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### STATE OF MICHIGAN

COURT OF APPEALS

THOMAS H. SCHOONBECK,

Plaintiff-Appellant, UNPUBLISHED February 10, 2015

v No. 318771 Muskegon Circuit Court CASEY J. KELLY, a/k/a CASEY JAMES KELLY, NICHOLAS THOMAS DONAJKOWSKI, and ROGER W. NIELSEN, LC No. 12-048517-NO

Defendants-Appellees.

Before: O’C ONNELL , P.J., and S AWYER and M ARKEY , JJ.

P ER C URIAM

. Plaintiff, Thomas H. Schoonbeck, appeals as of right the trial court’s order granting summary disposition under MCR 2 .116(C)(10) in favor of defendan ts, Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen. Schoonbeck was injured when he struck a cable gate while riding a dirt bike on property that Nielsen had leased to Donajkowski and Kelly. The trial court ruled th at the recreational land use ac t (the Act), 324.73301, barred Schoonbeck’s claims. We affirm.

I. FACTS

In September 2010, Schoonbeck was riding a dirt bike on Nielse n’s property when he struck a cable gate that was suspended across a trail between t wo trees. According to Trooper Brian Cribbs’s report of the incident, the cable was installed along a fairly straight section of the trail that had a “very slight cur ve” about 87 feet before where Schoonbeck struck it. A 10 x 14- inch sign that read “Private Property – No Trespassing” was att ached to the middle of the cable. The sign faced the opposite direc tion from which Schoonbeck was traveling.

At his deposition, Nielsen testified that he had rented the pr operty for hunting and recreational purposes to Donajkowski and Kelly at the time of t he accident. A two-track trail traversed the property from the southwest to the northeast. In affidavits, various neighbors stated that the property did not have “ no trespassing” signs and that they walked, rode bikes, and used motorcycles or snowmobiles on the property’s trails. Nielsen t estified that he had previously seen some evidence that people r ode motorcycles or snowmobiles across the property. However, according to Nielsen and Donajkow ski, there were “no trespassin g” ribbons at the corners of the property and “no trespassing” signs along its borders.-2- Kelly testified that he was not aware that motorcycles or snow mobiles crossed the property, but he wanted to inform people that the property was private because it abutted state land. Donajkowski testified that he wanted to put a gate on th e trail to stop traffic. Nielsen testified that Donajkowski aske d to install a gate on the prope rty and complained that people were trespassing on it with motorcycles and off-road vehicles.

According to Kelly, about a week after leasing the property, h e and Donajkowski installed “no trespassing” signs and a cable gate with a “no tr espassing” sign on it. They installed a cable gate because it was the easiest kind of gate to install. It was Kelly’s first time on the property and Donajkowski’s second time on the property. Donajkowski testified that the “no trespassing” sign faced out ward from the property.

In August 2012, Schoonbeck filed this suit. He alleged claims of negligence and gross negligence against Nielsen, Donajkowski, and Kelly. In May 201 3, Nielsen moved for summary disposition under MCR 2.116(C)(8) and (10). In pertinent part, Nielsen contended that the Act barred Schoonbeck’s claims because Donajkowski and Kelly’s act of installing the cable gate was not grossly negligent or mal icious. Donajkowski and Kelly also moved for summary disposition, adopting Nielsen’s ar guments and further contendin g that they were not grossly negligent and did not commit willful or wanton misconduct. Sch oonbeck responded that the Act did not apply and, even if it did apply, there were material qu estions of fact regarding whether Donajkowski and Kelly were gros sly negligent or committed willf ul and wanton misconduct.

In a brief written opinion, the trial court granted the defend ants’ motions under MCR 2.116(C)(10). It determined that the Act barred Schoonbeck’s c laims. Schoonbeck now appeals.

II. STANDARDS OF REVIEW

This Court reviews de novo the trial court’s decision on a mot ion for summary disposition. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no g enuine issue as to any material fact, and the moving party is entitled to judgment . . . as a m atter of law.” The trial court must consider all the documentary evidence in the light most favorab le to the nonmoving party. MCR 2.116(G)(5); Maiden , 461 Mich at 120. A genuine issue of material fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008).

This Court reviews de novo issu es of statutory interpretation. Neal v Wilkes , 470 Mich 661, 664; 685 NW2d 648 (2004). When interpreting a statute, ou r goal is to give effect to the intent of the Legislature. Id . at 665. The statute’s language is the best indicator of the Legislature’s intent. Id . If the language of a statute is unambiguous, we must enforce the statute as written. United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing) , 484 Mich 1, 13; 795 NW2d 101 (2009). This Court should not r ead language into an unambiguous statute. McCormick v Carrier , 487 Mich 180, 209; 795 NW2d 517 (2010).

III. APPLICATION OF THE RECRE ATIONAL LAND USE ACT

First, Schoonbeck contends the Act does not apply because it i s limited to premises liability causes of action. We disagree.-3- The Act provides that “a cause of action” generally does not a rise from a nonpaying outdoor recreational user’s use of an owner’s land unless the u ser’s injuries were caused by the owner’s gross negligence or w illful and wanton misconduct:

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 payi ng 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 us e or trail use, with or withou t permission, against the owner, tenant, or lessee of t he land unless the injuries we re caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. [MCL 324.73301(1).]

