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### STATE OF MICHIGAN

COURT OF APPEALS

ALAN BUGAI and JUDITH BUGAI,

Plaintiffs-Appellees, UNPUBLISHED April 11, 2017

v No. 331551 Otsego Circuit Court WARD LAKE ENERGY, LC No. 15-015723-NI

Defendant-Appellant.

Before: B ORRELLO , P.J., and W ILDER and S WARTZLE , JJ.

P ER C URIAM

. Defendant appeals by leave gr anted a January 27, 2016, trial c ourt order denying its motion for summary disposition. For the reasons set forth in t his opinion, we reverse and remand for entry of an order of s ummary disposition in favor of defendant.

I. FACTS

Plaintiff 1 alleged that on February 1, 2014 he, along with friends and fa mily members, were snowmobiling on DNR snowmobile trail #4 when they came acr oss an unmarked plowed access road owned by defendant leading to one of defendant’s we lls. Plaintiff asserted that he was ejected from his snowmobile when he crossed the unmarked, p lowed access road and struck the opposite snowbank. He alleged numerous injuries. The comp laint asserted that the plowed road was not visible and that de fendant breached a duty owed to snowmobilers by failing to keep the premises in a reasonably safe condition or warn snowmobiler s of the danger posed by the plowed road bisecting t he snowmobile trail.

Defendant moved for summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10). Defendant asserted t hat plaintiff’s claim was ba rred under the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq ., and the Recreational Land Use Act (RUA), MCL 324.73301. Defendant asserted that under NR EPA, each person that uses a snowmobile accepts the risks associated with that activity in sofar as the dangers are obvious

1 We refer to “plaintiff” in the singular to refer to Alan Bugai . His wife, Judith Bugai, is also a plaintiff because she asserted a derivative claim.-2- and inherent. According to defe ndant, NREPA barred plaintiff’s claim because plaintiff’s injuries were caused by the normal risks associated with snowmo biling. Defendant alleged that plaintiff drove his snowmobile t oo fast, the accident occurred off the groomed portion of the trail, defendant and its agents did not interfere with the trai l, and the police re port demonstrated that the accident did not occur near an access road.

With respect to the RUA, defendant asserted that the RUA, MCL 324.73301, provided that defendant could not be l iable to non-paying recreational u sers of its land absent a showing of gross negligence or willful and wanton misconduct. Defendant a rgued that plaintiff was operating his snowmobile on its l and without paying considerati on at the time of the injury. Accordingly, defendant argued, it could only be liable for gros s negligence or willful and wanton misconduct under the RUA. Defendant argued that plaintiff did not allege and could not prove gross negligence or willful a nd wanton misconduct and his claim was therefore barred.

Plaintiff responded by asserting that the substance of defenda nt’s argument implicated MCR 2.116(C)(10) and that there were issues of material fact fo r the trier of fact to resolve. Plaintiff provided deposition testimony to controvert defendant ’s assertions that plaintiff was driving too fast and that the crash did not happen at the inter section of the access road and snowmobile trail. According to plaintiff, NREPA did not bar hi s claim because the risk created by the plowed access road was neither obvious nor inherent in s nowmobiling since it was not visible from the trail and was an unnatural condition created b y defendant. Further, plaintiff asserted that deposition testimony demonstrated that defendant knew that snowmobilers travelled along the trail and that plowing t he access road bisecting the trail could create a hazard.

At a hearing, the trial court held that NREPA did not bar plai ntiff’s suit because the danger—the drop-off from the snowmobile trail to the plowed roa d—was man-made instead of natural and therefore the defect in the land did not fall withi n the ambit of NREPA. The court also agreed that the RUA did not bar plaintiff’s suit because t he court reasoned that the RUA only applied to land in its natural state. The court cited Cypret v Lea , 173 Mich App 222, 229; 433 NW2d 413 (1988), wherein this Court held that the RUA did n ot bar a suit arising from land that was no longer in its natural state because a gravel mining operation had created steep banks on the land. According t o the court, the plo wed road and its r esultant snowbanks were analogous to the steep banks in Cypret , and the RUA therefore did not apply.

