personal watercraft unless
the child is in the company of a parent or guardian or a designee of the
parent or guardian;390

In addition to Parts 801 and 802, the Michigan Department of Natural Resources
has adopted regulations specifying certain equipment that must be carried aboard vessels
of various types and sizes anytime the vessels are used on any waters within Michigan.391

As discussed above, a failure to comply with these regulations can serve as evidence of
negligence. While these regulations are comprehensive and extensive, they can generally
be summarized as follows:

3. Regulations Regarding Required Equipment

a) MOTORBOATS

MOTORBOATS LESS THAN 16 FEET:392

• One Coast Guard approved personal flotation device for each passenger that
is readily at hand and not encased in a plastic bag or other container;
• One Coast Guard approved fire extinguisher;
• When underway between sunset and sunrise, a combination bowlight
showing green to the starboard (right) and red to the port (left) side that is
visible for 1 mile and a white light toward the rear of the boat that is higher
than the bowlight, shows all around the horizon, and is visible for 2 miles;
• If anchored on the Great Lakes or waters connected thereto between sunset
and sunrise, a white light toward the front of the boat that is visible to boats
approaching from any direction.

MOTORBOATS LONGER THAN 16 FEET BUT LESS THAN 26 FEET:393

• All of the equipment required for motorboats less than 16 feet in length, plus;
• One throwable flotation device;
• One hand, mouth, or power-operated whistle capable of producing a blast of
2 seconds or more that is audible for at least ½ mile.

MOTORBOATS LONGER THAN 26 FEET BUT LESS THAN 40 FEET:394

• All of the equipment required for motorboats that are longer than 16 feet but
less than 26 feet, plus or except as follows:
• A fog bell capable of producing a clear bell-like tone of full round
characteristics;
• The whistle must be hand or power operated, not mouth operated, and
capable of producing a blast of 2 seconds or more that is audible for at least
1 mile instead of ½ mile;
• There must be 2 Coast Guard approved fire extinguishers instead of 1;
• In addition to the white light toward the rear of the boat, there must also be
a white light toward the front of the boat that is visible for 2 at least 2 miles.

MOTORBOATS LONGER THAN 40 FEET BUT LESS THAN 65 FEET:395

• All of the equipment required for motorboats greater than 26 feet but less
than 40 feet, plus or except as follows:
• The whistle can only be power operated;
• There must be 3 Coast Guard approved fire extinguishers instead of 2;

b) SAILBOATS WITH MOTORS:396

• Are subject to the same equipment requirements as motorboats of the same
length, except as follows;
• A sailboat that is longer than 26 feet and is on the Great Lakes or waters
connected thereto under sail alone between sunset and sunrise must display
a green light to the starboard (right) side and a red light to the port (left) side
each of which are visible for 1 mile. There must also be a lantern showing
a white light readily at hand and which must be exhibited in sufficient time to
prevent a collision;
• If a sailboat is anchored on the Great Lakes or waters connected thereto
between sunset and sunrise it must display a white light on the forward part
of the boat that is visible to boats approaching from any direction.

c) SAILBOATS WITHOUT MOTORS

SAILBOATS WITHOUT MOTORS AND LESS THAN 16 FEET:397

• One Coast Guard approved personal flotation device for each passenger that
are readily available and not encased in plastic bags or another containers;
• If underway between sunset and sunrise, there must be a lantern with a
white light readily at hand and which must be displayed in sufficient time to
avoid a collision;
• If the sailboat is anchored on the Great Lakes or waters connected thereto
between sunset and sunrise, a white light must be displayed on the forward
part of the boat that is visible to boats approaching from any direction.

SAILBOATS WITHOUT MOTORS THAT ARE 16 FEET OR MORE IN LENGTH:398

• All of the equipment required for sailboats without motors that are less than
16 feet in length, plus one throwable personal flotation device.

d) ROWBOATS, CANOES AND KAYAKS:399

• Personal flotation devices as required for motorboats of the same length;
• If underway between sunset and sunrise, a white lantern that is readily at
hand and which must be displayed in sufficient time to prevent a collision;

B. FEDERAL ADMIRALTY LAW

If the admiralty jurisdiction test is met, then the effect of admiralty law must be
examined.

1. GENERAL RULES FOR PERSONAL INJURY
The most common personal injury claims will involve social guests or passengers on the
recreational vessel. Under the admiralty law, there is no invitee/licensee distinction.

However, the injured party must be “lawfully” on the vessel — i.e., not a trespasser. The

guest or passenger must prove that the vessel owner or operator was negligent in order
to recover. The negligence involved is basically ordinary negligence, and the obligation
has been expressed as one of “due care;400 however, it has also been stated that the
vessel owner or operator has an obligation to exercise the care of a reasonably prudent
mariner.

Examples of instances where the duty to exercise the care of a reasonably prudent
mariner are:

• Proceeding on a voyage despite knowledge of a defective hull and rough
weather warnings;
• Injuries resulting from a dangerous condition on the vessel, where owner or
operator knows or should have known of the existence of the condition and
fails to take steps to correct the defect or to warn passengers;
• Proceeding on a voyage without making adequate effort to obtain a weather
forecast;
• Failing to warn passengers of intended maneuvers;
• Overloading the vessel;
• Permitting a guest to ride in an unsafe position;
• Turning over control of vessel to guest who is known or should be known to
be incompetent or lacking in experience;
• Excessive speed;
• Failure to display proper lights; and
• Failure to maintain proper lookout.

Breach of the duty may also be established by a violation of what are called the
“Rules of the Road.” These are rules setting forth standards for the operation of vessels
that were promulgated by the United States Coast Guard and then codified by Congress.
There are actually two sets of rules: the International Rules, 33 USC § 1601, et seq., which
apply to vessels operating on the high seas, and the Inland Rules, 33 USC § 2001, et seq.,
which apply to vessels operating on the inland waters of the United States. It is the inland
rules that apply to the Great Lakes region. Highlights of the Inland Rules are as follows:

Rule 2 — Responsibility. The general catch-all rule; establishes the
standard of good seamanship, and precludes the exoneration of any vessel
or its operator for any neglect of any precaution which might be required by
the ordinary practice of seamen. In other words, even if the Rules of the
Road are scrupulously followed, the owner or operator is still held to further
measures if so “required by the ordinary practice of seamen.”

Rule 5 — Lookout. Every vessel shall at all times maintain a proper lookout
by sight and hearing as well as by all available means appropriate in the
prevailing circumstances and conditions so as to make a full appraisal of the
situation and the risk of collision. Frequently, the facts of the accident might
make it clear that adequate lookout was not maintained, such as where a
vessel is thrown from the water by a wave or wake which should have been
clearly visible.

Rule 6 — Safe Speed. Every vessel shall at all times proceed at a safe
speed so that it can take proper and effective action to avoid collision and be
stopped within a distance appropriate to the prevailing circumstances and
conditions. The factors to take into account include visibility, other vessel
traffic, weather, maneuverability, and draft.

This is the equivalent of Michigan’s “assured clear distance” rule applicable
to watercraft.

Rule 7 — Risk of Collision. Every vessel shall use all available means
appropriate to the prevailing circumstances and conditions to determine if a
risk of collision exists. If there is any doubt, such risk shall be deemed to
exist.

Rule 8 — Action to Avoid Collision. Any action taken to avoid collision
shall be positive, made in ample time and with due regard to the observance
of seamanship.

Rule 12 — Sailing Vessels. Rules of conduct involving sailing vessels
approaching one another — dependent upon relative wind direction.

Rule 13 — Overtaking. A vessel overtaking another shall keep out of the
way of the vessel being overtaken. “Overtaking” occurs where the vessel is
approached 22.5 degrees abaft her beam; otherwise, it is a crossing situation
or a head on situation.

Rule 14 — Head-On Situation. In a head-on situation, each vessel is to
pass on the left side of the other.

Rule 15 — Crossing Situation. In a crossing situation, the vessel with the
other on its right side must give way and the vessel with the other on its left
side shall have the right of way.

Rule 16 — Give-Way Vessel. The vessel obligated to give way must do so
and take early and substantial action to keep well clear.

Rule 17 — Vessel with Right of Way. The vessel with the right of way must
keep her course and speed, except where it appears that the collision cannot
be avoided by the actions of the other vessel alone, in which case she
should take reasonable action to avoid the collision.

There are also numerous other provisions regarding lights to be displayed on
vessels, which may be of relevance in instances of night collisions.

Given the broad and overlapping nature of the Rules of the Road, it is the rare case
where all parties involved are not at least arguably responsible for one or more violations
of these provisions.

2. SPECIAL RULES FOR COLLISIONS

A “collision” is defined as an undesired contact between two or more vessels. For
the purposes of this discussion, the term should also be defined to include what are known
as “allisions”: instances where a vessel strikes a nonmoving object, such as a buoy or a
dock. The impact of a vessel with an object, often at high rates of speed, generally has
serious consequences for its occupants. Thus, collisions are the most frequent source of
litigation. Admiralty law does, however, present some unique rules which will arise in a
collision case.

a) OWNER’S LIABILITY

In instances where the owner is not also the operator, admiralty law would often find
the owner responsible, even if the Michigan owner’s liability statute did not apply. The
owner would remain liable for the condition, or seaworthiness, of the craft. He or she
would also be liable under admiralty law for allowing a person to operate the vessel if that
person was known to be unqualified to do so or impaired from alcohol, drug use, or some
physical infirmity. Any act or omission on the owner’s part, even if entirely distinct from the
actual operation of the vessel, which in any way contributes to the accident will render the
owner liable.

b) PRESUMPTION OF FAULT

Where a vessel strikes a nonmoving object, such as a dock, the courts have
recognized that logically the dock is probably not the party to blame. Accordingly, there is
a presumption at law that the moving vessel was at fault in causing the accident, and this
presumption supports a prima facie case for negligence against the vessel owner and
operator. However, the presumption is a rebuttable one; evidence can be introduced to
prove the nonmoving vessel was wholly or partially at fault. Fault will then be allocated
between the parties. Common examples of a nonmoving structure’s fault are: improper
lighting, inadequate mooring, and improper placement.
c) THE PENNSYLVANIA RULE

Violations of the Rules of the Road, as well as violations of the Michigan statute and
other local laws and regulations as may apply, can carry serious consequences under
admiralty law. Under the well-established United States Supreme Court holding known as
The Pennsylvania Rule, where a vessel is found to be in violation of a rule or regulation
relating to navigation, the vessel owner/operator must prove that the violation did not and
could not have caused the casualty. This is an extremely difficult burden for any defendant
in a lawsuit to meet.

d) NEGLIGENT NAVIGATION

Aside from statutory and regulatory violations, liability in a collision case can also
arise from acts of ordinary negligence. Negligent navigation involves, simply, the act of
doing something a reasonable person would not have done or failing to do something a
reasonable person would have done.

e) ACTS OF GOD — FORCE MAJEURE

A defense which can be invoked very rarely is “Act of God” or Force Majeure.
Admiralty law recognizes that at sea certain damages caused by nature are unavoidable.
An obvious example is an unexpected tidal wave. However, in the age of satellite
transmissions, GPS navigation systems, weather forecasts, and the like, it will be highly
unlikely for a defendant in a recreational boating accident case to avail himself of this
defense.

