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STATE OF MICHIGAN
COURT OF APPEALS


ROCHEL COHEN, a/k/a RACHEL COHEN, and DANIEL COHEN, Plaintiffs-Appellees, v GREAT LAKES LIVE STEAMERS, INC., Defendant-Appellant.

UNPUBLISHED March 6, 2008

No. 275190 Oakland Circuit Court LC No. 2006-072161-NO

ROCHEL COHEN, a/k/a/ RACHEL COHEN, and DANIEL COHEN, Plaintiffs-Appellees, v GREAT LAKES LIVE STEAMERS, INC., Defendant-Appellant. No. 275801 Oakland Circuit Court LC No. 2006-072161-NO

Before: Gleicher, P.J., and O'Connell and Kelly, JJ. PER CURIAM. In these consolidated appeals, defendant appeals by leave granted two circuit court orders, the first denying its motion for summary disposition pursuant to MCR 2.116(C)(10), and the second striking its expert witness, Bradley Cook. We affirm the circuit court's denial of summary disposition, but reverse and remand with regard to the order striking Cook. I. Facts and Proceedings Defendant owns and operates a miniature (1/8th-scale) railroad located at Starr Jaycee Park in Royal Oak. Park visitors are permitted free rides on the trains, which travel around the park at speeds of five- or six-miles per hour. Defendant's representatives control passenger seating on the train cars, drive the locomotives, and serve as the train conductors.

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Plaintiff Rochel Cohen and her family visited the Starr Jaycee Park on August 7, 2005, and decided to take a ride on defendant's railroad.1 Defendant's representative directed plaintiff, who weighed 230 pounds, to sit on the rear seat of a gondola-style railroad car. Plaintiff's daughter, who weighed 140 pounds, sat on the forward seat, and her 30-pound son sat on the floor of the gondola car, in front of both women. Plaintiff recounted at her deposition that about halfway through the short train ride, she felt the railroad car "just flipping," and it then "disconnected" from the rest of the train. She and her children tumbled out of the car, landing on the grass. Plaintiff alleged that she sustained a serious neck injury during this accident. Robert Winkel, the train conductor that day, occupied the car directly behind plaintiff and her children. Winkel saw plaintiff's gondola car "vibrating," which he attributed to its front wheels being off the track ("derailed"). According to Winkel, plaintiff's car was "[r]iding on the ties."2 Winkel yelled at the engineer to stop the train. Before the train came to a complete halt, however, the derailed car began to tip. Within moments, Winkel recalled, "our passengers were on the ground." Leonard Barry, the train's engineer, could not specifically remember plaintiff's accident, but suggested in his deposition that improper weight distribution could have caused the train derailment. Barry testified that defendant's representatives have the responsibility to assure "that people load in the cars properly," and must avoid "put[ting] the heavy person in the back and a little, tiny kid up in front." According to Barry, "[i]f there's too much weight on the rear" of a gondola car, the front of the car may "pick up," leading to a front wheel derailment. In answer to a question posed by defense counsel, Barry opined that proper weight distribution of passengers weighing 200, 130 and 30 pounds, would necessitate seating the heaviest passenger in the middle of the gondola car, and not in the back. After the close of discovery, defendant moved for summary disposition pursuant to MCR 2.116(C)(10), on multiple grounds. Defendant first argued that plaintiffs' cause of action sounded in premises liability. According to defendant, any dangers posed by the park railroad qualified as open and obvious, and thus it owed no duty to protect plaintiff from injury. Defendant alternatively alleged that plaintiffs failed to present facts establishing defendant's negligence, and that they could not prove either cause in fact or proximate causation. Defendant further contended that the recreational land use act3 barred plaintiffs' claims, or that a recklessness standard of care applied.4

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Plaintiff Daniel Cohen's claims are derivative of the claims made by Rochel Cohen. The singular term "plaintiff" thus refers to Rochel only.
2 3 4

The railroad ties are the beams that lay across a railroad bed to secure the rails. MCL 324.73301. Defendant has abandoned the last two claims on appeal.

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Plaintiffs disputed that this case involved premises liability, and argued that Barry's testimony concerning proper weight distribution procedures during the train's loading process created a question of fact regarding defendant's negligence, cause in fact, and proximate causation of the accident. In support of their argument, plaintiffs emphasized Barry's deposition declaration that seating the heaviest passenger in the rear of the gondola car could cause a derailment. Defendant replied by producing an affidavit signed by Cook, a licensed professional engineer. In his affidavit, Cook opined that the weight distribution within plaintiff's railroad car did not cause the car to derail or to tip, and that "some movement Mrs. Cohen made was the likely reason the car tipped over." Plaintiffs responded by urging the circuit court to disregard Cook's opinions because defendant failed to timely identify Cook as an expert witness, and Cook had not been deposed. The circuit court denied summary disposition, finding that Barry's testimony created a question of fact regarding whether "[d]efendant was negligent in the seating arrangement." Plaintiffs then moved to strike Cook as a trial witness. Plaintiffs asserted that although defendant named Cook as a "potential" expert witness in its original witness list, it neglected to timely supplement its discovery responses to reveal Cook's anticipated trial testimony. Defendant countered that it did not "retain" Cook until after plaintiffs offered the improper weight distribution theory in opposition to summary disposition. The circuit court granted plaintiffs' motion to strike Cook "[f]or the reasons stated by plaintiff[s]," and also emphasized the "imminent" trial date. II. Summary Disposition Standard of Review This Court reviews de novo a circuit court's summary disposition ruling. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). "In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial." Walsh, supra at 621. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, supra at 183. III. Summary Disposition Analysis A. Premises Liability Defendant contends that premises liability law applies to this case because "[p]laintiff's claim arises out of a dangerous condition on the land," and defendant both occupied the land and owned the instrumentality that allegedly caused plaintiff's injury. As an occupier of the land, defendant asserts, it had no duty to eliminate the open and obvious dangers posed by its trains. "Premises liability is conditioned upon the presence of both possession and control over the land." Merritt v Nickelson, 407 Mich 544, 552; 287 NW2d 178 (1980). A "possessor" of land is

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(a)

a person who is in occupation of the land with intent to control it or

a person who has been in occupation of land with intent to control (b) it, if no other person has subsequently occupied it with intent to control it, or (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b). [Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 568; 563 NW2d 241 (1997), quoting Merritt, supra at 552, quoting 2 Restatement Torts, 2d,

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