Xu v. Hou6/24/2003
FOR PUBLICATION
In this wrongful death action, plaintiff Junyi Xu, as personal representative for the estate of decedent Ning Yan, appeals as of right the trial court's entry of two orders granting summary disposition in favor of defendant. We affirm in part, reverse in part, and remand.
I.
In February 1999, Ning Yan went to defendant's fitness center to use a one-week complimentary pass. Yan visited the fitness center on February 16, and 18, 1999. Each time he was required to sign-in and did so. At the top of the sign-in sheet was a paragraph which purportedly constituted a liability release.
On February 18, 1999, Yan was using one of the treadmills when he fell off of it and hit his head. The head injury Yan sustained was severe, and he died on March 12, 1999. The parties dispute the circumstances of Yan's fall. Plaintiff contends that Yan stumbled while jogging and the belt of the treadmill threw him back into the wall and/or the window ledge which was only 2 ½ feet behind him. Defendant asserts that Yan was ill and fell down, hitting his head on the floor. No one actually saw Yan hit the wall, floor, or window ledge.
On July 22, 1999, plaintiff filed this suit alleging ordinary negligence by defendant, loss of consortium, and wrongful death. Defendant filed a motion for summary disposition under MCR 2.116(C)(7), and argued that the liability release at the top of the sign-up sheet that Yan signed precluded any claims of ordinary negligence against defendant. Following a hearing on May 10, 2000, the trial court agreed with defendant, and on May 19, 2000, granted defendant's motion as to the ordinary negligence claim, and granted plaintiff leave to file his second amended complaint, which was actually filed on April 5, 2000, without the court's permission, and alleged a claim of gross negligence against defendant.
In July 2001, defendant renewed her motion for summary disposition to dismiss plaintiff's claims of gross negligence and wrongful death. On September 12, 2001, following a hearing, the trial court concluded that reasonable minds could not differ; there was insufficient evidence to support a claim of gross negligence. Therefore, because the wrongful death claim was derivative, both claims failed. On September 24, 2001, the trial court entered an order granting defendant summary disposition on plaintiff's remaining claims pursuant to MCR 2.116(C)(10).
II.
Summary disposition against a plaintiff's complaint is proper if there is a valid release of liability between the parties. MCR 2.116(C)(7). A motion under MCR 2.116(C)(10) tests the factual support for a claim. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). We review a trial court's summary disposition decision de novo. Id.
When reviewing a motion for summary disposition due to a claim being barred under MCR 2.116(C)(7), an appellate court accepts all of the plaintiff's well-pleaded allegations as true, and construes them most favorably to the plaintiff, unless specifically contradicted by documentary evidence. Sewell v Southfield Public Schools, 456 Mich 670, 674; 576 NW2d 153 (1998). It must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted, and the motion should have been granted only if no factual development could have provided a basis for recovery. Skotak v Vic Tanny Int'l, Inc, 203 Mich App 616, 617; 513 NW2d 428, modified on other grounds Patterson v Kleiman, 447 Mich 429 (1994).
Similarly, when deciding a motion for summary disposition under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissi
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