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Estate of Goodwin v. Northwest Michigan Fair Association

Court of Appeals of Michigan

July 3, 2018

ESTATE OF EZEKIEL D. GOODWIN, by REBECCA R. GOODWIN, Personal Representative, Plaintiff-Appellee,
NORTHWEST MICHIGAN FAIR ASSOCIATION, Defendant-Appellant, and JEFF GOODWIN, Plaintiff, and TAD M. THOMPSON, TMT, INC., MEAGHAN ELISABETH THOMPSON, and SUBWAY STORE, Defendants. ESTATE OF EZEKIEL D. GOODWIN, by REBECCA R. GOODWIN, Personal Representative, Plaintiff-Appellee/Cross-Appellant, and JEFF GOODWIN, Plaintiff,

          Grand Traverse Circuit Court LC No. 2015-030872-NI

          Before: Murray, P.J., and Hoekstra and Gadola, JJ.

          PER CURIAM.

         These consolidated appeals involve a wrongful death action filed by plaintiff Rebecca Goodwin as personal representative of Ezekiel Goodwin's estate. Following a jury trial, the trial court entered a judgment against defendant Northwest Michigan Fair Association[1] in the amount of $1, 000, 000. Later, the trial court also entered an order awarding plaintiff taxable costs and prejudgment interest. Defendant now appeals as of right. For the reasons explained in this opinion, we conclude that the trial court erred by denying defendant's request to name Jeff Goodwin as a nonparty at fault and that on the facts of this case, failure to vacate the jury verdict would be inconsistent with substantial justice. Accordingly, we vacate the judgment in plaintiff's favor, we vacate the award of taxable costs and prejudgment interest, and we remand for a new trial.

         I. FACTS

         On August 8, 2012, while riding his bike, 6-year-old Ezekiel Goodwin was hit by a truck driven by Tad Thompson. The accident occurred on a service drive on defendant's 80-acre fairground property during "fair week," an event featuring a carnival and amusement rides as well as 4-H Club animal exhibitions and activities. Children and young adults ranging in age from 5 to 19-years-old participated in the 4-H events, and many of the children and their families camped on-site during the week.[2] Between the campground area and the animal barns there was a private service drive, and it was on this service drive that Ezekiel was struck.

         During fair week, pedestrians and bicycle riders, including children, used the service drive to travel from the campground area to the barns. Fair organizers were aware that pedestrians and bike riders used the service drive. However, unlike other roads on the property, the service drive was not closed to motor vehicle traffic during fair week. Motor vehicle use of the service drive was restricted insofar as only people with passes could drive onto the fairgrounds and the speed limit on the fairgrounds was 5½ miles per hour. Those with passes would include 4-H families, the members of the fair board, and service vehicles related to the fair such as vehicles hauling manure, emptying dumpsters, and tending outhouse facilities. Emergency vehicles could also use the drive if necessary. In other words, the service drive saw bicycle and pedestrian traffic as well as "intermittent" motor vehicle traffic during the fair.

         Ezekiel and his siblings were participating in 4-H events, and Ezekiel and members of his family-his father Jeff Goodwin, his sister, and his brother-were camping at the fairgrounds. On the morning of August 8, 2012, Jeff allowed Ezekiel to ride his bike, unaccompanied, from the family's campsite to the barns where Ezekiel planned to tend to his pony. Jeff was going to the bathhouse, and after shaving and brushing his teeth, he intended to meet Ezekiel at the barns. As Ezekiel was leaving, Jeff told Ezekiel that he would meet him at the door to the pony stall.[3]

         Thompson had a pass to drive on the fairgrounds because he had a daughter participating in 4-H events, and on the morning of August 8, 2012, he drove his daughter to the fairgrounds, where she planned to feed her cow. While driving on the service drive toward the animal barns, Thompson saw Ezekiel riding his bicycle on the road. After passing Ezekiel, Thompson's daughter reminded him that he forgot to stop at the feed lot. Thompson checked his mirrors and then began to back up. Unbeknownst to Thompson, Ezekiel was behind his truck in a blind spot, where someone of Ezekiel's height would not be visible on a bike. According to an eyewitness to the accident, Ezekiel sat on his bike and appeared to just watch the truck slowly back-up into him. Tragically, Ezekiel was pinned beneath the truck, and he later died of his injuries.

         Following Ezekiel's death, Ezekiel's mother, Rebecca Goodwin, as the personal representative of Ezekiel's estate, filed the current wrongful death lawsuit against defendant. Plaintiff's basic theory of the case was that the service drive was unreasonably dangerous because defendant allowed motor vehicle traffic on a path used by pedestrians and bike riders. According to plaintiff, defendant should have banned all motor vehicles, used "spotters" for vehicles, or erected barriers to create a separate bike path.

