C Raphaela Allen v. Spring Loaded I LLC

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RAPHAELA ALLEN, Legal Guardian of MACK UNPUBLISHED
KELLY, III, September 22, 2022
Plaintiff-Appellant,
v No. 357231
Oakland Circuit Court
SPRING LOADED I, LLC, LC No. 2019-177801-NO
Defendant-Appellee.
Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.
RONAYNE KRAUSE, P.J. (concurring)
I concur in the result reached by the majority. However, I do so on the basis of slightly
different reasoning.
First, although the Trampoline Court Safety Act, MCL 691.1731 et seq., bars claims for
injuries arising out of the risks necessarily inherent in trampolining or in properly-maintained
trampoline courts, I do not believe it bars claims based upon improperly installed or maintained
trampoline court equipment. The majority correctly observes that participants in recreational
activities inherently accept the risks inherent in that activity. Ritchie-Gamester v City of Berkley,
461 Mich 73, 87; 597 NW2d 517 (1999). Furthermore, MCL 691.1736 outlines some of the
specific risks inherent in trampolining that participants must accept. However, Trampoline court
operators are expressly required to comply with certain safety design and maintenance standards.
MCL 691.1733(b)-(c). The risks inherent in an activity do not necessarily include risks caused by
improper design or maintenance of that activity’s facilities. Because plaintiff has alleged improper
design or maintenance, I would not hold that her claim is necessarily barred by the Trampoline
Court Safety Act.
Furthermore, I find it necessary to address plaintiff’s spoliation of evidence argument. The
merits of that argument are somewhat unclear. On the one hand, it is difficult to say that an estate
sale is an entirely voluntary act, and the estate sale occurred after discovery had closed.
Conversely, the estate sale occurred after the trial court specifically informed the parties that it
wanted photographs of the actual trampolines, implicitly making access to the actual trampolines
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a matter of concern to both parties. At a minimum, it is not obvious that plaintiff should not be
entitled to an adverse inference because of the loss of the trampoline equipment that was in
defendant’s possession.
However, pursuant to Trupiano v Cully, 349 Mich 568, 570; 84 NW2d 747 (1957), the
party with the ultimate burden of proof cannot establish a claim on the basis of such an inference
alone. In response to a motion for summary disposition, the non-moving party may not rely on a
mere promise to produce evidence in support of a claim at trial, but rather must present evidence
or specific facts establishing that there is a genuine question of material fact for trial. Maiden v
Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). In other words, plaintiff was required
to present affirmative proof in addition to any adverse inference showing that the trampoline court
was improperly designed or maintained. In response to questioning from the trial court, however,
plaintiff largely refused to do so, pledging that she would produce such evidence at trial, seemingly
in the form of rebuttal witnesses. Otherwise, she presented only an unsupported design-defect
theory based on speculation, and she also presented what the trial court reasonably described as an
untenable res ipsa loquitur argument. Where there are risks necessarily inherent in an activity, the
fact that a participant sustains an injury is not, by itself, enough to show that there was a defect in
the premises.
I do not condone the loss of the trampoline court equipment. Nevertheless, because
plaintiff was obligated to present affirmative proofs in support of her claims irrespective of her
entitlement to an adverse inference, and because plaintiff failed to establish that she had any such
affirmative proofs in response to defendant’s motion for summary disposition, I am constrained to
conclude that summary disposition was correctly granted in defendant’s favor.
/s/ Amy Ronayne Krause
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