“The only thing that’s clear is that it’s unclear,” City Manager Pat McGinnis said. “We’re waiting for advice from the (city) attorney on how to proceed.”
The case revolves around the death of 11-year-old Chance Nash of Nunica. The boy died from injuries he suffered when his sled ran into a snow-covered stump at the park on Dec. 31, 2009.
Lawsuits, claiming negligence in the upkeep of the park, were filed on behalf of the boy’s family against the Duncan Park Trust and its commissioners in 2010, and against the individual trustees — Ed Lystra, Jerry Scott and Rodney Griswold — in 2012. Ottawa County Circuit Judge Jon Hulsing dismissed both lawsuits after determining that there was not a trust, that the city owned the property, and therefore the commissioners had governmental immunity.
Grand Rapids attorney John Tallman, who represents Nash’s mother, Diane, said the family believes a jury should make the decision and filed an appeal with the Michigan Court of Appeals.
A third lawsuit filed against park groundskeeper Bob DeHare was put on hold pending the outcome of the appeal.
The decision handed down by the appeals court last week says, “Because the commission is a private organization empowered by the trust to manage the park without any governmental oversight, we hold that it may not invoke governmental immunity to avoid liability for Chance’s death.”
“It reversed what Judge Hulsing had done and sent the case back to Hulsing,” Tallman said of the opinion. “It will go to jury trial now. That’s what we’ve always wanted.”
Tallman said he believes all three lawsuits will be consolidated into one case for purposes of the trial. The trial will focus on the “negligence of the trust and trustees in allowing the dangerous conditions on the sledding trail that killed Chance Nash,” the attorney said.
At the time of the accident, Nash was sledding on the backside of the hill that goes down to the park’s picnic area and parking lot. Lystra, Scott and Griswold said this is not a normal sledding area, but instead a more heavily wooded area of the park.
However, Tallman said witness testimony would show that part of the park has been used for sledding for decades. He also said the appeals court decision agrees with him that the trustees were responsible for care and upkeep of the park.
McGinnis said the court’s decision about the trust and governmental immunity was not expected.
City officials say it was appropriate to go ahead with development of a new ordinance that provided a new trustee system for the park because of Hulsing’s ruling that the park is city-owned, despite the appeal in process.
“It’s very consistent with what happened with other trusts in the state,” McGinnis said.
McGinnis said the city’s insurance provider’s legal representation made the decision to challenge the lawsuit based on governmental immunity to avoid a lengthy and costly trial. Those attorneys will continue to represent the three trustees, and a city attorney will represent DeHare, McGinnis said.
“I hope that we end up with a solution that honors the intent of the person who donated the park, but also a solution that does not leave our community volunteers at risk for legal exposure or litigation,” the city manager said.
Tallman said the child’s death has left a rift in the Nash family, which caused his parents to divorce.
The lawsuit asks for $25,000 in damages, but Tallman said he’s unsure of the amount that will actually be requested.
“What do you think would be reasonable compensation for the death of your 11-year-old son?” he asked.
No future court dates have been set.