A cause of action is a “concurre nce of facts giving rise to the obligation sought to be enforced against the defendant.” Davis v Kramer Bros Freight Lines, Inc , 361 Mich 371, 376-377; 105 NW2d 29 (1960); also see Black’s Law Dictionary (9th ed) (“A group of operative facts giving rise to one or more bases for suing; a factual situation that e ntitles one person to obtain a remedy in court from another person.”).

The plain language of the statute bars any cause of action, no t only those causes of action that sound in premises liability. Had the Legislature wished t o limit the statute to a narrower set of circumstances, it could have used the words “cause in action sounding in premises liability” rather than the more general term “cause of action.” See Neal , 470 Mich at 665-666. It did not do so. We decline to read additional language into the statute and, therefore, we reject Schoonbeck’s argument that the A ct only applies to claims sound ed in premises liability.

Second, Schoonbeck contends that the trial court erred by gran ting summary disposition because the Act does not apply to nuisance claims. “A public n uisance is an unreasonable interference with a common right enjoyed by the general public. ” Cloverleaf Car Co v Phillips Petroleum Co , 213 Mich App 186, 190; 540 NW2d 297 (1995). In this case, re gardless of whether revoking an implied licen se to trespass constitutes a n uisance or whether the Act bars nuisance claims, Schoonbeck did not assert a nuisance claim in his complaint. He asserted only claims of negligence and gross negligence. Since Schoonbeck di d not plead a nuisance claim, nor does he provide argument to support that the trial court er red by granting summary disposition on potentially meritorious claims that the plaintif f did not raise, we fail to see how he can be deemed to have addressed a nuisance claim. Moreover, we decline to make Schoonbeck’s arguments for him. See VanderWerp v Plainfield Charter Twp , 278 Mich App 624, 633; 752 NW2d 479 (2008). Accordingly, we reject this ass ertion because Schoonbeck did not allege a nuisance claim.

IV. GROSS NEGLIGENCE AND WILLF UL OR WANTON MISCONDUCT

Schoonbeck contends that the tria l court erroneously granted s ummary disposition because there was a question of material fact regarding whether Donajkowski and Kelly’s installation of the cable gate showed a deliberate indifference to the likelihood that an injury would result. We conclude that Schoonbeck did not show a genui ne issue of material fact-4- regarding whether Donajkowski and Kelly acted with gross neglig ence or willful and wanton misconduct.

A person’s conduct is grossly negligent if the person engages in “conduct so reckless as to demonstrate a substantial lack of concern for whether an inj ury results.” Maiden , 461 Mich at 123; Xu v Gay , 257 Mich App 263, 269; 668 NW2d 166 (2003). “Evidence of ord inary negligence does not create a mate rial question of fact concerni ng gross negligence.” Maiden

, 461 Mich at 122-123. Willful and wanton misconduct occurs when the defendant acted “with a set purpose to accomplish the results which followed the act,” which “implies malice.” Boumelhem v Bic Corp , 211 Mich App 175, 185; 535 NW2d 574 (1995). “Willful and wan ton misconduct is not a high degree of negligence; rather, it is in the same class as intentional wrongdoing.” Id

. Even accepting Schoonbeck’s assertions that Donajkowski and Ke lly should have installed a gate at the other end of the property, faced a seco nd sign inward on the gate, or informed the neighbors they were installing the gate, these all egations do not show a genuine question of material fact on the issue of gross negligence. An allegation that an actor could have done more or acted differently is not evidence of ordinary negl igence, much less gross negligence. Tarlea v Crabtree , 263 Mich App 80, 90; 687 NW2d 333 (2004). To be grossly negligent, a person must disregard precautions or safety in a w ay that suggests that he or she does not care about the welfare of others. Id . At best, Schoonbeck has only alleged that Donajkowski and Kelly could have done more. He has not provide d any evidence that their actions showed a substantial lac k of concern for whether an inj ury might result.

In contrast, Donajkowski and Ke lly provided evidence that they did not act with a deliberate indifference of whether an injury could result from installing the cable gate. Donajkowski and Kelly installed a “no trespassing” sign near th e entrance to the property and hung a “no trespassing” sign from the cable gate. They install ed the cable gate and sign on a fairly straight area of the trail. They also installed additio nal “no trespassing” signs. These signs faced toward the road, the logi cal direction from which to expe ct traffic would a pproach the gate. We conclude that, viewing the evidence in the light most favora ble to Schoonbeck, reasonable minds could not differ concerning whether Donajkowski and Kelly ’s action was so reckless that it showed a substantial lack of concern for whether an injury r esulted. We conclude that the trial court did not err by granting summary disposition under MCR 2.1 16(C)(10).

V. CONCLUSION

We conclude that the Act is not limited to premises liability actions. Further, we conclude that the trial court di d not err by granting summary d isposition under MCR 2.116(C)(10) when Schoonbeck provided no evidence from which a reasonable juror could conclude that Donajkowski and Kelly acted recklessly.

We affirm. As the prevailing par ties, defendants may tax cost s. MCR 7.219.

/s/ Peter D. O’Connell /s/ David H. Sawyer /s/ Jane E. Markey