Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

July 13, 2010 

139438 

TRINA LEE BEATTIE, 

Plaintiff-Appellant, 

 SC: 139438 

v COA: 284130 

Lapeer CC: 06-037681-NO 

MARK P. MICKALICH, 

Defendant-Appellee. 

_______________________________ 

 On May 11, 2010, the Court heard oral argument on the application for leave to 

appeal the June 25, 2009 judgment of the Court of Appeals. On order of the Court, the 

application is again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal, 

we REVERSE the judgment of the Court of Appeals and REMAND this case to the 

Lapeer Circuit Court for further proceedings consistent with this order. A plaintiff is not 

required to plead a claim in avoidance of the limitations on liability provided in the 

Equine Activity Liability Act (EALA), MCL 691.1661 et seq. Cf. Mack v Detroit, 467 

Mich 186, 198 (2002). In addition, although EALA abolished strict liability for horse 

owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999), it did not abolish 

negligence actions against horse owners. Indeed, EALA expressly states that “[s]ection 3 

does not prevent or limit the liability . . . if the . . . person . . . [c]ommits a negligent act or 

omission that constitutes a proximate cause of the injury.” MCL 691.1665. Finally, 

given that the plaintiff offered documentary evidence to support her argument that the 

defendant was negligent and the content or substance of such documentary evidence 

would be admissible at trial, the lower courts erred in granting the defendant’s motion for 

summary disposition. MCR 2.116(G)(6). 

 MARKMAN, J. (concurring). 

 I concur in this Court’s decision to reverse the judgment of the Court of Appeals, 

and write separately only to respond to the dissent. Both the Court of Appeals and the 

dissent conclude that the Equine Activity Liability Act (EALA), MCL 691.1661 et seq.,

only permits a negligence claim when it involves something other than inherently risky 

equine activity. I respectfully disagree. 

 Section 3 of the EALA (MCL 691.1663) provides: 
2

 Except as otherwise provided in section 5, an equine activity 

sponsor, an equine professional, or another person is not liable for an injury 

to or the death of a participant or property damage resulting from an 

inherent risk of an equine activity. Except as otherwise provided in section 

5, a participant or participant’s representative shall not make a claim for, or 

recover, civil damages from an equine activity sponsor, an equine 

professional, or another person for injury to or the death of the participant 

or property damage resulting from an inherent risk of an equine activity. 

[Emphasis added.] 

 Section 5 of the EALA (MCL 691.1665) provides: 

 Section 3 does not prevent or limit the liability of an equine activity 

sponsor, equine professional, or another person if the equine activity 

sponsor, equine professional, or other person does any of the following: 

 * * * 

 (d) Commits a negligent act or omission that constitutes a proximate 

cause of the injury, death, or damage. 

It is uncontested that plaintiff was a “participant” “engage[d] in an equine activity” when 

she was injured. The issue is whether plaintiff’s claim fits within the “negligent act or 

omission that is a proximate cause of the injury” exception of EALA. The Court of 

Appeals correctly held that EALA does not provide blanket immunity to a horse owner. 

However, I believe that it read the immunity that EALA does provide too broadly. 

 Prior to the enactment of EALA, common-law strict liability would have applied 

to the owner of a “green broke” horse. In Trager v Thor, 445 Mich 95, 99 (1994), this 

Court recognized that “[t]here has long existed at common law a cause of action against 

possessors of certain domestic animals for harm caused by those animals, regardless of 

fault.” More specifically, “[s]trict liability attaches for harm done by a domestic animal 

where three elements are present: (1) one is the possessor of the animal; (2) one has 

scienter of the animal’s abnormal dangerous propensities; and (3) the harm results from 

the dangerous propensity that was known or should have been known.” Id. Here, 

defendant admitted that he knew that the horse was “green broke,” and thus that only the 

most experienced riders should handle the horse. That is, defendant had knowledge of 

the horse’s abnormally dangerous propensities. Indeed, that is why, according to his own 

testimony, he refused to let plaintiff ride the horse. Therefore, if, as plaintiff alleges, 

defendant did give plaintiff permission to ride the horse, and did instruct plaintiff to hold 

onto the lead rope while he placed the saddle on the horse, defendant under the common 

law would have been strictly liable for plaintiff’s injuries. Because EALA abolished 

strict liability for horse owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999), 

defendant is not strictly liable for plaintiff’s injuries. 
3

 However, EALA did not abolish negligence actions against horse owners. Indeed, 

EALA expressly states that “[s]ection 3 does not prevent or limit the liability . . . if the 

. . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of 

the injury.” MCL 691.1665. The Court of Appeals reasoned, and the dissent agrees, that 

allowing a negligence action for injuries sustained while engaged in equine activity 

would “render § 3 nugatory, as it would destroy the limited liability for qualifying 

defendants created under that section. However, this result would completely eviscerate 

the purpose for which the Legislature enacted EALA.” Beattie v Mickalich, 284 Mich 

App 564, 573 (2009). The Court of Appeals and the dissent ignore that at common law 

horse owners were strictly liable. In light of this strict liability, reading § 5 of EALA as 

permitting negligence actions does not render § 3 nugatory. Instead, it signifies that 

horse owners are no longer subject to strict liability. This interpretation is consistent with 

Gardner v Simon, 445 F Supp 2d 786 (WD Mich, 2006), in which the federal district 

court held that EALA did not immunize defendant from an action in which plaintiff 

alleged that defendant had been negligent in failing to warn him about the dangerous 

propensities of the horse and of the fact that the horse had previously thrown three other 

riders. Moreover, § 3 may also signify that horse owners are no longer liable under the 

doctrine of respondeat superior, because § 5 states that only those persons who 

“[c]ommit[] a negligent act or omission” are liable. 

 Indeed, it is the Court of Appeals, and the dissent’s, interpretation of EALA that 

renders aspects of the statute nugatory. Specifically, their interpretation would render 

§ 5(d) nugatory. The Court of Appeals held that § 5(d) does not permit general 

negligence claims, but rather permits only those negligence claims that involve 

something other than “inherent[ly] risk[y] . . . equine activity.” Beattie, 284 Mich App at 

573-574. However, § 3 already limits its immunization to injuries resulting from 

“inherent[ly] risk[y] . . . equine activity.” Given that § 3 already limits its immunization 

to injuries resulting from “inherent[ly] risk[y] . . . equine activity,” it would have been 

completely unnecessary for the Legislature to indicate in § 5 that injuries resulting from 

something other than “inherent[ly] risk[y] . . . equine activity” are exempt from this 

immunization, i.e., to exempt something from immunization that was not even subject to 

immunization in the first place. 

 Contrary to the dissent’s contention, nowhere in this statement do I suggest that 

the Legislature’s only goal was to eliminate strict liability. Given that the Legislature 

enacted a general limitation on liability and four exceptions to this limitation, eliminating 

strict liability was obviously not the Legislature’s only goal. The dissent also criticizes 

me for violating the principle of ejusdem generis by failing to read the negligence 

exception in accord with the other three exceptions. Again, I respectfully disagree, and 

believe that our disagreement stems from the fact that I also disagree with the dissent’s 

premise that the other three exceptions pertain to risks that are “above and beyond” the 

“inherent risk[s] of an equine activity.” Instead, I believe that faulty tack, the rider’s 

ability not matching the horse’s personality, and dangerous latent conditions of the land 
4

are all “inherent risk[s] of an equine activity.” Again, if they were not, there would be no 

need for the Legislature to exempt them from the general limitation on liability because 

such limitation only applies in the first place to injuries “resulting from an inherent risk 

of an equine activity.” MCL 691.1663. 

 For these reasons, I concur in this Court’s order reversing the Court of Appeals 

and holding that EALA does not bar recovery for negligent acts of horse owners. 

