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 Association
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.
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 5½ 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 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
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.
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.
Following trial, the jury returned a verdict in favor of plaintiff on a "premises liability/nuisance" theory.
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. 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).
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 individual tortfeasor severally, and each individual tortfeasor was liable for the entire judgment, although the injured party was entitled to full compensation only once." Gerling Konzern Allgemeine Versicherungs AG v. Lawson, 472 Mich. 44, 49, 693 N.W.2d 149 (2005). A defendant's liability for the entire judgment existed even when one of the tortfeasors could not be held civilly responsible because of immunity. Bell v. Ren-Pharm, Inc., 269 Mich.App. 464, 470, 713 N.W.2d 285 (2006). "In such a situation, a [defendant] who is not immune and who is subject to suit is jointly and severally liable for damages arising out of the acts of a person not named as a party because of some immunity protection." Id.
However, in 1995, the Legislature enacted tort-reform legislation that "generally abolished joint and several liability and replaced it with fair share liability where each tortfeasor only pays the portion of the total damages award that reflects that tortfeasor's percentage of fault." Id. at 467, 713 N.W.2d 285 (quotation marks and citation omitted). These principles of fair-share liability are set
MCL 600.6304 states:
As made plain in these provisions, the fact-finder must "allocate fault among all responsible torfeasors," regardless of whether the tortfeasor was or could have been named as a party to the action, and "each tortfeasor need not pay damages in an amount greater than his allocated percentage of fault." Gerling, 472 Mich. at 51, 693 N.W.2d 149.
1. PARENTAL DUTY TO SUPERVISE
Before fault may be apportioned to Jeff, there must be a threshold determination that Jeff owed Ezekiel a duty. Id. at 21-22, 762 N.W.2d 911. "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person." Moning v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977) (citations omitted). Michigan has long recognized that "both nature and the law impose" on parents "the duty of care and watchfulness" with regard to their children. Ryan v. Towar, 128 Mich. 463, 479, 87 N.W. 644 (1901). See also Lyshak v. Detroit, 351 Mich. 230, 234, 88 N.W.2d 596 (1958) (opinion by SMITH, J.). As persons responsible for their children, parents cannot allow their children "too young to understand danger" to wander unattended; rather, parents, as persons with "special dealings" with children, are expected to provide care and protection. Hoover v. Detroit, G.H. & M. R. Co., 188 Mich. 313, 321-323, 154 N.W. 94 (1915) (quotation marks and citation omitted). Stated differently, "parents have a duty to supervise their own children, or determine that their children are of sufficient age and maturity to no longer need such supervision." Stopczynski v. Woodcox, 258 Mich.App. 226, 236, 671 N.W.2d 119 (2003) (quotation marks and citation omitted). This duty to supervise one's child includes an obligation "to see that the child's behavior does not involve danger to the child," 62 Am. Jur. 2d, Premises-Liability § 227, p. 600, or to other persons, American States Ins. Co. v. Albin, 118 Mich.App. 201, 206, 324 N.W.2d 574 (1982).
2. PARENTAL IMMUNITY
Although parents undoubtedly have a duty to supervise their children, the law generally does not allow children to recover damages from their parents for a breach of this duty. In particular, "[a]t common law, a minor could not sue his or her parents in tort." Haddrill v. Damon, 149 Mich.App. 702, 705, 386 N.W.2d 643 (1986). The Michigan Supreme Court generally abolished intra-family tort immunity in Plumley v. Klein, 388 Mich. 1, 8, 199 N.W.2d 169 (1972), holding that a child could maintain a lawsuit against his or her parents for an injury resulting from a parent's negligence. However, the Plumley Court retained two exceptions to this rule, concluding that parental immunity remained:
A claim for negligent parental supervision of a child falls within the first Plumley exception, meaning that a parent is granted immunity and a child may not sue a parent for negligent supervision. See Spikes v. Banks, 231 Mich.App. 341, 349, 586 N.W.2d 106 (1998); McCallister, 100 Mich. App. at 139, 298 N.W.2d 687.
