SUMMARY

“Reforming” courts in Michigan have attempted to limit the rights of people who suffer injury while engaged in recreational activities. For the most part, injuries that result from “negligence” or a lack of “due care” can still be the basis for an insurance claim, however, the execution of a Release, for example, may let the wrongdoer off the hook. There are other technical defenses that may come into play in the context of recreational activities.

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RECREATIONAL ACTIVITIES AND RELEASES

“Assumption of the risk”

When someone is injured or dies while engaged in a recreational activity, a number of different issues arise. One of the first is a general bias which is similar to the legal doctrine of assumption of the risk. Many adjusters and jurors are less willing to fully compensate a person injured while “playing” than they would be if the person were injured while working, for example. There is no legal basis for this bias, however, it is a factor that must be taken into account and addressed.

Particular activities and industry standards

The actual rights of the person injured will often vary based upon the activity engaged in and whether the commercial interests who profit from that form of recreation have strong lobbyists. For example, the downhill skiing industry has a strong lobby in Michigan and was one of the first organizations to obtain special liability rules from the Legislature. The Ski Area Safety Act applies to all snow sports where a device is strapped to the feet and it protects Resorts from claims which are “inherent” in the sport.

Tort “reforming” courts have interpreted the latter phrase to include almost anything the ski area might do. Some exceptions have been carved out by conscientious judges where the activity that lead to injury was either “grossly negligent” or virtually irrelevant to engaging in a snow sport. Sadly, actions such as failing to protect skiers by padding snow guns and other artificial objects are rarely excluded from this immunity provision and have resulted in less care being dedicated to making ski slopes safe.

As a general rule, negligence is judged by what a reasonable commercial establishment in this field would do, however, the injured person is free to prove that the entire industry fails to exercise due care in a particular circumstance. Of course it is harder to prove that an entire industry is negligent, even if it is in only one particular. Other popular recreational industries who have obtained exceptional liability protection include, for example, roller skating rinks, horseback riding and equine activities (including as a spectator).

Frequently, we need to engage the assistance of a professional in the field in order to educate the judge or jury about “inherent” risks and unreasonable behavior; sometimes that is not enough. We have found, also, that factfinders take their duty to the victim more seriously if the injury suffered is catastrophic or if a child is involved.

Pre-activity Releases

In addition, “reform” minded judges have expanded the protection which these commercial establishments can secure themselves by allowing them to require the execution by participants, in advance, of Releases. Many people assume that these releases do not operate to protect the commercial entity from its own negligence, and only relinquish the right to make a “frivolous” claim, however, that is rarely the case. In most cases, the standard form release protects the entity from its own misconduct or mistake and not merely from inherent dangers. Twenty years ago, the concept of forcing patrons to release in advance a negligent actor from the effect of any injury he might cause was strongly disfavored in the law. Michigan courts were particularly reluctant to allow commercial establishments to insist upon an enforceable Release taking away a child’s protection. Some organizations, such as the Girl Scouts of America, refuse to sanction any activity that would involve the advance execution of Releases sacrificing the girls’ legal rights.

Today, all forms of Releases are given greater impact in the courts and some are considered to be completely binding, even where the party released clearly failed to exercise due care for the injured guest’s safety.. In other cases, they are held to protect the wrongdoer only if he wasn’t guilty of some form of “aggravated” negligence. The courts continue to frown upon Releases that purport to waive a child’s rights. Where possible, it is important to explore the existence of releases, warnings, and instructions, prior to filing the complaint.

Settlement Releases

A different form of release is often required by insurance companies at the time any benefits are paid. Insurers are normally unwilling to pay benefits without receiving a document from the insured extinguishing or waiving the insured’s or victim’s corresponding rights. Until about ten years ago, if the insurer over-reached in the language of the Release, a Court could be asked to “reform” the Release to limit it to the parties’ original intent. So-called “tort reform” judges have eliminated that policy, however, and today, any Release signed by the victim will probably be enforced according to its terms, regardless of intent and regardless of inequity. This change in policy has resulted in a number of unintended and unfair outcomes, particularly where a lay person was not represented by experienced counsel. Some examples to be concerned about include:

1. Execution of a release in favor of one wrongdoer and his insurer has been interpreted to release all other wrongdoers, even though that was neither party’s intent.

2. Execution of a release of the victim’s own insurer for paying no fault PIP benefits has been interpreted to release a party’s claim against the wrong-doer for other, different losses, and vice versa. That is, execution of an unrelated release to a third-party insurer has been held to elminate the victim’s insurer’s duty to pay future PIP benefits..

3. Execution of a release may unintentionally discharge the victim’s claim for Uninsured or Underinsured Motorist benefits from his own insurer.

4. Execution of a release for a drunk who has paid his policy limits will discharge the bar where he was drinking, even if they served him illegally.

5. Execution of a release in favor of an employee or agent will release his employer.

6. Release or compromise of some past-due PIP benefits or execution of a check with a restrictive endorsement may effect the unintentional release of the insurer from the payment of future benefits.

Recreational User Act

In the 1970s, in order to open up vacant land to recreational uses, the Michigan Legislature enacted a statute that gave landowners immunity for injuries resulting from hazards on the land, if the injury occurred to a visitor who was using the land for free. This was a reasonable gesture, however, within a few years, the statute was being mis-used to confer immunity upon utility companies who did not have the capacity to control access and to confer immunity upon the owners of urban and suburban tracts of developed land completely outside the scope of the statutory intent.

Our attorneys authored two separate articles addressing this misuse of the act and one of the articles was cited by the Michigan Supreme Court in a landmark decision placing more reasonable limits on the scope of this immunity. As currently understood, the RTLA confers immunity for ordinary negligence when land in its natural state is opened for recreational use, provided no entry fee is charged. Because of developments in the area of the “open and obvious” defense to premises liability, there has been little pressure on this statute recently: many of the injuries that resulted in valid claims fifteen years ago cannot now be pursued because the dangerous condition would have bee “perceivable” by the guest under optimal circumstances..