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### STATE OF MICHIGAN

COURT OF APPEALS

KENNETH BERTIN,

Plaintiff-Appellant, FOR PUBLICATION December 27, 2016 9:00 a.m.

v No. 328885 Oakland Circuit Court DOUGLAS MANN, LC No. 2014-139901-NO

Defendant-Appellee.

Before: G ADOLA , P.J., and F ORT H OOD and R IORDAN , JJ.

R IORDAN , J.

Plaintiff appeals as of right the trial court’s entry of a jud gment of no cause of action in favor of defendant following the jury’s verdict that defendant did not engage in reckless misconduct while operating a motorized golf cart at the Farming ton Hills Golf Club. The only issue in this appeal is whether the trial court correctly ruled before trial that the applicable standard of care for the operation of a golf cart is reckless m isconduct and not ordinary negligence. For the reasons stated below, we vacate the jury’s verdict, reverse the trial court’s order finding that reckless misconduct is the applicable standa rd in this case, and remand for further proceedings consi stent with this opinion.

I. FACTUAL BACKGROUND

This case arises from an accident involving a golf cart driven by defendant, which occurred while plaintiff and defendant were golfing together on May 22, 2013. Except for the parties’ differing accounts of how defendant struck plaintiff, the underlying facts of this case are not in dispute.

According to plaintiff, while the parties were at the 17th hole , defendant hit his golf ball onto the green, and plaintiff’s landed to the right of the gree n. Plaintiff then drove the cart toward his ball and parked it in nearby rough off the green. H e exited the cart, while defendant remained in the passenger seat, and grabbed his putter and wedg e, intending to use the latter to chip the ball onto the green. However, after laying his putter on the ground, plaintiff struck his ball too hard, it traveled furth er than plaintiff intended, andit stopped on the other side of the green. Plaintiff then picked up the putter from where he had s et it on the ground and began to walk toward his ball. Plainti ff did not believe that he steppe d in front of the cart while walking, as he was moving in the opposite direction of the cart. After he had gone about 10 to 15 feet, defendant drove the cart and struck plaintiff in the buttocks. Plaintiff was pushed forward and-2- knocked to the ground due to the impact. After impact, plainti ff rolled to the right, and the cart struck him a second tim e, running over his leg.

Defendant’s recollection was similar to plaintiff’s except wit h regard to the cart. Defendant testified that after h e took a shot to get his ball o n the green, he returned to the cart, intending to drive it to the other side of the green so that it would be ready for them to drive to the tee box for next hole. Defendant thought plaintiff was to the right and slightly behind the cart, not in front of it. Defendant based his conclusion on th e direction that he had seen plaintiff walk from the cart, not from actually seeing plaintiff’s locati on. Defendant started the cart and began to turn left toward a cart path. However, “the minute [d efendant] hit the accelerator[,] [plaintiff] was in front of [the cart].” Defendant testified t hat, prior to driving into plaintiff, he had looked to see if there was anyone in front of the cart and he saw no one. Thus, defendant claims the first time that he noticed plaintiff was when the im pact occurred. According to defendant, the cart struck plaintiff in the lower legs and knoc ked him over. He did not recall the cart then rolling over plaintiff’s leg.

In April 2014, plaintiff filed a complaint primarily alleging that defendant acted “with active negligence” and “without due care and caution” when he s truck plaintiff. In particular, plaintiff alleged, among other th ings, that defendant breached his duty to safely, dependably, and reliably operate the golf cart in order to ensure plaintiff’s s afety and, as a result, caused plaintiff to sustain serious injuries a nd incur significan t damages.

In his answer, defendant largely denied plaintiff’s allegations and expressly denied plaintiff’s allegations of negligence and carelessness. Howeve r, defendant also raised two affirmative defenses: the event was an unforeseeable accident, and plaintiff’s own negligence or comparative negligence was the sole cause or a contributing cau se to the injuries and damages claimed by plaintiff.