         Notably, defendant maintained that Jeff was negligent in his supervision of Ezekiel, and defendant attempted to name Jeff as a nonparty at fault.[4] The trial court ultimately denied defendant's request, reasoning that the jury could not consider Jeff's potential fault because Jeff was entitled to parental immunity. Consistent with this ruling, the trial court instructed the jury that it could not consider whether Ezekiel's parents were negligent, and the jury was told to apportion 100% of the fault between defendant and Thompson.

         Following trial, the jury returned a verdict in favor of plaintiff on a "premises liability/nuisance" theory.[5] With regard to Thompson, the jury concluded that he had been negligent. The jury then apportioned 50% of the fault to defendant and 50% of the fault to Thompson. In terms of damages, the jury awarded a total of $2, 000, 000 in damages. Based on the jury's verdict, the trial court entered an order against defendant for 50% of the damages, i.e., $1, 000, 000. After trial, the trial court also awarded plaintiff taxable costs under MCR 2.625 and prejudgment interest under MCL 600.6013(8).

         Defendant now appeals as of right. Specifically, in Docket No. 335963, defendant challenges the jury verdict and the judgment in plaintiff's favor. Plaintiff has filed a cross-appeal in Docket No. 335963. In Docket No. 335292, defendant challenges the trial court's award of costs and prejudgment interest.


         On appeal, defendant first argues that a new trial should be granted because the trial court refused to allow the jury to consider Jeff as a nonparty at fault. Although Jeff is entitled to parental immunity from a lawsuit by Ezekiel or Ezekiel's estate, defendant maintains that this grant of immunity does not eliminate Jeff's parental duty to supervise Ezekiel, and because of this duty, defendant argues that Jeff may be named as nonparty at fault for purposes of determining defendant's "fair share" of liability. Defendant also argues that there is substantial evidence that Jeff was negligent in his supervision of Ezekiel and that this negligence was a proximate cause of Ezekiel's death. According to defendant, a new trial is required to allow the jury to consider whether Jeff was negligent and to apportion fault to Jeff on the basis of his negligence. We agree.


         "Statutory construction is a question of law subject to review de novo." Vandonkelaar v Kid's Kourt, LLC, 290 Mich.App. 187, 196; 800 N.W.2d 760 (2010). Likewise, whether a duty exists is a question of law, which is reviewed de novo. Hill v Sears, Roebuck & Co, 492 Mich. 651, 659; 822 N.W.2d 190 (2012). If the trial court erred by refusing to allow the jury to consider Jeff's alleged negligence when apportioning fault, reversal is not required unless failure to vacate the jury verdict would be inconsistent with substantial justice. MCR 2.613(A); Pontiac Sch Dist v Miller, Canfield, Paddock & Stone, 221 Mich.App. 602, 630; 563 N.W.2d 693 (1997).

         B. ANALYSIS

         Traditionally, Michigan followed a joint and several liability approach in tort cases involving multiple tortfeasors. Kaiser v Allen, 480 Mich. 31, 37; 746 N.W.2d 92 (2008). Under this approach, "the injured party could either sue all tortfeasors jointly or he could sue any individual tortfeasor severally, and each individual tortfeasor was liable for the entire judgment, although the injured party was entitled to full compensation only once." Gerling Konzern Allgemeine Versicherungs AG v Lawson, 472 Mich. 44, 49; 693 N.W.2d 149 (2005). A defendant's liability for the entire judgment existed even when one of the tortfeasors could not be held civilly responsible because of immunity. Bell v Ren-Pharm, Inc, 269 Mich.App. 464, 470; 713 N.W.2d 285 (2006). "In such a situation, a [defendant] who is not immune and who is subject to suit is jointly and severally liable for damages arising out of the acts of a person not named as a party because of some immunity protection." Id.

         However, in 1995, the Legislature enacted tort-reform legislation that "generally abolished joint and several liability and replaced it with fair share liability where each tortfeasor only pays the portion of the total damages award that reflects that tortfeasor's percentage of fault." Id. at 467 (quotation marks and citation omitted). These principles of fair share liability are set forth in the comparative-fault statutes: MCL 600.2956, MCL 600.2957, and MCL 600.6304. Vandonkelaar, 290 Mich.App. at 190 n 1. In particular, under MCL 600.2956, "[e]xcept as provided in section 6304, in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint." In relevant part, MCL 600.2957 provides:

(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person's percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.
Assessments of percentages of fault for nonparties are used only to accurately determine the fault of named parties. If fault is assessed against a nonparty, a finding of fault does not subject the nonparty to liability in that action and shall not be introduced as evidence of liability in another action

         Section 6304 states:

(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:

(a) The total amount of each plaintiff's damages.

