Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# 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.

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On May 11, 2010, the Court heard oral argument on the applic ation for leave to appeal the June 25, 2009 judgme nt of the Court of Appeals. On order of the Court, the application is again considered . MCR 7.302(H)(1). In lieu of granting leav e to appeal, we REVERSE the judgment of the Court of Appeals and REMAND this case to the Lapeer Circuit Court for further proceedings cons istent with this order. A plaintiff is not required to plead a claim in avoidance of the limitations on liab ility 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 stri ct liability for horse

owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999), it did not abolish negligence actions against horse owners. Inde ed, 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).

M ARKMAN , J. ( concurring ).

I concur in this Court’s decision to reve rse 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 Activ ity Liability Act (EAL A), MCL 691.1661 et seq., only permits a negligence claim when it involve s something other than inherently risky equine activity. I respectfully disagree.

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

Except as otherwise pr ovided in section 5 , an equine activity sponsor, an equine professional, or anot her 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 represen tative shall not make a claim for, or recover, civil damages from an equi ne activity sponsor, an equine professional, or another person for injury to or the death of the participant or property damage resulting from an i nherent 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 anot her person if the equine activity sponsor, equine professional, or ot her person does any of the following:

* * *

(d) Commits a negligen t act or omission that constitutes a proximate cause of the injury, death, or damage.

It is uncontested that plaintiff was a “particip ant” “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 immun ity that EALA does provide too broadly.

Prior to the enactment of EALA, common- law strict liability would have applied to the owner of a “gr een broke” horse. In Trager v Thor, 445 Mich 95, 99 (1994), this Court recognized that “[t]here has long exis ted 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 th e animal; (2) one has

scienter of the animal’s a bnormal dangerous propensities; a nd (3) the harm results from the dangerous propensity that was kn own 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 hors e. That is, defendant had knowledge of the horse’s abnormally dangerous propensities. Indeed, th at is why, according to his own testimony, he refused to let plaintiff ride the horse. Therefore, if, as plaintiff alleges, defendant did give plaintiff perm ission to ride the horse, and di d instruct plaintiff to hold onto the lead rope while he placed the sa ddle on the horse, defendant under the common law would have been strictly liable for plai ntiff’s injuries. Be cause 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. Th e Court of Appeals reasoned, and the dissent agrees, that allowing a negligence action for injuries su stained 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 Le gislature enacted EALA.” Beattie v Mickalich, 284 Mich App 564, 573 (2009). The C ourt of Appeals and the dissent ignore that at common law horse owners were strictly liable. In light of this strict liability, re ading § 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. Th is 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 de fendant from an action in which plaintiff alleged that defendant had be en negligent in failing to wa rn him about the dangerous propensities of the horse and of the fact that the horse had previous ly 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, interpre tation of EALA that renders aspects of the statute nugatory. Sp ecifically, their interpretation would render § 5(d) nugatory. The Court of Appeals held that § 5(d) doe s not permit general negligence claims, but rather permits onl y 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] . . . equi ne activity.” Given that § 3 already limits its immunization to injuries resulting from “inh erent[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] . . . e quine 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, nowh ere in this statement do I suggest that the Legislature’s only goal was to eliminate strict liab ility. Given that the Legislature enacted a general limit ation on liability and four exceptions to this limitation, eliminating strict liability was obvious ly 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. Agai n, I respectfully disagree, and believe that our disagreement stems from the fa ct that I also disagr ee 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.” In stead, I believe that fa ulty tack, the rider’s ability not matching the horse’ s personality, and dange rous latent conditions of the land4

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 genera l 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 Cour t’s order reversing the Court of Appeals and holding that EALA does not bar recovery for negligen t acts of horse owners. Although the statutory provisions at issue ar e by no means a model of clarity, and I do understand the contrary arguments of the di ssent, I respectfully believe that the most reasonable interpretation of this statute is that which is pres ented in this Court’s order.

K ELLY , C.J., joins the statement of M ARKMAN , J.