Before trial, plaintiff filed a motion in limine through which he requested that the trial court hold that defendant was neg ligent as a matter of law base d on his deposition testimony so that the case would proceed to tr ial only on the issue of damag es. In response, defendant argued that plaintiff’s filing of a motion in limine was improper, as it was, in effect, an untimely motion for summary disposition on the issue of negligence that cited a lower—and incorrect—standard of review. As such, he argued that the trial court should deny plaintiff’s motion and allow the issue of negligence to proceed to trial because the events that transpired on the golf course were factually disputed, essentially c onsisting of plaintiff’s word against defendant’s word. In addition, defendant ass erted that, under Ritchie-Gamester v City of Berkley , 461 Mich 73; 597 NW2d 517 (1999), “reckless misconduct” was the standard of care applicable in this case because the parties were coparticipants in a recreational activ ity when the incident occurred. Defendant further argued that plaintiff was not entitled to a d ispositive ruling on the issue of negligence since plaintiff misstated the proper standard of car e that defendant owed to plaintiff, and plaintiff could not establis h that defendant was, in fact, reckless. The trial court denied plaintiff’s motion without prejudice, explaining at the motion hearing that it believed that this issue involved factual questions for the jury to decide. It di d not explicitly decide the applicable standard of care.-3- Later, the parties further disputed the standard of care when they filed their proposed jury instructions, prompting defendant to file a motion to settle th e instructions. 1 The trial court ultimately agreed with defendant that a reckless misconduct standard applies in this case because “it is involved with the game of golf.” Accordingly, the court entered an order granting defendant’s motion to settle the jury instructions and acceptin g defendant’s proposed instructions based on the reckless misconduct st andard. It later denied pla intiff’s motion for reconsideration.

At trial, the parties provided testimony regarding their respec tive observations and opinions of defendant’s conduct in this case, and plaintiff ult imately agreed that defendant was, at most, being “careless and not paying attention” when the col lision occurred. The trial court denied each party’s motion for a directed verdict at the close of the proofs. Ultimately, the jury concluded that defendant had not acted with reckless misconduct , and the trial court entered a judgment of no cause of ac tion against plaintiff.

Plaintiff appeals as of right from the trial court’s judgment, arguing that the trial court applied an incorrect standard of care.

II. STANDARD OF REVIEW

The standard of care that a defendant owes to a plaintiff 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); In re Petition of Attorney General for Investigative Subpoenas , 274 Mich App 696, 698; 736 NW2d 594.

III. ANALYSIS

This case presents an issue of first impression in Michigan. As discussed further below, the parties were, without dispute, coparticipants in a recreati onal activity. Under the broad language in Ritchie-Gamester , 461 Mich at 75, “coparticipants i n recreational activities ow e each other a duty not to act reckless ly.” However, as plaintiff emp hasizes, Ritchie-Gamester does not establish that any coparticipant conduct that cause s injury during a recreational activity must meet the reckless misconduct standard. See id . at 89 n 9. Likewise, even though numerous golfrelated cases in Michigan and ot her jurisdictions have applied the reckless misconduct standard to a participant who was injured by a golf ball or a club, we h ave not found a single Michigan case, or a case in any other jurisdiction, where the driver of an injury-causing golf cart during a game of golf was held to any sta ndard other tha n ordinary negli gence.

1 Most relevant to this appeal, defendant contended that a reckl ess misconduct standard applies in this case under Ritchie-Gamester because the parties were engaged in a recreational activity, a game of golf, when the accident occurred, and injuries related to a golf cart are an inherent risk of golf. Plaintiff disagreed that the Ritchie-Gamester standard applies in this case because Michigan caselaw recognizes that the standard does not apply in all circumstances involving recreational activities, Michiga n and federal caselaw has held that the recreational activities doctrine does not apply to activities involving off-road vehicl es (“ORVs”) because they are motorized vehicles, and the golf cart in this cas e constitutes a motorized vehicle.-4- Therefore, although the language in Ritchie-Gamester may superficially support a decision in favor of defendant, a thorough reading of that opin ion, along with an examination of relevant caselaw, the rules of t he game of golf, and secondary sources, compels us to conclude that golf-cart injuries are not a risk inherent in the game of golf, and that the trial court erred when it ruled that a reckless misconduct standard, instead of an ordinary negligence standard, applies in this case.

A. RITCHIE-GAMESTER

In Ritchie-Gamester , 461 Mich at 75, 77, the plainti ff’s injuries resulted from an accidental collision with the defendant while the parties were skating during an “open skate” at an ice arena. Id . at 75, 77. The Court reviewed caselaw from Michigan and othe r jurisdictions,

see id . at 77-83, and crafted the guidi ng principles for liability be tween coparticipants in recreational activities in Michigan, see id . at 85-86. It explained, “A person who engages in a recreational activity is temporarily adopting a set of rules th at define that particular pastime or sport. In many instances, the p erson is also suspending the ru les that normally govern everyday life.” Id . at 86. The Court concluded that no matter how the elevated s tandard is described or justified (for example, as havi ng notice of the inherent risks, as “consent[ing] to the inherent risks,” or assuming the risks, etc.), “the basic premise is the same: When people engage in a recreational activity, they have voluntarily subjected themselv es to certain risks inhe rent in that activity . Whenone of those risks results in injury, the participant has no ground for complaint .” Id . at 87 (emphasis added). The Court noted that “there are fore seeable, built-in risks of harm” in all recreational activities, including both contact and nonc ontact sports and team as well as individual activities. Id . at 88.

