If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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

C O U R T O F A P P E A L S

THOMAS COMPOSTO,

Plaintiff-Appellee,

FOR PUBLICATION

May 30, 2019

9:05 a.m.

v No. 340485

Macomb Circuit Court

MICHALINA ALBRECHT and PIOTR 

ALBRECHT, as Next Friend of PHILIP 

ALBRECHT, 

LC No. 2016-002879-NI

Defendants-Appellants.

Before: MARKEY, P.J., and FORT HOOD and GADOLA, JJ.

GADOLA, J.

In this interlocutory appeal, defendants, Michalina Albrecht and Piotr Albrecht, as next 

friend of Philip Albrecht (Philip), appeal on leave granted the trial court’s orders granting a 

motion in limine establishing the standard of care applicable in this negligence suit, and denying 

defendants’ motion for summary disposition. We reverse and remand to the trial court for 

proceedings consistent with this opinion. 

I. FACTS

The facts underlying this case are essentially undisputed. On August 2, 2015, plaintiff, 

Thomas Composto, was walking on the Hike-Bike Trail at Stony Creek Metropark. The HikeBike Trail, as its name implies, is used for both walking and bicycling, as well as for running and 

inline skating. On that day, then nine-year-old Philip was riding his bicycle on the trail with his 

parents, Michalina and Piotr. Philip was riding down a hill and saw plaintiff walking ahead of 

him. Philip braked and tried to swerve to avoid striking plaintiff, but because there were 

oncoming trail users, he failed to avoid plaintiff and struck him from behind. Plaintiff tore his 

quadriceps, and suffered other lacerations and contusions. 

Plaintiff initiated this action, alleging that Philip caused the collision by riding his bicycle 

negligently, resulting in plaintiff’s injuries. Before the trial court, plaintiff filed a motion in 

limine seeking to establish that the applicable standard of care Philip owed in this case was that 

of ordinary negligence. Plaintiff argued that the reckless misconduct standard, usually applied
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when parties are engaged in recreational activities, did not apply in this case because plaintiff 

and Philip were engaged in different activities at the time of their collision. Defendants moved 

for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), arguing that Philip’s conduct 

did not amount either to ordinary negligence or reckless misconduct. 

After a hearing, the trial court granted plaintiff’s motion in limine, determining that the 

applicable standard of care was that of ordinary negligence. The trial court denied defendants’ 

motion seeking reconsideration of the determination, and after a further hearing, denied without 

prejudice defendants’ motion for summary disposition as premature. This Court thereafter 

granted defendants’ application for leave to appeal.1 

II. DISCUSSION

Defendants contend that the trial court erred in determining that the applicable standard 

of care in this case is that of ordinary negligence. The issue of the applicable standard of care is 

a question of law that we review de novo. Sherry v East Suburban Football League, 292 Mich 

App 23, 27; 807 NW2d 859 (2011). 

Generally, to establish a prima facie case of negligence, a plaintiff must establish (1) a 

duty owed by the defendant to the plaintiff, (2) breach of that duty by the defendant, (3) damages 

suffered by the plaintiff, and (4) that the damages were caused by the defendant’s breach of duty. 

Finazzo v Fire Equip Co, 323 Mich App 620, 635; 918 NW2d 200 (2018). Duty is the legal 

obligation to conform one’s conduct to a particular standard to avoid subjecting others to an 

unreasonable risk of harm. Burnett v Bruner, 247 Mich App 365, 368; 636 NW2d 773 (2001). 

The duty a defendant typically owes to a plaintiff often is described as an ordinary negligence 

standard of care. See Sherry, 292 Mich App at 28. Under ordinary negligence principles, a 

defendant owes a plaintiff a duty to exercise ordinary care under the circumstances. See Id. at 

29-30. 

