2nd lawsuit over sledding death dismissed
Jul 21, 2015 at 11:59 AM
A second lawsuit filed against the Duncan Park Trust and its trustees in response to a 2009 sledding death of a Nunica boy has been dismissed by Ottawa County Circuit Judge Jon Hulsing.
“We’re disappointed with the circuit judge’s ruling,” said the Nash family's attorney, John Tallman. “Suffice it to say, I think that he erred.”
A lawsuit filed in January 2011 against the park trustees and the City of Grand Haven was also dismissed by Hulsing. In his ruling on that suit in January of this year, the judge said the park's commission was a government entity, under the city, making it immune from civil action.
The latest lawsuit was filed in April and asked for more than $25,000 in damages and a jury trial. It claimed negligence by the park trustees in allowing sledding in Duncan Memorial Park, which is northwest of Lake Forest Cemetery with a main entrance off Sheldon Road.
Park trustees Ed Lystra, Rodney Griswold and Jerry Scott were named in the suit. It claimed that they were negligent in maintaining the grounds.
In an eight-page opinion released Dec. 17, Hulsing said the Duncan Park Trust as indicated in the lawsuit didn’t exist, and the three trustees “as individuals have no authority or control of Duncan Park. It is only the (Duncan Park Commission) through its commissioners, acting as commissioners, who would owe a duty of reasonable care.”
Hulsing also reiterated a ruling he made in the previous case that the park’s commission, as a government entity under the city, was immune from being sued.
To see the judge's ruling document, click the Related File below.
The earlier lawsuit claimed that the park commission breached its duties in maintaining the park in general, and the sledding hill in particular, “in a reasonably safe condition for use by children and the other members of the public for sledding."
The suit claimed that it was the commission’s responsibility to remove dead trees and branches from the area “on or near the sledding hills.”
Chance Nash, 11, was sledding with family members in the park on Dec. 31, 2009, when he struck a branch of a fallen tree. He died later at a hospital from internal injuries.
Lystra said that while he had no comment about the lawsuits, he said he feels bad about what happened in 2009.
“Like everyone else, we’re heartsick that we lost that little boy,” he said.
Lystra noted that there are misconceptions regarding the incident and where it happened.
“I’ve run into people who think that it occurred on the sledding hill and he ran into a pylon by the parking lot,” the retired attorney and former Grand Haven mayor said. “This boy actually hit a fallen branch when sledding down a steep gulley away from the usual sledding area. His father was with him at the time.”
Lystra said there are two areas typically used for sledding — an area along Woodlawn Avenue and the park's picnic area — neither of which were where the fatal crash occurred.
Tallman said they will consider fighting Hulsing's latest ruling.
The Nash family's attorney said there is already an appeal pending with the first case, and his office is now working on submitting paperwork to appeal the recently dismissed case.
“We’re going to ask that the two appeals cases be consolidated,” Tallman said. “We’re hoping that it won’t take long and that we’ll be back in court in Grand Haven before too long.”
The park's groundskeeper, Robert L. DeHare, was served a summons on Thursday in a new case against him regarding the incident.
Like the previously dismissed suits, the lawsuit against DeHare asks for more than $25,000 in damages. It claims negligence by DeHare in allowing sledding at the park and for not removing dead branches from commonly used sledding areas.
“I am very concerned that I am being sued,” said DeHare, 71. “I said to my wife, ‘If they attempt to pursue this further, the only other person they could sue is myself, the person who cuts the grass.”
DeHare, who has been a part-time worker at the park since 2003, said he only does what the park trustees tell him. He said he does perform emergency maintenance tasks.
DeHare said that he is concerned about legal representation in the case, and plans to talk with the city to see if he would be covered.
“If you represent yourself, you have a fool for a client,” DeHare said. “If the city or insurance company doesn’t represent me, I am out of luck.”
Lystra said he is “dumbfounded” and “speechless” regarding the latest lawsuit against DeHare.
“He does what we ask him to do over there," Lystra said. "I just can’t express my anger that they’re trying to sue our groundskeeper.”
To see the official lawsuit document filed against Bob DeHare, click the Related File below.