State Supreme Court won't hear appeal on sledding lawsuit

Becky Vargo • Jan 4, 2018 at 4:41 PM

The Michigan Supreme Court will not hear an appeal on the Chance Nash sledding death lawsuit.

The decision was signed Wednesday, Jan. 3.

Nash was an 11-year-old Nunica boy when he died Dec. 31, 2009, after striking a tree branch at the bottom of a hill on which he was sledding. The hill was on the back of what is considered the normal sledding area at Duncan Memorial Park in Grand Haven.

A set of lawsuits, on behalf of the boy’s mom, Diane Nash, were filed by Grand Rapids attorney John Tallman starting in 2010.

Wednesday’s decision noted the court would not consider the requested appeal of an Aug. 10, 2017, Michigan Court of Appeals judgment. In that decision, the state appeals court agreed with a lower court’s decision to throw out the lawsuit.

“It’s a wrongful death case,” Tallman said after the August decision. “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 were 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 the August 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 instructed then-caretaker DeHare to clear only the parking lot and walking paths.

Lawsuit history

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 boy’s death.

The Aug. 1, 2017, hearing was the result of the next appeal. On Aug. 10, the state appeals judges sided with the lower court ruling. An application to have an appeal heard by the Michigan Supreme Court was then filed.

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