Neal v. Wilkes

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 20, 2004

JULIE NEAL,

Plaintiff-Appellee,

v No. 122498

TERRY WILKES,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH

MARKMAN, J.

We granted leave to appeal to consider whether

defendant is exempt from liability pursuant to the

recreational land use act (RUA), MCL 324.73301(1), for

injuries plaintiff sustained while riding an all-terrain

vehicle (ATV) on defendant’s property. The trial court

granted defendant’s motion for summary disposition,

concluding that the RUA bars plaintiff’s cause of action

against defendant. The Court of Appeals reversed, holding

that defendant is not exempt from liability for injuries

that occurred to plaintiff while riding an ATV on the mowed
portion of defendant’s backyard because the RUA only

pertains to injuries that occur on “large tracts of

undeveloped land.” Because there is nothing in the RUA

that indicates that it pertains only to “large tracts of

undeveloped land,” we reverse the judgment of the Court of

Appeals and reinstate the trial court’s order of summary

disposition in favor of defendant.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff injured her back while riding as a passenger

on defendant’s ATV, which was being driven by defendant’s

brother on defendant’s property in the village of

Dimondale.1 When defendant’s brother drove over an uneven

area of defendant’s lawn, plaintiff was bounced on the ATV,

causing her to suffer injuries to her lower back.

Defendant’s property is an eleven-acre lot that is zoned

residential. Although portions of the lot are wooded,

plaintiff was injured while riding on the mowed portion of

defendant’s backyard. The trial court granted defendant’s

motion for summary disposition on the basis that the RUA

bars plaintiff’s cause of action against defendant.

1
An “ATV” is defined as a “3- or 4-wheeled vehicle
designed for off-road use that has low-pressure tires, has
a seat designed to be straddled by the rider, and is
powered by a 50cc to 500cc gasoline engine or an engine of
comparable size using other fuels.” MCL 324.81101(a).

2

However, on the basis of this Court’s decision in Wymer v

Holmes, 429 Mich 66, 79; 412 NW2d 213 (1987), that the RUA

only applies to "large tracts of undeveloped land," the

Court of Appeals reversed and remanded the case for

continued proceedings.2 After this Court directed the

parties to present oral argument on whether to grant the

application or take other action permitted by MCR

7.302(G)(1),3 and having heard such argument, we granted

defendant’s application for leave to appeal.4

II. STANDARD OF REVIEW

At issue in this case is the proper interpretation of

MCL 324.73301(1). The proper interpretation of a statutory

provision is a question of law that this Court reviews de

novo. Morales v Auto-Owners Ins Co, 469 Mich 487, 490; 672

NW2d 849 (2003). Likewise, a trial court’s ruling on a

summary disposition motion is a question of law that this

Court reviews de novo. Schmalfeldt v North Pointe Ins Co,

469 Mich 422, 426; 670 NW2d 651 (2003).

III. ANALYSIS

The RUA, MCL 324.73301(1), provides:

2
Unpublished opinion per curiam, issued September 17,
2002 (Docket No. 230494).
3
469 Mich 870 (2003).
4
469 Mich 936 (2003).

3

 Except as otherwise provided in this
section, a cause of action shall not arise for
injuries to a person who is on the land of
another without paying to the owner, tenant, or
lessee of the land a valuable consideration for
the purpose of fishing, hunting, trapping,
camping, hiking, sightseeing, motorcycling,
snowmobiling, or any other outdoor recreational
use or trail use, with or without permission,
against the owner, tenant, or lessee of the land
unless the injuries were caused by the gross
negligence or willful and wanton misconduct of
the owner, tenant, or lessee.

In Wymer, the plaintiff’s decedent suffered injuries

while swimming on the defendants’ property. This Court

held that the defendants could be held liable for the

plaintiff’s injuries because “the [RUA] was intended to

apply to large tracts of undeveloped land suitable for

outdoor recreational uses. Urban, suburban, and subdivided

lands were not intended to be covered by the RUA.” Wymer,

supra at 79.