Although the statutory provisions at issue are by no means a model of clarity, and I do 

understand the contrary arguments of the dissent, I respectfully believe that the most 

reasonable interpretation of this statute is that which is presented in this Court’s order. 

 KELLY, C.J., joins the statement of MARKMAN, J. 

 YOUNG, J. (concurring in part and dissenting in part). 

 I dissent from the majority’s order reversing the Court of Appeals’ judgment. 

Instead, I would affirm that portion of the Court of Appeals judgment affirming the 

dismissal of plaintiff’s claims based on the Equine Activity Liability Act (EALA), MCL 

691.1661 et seq.1

 MCL 691.1663 limits the liability of “an equine activity sponsor, an equine 

professional, or another person” (a “horse owner”) when the alleged injury or damage 

“result[s] from an inherent risk of an equine activity.”2

 This limitation on liability applies 

“[e]xcept as otherwise provided in [MCL 691.1665].” MCL 691.1665, in turn, provides 

exceptions to the EALA’s limitation on liability when the horse owner “does” an 

enumerated item: 

 (a) Provides equipment or tack and knows or should know that the 

equipment or tack is faulty, and the equipment or tack is faulty to the extent 

that it is a proximate cause of the injury, death, or damage. 

 (b) Provides an equine and fails to make reasonable and prudent 

efforts to determine the ability of the participant to engage safely in the 

equine activity and to determine the ability of the participant to safely 

manage the particular equine. . . . 

 

1

 I concur with the majority’s assessment that the Court of Appeals incorrectly shifted the 

burden onto plaintiff to state her claims in avoidance of the EALA limitation on liability. 

2

 “An inherent risk of an equine activity” is defined in MCL 691.1662(f) as “a danger or 

condition that is an integral part of an equine activity . . . .” This definition is consistent 

with the dictionary definition of the term “inherent”: “Existing as an essential constituent 

or characteristic; intrinsic.” The American Heritage Dictionary of the English Language 

(New College Edition, 1976), p 676 (emphasis added). 
5

 (c) Owns, leases, rents, has authorized use of, or otherwise is in 

lawful possession and control of land or facilities on which the participant 

sustained injury because of a dangerous latent condition of the land or 

facilities that is known to the [horse owner] and for which warning signs 

are not conspicuously posted. 

 (d) Commits a negligent act or omission that constitutes a proximate 

cause of the injury, death, or damage.[3]

 I agree with the Court of Appeals that MCL 691.1665(d) cannot be construed as 

broadly allowing general negligence claims without completely eviscerating the entire 

concept of limited liability under the EALA. MCL 691.1665 must be read in conjunction 

with MCL 691.1663 to give effect to the act as a whole.4

 Giving effect to both 

provisions, the Court of Appeals correctly interpreted the exception of MCL 691.1665(d) 

as involving “human error” “not within the gamut of ‘inherent[ly] risk[y] . . . equine 

activity.’”5

 This interpretation is further bolstered by reading MCL 691.1665(d) with the other 

listed exceptions in the statute. “Under the statutory construction doctrine known as 

ejusdem generis, where a general term follows a series of specific terms, the general term 

is interpreted ‘to include only things of the same kind, class, character, or nature as those 

specifically enumerated.’”6

 MCL 691.1665 provides such “a general term follow[ing] a series of specific 

terms.” Subsections (a) – (c) provide specific exceptions in specific situations: where 

the horse owner has provided faulty tack, failed to match the rider’s ability to the horse’s 

personality, or failed to warn of a known latent dangerous condition on the land. Each of 

these exceptions obviously involves an equine activity and a danger that could potentially 

arise in the course of that activity. However, each also involves an affirmative act or 

omission on the part of the horse owner, above and beyond the “inherent” or essential 

risks of an equine activity, which makes the equine activity even more dangerous. 

Therefore, we must interpret the more general negligence exception of subsection (d) “to 

include only things of the same kind, class, character, or nature” as the more specific, 

preceding subsections. Accordingly, a negligence claim pursuant to subsection (d) must 

 

3

 Emphasis added. 

