Wednesday, July 18, 2018

Kids, Campgrounds, and Unsupervised Play: A Parents’ Guide

Kids, Campgrounds, and Unsupervised Play: A Parents’ Guide

For many families, summer in Michigan means vacations up north and trips to the state and county fairs. Often, parents use these weekends to give their kids a chance at unsupervised play in the relative safety of the campgrounds. But those properties also come with certain risks. Find out what a parent’s duty to supervise is when a child is injured on a campground.

Tragic Accident at State Fair Ground Leads to Wrongful Death Lawsuit

Ezekiel Goodwin was a 6-year-old participant of the Northwest Michigan state fair. He and his family were camping on the fairgrounds on August 8, 2012, when he needed to go tend to his pony. His father, Jeff told him to ride ahead on his bicycle and that he would meet Ezekiel at the fairgrounds.
Tragically, as Ezekiel rode along the campground service drive, he was struck by another patron of the campgrounds, Tad Thompson, who was backing his truck up to head to the feed lot. A witness reported that young Ezekiel sat on his bike and just watched as the truck slowly backed up into him. He did not survive his injuries.

Campground Injury Creates Premises Liability Question about Unsupervised Play

Ezekiel’s mother, Rebecca Goodwin, sued The Northwest Michigan Fair Association and Tad Thompson for wrongful death based on negligence and premises liability. The trial court judge instructed the jury to determine if there had been negligence, and then divide the fault between the two defendants. The Fair Association said that the jury should also consider whether Jeff Goodwin was negligent in allowing his son to ride his bike unsupervised, but the trial court said Jeff was protected by parental immunity. On appeal, the Fair Association asked the Michigan Court of Appeals to decide whether parental immunity meant the jury could not consider Jeff’s role in the accident when dividing damages among the defendants.

Parents’ Duty to Supervise and Parental Immunity

Under Michigan law, a parent has a duty to care for and watch over their children. Responsible parents cannot “allow their children ‘too young to understand danger’ to wander unattended. There is a duty to supervise and make certain kids don’t put themselves in danger.
However, while parents have a duty to supervise, they also are protected from being sued for tort liability if the negligence has to do with:

  • The “exercise of reasonable parental authority over the child” or
  • The “exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.”

What is “reasonable” depends on the age of the child. The court said the jury should have been allowed to consider whether the decision to let Ezekiel engage in unsupervised play was reasonable, but only to the extent of distributing fault among the defendants. 

Protecting Children from Open and Obvious Dangers under Premises Liability

The Fair Association also said it was not liable because the danger of vehicles using the service drive was “open and obvious”. Normally, a property owner does not have to warn visitors of dangers that are openly visible and obviously risky to a reasonable (adult) person unless there is something about the hazard that makes it unreasonably dangerous. 

Kids love danger. As one court said:

“In particular, when there are children on the land, a landowner is ‘obligated to anticipate and take into account [the child’s] propensities to inquire into or to meddle with conditions which he finds on the land[.]’ Bragan v Symanzik, 263 Mich App 324, 326, 328, 335; 687 NW2d 881 (2004).

For children above age 7, the court said a modified “open and obvious” rule can apply, as long as it measures the risk according to a “reasonably careful minor of [similar] age, mental capacity and experience”. But children under 7 are assumed not to understand the dangers around them. Because of this, the court said there was no open and obvious defense when a child younger than 7 is hurt on the property.

Ultimately, it will be up to the jury to decide if Jeff made a reasonable decision to allow Ezekiel to engage in unsupervised play, and if the campground did what it should have to protect children from the dangers of vehicles on its service drive. What Goodwin warns is that even when parents' decisions are perfectly appropriate, when a child is hurt, they may have to justify their choices to escape the blame game.

Dani K. Liblang is a personal injury attorney at The Liblang Law Firm, PC, in Birmingham, Michigan. If your child was hurt because of a property owner’s negligence, contact The Liblang Law Firm, PC, today for a free consultation.

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