In light of these principles, the Court adopted the following s tandard of care in recreational activities cases:

With these realities in mind, we join the majority of jurisdict ions and adopt reckless misconduct as the minimum standard of care for coparti cipants in recreational activities. We believe that this standard most ac curately reflects the actual expectations of participants in recreational activities. As will be discussed in more detail below, we believe that participants in recreatio nal activities do not expect to sue or be sued for mere carelessness. A recklessness standard also encourages vigorous participation in recreational activities, w hile still providing protection from egregious conduct. Finally, this standard lend s itself to commonsense application by both judges and juries. [ Id . at 89.]

The Court further clarified t he scope of the reckless misconduc t standard as follows:

Surely all who participate in r ecreational activities do so wi th the hope that they will not be injured by the clumsiness or over-exuberant pl ay of their coparticipants. However, we sus pect that reasonable participan ts recognize that skill levels and play styles vary, and that an occasional injur y is a foreseeable and natural part of being involved in recreational activities, however the “informal and formal rules” are str uctured and enforced.-5- . . . When a player steps on the field, she must recognize that an injury may occur, but she does not know whether she will be injured, or whether s he will inadvertently injure another player. We do not believe that a player expects an injury, even if it results from a rule violation, to give rise to liability. Instead, we think it more likely that players participat e with the expectation that no liability will arise unless a participant’s actions exceed the normal bounds of conduct associated with the activity. [ Id . at 94 (emphasis added).]

Thus, the Court adopted the reck lessness standard specifically based on the usual expectation of participants that liability will only arise with regard to conduct that exceeds the normal bounds of the conduct associated with a given activity. It is also clear that the Court did not articulate a specific test for determining whether an injur y arose from an inherent risk of an activity or whether it was tangent ial to the sport in which the parties were engaged.

Additionally, the Court clarifie d in a footnote that the broad language of its holding does not indicate that a reckless misconduct standard shall be appli ed in all cases that seem to involve conduct arising from a recreati onal activity: “We recognize th at we have stated this standard broadly as applying to all ‘recr eational activities.’ However, the precise scope of this rule is best established by allowing it to emerge on a case-by-case basis, s o that we might carefully consider the application of the recklessn ess standard in various factual contexts.” Id . at 89 n 9.

Here, the parties do not dispute that golfing, in general, cons titutes a recreational activity, as demonstrated by the Michigan Supreme Court’s reliance on, an d quotation of Hathaway v Tascosa Country Club, Inc , 846 SW2d 614, 616-617 (Tex App, 1993) (citations omitted), wh ich expressly extended the “reckless or intentional” standard appli cable in the context of “competitive contact sports” to the sport of golf where the pla intiff had been hit by an errant shot. Ritchie-Gamester , 461 Mich at 88. However, the parties dispute whether the use of a golf cart falls within the scope of activities involved in the game of golf that would be subject to the reckless misconduct standard established under Ritchie-Gamester . In particular, plaintiff contends that injuries arising from the use of a golf cart do n ot fall within the Ritchie-Gamester framework for two reasons: (1) the operation of a golf cart con stitutes the operation of a motor vehicle, not participation in a recreational activity, 2 and (2) the use of a golf cart, and the risks presented by a golf cart, are notinherent risks of golf. We w ill address each argument in turn below.

B. MOTOR VEHICLE

Plaintiff first asserts that the applicable standard in this ca se is that of ordinary negligence because a golf cart, like the off-road vehicles (“ORVs”) at iss ue inVan Guilder v Collier , 248 Mich App 633; 650 NW2d 340 (2001), is a motor vehicle and, ther efore, subject to the civil

2 The trial court disagreed with plaintiff’s reasoning that driv ing a golf cart on a golf course is equivalent to driving an ORV, reasoning that some, although not all, ORVs can be driven on roads and fall under the Motor Vehicle Code (“MVC”), MCL 257.1 et seq ., but golf carts are not permitted on roads and are not subject to the MVC.-6- liability provisions under the Mot or Vehicle Code (“MVC”), MCL 257.1 et seq . We reject this line of reasoning. 3

As plaintiff recognizes, we have held that the MVC may control in recreational cases under certain circumstances. In Van Guilder , 248 Mich App at 635-637, we specifically addressed the applicability of Ritchie-Gamester , 461 Mich 73, ultimately concluding that the applicable standard of care is negligence in the operation of a n ORV.

