             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


 JEFF TRECHA, as Next Friend of BRADLEY                                  UNPUBLISHED
 TRECHA,                                                                 March 5, 2020

                 Plaintiff-Appellant,

 v                                                                       No. 347695
                                                                         Genesee Circuit Court
 BRENDEN REMILLARD,                                                      LC No. 17-109425-NI

                 Defendant-Appellee.


Before: BORRELLO, P.J., and METER and RIORDAN, JJ.

PER CURIAM.

       In this recreational negligence action, plaintiff, as next friend of Bradley Trecha (Bradley),
appeals as of right the trial court’s order granting defendant’s motion for summary disposition.
We affirm.

                                         I. BACKGROUND

         Bradley and defendant were both on the same high-school tennis team. The team’s tennis
area consisted of several tennis courts, bounded by a large fence. Practice was held on
September 9, 2016, and, near its end, the team’s coach instructed the team to pick up tennis balls
from the ground and place them in a crate. About this time, defendant was finishing a practice
match. He lost the match and, out of frustration, pulled a tennis ball out of his pocket and hit it
behind him toward the fence, using an underhand motion to do so. Defendant did not look before
hitting the tennis ball. Bradley was standing near the fence—approximately ten to fifteen feet from
defendant—and was hit in the eye by the tennis ball defendant hit. Defendant stated that he would
not have hit the ball had he known that Bradley was standing so near and indicated that he
apologized to Bradley and got him an ice pack after he realized Bradley had been injured. The
parties dispute whether practice was “over” at the time Bradley hit the ball—in any event, the
team’s coach punished the team for the incident by requiring them to run sprints before dismissing
them.

       Bradley suffered severe injuries to his eye as a result of the incident. Plaintiff initiated this
action alleging that defendant’s actions were either negligent or grossly negligent. Defendant


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eventually moved for summary disposition, arguing that the applicable standard was
recklessness—not negligence—because the parties were coparticipants in a recreational activity
and that defendant’s conduct did not rise to the level of recklessness. Plaintiff opposed the motion,
arguing that ordinary negligence was the applicable standard because practice had ended by the
time of the injury and Bradley was not a coparticipant in the tennis match. The trial court granted
defendant’s motion under MCR 2.116(C)(10), concluding that Bradley and defendant were
coparticipants because they were on the same tennis team and they were both present during tennis
practice; that plaintiff’s injuries were foreseeable; and that defendant’s actions were not reckless.
This appeal followed.

                                           II. ANALYSIS

        “We review de novo a trial court’s grant or denial of summary disposition.” Tomra of
North America, Inc v Dep’t of Treasury, 325 Mich App 289, 293-294; 926 NW2d 259 (2018). “A
motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim,
and is appropriately granted when, except as to the amount of damages, there is no genuine issue
as to any material fact, and the moving party is entitled to judgment as a matter of law.” Id. at 294.

        To establish a prima facie case of ordinary negligence, a plaintiff must generally establish
three things: (1) the defendant owed a duty to the plaintiff (or in this case, plaintiff’s charge), (2)
the defendant breached that duty, (3) the plaintiff (again, his charge) suffered damages, and (4) the
damages were caused by the defendant’s breach of duty. Finazzo v Fire Equip Co, 323 Mich App
620, 635; 918 NW2d 200 (2018). Under ordinary-negligence principles, the defendant’s duty is
generally the societal duty to exercise ordinary care under the circumstances so as to avoid injury
to others. See Sherry v East Suburban Football League, 292 Mich App 23, 29-30; 807 NW2d 859
(2011).

         Our Supreme Court has recognized, however, that ordinary-negligence principles break
down in the context of recreational activities. “When people engage in a recreational activity, they
have voluntarily subjected themselves to certain risks inherent in that activity.” Ritchie-Gamester
v City of Berkley, 461 Mich 73, 87; 597 NW2d 517 (1999). “When one of those risks results in
injury, the participant has no ground for complaint.” Id. Therefore, respecting that recreational
activities generally suspend the civil rules of common life, our Supreme Court—consistent with
the majority of similar jurisdictions—has adopted a standard requiring coparticipants in
recreational activities to refrain from reckless misconduct. Id. at 89. The reckless-misconduct
standard, however, “only applies to injuries that arise from risks inherent to the activity.” Bertin
v Mann, 502 Mich 603, 609; 918 NW2d 707 (2018). “In this context, the assessment of whether
a risk is inherent to an activity depends on whether a reasonable person under the circumstances
would have foreseen the particular risk that led to injury.” Id. at 619.