3. LIMITATION OF LIABILITY

The concept of limitation of liability is unique to admiralty law and is provided by a
special Limitation of Liability Act, 46 USC § 30501, et seq.401 While it can only rarely be
successfully invoked, its potential benefits are such that the possibility of seeking this relief
should be examined with any recreational boating accident. This examination must be
made promptly, as there are very significant time limitations on seeking this relief.

The Limitation of Liability Act provides that “the liability of the owner of a vessel for
any claim, debt, or liability . . . shall not exceed the value of the vessel and pending freight”
so long as the “act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or
incurred, [was] without the privity or knowledge of the owner.”402 Simply stated, this Act
allows a vessel owner to limit his or her potential liability to the value of the vessel if the
damage or injury that is the basis of the plaintiff’s claim occurred without the owner’s privity
or knowledge.403

In order to seek limitation of his or her liability under the Act, the vessel owner must
file a petition in an appropriate federal district court (this is one of the few types of cases,
mentioned earlier, that can only be filed in federal court) and post security for the post
casualty value of the vessel and cargo, if any. The Petition must be filed within six months
of first receiving written notice of the claim or it is waived. Such a petition for limitation may
also be joined with a request that the court exonerate the owner; i.e., find that there is no
liability in the matter. Of particular importance is that upon filing of such a petition:

. . . all claims and proceedings against the owner or the owner’s property with
respect to the matter in question shall cease. On application of the plaintiff
the court shall enjoin the further prosecution of any action or proceeding
against the plaintiff or the plaintiff’s property with respect to any claim subject
to limitation in the action.404

In other words, filing a petition for exoneration or for limitation of liability does three
things:

1. It puts the defendant in federal court, where triers of fact tend to be
less liberal (the judge is typically the trier of fact on liability issues and
the issue of exoneration and limitation of liability; a jury is generally
called to determine personal injury damages);
2. Except in limited circumstances, it ceases any state court proceedings
and prevents any future state court filings;405 and
3. It presents the defendant with an opportunity to, if exoneration is not
forthcoming, limit his or her liability to the post-casualty value of the
vessel.

The value of a recreational craft after an accident is generally not large. In the cases the

The Limitation of Liability Act was first adopted by Congress in 1851 to foster
maritime commerce.406 However, the Act broadly states that, with limited exceptions, it
applies to all “seagoing vessels and vessels used on lakes or rivers or in inland
navigation.”407 Accordingly, interpretations of the Act by the federal judiciary have extended
its benefits to recreational boating accidents which have only the remotest — if any —
connection with maritime shipping and commerce. For instance, the Sixth Circuit, which
includes Michigan, has held that the statute applies to pleasure boats,408 and the Eleventh
Circuit, which includes Florida, has held that it applies to jet skis. 409 It should be
remembered, however, that although the Act broadly applies to recreational watercraft, it
only applies if the accident occurs on “navigable waters” and the test for admiralty
jurisdiction is met. Thus, it would not apply, for instance, where an accident occurs on a
purely “inland” lake. This is one of the reasons that the Act’s protections can rarely be
successfully invoked.

Another, and more important reason that the Act can rarely be successfully invoked,
is that the negligent act must have occurred “without the privity or knowledge of the vessel
owner.” It is generally stated that the “privity or knowledge” requirement implies that the
owner must have had some type of personal participation or complicity in the negligence
or fault that caused the injury or damage410 such as, for example, where the owner himself
knows of the negligent act, or knows of a condition rendering the vessel unseaworthy but
fails to remedy it, or could have prevented the commission of the negligent act or the onset
of the condition rendering the vessel unseaworthy through the exercise of reasonable
diligence.411

However, the vessel owner bears the burden of establishing his or her lack of privity
or knowledge.412 Moreover, courts have held that privity or knowledge can be actual or
constructive,413 and that the existence of a ship owner’s privity or knowledge in the
negligence requires a fact intensive inquiry.414 Moreover, the vessel owner carries the
burden of proving a lack of privity or knowledge. Thus, one noted treatise has observed
that the phrases “privity or knowledge” “are empty containers into which the courts are free
to pour whatever content they will,” and that the Act “might as well say that the owner is
entitled to exoneration from liability or to limitation of liability if, on all the equities of the
case, the court feels that the result is desirable; otherwise not.”415

Also limiting the Act’s potential application is that, in most cases, the owner is also
the operator, or acting as “captain,” and the negligence being asserted is negligent
operation of the boat. This creates two difficulties for the owner. First, the Act does not

affect a person’s liability as a master, officer, or seaman of a vessel even though that
person is also the owner. 416 Second, privity or knowledge is almost certain to exist since
the owner was either operating the boat himself or, if not, at least present and aware of the
actions of the person who was operating the vessel.

However, the defense should not be discounted just because the owner was present
or was operating the boat, primarily for two reasons. First, even if the owner may not
ultimately be able to establish a lack of privity or knowledge, federal courts in the Sixth
Circuit, which includes Michigan, have properly recognized that the owner is entitled to the
Act’s protection if the claimant cannot first establish that the injury or damage suffered was
the result of negligence or the unseaworthiness of the vessel.417 Stated differently, the fact
that the owner was present or operating the vessel does not preclude the Act’s protection
if the evidence suggests that the owner’s conduct was “in all respects prudent.”418 A simple
example of this, taken from a recent case, is where an owner is operating a vessel through
shallow waters and a guest passenger, who has been made aware that the waters are
shallow, unexpectedly dives in and suffers back injuries. In such a case, even if privity or
knowledge could be established (which it could not), the owner would still be entitled to the
Act’s protection because the owner was prudent in all respects.419

Second, under some circumstances, even with the exercise of reasonable care, the
operator might not be aware of the circumstances which ultimately cause the accident. For
instance, in one case handled by Garan Lucow Miller, the owner/operator had been
unaware of substantial (and illegal) modifications to his boat by a prior owner; the first time
he went out to test it, there was an accident.

1See, generally, Ritchie-Gamester v City of Berkley, 461 Mich 73, 85 (1999)
(Noting that the Legislature has not modified the common law of torts regarding
recreational activities except in limited areas).

2Schulke v Krawczak, 62 Mich App 675, 676-677 (1975).

3James v Alberts, 464 Mich 12, 19-20 (2001), quoting Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 596-597 (2000).

4See Ellsworth v Highland Lakes Development Associates, 198 Mich App 55, 61
(1993).

5James v Alberts, 464 Mich 12, 19-20 (2001), quoting Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 596-597 (2000).

6Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369 (1971).

7James v Alberts, 464 Mich 12, 19-20 (2001), quoting Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 596-597 (2000); Lugo v Ameritech Corp, 464 Mich 512,
516 (2001); Riddle v McLouth Steel Products Corp, 440 Mich 85, 96 (1992).

8 Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 604 (2000); James v
Alberts, 464 Mich 12, 19-20 (2001), quoting Stitt, supra at 596-597.

9 Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369 (1971).

10 James v Alberts, 464 Mich 12, 19-20 (2001), quoting Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 596-597 (2000).

11 James v Alberts, 464 Mich 12, 19-20 (2001), quoting Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 596-597 (2000); Lugo v Ameritech Corp, 464 Mich 512,
516 (2001); Riddle v McLouth Steel Products Corp, 440 Mich 85, 96 (1992).

12Thone v Nicholson, 84 Mich App 538, 544 (1978).

13 See Bragan v Symanzik 263 Mich App 324, 328-329 (2004), lv den 472 Mich
926 (2005).

14 Lugo v Ameritech Corp, 464 Mich 512, 518-519 (2001).

15 The RUA does not apply to publicly owned property and does not create an
exception to governmental immunity, and the potential liability of a government agency
for personal injury sustained during recreational activities on publicly owned property is
determined by the governmental tort liability act, MCL 691.1401, et seq., rather than the
RUA. Ballard v Ypsilanti Twp, 457 Mich 564 (1998).

16 Ballard v Ypsilanti Twp, 457 Mich 564, 576-577 (1998), citing Wymer v
Holmes, 429 Mich 66, 78 (1987), overruled on other grounds Neal v Wilkes, 470 Mich
661, 667 n 8 (2004).

17MCL 324.73301(1), Neal v Wilkes, 470 Mich 661, 669-670; MCL 324.73107(1).

18 It should be noted that MCL 324.73107(1) of the RTS refers to persons who
use the property “with oral or written consent . . . for recreational or trapping use of the
property,” whereas MCL 324.73301(1) of the RUA, merely refers to persons who use
the property “with or without permission” “for outdoor recreational use or trail use.” It is
hard to reconcile these two statutes, as they appear to cover the same activities and
were enacted simultaneously in 1994 PA 451. Arguably, the RTS is broader than the
RUA, affording coverage for landowners who expressly consent not only to outdoor
recreational and trail uses covered by the RUA, but also outdoor recreational uses not
covered by the RUA and indoor recreational uses. However, we do not believe this to
be so because provisions of the RTS indicate that it applies only to as hunting, fishing,

19 See Heider v Michigan Sugar Co, 375 Mich 490 (1965); Ellsworth v Highland
Lakes Development Associates, 198 Mich App 55, 63 (1993) (stating that the previous
version of the RUA, former MCL 300.201, which was substantially similar to the present
version, applies regardless of the injured person’s age).

20 See MCL 324.73301(4) of the RUA and MCL 324.73107(2) of the RST, which
state that landowners who allow their lands to be used for hunting, fishing, and trapping
in exchange for valuable consideration are only liable for personal injuries that arise out
of “a condition that involved an unreasonable risk of harm.” The same is also true of
MCL 324.73301(5) of the RUA, which applies to the recreational picking of farm
products. Thus, it seems that the Legislature intended for these provisions, but not
MCL 324.73301(1) and MCL 324.73107(1), to apply only to dangerous conditions.
See, generally, Farrington v Total Petroleum, Inc, 442 Mich 201, 210 (1993) (“Courts
cannot assume that the Legislature inadvertently omitted from one statute the language
that it placed in another statute, and then, on the basis of that assumption, apply what
is not there”).

