broadly defining “participant” under EALA
How later courts described this case
- broadly defining “participant” under EALA
Written by the judges who cited it.
The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHELE MOLNAR, FOR PUBLICATION
February 2, 2023
Plaintiff-Appellant, 9:00 a.m.
v No. 359740
Monroe Circuit Court
TENACITY FARM, INC., doing business as LC No. 20-143037-NO
STONEHAVEN FARM EQUESTRIAN, INC., and
CATHY ROHRS,
Defendants-Appellees.
Before: YATES, P.J., and JANSEN and SERVITTO, JJ.
YATES, P.J.
If it wishes, our Legislature may supplant the common law with a statutory scheme. In this
case, we must decide whether plaintiff’s common-law negligence claims are viable in light of the
Equine Activity Liability Act (EALA), MCL 691.1661 et seq. In addition, we must determine the
extent to which plaintiff, Michele Molnar, may recover for her injuries that resulted from “equine
activity” on the property of defendant Tenacity Farm, Inc., doing business as Stonehaven Farm
Equestrian, Inc. (“Stonehaven”), under the statutory theories of liability defined in the EALA. The
trial court granted summary disposition under MCR 2.116(C)(10) to Stonehaven and its employee,
Cathy Rohrs, on the negligence claims as well as plaintiff’s statutory claims for willful or wanton
conduct under the EALA, MCL 691.1665(d). Because the trial court correctly applied the EALA
in resolving defendants’ motion for summary disposition, we shall affirm.
I. FACTUAL BACKGROUND
On June 13, 2018, plaintiff began taking horseback-riding lessons with defendant Rohrs at
defendant Stonehaven’s facilities. At her first lesson, plaintiff rode a horse named Casey and, after
that lesson, plaintiff was involved in tacking and grooming Casey and then returning Casey to the
pasture. Plaintiff seemed comfortable with Casey and had no issues riding or handling that horse.
When plaintiff arrived for her second lesson on June 21, 2018, Casey was still in the pasture with
several other horses, so Rohrs told plaintiff to retrieve Casey from the pasture and bring Casey to
the barn, where plaintiff could groom and tack Casey and then ride him. Plaintiff advised Rohrs
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that she had never before retrieved a horse from a pasture. According to plaintiff, Rohrs appeared
distracted because she was about to begin overseeing a children’s camp that morning. Rohrs took
plaintiff to the pasture, pointed out Casey among the other horses in the pasture, and told plaintiff
to hook the lead rope onto Casey. According to plaintiff, Rohrs then walked away after assuring
plaintiff that she would be fine.
Plaintiff led Casey out of the pasture, but she saw that other horses had surrounded Rohrs,
who was far away from plaintiff. Rohrs appeared to be struggling and did not have control. Rohrs
instructed plaintiff to wait, and Rohrs opened a gate for plaintiff to enter another area while Rohrs
had another horse, Cosmo, on a lead. Rohrs yelled for plaintiff to run through the gate with Casey.
Plaintiff was able to get Casey through the gate, but plaintiff did not close the gate behind her after
she led Casey through it. Cosmo chased after plaintiff and Casey through the open gate and kicked
plaintiff in the leg, breaking plaintiff’s leg and knocking her to the ground.
According to Rohrs, she believed plaintiff had enough experience with horses to retrieve a
horse from the pasture, which was something Stonehaven taught its students as part of the lessons.
Rohrs was there to assist plaintiff. There were four horses in the pasture, and plaintiff was able to
lead Casey without difficulty. When plaintiff started to walk toward the gate, Rohrs noticed that
Cosmo was walking toward them, so Rohrs clipped a lead line onto Cosmo’s halter and attempted
to prevent Cosmo from interfering with the lesson. Rohrs followed plaintiff as plaintiff led Casey,
and Rohrs instructed plaintiff to go to a gate that led to a smaller pasture. Plaintiff opened the gate
and took Casey into the smaller pasture, but plaintiff left the gate open. When Rohrs walked over
to close the gate, Cosmo pulled the lead line out of Rohrs’s hand and went through the open gate.
After Rohrs went to close the gate, she heard plaintiff say that she had been kicked. Rohrs assisted
plaintiff, but Rohrs neither saw nor heard what had happened, other than hearing plaintiff state that
she had been kicked.
