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Docket Number

Docket No. 60329.

Attorney(S)

Goldstein, Miklir, Schreier, Nolish Friedman, P.C., for plaintiff. Mercedes Mueckenheim and Laurel F. McGiffert, Assistants Corporation Counsel, for defendant.

Judges

D.C. RILEY, J.

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Smart Summary

Syrowik v. City of Detroit, Michigan Court of Appeals (Dec. 7, 1982) — Summary

Factual and Procedural Background

On February 10, 1974, plaintiff Linda Syrowik, then 13 years old, fractured her left hip while tobogganing on Derby Hill in Dorias Playfield, a park owned and maintained by the City of Detroit. Plaintiffs filed a negligence complaint against the City. Defendants moved for summary judgment claiming immunity under the recreational land users act, MCL 300.201; MSA 13.1485. The trial court ruled the statute applicable but permitted plaintiffs to amend their complaint to allege gross negligence, wilful and wanton misconduct, and intentional nuisance in fact. After a jury trial held May 18–June 4, 1981, the jury returned a verdict finding defendants had not created an intentional nuisance in fact and were not grossly negligent or wilful or wanton. The trial court entered judgment for defendants and denied plaintiffs' motion for a new trial on September 30, 1981. Plaintiffs appealed as of right, contending, among other things, that the recreational land users act did not apply to their claim.

Legal Issues Presented

Whether the recreational land users act, MCL 300.201; MSA 13.1485, applied to plaintiffs' injury occurring in an urban public park (i.e., whether the statute should be limited to rural settings under ejusdem generis).
Whether plaintiffs' status as taxpayers (payment of property taxes) constituted "valuable consideration" under the statute.
Whether the trial court abused its discretion by excluding plaintiffs' "winter sports safety expert" from testifying.
Whether the trial court erred by excluding certain photographs, topographic maps, and blueprints of Derby Hill from evidence.
Whether any alleged instructional errors on comparative negligence and mitigation of damages require reversal (not reached if statute applied and jury found no cause of action).

Arguments of the Parties

Plaintiffs' Arguments

The statute should not apply to property located in urban areas; because the enumerated activities are typically rural, the phrase "other outdoor recreational use" should be narrowly construed under the principle of ejusdem generis to exclude urban activities such as tobogganing in a city park.
Payment of property taxes by plaintiff Joseph Syrowik constituted "valuable consideration" for use of Dorias Playfield and thus should bring plaintiffs within the statutory exception.
The trial court erred in excluding the testimony of their "winter sports safety expert."
The trial court erred in excluding photographs and diagrams of Derby Hill.
The trial court erred in instructions concerning comparative negligence and mitigation of damages.

Defendant's Arguments

The recreational land users act applied to barring plaintiffs' negligence action.
Plaintiffs' taxpayer status did not constitute the "valuable consideration" the statute contemplates.
Plaintiffs failed to comply with discovery rules (GCR 1963, 301.10) by not timely disclosing the name of their expert, and plaintiffs' interrogatory response did not sufficiently state the facts and basis for the expert's opinion; therefore, the expert's testimony should be barred.
The proffered photographs, maps and blueprints were not accurate representations of the hill as it appeared on the date of the accident or lacked proper foundation and therefore were inadmissible.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thomas v Consumers Power Co, 58 Mich. App. 486; 228 N.W.2d 786 (1975)	The statute should be given a liberal construction to effectuate the Legislature's intent to further recreational activities while codifying limitations on landowner liability.	The court relied on this precedent to reject plaintiffs' urban/rural distinction and to apply the recreational land users statute in the instant case.
Anderson v Brown Bros, Inc, 65 Mich. App. 409; 237 N.W.2d 528 (1975)	Application of the recreational land users statute to injuries sustained in public parks in urban settings.	The court cited this case as prior authority applying the statute to urban public parks, supporting its conclusion that the statute applies here.
Johnson v Detroit, 79 Mich. App. 295; 261 N.W.2d 295 (1977)	Standard of appellate review for trial court rulings admitting or excluding expert testimony (will not reverse absent clear abuse of discretion) and discussion of expert admissibility.	The court invoked Johnson for the standard of review and for the proposition that exclusion of the expert was within trial court discretion; it also cited Johnson in discussing harmless error and expert testimony requirements.
O'Dowd v Linehan, 385 Mich. 491; 189 N.W.2d 333 (1971)	Requirements for admissibility of expert testimony (expert status, factual issues requiring expert analysis, and specialized knowledge beyond the common man's).	The court applied these requirements to conclude plaintiffs' expert testimony was inadmissible because there were no facts requiring expert analysis and no body of specialized knowledge concerning tobogganing that exceeded common knowledge.
People v Brannon, 14 Mich. App. 690; 165 N.W.2d 903 (1968)	Test for admissibility of photographs (accuracy and representation of the scene at the relevant time).	The court applied this test to exclude plaintiffs' photographs taken in summer 1980 as not being an accurate representation of Derby Hill at the time of the 1974 accident.