Defendant contends that our decision in Wymer should

be overruled because it is inconsistent with the plain

language of the RUA. We agree. “[O]ur primary task in

construing a statute, is to discern and give effect to the

intent of the Legislature.” Sun Valley Foods Co v Ward,

460 Mich 230, 236; 596 NW2d 119 (1999). “The words of a

statute provide ‘the most reliable evidence of its intent

. . . .’” Id., quoting United States v Turkette, 452 US

576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). Although

4

the Wymer Court noted that its task was to ascertain the

legislative intent, it failed to recognize that the

language of the statute is the best source for determining

legislative intent. Instead, Wymer found it “reasonable to

assume that the Michigan statute has the similar general

purpose of similar acts in other jurisdictions . . . .”5

Wymer, supra at 77. That purpose being to “open[] up and

mak[e] available vast areas of vacant but private lands to

the use of the general public” in order to “promot[e]

tourism.” Id. at 78, quoting Thomas v Consumers Power Co,

58 Mich App 486, 495-496; 228 NW2d 786 (1975). If that

were the Legislature’s purpose, it could have used the

words “vacant or undeveloped land of another,” rather than

the words “the lands of another.”6

5
It is impossible for us to determine whether these
other acts are indeed “similar” to Michigan’s act in any
particular respect because Wymer failed to cite any of
these “similar acts.”
6
Immediately before Wymer, supra, stated that the
purpose of the RUA is to make available to the public “vast
areas of vacant but private lands,” id. at 78, it asserted
that the purpose of the RUA is “to encourage owners of land
to make land and water areas available to the public for
recreational purposes by limiting their liability toward
persons entering thereon for such purposes.” Id. at 77.
Although we agree that the purpose of the RUA is to
encourage owners of private land to make their land
available to the public, we can find no basis to conclude
(continued…)

5

 Before Wymer, in Winiecki v Wolf, 147 Mich App 742,

745; 383 NW2d 119 (1985), in which the plaintiff was

injured while playing with “land skis” in defendants’

backyard, the Court of Appeals concluded that the RUA

precluded plaintiff’s action against the defendants,

stating:

[The RUA], as the trial court has already
observed, is clear and unambiguous. Plaintiff
was a person on the lands of another, without
paying a consideration, for the purpose of an
outdoor recreational use. The statute offers
nothing on its face excluding from its
application the backyard of residential property.
If the Legislature did not intend the statute to
apply to parcels of land this size, it was within
its power to insert words limiting the statute’s
application, e.g., to lands in their natural
state. As we, however, are constrained to apply
the statute as written, we cannot say that the
trial court erred in relieving defendants of
liability based on the recreational use statute.

This understanding of the RUA is truer to the language of

the RUA than is the Wymer Court’s interpretation of the

RUA. There is absolutely no indication in the language of

the RUA that the Legislature intended its application to be

limited to vacant or undeveloped lands. As the Court of

Appeals in the instant case stated, “[a]lthough nothing in

the statutory language indicates that the statute is not

(…continued)

that the purpose of the RUA is to encourage only owners of

vast areas of vacant private land in this regard.

6

applicable to the backyards of residential property such as

defendant’s, the statute has been construed to apply ‘to

large tracts of undeveloped land suitable for outdoor

recreational uses,’ not to ‘[u]rban, suburban, and

subdivided lands . . . .’” Slip op at 2 (citations

omitted).7 Because this construction is, as the Court of

Appeals itself recognized, not supported by the statutory

language, we are compelled to abandon this construction and

overrule Wymer.8

The RUA makes no distinction between large tracts of

land and small tracts of land, undeveloped land and

developed land, vacant land and occupied land, land

suitable for outdoor recreational uses and land not

suitable for outdoor recreational uses, urban or suburban

land and rural land, or subdivided land and unsubdivided

7
This language suggests that the Court of Appeals
might well have reached a different conclusion in this case
had it not been bound by Wymer.
8
Although we recognize the importance of stare
decisis, we conclude that it is appropriate to overrule
Wymer because it is clearly inconsistent with the language
of the RUA and, thus, was wrongly decided. Further, there
are no relevant "reliance" interests involved and
overruling Wymer would, therefore, not produce any
“practical real-world dislocations.” See Robinson v
Detroit, 462 Mich 439, 465-466; 613 NW2d 307 (2000).

