Cheeseman v. Huron Clinton Metropolitan Authority , 191 Mich. App. 334 ( 1991 )

191 Mich. App. 334 (1991) 477 N.W.2d 700

CHEESEMAN
v.
HURON CLINTON METROPOLITAN AUTHORITY

Docket No. 118742.

Michigan Court of Appeals.

Decided May 14, 1991. Approved for publication October 1, 1991, at 9:10 A.M.

Law Offices of Benner & Bilicki (by William C. Harsha), for Mary Cheeseman.

Plunkett & Cooney, P.C. (by Christine D. Oldani and Frank W. Brochert), for Huron Clinton Metropolitan Authority.

Before: MARILYN KELLY, P.J., and HOLBROOK, JR., and MICHAEL J. KELLY, JJ.

PER CURIAM.

Defendant Huron Clinton Metropolitan Authority appeals as of right from a judgment entered in favor of plaintiff Mary A. Cheeseman, as next friend of Michael J. Cheeseman, a minor, for $17,500. We affirm.

Nine-year-old Michael Cheeseman was injured when his sled collided with a wooden post on one side of a sledding hill at Kensington Metro Park. The only issue that went to the jury was whether defendant's conduct constituted wilful and wanton MISCONDUCT. fOLLOWING A VERDICT FOR PLAINTIFF, DEFENDANT moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The judge denied the motion.

On appeal, defendant contends that plaintiff failed to establish a prima facie case of wilful and wanton misconduct sufficient to submit the case to the jury.

In order to establish wilful and wanton misconduct, the plaintiff must prove that the defendant (1) had knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) had the ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; and (3) omitted to use such care and diligence to avert the threatened danger when, to the ordinary mind, it would be apparent that the result would likely prove disastrous to another. Gibbard v Cursan, 225 Mich. 311, 322; 196 N.W. 398 (1923).

The conduct alleged must show an intent to harm or such indifference to whether harm will result as to be the equivalent. The indifference, if not intentional, is found in the notion that in a given case the injury is probable, likely, or to be expected. Burnett v City of Adrian, 414 Mich. 448, 455-456; 326 NW2d 810 (1982).

In this case, it is undisputed that defendant knew that when children sled, ordinary care and diligence must be used to avoid injury. It is also clear that defendant had the ability to avoid accidents by installing protective devices at minimal or no cost.

Lastly, there is evidence on the record which would indicate, to the ordinary mind, that defendant's failure to use care and diligence would result in injury. The park inserted bare posts along the edge of the sledding hill. The park ranger and winter sports supervisor, Lavern Long, stated that, although he knew of prior injuries, he was not concerned with finding out why the posts were not protected. He never considered investigating the feasibility of trying to protect sledders from going over the existing berm and colliding with the posts.

Given Long's supervisory position and his duty to protect the public from injury, the testimony establishes a prima facie case of the requisite indifference sufficient to go to the jury. Boggerty v Wilson, 160 Mich. App. 514, 522; 408 NW2d 809 (1987).

Affirmed.