On December 30, 2019, plaintiff filed a complaint against Stonehaven setting forth claims
for negligence and willful and wanton conduct. Plaintiff’s first amended complaint, which added
Rohrs as a defendant, repeated the original claims of negligence and willful and wanton conduct
against Stonehaven and presented claims for negligence and willful and wanton conduct against
Rohrs. On October 1, 2021, both defendants moved for summary disposition on all claims under
MCR 2.116(C)(7), (8), and (10) “on the basis of a waiver/release, statutory immunity, and lack of
a genuine issue of material fact.” On November 12, 2021, the trial court heard oral arguments on
the motion and granted relief to both defendants in a ruling from the bench that was memorialized
in a written order. Plaintiff thereafter moved for reconsideration, but the trial court denied relief
to plaintiff in an order entered on December 8, 2021. Plaintiff then filed this appeal contesting the
trial court’s summary disposition award.
II. LEGAL ANALYSIS
We review de novo the trial court’s decision on defendants’ summary disposition motion.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Defendants’
motion cited MCR 2.116(C)(7), (8), and (10), and the trial court stated that it granted defendants’
motion under all three subrules. On appeal, however, we shall focus on MCR 2.116(C)(10) as the
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basis for summary disposition.1 A motion under MCR 2.116(C)(10) “tests the factual sufficiency
of a claim.” El-Khalil, 504 Mich at 160. In resolving such a motion, “a trial court must consider
all evidence submitted by the parties in the light most favorable to the party opposing the motion.”
Id. The motion “may only be granted when there is no genuine issue of material fact.” Id. Such
an issue “exists when the record leaves open an issue upon which reasonable minds might differ.”
Id. (quotation marks omitted). With these standards in mind, we shall initially address plaintiff’s
claims for negligence, and then we shall turn to the claims for willful or wanton conduct under the
EALA, MCL 691.1665(d).
A. PLAINTIFF’S NEGLIGENCE CLAIMS
Plaintiff contends that Stonehaven and its employee, Cathy Rohrs, were negligent in telling
plaintiff to retrieve Casey from a pasture and move Casey to an adjoining pasture in a manner that
exposed plaintiff to the risk of being injured by other horses (such as Cosmo) that were with Casey.
Defendants respond that plaintiff’s common-law negligence claims are barred by the EALA, which
includes the following preclusion of common-law claims in MCL 691.1663:
Except as otherwise provided in section 5 [i.e., MCL 691.1665], an equine activity
sponsor, an equine professional, or another person is not liable for an injury to or
the death of a participant . . . resulting from an inherent risk of an equine activity.
Except as otherwise provided in section 5 [i.e., MCL 691.1665], 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 . . . resulting from an inherent risk of an equine
activity.
Under this “clear and unambiguous language of the EALA, if a participant’s injuries result from
an inherent risk of an equine activity, the participant may not make a claim for damages against
an equine professional” or an “equine activity sponsor.” Amburgey v Sauder, 238 Mich App 228,
233; 605 NW2d 84 (1999). Similarly, “the equine professional” and the “equine activity sponsor”
are “free from the ‘penalty’ or ‘burden’ of claims for damages.” Id. As a result, “the Legislature
intended to grant immunity to qualifying defendants.” Id.
The definitions in the EALA fit defendants Stonehaven and Rohrs like a well-worn saddle.
An “equine activity” includes “[e]quine training or teaching activities.” MCL 691.1662(c)(ii). An
“equine activity sponsor” includes a “corporation . . . that . . . provides the facilities for an equine
activity,” see MCL 691.1662(d), just as Stonehaven did in this case. An “equine professional” is
1
The defendants’ request for relief under MCR 2.116(C)(7) flowed from a waiver plaintiff signed
before her first riding lesson. Because we do not find that waiver argument persuasive, we shall
focus upon defendants’ contentions that the EALA foreclosed plaintiff’s common-law claims for
negligence and that plaintiff failed to support her statutory claims under the EALA. We recognize
that the EALA contains language in MCL 691.1663 that could be treated as an immunity provision,
which could justify summary disposition under MCR 2.116(C)(7), but the defendants have framed
their argument under MCL 691.1663 as a fatal defect in plaintiff’s negligence claims, so we shall
analyze the award of summary disposition on the negligence claims under MCR 2.116(C)(10).
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a “person engaged in . . . [i]nstructing a participant in an equine activity[,]” MCL 691.1662(e)(i),
just as Cathy Rohrs did in this case. And a “participant” includes “an individual, whether amateur
or professional, engaged in an equine activity,” MCL 691.1662(g), just as plaintiff was in this case.
Amburgey, 238 Mich App at 234-235 (broadly defining “participant” under EALA). Indeed, even
when—as in this case—the horse that caused plaintiff’s injuries was not the horse with which the
plaintiff interacted in “equine activity,” the immunity afforded by the EALA applies. Id. at 235-
236. “The Legislature broadly defined engagement in an equine activity . . . obviously recognizing
and anticipating that in an environment involving equines, potential liability could arise out of
innumerable situations, including instances where, as in the present case, the participant, before
the incident or accident, had no direct or meaningful interaction with the particular equine that
caused the injury” to the plaintiff. Id. at 236. That observation perfectly describes the injury to
plaintiff caused by Cosmo, as opposed to Casey, thereby confirming that the trial court correctly
awarded summary disposition under MCR 2.116(C)(10) to defendants on plaintiff’s common-law
negligence claims.