The court entered a written order on January 27, 2016 denying defendant’s motion for summary disposition. This Court then granted defendant’s motio n for immediate consideration, stayed the proceedings in the lower court, and granted defendan t’s application for leave to appeal. Bugai v Ward Lake Energy , unpublished order of the Court of Appeals, entered June 23, 2016 (Docket No. 331551).

II. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for sum mary disposition. Oliver v Smith (After Remand) , 290 Mich App 678, 683; 810 NW2d 57 (2010). The court conside red evidence outside of the pleadings, therefore, we construe the m otion as having been decided under MCR 2.116(C)(10). Cuddington v United Health Servs, Inc , 298 Mich App 264, 270-271; 826 NW2d 519 (2012). “In reviewing a motion brought under MCR 2.116(C)(10), we review-3- the evidence submitted by the parties in a light most favorable to the nonmoving party to determine whether there is a genuine issue regarding any materi al fact.” Id . Issues involving statutory construction are quest ion of law that we review de no vo. Id . at 271.

III. ANALYSIS

The RUA provides in pertinent part:

(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 anothe r without paying to the owner, tenant, or lessee of the land a valuable considerati on for the purpose of fishing, hunting, trapping, campi ng, hiking, sightseeing, motor cycling, snowmobiling, or any other outdoor recreational use or trail us e, with or without permission, against the owner, ten ant, or lessee of the land un less the injuries were caused by the gross negligence or willful and wanton misco nduct of the owner, tenant, or lessee.

(2) A cause of action shall not arise for injuries to a perso n 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 f rom or using a Michigan trailway as designated under part 721 or other public trail, with or without permission, against the ow ner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wan ton misconduct of the owner, tenant, or lessee. F or purposes of this subsection, a Michigan trailway or public trail may be located on land of any size including, b ut not limited to, urban, suburban, subdivided, and rural land.

In the instant case the court held that the RUA did not apply to plaintiff’s suit because the RUA only applied to land in a rel atively natural state. The co urt relied on Cypret , 173 Mich App at 229, which held that the RUA did not bar a suit arising from land that was no longer in its natural state because a gravel mining operation had created ste ep banks on the land. According to the trial court, the plowed road and its resultant snowbanks were analogous to the steep banks in Cypret , and the RUA therefore did not apply.

The trial court erred by relying on Cypret to conclude that the RUA did not apply. While not recognized by the parties, Cypret is no longer good law because the case it relied upon, Wymer v Holmes , 429 Mich 66; 412 NW2d 213 (1987), was overruled by Neal v Wilkes , 470 Mich 661; 685 NW2d 648 (2004). In Neal , the Court summarized the plain meaning of the RUA, stating, “an owner is not liable to a nonpaying outdoor re creational user of his land, unless the user’s injuries are caused by the owner’s gross negligence or willful and wanton misconduct.” Neal , 470 Mich at 688. The Court explained that the Wymer Court erroneously ignored the plain language of the RUA when it concluded that th e statute applied only to large tracts of undeveloped land and that urban, suburban, and subdiv ided land was not covered by the
statute. Id . at 655. The Court explained that the plain language of the R UA limited its application to specified recreational activities performed on t he land but did not limit its application to any particular type of land. Id . at 668. Given our Supreme Court’s holding in Neal
, Cypret ’s focus on the land’s natural state is no longer a proper inqu iry to determine the-4- applicability of the RUA. Thus, the trial court erred by relyi ng on Cypret to conclude that the snowbanks or drop-off was an unnatural condition on the land pr ecluding application of the RUA.

Plaintiff contends that he did pay valuable consideration to u se the land such that the RUA does not apply. Plaintiff argues that he paid a snowmobile license fee to the State of Michigan, and that the Michigan DNR provides grant money to loc al organizations to maintain and groom trails. He further asserts that the Gaylord Area Sno wmobile Trails Council, Inc. leases land for the right to pl ace trails on the land of others . However, the valuable consideration required by the RUA “must be in the form of a specific fee for the use of a particular recreational area in question.” Syrowik v Detroit , 119 Mich App 343, 347; 326 NW2d 507 (1982). Here, plaintiff did not pay defendant a specific fee for use of defen dant’s land for snowmobiling and the statute applies in this case.

