Estate of Goodwin v. Nw. Mich. Fair Ass'n

• Decision Date: 03 July 2018
• Docket Number: No. 333963, No. 335292,333963
• Citation: 923 N.W.2d 894,325 Mich.App. 129
• Parties: ESTATE OF Ezekiel D. GOODWIN, BY Rebecca R. GOODWIN, Personal Representative, Plaintiff-Appellee, and Jeff Goodwin, Plaintiff, v. NORTHWEST MICHIGAN FAIR ASSOCIATION, Defendant-Appellant, 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, v. Northwest Michigan Fair Association, Defendant-Appellant/Cross-Appellee, and Tad M. Thompson, TMT, Inc.., Meaghan Elisabeth Thompson, and Subway Store, Defendants.
• Court: Court of Appeal of Michigan — District of US

325 Mich.App. 129
923 N.W.2d 894

ESTATE OF Ezekiel D. GOODWIN, BY Rebecca R. GOODWIN, Personal Representative, Plaintiff-Appellee,
and
Jeff Goodwin, Plaintiff,
v.
NORTHWEST MICHIGAN FAIR ASSOCIATION, Defendant-Appellant,
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,
v.
Northwest Michigan Fair Association, Defendant-Appellant/Cross-Appellee,
and
Tad M. Thompson, TMT, Inc.., Meaghan Elisabeth Thompson, and Subway Store, Defendants.

No. 333963
No. 335292

Court of Appeals of Michigan.

Submitted June 12, 2018, at Grand Rapids
Decided July 3, 2018, 9:00 a.m.

Mark Granzotto, PC (by Mark Granzotto ) and Parsons Law Firm PLC (by Grant Parsons ) for the Estate of Ezekiel D. Goodwin.

Plunkett Cooney (by Robert G. Kamenec and Karen E. Beach ) for Northwest Michigan Fair Association.

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

Per Curiam.

923 N.W.2d 903

325 Mich.App. 133

These consolidated appeals involve a wrongful death action filed by Rebecca Goodwin as personal representative of Ezekiel Goodwin’s estate (plaintiff). Following a jury trial, the trial court entered a judgment against defendant Northwest Michigan Fair Association¹ 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,

325 Mich.App. 134

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, six-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 5 ½ miles per hour. Those with passes included 4-H families, the members of the fair board, and service vehicles related to the fair, including vehicles hauling manure, emptying

325 Mich.App. 135

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

923 N.W.2d 904

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. On the morning of August 8, 2012, Thompson drove his daughter to the fairgrounds to feed her cow. While driving on the service drive toward the animal barns, Thompson saw Ezekiel riding his bike 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.

325 Mich.App. 136

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. Consistently 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

325 Mich.App. 137

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. The jury awarded a total of $2,000,000 in damages. Based on the jury’s verdict, the trial court entered

923 N.W.2d 905

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

II. NONPARTY AT FAULT

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 a 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.

325 Mich.App. 138

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.

A. STANDARDS OF REVIEW

"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...