(b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party to the action.

(2) In determining the percentages of fault under subsection (1)(b), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed.

(4) Liability in an action to which this section applies is several only and not joint. Except as otherwise provided in subsection (6) [in medical malpractice cases], a person shall not be required to pay damages in an amount greater than his or her percentage of fault as found under subsection (1). . . .

(8) As used in this section, "fault" includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party. [Emphasis added.]

         As made plain in these provisions, the fact-finder must "allocate fault among all responsible torfeasors," regardless of whether the tortfeasor was or could have been named as a party to the action, and "each tortfeasor need not pay damages in an amount greater than his allocated percentage of fault." Gerling, 472 Mich. at 51. See also Barnett v Hidalgo, 478 Mich. 151, 167; 732 N.W.2d 472 (2007). However, when there is an assertion that a person's negligence is a proximate cause of the damage sustained by a plaintiff, before fault may be allocated to that person under the comparative fault statutes, there must be proof that the person owed a legal duty to the injured party. Romain v Frankenmuth Mut Ins Co, 483 Mich. 18, 21-22; 762 N.W.2d 911 (2009). "Without owing a duty to the injured party, the 'negligent' actor could not have proximately caused the injury and could not be at 'fault' for purposes of the comparative fault statutes." Id. at 22.


         Before fault may be apportioned to Jeff, there must be a threshold determination that Jeff owed Ezekiel a duty. Id. at 21-22. "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person." Moning v Alfono, 400 Mich. 425, 438-439; 254 N.W.2d 759 (1977). Michigan has long recognized that "both nature and law impose" on parents "the duty of care and watchfulness" with regard to their children. Ryan v Towar, 128 Mich. 463, 479; 87 N.W. 644 (1901). See also Lyshak v Detroit, 351 Mich. 230, 234; 88 N.W.2d 596 (1958). As persons responsible for their children, parents cannot allow their children "too young to understand danger" to wander unattended; rather, parents, as persons with "special dealings" with children, are expected to provide care and protection. Hoover v Detroit, GH & M Ry Co, 188 Mich. 313, 321-323; 154 N.W. 94 (1915). Stated differently, "parents have a duty to supervise their own children, or determine that their children are of sufficient age and maturity to no longer need such supervision." Stopczynski v Woodcox, 258 Mich.App. 226, 236; 671 N.W.2d 119 (2003) (quotation marks and citation omitted). This duty to supervise one's child includes an obligation "to see that the child's behavior does not involve danger to the child," 62 Am Jur, 2d, Premises Liability § 227, or to other persons, American States Ins Co v Albin, 118 Mich.App. 201, 206; 324 N.W.2d 574 (1982).[6] Parents are expected to exercise "reasonable care" to "control" their minor child and to provide "instructions and education" to ensure that the child is aware of dangers to his or her well-being. See Reinert v Dolezel, 147 Mich.App. 149, 157; 383 N.W.2d 148 (1985); McCallister v Sun Valley Pools, Inc, 100 Mich.App. 131, 139; 298 N.W.2d 687 (1980); Rodebaugh v Grand Trunk W R Co, 4 Mich.App. 559, 567; 145 N.W.2d 401 (1966). Generally, unless the parent entrusts the child to another person who agrees to assume the duty to supervise the child, the parent's duty to supervise extends to exercising reasonable care for the safety of the child while on the property of another, including an obligation to protect and guard the child against dangers that are open and obvious to the parent.[7] See 62 Am Jur, 2d, Premises Liability § 227 to § 229; 65A CJS, Negligence § 537; Stopczynski, 258 Mich.App. at 236. See also Powers v Harlow, 53 Mich. 507, 516; 19 N.W. 257 (1884) (concluding that a father could not be found at fault for a child's injuries on the property of another because a person of "ordinary prudence" in the father's position would not have suspected the danger to the child).


         Although parents undoubtedly have a duty to supervise their children, the law generally does not allow children to recover damages from their parents for a breach of this duty. In particular, "[a]t common law, a minor could not sue his or her parents in tort." Haddrill v Damon, 149 Mich.App. 702, 705; 386 N.W.2d 643 (1986). The Michigan Supreme Court generally abolished intra-family tort immunity in Plumley v Klein, 388 Mich. 1, 8; 199 N.W.2d 169 (1972), holding that a child could maintain a lawsuit against his or her parents for an injury resulting from a parent's negligence. However, the Plumley Court retained two exceptions to this rule, concluding that parental immunity remained:

(1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, ...

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