21It is also the case that MCL 324.73301(1) and MCL 324.73107(1) both seem to
indicate that they were intended to apply both to conditions on the land and activities by
the landowner because they use both the phrases “gross negligence” and “wilful and
wanton misconduct.” At common law only the standard of “wilful and wanton
misconduct” applies to dangerous conditions — the standard of “gross negligence”
does not. James v Alberts, 464 Mich 12, 19-20 (2001), quoting Stitt v Holland
Abundant Life Fellowship, 462 Mich 591, 596-597 (2000); See also Wymer v Homes,
429 Mich 66, 71 n 1, quoting Prosser & Keeton, Torts (5th ed), § 58, overruled in part on
other grounds Neal v Wilkes, 470 Mich 661, 667 n 8 (2004). Rather, the standard of
“gross negligence” is generally applied to activities. Furthermore, as discussed infra,
the standard of “gross negligence” affords less protection to the landowner than the
standard of “wilful and wanton misconduct.” If the statutes were meant to apply only to
dangerous conditions on the land there would have been no need for the Legislature —
which was trying to provide greater protection to landowners — to include the lower
standard of gross negligence and actually decrease the protection afforded landowners
in some instances. Thus, one possible interpretation is that the Legislature included the
phrase “gross negligence” to provide landowners with greater protection for their
activities than was afforded by the regular negligence standard applicable at common
law. Accordingly, it would seem that under these statutes potential liability for personal
injuries arising out of dangerous conditions is to be judged by the “wilful and wanton
misconduct” standard, while potential liability for personal injuries arising out of the
landowner’s activities is to be judged by the “gross negligence” standard.

22 Neal v Wilkes, 470 Mich 661, 669 (2004).

23 Neal v Wilkes, 470 Mich 661, 669-671 (2004); Anderson v Brown Brothers,
Inc, 65 Mich App 409, 416 (1975); Bessler v Huron-Clinton Metropolitan Authority, 180
Mich App 397 (1989); Syrowik v City of Detroit, 119 Mich App 343 (1982).

24Neal v Wilkes, 470 Mich 661 (2004); Gerhke v Connor Forest Industries,
unpublished opinion per curiam of the Court of Appeals, decided June 2, 1998 (Docket
No 204667), lv den 459 Mich 950 (1999).

25 Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369 (1971).

26 Jennings v Southwood, 446 Mich 125, 136 (1994); Xu v Gay, 257 Mich App
263, 269 (2003).

27 Burnett v City of Adrian, 414 Mich 448, 462-463 (1982) (Moody, J,
Concurring).

28 Burnett v City of Adrian, 414 Mich 448, 455 (1982); Jennings v Southwood,
446 Mich 125, 137-139 (1994); Ellsworth v Highland Lakes Development Associates,
198 Mich App 55, 61-62 (1993).

29 Ellsworth v Highland Lakes Development Associates, 198 Mich App 55, 61-62
(1993).

30See Ellsworth v Highland Lakes Development Associates, 198 Mich App 55, 61
(1993) (landowner not guilty of gross negligence where 5-year old child was run over by
a motorcyclist even though the landowner knew that both motorcyclists and small
children frequented the property); Montgomery v Dep’t of Natural Resources, 172 Mich
App 718, 721-722 (1988) (landowner not liable for wilful and wanton misconduct for
failure to place warning or stop signs where snowmobile crossed a road); Bachus v
Foley, unpublished opinion per curiam of the Court of Appeals, decided June 14, 2005
(Docket No 252686), lv den 474 Mich 1019 (2006) (landowner not liable for gross
negligence where an ORV operator ran into a cable strung between two trees, even
though the landowner knew about the cable and failed to remove it or warn of its
presence); Rahe v North Country Club, unpublished opinion per curiam of the Court of
Appeals, decided June 5, 2001 (Docket No 224796) (landowner not liable for injuries
sustained by snowmobiler who drove into a gully even though the landowner knew of

31 Ellsworth v Highland Lakes Development Associates, 198 Mich App 55, 60-63
(1993).

32Lamp v Reynolds, 249 Mich App 591, 595-596 (2002).

33 See also Hawkins v Rudolph, Inc, unpublished opinion per curiam of the Court
of Appeals, decided Sept 27, 2005 (Docket No 254771) (question of fact for jury existed
as to whether the defendant’s act of telling a horse that the plaintiff was riding to speed
up constituted gross negligence where the defendant knew that the plaintiff was not
experienced in horseback riding).

34 General Motors Corp v Dep’t of Treasury, 466 Mich 231, 238-239 (2002).

35 General Motors Corp v Dep’t of Treasury, 466 Mich 231, 239 (2002)
(quotation omitted).

36Syrowik v City of Detroit, 119 Mich App 343, 347 (1982); Rahe v North Country
Club, unpublished opinion per curiam of the Court of Appeals, decided June 5, 2001
(Docket No 224796).

37Schiller v Muskegon State Park, 153 Mich App 472, 475 (1986); Bessler v
Huron-Clinton Metropolitan Authority, 180 Mich App 397, 401-402 (1989).

38 James v Leco Corp, 170 Mich App 184, 188 (1988).

39James v Leco Corp, 170 Mich App 184, 188 (1988).

40 It should be noted that at least one “indoor” recreational activity, roller skating,
is covered by a separate statute. See the Roller Skating Safety Act, MCL 445.1721, et
seq. However, we will not be discussing that statute in this manual.

41 Lamp v Reynolds, 249 Mich App 591 (2002); Cole v Ladbroke Racing
Michigan, Inc, 241 Mich App 1, 13-16 (2000); Dombrowski v City of Omer, 199 Mich
App 705 (1993); See also Xu v Gay, 257 Mich App 263 (2003); Gortney v Norfolk &
Western Railway Co, 216 Mich App 535 (1996); Skotak v Vic Tanny International, Inc,
203 Mich App 616 (1994); American Empire Ins Co v Koenig Fuel & Supply Co, 113
Mich App 496 (1982); Khanolkar v Lakeside Bike Rental, Inc, unpublished opinion per
curiam of the Court of Appeals, decided March 21, 2006 (Docket No 258338).

42 Paterek v 6600 Ltd, 186 Mich App 445, 451 (1990); McCoy v Kelley’s Harley-
Davidson, Inc, unpublished opinion per curiam of the Court of Appeals, decided
December 27, 2007 (Docket No 273047).

43 Xu v Gay, 257 Mich App 263, 272-275 (2003); Skotak v Vic Tanny
International, Inc, 203 Mich App 616, 617-618 (1994); Dombrowski v City of Omer, 199
Mich app 705, 709-710 (1993);Paterek v 6600 Ltd, 186 Mich App 445 (1990);
Khanolkar v Lakeside Bike Rental, Inc, unpublished opinion per curiam of the Court of
Appeals, decided March 21, 2006 (Docket No 258338).

44 Xu v Gay, 257 Mich App 263, 269 (2003); Lamp v Reynolds, 249 Mich App
591, 594 (2002); Skotak v Vic Tanny International, Inc, 203 Mich App 616, 617-618
(1994); Dombrowski v City of Omer, 199 Mich App 705, 709 (1993).

45 Woodman v Kera, LLC, 280 Mich App 125 (2008).

46 Xu v Gay, 257 Mich App 263, 272-276 (2003); Cole v Ladbroke Racing
Michigan, Inc, 241 Mich App 1, 13-16 (2000); Gortney v Norfolk & Western Railway Co,
216 Mich App 535, 540 (1996); Skotak v Vic Tanny International, Inc, 203 Mich App
616, 619 (1994); Dombrowski v City of Omer, 199 Mich App 705, 709 (1993).

47 American Empire Ins Co v Koenig Fuel & Supply Co, 113 Mich App 496, 499
(1982).

48 See, American Empire Ins Co v Koenig Fuel & Supply Co, 113 Mich App 496,
499 (1982).

49 See Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 13-16 (2000)
(Release granted landowner protection where Equine Activity Liability Act did not
apply).

50 Cf. Ritchie-Gamestar v City of Berkley, 461 Mich 73 (1999) (adopting the
recklessness standard only for co-participants).

51 Case v Consumers Power Co, 463 Mich 1, 6-7 (2000).

52 Riddle v McLouth Steel Products Corp, 440 Mich 85, 96-97 (1992).

53 Massey v Scripter, 401 Mich 385, 393-395 (1977); Farmer v Christensen, 229

Mich App 417, 420 (1998).

54 Candelaria v BC General Contractors, Inc, 236 Mich App 67, 82 n 5 (1999);
Johnson v Bobbie’s Party Store, 189 Mich App 652, 661 (1991).

55 Cf. Benejam v Detroit Tigers, Inc, 246 Mich App 645 (2001); Ritchie-Gamestar
v City of Berkley, 461 Mich 73, 81, 87-88 (1999).

56 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 81, 87-88 (1999).

57 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 86 (1999).

58 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 94 (1999).
59 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 94 (1999).
60 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 89 (1999).
61 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 92-94 (1999).
62 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 89 (1999).
63 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 81, 87-89 (1999).
64 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 77 (1999).
65 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 75, 89 (1999).

66 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 94 (1999).

67 Jennings v Southwood, 446 Mich 125, 140 (1994), quoting Burnett v City of
Adrian, 414 Mich 448, 455 (1982); Behar v Fox, 249 Mich App 314, 319 (2002); See
also Fellows v Stautenberg, unpublished opinion per curiam of the Court of Appeals,
decided Jan 27, 2004 (Docket No 244080); Taylor v Gordon, unpublished opinion per
curiam of the Court of Appeals, decided April 15, 2003 (Docket No 239630); Pingle v
Quaglia, unpublished opinion per curiam of the Court of Appeals, decided Feb 27, 2001
(Docket No 218499); Zielinski v Mandeville, unpublished opinion per curiam of the
Court of Appeals, decided May 25, 2001 (Docket No 221842).

68 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 90 n 10, 94 (1999).

69 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 92, 94 (1999); Behar v Fox,
249 Mich App 314, 320 (2002).

70 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 89 n 9 (1999).

71 Ritchie-Gamestar v City of Berkley, 461 Mich 73 (1999).

72 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 80-81 (1999); Auito v
Clarkston Creek Golf Club, Inc, unpublished opinion per curiam of the Court of Appeals,
decided June 8, 2004 (Docket No 240621); Walton v Brenner, unpublished opinion per
curiam of the Court of Appeals, decided May 26, 2000 (Docket No 212794).

