Tubing injuries result in unjustified dismissal of victims' claims against government actor
Tammie Holz and Nancy Nowiski were badly hurt while tubing at Silver Mountain, a joint operation of the City of St. Ignace and Moran Township. Holz's tube inexplicably stopped mid-hill and Nowiski collided with her at high speed. The injured people filed claims against the entities that operate the tubing hill and its manager. They claimed that after numerous prior injuries, the manager was "grossly negligent" in failing to take appropriate precautions including stationing an employee at the top of the hill to maintain safe spacing between tubers.The Mackinac County judge ruled that the hill manager, Jake Tamlyn, was the "highest executive official" at a level of government and therefore absolutely immune from liability. Since the municipal entities are also immune from negligence liability under these circumstances, the cases of the two "extensively" injured women were dismissed. They appealed.
On appeal the high court reversed the absolute immunity ruling, noting that while Tamlyn was the highest executive of the tubing hill, he was not the governing executive of a level of government. He operated an agency of the municipalities, not a municipality, itself. Nevertheless, the Court upheld the dismissal of the two injury cases. After extensive rationalization, including reference to operating a tubing hill "on a limited budget," it held that the manager owed no duty to respond to prior injuries or to maintain an employee stationed at the top of the hill.
We have successfully pursued claims arising out of unsafe tubing operations in the past, and established safety standards make it clear that a "starter" or regulator at the top of the hill is normal practice and absolutely essential. The reviewing court glossed over this routine safety precaution by suggesting there is no need to "regulate patrons' spacing down the hill" since "any reasonable person should be aware of the possiblity of injury when two tubes collide and should know to maintain an appropriate distance between tubes." While that may be true, it does not explain how the preceding tuber can protect herself from the foreseeable negligence of someone who leaves the top of the hill too soon after her: the hilltop regulator is there to protect downhill tubers from the negligence of over-eager followers.
The Court also suggested "that defendant allowed employees to briefly avoid the cold reflects the practical recognition that employees should not need to supervise adults at all times." Frankly, if that is the case, then we don't need security details at concerts or football games, don't need added police protection for Festivals and parades, don't need security checks at the airport or police road patrols, period. All of these "regulators" are there to protect innocent people from foreseeable unsafe actions of other adults and to "regulate" unsafe actions by adults.
If, in fact, it is not reasonable to expect the sponsor of an activity to protect patrons from the reasonably foreseeable negligence of other adults, then we have essentially granted complete immunity to all commercial activity and every person engages with the public at his or her own risk. That simply isn't our law, in theory: under long-standing Michigan jurisprudence, if you invite people to partake of a sponsored activity, you owe a duty of reasonable care to the invited participants. The duty to take reasonable precautions to address foreseeable risks applies even if you are operating with "limited resources" and even when your employees desire to "briefly avoid the cold." If you can't adequately staff a sponsored activity to provide reasonable protection from foreseeable injuries, the activity should be curtailed or regulated. If it isn't, it [or its insurer] ought to bear the consequences of its' share of fault.
We don't know if the manager's actions meet the higher threshold of "gross negligence" required to avoid immunity. We do know that the clerk who wrote this opinion on behalf of the Court of Appeals' panel delved far into public policy issues that were not essential for, or appropriate to, an analysis of the "willfull and wanton" misconduct by the manager.