The instant case . . . is distinguishable from Ritchie-Gamester . In that case, the Court primarily focused its analysis on injuries sust ained during the course of recreational activities that typically or foreseeably involve physical contact between coparticipants. T o the contrary, a person oper ating a motorized recreation vehicle does not reason ably expect or anticipate the risk of physical contact, nor is such risk an obvious or necessary danger inhere nt to its normal operation. The Ritchie-Gamester Court did not contemplate injuries that occur as a result of physical contact between two such vehicles. This d istinction is dispositive. We decline to adopt defendant’s speculative concl usion that our Supreme Court intended that a recklessness standard of care app ly with regard to the operation of motorized recreation vehicles simply because they are usually used for recreational purposes. The operation of motor vehicle s, including ORVs, is not governed by the “rules of the game,” but by the law. [ Van Guilder , 248 Mich App at 637-637.]

In reaching this conclusion, we also noted that multiple statut es apply to ORVs. Id . at 637-638. Our reasoning relied on the defi nitions of “motor vehicle” and “vehicle” provided by MCL 257.33 and MCL 257.79, respectively, and noted that statutes sp ecifically addressing ORVs had originally been in the MVC, but were repealed and reenacted in large part under the Natural Resources and Environmental Protection Act by 1995 PA 58. Van Guilder , 248 Mich App at 637-638, 638 n 4. In reading the relevant statutes as one law under the doctrine of in pari materia , we held that “an ORV is a motor vehicle for purposes of the c ivil liability act[, MCL 257.401]; therefore, liability may be imposed for its negligent operation.” Id . at 639.

Whether the civil liability act of the MVC similarly applies t o carts driven on a golf course also appears to be an issue of first impression in Michi gan. The only provision of the

3 While there may be some persuasive support for plaintiff’s cla im, see 39 Am Jur Trials, Golf Cart Accidents, § 333 (“The driver of a golf cart may be liable for injuries caused to either the passenger or some other patron on the golf course as a result o f negligent operation of the vehicle. This liability is similar to the liability imposed ona person who operates any motor vehicle in a negligent manner and causes personal injuries to a nother.”) (footnotes omitted), Michigan law does not compel the conclusion that ordinary negli gence always applies to the recreational use of motor vehicles.-7- civil liability act that has the potential of applying to a car t being operated on a golf course is MCL 257.401(1), 4 which provides, i n relevant part:

This section shall not be construed to limit the right of a per son to bring a civil action for damages for injuries to either person or property re sulting from a violation of this act by the owne r or operator of a motor vehic le or his or her agent or servant. The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care stand ard required by common law.

Even if we assume, without deciding, that a golf cart is a moto r vehicle for purposes of the MVC, see MCL 257.33 (defining “motor vehicle”), MCL 257.79 (def ining “vehicle”), MCL 257.401(1) does not apply to the gol f cart or parties at issue in the instant case.

The first sentence provides that “this section” ( i.e. , MCL 257.401) does not limit the right of a plaintiff to bring a civil action against the owner or ope rator of a motor vehicle for “a violation of this act .” MCL 257.401(1) (emphasis added.) However, that sentence do es not impact this case, as plaintiff has not identified a violation o f the MVC, and defendant was not, at the time of the accident, an “owner or operator.” It is undisp uted that defendant did not own the golf cart, and the version of M CL 257.36 in effect at the time of the accident provided, “ ‘Operator’ means every person, other than a chauffeur, who is i n actual physical control of a motor vehicle upon a highway ,” 5 and the golf cart was not drive n on a highway. MCL 257.36(1) (emphasis added). The subsequent sentences of MCL 257.401(1) p rovide for the liability of an

owner of a motor vehicle “whether the negligence consists of a viola tion of a statute of this state or the ordinary care standard r equired by common law.” But, ag ain, defendant was not the owner of the cart, and there is no claim that the owner of the cart breached its duty of ordinary care in entrusting the operation of the cart.

Accordingly, we conclude that pl aintiff’s reliance on the reas oning in Van Guidler , 248 Mich App, at 636-639, based on MCL 257.401 and the MVC, is unav ailing.