Even before Ritchie, when an ordinary negligence standard of care applied to
golf, participants were held to a limited duty. This duty was summarized in Schmidt v
Youngs, 215 Mich App 222, 225 (1996), quoting 4 Am Jur 2d, Amusements and
Exhibitions, § 87, pp 211-212 (1995 interim pamphlet):

A person who engages in the game of golf is not an insurer of the safety
of others, and he is only required to exercise ordinary care for the safety
of persons reasonably within the range of danger.

Generally, one who is about to strike a golf ball must, in the exercise of
ordinary care, give an adequate and timely notice to those who are
unaware of his intention to play and who may be endangered by the play.
Conversely, there is no duty to give advance warning to persons who are
on contiguous holes or fairways, and not in the line of play, if danger to
them is not reasonably to be anticipated. Also, where the person injured
was in a place where he should have been reasonably safe, and he was
aware of the player’s intention to play the ball, an oral or audible warning
would have been superfluous and is therefore unnecessary.

At least one case involving the game of golf decided after Ritchie has cited and
applied this rule, stating that it is further reinforced by Ritchie’s adoption of the reckless
misconduct standard in lieu of the ordinary negligence standard. Walton v Brenner,
unpublished opinion per curiam of the Court of Appeals, decided May 26, 2000 (Docket
No 212794).

73Ritchie-Gamestar v City of Berkley, 461 Mich 73, 77-78 (1999).

74 The recklessness standard has also been applied to such recreational
activities as soccer, Behar v Fox, 249 Mich App 314 (2002), basketball, Pingle v
Quaglia, unpublished opinion per curiam of the Court of Appeals, decided Feb 27, 2001
(Docket No 218499), ice hockey, Zielinski v Mandeville, unpublished opinion per curiam
of the Court of Appeals, decided May 25, 2001 (Docket No 221842), a game of “nerf
football,” Taylor v Gordon, unpublished opinion per curiam of the Court of Appeals,
decided April 15, 2003 (Docket No 239630), and even where the plaintiff and defendant
were shooting “potato launchers” or “spud guns” at each other during a birthday party,
Fellows v Stautenberg, unpublished opinion per curiam of the Court of Appeals,
decided Jan 27, 2004 (Docket No 244080).

75 Behar v Fox, 249 Mich App 314, 317-317 (2002).

76Ritchie-Gamestar v City of Berkley, 461 Mich 73, 89, 94 (1999)

77 In one unpublished case, the Court of Appeals held that in order for the
recklessness standard to apply the recreational activity “need only be one in which the
activity by its nature have inherent risk of foreseeable harm.” Fellows v Strautenberg,
unpublished opinion per curiam of the Court of Appeals, decided Jan 27, 2004 (Docket
No 244080).

78 Van Guilder v Collier, 248 Mich App 633 (2002); see also Gaggo v Kennedy,
unpublished opinion per curiam of the Court of Appeals, decided July 22, 2008 (Docket

No 278607)(involving a moped).

79 Van Guilder v Collier, 248 Mich App 633, 636-637 (2002).

80 Van Guilder v Collier, 248 Mich App 633, 637 (2002).

81 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 77-81 (1999); Auito v
Clarkston Creek Golf Club, Inc, unpublished opinion per curiam of the Court of Appeals,
decided June 8, 2004 (Docket No 240621); Walton v Brenner, unpublished opinion per
curiam of the Court of Appeals, decided May 26, 2000 (Docket No 212794).

82 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 85-86 (1999).

83 Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 57-61 (1999).

84 Giddings v Rogalewski, 192 Mich 319, 326 (1916); Adams v Cleveland-Cliffs
iron Co, 237 Mich App 51, 60 (1999).

85 Giddings v Rogalewski, 192 Mich 319, 326 (1916); Adams v Cleveland-Cliffs
Iron Co, 237 Mich App 51, 60 (1999).

86 Giddings v Rogalewski, 192 Mich 319, 320 (1916).

87Kratze v Independent Order of Oddfellows, 442 Mich 136, 148-149 (1993).

88 See Kratze v Independent Order of Oddfellows, 442 Mich 136, 149 (1993);
see also Tillson v Consumers Power Co, 269 Mich 53, 65 (1934); Strzelecki v Blaser’s
Lakeside Industries, 133 Mich App 191, 193-194 (1984); Bluemlein v Szepanski, 101
Mich App 184, 192 (1981); Baranowski v Strating, 72 Mich App 548, 562 (1977).

89 MCL 324.73102(2) & (4).

90 MCL 324.73102(1) & (4).

91 MCL 324.73102(3); People v Gatski, 260 Mich App 360 (2004).

92 MCL 324.73102(5).

93 MCL 324.73102(5).

94 MCL 324.73104.

95 MCL 324.73105.

96 MCL 324.73109.

97 Another statute regarding trespass is MCL 324.81133(i) of Part 821 of the
Natural Resources and Environmental Protection Act, which applies specifically to
trespasses by ORV operators. This statute, however, does not provide for the recovery
of attorney fees. Moreover, it does not increase the amount of damages that may be
available to the landowner, because it merely provides that the landowner may recover
as damages “not less than the amount of damage or injury.”

98 See Nawrocki v Macomb Co Rd Comm’n, 463 Mich 143, 156-157 (2000).

99 Grimes v Dep’t of Transportation, 475 Mich 72, 77 (2006); Wilson v Alpena Co
Rd Comm’n, 474 Mich 161, 166 (2006); Nawrocki v Macomb Co Rd Comm’n, 463 Mich
143, 149 (2000); Robinson v Detroit, 462 Mich 439, 455 (2000).

100 MCL 691.1407(1); Grimes v Dep’t of Transportation, 475 Mich 72, 76-77
(2006).

101 MCL 691.1401(f).

102 Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 614 (2003); Adam
v Sylvan Glynn Golf Course, 197 Mich App 95, 97 (1992).

103 See Richardson v Jackson Co, 432 Mich 377, 381 (1989) and statutes cited
therein.

104 Ballard v Ypsilanti Township, 457 Mich 564 (1998); Richardson v Jackson
Co, 432 Mich 377 (1989).

105Adam v Sylvan Glynn Golf Course, 197 Mich App 95 (1992).

106 See Grimes v Dep’t of Transportation, 475 Mich 72, 77 n 16 (2006).

107 Ballard v Ypsilanti Township, 457 Mich 564 (1998).

108 Richardson v Jackson Co, 432 Mich 377 (1989). Ballard v Ypsilanti
Township, 457 Mich 564 (1998) seems to indicate that a governmental agency’s failure
to comply with a regulatory act, such as the Watercraft and Marine Safety Act,
constitutes an exception to governmental immunity if the regulatory act specifically
includes governmental agencies among the class of persons regulated by the act, id. at
574-575. However, Richardson directly holds otherwise by stating that even though a
regulatory act applies to a governmental agency, the governmental agency’s failure to
comply with the regulatory act does not change the fact that the governmental agency
was engaged in the exercise of a “governmental function” and, thus, entitled to
immunity. Richardson, supra at 382 n 5, 385-386. We believe that the current majority
of the Michigan Supreme Court would follow Richardson’s analysis, see Costa v
Community Medical Services, 475 Mich 403 (2006) (holding that a governmental
defendant’s failure to file an affidavit of meritorious defense in a medical malpractice
action, which is mandatory for all defendants, does not constitute an exception to
governmental immunity), as would Justice Cavanagh, who wrote Richardson. Thus,
even though other acts discussed in this manual, such as the Ski Area Safety Act,
technically apply to governmental agencies, we do not believe that a governmental
agency’s failure to comply with them constitutes an exception to governmental
immunity. (See discussion of this in the section regarding the SASA).

109 MCL 691.1402.

110 The other five enumerated exceptions are: the public building exception, MCL
691.1406; the governmental hospital exception, MCL 691.1407(4); the sewage disposal
system exception, MCL 691.1417; the motor vehicle exception, MCL 691.1405; and the
proprietary function exception, MCL 691.1413. The first three will rarely apply in the
context of outdoor recreational activities for obvious reasons. We have not discussed
the motor vehicle exception because we believe it will be the extremely rare case in
which a government-owned vehicle fitting within the narrow definition of “motor vehicle,”
Stanton v City of Battle Creek, 466 Mich 611 (2002), Regan v Washtenaw Co Bd of
Road Comm’rs, 257 Mich App 39 (2003), will have the necessary physical involvement,
Curtis v City of Flint, 253 Mich App 555 (2003), in an outdoor recreational activity
related injury to invoke the exception. Similarly, we have not addressed the proprietary
function exception because we believe it will be the rare case in which a plaintiff will be
able to establish that a governmental agency is operating a public recreation area for
the primary purpose of producing a profit, even where the governmental agency
charges a fee for using the recreational area. See Adam v Sylvan Glynn, 197 Mich App
95, 97-99 (1992); Transou v City of Pontiac, 283 Mich App 75 (2009).

111 MCL 691.1401(e); see also Grimes v Dep’t of Transportation, 475 Mich 72
(2006); Wilson v Alpena Co Rd Comm’n, 474 Mich 161 (2006); Nawrocki v Macomb Co
Rd Comm’n, 463 Mich 142 (2000); Hatch v Grand Haven Twp, 461 Mich 457 (2000).

112 See Grimes v Dep’t of Transportation, 475 Mich 72 (2006); Wilson v Alpena
Co Rd Comm’n, 474 Mich 161 (2006); Hanson v Mecosta Co Rd Comm’rs, 465 Mich
492 (2002); Nawrocki v Macomb Co Rd Comm’n, 463 Mich 142 (2000); Hatch v Grand
Haven Twp, 461 Mich 457 (2000).

113 Grimes v Dep’t of Transportation, 475 Mich 72 (2006); Wilson v Alpena Co
Rd Comm’n, 474 Mich 161 (2006); Nawrocki v Macomb Co Rd Comm’n, 463 Mich 142
(2000).

114 MCL 691.1402a(1).

115 Before MCL 691.1402a(1) was enacted in 1999, the scope of a municipality’s
duty was delineated by the definition of “highway” set forth in MCL 691.1401(e), which
at that time included only “bridges, sidewalks, crosswalks, and culverts.” The term
“trailways” was not included, as it is in the current definition of “highway” and MCL
691.1402a(1), nor was the phrase “or other installation” currently found in MCL
691.1402a(1). Thus, case law decided before the enactment of MCL 691.1402a and
the amendment to MCL 691.1401(e) consistently held that municipalities had no duty to
repair and maintain bike paths because they did not qualify as sidewalks. Hatch v
Grand Haven Twp, 461 Mich 457 (2000); Stabley v Huron-Clinton Metropolitan Park
Authority, 228 Mich App 363 (1998). We believe that a municipality’s duty to repair
and maintain now extends to bike paths because of the statutory changes adding
“trailways” and “other installations.” However, such bike paths would most likely need
to be within relatively close proximity of the highway in order to constitute part of the
highway. Cf. Hatch, supra; Stabley, supra.