However, “[w]hen people engage in a recreational activity, they have voluntarily 

subjected themselves to certain risks inherent in that activity.” Ritchie-Gamester v City of 

Berkley, 461 Mich 73, 87; 597 NW2d 517 (1999). As a result, “coparticipants in a recreational 

activity owe each other a duty not to act recklessly.” Id. at 95. This recklessness standard of 

care, however, extends only to “injuries that arise from risks inherent to the activity.” Bertin v 

Mann, 502 Mich 603, 609; 918 NW2d 707 (2018). Thus, to determine the standard of care 

applicable when an injury arises involving coparticipants in a recreational activity, a court must 

consider whether the injuries arose from risks inherent to that recreational activity. 

To determine the applicable standard of care in this case, the first inquiry is whether 

plaintiff and Philip were coparticipants in a recreational activity. Both plaintiff and Philip were 

engaging in recreational activity at the time of the accident; Philip was biking, while plaintiff 

was walking. In doing so, both were using a trail specifically designated for the mixed uses of 

 1 Composto v Albrecht, unpublished order of the Court of Appeals, entered March 15, 2018 

(Docket No. 340485). 
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walking and biking, among other recreational activities. We compare the circumstances of this 

case to those of Ritchie-Gamester, where both parties were ice skating during an “open skate” at 

a public ice rink when they collided. In adopting the reckless misconduct standard, the RitchieGamester Court recognized “the everyday reality of participation in recreational activities,” 

where “[a] person who engages in a recreational activity is temporarily adopting a set of rules 

that define that particular pastime or sport.” Ritchie-Gamester, 461 Mich at 86. Ultimately, the 

Court stressed that coparticipants engaging in a recreational activity have “voluntarily subjected 

themselves to certain risks inherent in that activity.” Id. at 87. Applying these principles in the 

context of ice skaters participating in an open skate at a public ice arena, the Court in RitchieGamester explained:

The risks on an ice rink are no less obvious than those on a golf course. One 

cannot ice skate without ice, and the very nature of ice—that it is both hard and 

slippery—builds some risk into skating. In addition, an “open skate” invites those 

of various ages and abilities onto the ice to learn, to practice, to exercise, or to 

simply enjoy skating. When one combines the nature of ice with the relative 

proximity of skaters of various abilities, a degree of risk is readily apparent: 

Some skaters will be unable to control their progress and will either bump into 

other skaters, or fall. All skaters thus take the chance that they will fall 

themselves, that they will be bumped by another skater, or that they will trip over 

a skater who has fallen. [Id. at 88-89.]

Significantly, the Court “stated this standard broadly as applying to all ‘recreational activities,’ ” 

and further noted that “the precise scope of this rule is best established by allowing it to emerge 

on a case-by-case basis, so that we might carefully consider the application of the recklessness 

standard in various factual contexts.” Id. at 89 n 9. 

Here, plaintiff, who was walking, and Philip, who was biking, were not engaged with 

each other in precisely the same recreational act or sport at the time of their collision. As the 

trial court observed, walking is an inherently different activity than biking. However, both 

plaintiff and Philip were engaged in using a shared, multi-use trail, and thus were

“coparticipants” in the activity of using the trail.2 In this factual context, by choosing to use the 

 2 To conclude otherwise would subject the trail users to various standards of care depending 

upon with whom they interacted. If a bicyclist collided with another bicyclist, the defendant 

bicyclist would be held to a reckless misconduct standard of care, but if the bicyclist collided 

with an inline skater, he would be held to a standard of care for ordinary negligence. What if an 

inline skater collided with a skate boarder, or a runner with a walker? We decline to indulge the 

fiction of different standards of care created by ever-more finely drawn distinctions in the precise 

activity engaged in, and instead implement the reasoning and spirit of Ritchie-Gamester. We

find the use of the multi-use trail akin to the “open skate” in Ritchie-Gamester. Just as the ice 

rink during open skate accommodates the speed skater and the ice dancer, the novice and the 

expert, the multi-use trail accommodates various modes of conveying oneself down the trail by 

participants with different levels of skill and ability, all engaged in the umbrella activity of 

“recreational trail use.” 
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Hike-Bike Trail for recreational purposes, plaintiff voluntarily subjected himself to the inherent, 

readily apparent, and foreseeable risks, not just of walking, but of using a shared, multi-use 

recreational trail together with other trail users. Mindful of Ritchie-Gamester, we consider 

“recreational activity” to encompass the parties’ shared use of the multi-use trail specifically 

designated for recreational purposes, such that the reckless-misconduct standard of care applies 

if plaintiff’s injuries resulted from an inherent risk of using the trail. See Bertin, 502 Mich at 

609. 

