The Michigan Supreme Court heard oral arguments in the case of Bertin v Mann, Docket No. 155266, on Wednesday, April 25, 2018. Instead of hearing arguments in its standard Lansing courtroom, however, the Court held the arguments at Lake Superior State University in front of an audience of approximately 500 students. This is the first time the Supreme Court held court in the Upper Peninsula.
In Bertin, the parties were golfing together when the defendant-appellant struck the plaintiff-appellee with a golf cart, knocked him to the ground, and ran over his ankle. The issue before the Court was what standard of care should apply when a golfer sustains an injury resulting from the operation of a golf cart while playing recreational golf. The plaintiff-appellee argued that the ordinary negligence standard of care should apply, while the defendant-appellant contended that the higher reckless misconduct standard of care should apply.
Lower Court Proceedings
The Trial Court held that the proper standard of care was the reckless misconduct. It relied on the Michigan Supreme Court’s decision in Ritchie-Gamester v City of Berkley, 461 Mich 73; 597 NW2d 517 (1999), which held that the reckless misconduct standard applies when a person is injured during a recreational activity if he is injured by a risk that is inherent to the activity. The rationale behind the Ritchie-Gamester holding was that participants voluntarily assume the certain risks that are inherent to the activity in which they are participating. The jury found in favor of the defendant, and the plaintiff appealed to the Court of Appeals, arguing that the Trial Court should have instructed the jury to use the ordinary negligence standard of care.
In Bertin v Mann, 318 Mich App 425; 898 NW2d 243 (2016), the Court of Appeals reversed the Trial Court, finding that the use of a golf cart is not a risk that is inherent to the game of golf. Since the nature of the sport remains unchanged in the absence of a golf cart and the game can be played without a golf cart, the Court of Appeals reasoned that a golf cart cannot be considered “inherent” to the game of golf. Thus, it concluded that the proper standard of care is the ordinary negligence standard, and not the reckless misconduct standard set forth in Ritchie-Gamster.
The Michigan Supreme Court granted leave to determine the proper standard of care that should apply when a golfer is injured by a co-participate using a golf cart.
Oral Argument Highlights
Sidney A. Klinger, of Secrest Wardle, appeared on behalf of the defendant-appellant. Arguing for the reversal of the Court of Appeals decision, Klinger attempted to persuade the Supreme Court to adopt the reckless misconduct standard of care and find that the use of golf cart is a risk that is inherent to the game of golf. Justice McCormick opined that the line between recklessness and negligence is sloppy, and she focused on the issue of foreseeability: instead of trying to apply one standard or the other to these situations, she asked, why can’t we just instruct the jury to determine if the risk at issue was one that they would foresee if they were participating in the activity? A foreseeable risk would prevent recovery, but a plaintiff would be able to recover for injuries sustained from an unforeseeable risk. Klinger responded that the best approach would be to keep the analysis within the Ritchie-Gamster framework, which focuses on whether the risk was inherent to the activity. However, Klinger noted that foreseeability can be critical to determining whether a risk is inherent.
Chief Justice Marksman noted that the ordinary standard of negligence applies to individuals who are operating a car, motorcycle, or other motorized vehicle on the road; so why, he asked, should the different reckless misconduct standard of care to a person who is operating a motorized golf cart? Klinger responded that the coparticipants’ consent to the risks inherent to the game—including the use of golf carts—was key to this distinction.
Mark Bendure, of Bendure & Thomas, argued for the plaintiff-appellee. He noted that adopting the higher reckless misconduct standard would make it more difficult for the injured plaintiff—who was not at fault for the accident—to recover for his injuries from the defendant, who caused the accident. As a matter of public policy, he implored the Court to decide against placing a lighter burden on the defendant at the expense of the innocent, injured party. He further argued that the Court of Appeals correctly decided that the use of a golf cart was not inherent to the game of golf—unlike getting the risk of getting hit by a golf ball while participating in the game of golf. Justice McCormick, in an effort to determine where the line between an inherent risk and an ancillary risk lies, asked if something like spraining her ankle while she hit the ball would be considered a risk inherent to the activity. Bendure pointed out that the critical distinction between her hypothetical and the facts of this case was that the former involved the individual causing harm to himself, while the latter involved the individual being harmed by the conduct of others.
After the oral arguments concluded, the attorneys were treated to a well-deserved round of applause from the student audience.
The Court Community Connections Program
The students were there as part of the Michigan Supreme Court’s Community Connections program. The Court started this program in 2007, with the goal of helping students understand Michigan’s judicial system and the appellate process. As part of this program, the Court ventures outside its traditional Lansing courtroom to hold oral arguments in various locations across Michigan twice per year. Students from the surrounding areas are invited to watch the oral arguments. For Bertin, the Court traveled to the Upper Peninsula for the first time, holding court in the Arts Center auditorium at Lake Superior State University.
Approximately 500 students attended the argument in person, with more watching via the Court’s Livestream. Teachers disseminated the briefs to their students beforehand, so they could better understand the attorneys’ arguments and the justices’ questions. Afterward, the students had an opportunity to ask the two attorneys questions about their experience. Following the question and answer session, the students had the opportunity to attend a reception with the justices and the attorneys. Once the Court renders its opinion in the Bertin, the students will discuss in their classrooms the extent to which they agree with the justices’ conclusions.
The date and location for the Court’s next oral argument on the road has not yet been announced, though it is likely that it will be held sometime in October 2018. Anyone is able to watch these oral arguments via the Court’s Livestream. More information about the Court’s Community Connections Program can be found at the following link: http://courts.mi.gov/courts/michigansupremecourt/pages/court-community-connections.aspx.
The formality of the Court’s proceedings juxtaposed with the informality of a school auditorium makes it an interesting experience, so we highly recommend tuning into watch! After the Court renders its opinion in Bertin, we will be sure to do a blog detailing the Court’s ultimate decision in this matter of first impression affecting a highly significant matter - the game of golf!