C. INHERENT RISK

4 Under MCL 257.601, the traffic laws under Chapter VI of the MV C only apply to the operation of vehicles on highways, unless a different location is indicat ed in a particular section. We conclude that the liability pro visions under Chapter VI do not apply in this case, and that MCL 257.601 does not affect the application of the liability provis ions of MCL 257.401(1) regarding the negligent operation of a motor vehicle in other circumstanc es. MCL 257.657a, a section of the MVC, regulates the operation of golf carts on city and vill age streets, but that statute went into effect on January 13, 2015, after the events in this case occurred, and it is irrelevant because it does not address the operat ion of golf carts on golf courses

.
5 The amendment under 2013 PA 231, effective March 27, 2014, doe s not change the analysis.-8- Next, plaintiff argues that the trial court erred in concludin g that the reckless misconduct standard applies in this case under Ritchie-Gamester because motorized golf carts are not an inherent risk of golf or an inhe rent component of the game. Inconsidering the specific facts of this case, see Ritchie-Gamester , 461 Mich at 89 n 9, we agree that the ris ks posed by the golf cart were not risks inherent in the game of golf. Accordingly, we c onclude that the instant case is distinguishable from the class of recreational activities to wh ich Ritchie-Gamester applies and, therefore, the trial court erred in ruling that the reckless mi sconduct standard applies to plaintiff’s claims. Cf. Van Guilder , 248 Mich App at 636-637.

The inherent risks of golf have not been comprehensively delin eated by the courts of this state. “Inherent risk” is defined similarly by both legal and lay dictionaries. Black’s Law Dictionary (10th ed), p 1524, defines “i nherent risk” as:

1. A risk that is necessarily e ntailed in a given activity and involves dealing with a situation that carries a probability of loss unless action is t aken to control or correct it. 2. A fairly common risk that people normally bear whenever they decide to engage in acertain activity.

A risk is inherent in an activity if the ordinary participant would reasonably consent to the risk, and the risk cannot be tailored to satisfy the idiosyncratic needs of any particular participant like the plai ntiff. [Quotation marks and citation omitted.]

Similarly, lay dictionaries have defined “inherent” as “involve d in the constitution or essential character of something: belonging by nature or habit: INTRINSIC ,” Merriam-Webster’s Collegiate Dictionary (11th ed); “1. existing in someone or something as a permanent and inseparable element, quality, or attribute,” Random House Webster’ s Unabridged Dictionary (2d ed); 6 and “existing in something as a perma nent, essential, or characteri stic attribute,” New Oxford American Dictionary (3d ed).

Consistent with these definitions, courts in other jurisdictio ns have concluded that “ ‘[a] risk is inherent in a sport if its elimination (1) would chill vigorous participation in the sport[] and (2) would alter the fundament al nature of the activity.’ ” Yoneda v Tom , 110 Hawaii 367, 376; 133 P3d 796 (2006), quoting Sanchez v Hillerich & Bradsby Co, 104 Cal App 4th 703, 713; 128 Cal Rptr 2d 529 (2002) (alteration in original). Similarly , this Court has previously noted the following while interpreting the Ski Area Safety Act, MCL 4 08.321 et seq ., which precludes ski-area liability for “dangers that inhere in that sport insof ar as the dangers are obvious and necessary,” MCL 408.342(2):

the list of “obvious and necessary” risks assumed by a skier un der the statute involves those things resulting from natural phenomena, such as snow conditions or the terrain itself; natural obstacles, such as trees and roc ks; and types of

6 Random House Webster’s Unabridged Dictionary (2d ed) also includes the following as synonyms for “inherent”: innate , native, inbred, and ingrained.-9- equipment that are inherent parts of a ski area, such as lift t owers and other such structures or snow-making or grooming equipment when properly m arked. These are all conditions that are inherent to the sport of skiing. It is safe to say that, generally, if the “dangers” listed in the st atute do not exist, there is no skiing

. [ Schmitz v Cannonsburg Skiing Corp , 170 Mich App 692, 696; 428 NW2d 742 (1988) (emphasis added.]

Courts have utilized similar reasoning regarding inherent risks of golf. Long before the advent of golf carts, golfers were held not liable for errant b alls “sliced” unexpectedly into fellow golfers, see, e.g., Legal Questions Relating to Golfing and Golf Courses , 31 Scottish Law Review 194, 198 (1915) (citing Andrew v Stevenson , Edinburgh Sheriff Court (1906)), and more recent courts have frequently acknowledged that missed shots an d errant golf balls frequently fly in unintended directions, see, e.g., Yoneda , 110 Hawaii at 374-379 (concluding, after considering cases from different jurisdictions, that errant shots are an in herent risk of golf); Dilger v Moyles

, 54 Cal App 4th 1452, 1455; 63 Cal Rptr 2d 591 (1997); Hathaway v Tascosa Country Club, Inc

