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### STATE OF MICHIGAN

COURT OF APPEALS

JOANNE JOHNSON, Next Friend of SAMANTHA JOHNSON, a minor, and JOANNE JOHNSON individually,

Plaintiff-Appellants, UNPUBLISHED March 10, 2016

v No. 323556

Mecosta Circuit Court OUTBACK LODGE & EQUESTRIAN CENTER, LLC, and OUTBACK LODGE, LLC,

Defendants,

and

GIRL SCOUTS OF NORTHERN INDIANAMICHIANA, INC., LC No. 12-020925-NO

Defendant-Appellee.

Before: B OONSTRA

, P.J., and S AWYER and M ARKEY

, JJ.

P ER C URIAM

.

Plaintiffs appeal by right the order granting summary disposit ion to defendant Girl Scouts

of Northern Indiana-Michiana I nc. pursuant to MCR 2.116(C)(10). 1 We affirm in part, reverse in part, and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

In July 2010, plaintiff Samantha Johnson, a minor, attended a horseback riding camp sponsored by defendant and held on the property of Outback, a h orse ranch. Defendant’s

1 Defendants Outback Lodge & Equestrian Center, LLC and Outback Lodge, LLC (collectively, “Outback”) are not parties to this appeal, having stipulated wi th plaintiffs to dismissal of the action against it with prejudice. We will therefore refer to d efendant Girl Scouts of Northern Indiana-Michiana, Inc. as “defendant” or “GSNIM.”-2- previous camp director testified that in the past, defendant ha d held horseback riding camps on its own properties, but had decided to host a camp on Outback’s grounds in 2009 and 2010. Samantha was not an experienced h orseback rider, and testified that two tests were administered to her and her fellow campers in order to assess their riding a bility and familiarity with horses. One test was described as a written “quiz,” that asked campers basic questions about interacting

with horses 2 . The second was a practical test during which one of the mana gers of Outback watched the campers ride hor ses in a corral or arena.

Samantha was paired with a small horse or “show pony” for the a rena test. However, the pony was unable to be utilized for a trail ride the following d ay, so Samantha was paired with a full-size horse. Prior to the trail ride, Samantha and the oth er campers were instructed to select riding helmets. Samantha picked a helmet that was too large, a nd she informed two “counselors” or “leaders,” who may have been employees of either defendant o r Outback. According to Samantha, one leader told her to find the best fit that she cou ld and “go,” while the other pulled the chin strap of her helmet a s tight as it could go, which sti ll left the helmet loose.

Samantha recalled that during a break in the trail ride to fix a camper’s saddle that was slipping, her horse began to walk around of its own volition, w hich frightened her. Samantha testified that she expressed her discomfort to one of defendant ’s counselors, who dismounted her

horse and stood with Samantha fo r a time until t hey were direct ed to remount by th e leader of the trail ride, an Outback employee. Either before or just after t he trail ride resumed, the horse Samantha was riding became “spooked,” perhaps by another horse biting or kicking it, and ran away from the rest of the group. Samantha testified that the h elmet she was wearing came loose

and slid to the back o f her head while the horse was running. Samantha was injured when she hit

a tree branch and fell from the horse.

Plaintiffs brought suit alleging that defendant was liable for Samantha’s injury. At summary disposition, defendant ar gued that it was immune from l iability under the Equine Activity Liability Act (EALA), MCL 691.1661 et seq ., and further that there was no genuine issue of material fact regarding the existence of or breach of a duty owed by defendants to Samantha. In response to defendant’s motion for summary dispos ition, plaintiffs argued additionally that defendant was l iable for the actions of Outba ck pursuant to an ostensible agency theory, and sought to amend their complaint to add a separate c ount to that effect. The trial court considered plaintiffs’ ostensible agency argument, but ultimate ly granted defendant’s motion for summary disposition, and therefor e denied plaintiffs’ motion to amend their complaint. This appeal followed.

II. EALA

Section 3 of the EALA, MCL 691.1663, provides that “an equine activity sponsor, an equine professional, or another pe rson is not liable for an inj ury to or the death of a participant or

2 The manager of Outback testified that a typical question on th e quiz might be as follows: when approaching a horse, “shoul d you A, run up to them really fast and scream[?]”-3- property damage resulting from an inherent risk of an equine ac tivity” except as otherwise provided in § 5 of the statute, MCL 691.1665. An “equine activ ity sponsor” is defined as “an individual, group, club, partnersh ip, or corporation, whether o r not operating for profit, that sponsors, organizes, or provides the facilities for an equine a ctivity[.]” MCL 691.1662(d). An “equine activity” includes, inter alia , “[r]iding, inspecting, or eva luating an equine belonging to another . . . .” MCL 691.1662(c)(v). The § 5 exceptions to § 3’s limitation on liability apply if the equine activity sponsor or pr ofessional has done any of the following:

(a) Provides equipment or tack and knows or should know that t he equipment or tack is faulty, and the equipment or tack is fault y 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 pruden t efforts to determine the ability of the participant to engage safely in th e equine activity and to determine the ability of the participant to safely manage th e particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these represen tations are supported by reasonably suffic ient detail.

