The Michigan Court of Appeals issued a published opinion on July 3, 2018, holding that (1) a defendant is entitled to name the allegedly negligent parent of a deceased child as a non-party at fault in the child-estate’s wrongful death action, and (2) the doctrine of open and obvious danger does not apply to plaintiffs who are under the age of seven. The case is Estate of Ezekiel Goodwin v. Northwest Michigan Fair Association. Since the opinion is published, it is binding precedent on all trial courts in the state and on future panels of the Court of Appeals.
Six-year-old Ezekiel Goodwin was riding his bicycle on a service drive in the defendant’s 80-acre fairground property when he was hit by a truck during a “fair week” event in August. The service drive was used by pedestrians and bicycle riders, and, unlike other roads on the property, it was not closed to motor-vehicle traffic but rather was restricted to vehicles driven by people who had been issued passes. Six-year-old Ezekiel and his family were camping in the fairgrounds. Ezekiel’s father, Jeff, allowed Ezekiel to ride his bicycle unaccompanied on the service drive. While Ezekiel was riding his bicycle on the service drive, a pass-holding driver backed up his truck and struck Ezekiel, inflicting injuries from which Ezekiel later died.
Ezekiel’s estate sued the truck driver and the owner of the fairground. A settlement was reached with the truck driver, and a jury trial in the Grand Traverse County Circuit Court resulted in a judgment against the defendant fairground owner of $1 million, plus taxable costs and prejudgment interest.
The Michigan Court of Appeals unanimously reversed the judgment and remanded the case for a new trial.
First, the Court of Appeals held that the trial judge had incorrectly refused to allow the jury to consider Jeff, Ezekiel’s father, as a non-party at fault. Under Michigan statutory law, a defendant can be held liable only for his or her own percentage of fault. The Court of Appeals explained that even though Jeff was immune from liability under Michigan common law for any negligence he committed that contributed to his son Ezekiel’s death, the jury was still permitted to determine Jeff’s percentage of fault, if any, when determining the defendant fairground-owner’s percentage of fault. According to the Court of Appeals, “Jeff allowed a six-year-old to ride [a bicycle] on the service drive unaccompanied,” and “reasonable minds could well conclude that a six-year-old should not have been on the roadway unsupervised.” The Court of Appeals emphasized that, even though “a child cannot recover against a parent for negligent supervision, this inability to recover damages against a parent in no way precludes an assessment of a parent’s fault for purposes of accurately determining a defendant’s liability and ensuring that a defendant only pays his or her fair share.”
Second, the Court of Appeals held that the trial judge correctly refused to instruct the jury on the doctrine of open and obvious danger, because Ezekiel was under the age of seven. Under the doctrine of open and obvious danger, a defendant landowner has no premises liability for injuries sustained by a plaintiff-invitee caused by a dangerous condition on the owner’s land that was open and obvious. In 2004, another panel of the Court of Appeals applied this doctrine to an 11-year-old plaintiff. But here, the Court of Appeals emphasized that “the age of seven is the long-established ‘dividing line’ in Michigan” and thus adopted a “brightline rule that landowners cannot reasonably expect children under seven to recognize a dangerous condition.” Accordingly, the Court held that “the open and obvious doctrine is inapplicable to children under the age of seven.”
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Sarah Nadeau, Editor of the Law Fax Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or snadeau@garanlucow.com
