THE RECREATIONAL LAND USE ACT DOES NOT EXTEND TO MAN-MADE CHANGES TO LAND
Name: DOREEN ROTT v. ARTHUR ROTT
Court/Judge: Michigan Supreme Court – Opinion by Justice WELCH and Concurrence in part and Dissent by Justice VIVIANO.
Decided July 30, 2021
The purpose of Recreational Land Use Act (RUA) was "to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." When properly invoked, MCL 324.73301(1) immunizes the "owner, tenant, or lessee of the land" from liability for injuries occurring on the land from "any other outdoor recreational use"; "unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee." As a matter of first impression, the Court interpreted the catchall phrase "any other outdoor recreational use" of the RUA to create a two-factor test, wherein the RUA is applicable only to recreational activities that: (1) traditionally could only occur outdoors and (2) can be engaged in by merely having access to the land without needing to change it.
This case involved injuries resulting from a zip line on the Defendant's property, and whether the RUA applied to bar liability for same. The Court's adoption of the two factors comes from their interpretation of the activities expressly listed in the statute. The listed activities—fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, and snowmobiling—are things that traditionally could only be performed outdoors and that one can enjoy with nothing more than access to the land or water. While enjoyment of the listed activities may be enhanced or accompanied by modifications to the land, such as a zip line, this modification is not a prerequisite to engaging in an activity on the land. Additionally, some of the listed activities require or imply that recreational users bring their own equipment, vehicle, or other personal property (for example, a tent or motorcycle), but this is not a uniform requirement. Bringing equipment does not require that the user modify the land. The Court says this construction is consistent with the longstanding view that "the purpose of the RUA is to encourage owners of private land to make their land available to the public".
In other words, the RUA was intended to increase Michigander's access to privately owned lands, so the lands could be used for certain forms of recreation by decreasing a landowner's exposure to liability. The RUA was not intended to shield landowners from all liability from every form of recreation that could conceivably occur outdoors. The Court found that zip lining itself does not constitute "any other outdoor recreational use" as that phrase is used in the RUA because zip lining meets only one of the two unifying characteristics that have been identified. Specifically, riding a zip line does not fit within these parameters because it requires, at a minimum, the construction of launching and stopping points/platforms and the rigging of a cable or wire to support riders.
Despite being an activity that traditionally could only be performed outdoors, zip lining is not an activity or land use that requires only access to the land to enjoy. One is required to construct zip-lining facilities or install zip-lining equipment on the land as a prerequisite to engaging in the activity. Critically, it is not the presence of an artificial construct itself that takes zip lining beyond the scope of the RUA; instead, it is the fact that zip lining cannot be performed without such modifications or enhancements to the land. Stated differently, it is not possible to use a zip line without installing human-made zip-lining equipment on the land, and this distinguishes the activity from any of those enumerated in MCL 324.73301(1). As such, these things must be installed onto the land (and may even become fixtures). In this context, a zip line is different than a hunting tree stand because a tree stand is not a prerequisite to engaging in hunting, even if it may enhance hunting.
Justice Viviano prepared a detailed concurrence/dissenting opinion, where he disagreed with the Majority that zip lining falls outside the RUA definition for "any other outdoor recreational use" based on the second factor. The Dissent notes that the Majority's Opinion essentially found man-made structures or modifications to the land do not prevent application of the RUA, if said modifications are not necessary for the outdoor activity. However, the Dissent also notes that if modifications are needed to engage in the activity, then even minor modifications can operate to exclude the activity from the RUA. While using a fishing dock, deer blind or man-made trail may fall under the RUA because one can engage in the activity without the artificial construct, the RUA would not extend to an activity of gliding along a rope tied to two trees.