Applying the plain language of th e statute indicates that plai ntiff’s ordinary negligence claim was barred by the RUA. In the instant case, plaintiff us ed defendant’s land for recreational use when he was snowmobiling, which is an enumerated recreation al activity under the RUA, and plaintiff did not pay defenda nt valuable consideration for that use. Thus, under MCL 324.73301, to recover, plaintiff was required to demonstrate th at his injuries were caused by the gross negligence or willful and wanton misconduct of defendant. MCL 324.73301(1)-(2). Plaintiff failed to allege facts that would allow a rational tr ier of fact to conclude that defendant engaged in gross negligence or w illful and wanton misconduct.

Willful and wanton misconduct arises from

(1) Knowledge that a situation requires the exercise of ordina ry care and diligence to avert another’s injury; (2) a defendant’s ability to avoid the injury by exercising such care and diligence; and (3) intent to harm or i ndifference to harm tantamount to a willingness that it occur. The first and secon d elements amount to no more than ordinary negligence. It is the third element w hich raises the act to the level of willful and wanton misconduct. [ Montgomery v Dep’t of Natural Resources , 172 Mich App 718, 721; 432 NW2d 414 (1988) (citations omitted ).]

Plaintiff did not allege facts or cite evidence to support a cl aim of willful and wanton misconduct. There was no evidence that defendant had any inten t to cause harm or that defendant had extreme indifference tantamount to a desire to cause harm. Instead, the evidence showed that defendant plowed its access road. Plaintiff cannot show that defendant’s plowing of the road amounted to an intent to harm or indifference to harm “tantamount to a willingness that it occur.” Id

. Similarly, plaintiff did not allege facts or cite evidence to support a claim of gross negligence, which is defined as conduct that is so reckless tha t it demonstrates a substantial lack of concern for whether an injury results. Xu v Gay , 257 Mich App 263, 269; 668 NW2d 166 (2003). The gross negligence standard suggests “almost a willf ul disregard of precautions or measures to attend to safety and a singular disregard for subst antial risks. It is as though, if an objective observer watched the actor, he could conclude, reason ably, that the actor simply did not care about the safety or welfare of those in his charge.” Tarlea v Crabtree , 263 Mich App-5- 80, 90; 687 NW2d 333 (2004). Evidence of ordinary negligence d oes not create a question of fact concerning gross negligence; rather, the plaintiff must ad duce proof of conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Maiden v Rozwood
, 461 Mich 109, 122-123; 597 NW2d 817 (1999).

Here, the evidence in the instant case did not create a questi on of fact regarding whether defendant’s conduct amounted to gross negligence. Defendant co ntracted with non-party Gaylord Crane, Inc. to plow access roads to defendant’s well si tes. Defendant’s production supervisor asserted that the plows only plowed up to snowmobile trails, crossed them without plowing, and reengaged the plow a fter crossing the trail. Rona ld Sides, owner of Gaylord Crane, asserted that when plowing the road he would “go up and over” t he snowmobile trail and reengage the plow on the other side. Even if we were to assume that the snowplow plowed across the snowmobile trail rather than skipping over it, a rea sonable juror could not conclude that this was conduct “so reckless that it demonstrates a subst antial lack of concern for whether an injury results.” Xu , 257 Mich App at 269. Indeed, an objective observer watching the plow would not conclude that the driver “simply did not care about the safety or welfare” of those using the snowmobile trail. Tarlea , 263 Mich App at 90.

In sum, plaintiff’s ordinary negligence claim was barred by th e RUA because he was engaged in an enumerated recreat ional use of defendant’s land w hen he was injured. Plaintiff’s only cause of action sounded in g ross negligence or willful and wanton misconduct. Because there was no genuine issue of material fact to support either o f these claims, defendant was entitled to summary disposition pursuant to MCR 2.116(C)(10). 2

Reversed and remanded for entry of an order of summary disposi tion in favor of defendant. No costs award ed. MCR 7.219(A). We do not retain jurisdiction.

/s/ Stephen L. Borrello /s/ Kurtis T. Wilder /s/ Brock A. Swartzle

2 Given our resolution of this is sue, we decline to address the issue of whether plaintiff’s claim was barred under MCL 324.82126(8), a subsection of the Natural Resources and Environmental Protection Act (NREPA).