116 MCL 691.1402a(2).

117 MCL 691.1402(4); MCL 691.1402a(3); MCL 224.21(2); MCL 324.81131; MCL
324.82124.

118 MCL 691.1402a(1)(a).

119 MCL 691.1403; Wilson v Alpena Co Rd Comm’n, 474 Mich 161 (2006).

120 MCL 691.1407(2).

121 MCL 691.1407; Odom v Wayne Co, 482 Mich 459 (2008); Lavey v Mills, 248
Mich App 244, 257 (2001).

122 MCL 691.1407(7)(a).
123 Robinson v Detroit, 462 Mich 439, 458-463 (2000).

124 See Kreiner v Fischer, 471 Mich 109 (2004); Shavers v Attorney General,
402 Mich 554 (1978).

125 See Kreiner v Fischer, 471 Mich 109 (2004); Shavers v Attorney General,
402 Mich 554 (1978).

126 MCL 500.3135(2)(c).

127 MCL 500.3135(2)(b).

128 MCL 500.3135(1).

129 The injured party’s recovery for economic damages is limited to the type of
economic damages recoverable as no-fault benefits. See, MCL 500.3135(3)(c);
Cassidy v McGovern, 415 Mich 32 (1986) (“The act . . . does not assure payment for all
economic losses.”) Thus, the injured party can only sue to recover any amounts by
which those economic damages exceed the amounts recoverable a no-fault benefits,
and cannot sue for economic damages of a different type.

130 Most significantly, with only one small exception the no-fault act prohibits an
injured person from suing the at-fault party for damages to the injured person’s
automobile and personal property. Rather, the injured person can only recover for
these damages from his own insurer, and only if he has purchased property protection
insurance. The small exception to this is that the injured person may sue the at-fault
party for no more than $500 as compensation for damage to the injured person’s
automobile. This provision, essentially, allows the injured person to recover the amount
of his property protection insurance deductible.

131 MCL 500.3105; MCL 500.3121(1).

132 MCL 500.3101(e).

133 Marietta v Cliffs Ridge, Inc, 358 Mich 364, 369-371 (1971); Kent v Alpine
Valley Ski Area, Inc, 240 Mich App 731, 737 (2000).

134McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 290 (2000); Kent v
Alpine Valley Ski Area, Inc, 240 Mich App 731, 737-738 (2000); Hakari v Ski Brule, Inc,
230 Mich App 353, 356-357 (1998); Barr v Mt Brighton Inc, 215 Mich App 512, 515
(1996); Schmitz v Cannonsburg Skiing Corp, 170 Mich App 692, 695 (1988); Grieb v
Alpine Valley Ski Area, Inc, 155 Mich App 484, 487-490 (1987);

135 MCL 408.322(d) & (f); Barrett v Mt Brighton, Inc, 474 Mich 1087 (2006);
Shukoski v Indianhead Mountain Resort, Inc, 166 F 3d 848, 851 (CA 6, 1999). We
would note that in Barrett the Supreme Court interpreted MCL 408.322(g), which
defines the term “skier,” as including alpine skiers, snow boarders, and cross-country
skiers. We question its inclusion of cross-country skiers, however, because this
provision defines “skier” as a person “wearing skis or utilizing a device that attaches to
at least 1 foot or the lower torso for the purpose of sliding on a slope.” (Emphasis
added).

The state and its political subdivisions are included within the definition of ski
area operator. Thus, under Ballard v Ypsilanti Township, 457 Mich 564, 574-575
(1998), a governmental entity’s failure to comply with the SASA would qualify as an
exception to governmental immunity. However, the Supreme Court’s conclusion in
Barrett v Mt Brighton, Inc, 474 Mich 1087 (2006), that the SASA applies to cross-
country skiing, coupled with the Court of Appeals’ conclusion in Adam v Sylvan Glynn
Golf Course, 197 Mich App 95 (1992), that governmental agencies enjoy immunity
under the GTLA when operating cross-country ski areas, indicates otherwise. The
Michigan Supreme Court’s holding in Richardson v Jackson Co, 432 Mich 377 (1989),
also contradicts Ballard because the statute at issue in Richardson, a provision of the
Marine Safety Act, also applied to governmental entities, id. at 382 n 5, but the
Supreme Court expressly held that a governmental entity’s failure to comply with a
provision in a regulatory statute such as the Marine Safety Act does not change the fact
that the governmental entity was engaged in a “governmental function” and, thus,
entitled to immunity under the GTLA, id. at 385-387. (See discussion of this in the
section regarding governmental immunity).

136 MCL 408.341; MCL 408.342.

137 MCL 408.342(2); Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 24
(2003); McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 290 (2000); Kent v
Alpine Valley Ski Area, Inc, 240 Mich App 731, 737 (2000).

138 See Schmitz v Cannonsburg Skiing Corp, 170 Mich App 692 (1988); Barr v
Mt Brighton, 215 Mich App 516 (1996).

139 See Kent v Alpine Valley Ski Area, Inc, 240 Mich App 731 (2000); Clewell v
Caberfae Skiing Co, unpublished opinion per curiam of the Court of Appeals, decided
June 30, 2000 (Docket No 217988); McGoldrick v Holiday Amusements, Inc, 242 Mich
App 286 (2000); Feldman v Mt Holly Resort, Inc, unpublished opinion per curiam of the
Court of Appeals, decided Nov 22, 2005 (Docket No 263199).

140 Grieb v Alpine Valley Ski Area, Inc, 155 Mich App 484 (1987); Hakari v Ski
Brule, Inc, 230 Mich App 353 (1998); Rusnak v Walker, 273 Mich App 299 (2006).

141 Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 25 (2003).

142 Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 25 n 1 (2003).

One Court of Appeals case seems to indicate that in order to fall within the ambit
of the statute, other dangers must be “necessary” in a strict sense by stating that “[i]t is
safe to say that, generally, if the ‘dangers’ listed in the statute do not exist, there is no
skiing.” Schmitz v Cannonsburg Skiing Corp, 170 Mich App 692, 696 (1988). We
believe this to be an inaccurate interpretation of the statute, and certainly not in accord
with the cases decided after it. Under the doctrine of noscitur a sociis, it is clear that
the term “necessary” as used in the statute cannot be interpreted as meaning
absolutely necessary. Indeed, none of the dangers specifically listed in the statute are
absolutely necessary in order to have skiing. For instance, there was certainly skiing
before the invention of snow grooming equipment and ski lifts, and one does not
necessarily need rocks or trees to have skiing. Rather, the only things absolutely
necessary to have skiing would be snow and some type of ski. Thus, we believe that
the commonality of the dangers listed in the statute is that they are all so
overwhelmingly common in the sport of skiing that their existence on a ski slope would
never be considered surprising or out of the ordinary.

143 Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20 (2003).

144 Ajo v Mt Holly Resort, Inc, unpublished opinion per curiam of the Court of
Appeals, decided Feb 9, 2006 (Docket No 254088).

145 Brodie v City of Riverview, unpublished opinion per curiam of the Court of
Appeals, decided Nov 19, 1996 (Docket No 187126).

146 Shukoski v Indianhead Mountain Resort, Inc, 166 F 3d 848 (CA 6, 1999).

147 Barrett v Mt Brighton, Inc, 474 Mich 1087 (2006).

148 McGoldrick v Holiday Amusement, Inc, 242 Mich App 286 (2000).

149 Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26 (2003); Kent v Alpine
Valley Ski Area, Inc, 240 Mich App 731, 743-744 (2000); McGoldrick v Holiday
Amusements, Inc, 242 Mich App 286, 294 (2000); Schmitz v Cannonsburg Skiing Corp,
170 Mich App 692, 696 (1988); Feldman v Mt Holly Resort, Inc, unpublished opinion per
curiam of the Court of Appeals, decided Nov 22, 2005 (Docket No 263199); Clewell v
Caberfae Skiing Co, unpublished opinion per curiam of the Court of Appeals, decided
June 30, 2000 (Docket No 217988); Godde v Bittersweet Ski Resort, Inc, unpublished
opinion per curiam of the Court of Appeals, decided October 26, 1999 (Docket No
210676).

150 McCormick v Go Forward Operating Limited Partnership, 235 Mich App 551,
555-556 (1999); McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 290-291
(2000).

151 Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 26 (2003); Kent v Alpine
Valley Ski Area, Inc, 240 Mich App 731 (2000); Clewell v Caberfae Skiing Co,
unpublished opinion per curiam of the Court of Appeals, decided June 30, 2000
(Docket No 217988).

152 McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 297 (2000);
Schmitz v Cannonsburg Skiing Corp, 170 Mich App 692, 696 (1988); Feldman v Mt
Holly Resort, Inc, unpublished opinion per curiam of the Court of Appeals, decided Nov
22, 2005 (Docket No 263199); Clewell v Caberfae Skiing Co, unpublished opinion per
curiam of the Court of Appeals, decided June 30, 2000 (Docket No 217988).

153 McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 296 (2000).

154 McCormick v Go Forward Operating Ltd Partnership, 235 Mich App 551
(1999).

155 Barrett v Brighton, 474 Mich 1087 (2006); Shukoski v Indianhead Mountain
Resort, Inc, 166 F 3d 848, 851 (CA 6, 1999).

156 Clewell v Caberfae Skiing Co, unpublished opinion per curiam of the Court of
Appeals, decided June 30, 2000 (Docket No 217988); Feldman v Mt Holly Resort, Inc,
unpublished opinion per curiam of the Court of Appeals, decided Nov 22, 2005 (Docket
No 263199).

157 Kent v Alpine Valley Ski Area, Inc, 240 Mich App 731, 742 (2000).

158 Shukoski v Indianhead Mountain Resort, Inc, 166 F 3d 848, 852 (CA 6,
1999).

159 Rusnak v Walker, 273 Mich App 299 (2006); MCL 408.344.
160 Barr v Mt Brighton, 215 Mich App 512, 519-520 (1996).

161 MCL 408.326a; MCL 408.329.

162 Rusnak v Walker, 273 Mich App 299 (2006); MCL 408.344.

163 Kent v Alpine Valley Ski Area, Inc, 240 Mich App 731, 743 (2000); Barr v Mt
Brighton, Inc, 215 Mich App 512, 520-521 (1996); Schmitz v Cannonsburg Skiing
Corporation, 170 Mich App 692, 694-695 (1988).