        We agree with the trial court that reckless-misconduct is the appropriate standard to judge
plaintiff’s claim. Plaintiff argues that defendant and Bradley were not coparticipants in a
recreational activity—and therefore that the standard could not be recklessness—because practice
was over at the time of the injury. As we must when reviewing a trial court’s grant of summary
disposition, we credit plaintiff’s assertion that practice had ended by the time of the injury.
Nevertheless, we cannot conclude that a coach’s conclusion of “practice” defines the scope of the
recreational activity. This jurisdiction has consistently rejected attempts to judicially police the

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boundaries of recreational activities. See id. Rather, this jurisdiction defines the recreational
activity by the risks that are reasonably foreseeable in undertaking it. Id. In this context, the “risk
must be defined by the factual circumstances of the case—it is not enough that the participate
could foresee being injured in general; the participant must have been able to foresee that the injury
could arise through the ‘mechanism’ it resulted from.” Id. at 620.

        Plaintiff does not argue that being hit with a tennis ball is not a reasonably foreseeable risk
of playing tennis. Plaintiff argues, rather, that this risk was not foreseeable at the time Bradley
was injured, i.e., after practice. We disagree. First, we note, as the trial court did, that Bradley
was injured in the fenced tennis court area. The very nature of tennis is that tennis balls, for better
or worse, will leave the actual bounds of the court, such that a person standing near, but not on,
the court risks being hit from a ball. This risk comes not only from tennis balls being hit to score
points, but also tennis balls hit as practice or, in this case, out of frustration—especially when the
sport is being undertaken competitively by high-school students. See id. at 621 (noting that the
factual circumstances that define the risk “include the general characteristics of the participants,
such as their relationship to each other and to the activity”). Moreover, in a team practice with
multiple participants playing in close proximity, it is reasonable to foresee that participants will
cease hitting tennis balls at different times, even when the coach says that practice is over. Indeed,
the record in this case shows that defendant hit the ball in question immediately after his match
ended. The team’s coach testified that he had to repeatedly remind players not to hit balls into the
fence, indicating, as the trial court found, that the practice was fairly common. Under these
circumstances, we must conclude that a reasonable participant could have foreseen being hit with
a tennis ball while in the bounded tennis area near the fence, about the time that other participants
were concluding matches, despite the fact that practice may have ended. Accordingly, we agree
with the trial court that the reckless-misconduct standard applied to plaintiff’s claim.

       We also agree with the trial court that no question of fact exists whether defendant acted
recklessly in hitting the tennis ball.

               One who is properly charged with recklessness or wantonness is not simply
       more careless than one who is only guilty of negligence. His conduct must be such
       as to put him in the class with the wilful doer of wrong. The only respect in which
       his attitude is less blameworthy than that of the intentional wrongdoer is that,
       instead of affirmatively wishing to injure another, he is merely willing to do so.
       The difference is that between him who casts a missile intending that it shall strike
       another and him who casts it where he has reason to believe it will strike another,
       being indifferent whether it does so or not. [Behar v Fox, 249 Mich App 314, 319;
       642 NW2d 426 (2001) (internal citation omitted).]

The record evidence in this case shows that defendant, out of frustration for losing the match, hit
a ball underhand at the fence without looking to see who was there. Although defendant’s actions
were certainly ill-advised, we cannot conclude that this conduct amounts to a willful indifference
to harm. The action happened at the immediate conclusion of a match and seemingly without any
thought. Defendant testified that he did not know that Bradley was standing in the path of the
tennis ball and that, had he known differently, he would not have hit the ball in that direction.
Indeed, defendant apologized to Bradley after the injury and grabbed an ice pack for him.
Defendant’s behavior certainly appears to be careless, but it is not the type of behavior that

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indicates the indifference to harm necessary to show reckless misconduct. Accordingly, we
conclude that the trial court properly granted defendant’s motion for summary disposition.

      Affirmed.



                                                       /s/ Stephen L. Borrello
                                                       /s/ Patrick M. Meter
                                                       /s/ Michael J. Riordan




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