7

land.9 To introduce such distinctions into the act is to

engage in what is essentially legislative decision-making.

The RUA simply states that an owner of land is not liable

to a person who injures himself on the owner’s land if that

person has not paid for the use of the land and that person

was using the land for a specified purpose,10 unless the

injuries were caused by the owner’s gross negligence or

willful and wanton misconduct. The statute contains no

limitation on the type of land involved, but rather applies

to specified activities that occur “on the land of another

. . . .” MCL 324.73301(1). That is, the act limits its

application to specified activities, but it does not limit

its application to any particular type of land. Therefore,

an owner is not liable to a nonpaying outdoor recreational

user of his land, unless the user’s injuries are caused by

9
We disagree with the dissent’s assertion that an
“urban residential backyard” is not a natural resource.
Post at 4 (emphasis in original). Rather, in our judgment,
land is a natural resource whether it is urban or rural,
residential or non-residential, someone’s backyard or a
state park. See Random House Webster’s College Dictionary
(1991)(defining “natural resources” as “the natural wealth
of a country, consisting of land . . . .”).
10
We use the terms “specified purpose” and “specified
activity” throughout this opinion as a summary phrase for
describing “fishing, hunting, trapping, camping, hiking,
sightseeing, motorcycling, snowmobiling, or any other
outdoor recreational use or trail use . . . .” See MCL
324.73301(1).

8

the owner’s gross negligence or willful and wanton

misconduct.11

11
Plaintiff and the dissent argue that the fact that
the Legislature amended the RUA after Wymer was decided,
but did not amend the language at issue here, means that
the Legislature must have agreed with the Wymer Court’s
interpretation of the RUA. However, as we recently
explained in People v Hawkins, 468 Mich 488, 507-510; 668
NW2d 602 (2003), neither “legislative acquiescence” nor the
“reenactment doctrine” may “be utilized to subordinate the
plain language of a statute.” “Legislative acquiescence”
has been repeatedly rejected by this Court because
“Michigan courts [must] determine the Legislature’s intent
from its words, not from its silence.” Donajkowski v
Alpena Power Co, 460 Mich 243, 261; 596 NW2d 574 (1999).
Although, where statutory language is ambiguous, the
reenactment doctrine may be a more useful tool of
construction, “[i]n the absence of a clear indication that
the Legislature intended to either adopt or repudiate this
Court’s prior construction, there is no reason to
subordinate our primary principle of construction—to
ascertain the Legislature’s intent by first examining the
statute’s language—to the reenactment rule.” Id. at 508-
509.

The dissent concludes that the fact that the
Legislature amended § 73301(2) of the RUA to apply to “land
of any size, including, but not limited to, urban,
suburban, subdivided, and rural land,” but did not
similarly amend § 73301(1) is a “clear indication” of its
intentions. Post at 6. The dissent is correct that the
amendment of § 73301(2) represents a clear indication of
intentions. It is a clear indication that the Legislature
intended § 73301(2) to apply to “land of any size
including, but not limited to, urban, suburban, subdivided,
and rural land.” However, contrary to the dissent’s
assertion, it is not a clear indication that the
Legislature intended § 73301(1) to only apply to “large,
undeveloped tracts of land.” Post at 5, 6 n 2. Section
73301(1) of the RUA refers to “the land of another.”
“Land” is defined as “any part of the earth’s surface . . .
not covered by a body of water.” Random House Webster’s
(continued…)

9

 The dissent mischaracterizes our opinion by stating

that our “interpretation eliminates the liability of a

landowner, tenant, or lessee when a person who does not pay

consideration and who participates in any outdoor

recreational activity is injured . . . .” Post at 3

(emphasis in original). Contrary to the dissent’s

suggestion, the RUA does not apply to any outdoor

recreational activity. Rather, it only applies to

“fishing, hunting, trapping, camping, hiking, sightseeing,

motorcycling, snowmobiling, or any other outdoor

recreational use . . . .” MCL 324.73301(1). 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.” Huggett v Dep’t of Natural

Resources, 464 Mich 711, 718-719; 629 NW2d 915 (2001).