The next inquiry is whether getting hit by a bicycle is an inherent risk of using a hikebike trail. In Bertin, our Supreme Court held that to determine whether a risk is inherent in a 

recreational activity, “the analysis must focus on whether the risk was reasonably foreseeable 

under the circumstances.” Id. at 613. The Court reasoned that “because the rationale for the 

limited duty [of the reckless misconduct standard] is that the participants have voluntarily elected 

to participate knowing that they might be injured, it makes sense to define the ‘inherent risks’ in 

an activity by what is reasonably foreseeable – by what the participants did foresee or should 

have foreseen . . . .” Id. “[T]he assessment of whether a risk is inherent to an activity depends 

on whether a reasonable person under the circumstances would have foreseen the particular risk 

that led to injury. If so, then the risk is inherent and the reckless-misconduct standard of care 

applies.” Id. at 619. 

In Michigan, foreseeability depends upon whether a reasonable person “could anticipate 

that a given event might occur under certain conditions.” Iliades v Dieffenbacher North America 

Inc, 501 Mich 326, 338; 915 NW2d 338 (2018), quoting Samson v Saginaw Prof Bldg, Inc, 393 

Mich 393, 406; 224 NW2d 843 (1975). Whether a risk is foreseeable is a question of fact, and is 

an objective test focusing on what risks the reasonable participant, under the circumstances, 

would have foreseen. Bertin, 502 Mich at 619-620. “The risk must be defined by the factual 

circumstances of the case – it is not enough that the participant could foresee being injured in 

general; the participant must have been able to foresee that the injury could arise through the 

‘mechanism’ it resulted from.” Id. at 620-621. Relevant facts include the characteristics of the 

participants, including their experience with the activity, and their relationship to each other and 

to the activity. Id. at 621. 

Because the determination of the foreseeability of the risk of harm is a factual question, 

the Court in Bertin remanded to the trial court in that case “to determine whether there is a 

genuine issue of material fact as to whether a participant in the activity in question would, under 

the circumstances, have reasonably foreseen the risk of this particular injury.” Id. at 622. As in 

Bertin, we remand to the trial court in this case to address whether a genuine issue of material 

fact exists as to whether a participant in the activity of using a multi-use trail, under the 

circumstances, reasonably would have foreseen the risk of being struck by a bicyclist. The trial 

court should focus on “what risks a reasonable participant, under the circumstances, would have 

foreseen.” Id. at 620. 

In summary, plaintiff and Philip were coparticipants in the recreational activity of using 

the shared, multi-use trail for its intended recreational purposes under the reasoning of RitchieGamester. The trial court therefore erred in finding that the reckless misconduct standard of care 

did not apply because the parties were not engaged in precisely the same recreational activity. 

However, the reckless misconduct standard only applies to injuries that arise from risks inherent 
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in the activity. Whether a risk is inherent in a recreational activity for purposes of establishing 

the applicable standard of conduct is determined by asking whether the risk was reasonably 

foreseeable, which is a question of fact for the fact-finder. Consistent with Bertin, we remand to 

the trial court to determine the foreseeability of the risk of harm, and without prejudice to 

defendants thereafter renewing their motion for summary disposition before the trial court. 

Reversed and remanded for proceedings consistent with this opinion. We do not retain 

jurisdiction.

 

/s/ Michael F. Gadola

/s/ Jane E. Markey

/s/ Karen M. Fort Hood