B. PLAINTIFF’S CLAIMS FOR WILLFUL OR WANTON CONDUCT
In addition to the negligence claims, plaintiff’s first amended complaint presented claims
against both defendants for willful or wanton conduct. Unlike the negligence claims, which the
EALA barred, the claims for willful or wanton conduct are authorized under the EALA. Pursuant
to MCL 691.1665(d), the sweeping immunity afforded by MCL 691.1663 does not apply if the
defendant “is an equine activity sponsor or equine professional” who “commits an act or omission
that constitutes a willful or wanton disregard for the safety of the participant” and “is a proximate
cause of the injury, death, or damage.” Because plaintiff’s statutory claims based upon that theory
do not fall prey to any immunity defense, those claims must be analyzed on their merits.2 The trial
court resolved them on summary disposition under MCR 2.116(C)(10), reasoning that no genuine
issue of material fact required a trial of those claims. Accordingly, plaintiff argues on appeal that
there remain genuine issues of material fact that made summary disposition inappropriate.
We must begin our analysis by establishing the standard that the plaintiff must satisfy. The
statutory definition of the claim contemplates conduct by the defendants “that constitutes a willful
or wanton disregard for the safety of the participant[.]”3 See MCL 691.1665(d). Under Michigan,
law, “[t]he term ‘wilful’ requires a finding of an actual intent to harm, while the term ‘wanton’ is
an intent inferred from reckless conduct.” Jennings v Southwood, 446 Mich 125, 141; 521 NW2d
230 (1994). The trial court awarded summary disposition under MCR 2.116(C)(10) to defendants
2
The statutory claims must be distinguished from common-law claims for gross negligence, which
ordinarily cannot be waived, Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003), but which
may be barred by the immunity conferred under the EALA. See MCL 691.1663. Gross negligence
requires “ ‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury
results.’ ” Xu, 257 Mich App at 269.
3
That heightened standard applies only to statutory claims against “an equine activity sponsor or
equine professional[.]” See MCL 691.1665(d). In contrast, if the defendant is neither an “equine
activity sponsor” nor an “equine professional,” liability under the EALA, MCL 691.1665(e), can
rest upon “a negligent act or omission that constitutes a proximate cause of the injury[.]”
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on the statutory claims by finding no genuine issue of material fact with regard to either willful or
wanton conduct. We agree with the trial court’s analysis.
The evidence, when viewed in the light most favorable to plaintiff, reveals that defendant
Cathy Rohrs instructed plaintiff to go into the pasture to retrieve Casey and then lead Casey into a
smaller pasture for the riding lesson. Plaintiff had had no difficulties with Casey during the first
lesson, and plaintiff encountered no problems retrieving Casey and leading Casey into the smaller
pasture on the date of the second lesson. Problems arose only because neither plaintiff nor Rohrs
closed the gate between the pastures, which allowed Cosmo to go into the smaller pasture and kick
plaintiff. Those facts most assuredly do not give rise to a genuine issue of material fact with regard
to “willful” conduct by the defendants because no rational juror could find that Rohrs “intended to
harm” plaintiff. See Jennings, 446 Mich at 146. Similarly, those facts cannot support a finding of
“wanton” conduct because no rational juror could find Rohrs responsible for conduct “reckless”
enough to infer an intent to harm plaintiff. See id. at 141. The evidence presented to the trial court
reveals that Rohrs secured Cosmo, but then lost control of that horse right before Cosmo followed
plaintiff and Casey into the smaller pasture and kicked plaintiff. To be sure, what happened could
be described as negligence by Rohrs, but Rohrs’s actions were neither willful nor wanton. Thus,
the trial court properly granted summary disposition to defendants on the statutory claims set forth
under MCL 691.1665(d).
C. PLAINTIFF’S REMAINING ARGUMENTS
Although plaintiff was represented by counsel throughout the proceedings in the trial court,
she has chosen to take up the cudgels on her own behalf on appeal. The result is an appellate brief
that advances a mélange of arguments about claims that were never pleaded and rulings that drew
no objection in the trial court. “We review unpreserved issues for plain error.” Demski v Petlick,
309 Mich App 404, 426-427; 873 NW2d 596 (2015). “ ‘To avoid forfeiture under the plain error
rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e.,
clear or obvious, 3) and the plain error affected substantial rights.’ ” Id. at 427. No alleged error
cited by plaintiff satisfies all three of those requirements.
