Order Michigan Supreme Court
Lansing, Michigan
July 13, 2010 Marilyn Kelly,
Chief Justice
139438 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
TRINA LEE BEATTIE, Stephen J. Markman
Plaintiff-Appellant, Diane M. Hathaway,
SC: 139438 Justices
v COA: 284130
Lapeer CC: 06-037681-NO
MARK P. MICKALICH,
Defendant-Appellee.
_______________________________
On May 11, 2010, the Court heard oral argument on the application for leave to
appeal the June 25, 2009 judgment of the Court of Appeals. On order of the Court, the
application is again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal,
we REVERSE the judgment of the Court of Appeals and REMAND this case to the
Lapeer Circuit Court for further proceedings consistent with this order. A plaintiff is not
required to plead a claim in avoidance of the limitations on liability provided in the
Equine Activity Liability Act (EALA), MCL 691.1661 et seq. Cf. Mack v Detroit, 467
Mich 186, 198 (2002). In addition, although EALA abolished strict liability for horse
owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999), it did not abolish
negligence actions against horse owners. Indeed, EALA expressly states that “[s]ection 3
does not prevent or limit the liability . . . if the . . . person . . . [c]ommits a negligent act or
omission that constitutes a proximate cause of the injury.” MCL 691.1665. Finally,
given that the plaintiff offered documentary evidence to support her argument that the
defendant was negligent and the content or substance of such documentary evidence
would be admissible at trial, the lower courts erred in granting the defendant’s motion for
summary disposition. MCR 2.116(G)(6).
MARKMAN, J. (concurring).
I concur in this Court’s decision to reverse the judgment of the Court of Appeals,
and write separately only to respond to the dissent. Both the Court of Appeals and the
dissent conclude that the Equine Activity Liability Act (EALA), MCL 691.1661 et seq.,
only permits a negligence claim when it involves something other than inherently risky
equine activity. I respectfully disagree.
Section 3 of the EALA (MCL 691.1663) provides:
2
Except as otherwise provided in section 5, an equine activity
sponsor, an equine professional, or another person is not liable for an injury
to or the death of a participant or property damage resulting from an
inherent risk of an equine activity. Except as otherwise provided in section
5, a participant or participant’s representative shall not make a claim for, or
recover, civil damages from an equine activity sponsor, an equine
professional, or another person for injury to or the death of the participant
or property damage resulting from an inherent risk of an equine activity.
[Emphasis added.]
Section 5 of the EALA (MCL 691.1665) provides:
Section 3 does not prevent or limit the liability of an equine activity
sponsor, equine professional, or another person if the equine activity
sponsor, equine professional, or other person does any of the following:
***
(d) Commits a negligent act or omission that constitutes a proximate
cause of the injury, death, or damage.
It is uncontested that plaintiff was a “participant” “engage[d] in an equine activity” when
she was injured. The issue is whether plaintiff’s claim fits within the “negligent act or
omission that is a proximate cause of the injury” exception of EALA. The Court of
Appeals correctly held that EALA does not provide blanket immunity to a horse owner.
However, I believe that it read the immunity that EALA does provide too broadly.
Prior to the enactment of EALA, common-law strict liability would have applied
to the owner of a “green broke” horse. In Trager v Thor, 445 Mich 95, 99 (1994), this
Court recognized that “[t]here has long existed at common law a cause of action against
possessors of certain domestic animals for harm caused by those animals, regardless of
fault.” More specifically, “[s]trict liability attaches for harm done by a domestic animal
where three elements are present: (1) one is the possessor of the animal; (2) one has
scienter of the animal’s abnormal dangerous propensities; and (3) the harm results from
the dangerous propensity that was known or should have been known.” Id. Here,
defendant admitted that he knew that the horse was “green broke,” and thus that only the
most experienced riders should handle the horse. That is, defendant had knowledge of
the horse’s abnormally dangerous propensities. Indeed, that is why, according to his own
testimony, he refused to let plaintiff ride the horse. Therefore, if, as plaintiff alleges,
defendant did give plaintiff permission to ride the horse, and did instruct plaintiff to hold
onto the lead rope while he placed the saddle on the horse, defendant under the common
law would have been strictly liable for plaintiff’s injuries. Because EALA abolished
strict liability for horse owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999),
defendant is not strictly liable for plaintiff’s injuries.
3
However, EALA did not abolish negligence actions against horse owners. Indeed,
EALA expressly states that “[s]ection 3 does not prevent or limit the liability . . . if the
. . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of
the injury.” MCL 691.1665. The Court of Appeals reasoned, and the dissent agrees, that
allowing a negligence action for injuries sustained while engaged in equine activity
would “render § 3 nugatory, as it would destroy the limited liability for qualifying
defendants created under that section. However, this result would completely eviscerate
the purpose for which the Legislature enacted EALA.” Beattie v Mickalich, 284 Mich
App 564, 573 (2009). The Court of Appeals and the dissent ignore that at common law
horse owners were strictly liable. In light of this strict liability, reading § 5 of EALA as
permitting negligence actions does not render § 3 nugatory. Instead, it signifies that
horse owners are no longer subject to strict liability. This interpretation is consistent with
Gardner v Simon, 445 F Supp 2d 786 (WD Mich, 2006), in which the federal district
court held that EALA did not immunize defendant from an action in which plaintiff
alleged that defendant had been negligent in failing to warn him about the dangerous
propensities of the horse and of the fact that the horse had previously thrown three other
riders. Moreover, § 3 may also signify that horse owners are no longer liable under the
doctrine of respondeat superior, because § 5 states that only those persons who
“[c]ommit[] a negligent act or omission” are liable.