Therefore, the language “other outdoor recreational use”

must be interpreted to include only those outdoor

(…continued)
College Dictionary (1991). Section 73301(1) unambiguously
applies to “land,” and “a court may read nothing into an
unambiguous statute.” Roberts v Mecosta Co Gen Hosp, 466
Mich 57, 63; 642 NW2d 663 (2000). Therefore, we reject the
dissent’s view that the word “land” in § 73301(1) means
only “large, undeveloped tracts of land.” Post at 5.

10

recreational uses “of the same kind, class, character, or

nature,” id., as “fishing, hunting, trapping, camping,

hiking, sightseeing, motorcycling, [and] snowmobiling

. . . .” MCL 324.73301(1).12 While the dissent apparently

believes that jump-roping and playing hopscotch, pin-the-

tail-on-the-donkey, shuffleboard, and horseshoes are of the

"same kind, class, character, or nature” as “fishing,

hunting, trapping, camping, hiking, sightseeing,

motorcycling, and snowmobiling . . . .” post at 3, 6 n 2,

9, we see no need to address these or any other activities

that are not at issue in this case.

In this case, plaintiff was injured “on the land of

another without paying to the owner . . . a valuable

consideration for the purpose of . . . an[] . . . outdoor

12
The dissent uses the doctrine of ejusdem generis to
conclude that the RUA only applies to “large undeveloped
tracts of land.” Post at 5. As noted above, the doctrine
of ejusdem generis, applies where a general term follows a
listing of several specific terms. The RUA uses the
general term “land.” The dissent applies the doctrine of
ejusdem generis to define the term “land.” However, the
term “land” does not follow a listing of specific terms.
Therefore, while it is appropriate to apply the doctrine of
ejusdem generis to “other recreational uses” because it
follows a listing of several specific types of recreational
uses, it is not appropriate to apply the doctrine of
ejusdem generis to “land” because “land” does not follow a
listing of several specific types of land.

11

recreational use . . . .”13 Id. Plaintiff does not contest

the fact that riding an ATV on another’s land is an outdoor

recreational use of another’s land within the meaning of

the RUA. There is no evidence that plaintiff’s “injuries

were caused by the gross negligence or willful and wanton

misconduct of the owner . . . .”14 Id. Thus, pursuant to

13
Plaintiff argues in the alternative that the RUA
does not apply because plaintiff was not on defendant’s
property for the "purpose" of an outdoor recreational use,
but, rather, was on defendant’s property for the "purpose"
of a social visit. In other words, plaintiff argues that
the RUA only applies to individuals who enter upon land
with the specific intent of using the land for a specified
purpose; it does not apply to individuals who enter the
land for some other purpose, such as a social visit, and
who, incidentally to this purpose, subsequently use the
land for a specified purpose. We disagree. Plaintiff,
like the Court in Wymer, is adding words to the act that
simply are not there. The RUA states that an owner of land
is not liable for injuries to a person who is "on the
[owner’s] land” “for the purpose of” a specified activity.
Nothing in the act’s language limits its application to
individuals who enter the land for the purpose of a
specified activity. Rather, the act clearly applies to
individuals who, at the time of the injury, are on the land
of another for a specified purpose. One’s initial purpose
for entering the land is not relevant.
14
Plaintiff contends that defendant should be held
liable for plaintiff’s injuries even if the RUA does apply
because plaintiff’s injuries were caused by defendant’s
gross negligence or willful and wanton misconduct.
Although plaintiff alleged in her complaint that her
injuries were caused by defendant’s negligence, nowhere in
her complaint does she allege that her injuries were caused
by defendant’s gross negligence or willful and wanton
misconduct. Moreover, even if plaintiff’s allegations are
accepted as true, i.e., that defendant knew of the dangers
(continued…)

12

the RUA, defendant owner cannot be held liable for these

injuries.

