Amicus Brief

Sheniece Ballard et al v Ypsilanti Township and Joann Brinker and Dave Cooper

Case Year: 1998
Case Forum: Michigan Supreme Court
Keywords: Governmental Tort Liability Act (GTLA), immunity
Amicus Counsel:

Christine Oldani | Mary Massaron Ross | Plunkett & Cooney | 243 W Congress Ste 800 | Detroit MI 48226-3260 | 313-965-3900

CoAmicus Parties:

Michigan Townships Association (MTA)


The problem presented to the Court is one of statutory construction. The question is whether the Recreational Use Act creates a statutory exception to the Governmental Tort Liability Act so that claims brought against a governmental entity,
which owns or leases a large undeveloped tract of land held open to the public for free, may proceed against the governmental entity under the provisions of the Recreational
Use Act, notwithstanding the separate and independent protections normally available under the Governmental Tort Liability Act. A harmonious reading of the Governmental Tort Liability Act and the Recreational Use Act is attainable here. both are liability-limiting statutes and thus serve the identical purpose of curtailing the potential liability of a certain class of defendants. One such potential class of defendants is that of governmental agencies which own or lease land. When a governmental agency which owns or rents or leases large tracts of land in a relatively natural state is named as a defendant, the goal of each liability-limiting statute is implicated and it is possible to serve both. Looking first to the terms of the Governmental Tort Liability Act, a court must determine if the plaintiffs case fits within any of the statutory exceptions enumerated there. If not, the case proceeds no further. Assuming, on the other hand, that the plaintiff can bring hislher case within a statutory exception to the broad grant of governmental immunity, then the case may proceed forward. In such an instance, the plaintiffs proofs must satisfy the strictures established by the Recreational Use Act.


Michigan Supremet Court:
We granted leave to appeal in this case to determine the effect of the recreational land use act (RUA), M.C.L. § 300.201; M.S.A. § 13.1485, on the governmental tort liability act (GTLA), M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1). The plaintiffs’ decedents drowned while wading in a man-made lake in a township park.
Specifically, we are asked to decide if the recreational land use act creates an exception to the governmental immunity created by the GTLA. We hold that the act was not intended to waive the state’s immunity from liability and does not create an exception to governmental immunity. Therefore, we affirm the result reached by the Court of Appeals, but for different reasons.

MSC requested LDF amicus brief? No

On July 4, 1991, plaintiffs’ decedents, Kassim Ballard, age eleven, and Anthony Wilkes, age twelve, were taken with a group of boys to Ford Lake Park in Ypsilanti by two adults, Haratio Blacksher and Veronica Mitchell. Although Mitchell told the boys not to go swimming, Blacksher allowed them to go into the water. The boys were nonswimmers. Ballard was in the water about ten to twelve feet out when he lost his footing. Wilkes went to help him and they both struggled. Blacksher went into the lake. All three went under. Blacksher emerged, but the boys drowned. Off the shore of the lake where the boys drowned, the water was twenty to twenty-four inches deep for a length of about twelve feet. At that point, the water turned mucky and the depth dropped to 3 1/212 feet. At thirteen feet from the shore, the water was six feet deep. Defendant township runs Ford Lake Park. A 1983 study of the lake noted the existence of hazardous drop-offs. [216 Mich.App. 545, 546-547, 549 N.W.2d 885 (1996).] The boys’ estates sued Ypsilanti Township and two park caretakers individually. The trial court denied Ypsilanti’s motions for summary disposition based on governmental immunity, and allowed the case to go to a
jury. The jury awarded $1 million to Ballard’s estate, and $400,000 to Wilkes’ estate reduced by twenty-five percent for comparative fault. The trial court denied motions for judgment notwithstanding the verdict and new trial. The Court of Appeals reversed, holding that the township was immune from liability. The panel held that the GTLA controlled because it had been more recently enacted than the recreational land use act. It reasoned that the Legislature was aware of the recreational land use act, but did not make an exception for it. Hence, it
did not intend to waive the state’s immunity from liability.

Case Number: 1997-03
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