164See MCL 324.73301; MCL 324.73107.

165 See MCL 324.82126(6), governing snowmobiling, which provides that
snowmobilers accept risks that are obvious and inherent in snowmobiling, including
“injuries to persons or property . . .”; see also MCL 691.1663 of the Equine Activity
Liability Act, which provides that certain persons engaged in equine activities “are not
liable for an injury to or the death of a participant or property damage resulting from an
inherent risk of an equine activity.”

166 See People v Melton, 271 Mich App 590, 594-595 (2006) (Davis, PJ), lv den
477 Mich 1043 (2007).

167 MCL 408.344.

168 Rusnak v Walker, 273 Mich App 299 (2006); see also, generally, Hakari v Ski
Brule, Inc, 230 Mich App 352 (1998); Grieb v Alpine Valley Ski Area, 155 Mich App 484
(1987).

169 MCL 324.81101(n).
170 See People v O’Neal, 198 Mich App 118, 119 (1993).

171 Van Guilder v Collier, 248 Mich App 633, 637 (2002); People v O’Neal, 198
Mich App 118, 120 (1993); see also Gaggo v Kennedy, unpublished opinion per curiam
of the Court of Appeals, decided July 22, 2008 (Docket No 278607).

172 Van Guilder v Collier, 248 Mich App 633, 638-639 (2002), citing MCL
257.401(1); see also Gaggo v Kennedy, unpublished opinion per curiam of the Court of
Appeals, decided July 22, 2008 (Docket No 278607).

173 Van Guilder v Collier, 248 Mich App 633 (2002).

We believe that the Court of Appeals’ decision in Van Guilder that the
recklessness standard does not apply is extremely conclusory and badly written.
Primarily, the Court does not explain whether the defendant in that case was merely the
operator of the ORV or also its owner. The Court also fails to discuss the fact that MCL
257.401(1) states that “[t]he owner of a motor vehicle is liable for an injury caused by
the negligent operation of the motor vehicle . . ,” and does not state that the operator is
liable for an injury caused by the negligent operation of a motor vehicle. In other words,
the Court fails to explain why it isn’t the case that an owner can be held liable merely
upon a showing of negligence, but that an operator who is not also the owner cannot be
held liable unless there is a showing of recklessness. Rather, the Court simply
concludes that the ordinary negligence standard applies to determine liability any time a
recreational activity involves an ORV.

174 MCL 257.401(1); see also Gaggo v Kennedy, unpublished opinion per curiam
of the Court of Appeals, decided July 22, 2008 (Docket No 278607).

175 For example, Part 821 of the Natural Resources and Environmental
Protection Act, MCL 324.81101, et seq., specifically allows the DNR to implement rules
and municipalities to pass ordinances governing certain aspects of ORV use. See, e.g.,
MCL 324.81131 & MCL 324.81132. Also, certain provisions of the Motor Vehicle Code,
such as the OUIL statute, MCL 257.625, have been held to apply to ORVs, being
especially applicable when an ORV is operated on a highway. People v O’Neal, 198
Mich App 118 (1993). Moreover, the definition of ORV expressly includes motorcycles,
and MCL 257.656 through MCL 257.662 of the Motor Vehicle Code contain several
provisions expressly applicable to the operation of motorcycles.

176 MCL 324.81133.
177 MCL 324.81133(c) & (d).
178 MCL 324.81133(t).
179 MCL 324.81133(a).
180 MCL 324.81140a.
181 MCL 324.81134; MCL 324.81135; People v O’Neal, 198 Mich App 118

182 MCL 324.81133(h); MCL 324.81133(u).

183 MCL 324.81133(f).

184 MCL 324.81133(m).

185 MCL 324.81133(j).

186 MCL 324.8133(k).

187 MCL 324.81143.

188 MCL 324.81146(2).

189 Cf. People v Wilson, 139 Mich App 205, 210 (1985) (construing somewhat
similar provisions governing the operation of snowmobiles along and upon roadways).

190 MCL 257.26 defines “limited access highway” as “every highway, street, or
roadway in respect to which owners or occupants of abutting lands and other persons
have no legal right of access to or from the same except at such points only, and in
such manner as may be determined by the public authority having jurisdiction over such
highway, street or roadway.”

191 MCL 324.81122 & MCL 324.81131.

192 MCL 324.81122(2).

193 MCL 324.81130.

194 MCL 324.81129(3), (6), & (14).

195 MCL 324.81129(2), (5), & (13).

196 MCL 324.81129(2), (5), & (13).

197 MCL 324.81101(v).

198 MCL 324.81129(1), (4), & (12).

199 MCL 324.81129(1), (4), & (12).

200 MCL 324.81129(16).

201 MCL 324.81129(16).

202 MCL 324.81131; see also MCL 224.21; MCL 691.1402(4).

203 MCL 500.3101(2)(e).

204 Allstate Ins Co v Dep’t of Mgt & Budget, 259 Mich App 705 (2004); Morris v
Allstate Ins Co, 230 Mich App 361 (1998); Coffey v State Farm Mutual Automobile Ins
Co, 162 Mich App 264 (1987).

205 MCL 324.81106; See also Nelson v Transamerica Ins Services, 441 Mich
508 (1992); Michigan Millers Mutual Ins Co v Farm Bureau Ins Co, 156 Mich App 823
(1987). See, contra, Coffey v State Farm Mutual Automobile Ins Co, 183 Mich App 723
(1990), wherein the owner of a go-cart who collided with a motorcycle while driving the
go-cart down the road was precluded from recovering PIP benefits because he did not
maintain a no-fault policy covering the go-cart. The Court of Appeals did not discuss
whether the no-fault exclusion for ORVs applied to the go-cart, but we do not believe
that it would.

206 MCL 324.81106; See also Nelson v Transamerica Ins Services, 441 Mich
508 (1992); Michigan Millers Mutual Ins Co v Farm Bureau Ins Co, 156 Mich App 823
(1987). See, contra, Coffey v State Farm Mutual Automobile Ins Co, 183 Mich App 723
(1990), wherein the owner of a go-cart who collided with a motorcycle while driving the
go-cart down the road was precluded from recovering PIP benefits because he did not
maintain a no-fault policy covering the go-cart. The Court of Appeals did not discuss
whether the no-fault exclusion for ORVs applied to the go-cart, but we do not believe
that it would.

207 See Bishop v Farmers Ins Exchange, 133 Mich App 327 (1984) (pedestrian
struck by motorcycle not entitled to collect no-fault benefits).

208 MCL 500.3103(1); Underhill v Safeco Ins Co, 407 Mich 175 (1979).

209 Nelson v Transamerica Ins Services, 441 Mich 508 (1992); Michigan Millers
Mutual Ins Co v Farm Bureau General Ins Co, 156 Mich App 823 (1987).

210 See Stynes, Nelson, and Lynch, State and Regional Economic Impacts of
Snowmobiling in Michigan
<http://www.msu.edu/course/prr/840/econimpact/pdf/sbecimpact.pdf> (accessed May 7,
2007).

211 Maps produced by the Michigan Department of Natural Resources
May 7, 2007).

212 See, Michigan Department of Natural Resources, Snowmobiling in Michigan,
<http://www.michigan.gov/dnr/0,1607,7-153-10365_14824-32291–,00.html> (accessed
May 7, 2007).

213See MCL 324.82101(t), which defines “snowmobile” as “any motor-driven
vehicle designed for travel primarily on snow or ice of a type that utilizes sled-type
runners or skis, an endless belt tread, or any combination of these or other similar
means of contact with the surface upon which it is operated. . . .”

http://www.michigan.gov/dnr/0,1607,7-153-10365_14824-31074–,00.html

214 See Brooks v Nichols, unpublished opinion per curiam of the Court of
Appeals, decided May 19, 2005 (Docket No 260106); Larson v Bennett, unpublished
opinion per curiam of the Court of Appeals, decided Feb 12, 2004 (Docket No 244131);
Kaufman v Schaedler, unpublished opinion per curiam of the Court of Appeals, decided
Oct 12, 2004 (Docket No 249173).

215Note that the SASA precludes liability when a skier collides with “properly
marked or plainly visible snow-making or snow-grooming equipment,” whereas Part 821
precludes liability collides with other snowmobiles or snow-grooming equipment
regardless of whether they were properly marked or plainly visible.

216 Note that this language is actually quite different from the language of the
SASA, which also requires that the dangers be “necessary.” The few courts that have
interpreted Part 821, however, have failed to note this difference. See Brooks v
Nichols, unpublished opinion per curiam of the Court of Appeals, decided May 19, 2005
(Docket No 260106); Larson v Bennett, unpublished opinion per curiam of the Court of
Appeals, decided Feb 12, 2004 (Docket No 244131); Kaufman v Schaedler,
unpublished opinion per curiam of the Court of Appeals, decided Oct 12, 2004 (Docket
No 249173).

217 See Brooks v Nichols, unpublished opinion per curiam of the Court of
Appeals, decided May 19, 2005 (Docket No 260106); Larson v Bennett, unpublished
opinion per curiam of the Court of Appeals, decided Feb 12, 2004 (Docket No 244131);
Kaufman v Schaedler, unpublished opinion per curiam of the Court of Appeals, decided
Oct 12, 2004 (Docket No 249173).

218 MCL 408.322(d) & (e). Although the SASA also provides protection for other
skiers, this apparently only applies when the injury occurs at a ski area having 1 or
more ski lift.

219 See Larson v Bennett, unpublished opinion per curiam of the Court of
Appeals, decided Feb 12, 2004 (Docket No 244131).

220 That duty, instead, rests solely on the negligent skier himself. MCL
408.341(1).

221 MCL 324.82101(t).

222 People v Rogers, 438 Mich 602, 606 (1991);Van Guilder v Collier, 248 Mich
App 633, 637 n 2 (2002); Montgomery v Dep’t of Natural Resources, 172 Mich App 718,
722 (1988).

223 MCL 257.401(1); Van Guilder v Collier, 248 Mich App 633, 638-639 (2002).
Although Van Guilder does not expressly apply to snowmobiles, we believe that it’s
reference to snowmobiles qualifying as motor vehicles implies that its holding would be
extended to snowmobiles if the situation presented itself.

224 MCL 324.82126(6).

225 MCL 324.82126a also makes it a civil infraction to operate a snowmobile in a
“careless or negligent manner likely to endanger any person or property” in certain
places, including upon a highway, public trail, frozen surface of a public lake, stream,
river, pond, or other public place including but not limited to parking areas.