, 846 SW2d 614, 616-617 (Tex App, 1993) (stating that “because of the great likelihood of these unintended and offline shots, it can indeed be said that the ri sk of being inadvertently hit by a ball struck by another competitor is built into the game of gol f,” and recognizing that it is common knowledge that bad shots ma y occur in the absence of any negligence); 27A Am Jur 2d, Entertainment and Sports Law, § 86, pp 482-483; 53 ALR4th 282; Lang, A Good Ride Spoiled: Legal Liability and Gold Carts , 23 Marq Sports L Rev 393, 393 (2013). Likewise, courts have explicitly and implicitly recognized that swinging golf clubs a re an inherent risk of golf as well. See, e.g., Schick v Ferolito , 167 NJ 7, 18; 767 A2d 962 (2001); Havens v Kling , 277 AD2d 1017, 1018; 715 NYS2d 812 (2000); Nesbitt v Bethesda Country Club, Inc , 20 Md App 226, 232-233, 232 n 1; 314 A2d 738 (1974).

Unlike these traditional aspects of the game of golf, carts did not become commonplace in golf matches until relatively recently. 7 As explained by the United States Supreme Court in PGA Tour, Inc v Martin , 532 US 661, 684-685; 121 S Ct 1879; 149 L Ed 2d 904 (2001), g olf carts became a common accessory to the game during the 1950s, a s an advancement in the manner in which equipment was transported during the game:

[T]he use of carts is not itself inconsistent with the fundamen tal character of the game of golf. From early on, the essence of the game has been shotmaking—

7 Golf carts were not produced until the 1940s. A Good Ride Spoiled , 23 Marq Sports L Rev at 394. The oldest state or federal case that we could find invol ving the liability of an allegedly negligent golf-cart driver to his injured passenger is Gillespie v Chevy Chase Golf Club , 187 Cal App 2d 52, 55; 9 Cal Rptr 437 (1960), which held that the plain tiff’s actions contributing to the overturning of the cart were su fficient to preclude recovery un der the plaintiff’s theory of liability under the doctrine of res ipsa loquitur. In PGA Tour, Inc v Martin , 532 US 661, 683 n 39; 121 S Ct 1879; 149 L Ed 2d 904 (2001), the United States Supreme Court noted that the first recorded rules of golf were published in 1744, more than 200 ye ars before the Gillespie opinion was issued.-10- using clubs to cause a ball to p rogress from the teeing ground to a hole some distance away with as fe w strokes as possible. That essential aspect of the game is still reflected in the very first of the Rules of Golf, which d eclares: “The Game of Golf consists in playing a ball from the teeing ground into the hole by a stroke or successive strokes in accordance with the rules.” Rule 1–1, Ru les of Golf, App. 104 (emphasis in original). Over the years, there have been many changes in the players’ equipment, in golf course design, in the Rules of Golf , and in the method of transporting clubs from hole to hole. Originally, so few clubs were used that each player could carry them without a bag. Then came golf bag s, caddies, carts that were pulled by hand, and eventually motorized carts that c arried players as well as clubs. “Golf carts start ed appearing with increasing r egularity on American golf courses in the 1950’s. Today they are everywhere . And they are encouraged. For one thing, they often speed up play, and for a nother, they are great revenue producers.” [Citations omitted.]

The Martin Court found that the use of golf carts would not “fundamentally alter the nature” of the game of golf in the context of an American with Disabilitie s Act claim, 8 and noted that the official Rules of Golf are silent as to whether players are req uired to walk as they travel from hole to hole, such that walki ng is not a fundamental component of the game:

There is nothing in the Rules of Golf that either forbids the u se of carts or penalizes a player for using a cart. That set of rules, as we have observed, is widely accepted in both the amateur and professional golf world as the rules of the game. The walking rule that is contained in petitioner’s hard cards, based on an optional condition buried in an appendix to the Rules of Gol f, is not an essential attribute of the game itself. [ Id . at 685.]

The Martin Court reasoned, “To be sure, the w aiver of an essential rule of competition for anyone would fundamentally alter the nature of petitioner’s tou rnaments. As we have demonstrated, however, the walking rule is at best peripheral t o the nature of petitioner’s athletic events, and thus it might be waived in individual cases without working a fundamental alteration.” Martin , 532 US at 689. Given these f acts, the United States Supreme Court held that allowing a handicapped golfer to use a cart during a tourn ament—the rules of which prohibited the use of golf carts—d id not fundamentally alter th e nature of the game. Id . at 690.