Indeed, it is the Court of Appeals, and the dissent’s, interpretation of EALA that
renders aspects of the statute nugatory. Specifically, their interpretation would render
§ 5(d) nugatory. The Court of Appeals held that § 5(d) does not permit general
negligence claims, but rather permits only those negligence claims that involve
something other than “inherent[ly] risk[y] . . . equine activity.” Beattie, 284 Mich App at
573-574. However, § 3 already limits its immunization to injuries resulting from
“inherent[ly] risk[y] . . . equine activity.” Given that § 3 already limits its immunization
to injuries resulting from “inherent[ly] risk[y] . . . equine activity,” it would have been
completely unnecessary for the Legislature to indicate in § 5 that injuries resulting from
something other than “inherent[ly] risk[y] . . . equine activity” are exempt from this
immunization, i.e., to exempt something from immunization that was not even subject to
immunization in the first place.
Contrary to the dissent’s contention, nowhere in this statement do I suggest that
the Legislature’s only goal was to eliminate strict liability. Given that the Legislature
enacted a general limitation on liability and four exceptions to this limitation, eliminating
strict liability was obviously not the Legislature’s only goal. The dissent also criticizes
me for violating the principle of ejusdem generis by failing to read the negligence
exception in accord with the other three exceptions. Again, I respectfully disagree, and
believe that our disagreement stems from the fact that I also disagree with the dissent’s
premise that the other three exceptions pertain to risks that are “above and beyond” the
“inherent risk[s] of an equine activity.” Instead, I believe that faulty tack, the rider’s
ability not matching the horse’s personality, and dangerous latent conditions of the land
4
are all “inherent risk[s] of an equine activity.” Again, if they were not, there would be no
need for the Legislature to exempt them from the general limitation on liability because
such limitation only applies in the first place to injuries “resulting from an inherent risk
of an equine activity.” MCL 691.1663.
For these reasons, I concur in this Court’s order reversing the Court of Appeals
and holding that EALA does not bar recovery for negligent acts of horse owners.
Although the statutory provisions at issue are by no means a model of clarity, and I do
understand the contrary arguments of the dissent, I respectfully believe that the most
reasonable interpretation of this statute is that which is presented in this Court’s order.
KELLY, C.J., joins the statement of MARKMAN, J.
YOUNG, J. (concurring in part and dissenting in part).
I dissent from the majority’s order reversing the Court of Appeals’ judgment.
Instead, I would affirm that portion of the Court of Appeals judgment affirming the
dismissal of plaintiff’s claims based on the Equine Activity Liability Act (EALA), MCL
691.1661 et seq.1
MCL 691.1663 limits the liability of “an equine activity sponsor, an equine
professional, or another person” (a “horse owner”) when the alleged injury or damage
“result[s] from an inherent risk of an equine activity.”2 This limitation on liability applies
“[e]xcept as otherwise provided in [MCL 691.1665].” MCL 691.1665, in turn, provides
exceptions to the EALA’s limitation on liability when the horse owner “does” an
enumerated item:
(a) Provides equipment or tack and knows or should know that the
equipment or tack is faulty, and the equipment or tack is faulty to the extent
that it is a proximate cause of the injury, death, or damage.
(b) Provides an equine and fails to make reasonable and prudent
efforts to determine the ability of the participant to engage safely in the
equine activity and to determine the ability of the participant to safely
manage the particular equine. . . .
1
I concur with the majority’s assessment that the Court of Appeals incorrectly shifted the
burden onto plaintiff to state her claims in avoidance of the EALA limitation on liability.
2
“An inherent risk of an equine activity” is defined in MCL 691.1662(f) as “a danger or
condition that is an integral part of an equine activity . . . .” This definition is consistent
with the dictionary definition of the term “inherent”: “Existing as an essential constituent
or characteristic; intrinsic.” The American Heritage Dictionary of the English Language
(New College Edition, 1976), p 676 (emphasis added).
5
(c) Owns, leases, rents, has authorized use of, or otherwise is in
lawful possession and control of land or facilities on which the participant
sustained injury because of a dangerous latent condition of the land or
facilities that is known to the [horse owner] and for which warning signs
are not conspicuously posted.
