McNEAL
v.
DEPARTMENT OF NATURAL RESOURCES
Docket No. 73583.
Michigan Court of Appeals.
Decided February 6, 1985.Joel S. Morse, for plaintiff.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Wallace T. Hart, Assistant Attorney General, for defendants.
Before: MacKENZIE, P.J., and BEASLEY and J.R. KIRWAN,[*] JJ.
J.R. KIRWAN, J.
Plaintiff appeals as of right from an order of a judge of the Court of Claims granting summary judgment in favor of all defendants.
Plaintiff filed a complaint against the Department of Natural Resources, Michigan State Parks, and the State of Michigan, alleging that he was a *627 passenger in an off-the-road vehicle (ORV) being driven in an area that permits the operation of such vehicles at Silver Lake State Park, which is owned and operated by the DNR. Plaintiff suffered serious injuries when the vehicle crested a hill, became airborne, and tipped over. After plaintiff had commenced his lawsuit, all defendants moved for summary judgment, alleging that they were immune from tort liability in connection with the operation of a state park by virtue of governmental immunity as well as the provisions of the recreational use statute. Plaintiff then amended his complaint, alleging gross negligence and willful and wanton misconduct. Thereafter, the trial court granted summary judgment, finding that allowing an ORV to be driven at Silver Lake State Park was a governmental function under MCL 691.1407; MSA 3.996(107); that the DNR was also immune from liability under the provisions of the recreational use statute, MCL 300.201; MSA 13.1485; and that the plaintiff failed to allege facts sufficient to state a claim of gross negligence or willful and wanton misconduct. Plaintiff claims error.
I
Are the defendants immune from liability by virtue of the doctrine of governmental immunity for their alleged negligent acts which it is claimed caused serious injuries to the plaintiff?
The governmental tort immunity statute provides as follows:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity *628 of the state from tort liability as it existed heretofore, which immunity is affirmed." MCL 691.1407; MSA 3.996(107).
Three Michigan Court of Appeals cases, Daugherty v Michigan, 91 Mich App 658; 283 NW2d 825 (1979), lv den 408 Mich 853 (1980); Feliciano v Dep't of Natural Resources, 97 Mich App 101; 293 NW2d 732 (1980); and Haselhuhn v The Huron-Clinton Metropolitan Authority, 106 Mich App 461; 308 NW2d 190 (1981), have dealt with the issue of whether or not the operation of a state park is a governmental function. In Daugherty, supra, the Court held that the operation of a state park was not governmental function and that the state was not, therefore, immune from liability. The Court said:
"In applying the law as stated in the recent decisions of our Supreme Court as we understand it, it appears that the operation of a recreational area is not `of essence to governing' because it is not an activity which can be done only by government. Private recreational areas do exist and provide essentially the same services. Also under the analysis stated by Mr. Justice MOODY, in Parker, the instant case does not present a situation where the purpose, planning, carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by government. In addition, liability would not be an unacceptable interference with the government's obligation to govern." 91 Mich App 663.
Shortly thereafter, another panel of this Court in deciding Feliciano, supra, disagreed in part with Daugherty, holding as follows:
"In summary, to the extent that Daugherty, supra, holds that the entire spectrum of the Department of Natural Resources statutory prescribed operation of the *629 Pinckney Recreation Area is not a governmental function, we disagree with Daugherty. But to the extent that case holds that the conduct and operation of a bathing and swimming area is a nongovernmental function to which the defense of immunity does not apply, we agree with the decision." (Emphasis in Feliciano; footnote omitted.) 97 Mich App 107-108.
In rejecting the broad scope of Daugherty, the panel distinguished between maintenance and operation of a park and recreation system, which by its magnitude must be a governmental function, and operation of a bathing beach, which is commonly performed by private enterprise.
In Haselhuhn, supra, a different panel of this Court cited with approval Feliciano, supra, holding that a groundskeeper whose duties supported the overall operation of a park was performing a governmental function and that defendant Huron-Clinton Metropolitan Authority was, therefore, immune from liability.
We view the decision in Feliciano, supra, the more reasoned approach and look, therefore, to the specific activity that is conducted by the DNR in determining whether or not that activity is cloaked with governmental immunity.
This Court has cited with approval the following language contained in Professor Cooperrider's article, The Court, the Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 284-285 (1973):
"`On the other hand, the defense also covers injuries causally relatable to conditions of publicly owned premises that, while left open for entry by the public, are not developed for intensive use. This would include areas such as large rustic parks, forest and other lands left substantially in their natural condition, and public waters other than supervised beach areas. The private *630 sector offers no analogy here, for no private party is the occupier of premises remotely comparable in extent.
"`* * * Such an area is offered for use without warranty, the user may fairly be said to have assumed the risk, and the applicable general principle should be one of nonliability. The function of providing public access to such areas, I would contend, is uniquely governmental.'"
