Nash v. Duncan Park Comm'n Nash

• Decision Date: 20 March 2014
• Docket Number: Docket Nos. 309403,314017.
• Citation: 848 N.W.2d 435,304 Mich.App. 599
• Parties: NASH v. DUNCAN PARK COMMISSION. Nash v. Duncan Park Trust.
• Court: Court of Appeal of Michigan — District of US

304 Mich.App. 599

848 N.W.2d 435

NASH

v.DUNCAN PARK COMMISSION.

Nash

v.Duncan Park Trust.

Docket Nos. 309403, 314017.

Court of Appeals of Michigan.

Submitted Dec. 10, 2013, at Grand Rapids.

Decided March 20, 2014, at 9:00 a.m.

John D. Tallman, Grand Rapids, for plaintiffs in both appeals.

Merry, Farnen & Ryan, PC, Saint Clair Shores (by John J. Schutza), for defendants in both appeals.

Before: WHITBECK, P.J., and HOEKSTRA and GLEICHER, JJ.

GLEICHER, J.

These wrongful death actions arise from a sledding accident that took the life of 11–year–old Chance Nash.The accident occurred at Duncan Park in Grand Haven.The questions presented in these consolidated appeals center on the ownership of Duncan Park and whether the governmental tort liability act (GTLA), MCL 691.1401 et seq., bars plaintiff's claims.

To answer these questions we begin by interpreting a document drafted 100 years ago.The circuit court ruled that this instrument transferred the park property from Martha Duncan to the city of Grand Haven.We conclude that the document created a trust that conveyed legal ownership of the land to three trustees rather than to the city.

The more difficult issue is whether the Duncan Park Commission(the Commission), which was established pursuant to Martha Duncan's trust, constitutes a “political subdivision” of the city of Grand Haven.Political-subdivision status would cloak the trustees and the Commission with governmental immunity.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.Accordingly, we reverse the circuit court's contrary decision and remand for further proceedings.

I.THE HISTORY OF DUNCAN PARK

The land comprising Duncan Park was originally owned by Martha and Robert Duncan.Martha Duncan inherited the land as her sole property after Robert's death.On October 22, 1913, Mrs. Duncan executed a trust deed naming herself as the “Party of the First Part” and identifying as the “Parties of the Second Part” three individuals who would serve as “Trustees for and in behalf of the people of the city of Grand Haven.”¹

In the next paragraph, the trust deed states, in relevant part:

[Mrs. Duncan], desiring to transfer the land hereinafter described to the PEOPLE OF THE CITY OF GRAND HAVEN, in order to perpetuate the name of her deceased husband ... has GRANTED, BARGAINED, SOLD, REMISED, RELEASED, ALIENED AND CONFIRMED, and by these presents does sell, remise, release, alien, confirm and convey unto the Parties of the Second Part and to their successors in office forever, all that piece of land situated in the City of Grand Haven ... known and described as follows....

The third paragraph sets forth the legal description of the property.The fourth paragraph, the habendum clause, states that the property has been transferred “unto the said parties of the Second Part, and their Successors, forever in fee, upon the trusts, nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared [.]”²

In the next several paragraphs, the trust deed conditions the land grant on: (1) the Grand Haven Common Council's acceptance of the dedication, (2) the Common Council's creation of a “Park Board” known as “The Duncan Park Commission,” composed of the three named trustees granted full control and supervision of Duncan Park, and (3)

The above-described premises shall be at all times known and described as “DUNCAN PARK” and said described parcel of land shall always be held and occupied by said grantees for and in behalf of the Citizens of the City of Grand Haven as a public park, for the use and enjoyment of the citizens or inhabitants of Grand Haven....

The fourth condition outlawed liquor in the park, and the fifth required the city to “provide means for the care and improvement” of the park.Notably, this provision also states:

But it shall be the right and duty of the said TRUSTEES to remove all dead, dying, or unsightly trees, to thin out the undergrowth, wherever necessary, to remove dead branches, noxious weeds, or other rubbish, and in short, keep said park in as neat and trim a condition as the means at their command will allow.

The assignment of active duties to the trustees signifies most tellingly that the drafter crafted a trust.As discussed in greater detail later in this opinion, the fifth provision insulated the trust from a legal challenge under the Michigan statute of uses; without it, the trust was subject to execution, i.e. nullification, as a purely passive device.

