Parties weigh in on sledding lawsuit appeal

A recent state appeals court decision on a sledding death lawsuit has Grand Haven officials scrambling to determine whether or not the city actually owns Duncan Memorial Park — and also if park commissioners can do their volunteer service with governmental immunity.
Becky Vargo
Mar 27, 2014

“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.

Comments

Creedance

“What do you think would be reasonable compensation for the death of your 11-year-old son?” he asked.
Well sir, I don't put a price on my child's head. I do know it's not worth tarnishing my child's name in the interest of greed.

Creedance

I need to stop commenting on these articles when I'm in a bad mood. This is probably not effective therapy.

Lakota05

The city does not own the park, never has. That is why the deed was written as it was and left to the "PEOPLE" of the City of Grand Haven. So sad, the whole thing.

Lakota05

How on earth did Hulsing determine there was not a trust? I think he did the city a dis-service by going that route. Of course that part was overturned.

Wolverine49457

Sledding is inherently dangerous especially a really good sliding hill. Perhaps if the hill’s users and parents of make it a point to wear gear to protect against the unforeseen event…20/20 hind sight is great, I feel for the family, the loss of a child for any reason is so difficult to move on from but money is not going to do the trick either.

rukidding

Anything done in Duncan's woods is at one's own risk; this an attempt at a money grab for a terrible accident. No way, no how, is the up keep of the park ever going to make this a perfectly safe place; it’s the woods and there will always be stumps and dead fall. If you don't feel the park is safe, don't go there. And the rift, divorce, etc. keep you laundry at home please.

Interestedreader

Reasonable compensation(not enough money in the world),RIP Chance.

DKS523

"Tallman said the child’s death has left a rift in the Nash family, which caused his parents to divorce". I feel bad for the mother. From the article it seems that she is trying to hold someone responsible for the death of her child, even if it is her husband, who brought him sledding there. No amount of money is going to bring her son back. Even if she did receive millions in a lawsuit, she will still feel the grief. I don't know of anyone who feels this lawsuit should go forward. It was an accident. Just an accident. No one is to blame.

momofthreeboys

There are many things that people do in our communities that are at "one's own risk." I can easily think of four or five activities that people do at their own risk. So tragic that the lawyer and family feel the need to "sue someone." What a commentary on our sue-happy society.

thecatsmom

This is a tragic story with people unable to understand we are all products of our choices and accidents are a reality of life.
No one planned this awful occurance and getting money in no way is going togive any relief to the family. The situation cannot be fixed.

Grand Haven Happy

Having sledded and tobogganed in Duncan Woods when I was a kid in the 1940's and 50's, taken our kids there in the 1960's, our grandkids in the 1980's thru the early 2000's, and our greatgrandkids until recently, I had contacted the city police and one of the commissioners to find out "exactly" where the accident had happened and was shown. I can 100% assure you it was not even close to any sledding run or area I have ever seen used by kids or adults in my 60+ years of using the park for sledding etc.

Is it expected to have the park totally cleared of any trees or bushes or structures, or barriers to keep vehicles off the hills for fear some kid might hit a tree, bush, or stump or even fall out of a tree? Better yet, put a 6' high chain link fence around the park with razor wire on the inside and weld the gate shut to keep everyone out of the park the Duncan's gave to the people of Grand Haven. How stupid and ignorant are we anyway?

This lawsuit is totally frivilous, without merit, and based on greed as the Nash kid had created his own problems and did it with his guardian parent right there. Why did the Dad let him go down a hill that was NOT a sledding hill??? Was the kid dumb or was the parent dumb??? Was the kid at fault or the parent??? What ever happened to parental guidence??? Why not sue the Dad as he was the parent in control of the child he allowed to go down the unused area into danger in the first place???

This lawsuit ignorance has to stop immediately. To his Mom, Grow up! your Son is never coming back and your lawsuit shows your ignorance and greed so clearly! Shame on you!

ninja660

When I first came to GH, You could drive, walk or bike through the entire park but then idiots messed that up by speeding through and so came the gates on the ends of the park - it was nice to see the deer in the park or by the cemetery on the back side. A panacea to this whole thing - donate it to North Ottawa so when someone gets hurt, you just walk across the parking lot. And, it does seem like a bit of greed since the family has other issues according the article...Why do parents associate their loss with monetary value when they didn't instruct their children better when something like this happens - maybe they expected the park to be an interactive baby sitter that automatically has stumps that warn kids to watch out.

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