The ORV area at Silver Lake is purposely left in its natural condition for use by the public. The only facility is a parking lot adjacent to the dune area with several warning signs nearby. The fact that an adjacent dune area is leased to a private dune buggy company does not convert the entire ORV site operation into a proprietary function. This area is, therefore, squarely within Professor Cooperrider's category of lands left substantially in their natural condition, and as this area was not used for a proprietary function, the defendants are cloaked with governmental tort immunity.
II
Does the recreational use act, MCL 300.201; MSA 13.1485, apply to state-owned land so that the defendants as landowners are protected from liability for their acts of negligence?
It is useful to consider this issue because it is also dispositive of the case.
Plaintiff claims that the recreational use act does not apply to state-owned property and that his complaint has, therefore, set forth an actionable claim. This Court has acknowledged that the recreational use statute is applicable to publicly held lands. Graham v Gratiot County, 126 Mich App 385, 387; 337 NW2d 73 (1983). Further, the language of the holding of the Supreme Court opinion in Burnett v City of Adrian, 414 Mich 448; *631 326 NW2d 810 (1982), also supports this conclusion. In that case, the Court said:
"This is an appeal from a Court of Appeals affirmance of a summary judgment dismissing the plaintiffs' case for failure to state an actionable claim under the so-called recreational use statute, MCL 300.201; MSA 13.1485. The only question before us is whether the plaintiffs have alleged facts sufficient to state a claim for gross negligence or willful and wanton misconduct. Our task is thus limited because the recreational use law authorizes recovery in the circumstances of this case only if gross negligence or willful and wanton misconduct is shown." (Footnote omitted.) Id., pp 453-454.
As the relevant authority supports the conclusion that the recreational use statute is applicable to municipally-owned lands, and as we find no valid reason to distinguish state-owned land from land owned by a local government, the trial judge did not err in granting immunity to the defendants by virtue of this statute.
III
Has plaintiff alleged in his complaint sufficient facts to support the claim of gross negligence or willful and wanton misconduct so as to fall within the exception to the recreational use statute's blanket immunity?
MCL 300.201; MSA 13.1485 provides as follows:
"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises *632 unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee."
In order to set forth an actionable claim, plaintiff's complaint must, therefore, contain allegations of conduct on the part of the defendants that constitute either gross negligence or willful and wanton misconduct.
Gross negligence includes the concept of subsequent negligence. See Burnett, supra, p 461; Graham, supra, p 388. In other words, if the complaint does not include allegations of subsequent negligence, plaintiff has failed to state a claim of gross negligence. An examination of the complaint reveals that plaintiff complains of "failure to properly warn persons of the proper method for operating a vehicle failure to properly maintain its sand dunes and failure to properly protect the public". As these allegations pertain to alleged actions that defendants should have taken before plaintiff entered the park and are not allegations of subsequent negligence, plaintiff has failed to state a claim of gross negligence.
Whether plaintiff has set forth an actionable claim for willful and wanton misconduct is not so easily resolved. In Burnett, supra, the Court, while showing some dissatisfaction in the definition of willful and wanton misconduct as contained in Gibbard v Cursan, 225 Mich 311; 196 NW 398 (1923), nonetheless chose not to overrule that decision. The test as stated in Gibbard provides that in order to constitute willful and wanton misconduct, plaintiff must show:
"`Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care *633 and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.'" 225 Mich 322, quoting 69 LRA 516 and 20 RCL 145.
The Burnett majority clarified this test, explaining that willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or such indifference to whether harm will result as to be the equivalent of a willingness that it does. Burnett, supra. p 456.
An examination of the complaint reveals that defendant's alleged conduct does not meet the threshold of willful and wanton misconduct. Plaintiff has not alleged facts equivalent to an assertion of defendant's intent to harm or of it indifference, which is equivalent to a willingness that harm would come to a person using the facilities in question. It is specifically noted that in the case at bar a potential harm was created by a natural condition and not by an artificial one, which was the circumstance in Burnett, supra. Further, defendants point out that the affidavit of Mr. Kraai in support of summary judgment was uncontroverted and established that three signs, each 72 inches by 34 inches with 10-inch letters warning of steep hills, were posted in the dune area, which set forth "DANGER STEEP HILL PAST THIS POINT". Further, it is uncontroverted that at the only entrance to the dune area, a 54-inch by 46-inch warning sign with 2-inch and 3-inch letters was conspiciously posted, stating:
"SILVER LAKE ORV AREAMOVING SAND UNCOVERS HAZARDS AND CHANGES IN TERRAIN RAPIDLY. DO NOT DRIVE OVER CREST OF A DUNE *634 WITHOUT KNOWING WHAT IS ON THE OTHER SIDE. DO NOT GO UP OR DOWN DUNE DIAGONALLY
DRIVE SAFELY."Based on all of these factors and under the standard articulated in Gibbard and reiterated in Burnett, plaintiff has failed to set forth conduct on the part of the defendants that amounts to willful and wanton misconduct.
Therefore, as plaintiff has not alleged in his complaint conduct on the part of the defendants that would avoid the immunity provision of the recreational use statute, plaintiff has failed to set forth a claim upon which relief can be granted.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.