226 For instance, the Michigan Supreme Court has held that certain provisions of
the Motor Vehicle Code, such as the OUIL statutes, apply to snowmobiles. People v
Rogers, 438 Mich 602 (1991). Also, MCL 324.82124 allows municipalities to enact
ordinances regulating the operation of snowmobiles under certain circumstances. The
city of Traverse City, for instance, has enacted an ordinance generally prohibiting the
operation of snowmobiles within the city limits. Codified Ordinances of Traverse City,
Chapter 410, Rule 1076. Other provisions of Part 821 allow the Department of Natural
Resources to promulgate rules regarding the operation of snowmobiles in certain areas,
such as upon frozen public waters. See, e.g., MCL 324.82125. Notably, however, the
Department of State Police has rescinded all of the provisions of the Uniform Traffic
Code that formerly applied to snowmobiles. See 2007 AC, R 28.2001 through R
28.2075.

227 MCL 324.82123.

228 MCL 324.82122(1).

229 MCL 324.82131.

230 MCL 324.82126(1)(a).

231 MCL 324.82147a.

232 MCL 324.82127; People v Rogers, 438 Mich 602 (1991).

233 MCL 324.82126(1)(e).

234 MCL 324.82126(1)(c).
235 MCL 324.82126(1)(I).
236 MCL 324.82126(1)(f).
237 MCL 324.82126(1)(g).
238 MCL 324.82132.

239 People v Rogers, 438 Mich 602, 606 n 1 (1991) (Mallett, J.); Montgomery v
Dep’t of Natural Resources, 172 Mich App 718, 722 n 1 (1988).

240People v Wilson, 139 Mich App 205, 210 (1985).

241 MCL 257.26 defines “limited access highway” as “every highway, street, or
roadway in respect to which owners or occupants of abutting lands and other persons
have no legal right of access to or from the same except at such points only, and in
such manner as may be determined by the public authority having jurisdiction over such
highway, street or roadway.”

242 MCL 324.82119.

243 MCL 324.82119(1)(d).

244 MCL 324.82120(2) & (5).

245 MCL 324.82120(4) & (5).

246 MCL 324.82120(1) & (5).
247 MCL 324.82120(4) & (5).
248 MCL 324.82124; see also MCL 224.21; MCL 691.1402(4).

249 See also MCL 691.1402a(3) (stating that a municipal corporation’s liability is
limited by MCL 324.81131, which applies to ORVs, but does not mention MCL
324.82124.

250 Schuster v Allstate Ins Co, 146 Mich App 578 (1986); McDaniel v Allstate Ins
Co, 145 Mich App 603 (1985).

251 Schuster v Allstate Ins Co, 146 Mich App 578, 582 (1986).

252 Michigan Department of Natural Resources Law Enforcement Division,
Hunting-Related Deaths and Injuries

http://www.michigan.gov/documents/HUNTING_DEATHS_INURY_1940-CURRENT_1

61501_7.pdf

253 Michigan Department of Natural Resources Law Enforcement Division,
Hunting Incidents 2006

http://www.michigan.gov/documents/dnr/2006HUNTING_INCIDENTS_178581_7.pdf

254 MCL 324.43501 through MCL 324.43561.

255 MCL 324.43556(6).

256 It should be noted that MCL 324.73301(4) of the RUA affords coverage only
to the owners of certain farmlands who allow their land to be used for fishing or hunting.
MCL 324.73107(2) of the RTS, on the other hand, is broader and affords coverage to
any owner of property who allows their land to be used for fishing, hunting, or trapping.
This is curious because an owner of farmland is, technically, an owner of property
within the meaning of the RTS. Thus, it would seem that an owner of farmland would
qualify for the broader coverage of the RTS if he allows trapping on his land.

257 Lugo v Ameritech Corp, Inc, 464 Mich 512, 517 (2001), quoting Bertrand v
Alan Ford, Inc, 449 Mich 606, 614 (1995).

258 Lugo v Ameritech Corp, Inc, 464 Mich 517-518 (2001) (quotations omitted).

259 Lugo v Ameritech, 464 Mich 512, 518-519 (2001).

260Such an interpretation of the statutes would be interesting because it would
result in the landowner’s being subject to less potential liability for injuries sustained by
persons who essentially qualify as paying invitees than with respect to persons who
only qualify as licensees or trespassers. This not only completely contradicts the
common law, but also puts the landowner in a better position when he does not receive
payment for the use of his land than when he does receive payment, a result that
seems illogical. There is a slight chance, however, that the current Michigan Supreme
Court would adopt this interpretation under the premise that it is within the Legislature’s
prerogative to change common-law principles or abolish them altogether, Phillips v
Mirac, Inc, 470 Mich 415, 430 (2004); Anderson v Pine Knob Ski Resort, Inc, 469 Mich
20, 27 n 2 (2003); Donajkowski v Alpena Power Co, 460 Mich 243, 256 n 14 (1999),
which is something that the Legislature was undoubtedly attempting to do when it
enacted the RUA and the RTS. Moreover, in recent years, the Michigan Supreme
Court has consistently stated that statutes must be interpreted and applied according to
their plain language even where doing so would make the statute seem unwise or
unfair, or the result seems absurd. People v McIntire, 461 Mich 147 (1999); see also
Smith v Cliffs on the Bay Condominium Assoc, 463 Mich 420, 430 (2000); Oakland Cty
Bd of Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 612613
(1998).

261 See Ambs v Kalamazoo Cty Rd Comm’n, 255 Mich App 637, 645 n 9 (2003).

262 Felgner v Anderson, 375 Mich 23, 30 (1965); Bezemek v Crystal, 27 Mich
App 36, 39 (1971); See also, generally, McCoy v DeLiefde, 376 Mich 198 (1965);
Striker v Martindale, 372 Mich 578 (1964); Granstrom v Gray, 365 Mich 349 (1961);
Holliday v McKeiver, 156 Mich App 214 (1987);Walters v Sargent, 46 Mich App 379,
aff’d in part and rev’d in part 390 Mich 775 (1973); Nagy v McEachern, 28 Mich App
439 (1971).

263 The Court did mention hunting in Ritchie-Gamestar v City of Berkley, 461
Mich 73, 78 (1999), when discussing that the Court had previously abolished the
doctrine of assumption of the risk with respect to recreational activities in Felgner v
Anderson, 375 Mich 23, 30 (1965). However, we do not believe that the Court’s
discussion of Felgner prompts the conclusion that the recklessness standard applies
among co-participants in hunting since the Court specifically stated that the standard’s
application to each recreational activity would have to be decided on a case-by-case
basis, Ritchie, supra at 89 n 9, and did not consider the statutes’ application to hunting.

264 MCL 752.861; MCL 752.862; MCL 752.881; MCL 752.882. Although these
statutes are penal in nature, and do not specifically impose civil liability, they were
certainly intended to prevent the type of harm that occurs during a hunting accident. It
is also the case that a person who violates these sections may have their hunting
license revoked for a period of 3 years from the date of conviction, MCL 752.864, MCL
752.883, which provides at least an inference that other hunters are within the class of
persons intended to be protected by these statutes.

265 MCL 324.40111(4).

266 MCL 324.73103.

267 MCL 324.40116.

268 MCL 324.43558(3); MCL 750.167a.
269 MCL 324.43520(c).
270 MCL 324.43520(c).
271 MCL 324.43517(c).
272 MCL 324.43502(1).
273 MCL 324.43517(a).

274 MCL 324.40112; see also MCL 73105 of the RTS (prohibiting a person from
posting or enclosing the property of another to prohibit hunting, fishing, trapping, or
other recreational activities without permission from the property’s owner).

275 Ritchie-Gamestar v City of Berkley, 461 Mich 73, 98 n 3 (1999) (Brickley, J.,
Concurring) (citations omitted).

276 Michigan Department of Natural Resources Law Enforcement Division,
Hunting-Related Deaths and Injuries

http://www.michigan.gov/documents/HUNTING_DEATHS_INURY_1940-CURRENT_1

61501_7.pdf

277 See Natural Resources Boost Michigan’s Economy,

http://www.michigan.gov/dnr/0,1607,7-153-38948-121641–,00.html

278 MCL 324.80157; MCL 324.80207; Van Guilder v Collier, 248 Mich App 633,
342 n 3 (2002).

279 MCL 324.80157; MCL 324.80158; MCL 324.80207.

280 Hawkins v Ranch Rudolph, Inc, unpublished opinion per curiam of the Court
of Appeals, decided Sept 27, 2005 (Docket No 254771), p 5, citing MCL 691.1662(f).

281 See Hunt v Outland, 304 Mich 455 (1943).

282Trager v Thor, 445 Mich 95 (1994).

283 See Amburgey v Sauder, 238 Mich App 228 (2000); Mounts v Van Beeste,
unpublished opinion per curiam of the Court of Appeals, decided Aug 3, 2004 (Docket
No 243155).

284Amburgey v Sauder, 238 Mich App 228, 245 (2000).

285 MCL 691.1663; Amburgey v Sauder, 238 Mich App 228, 233, 245-246
(2000); Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 12 (2000).

286 Amburgey v Sauder, 238 Mich App 228, 245-246 (2000); Cole v Ladbroke
Racing Michigan, Inc, 241 Mich App 1, 12 (2000).

287 MCL 691.1662(b).

288 See Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 25 n 1 (2003); Neal
v Wilkes, 470 Mich 661, 669 (2004).

289 MCL 691.1664(1) provides that the EALA “does not apply to a horse race
meeting that is regulated by the racing law of 1980, Act No. 327 of the Public Acts of
1980, being sections 431.61 to 431.88 of the Michigan Compiled Laws.” Oddly, the
Legislature repealed the racing law of 1980 in January of 1996, less than a year after it
enacted the EALA. MCL 431.335. The Legislature replaced the racing law of 1980
with the Horse Racing Law of 1995, MCL 431.316, et seq., which contains substantially
similar provisions to the racing law of 1980, Mancik v Racing Comm’r, 236 Mich App
423, 428 n 1 (1999), but apparently forgot to amend MCL 691.1664 of the EALA to
reference the new act.

290Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 10-11 (2000).
291 MCL 691.1662(d).

292 MCL 691.1662(e).

293 See Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 25 n 1 (2003); Neal
v Wilkes, 470 Mich 661, 669 (2004).

294 MCL 691.1662(g).

295 MCL 691.1662(a).

296 Mounts v Van Beeste, unpublished opinion per curiam of the Court of
Appeals, decided Aug 3, 2004 (Docket No 243155), 3.

