O'Neil Wallace & Doyle, PC

Court of Appeals Upholds Rental Release

NAME: Matthew Burchard v Treetops Acquisition Company, LLC

COURT / JUDGE: Otsego County Circuit Court; Michigan Court of Appeals

ATTORNEYS:

Plaintiff: Gregg Herman of Gregg E. Herman, P.C. & Mark Bendure of Bendure & Thomas, PLC

Defendant: Kailen C. Piper & David Carbajal, O'Neill, Wallace & Doyle, P.C.

ISSUED: March 14, 2024

INTRODUCTION

On March 14, 2024, the Michigan Court of Appeals affirmed the Otsego County Circuit Court's Order granting summary disposition to the Defendant, Treetops Acquisition Company, LLC ("Treetops") for a lawsuit from a golf cart accident on the par-three course called "Threetops," at Treetops Resort in Gaylord, Michigan. The trial court and the Court of Appeals agreed that Plaintiff knowingly and fairly executed a valid waiver of liability, thereby dismissing Plaintiff's negligence, premises liability, breach of contract, and fraud claims. Although the waiver did not apply to the gross negligence claim, the Court of Appeals agreed that the gross negligence claim should also be dismissed because the Plaintiff failed to put forth sufficient evidence for a jury that Defendants were grossly negligence when there was evidence of precautionary measures by Treetops to ensure the safety of its guests. Therefore, the Court of Appeals affirmed the trial court's dismissal of Plaintiff's gross negligence claim.

ANALYSIS

On May 4, 2019, Plaintiff, Matthew Burchard, was with fifteen (15) other people were golfing at the par three "Threetops" golf course. Plaintiff's group of golfers signed a "Golf Cart Rental Agreement" that included language waiving any claim for injuries and advising golfers of the dangers of the golf cart overturning on the resort's terrain, including hills, slopes, and grade changes. .

The Plaintiff's group was also advised to apply the brake when going down the hills and to use the gas pedal to release the brakes if they locked up. Plaintiff sustained injuries when he lost control of the golf cart and sued Treetops for negligence, gross negligence, premises liability, breach of contract, and fraud claims. Plaintiff subsequently appealed the trial court's Order granting Treetops' Motion for Summary Disposition.

On appeal, Plaintiff argued that the trial court erred in finding that the Golf Cart Rental Agreement was a valid release of liability and that Defendant was not grossly negligent. The Court rejected Plaintiff's arguments to invalidate the release, stating that a release does not need to be signed by the party being released if it clearly shows on its face that it was not intended to be signed by a representative of Defendant to be valid. Furthermore, the Court held that the release was knowingly made because the release referred to the condition of the land, including hills, slopes, and grade changes. Although Plaintiff was not presented with the release until after he paid for his round of golf, there was no evidence in the record that suggested Plaintiff would not have been able to receive a refund if he refused to sign the release or that Treetops pressured him into it.

Concerning gross negligence, the Court held that Treetops showed sufficient concern for the safety of its customers, with regular golf cart inspections and warnings. Moreover, there was no evidence in the record that the golf cart at issue was defective in any manner whatsoever. In light of these precautionary measures, there was insufficient evidence to establish that Treetops was grossly negligent, and the Court rejected Plaintiff's argument that Treetops violated industry standards because ignorance of and a failure to implement industry standards does not constitute gross negligence under Michigan law.

Although this is an unpublished opinion, this case presents a sound legal analysis from the Court of Appeals with respect to liability waivers and claims involving gross negligence.

 