The sixth condition provided that “[n]o tax for improvements” on a portion of the park could be levied against Mrs. Duncan.The seventh appointed the “Trustees” as “The Duncan Park Commission,” reiterating that the trustees and their successors would “have the exclusive supervision, management and control” of Duncan Park.The eighth provision states:

This Deed is given on the express condition that the Common Council of the City of Grand Haven shall, on the acceptance thereof, pass an Ordinance satisfactory to the Grantor, creating a “DUNCAN PARK COMMISSION” as herein provided, and providing for its perpetuation in the manner herein specified; also providing for the care and maintenance of said DUNCAN PARK.The repeal of said Ordinance, or any part thereof, at any future time, shall render this Deed null and void and make the same of no effect.

The ninth and final provision states that if the Duncan Park Commission should “cease to exist,” the Ottawa Circuit Court shall “take charge of this trust and appoint a suitable ‘DUNCAN PARK COMMISSION’ to fulfill and carry out the terms of the trust for the benefit of the Citizens of the City of Grand Haven[.]”

On October 20, 1913, the city enacted an ordinance creating “The Duncan Park Commission,” consisting of the three trustees.Section 5 of the ordinance provided:

It is the definite purpose of this ordinance to create and establish a permanent commission, which commission shall have the power and authority at all times to manage and control that plat of land deeded to the three trustees before mentioned for and in behalf of the citizens of the City of Grand Haven, by Mrs. Martha M.H. Duncan, for public park purposes, in accordance with the deed of gift of said park.

Since 1913, the trustees have selected their own successors and Grand Haven's mayor has duly appointed them to the Commission.The record substantiates that the city does not expend any funds to operate or maintain Duncan Park.

In 1994, the city's liability insurance carrier communicated to the mayor that “since the City and its residents were using the park, we could cover it for property and liability purposes.”The insurance company declined to extend coverage to the Commission, however, without “some type of agreement.”The city manager proposed that the city and the Commission enter into a “license agreement,” which would require the city to provide general liability insurance coverage for the Commission and the park “in return for use of the park.”“[A]s a housekeeping matter,” the city manager asked the city council to readopt the 1913 ordinance.

The license agreement was drawn between the Commission “acting as trustees for and in behalf of the people of the City of Grand Haven, Michigan”(the licensor) and the city of Grand Haven(the licensee).It states, in relevant part:

A.The Licensor controls certain real property located in the City of Grand Haven ... commonly known as “Duncan Park”[.]

* * *

1.License.The Licensor grants to the Licensee, and the Licensee accepts from the Licensor, a non-exclusive, revocable, non-transferable license to use the Licensed Premises as a park solely for the benefit of the people of Grand Haven and for no other purposes.This is a license and Licensee understands and agrees that it is only permission to use the Licensed Premises and does not constitute any legal or possessory interest in the property.

* * *

3.Insurance.The Licensee shall provide general liability insurance coverage for the Licensor and each of its three members with coverage for bodily injury (including death) and for property damage....

Both parties signed the license and the city reenacted the 1913 ordinance.In particular, § 5 of the ordinance, quoted in its entirety earlier in this opinion, remained the same.

II.THE PROCEDURAL HISTORIES OF THE CONSOLIDATED APPEALS

A.THE INITIAL SUIT, DOCKET NO. 309403

In November 2010, plaintiff filed a lawsuit against the Commission, alleging that it negligently failed to maintain the sledding hill and failed to warn of its dangers.³Following a one-year period of discovery, the Commission moved for summary disposition under MCR 2.116(C)(7) and (10), contending that the GTLA or, alternatively, the recreational use act (RUA), MCL 324.73301, barred plaintiff's suit.The gravamen of the Commission's GTLA argument was that the Commission constituted a “governmental agency” under then MCL 691.1401(d)⁴ as a “political subdivision” of the state of Michigan.

The circuit court granted summary disposition to the Commission under MCR 2.116(C)(7), reasoning that because the Commission was created by ordinance and “authorized” by the city, the Commission constitutes a political subdivision.Further, the circuit court found, “Duncan Park is owned by a public entity,” rendering the RUA inapposite.

Plaintiff then brought a motion for reconsideration and a motion to amend the complaint.Plaintiff's proposed amended complaint would have added as defendants the three Duncan Park commissioners and trustees(the same persons hold both positions) and the Duncan Park Trust.

The circuit court issued a written opinion and order summarizing its reasons for granting summary disposition and reaffirming its decision.“[F]or clarification”the court added that

the actual ownership of Duncan...