4 Apsey v Memorial Hosp, 477 Mich 120, 131 (2007) (“[A] reviewing court should not 

interpret a statute in such a manner as to render it nugatory. A statute is rendered 

nugatory when an interpretation fails to give it meaning or effect.”)(citation omitted). 

5 Beattie v Mickalich, 284 Mich App 564, 573 (2009). 

6 Neal v Wilkes, 470 Mich 661, 669 (2004) (MARKMAN, J.), quoting Huggett v Dep’t of 

Natural Resources, 464 Mich 711, 718-719 (2001). 
6

also involve a negligent act or omission beyond the “inherent” risk of the equine activity, 

making the activity even more dangerous. 

 Moreover, the majority order, as well as Justice MARKMAN’s concurring 

statement, base their interpretation of the negligence exception to the EALA on an overly 

narrow and faulty linchpin: that the exception was intended simply to eliminate strict 

liability for horse owners. However, this interpretation fails to consider that, if the 

Legislature’s goal were merely to eliminate strict liability, it could have accomplished 

that goal in a much simpler and more direct fashion. Instead, the Legislature drafted a 

complex limitation on liability for injuries arising from an inherent risk of an equine 

activity and accompanied that limitation with numerous specific exceptions. Those 

exceptions must be read according to the canon of construction ejusdem generis in order 

to give effect to the statute as a whole. But the majority’s and Justice MARKMAN’s 

narrow focus on the legislative purpose of abolishing strict liability leads to an 

interpretation of MCL 691.1665(d) that violates this basic canon of statutory 

construction. 

 Here, plaintiff was injured while assisting defendant to saddle a horse. Saddling a 

horse in preparation of riding is clearly an equine activity and a horse’s unexpected and 

negative reaction to being saddled is clearly an inherent risk of such activity.7

 Further, 

both plaintiff and defendant were aware of the particular horse’s personality and of 

plaintiff’s level of experience with horses. Specifically, defendant described the horse as 

“green broke” and plaintiff admitted her knowledge that the horse was “fast” and could 

be ridden only with defendant’s supervision. The deposition testimony and the expert 

letter provided by plaintiff all indicate that this horse may have reacted negatively to 

being saddled no matter what method defendant used to effectuate the saddling. 

Accordingly, plaintiff cannot establish that defendant committed human error above and 

beyond the inherent or essential risk of this equine activity such that defendant increased 

the danger involved in the activity.8

 As a result, plaintiff has not created a genuine issue 

7

 See MCL 691.1662(f)(ii) (defining “inherent risk of an equine activity” as including 

“[t]he unpredictability of an equine’s reaction to things such as sounds, sudden 

movements, and people, other animals, or unfamiliar objects”). 

8

 In this regard, I would note that the current case is factually distinguishable from 

Gardner v Simon, 445 F Supp 2d 786 (WD Mich, 2006), a federal case applying the 

Michigan EALA. The plaintiff in Gardner had no prior experience with the particular 

horse and the defendant failed to warn the plaintiff about the horse’s known dangerous 

propensities. The defendant’s negligent failure to warn amounted to human error that 

made the equine activity even more dangerous to the plaintiff. In the current case, 

plaintiff was aware that the horse was not well trained but wanted to ride the horse 

anyway. Given her preexisting knowledge of the heightened danger involved with the 

particular horse, plaintiff cannot establish that defendant’s conduct rendered the activity 

more dangerous. 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

July 13, 2010 

0712 

 

7

 of material fact that her claim falls within the negligence exception to the EALA 

limitation on liability.9

 For this reason, I would affirm the Court of Appeals judgment 

affirming the trial court’s dismissal of plaintiff’s claims. 

 WEAVER and CORRIGAN, JJ., join the statement of YOUNG, J. 

 

9

 As plaintiff failed to create a genuine issue of material fact, I believe the Court of 

Appeals should not have commented upon the admissibility of plaintiff’s proffered expert 

opinion letter.