IV. CONCLUSION

The RUA exempts an owner of land from liability for

injuries suffered by a person while that person is using

the owner’s land for specified purposes if that person has

not paid the owner a valuable consideration for such use,

unless the injuries were caused by the owner’s gross

negligence or willful and wanton misconduct. This

exemption applies to the owners of large tracts of land and

small tracts of land, undeveloped land and developed land,

vacant land and occupied land, land suitable for outdoor

recreational uses and land not suitable for outdoor

recreational uses, urban or suburban land and rural land,

and subdivided land and unsubdivided land. Plaintiff

injured herself while using defendant’s land for a

specified purpose (riding an ATV) without having paid

defendant a valuable consideration for this use, and her

injuries were not caused by defendant’s gross negligence or

(…continued)
of operating an ATV with a passenger on it, and of driving
the ATV over the uneven area of his backyard, and yet
failed to warn plaintiff of these dangers, these
allegations still do not support plaintiff’s contention
that her injuries were caused by defendant’s gross
negligence or willful and wanton misconduct.

13

willful and wanton misconduct. Thus, pursuant to the RUA,

defendant cannot be held liable for plaintiff’s injuries.

Accordingly, we reverse the judgment of the Court of

Appeals and reinstate the trial court’s order of summary

disposition in favor of defendant.

Stephen J. Markman
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.

14

 S T A T E O F M I C H I G A N

SUPREME COURT

JULIE NEAL,

Plaintiff-Appellee,

v No. 122498

TERRY WILKES,

Defendant-Appellant.

_______________________________

CAVANAGH, J. (dissenting).

Today, the majority holds that the Recreational Land

Use Act (RUA), MCL 324.73301(1), applies to outdoor

recreational activities on all types of land. Therefore,

the majority believes that it must overrule this Court’s

prior unanimous opinion in Wymer v Holmes, 429 Mich 66; 412

NW2d 213 (1987). Because I believe the majority ignores

the words of the statute, the intent of the Legislature,

and the amendment of the statute by the Legislature, I must

respectfully dissent.

I. THE RECREATIONAL LAND USE ACT AND WYMER v HOLMES

MCL 324.73301 states, in pertinent part, the

following:
 (1) Except as otherwise provided in this
section, a cause of action shall not arise for
injuries to a person who is on the land of
another without paying to the owner, tenant, or
lessee of the land a valuable consideration for
the purpose of fishing, hunting, trapping,
camping, hiking, sightseeing, motorcycling,
snowmobiling, or any other outdoor recreational
use or trail use, with or without permission,
against the owner, tenant, or lessee of the land
unless the injuries were caused by the gross
negligence or willful and wanton misconduct of
the owner, tenant, or lessee.

(2) A cause of action shall not arise for
injuries to a person who is on the land of
another without paying to the owner, tenant, or
lessee of the land a valuable consideration for
the purpose of entering or exiting from or using
a Michigan trailway as designated under part 721
or other public trail, with or without
permission, against the owner, tenant, or lessee
of the land unless the injuries were caused by
the gross negligence or willful and wanton
misconduct of the owner, tenant, or lessee. For
purposes of this subsection, a Michigan trailway
or public trail may be located on land of any
size including, but not limited to, urban,
suburban, subdivided, and rural land.

In Wymer, supra at 79, this Court held that the RUA

“was intended to apply to large tracts of undeveloped land

suitable for outdoor recreational uses. Urban, suburban,

and subdivided lands were not intended to be covered by the

RUA.” Id.1 This Court read the plain language of the

statute in light of the statute’s general purpose. Id. at

1
Wymer interpreted a former version of the RUA, but
the difference is not relevant to the issue or outcome of
this case.