Plaintiff contends that she has a viable statutory claim under the EALA, MCL 691.1665(b),
which allows for recovery if an “equine activity sponsor, equine professional, or other person . . .
[p]rovides 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.” The record reflects that defendants Stonehaven and Rohrs
not only took steps to ensure that plaintiff had basic experience with a beginner horse like Casey,
but also assigned an especially gentle horse, i.e., Casey, to plaintiff. Moreover, Rohrs had observed
plaintiff successfully working with Casey during the first lesson before instructing plaintiff to get
Casey from the pasture for the second lesson. Under the circumstances, no plain error occurred in
the denial of recovery on a statutory claim under MCL 691.1665(b) that plaintiff never pleaded or
pressed in the trial court.
Plaintiff insists that defendants violated the EALA by failing to post warning signs required
by MCL 691.1666, which specifies the mandatory contents of the warning in subsection (3) of that
statute. But prior to her first lesson, plaintiff signed a waiver that included that precise warning in
bold, capitalized letters immediately above the signature line where plaintiff signed her name:
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As a result, plaintiff cannot establish that the denial of relief for the failure to post warning signs
amounted to plain error that affected substantial rights. Moreover, as we have observed, “[u]nlike
the equine activity liability statutes of other states, Michigan’s statute contains no specified penalty
for the failure to post a sign.” Amburgey, 238 Mich App at 239. Thus, we cannot figure out what
type of remedy plaintiff seeks for the failure to post warning signs, but we have already rejected
the argument that immunity under the EALA, MCL 691.1663, is lost by the failure to post warning
signs. Beattie v Mickalich, 284 Mich App 564, 578-579; 773 NW2d 748 (2009), rev’d on other
grounds 486 Mich 1060; 784 NW2d 38 (2010). Therefore, we cannot provide any relief to plaintiff
in response to her argument predicated upon MCL 691.1666.
Plaintiff asserts that reversal is required because the trial court was biased against her, but
she failed to raise that issue “within 14 days of the discovery of the grounds for disqualification.”
MCR 2.003(D)(1)(a). Indeed, plaintiff never raised the issue of bias in the trial court, so the trial
court never had an opportunity to respond to the allegation. Our independent review of the record
reveals that plaintiff’s claim of bias is thoroughly meritless. “Due process requires that an unbiased
and impartial decision-maker hear and decide a case.” Mitchell v Mitchell, 296 Mich App 513,
523; 823 NW2d 153 (2012). “A trial judge is presumed unbiased, and the party asserting otherwise
has the heavy burden of overcoming the presumption.” Id. Curiously, plaintiff takes aim primarily
at counsel for the defendants by accusing her of making false statements to the trial court. Plaintiff
relies only secondarily upon the comments and rulings of the trial court to establish bias. Judicial
comments and rulings, however, do not provide “a basis for disqualification ‘unless they display
a deep-seated favoritism or antagonism that would make fair judgment impossible.’ ” Cain v Dep’t
of Corrections, 451 Mich 470, 496; 548 NW2d 210 (1996). We can find no deep-seated favoritism
or antagonism in anything the trial court said or did during the proceedings below.
Finally, plaintiff complains about the discovery process from beginning to end, faulting the
trial court for extending discovery deadlines, allowing discovery of matters such as her tax returns,
and permitting the defense to dictate the terms of discovery. The decision to extend discovery is
a matter committed to the sound discretion of the trial court. Decker v Trux R Us, Inc, 307 Mich
App 472, 478; 861 NW2d 59 (2014). The trial court did not abuse its discretion by extending the
discovery cutoff in this case, especially when plaintiff stipulated to an extension of that deadline.
Nor can we find any abuse of discretion in the scope of discovery permitted by the trial court under
MCR 2.302(B)(1). See Augustine v Allstate Ins Co, 292 Mich App 408, 419; 807 NW2d 77 (2011).
Plaintiff asserts that her tax returns should have been off limits in discovery, but we have explained
“that, as a general rule, a party’s income tax returns are subject to discovery.” In re Pott, 234 Mich
App 369, 375; 593 NW2d 685 (1999). In a case such as this where plaintiff identified lost wages
and “other economic losses” as elements of her damages, the trial court acted within its discretion
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in ordering plaintiff to produce three years of tax returns during discovery. In sum, nothing in the
record indicates that the trial court impermissibly enabled defendants to take control of discovery.
To the extent that the trial court, at the behest of defendants, occasionally intervened to deal with
plaintiff’s recalcitrance during the discovery process, the trial court—not the defendants—made
all of the calls in a manner consistent with the Michigan Court Rules. Thus, plaintiff is entitled to
no relief for the trial court’s rulings during the discovery process.
Affirmed.
/s/ Christopher P. Yates
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
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