(c) Owns, leases, rents, has authorized use of, or otherwise i s in lawful possession and control of land or facilities on which the parti cipant sustained injury because of a dangerous l atent condition of the land or f acilities that is known to the equine activity sponsor, equine professional, or o ther person and for which warning signs are not conspicuously posted.

(d) Commits a negligent act or omission that constitutes a pro ximate cause of the injury, death, or damage.

Defendant argued that it was not liable under § 3 of the EALA b ased on its status as an “equine activity sponsor,” and tha t any liability for plaintiff ’s damages fell on Outback because it had provided the tac k, equipment, and horse s used by Samantha. The trial court found that while the EALA did not preclude a finding of liability against defend ant, plaintiffs had not established that any of the exceptions in § 5 of the statute applied to the ir case. We agree with regard to MCL 691.1665(a) and (b), but disagr ee with regards to (d).

A. MCL 691.1665(a) AND (b)

The trial court found that defendant was not liable under MCL 691.1665(a) or (b) because the statute required the equine activity sponsor to “ac tually provide the equipment or tack in the case of subsection (a) and the horse in subsection (b)” and plaintiffs had not rebutted the testimony that “Outback Lodge, not GSNIM, picked the horse for each participant and provided those horses” and equipment. We agree.

The exceptions to the EALA’s broad grant of immunity are set f orth in MCL 691.1665. Those exceptions include that “[MCL 691.1663] does not prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor . . . does any of the following”.-4- (a) Provides equipment or tack and knows or should know that the equipment or tack is faulty, and the equipment or tack is fault y 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 th e equine activity and to determine the ability of the participant to safely manage th e particular equine. A person shall not rely upon a participant’s representations of his or her ability unless these representations are supported by reasonably suffic ient detail. [Emphasis added.]

The trial court found that the record in this case reflects th e absence of any evidence of conduct by defendant to “[p]rovide[] equipment or tack” or to “ [p]rovide[] an equine.” MCL 691.1665(a) and (b). To the contrary, defendant presented evidence that any such conduct was solely that of Outback 3 , and not of defendant. By cont rast, Samantha testified that s he thought the person who provided her with a horse was from Outba ck, and that she did not know whether the individuals who fitted and adjusted her helmet were from Outback or defendant, but

that she knew that none of those individuals was the one counse lor whom she knew to be from defendant. Consequently, the evidence that defendant did not “ [p]rovide[] equipment or tack” or “[p]rovide[] an equine,” MCL 691.1665(a), (b), was uncontested other than by speculation that is insufficient to create a genui ne issue of material fact. See Skinner v Square D Co , 445 Mich 153, 164; 516 NW2d 475 (1994), overruled in part on other grounds, Smith v Globe Life Ins Co , 460 Mich 446, 454 n 2; 597 NW2d 28 (1999), superseded in part by st atute as stated in McLiechey v

Bristol West Ins Co , 408 F Supp 2d 516, 523-524 (WD Mich, 2006). We therefore af firm the trial court’s grant of summary disposition regarding the provis ion of the equine, tack, and equipment.

B. MCL 691.1665(d) AND NEGLIGENCE

MCL 691.1665(d) provides that an equine activity sponsor may b e held liable for a “negligent act or omission that constitutes a proximate cause o f the injury, death, or damage.” 4
Plaintiffs argue that defendant i s liable for Samantha’s injuri es under MCL 691.1665(d) due to its negligent selection of Outback as the site of its camp beca use Outback lacked certified instructors, which defendant had “promised” to provide, and lia bility insurance, which was required by defendant for stable operators by its “Safety-Wise” manual, a safety handbook

3 The evidence does not does not distinguish as between defendan ts Outback Lodge & Equestrian Center, LLC and Outback Lodge, LLC; nor does the tri al court’s opinion. However,

the distinction is immaterial for purposes of this analysis.

4 The current version of the statute, amended September 21, 2015 , states that the act or omission must constitute “a willful or wanton disregard for the safety o f the participant” as well as be a proximate cause of the injury, death or damage. See MCL 691.16 65 as amended by 2015 PA 87 (effective date September 21, 2015). The instant injury occurr ed while the previous version of

the EALA was in effect.-5- published by the Girl Scouts of the United States of America an d adhered to by defendant. Plaintiffs also cite language fr om the “Challenge Adventure Pro gram Participation Agreement” (the Agreement) included in defendant’s registration documents and signed by Samantha and her mother, plaintiff Joanne Johnson, before Samantha participated in the camp. The Agreement stated that defendant’s employees had “received extensive train ing and will work to protect the emotional and physical safety of myself and/or my child.”