2

76. We noted that the RUA listed activities that

ordinarily can be accommodated on land that is difficult to

defend from trespassers and difficult to make safe for

people invited to participate in recreational activities.

“The commonality among all these enumerated uses is that

they generally require large tracts of open, vacant land in

a relatively natural state.” Id. at 79.

The current majority now states that there “is

absolutely no indication in the language of the RUA that

the Legislature intended its application to be limited to

vacant or undeveloped lands.” Ante at 6. The majority’s

interpretation eliminates the liability of a landowner,

tenant, or lessee when a person who does not pay

consideration and who participates in any outdoor

recreational activity is injured, unless the landowner,

tenant, or lessee was grossly negligent or engaged in

willful and wanton misconduct. A person participating in

an outdoor recreational activity on the land of another is

now essentially treated as a trespasser. Our citizens will

be surprised to learn that when their children go to their

friends’ homes and jump rope or play hopscotch, the

landowner is now only liable for acts of gross negligence

or willful and wanton misconduct.

3

 II. THE LEGISLATURE’S INTENT

While the majority contends that its decision is

dictated by the words used by the Legislature, the majority

conveniently discounts and ignores facts that are contrary

to its opinion. Notably, the RUA is found in the Natural

Resources and Environmental Protection Act, MCL 324.101 et

seq., the purpose of which is “to protect the environment

and natural resources of the state . . . .” 1994 PA 451.

Other sections of the act deal with forest and mineral

resource development, MCL 324.701 et seq.; use of water in

mining low-grade iron ore, MCL 324.3501 et seq.; sand dune

protection and management, MCL 324.35301 et seq.; and state

forest recreation, MCL 324.83101 et seq., to name just a

few. It is highly unlikely that an urban residential

backyard was among the state’s natural resources considered

in the RUA.

Further, the doctrine of ejusdem generis also supports

the conclusion reached in Wymer and confirms the folly of

the majority’s interpretation. This Court explained the

doctrine in Sands Appliance Servs, Inc v Wilson, 463 Mich

231, 242; 615 NW2d 241 (2000):

“[Ejusdem generis] is a rule whereby in a
statute in which general words follow a
designation of particular subjects, the meaning

4

 of the general words will ordinarily be presumed
to be and construed as restricted by the
particular designation and as including only
things of the same kind, class, character or
nature as those specifically enumerated.”
[Quoting People v Brown, 406 Mich 215, 221; 277
NW2d 155 (1979).]

The RUA refers to “fishing, hunting, trapping,

camping, hiking, sightseeing, motorcycling, snowmobiling,

or any other outdoor recreational use or trail use . . . .”

MCL 324.73301(1). The activities described in the statute

are all activities that take place on large, undeveloped

tracts of land. With the exception of house hunting,

bargain hunting, and the occasional actions of Elmer Fudd

in a Bugs Bunny cartoon, hunting is an activity that is

actually prohibited in urban and suburban neighborhoods.

When the Legislature wrote about snowmobiling, it is

doubtful that it was referring to riding a snowmobile back

and forth in a residential backyard like a duck at a

carnival shooting game. The fact that the Legislature

listed activities that can only be accomplished on large,

undeveloped tracts of land indicates that it did not intend

for the statute to cover residential lawns.2

2
The majority improperly characterizes my use of the
doctrine of ejusdem generis. Because the majority ignores
the Legislature’s intent, I use the doctrine to examine the
types of activities the Legislature meant to include when
(continued…)

5

 Finally, in support of its conclusion that § 73301(1)

applies to all land, the majority states that the

Legislature “could have used the words ‘vacant or

undeveloped land of another’” in § 73301(1) if the RUA was

only meant to apply to vast areas of land. Ante at 5.

