Burnett v. City of Adrian , 414 Mich. 448 ( 1982 )

Ryan, J.

This is an appeal from a Court of Appeals affirmance of a summary judgment dismissing the plaintiffs’ case for failure to state an actionable claim under the so-called recreational use statute, MCL 300.201; MSA 13.1485. The only question before us is whether the plaintiffs have alleged facts sufficient to state a claim for gross negligence or willful and wanton misconduct.¹ Our task is thus limited because the recreational use law authorizes recovery in the circumstances of this case only if gross negligence or willful and wanton misconduct is shown.

We agree that no actionable claim for gross negligence is made out in the plaintiffs’ pleadings because there is no allegation therein of the defendant’s subsequent negligence. See Gibbard v Cursan, 225 Mich 311; 196 NW 398 (1923).

We also agree that the plaintiff has alleged facts sufficient, if barely so, to make out a case for willful and wanton misconduct as that concept is defined in Gibbard, supra.

This separate opinion is written, however, because we do not subscribe to much of the analysis in our brother’s opinion, particularly his assessment of the cases of Thone v Nicholson, 84 Mich App 538; 269 NW2d 665 (1978), and Thomas v Consumers Power Co, 394 Mich 459; 231 NW2d 653 (1975).

The interlocutory posture of this litigation suggests that this appeal is an inappropriate opportunity to attempt to reconcile the confused and disparate pronouncements of Michigan’s appellate judiciary concerning the concepts of gross negligence and willful and wanton misconduct. To accomplish that desirable task, it is necessary, we think, to disown much of what has been written in this Court and in the Court of Appeals in earlier cases, and to enunciate a simple and easily understood test defining both gross negligence and willful and wanton misconduct. The more appropriate occasion for that effort will be the time when a case is before us upon a factual record adequate to enable those who will read our pronouncement to better understand it because of the illuminating reflection of the factual and legal context in which it is said. That cannot and ought not to be done on an appeal from the grant of a motion for summary judgment for failure to plead an actionable claim under GCR 1963, 117.2(1).

Until such record is made and presented, we should be guided, indeed bound, as the lawyers before us are, by this Court’s last best effort to define gross negligence and willful and wanton misconduct. That effort was last accomplished best, even if not in the context of the recreational use act, in Gibbard, supra. Gibbard is a well-reasoned case whose three-element formula for determining willful and wanton misconduct, however, is poorly stated.² If the three-prong test is read in the context of the instructive analysis which precedes it in Gibbard, it becomes evident that the rule of the case is that willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does. Willful and wanton misconduct is not, as the Gibbard Court observed, a high degree of carelessness. The poorly phrased three-prong test for willful and wanton misconduct in Gibbard is cast entirely in language of ordinary negligence until, in the third element, it is said that it must be shown that an injury "is likely”. It is in that concept — the notion that in the circumstances of a given case the injury is probable, or to be expected, or likely — that is found the requisite indifference to harm tantamount to a willingness that it occur, if not a specific intent that it does, which distinguishes willful and wanton misconduct from ordinary negligence.

Upon careful examination of the allegations of the plaintiffs’ fourth amended complaint, conceding the truth of all the well-pleaded allegations and resolving all inferences properly to be drawn therefrom in plaintiffs’ favor, we are satisfied that, on the whole, the plaintiff has alleged, if barely, facts essentially equivalent to an assertion that thé City of Adrian, in its acts and omissions, was indifferent to the likelihood that catastrophe would come to a member of the public using the lake, an indifference essentially equivalent to a willingness that it occur.

We do not find the language of the three-prong test of Gibbard a satisfactory expression of the standard to be used for identifying willful and wanton misconduct, and do not think it is a faithful summarization of the analysis which it is intended to encapsulate. We would describe the test differently, but only upon a fully developed factual record.

Fitzgerald, C.J., and Kavanagh and Coleman, JJ., concurred with Ryan, J.

1 The nuisance issue raised by the appellant, and addressed in part IV of our brother’s opinion, is but an aspect of this issue. We concur in his resolution of it.

2 The three-element formula which Justice Clark adopted to summarize his analysis of the difference between a high degree of negligence and willful and wanton misconduct was taken, with attribution of course, from a legal encyclopedia:

"According to note, 69 LRA 516, and text, 20 RCL, p 145, the elements necessary to characterize the injury in the case at bar as wilfully inflicted are:

" '(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.’ ” Gibbard v Cursan, 225 Mich 322.