Jury Can Consider a Parent’s Negligence

Appeals Court Decides Jury Can Consider a Parent’s Negligence, Even if They Have Parental Immunity, in Apportioning Liability

Six-year-old Ezekiel Goodwin was riding his bicycle on a service drive between the defendant Northwest Michigan Fair Association’s (“NW Fair”) campgrounds, where he was staying with his family, and a barn housing his 4-H pony. A codefendant unexpectedly backed up his truck, striking Ezekiel in a “blind spot” behind the truck, ultimately causing Ezekiel’s death. Plaintiff settled with all defendants except NW Fair. Following a jury verdict finding $2 million in damages and assigning 50% fault to it on a premises liability theory, the trial court entered a $1 million judgment against NW Fair. Plaintiff argued that the narrow service drive was unreasonably dangerous because defendant allowed intermittent motor vehicle traffic on it without any separation from pedestrians and bike riders such that NW Fair should be liable in premises liability. Ezekiel’s father had allowed his son to ride to the barn unaccompanied, and promised to meet him at the barn after using the bath house.

A Parent May Be Named a “Nonparty at Fault” For Purposes of Determining a Defendant’s ‘Fair Share’ of Liability

On appeal, NW Fair argued that although Ezekiel’s father was entitled to parental immunity from a lawsuit by Ezekiel’s estate, that grant of immunity did not eliminate his parental duty to supervise, and because of the duty, he “may be named as nonparty at fault for purposes of determining defendant’s ‘fair share’ of liability.” The Court of Appeals agreed with NW Fair that a new trial was “required to allow the jury to consider whether the father was negligent and to apportion fault to him on the basis of that negligence.” It concluded the error was not “harmless given that there was evidence to support the conclusion that [father] breached a duty to Ezekiel and that this breach of duty was a proximate cause of Ezekiel’s death.”

A Child Under Seven Will Not Appreciate the Danger

The Court of Appeals additionally concluded that the open and obvious defense to a premises liability claim (here, that the hazardous condition presented by the narrow roadway was readily apparent upon casual observation) is “inapplicable to children under the age of seven” and that children under that age “cannot be expected to conform their conduct to a reasonable child standard.” Rather, “the law presumes that a child under seven will not appreciate the danger . . . .”

Based upon the ruling, in the Estate of Ezekiel D Goodwin v NW Mich Fair Assoc, ___ Mich App ___; Docket Nos. 333963, 335292 (July 3, 2018), the Court of Appeals found the trial court’s failure to include the father on the jury verdict form so that, potentially, his percentage of fault could be apportioned to him by the jury warranted a new trial. The Court of Appeals also held that the open and obvious doctrine applicable to premises liability causes of actions does not apply to children under the age of seven as a matter of law.