Feliciano v. Department of Natural Resources

158 Mich. App. 497 (1987) 405 N.W.2d 178 FELICIANO v. DEPARTMENT OF NATURAL RESOURCES Docket No. 84822. Michigan Court of Appeals. Decided March 16, 1987. James F. Finn and Thomas A. Ricca, of Counsel, for plaintiff. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Wallace T. Hart, Assistant Attorney General, for defendant. *499 Before: M.J. KELLY, P.J., and D.E. HOLBROOK, JR., and T.M. GREEN,[*] JJ. PER CURIAM. Plaintiff appeals as of right from an order of the Court of Claims granting the motion of defendant State of Michigan, Department of Natural Resources for summary judgment on the ground that plaintiff's complaint failed to alleged sufficient facts to show gross negligence for a viable cause of action under the recreational use statute, MCL 300.201; MSA 13.1485. We reverse the trial court's grant of summary judgment in defendant's favor and remand to allow plaintiff to amend her complaint to allege gross negligence. On July 19, 1978, fifteen-year-old Elizabeth Feliciano drowned while on a field trip with an arts and crafts group at Silver Lake State Park. Decedent's mother filed this wrongful death action on December 1, 1978, alleging that decedent drowned as a direct and proximate result of the negligence of the defendants, the DNR and the three individual lifeguards who were working at the beach when the drowning occurred. On December 8, 1978, defendants filed a motion for summary judgment, alleging that plaintiff's complaint failed to set forth a factual basis constituting a recognized exception to defendants' immunity from tort liability. Defendants' motion was subsequently granted by the Court of Claims. This Court reversed in Feliciano v Dep't of Natural Resources, 97 Mich App 101; 293 NW2d 732 (1980), on the basis that operation of a swimming and bathing area was not a governmental function to which the defense of immunity applied. The case was remanded to the Court of Claims for trial. Thereafter, the individual *500 defendants were dismissed from the proceedings. On June 22, 1984, defendant DNR was granted leave to amend its answer to include as an affirmative defense the recreational use statute. On March 6, 1985, defendant filed a motion for summary judgment contending that plaintiff's claim was barred by both the recreational use statute and the doctrine of governmental immunity as outlined in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). The Court of Claims denied the motion with respect to the governmental immunity defense on the basis that this Court's holding in the earlier Feliciano decision constituted the law of the case. The court granted the motion with respect to the recreational use statute defense on the basis that plaintiff's complaint failed to allege sufficient facts to establish gross negligence. On appeal plaintiff contends that the trial court erred in granting defendant summary judgment without providing plaintiff an opportunity to amend her complaint to add allegations of gross negligence. When a party seeks leave of the court to amend a pleading, leave shall be freely given when justice so requires. MCR 2.118(A)(2). When deciding a motion for summary judgment or summary disposition which alleges failure to state a valid claim or defense or that no genuine issue as to any material fact exists, the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified. MCR 2.116(I)(5). Entry of a grant of summary judgment does not preclude amendment of the complaint. See Midura v Lincoln Consolidated Schools, 111 Mich App 558, 561; 314 NW2d 691 (1981). Pursuant to MCR 7.216(A)(1) this Court *501 and the Supreme Court may also grant leave to amend. MCR 2.118 and its predecessor GCR 1963, 118.1 were designed to facilitate the amendment of pleadings except where prejudice to the opposing party would result. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973). The Court in Fyke & Sons held that denial of leave to amend is justified only "for particularized reasons": "In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given'. Foman v Davis, 371 US 178, 182; 83 S Ct 227, 230; 9 L Ed 2d 222, 226 (1962)." [Fyke & Sons, supra, p 656.] "Prejudice" refers to matters which would prevent a party from having a fair trial, or matters which a party could not properly contest, e.g., when surprised. It does not refer to the effect on the result of the trial otherwise. Fyke & Sons, supra, p 657. The question of prejudice is presented by the time at which the amendment is offered rather than by the substance of what is offered. Id., pp 657-658. The possible prejudice must stem from the fact that the new allegations are offered late rather than in the original pleadings and not from the fact that the opponent may lose his case on the merits if the amendment is allowed. Id., p 658. Here defendant was allowed to amend its answer, 2½ years after commencement of the action, to include the recreational use statute as an affirmative *502 defense and thereafter brought a motion for summary judgment on that basis. In her brief in response to defendant's motion and at the motion hearing, plaintiff requested that she be allowed to amend her complaint to allege gross negligence. Under MCR 2.116(I)(5) plaintiff should have been allowed to so amend. Undue prejudice to defendant by virtue of the amendment would not occur. Defendant was allowed to amend its answer to include the act as a defense and should not have been surprised by plaintiff's desire to amend her complaint to accommodate defendant's theory. Hence plaintiff should have been granted leave to amend. In view of our disposition of this issue, we need not review plaintiff's alternative claims of error. Reversed and remanded to allow plaintiff to amend her complaint. M.J. KELLY, P.J. (concurring). I concur. I write separately because of my partially concurring and dissenting opinion in Veeneman v Michigan, 143 Mich App 694, 702-703; 373 NW2d 193 (1985), lv gtd 424 Mich 876 (1986), which has no precedential value given the Supreme Court's order granting leave to appeal. See People v Phillips, 416 Mich 63, 74-75; 330 NW2d 366 (1982). In Veeneman, I reserved judgment on whether the recreational use act applies to state-owned lands. I now agree that it does. McNeal v Dep't of Natural Resources, 140 Mich App 625; 364 NW2d 768 (1985), Veeneman v Michigan, supra, and Schiller v Muskegon State Park, 153 Mich App 472; 395 NW2d 75 (1986). In Veeneman, I also joined with the majority in concluding that the recreational use statute does not provide immunity from ordinary negligence where a state park charges annual and daily *503 motor vehicle fees. We were off the mark. Following the decision in Veeneman, however, another panel of this Court considered the same question and arrived at a different conclusion. See Schiller v Muskegon State Park, supra. I now agree with the position taken in Schiller and by the majority in the instant case and conclude that payment of the state park motor vehicle entry fee does not constitute sufficient consideration under the recreational use statute to deprive state parks of the immunity otherwise guaranteed under that act. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.