Consistent with the Supreme Cour t’s observations , the current v ersion of the USGA Rules of Golf , effective January 1, 2012, still includes no provision that f orbids, penalizes, or requires the use of golf carts. United States Golf Associationand R&A Rules Limited, Rules of Golf < http://www.usga.org/content/d am/usga/pdf/CompleteROGbook.pdf> (accessed December

8 Martin , 532 US at 664-665, considered w hether the Americans with Disa bilities Act of 1990, 42 USC 12101 et seq ., “protects access to professional golf tournaments by a quali fied entrant with a disability; and,” most re levant to the instant case, “wh ether a disabled contestant may be denied the use of a golf cart because it would ‘fundamentally a lter the nature’ of the tournaments, § 12182(b)(2)(A)(ii), t o allow him to ride when al l other contestants must walk.”-11- 5, 2016). 9 Likewise, the only reference to walking in the rules is an op tional provision in an appendix pertaining to local rules and conditions of competitio n, which states, “If it is desired to require players to walk in a competition, the following conditi on is recommended[,]” and provides a sample provision conc erning unauthorized forms of tr ansportation. Id . at 142.

Accordingly, in light of (1) the United States Supreme Court’s observations in Martin
, (2) the fact that golf carts are not referenced as an inherent component of golf in the current USGA Rules of Golf, and (3) the fact that there is no evidence in the instant case that the golf course where the accident occurred required the use of golf carts, 10 we conclude that risks related to golf carts are not inherent risks of the game of golf. Justas walking is not an essential attribute of golf itself, Martin , 532 US at 685, using a golf cart is not a fundamental or inhe rent characteristic of golf. 11 Rather, golf carts are a conve nience, which—when used during a game of golf on a golf course—make tr aversing a golf course, and tra nsporting equipment, less strenuous, and they have no basis in, or relationship to, the u nderlying activity or rules of golf, principally swinging a club in the attempt to strike a ball.

Notably, in Forman v Kreps , 2016 Ohio 1604; 50 NE3d 1 (Ohio App, 2016), the Seventh District of the Court of Appeals of Ohio came to the same concl usion that we do and utilized similar reasoning when it considered a nearly identical issue ( i.e. , whether an assumption of risk instruction applied, under Ohio ’s version of the recreational a ctivities doctrine, to a case

9 The only provisions that refer ence golf carts in the Rules of Golf are the following: (1) under the etiquette section, a provisionstating that players should leave their bags or carts in a position that will allow them to move quickly to the next tee as soon as they are done playing; (2) under the section discussing care of the golf course, a provision sta ting that players s hould strictly observe local notices regarding the movement of golf carts; and (3) under the def initions section, a provision stating that the wor d “equipment” includes a golf c art, regardless of whether it is motorized, and explaining whether a cart will be deemed the equ ipment of multiple players when it is being shared or moved by more than one player. Id . at 20-21, 24-25.

10 Compare Forman v Kreps , 2016 Ohio 1604; 50 NE3d 1 (Ohio App, 2016), at ¶¶ 27-28.

11 We do, however, agree with defendant, as well as the United St ates Supreme Court and other courts and observers, that golf carts are now a ubiquitous part of the game. See, e.g., Martin
, 532 US at 685; A Good Ride Spoiled , 23 Marq Sports L Rev at 394. However, even though that fact may lead to the conclusion that accidents involving carts are foreseeable , a foreseeable aspect of the game is not necessarily an inherent aspect. Compare Black’s Law Dictionary (10th ed) (defining “foreseeability” as “[t]he quality of being reaso nably anticipatable”), with the definitions of “inherent” previously discussed. Cf. MCL 600.29 66 (precluding governmental tort liability for “an injury to a f irefighter or police officer tha t arises from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession”) (e mphasis added); RitchieGamester , 461 Mich at 94 (implicitly recognizing a difference between s omething being foreseeable and being natural); Forman , 2016 Ohio at ¶ 29, 30 (implicitly recognizing a difference between something being foreseeable and being custom ary or ordinary).-12- involving a plaintiff who was in jured when his golfing companio n hit him from behind with a golf cart):

{¶ 29} In Coblentz v. Peters , 11th Dist. No. 2004–T–0017, 2005-Ohio-1102, 2005 WL 583793, the Eleventh District [of the Court of Appeals of Oh io] considered whether the use of a cart was an inherent part of the sport of golf.

We must stress that a golfer assumes the ordinary risks of the game, i.e., being struck by an errant golf ball or club. See McNeilland Biggin
, supra . Thus, based on Marchetti

, supra , where individuals engage in recr eational or sports activities, they assume the ordinary risks of the game, and courts apply a recklessness standard in order to determine liability. In the instant matter, the trial court improperl y applied a recklessness rathe r than a negligence standard.

Although many golfers use motorized golf carts, a motorized gol f cart, unlike a golf ball or club, is not incidental to the game of golf. As such, because a golf cart is not an actual part of th e sport of golf, appellant had no reason to assume that he would be str uck and injured by a golf cart since it is not an ordinary risk of the game. The incident at issue does not involve conduct that is a foreseeable, customary part of the sport of golf. Thus, a negligence standard should have been applied.