Court's Reasoning and Analysis

The court first addressed plaintiffs' contention that the recreational land users act did not apply because Derby Hill was in an urban park. The court found the contention without merit, noting the statute contains no urban/rural distinction and that imposing one would require an arbitrary dividing line contrary to the statute's wording and legislative intent. The court relied on prior decisions holding the statute should be given a liberal construction to further recreational activities while limiting landowner liability (Thomas v Consumers Power Co) and on prior application of the statute to urban public parks (Anderson v Brown Bros, Inc).

On the taxpayer "valuable consideration" argument, the court construed the statute to require a specific fee for use of the particular recreational area; general taxpayer status (payment of property taxes) did not satisfy the statutory exception.

Regarding the expert witness, the court observed the appellate standard (no reversal absent clear abuse of discretion) from Johnson v Detroit. Defendants moved to bar the expert under GCR 1963, 301.10 for late disclosure. The trial court conditionally allowed the expert only if plaintiffs answered an interrogatory detailing the subject, opinion, and facts relied upon; plaintiffs' interrogatory response set forth conclusions without the supporting facts, failing to comply with the conditional order. Substantively, the court applied the expert admissibility requirements from O'Dowd v Linehan and Johnson, concluding there were no factual questions requiring expert analysis and no specialized body of knowledge about tobogganing beyond common knowledge; therefore the trial court properly excluded the expert under MRE 702.

On documentary evidence, the court held the photographs taken in summer 1980 (nearly six years after the accident) were not accurate representations of Derby Hill on the accident date and thus failed the admissibility test set out in People v Brannon. The topographic map and blueprints, prepared in 1956 before Derby Hill was constructed, lacked proper foundation for admission. The court further held any error in excluding those documents was harmless because plaintiffs were able to depict the general dimensions and attractiveness of Derby Hill by using a blackboard diagram and oral testimony.

Because the court concluded the recreational land users statute applied and the jury, by special verdict, found no cause of action, the court did not address plaintiffs' claims of error in jury instructions on comparative negligence and mitigation of damages.

Holding and Implications

Affirmed.

Direct effect: The Court of Appeals affirmed the trial court's judgment in favor of defendants and upheld the application of the recreational land users statute, the exclusion of plaintiffs' expert, and the exclusion of certain photographs and documents (with any documentary exclusion error deemed harmless). The court ordered no costs because the appeal involved statutory interpretation.

No broader change in precedent or new rule of law was announced beyond the court's application of existing precedent and statutory construction to the facts of this case.

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SYROWIK v CITY OF DETROIT

D.C. RILEY, J.

Following a jury trial in Wayne County Circuit Court which resulted in a verdict of no cause of action, the trial court entered a judgment in favor of defendants. On September 30, 1981, the trial court denied plaintiffs' motion for a new trial. Plaintiffs appeal as of right alleging, inter alia, that the trial court erred in holding that the recreational land users act, MCL 300.201; MSA 13.1485, was applicable to plaintiffs' claim.

On February 10, 1974, plaintiff Linda Syrowik, then 13 years old, fractured her left hip while tobogganing on Derby Hill in Dorias Playfield. Dorias Playfield is owned and maintained by the City of Detroit. Plaintiffs filed a complaint alleging that the defendants were negligent in their operation of Derby Hill. Shortly thereafter, defendants moved for summary judgment alleging immunity from liability for negligence under the recreational land users act, supra.

The trial court held that the act was applicable to the instant case but allowed plaintiffs to file an amended complaint alleging gross negligence and/or wilful and wanton misconduct and intentional nuisance in fact, as the basis of liability. Trial was commenced on May 18, 1981, and continued through June 4, 1981. Following deliberations, the jury returned its verdict wherein it found that defendants had not created an intentional nuisance in fact and had not been grossly negligent or wilful or wanton in their conduct.

At the time of plaintiff's accident, MCL 300.201; MSA 13.1485 provided as follows:

"Sec. 1. No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing or other similar outdoor recreational use, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee."

The act was amended by 1974 PA 177, effective June 23, 1974, by inserting "motorcycling" and "snowmobiling" and by deleting "similar" from the phrase "or other similar outdoor recreational use".

Plaintiffs contend that the statute does not apply to property located in urban areas. Plaintiffs point out that the activities listed in the statute are typically enjoyed in rural settings, thus, plaintiffs argue, under the principle of statutory construction known as ejusdem generis, the phrase "other outdoor recreational activity" should be narrowly construed to include only activities, such as those listed in the statute, which are generally enjoyed in rural areas. Plaintiffs do not argue that tobogganing is not included in the statute but, instead, state that "the statute should not be so broadly construed as to include recreational activities occurring in a city park".