  • Case Name: Andary v. USAA Casualty Insurance Company et. al. Court: Michigan Supreme Court Issued: July 31, 2023 INTRODUCTION On July 31, 2023, the Michigan Supreme Court issued its 5-2 decision...
    Published: 8/1/2023
  • The End of Open and Obvious as We Know it: Lugo Overruled Name: Kandil-Elsayed v F & E Oil, Inc. & Pinksy v Kroger Co. of Mich Court: Michigan Supreme Court Issued: July 28, 2023 INTRODUCTION...
    Published: 8/1/2023
  • A Return to Tolling: The Court of Appeals leaves PIP Insurers on Guard About Denials Name: Encompass Healthcare, PLLC v. Citizens Insurance Company Court: Michigan Court of Appeals Issued: November...
    Published: 12/20/2022
  • Name: Andary v. USAA Casualty Insurance Company et. al. Court: Michgian Court of Appeals Issued: August 25, 2022 INTRODUCTION The Michigan Court of Appeals recently issued an opinion in Andary v....
    Published: 8/29/2022
  • IME Conditions may Include Video Recording CASE INFORMATION Name: Schaumann- Beltran v. Gemmete Court/Judge: Michigan Supreme Court – Order on Application for Leave to Appeal. Issued: May 13, 2022...
    Published: 6/23/2022
  • MICHIGAN NO-FAULT UPDATE: CLAIMS HANDLING AFTER AN IME Name: RAMIREZ C. HOME-OWNERS INSURANCE COMPANY Court/Judge: Michigan Court of Appeals, unpublished Per Curiam Opinion of Judge Boonstra, Judge...
    Published: 3/14/2022
  • Premises Liability Update: The Uncertain Future of Lugo CASE INFORMATION Name: AHLAM KANDIL-ELSAYED v. F&E OIL, INC. Court/Judge: Michigan Supreme Court – Order on Application for Leave to...
    Published: 2/9/2022
  • THE RECREATIONAL LAND USE ACT DOES NOT EXTEND TO MAN-MADE CHANGES TO LAND CASE INFORMATION Name: DOREEN ROTT v. ARTHUR ROTT Court/Judge: Michigan Supreme Court – Opinion by Justice WELCH and...
    Published: 8/28/2021
  • PREMISES LIABILIY: NO STATUTORY CLAIMS FOR NON LESSEES CASE INFORMATION Name: Walker v. Hela Mgmt, LLC Court/ Judges: Michigan Court of Appeals –Unpublished Per Curium Opinion by Judges...
    Published: 8/28/2021
  • Open and Obvious Hazards While Entering the Workplace may be Effectively Unavoidable CASE INFORMATION Name: ESTATE OF DONNA LIVINGS v SAGE'S INVESTMENT GROUP, LLC Court/ Judge: Michigan Supreme...
    Published: 7/9/2021
  • PIP Update: Supreme Court Sets Limitations on Insurer's Remedy of Rescission for Post-Application Fraud CASE INFORMATION Name: Meemic Ins. Co. v. Fortson et al. Court/Judge: Michigan Supreme Court...
    Published: 9/18/2020
  • Replacement Cost Does Not Include the Diminution in Value for PPI Claims under the No Fault Act CASE INFORMATION Name: JF Warren, LLC et al. v. Consolidated Ins. Co. , Docket No. 347762 Court/Judge:...
    Published: 7/30/2020
  • No Business Interruption Coverage During COVID-19 Shutdowns CASE INFORMATION Name: Gavrilides Management Co. v Michigan Insurance Co. , Docket No. 20-000258-CB Court/Judge: 30 th Circuit Court,...
    Published: 7/30/2020
  • Michigan Updates to Commerical General Liability Coverage "Accident" is expanded to encompass the insured's work damaged by a subcontractor CASE INFORMATION Name: Skanska USA Bldg. Inc. v. M.A.P....
    Published: 7/24/2020
  • Tobin Dust joins O'Neill, Wallace & Doyle, P.C. We are pleased to announce that Tobin Dust of Dust & Campbell, P.C., will be joining our firm effective November 1, 2019. The move will provide...
    Published: 9/26/2019
  • THE GOOD AND THE BAD… AS WE SEE IT FOR THE 2019 AMENDMENT TO THE MICHIGAN NO-FAULT ACT INTRODUCTION The newly amended No-Fault Act made significant changes to Michigan auto-insurance requirements....
    Published: 7/31/2019
  • Negligence (Minors) Update-- " Child's Play ": Court of Appeals Upholds the Reasonable 13-year-old Standard Set Forth in Ray v. Swager. Abuaita v Abuaita Introduction In a negligence action,minors...
    Published: 6/13/2019
  • Premises Liability Update--Court of Appeals Expands Defenses for Landlords to Statutory Slip-and-Fall Claims Y ork v Berger Realty Group, Inc. Introduction The Open and Obvious Doctrine is not a...
    Published: 6/13/2019
  • No-Fault Update—Mayor of Detroit Pursues Action to Declare the Michigan No-Fault Act Unconstitutional Duggan v. McPharlin Introduction Detroit Mayor Mike Duggan filed an action to have the...
    Published: 4/26/2019
  • No-Fault Update--The Michigan Court of Appeals Reviews Voluntary Payments of an Insurer as Admissions of an Injury Ross v Dyment , Dkt. No. 341273 (Mich Ct. App. March 14, 2019) Introduction...
    Published: 4/18/2019
  • No-Fault Update—The Michigan Court of Appeals Reviews Balance Bills and Fraud in Personal Injury Protection ("PIP") Claims The Michigan Court of Appeals recently issued two opinions impacting...
    Published: 3/15/2019