297 MCL 691.1662(a).

298 MCL 691.1662(a).

299 Columbus v Moore, unpublished opinion per curiam of the Court of Appeals,
decided July 27, 2006 (Docket No 267957), 2; see also Amburgey v Sauder, 238 Mich
App 228, 234-236 (2000).

300 Amburgey v Sauder, 238 Mich App 228, 235 (2000).

301 Columbus v Moore, unpublished opinion per curiam of the Court of Appeals,
decided July 27, 2006 (Docket No 267957), 2.

302 MCL 691.1662(a).

303 MCL 691.1663; Beattie v Mickalich, __ Mich App __ (2009)(Docket No
284130).

304 MCL 691.1662(f).

305 See Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 25 n 1 (2003); Neal
v Wilkes, 470 Mich 661, 669 (2004).

306Amburgey v Sauder, 238 Mich App 228, 246 (2000).

307 See MCL 691.1665; Beattie v Mickalich, __ Mich App __ (2009)(Docket No
284130); Amburgey v Sauder, 238 Mich App 228, 242-243 (2000); Terrill v Stacy,
unpublished opinion per curiam of the Court of Appeals, decided Feb 28, 2006 (Docket
No 265638); Hawkins v Ranch Rudolph, Inc, unpublished opinion per curiam of the
Court of Appeals, decided Sept 27, 2005 (Docket No 254771); Mounts v Van Beeste,
unpublished opinion per curiam of the Court of Appeals, decided Aug 3, 2004 (Docket
No 243155).

308 It is important to note that if a lawsuit is filed against an equine professional,
one of these statutory exceptions must be specifically referenced in the complaint. If
this is not done, and the complaint is styled as a general negligence action, the Court
may dismiss it for failure to state a valid claim. Beattie v Mickalich, __ Mich App __
(2009) (Docket No 284130).

309 MCL 691.1665.
310 MCL 691.1666; Amburgey v Sauder, 238 Mich App 228, 239-240 (2000).

311Beattie v Mickalich, __ Mich App __ (2009)(Docket No 284130).

312 See, generally, Amburgey v Sauder, 238 Mich App 228, 239 (2000) (raising
the issue but declining to resolve it after determining that sufficient signs had been
posted).

313 MCL 257.4.

314 Codified Ordinances of Traverse City, Chapter 420, Rule 420.04. Other than
this provision, Traverse City has not enacted many ordinances governing the operation
of bicycles, aside from a few rules requiring that bicycles be licensed. See Rule
420.01-420.03.

315 2007 AC, R 28.1001 through R 28.2075.

316 2007 AC, R 1603. We have not summarized these UTC rules because there
are only a few, and they mainly govern parking a bicycle or disobeying a sign prohibiting
the use of bicycles in certain areas.

317 Massey v Scripter, 401 Mich 385, 464 (1969); MCL 257.657 provides:

Each person riding a bicycle . . . upon a roadway has all of the rights and is subject to all
of the duties applicable to the driver of a vehicle by this chapter, except as to special
regulations in this article and except as to the provisions of this chapter which by their
nature do not have application.

It is not clear whether the Courts will ultimately construe this to mean that the

318 MCL 257.658(1).

319 MCL 257.658(2).

320 MCL 257.661.

321 MCL 257.662(2).

322 MCL 257.659.

323 MCL 257.662(1).

324 Bicycle Helmet Safety Institute, Helmet Laws for Bicycle Riders

http://www.helmets.org/mandator.htm

325 Michigan Department of Transportation, Tips for Safe Cycling

http://www.michigan.gov/mdot/0,1607,7-151-9615_11223-22774–,00.html

326 MCL 257.660a.
327 MCL 257.660b.
328 MCL 257.660c.
329 MCL 257.660d.

330 This information was obtained from the Michigan Department of Natural
Resource’s website.

http://www.michigan.gov/dnr/0,1607,7-153-10365_10884-22788–,00.html

331 United States Coast Guard, 2006 Boating Statistics,

http://www.uscgboating.org/statistics/accident_stats.htm

332 United States Coast Guard, 2006 Boating Statistics,

http://www.uscgboating.org/statistics/accident_stats.htm

333 United States Coast Guard, 2006 Boating Statistics,

http://www.uscgboating.org/statistics/accident_stats.htm

334 28 USC §1333.

335 Sisson v Ruby, 497 US 358 (1990).

336 MCL 324.80157; MCL 324.80207; Van Guilder v Collier, 248 Mich App 633,
342 n 3 (2002).

337 MCL 324.80157; MCL 324.80158; MCL 324.80207.

338 Massey v Scripter, 401 Mich 385, 393-395 (1977); Farmer v Christensen, 229
Mich App 417, 420 (1998).

339 Candelaria v BC General Contractors, Inc, 236 Mich App 67, 82 n 5 (1999);
Johnson v Bobbie’s Party Store, 189 Mich App 652, 661 (1991).

340 MCL 324.80104(q); MCL 324.80105(1).

341 MCL 324.80222; Note that Part 802 will be repealed by 2004 PA 27 effective
March 23, 2012.

342 MCL 324.80201(o).
343 MCL 324.80145.
344 MCL 324.80145.
345 MCL 324.80147.
346 MCL 324.80149(1).
347 MCL 324.80149(1).
348 MCL 324.80150.
349 MCL 324.80133.
350 MCL 324.80135.
351 MCL 324.80153.
352 MCL 324.80154.
353 MCL 324.80176(1).
354 MCL 324.80145.
355 MCL 324.80146(2).
356 MCL 324.80148.
357 MCL 324.80146(3).
358 MCL 324.80144(1)(a).
359 MCL 324.80144(1)(b).
360 MCL 324.80144(1)(c).
361 MCL 324.80144(1)(d) & (e).
362 MCL 324.80144(1)(f).
363 MCL 324.80151.
364 MCL 324.80152(1).
365 MCL 324.80155.
366 MCL 324.80155.
367 MCL 324.80198b(1).
368 MCL 324.80198b(2).
369 MCL 324.80141(1) & (4).
370 MCL 324.80141(2) & (4).
371 MCL 324.80142(1).
372 MCL 324.80142(2).
373 MCL 324.80205(11).
374 MCL 324.80208.
375 MCL 324.80205(11).
376 MCL 324.80205(12) & (13).
377 MCL 324.80205(14).
378 MCL 324.80205(1), (2), (3), & (4). Note that the types of floatation devices
acceptable for persons over 12 years of age, and those under 12 years of age, will
change effective March 16, 2009.
379 MCL 324.80205(6).
380 MCL 324.80205(7).
381 MCL 324.80205(8).
382 MCL 324.80205(9).
383 MCL 324.80209(1).
384 MCL 324.80209(2) & (4).
385 MCL 324.80209(3).
386 MCL 324.80215(4).
387 MCL 324.80215(1) & (3).
388 MCL 324.80215(3).
389 MCL 324.80215(6).
390 MCL 324.80205(5).
391 R 281.1232.
392 R 281.1240; R 281.1244.
393 R 281.1241; R 281.1245.
394 R 281.1243; R 281.1246.
395 R 281.1243; R 281.1247.396 R 281.1250.
397 R 281.1248.
398 R 281.1249.
399 R 281.1251; R 281.1252.

400 See Ginop v A 1984 Bayliner 27′ Cabin Cruiser, 242 F Supp 2d 482, 485 (ED
Mich, 2003).

401 The Act was originally codified in 46 USC § 181, et seq, but was repealed
and recodified in October of 2006.

402 46 USC § 30505.

403 See Lewis v Lewis & Clark Marine, Inc, 531 US 438 (2001); Clinton River
Cruise Co v DeLaCruz, __ F 3d __ (CA 6, 2007); In re Illinois Marine Towing, Inc, __ F
3d __ (CA 7, 2007); Otal Investments Ltd v MV Clary, __ F 3d __ (CA 2, 2007); In re
Ruiz, 494 F Supp 2d 1339 (SD Fla, 2007); In re City of New York, 475 F Supp 2d 235
(ED NY, 2007); Brown v Teresa Marie IV, Inc, 477 F Supp 2d 266 (D Me, 2007);
Lockheed Martin Corp v Unknown Respondents, __ F Supp 2d __ (ND NY, 2007); In re
Omega Protein, Inc, __ F Supp 2d __ (WD La, 2007).

404 Supplemental Rules for Admiralty or Maritime Claims, Rule 5; 46 USC §
30511.

405 Lewis v Lewis & Clark Marine, Inc, 531 US 438, 451-452 (2001), holding that
a federal district court properly dissolved an injunction preventing state court claims
against the vessel owner where the vessel owner’s right to seek limitation of liability was
“adequately protected” by: (1) a stipulation that the plaintiff’s claims in state court did
not exceed the value of the vessel, (2) the state court plaintiff’s waiver of any defense of
res judicata with respect to limitation of liability, and (3) the district court’s decision to
stay Limitation Act proceedings pending the state court proceedings.

406 Lewis v Lewis & Clark Marine, Inc, 531 US 438, 446-447 (2001).
407 46 USC § 30502.
408 In re John Young, 872 F 2d 176 (CA6, 1989) (holding that “the statute applies
to any vessel”); See also Feige v Hurley, 89 F 2d 575 (CA 6, 1937).
409 Keys Jet Skis, Inc v Kays, 893 F 2d 1225 (CA11 1990).

410 See, e.g., Brister v AWI, Inc, 946 F 2d 350, 355 (CA 5, 1991).

411 Carr v PMS Fishing Corp, 191 F 3d 1, 4 (CA 1, 1999).

412 Brister v AWI, Inc, 946 F 2d 350, 355 (CA 5, 1991).

413 Carr v PMS Fishing Corp, 191 F 3d 1, 4 (CA 1, 1999).

414 Brister v AWI, Inc, 946 F 2d 350, 355 (CA 5, 1991).

415 Brister v AWI, Inc, 946 F 2d 350, 355 n 2 (CA 5, 1991), quoting Gilmore &
Black, The Law of Admiralty (2d ed, 1975), p 877.

416 46 USC § 30512. It should be noted that this provision of the current
Limitation of Liability Act is significantly different from its predecessor, 46 USC § 187,
which provided, in pertinent part:

417 Muer v Karbel, 146 F 3d 410 (1998); Ginop v A 1984 Bayliner 27′ Cabin
Cruiser, 242 F Supp 2d 482 (2003).

418 Muer v Karbel, 146 F 3d 410, 416 (1998) (quotations omitted); Ginop v A
1984 Bayliner 27′ Cabin Cruiser, 242 F Supp 2d 482 (2003).