Plaintiffs' argument is without merit. The statute makes no reference to a distinction between urban and rural areas. The imposition of such a distinction by this Court would require the drawing of an arbitrary dividing line between what is urban and what is rural. Furthermore, to give the statute the construction urged by plaintiffs would do violence not only to the wording of the statute but to the intent of the Legislature. This Court has previously held that this statute should be given a liberal construction to carry out the Legislature's intent to further recreational activities in Michigan by making certain areas available for such purposes while codifying tort law principles limiting the liability of landowners to those who come gratuitously upon their lands. Thomas v Consumers Power Co, 58 Mich. App. 486; 228 N.W.2d 786 (1975).

Also, this Court has previously applied MCL 300.201; MSA 13.1485 to bar actions by plaintiffs injured in public parks in urban settings. See Anderson v Brown Bros, Inc, 65 Mich. App. 409; 237 N.W.2d 528 (1975); Thomas v Consumers Power Co, supra.

We also reject plaintiffs' contention that the statute does not apply to their claim because plaintiff Joseph Syrowik paid defendant City of Detroit a valuable consideration in the form of property taxes for his family's use of Dorias Playfield. A plain reading of MCL 300.201; MSA 13.1485 clearly indicates that the valuable consideration must be in the form of a specific fee for the use of a particular recreational area in question. Plaintiff's status as a taxpayer is not enough to bring him within this statutory exception.

Plaintiffs also contend that the trial court erred in ruling that their "winter sports safety expert" could not testify. We note initially that this Court will not reverse the trial court's exercise of its discretion to admit or exclude expert testimony absent a clear abuse of discretion. Johnson v Detroit, 79 Mich. App. 295, 299; 261 N.W.2d 295 (1977). We find no such abuse of discretion here.

In this case, defendants brought a motion to bar the testimony of plaintiffs' expert pursuant to GCR 1963, 301.10 on the ground that plaintiffs had not released the name of their expert within the time limit set by that subrule. The trial court ruled that it would deny defendants' motion to bar the testimony of plaintiffs' expert on the condition that plaintiffs' attorney properly answer defendants' proposed interrogatory as to the subject of the expert's testimony, his opinion, and the facts he relied upon in giving his opinion. The response to the interrogatory perfunctorily set forth a series of conclusions without setting forth the facts upon which they were based. This response failed to comply adequately with the court's conditional order and, therefore, we hold that the trial court did not err in refusing to allow the testimony of plaintiffs' expert.

In any event, we agree with the trial court that plaintiffs' expert did not meet the requirements for admissibility of expert testimony. In order for expert testimony to be admitted, the witness must be an expert, there must be facts in evidence which require or are subject to examination and analysis by a competent expert and there must be knowledge in a particular area that belongs more to an expert than to the common man. O'Dowd v Linehan, 385 Mich. 491, 509-510; 189 N.W.2d 333 (1971); Johnson, supra, 300-301.

In the case at bar, there did not appear to be any questions of fact that required, or were subject to, examination and analysis by an expert, nor did there appear to be a body of knowledge in the area of tobogganing that could be said to belong more to an expert than to a common man. We agree with the trial court that the expert's testimony could not have assisted the jury in understanding the evidence or determining the facts in issue and, therefore, we hold that it properly exercised its discretion in excluding the testimony of plaintiffs' expert. MRE 702.

Next, plaintiffs contend that the trial court erred in excluding from evidence certain photographs and diagrams of Derby Hill. The photographs of Derby Hill proffered by plaintiffs were taken during the summer of 1980, almost six years after the date of the accident in question. Furthermore, they were in no way an accurate representation of the hill on the date in question. Therefore, the photographs failed to meet the test for admissibility of photographs as set forth in People v Brannon, 14 Mich. App. 690; 165 N.W.2d 903 (1968), and the trial court properly excluded them from evidence.

The same analysis applies to the topographic map and blueprints proffered by plaintiffs. Both of these documents were prepared in 1956, before Derby Hill was constructed, and plaintiffs were unable to establish the proper foundation for the admission of these documents. In any event, any error in the exclusion of these documents was harmless as the plaintiffs successfully utilized a blackboard diagram and oral testimony to depict the general dimensions of Derby Hill and its attractiveness as a tobogganing area. Johnson, supra, 300.

Finally, in view of our holding that the recreational land users statute, MCL 300.201; MSA 13.1485, was properly applied to the case at bar, we need not address plaintiffs' claim that the trial court erred in its instructions on comparative negligence and mitigation of damages, as the jury, pursuant to a special verdict form, decided that plaintiffs had no cause of action before ever reaching the issues of comparative negligence and damages.

Affirmed.

No costs, a statutory interpretation being involved.

SYROWIK v. CITY OF DETROIT