(d) Commits a negligent act or omission that constitutes a proximate
cause of the injury, death, or damage.[3]
I agree with the Court of Appeals that MCL 691.1665(d) cannot be construed as
broadly allowing general negligence claims without completely eviscerating the entire
concept of limited liability under the EALA. MCL 691.1665 must be read in conjunction
with MCL 691.1663 to give effect to the act as a whole.4 Giving effect to both
provisions, the Court of Appeals correctly interpreted the exception of MCL 691.1665(d)
as involving “human error” “not within the gamut of ‘inherent[ly] risk[y] . . . equine
activity.’”5
This interpretation is further bolstered by reading MCL 691.1665(d) with the other
listed exceptions in the statute. “Under the statutory construction doctrine known as
ejusdem generis, where a general term follows a series of specific terms, the general term
is interpreted ‘to include only things of the same kind, class, character, or nature as those
specifically enumerated.’”6
MCL 691.1665 provides such “a general term follow[ing] a series of specific
terms.” Subsections (a) – (c) provide specific exceptions in specific situations: where
the horse owner has provided faulty tack, failed to match the rider’s ability to the horse’s
personality, or failed to warn of a known latent dangerous condition on the land. Each of
these exceptions obviously involves an equine activity and a danger that could potentially
arise in the course of that activity. However, each also involves an affirmative act or
omission on the part of the horse owner, above and beyond the “inherent” or essential
risks of an equine activity, which makes the equine activity even more dangerous.
Therefore, we must interpret the more general negligence exception of subsection (d) “to
include only things of the same kind, class, character, or nature” as the more specific,
preceding subsections. Accordingly, a negligence claim pursuant to subsection (d) must
3
Emphasis added.
4
Apsey v Memorial Hosp, 477 Mich 120, 131 (2007) (“[A] reviewing court should not
interpret a statute in such a manner as to render it nugatory. A statute is rendered
nugatory when an interpretation fails to give it meaning or effect.”)(citation omitted).
5
Beattie v Mickalich, 284 Mich App 564, 573 (2009).
6
Neal v Wilkes, 470 Mich 661, 669 (2004) (MARKMAN, J.), quoting Huggett v Dep’t of
Natural Resources, 464 Mich 711, 718-719 (2001).
6
also involve a negligent act or omission beyond the “inherent” risk of the equine activity,
making the activity even more dangerous.
Moreover, the majority order, as well as Justice MARKMAN’s concurring
statement, base their interpretation of the negligence exception to the EALA on an overly
narrow and faulty linchpin: that the exception was intended simply to eliminate strict
liability for horse owners. However, this interpretation fails to consider that, if the
Legislature’s goal were merely to eliminate strict liability, it could have accomplished
that goal in a much simpler and more direct fashion. Instead, the Legislature drafted a
complex limitation on liability for injuries arising from an inherent risk of an equine
activity and accompanied that limitation with numerous specific exceptions. Those
exceptions must be read according to the canon of construction ejusdem generis in order
to give effect to the statute as a whole. But the majority’s and Justice MARKMAN’s
narrow focus on the legislative purpose of abolishing strict liability leads to an
interpretation of MCL 691.1665(d) that violates this basic canon of statutory
construction.
Here, plaintiff was injured while assisting defendant to saddle a horse. Saddling a
horse in preparation of riding is clearly an equine activity and a horse’s unexpected and
negative reaction to being saddled is clearly an inherent risk of such activity.7 Further,
both plaintiff and defendant were aware of the particular horse’s personality and of
plaintiff’s level of experience with horses. Specifically, defendant described the horse as
“green broke” and plaintiff admitted her knowledge that the horse was “fast” and could
be ridden only with defendant’s supervision. The deposition testimony and the expert
letter provided by plaintiff all indicate that this horse may have reacted negatively to
being saddled no matter what method defendant used to effectuate the saddling.
Accordingly, plaintiff cannot establish that defendant committed human error above and
beyond the inherent or essential risk of this equine activity such that defendant increased
the danger involved in the activity.8 As a result, plaintiff has not created a genuine issue
7
See MCL 691.1662(f)(ii) (defining “inherent risk of an equine activity” as including
“[t]he unpredictability of an equine’s reaction to things such as sounds, sudden
movements, and people, other animals, or unfamiliar objects”).
8
In this regard, I would note that the current case is factually distinguishable from
Gardner v Simon, 445 F Supp 2d 786 (WD Mich, 2006), a federal case applying the
Michigan EALA. The plaintiff in Gardner had no prior experience with the particular
horse and the defendant failed to warn the plaintiff about the horse’s known dangerous
propensities. The defendant’s negligent failure to warn amounted to human error that
made the equine activity even more dangerous to the plaintiff. In the current case,
plaintiff was aware that the horse was not well trained but wanted to ride the horse
anyway. Given her preexisting knowledge of the heightened danger involved with the
particular horse, plaintiff cannot establish that defendant’s conduct rendered the activity
more dangerous.
7
of material fact that her claim falls within the negligence exception to the EALA
limitation on liability.9 For this reason, I would affirm the Court of Appeals judgment
affirming the trial court’s dismissal of plaintiff’s claims.
WEAVER and CORRIGAN, JJ., join the statement of YOUNG, J.
9
As plaintiff failed to create a genuine issue of material fact, I believe the Court of
Appeals should not have commented upon the admissibility of plaintiff’s proffered expert
opinion letter.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 13, 2010 _________________________________________
0712 Clerk