Y OUNG , J. ( concurring in part and dissenting in part ).

I dissent from the majority’s order reve rsing the Court of Appeals’ judgment. Instead, I would affirm that portion of the Court of Ap peals judgment affirming the dismissal of plaintiff’s claims based on th e Equine Activity Liab ility 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 th e alleged injury or damage “result[s] from an inherent risk of an equine activity.” 2 This limitation on liability applies “[e]xcept as otherwise provid ed in [MCL 691.1665].” MC L 691.1665, in turn, provides exceptions to the EA LA’s limitation on liability when the horse owner “does” an

enumerated item:

(a) Provides equipment or tack a nd 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 fail s to make reasonable and prudent

efforts to determine the ab ility 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 691.166 2(f) as “a danger or condition that is an integral part of an equine activity . . . .” This definition is consistent with the dictionary defi nition of the term “inherent”: “E xisting 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 author ized use of, or otherwise is in lawful possession and contro l of land or facilities on which the participant sustained injury because of a danger ous latent condition of the land or facilities that is known to the [hor se owner] and for which warning signs are not conspicuously posted.

(d) Commits a negligen t 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 ev iscerating the entire concept of limited liability under the EALA. MCL 691.1665 must be read in conjunction with MCL 691.1663 to give e ffect to the act as a whole. 4 Giving effect to both provisions, the Court of Appeals correctly in terpreted the exceptio n 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 th e 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 fau lty 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 invo lves an affirmative act or omission on the part of the horse owner, ab ove and beyond the “inherent” or essential risks of an equine activity, which makes th e equine activity even more dangerous. Therefore, we must interpret the more gene ral 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 neglig ence 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 in terpretation fails to give it mean ing or effect.”)(citation omitted).

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

6 Neal v Wilkes , 470 Mich 661, 669 (2004) (M ARKMAN , 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 M ARKMAN ’s concurring statement, base their interpretation of the ne gligence exception to th e EALA on an overly narrow and faulty linchpin: th at the exception was intended simply to eliminate strict liability for horse owners. However, this inte rpretation fails to consider that, if the Legislature’s goal were merely to eliminat e 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 fo r injuries arising from an in herent risk of an equine activity and accompanied that limitation with numerous specific exceptions. Those exceptions must be read accordi ng to the canon of construc tion ejusdem generis in order to give effect to the statute as a wh ole. But the majority’s and Justice M ARKMAN ’s narrow focus on the legislative purpose of abolishing strict lia bility leads to an interpretation of MCL 691.1 665(d) that violates this basic canon of statutory

construction.

Here, plaintiff was injured while assisti ng 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 clea rly an inherent risk of such activity. 7 Further, both plaintiff and defe ndant were aware of the particul ar horse’s personality and of plaintiff’s level of experience with horses. Specifically, defendant described the horse as “green broke” and plaintiff admitted her know ledge that the horse was “fast” and could be ridden only with defendant’s supervisio n. 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 ha s not created a genuine issue

7 See MCL 691.1662(f)(ii) (def ining “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 anim als, or unfamiliar objects”).

8 In this regard, I would note that the cu rrent case is factually distinguishable from

Gardner v Simon , 445 F Supp 2d 786 (WD Mich, 20 06), a federal case applying the Michigan EALA. The plaintiff in Gardner ha d 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 fail ure to warn amounted to human error that made the equine activity even more dangerous to the plai ntiff. 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 involv ed with the particular horse, plaintiff cannot establish that defendant’s conduc t rendered the activity more dangerous.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk July 13, 2010

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of material fact that her claim falls w ithin the negligence ex ception to the EALA limitation on liability. 9 For this reason, I would affi rm the Court of Appeals judgment affirming the trial court’s dismissal of plaintiff’s claims.

W EAVER and C ORRIGAN , JJ., join the statement of Y OUNG , J.

9 As plaintiff failed to create a genuine issu e of material fact, I believe the Court of Appeals should not have commented upon the ad missibility of plaintiff’s proffered expert opinion letter.