The trial court found that, cont rary to the Agreement, none of defendant’s counselors “had received any training with regard to horses,” and defendan t had instead relied on Outback to provide all horse-related supervision and instruction. The court also acknowledged that the evidence supported plaintiffs’ argument that defendant was negl igent for failing to ascertain whether Outback held liability i nsurance coverage and provided qualified instructors as required by defendant’s Safety-Wise guidelines. However, the court foun d that no standard of care was created by either defendant’s Saf ety-Wise manual or by the Agre ement. The court further concluded that in order to survive a motion for summary disposi tion under MCR 2.116(C)(10), plaintiffs had to show with “prec ision” the extent of such a du ty and how it was breached. We disagree.

In MEEMIC Ins Co v DTE Energy Co , 292 Mich App 278, 281; 807 NW2d 407 (2011), we held that a plaintiff must establish four elements in order to bring a negligence claim: “(1) duty, (2) breach of duty, (3) causation, and (4) damages.” “‘D uty’ is a legally recognized obligation to conform to a particular standard of conduct towar d another so as to avoid unreasonable risk of harm” which “may arise by contract, statut e, constitution, or common law.” Cummins v Robinson Twp , 283 Mich App 677, 692; 770 NW2d 421 (2009); West American Ins

Co v Gutekunst , 230 Mich App 305, 310; 583 NW2d 548 (1998). With respect to the general duty of care imposed by common law, “every person is under the general duty to so act, or to use that which he controls, as not to injure another.” Clark v Dalman , 379 Mich 251, 261; 150 NW2d 755 (1967), impliedly overruled on other grounds by Fultz v Union Commerce Assocs

, 470 Mich 460; 683 NW2d 587 (2004), as stated in Lakeland Reg’l Health Sys v Walgreens
Health Initiatives, Inc , 604 F Supp 2d 983, 999 (WD Mich, 2009).

Generally, a person does not have an affirmative legal duty to aid or protect another

person. Hill v Sears, Roebuck & Co , 492 Mich 651, 660; 822 NW2d 190 (2012). However, this Court has held that a duty to aid or protect may be imposed whe re a “special relationship” exists between parties. Dykema v Gus Macker Enterprises, Inc , 196 Mich App 6, 8-9; 492 NW2d 472 (1992). “Some generally recognized ‘special relationships’ inc lude common carrier-passenger, innkeeper-guest, employer-employ ee, landlord[-]tenant, and invi tor-invitee.” Id . at 8. The underlying rationale for a special relationship is the element of control; “[t]hus, the determination whether a duty-imposing special relationship exists in a partic ular case involves the determination whether the plaintiff entrusted himself to the co ntrol and protection of the defendant, with a consequent loss of control to protect himself .” Id . at 8-9. “The ultimate inquiry in determining whether a legal duty should be imposed i s whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.” Hill

, 492 Mich at 661 (brackets, internal quotation marks, and citation omitted). “Factors rele vant to the determination whether a legal duty exists include the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” Id . (internal quotation marks and citation omitted).-6- In Terrell v LBJ Electronics , 188 Mich App 717, 718-719; 470 NW2d 98 (1991), the plaintiff, a minor, argued that a special relationship arose be tween himself and the defendant when the defendant volunteered to drive him home from a Boy Sco ut meeting. We held that it was reasonable to impose a duty of care on a person who volunte ered to drive a child to his home, as there was “little utility in a rule which would permit a person to volunteer to drive a child to his home without imposing on that person a duty to do it with due care.” Id . at 722. Similarly, in the instant case, a special relationship arose be tween defendant and Samantha when she registered for the camp and agreed, along with her mother, to place herself under the control of defendant for the duration of the camp. In Terrell , we did not point to any requirement that the plaintiff had to show the “extent” of the duty “with precis ion” in order to defeat the defendant’s motion for summary disposition. Rather, we stated that whether the defendant’s

actions “were reasonable under the circumstances or constituted a breach of his duty of due care is a jury question,” and we hel d that “under the facts pleaded in the complaint, [the defendant] owed a duty of due care to plaintiff.” Id

.

