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A Better Partnership
September 25, 2017

MSC to consider whether playing on a beach is "outdoor recreational use" of land

In Otto v. Inn at Watervale, Inc., No. 155380, the Michigan Supreme Court has granted the Inn's application for leave to appeal the question of whether a child's play on the beach constituted “other outdoor recreational use” of the Inn's land under the Recreational Land Use Act, MCL 324.73301(1). 

While vacationing near Lake Michigan, Bailey Ann Marie Noble and her friend's family drove to the Inn at Watervale to spend the day at beach.  The adults were lounging with books and Bailey and her friend were building sandcastles and splashing around in the water when Bailey suddenly began screaming.  One of the adults noticed that Bailey had inadvertently stepped in hot coals in an active fire pit that had been covered with sand.  Bailey sustained second and third degree burns to her left foot. 

Kerri Hunter Otto, as next of friend of Bailey, sued the Inn for a single count of negligence.  The Inn moved for summary disposition, arguing that the negligence claim was barred by the Recreational Land Use Act ("RUA"), which bars negligence claims unless the landowner was paid for "fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use" unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner.  The trial court dismissed Otto's negligence claim, finding that Bailey's activities constituted "other outdoor recreational use" of the land.  The Court of Appeals disagreed.  Applying the doctrine of ejusdem generis, the court held that child’s play on the beach is not an activity that is “of the same kind, class, character, or nature” as “fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, [or] snowmobiling.”  

The Michigan Supreme Court has granted the Inn's application for leave to appeal the Court of Appeals' decision, and has invited the Heart of the Lakes Center for Land Conservation Policy, Real Property Law Section of the State Bar of Michigan, and Environmental Law Section of the State Bar of Michigan to file briefs amicus curiae.

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