The appeal was heard at the Grand Rapids court on Aug. 1. Friday’s ruling affirmed the Ottawa County Circuit Court decision to throw out a wrongful death lawsuit filed on behalf of the Chance Nash estate.
The state appeals court also affirmed the Ottawa County Probate Court’s decision to name the City of Grand Haven as trustee to Duncan Memorial Park.
Eleven-year-old Chance Nash died Dec. 31, 2009, after crashing into a branch of a snow-covered tree while sledding down the back side of what is considered the “normal” sledding hill near the park’s parking lot.
An attorney for the Nunica boy’s estate, John Tallman, said they might take their appeal to the next level.
“We’re thinking that we may take it to the Supreme Court,” the attorney said. “We have 42 days to do that.”
Despite the lawsuit’s ping-pong history in the courts, Tallman said if the facts are presented in their true light, the evidence is plain.
“It’s a wrongful death case,” he said. “There’s really no question about that the defendant’s negligence caused Chance Nash’s death. This is not a radical case. If one of your children … is killed by the negligence of somebody else, you would go to court seeking just compensation.”
Named as defendants in the original lawsuits filed in 2010 and 2012 was the Duncan Park Commission, the Duncan Park Trust – including trustees Edward Lystra, Rodney Griswold and Jerry Scott — and Bob DeHare, the former park caretaker.
In Friday’s decision, state appeals judges Joel Hoekstra, William B. Murphy and Kirsten Frank Kelly noted the following: “It simply cannot be said that these landowners acted recklessly, without concern for Chance, by simply allowing a forest to remain a forest. As noted, it has not been established that any of these defendants did any act that caused injury or death to Chance. Rather, plaintiff simply claims that these defendants should have ‘cleaned up the woods.’”
Property owner Martha Duncan set up a trust in 1913 to create Duncan Park. The trust established a set of trustees as owners and called for them to maintain the park for the residents of Grand Haven in a natural state.
The trustees at the time of Nash’s death — Lystra, Griswold and Scott — instructed then-caretaker DeHare to clear only the parking lot and walking paths.
From the appeals court’s decision:
The judges noted the following information from an Ottawa County Circuit Court decision:
“The Circuit Court issued an opinion and order on Feb. 3, 2016. After setting forth a detailed analysis on each of the issues, the Circuit Court provided the following conclusion:
“In December 2009, Chance Nash snow-sledded down a hill in heavily wooded Duncan Park and struck a naturally fallen tree near the bottom of the hill. Tragically, Chance passed away. In these consolidated cases, plaintiff seeks to hold defendants liable for Chance’s death. The theory essentially being that Duncan Park is unsafe for snow sledding, that defendants knew that it was unsafe, and that defendants failed to make the park safe for that activity.
“The trust document did not create any duty owed by any of the defendants to Chance. Neither has it been established that any of the defendants did any negligent act that contributed to this tragic ‘freak’ accident.
“Plaintiff speculates that DeHare trimmed a branch off the fallen tree simply because DeHare was the caretaker and used a chainsaw in his duties. Speculation as to who did what is not evidence and is not sufficient to sustain a cause of action. In any event, there is no evidence that any trimming of the fallen tree was negligently performed.”
Grand Haven City Manager Pat McGinnis said that he’s still greatly saddened by the fact that the incident happened at all.
“Of course, there’s nothing we could have done to have averted this,” he said. “It was a freak accident.”
DeHare said that he couldn’t imagine what suffering and guilt the Nash family endured after the loss of their child.
“During years of court appearances, this case and all its evidence created a labyrinth in its extremely complex and, at times, tortuous character,” he said. “The State of Michigan Court of Appeals ruled the defendants were not liable for the death of a child who struck a naturally fallen tree while sledding down a snowy wooded natural hill in an undeveloped tract of land known as Duncan Park.
“My faith, the best attorney ever, the support from our city manager, family and countless strangers who offer encouragement definitely made life much more bearable,” DeHare added.
The original lawsuit was filed in 2010 against the Duncan Park Commission. A lawsuit was filed against the trustees in 2012, and more recently one was filed against DeHare.
Hulsing dismissed the original lawsuits in 2012, but Tallman filed appeals for his clients, and the state appeals court consolidated the cases in 2013.
The appeals court decision made in March 2014 said the park commission could not invoke governmental immunity and sent the case back to Ottawa County Circuit Court.
In November 2015, the groups held a settlement conference, but were unable to reach an agreement.
A trial was set for early 2016, but was postponed pending a petition in Ottawa County Probate Court to have successor trustees named to the Duncan Park Trust.
The original trustees resigned and were supposed to appoint new trustees, but couldn’t get anyone to step in with the court cases pending. In early 2016, Probate Judge Mark Feyen approved the City of Grand Haven request to become the sole trustee.
In February 2016, Hulsing again dismissed the lawsuits saying that the defendants were not liable for the death of Chance Nash.
The Aug. 1 hearing was the result of the most recent appeal filed.