Similarly, under the facts pleaded in the instant case, plainti ffs have established that defendant owed Samantha a duty of care, and it should be left t o a jury to decide whether defendant’s actions and omissions breached that duty of care. This includes, for example, whether defendant, through its coun selors, was negligent in dir ecting to Samantha to remount her horse and continue on the ride, or in failing to respond approp riately notwithstanding their knowledge, if any, of Samantha’s di scomfort and lack of confide nce in her ability to control her horse. We add the following caveat, however. As discussed abo ve, defendant is immune from liability for Outback’s conduct re lated to the provision of an equine, tack, and equipment. Consequently, for example, althoug h plaintiff has asserted that defendant’s counselors were negligent in failing to check Samantha’s helmet, it is clear fr om the record that Outback assumed the responsibility of instruct ing the group on helmet usage and insuring that the group’s helmets fit as well as possible. In addi tion to there being no evidenc e that defendant’s counselors owed Samantha a duty to independently check her helmet, defendant is immune from liability on this issue under MCL 691.1665(a), as discussed above.

Further, the trial court did not address proximate cause. “To find proximate cause, it

must be determined that the c onnection between the wrongful con duct and the injury is of such a nature that it is socially and economically desirable to hold t he wrongdoer liable.” Helmus , 238 Mich App at 256. Here, defendant’s selection of Outback for th e activity is obviously a “but for” cause of Samantha’s injuries (as she would not otherwise have b een riding that particular horse on that particular trail on that particular day), and plaintiff s must additionally demonstrate to the trial court that the facts (assuming them to be true) that Outb ack’s instructors lacked the certification required by defendant’s safety manual, that Outba ck lacked proper liability insurance, 5 or that defendant’s counselors were not specifically trained i n horseback riding, were a proximate cause of the accident. On remand, the trial court should assess proximate cause and,

5 We note that evidence concerning the presence or absence of li ability insurance is generally not admissible in negligence actions, apart from certain exceptions that have not been raised in the

instant case. MRE 411.-7- in doing so, should, ensure that evidence related to proximate cause does not effect an “end-run” around the grant of immunity provided by the EALA, but instead demonstrates that “the connection between the wrongful conduct and the injury is of su ch a nature that it is socially and economically desirable to hol d the wrongdoer liable.” Helmus , 238 Mich App at 256.

IV. OSTENSIBLE AGENCY

Finally, we agree with the tri al court that plaintiffs present ed no evidence that Samantha’s injury was caused by her mother’s perception that Outback was a n agent of defendant.

Three elements must be satisfied to establish ostensible agency (agency by estoppel): “(1) the person dealing with the agent must do so with belief i n the agent’s authority and this belief must be a reasonable one, (2) the belief must be generat ed by some act or neglect on the part of the principal sought to be charged, and (3) the person relying on the agent’s authority must not be guilty of negligence.” Chapa v St Mary’s Hosp , 192 Mich App 29, 33-34; 480 NW2d 590 (1991). In sum, “the alleged principal must have made a representation that leads the plaintiff to reasonably believe that an agency existed and to s uffer harm on account of a justifiable reliance thereon.” Little v Howard Johnson Co , 183 Mich App 675, 683; 455 NW2d 390 (1990).

Plaintiffs claimed that they reasonably believed that an ostens ible agency relationship

existed between defendant and Ou tback based on Samantha’s testi mony that she did not make a distinction between their respective employees, and because the promotional and registration materials for the camp did not mention Outback or indicate that the horseback riding camp was different from any of several other camps offered by defendant for Girl Scouts. Plaintiffs further claim that their belief in the agency relationship was generate d by defendant, and not by any unreasonable assumptions made by Samantha. Lastly, plaintiffs noted that the ev idence did not suggest that Samantha was negligent in trusting her counselors and leaders when it came to selecting a helmet, and helping to control her horse. The tria l court agreed that plaintiffs had established a genuine issue of material fact as to the three re quirements of ostensible agency, but concluded that plaintiffs had not presented any evidence that S amantha’s injuries resulted from an ostensible agency relationship between Outback and defendant . We agree. Id

. Plaintiffs presented no evidence indicating, for example, that Samantha’s mother would not have sent her on the trip had she known that defendant had hired a third part y to provide equine instruction. Plaintiffs thus did not present a genuine issue of material fac t with regard to an ostensible agency, because they failed to present any evidence that Samant ha was harmed “as a result of relying on the perceived fact” that Outback was an agent of def endant. Little v Howard Johnson

Co , 183 Mich App 675, 683; 455 NW2d 390 (1990). 6

6 Having considered the merits of plaintiff’s ostensible agency argument, and having rejected it, we affirm the trial court’s denial of plaintiffs’ motion to ame nd the complaint to assert that legal theory in a separate count.-8- Affirmed in part, reversed in part, and remanded for proceeding s consistent with this opinion. We do not retain jurisdiction.

/s/ Mark T. Boonstra /s/ David H. Sawyer /s/ Jane E. Markey