This, however, ignores the fact that the Legislature has

shown in § 73301(2) that it knows how to use clear wording

when it wants the statute to apply to all land. In §

73301(2) of the statute, the Legislature used the phrasing

“land of any size including, but not limited to, urban,

suburban, subdivided, and rural land.” The majority even

admits that this is a “clear indication” of the

Legislature’s intent for § 73301(2) to apply to land of any

size. Ante at 9 n 11. If the Legislature meant for both

subsections of the statute to apply to all land of any

size, then it would not have chosen to use different

phrasing to mean the exact same thing.

(…continued)
it used the phrase “any other outdoor recreational use.” A
proper use of ejusdem generis leads to the conclusion that
the activities covered by the statute are only those
engaged in on large, open tracts of land, consistent with
Wymer’s interpretation of the statute. While I do not
believe that the Legislature meant to include activities
such as a rousing game of shuffleboard or horseshoes, the
majority’s strained reading of the statute now covers
activities such as those.

6

 III. THE REENACTMENT RULE

Under the reenactment rule, “[i]f a legislature

reenacts a statute without modifying a high court’s

practical construction of that statute, that construction

is implicitly adopted.” People v Hawkins, 468 Mich 488,

519; 668 NW2d 602 (2003) (CAVANAGH, J., dissenting), citing

28 Singer, Statutes and Statutory Construction (2000 rev),

Contemporaneous Construction, § 49.09, pp 103-112. The

Legislature “is presumed to be aware of an administrative

or judicial interpretation of a statute and to adopt that

interpretation when it [reenacts] a statute without change

. . . .” Lorillard, a Div of Loew’s Theatres, Inc v Pons,

434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 40 (1978). “The

reenactment rule differs from the legislative-acquiescence

doctrine in that the former canon provides ‘prima facie

evidence of legislative intent’ by the adoption, without

modification, of a statutory provision that had already

received judicial interpretation.” Hawkins, supra at 488,

quoting Singer at 107.

The majority chooses to dismiss the Legislature’s

amendments of the RUA because they are not a “clear

indication” of the Legislature’s intent. But the actions

of the Legislature could not be much clearer. After this

7

Court’s decision in Wymer, the Legislature twice amended

the RUA, yet the Legislature did not address the alleged

“error” in Wymer. Notably, the Legislature amended §

73301(2) of the statute to indicate that it applied to

“land of any size, including, but not limited to, urban,

suburban, subdivided, and rural land.” The Legislature did

not incorporate this same language in § 73301(1). If this

Court’s decision in Wymer were incorrect, the Legislature

could have resolved this “error” by adding the same

language to subsection 1 as it did to subsection 2. In

amending the statute, the Legislature stated that

subsection 2 applied to “land of any size . . . .” Because

the Legislature did not make a similar amendment of

subsection 1, the Legislature’s manifest intent that Wymer

was correctly decided could not be clearer.

IV. CONCLUSION

Plaintiff’s injury occurred while at defendant’s home,

which is located in a residential subdivision. Plaintiff

was injured while on defendant’s lawn; a lawn that

defendant had mowed that very day. While the majority

asserts that the RUA bars plaintiff’s claim, the practical

import of the majority’s tortuous reasoning is that any

outdoor recreational activity that occurs on any parcel of

land will fall within the purview of the statute. On the

8

basis of the words chosen by the Legislature, as well as

its actions in amending the statute, I do not believe that

our Legislature intended for the RUA to cover activities

such as those that routinely take place at children’s

outdoor birthday parties.3 While the majority may believe

that a statute found in the Natural Resources and

Environmental Protection Act was meant to cover a spirited

game of pin-the-tail-on-the-donkey, I have more faith in

the wisdom of our Legislature and more respect for the

actions it has taken.

Accordingly, I respectfully dissent and would affirm

the decision of the Court of Appeals because plaintiff’s

claim is not barred by the Recreational Land Use Act.

Michael F. Cavanagh
Marilyn Kelly

3
Following today’s decision, people invited to such a
party, or to a neighborhood barbecue, should be forewarned
to “be sure to bring a dish (consideration) to pass.”

9