Id . at ¶ 20–21.

{¶ 30} The Eleventh District’s a nalysis that risks which are c onsidered ordinary and foreseeable are those that w ill be present in any incarnati on of the recreational activity is consistent with our conclusion in Kelly

, supra , where we held that the risk “must be one that is so inherent to the sport or activity that it cannot be eliminated.” Kelly at ¶ 20.

{¶ 31} As the nonuse of a cart does not prevent a person from engaging in golf— while the nonuse of a ball or c lub would—it cannot be considere d an inherent part of the game. As such, the risk of being injured by a golf cart does not become an ordinary and foreseeable risk. The magistrate did not abuse hi s discretion in refusing to give an assumption of the risk jury instruction. A ccordingly Kreps' second cross assignment of error is meritless.

Therefore, we conclude that risks related to golf carts are not risks inherent in the game of golf, as the sport of golf would exist and remain virtually unchanged in the absence of golf carts. Cf. Schmitz , 170 Mich App at 696; Yoneda , 110 Hawaii at 376. Accordingly, the trial court erred in ruling that a reckless misconduct standard of ca re applies in this case. Given the-13- absence of any common-law or sta tutory rule imposing a higher s tandard, the applic able standard is ordinary negligence. 12 See Sherry , 292 Mich App at 29 (reasoning, after it determined that a reckless misconduct standard did not apply under the facts of t hat case, that an ordinary negligence standard applied). See also Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 170, 171-172; 809 NW2d 553 (2011) (recognizing the ge neral “common-law duty to exercise reasonable care and avoid harm when one acts”); Chunko v LeMaitre , 10 Mich App 490, 494-495; 159 NW2d 876 (1968) ( recognizing a common-law dut y of ordinary care in operating a motor vehicle).

We cannot assume from the jury’s verdict finding that defendant did not commit reckless misconduct, a higher standard than negligence, see Ritchie-Gamester , 461 Mich at 85, that the jury also would have concluded that defendant did not act negli gently. Additionally, it is apparent from the parties’ testimony at trial that there remain s a question of fact, for the jury to determine, as to whether defendant breached his duty of ordinar y care. See Case v Consumers Power Co , 463 Mich 1, 6-7; 615 NW2d 17 (2000) (explaining what constitu tes ordinary care in negligence cases); Funk v Tessin , 275 Mich 312, 326; 266 NW 362 (1936) (approving a similar explanation of due care in the context of a case involving a pe destrian struck from behind by a motor vehicle). Therefore, we remand this case for further pro ceedings consistent with this opinion.

IV. CONCLUSION

The trial court applied an incorrect standard of care. Thus, we vacate the jury’s verdict, reverse the trial court’s orde r finding that reckless misconduc t, as opposed to ordinary

12 We were unable to find any cases holding the driver of an inju ry-causing golf cart to a standard of reckless misconduct. Rather, our review of caselaw from other jurisdictions has revealed multiple cases against the drivers of golf carts in wh ich a negligence standard has been applied or assumed. See, for example, the cases cited in Anno: Liability for Injury Incurred in Operation of a Power Golf Cart , 66 ALR 4th 622, 644-648 §§ 3-8, and A Good Ride Spoiled , 23 Marq Sports L Rev 393. See also, e.g., Goodwin v Woodbridge Country Club, Inc , 170 Conn 191, 192; 365 A2d 1158 (1976) (considering an appeal from verdi ct against the defendants for negligent operati on of a golf cart). However, we also note that a New York court stated—in the conte xt of a case concerning the liability of a golf course wit h regard to a plaintiff who w as injured while operating a golf cart that slipped on wet leaves—that golfers are deemed to assume th e risks of evident physical features of a golf course and “ar e ‘held to a common appreciati on of the fact that there is a risk of injury from improperly used carts[.]’ ” Rose v Tee-Bird Golf Club, Inc , 116 AD3d 1193, 1193; 984 NYS2d 210 (2014), quoting Brust v Town of Caroga , 287 AD2d 923, 925; 731 NYS2d 542 (2001). But it subsequently sta ted, “Nevertheless, liability m ay be found where the participant proves a dangerous condition over and above the usual dangers t hat are inherent in the sport[.]” Rose , 116 AD3d at 1193 (quotation marks and citations omitted).-14- negligence, is the applicable s tandard under the circumstances of this case, and remand for further proceedings consistent with this opinion. We do not re tain jurisdiction.

/s/ Michael J. Riordan /s/ Michael F. Gadola /s/ Karen M. Fort Hood