3. APPORTIONING FAULT TO IMMUNE PARENTS
In this case, the trial court acknowledged that Jeff, as Ezekiel's parent, generally owed Ezekiel a duty to supervise him; however, the trial court precluded the jury from considering Jeff's alleged negligence, or apportioning fault to Jeff, based on the conclusion that Jeff's entitlement to parental immunity barred the jury's consideration of his fault. In reaching this conclusion, the trial court distinguished between a "duty" and a "legally cognizable duty that can serve as a basis for allocation of fault ..." The trial court focused its analysis on whether the comparative-fault statutes allowed for recovery against parents, noting, for instance, that the statutes did not address "what is the legal duty, the duty that you can recover against with respect to a parent and a child in a wrongful death case." In light of the trial court's reasoning, the basic question before us is whether immunity, specifically parental immunity, bars the allocation of fault to an immune individual under the comparative-fault statutes. In contrast to the trial court's conclusions, given the plain language of the comparative-fault statutes and the distinction between immunity and duty, we conclude that a person entitled to parental immunity may nevertheless be named as a nonparty at fault
First of all, the trial court erred by focusing on whether Ezekiel's estate could obtain a recovery against Jeff. Quite simply, under MCL 600.2957 and MCL 600.6304, the allocation of fault is not dependent on whether a plaintiff can recover damages from the nonparty. Following the enactment of tort-reform legislation, the finder of fact must allocate fault among all responsible persons, "regardless of whether the person is, or could have been, named as a party to the action." MCL 600.2957(1). See also MCL 600.6304(1)(b). A finding that a nonparty is at fault "does not subject the nonparty to liability in that action...." MCL 600.2957(3). Rather, the sole purpose of assessing the fault of nonparties is to "accurately determine the fault of named parties," MCL 600.2957(3), to ensure that each named defendant-tortfeasor does not "pay damages in an amount greater than his allocated percentage of fault," Gerling, 472 Mich. at 51, 693 N.W.2d 149. In other words, the nonparty's "liability" to the plaintiff is not at issue under the comparative-fault statutes, and it is immaterial whether a plaintiff could have named the nonparty as a defendant.
There is, accordingly, no merit to the trial court's suggestion that the allocation of fault under MCL 600.2957 and MCL 600.6304 depends on the plaintiff's ability to obtain a recovery against the nonparty at fault; that interpretation has no basis in the statutory language, and it wholly eviscerates the requirement that a person's fault should be considered "regardless of whether the person is, or could have been, named as a party to the action." MCL 600.2957(1). See also MCL 600.6304(1)(b). Accordingly, while the trial court correctly noted that 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, to the extent the trial court attempted to analyze the duty question, it erred by injecting the concept of immunity into the threshold duty determination and using the parental-immunity doctrine to determine whether there was a duty that could be considered for purposes of allocating fault. In actuality, a parent may have a duty—and therefore may be allocated fault under MCL 600.2957 and MCL 600.6304—regardless of whether the parent is entitled to immunity. Generally speaking, the question of whether a duty exists is a separate and distinct inquiry from whether an individual is immune from liability for a breach of that duty. See
Similarly, in the context of parental immunity, this Court has acknowledged the distinction between a grant of immunity and a determination regarding the existence of a duty, recognizing that "[t]he logical predicate to the [parental] immunity question... is an assumption that the [parent's] conduct was negligent, and hence unreasonable; the issue is whether the parent should be shielded from liability for that unreasonable conduct." Thelen v. Thelen, 174 Mich.App. 380, 384 n. 1, 435 N.W.2d 495 (1989). See also Spikes, 231 Mich. App. at 348-349, 586 N.W.2d 106. Indeed, while traditionally a parent's negligence was not a basis to reduce a child's recovery in a lawsuit against a third-party tortfeasor, a finding of parental negligence—i.e., a determination that a parent breached a duty—has long been considered as a basis to reduce or foreclose a parent's recovery in a lawsuit by the parent based on the loss of a child's services, society, and companionship. See Feldman v. Detroit United R., 162 Mich. 486, 489, 127 N.W. 687 (1910); Byrne, 190 Mich. App. at 189, 475 N.W.2d 854.
Overall, given the clear distinction between immunity and duty, and bearing in mind that fault may be apportioned when there is a duty regardless of whether the person may be named as a party, there is simply no basis for the trial court's conclusion that parental immunity prohibits the consideration of a parent's fault under MCL 600.2957 and MCL 600.6304.
Having concluded that a parent can be named as a nonparty at fault notwithstanding the parental-immunity doctrine, the question before us becomes whether Jeff should have been named as a nonparty at fault in this case and, if so, whether the refusal to allow the jury to
Moreover, this error cannot be considered harmless given that there was evidence to support the conclusion that Jeff breached a duty to Ezekiel and that this breach of duty was a proximate cause of Ezekiel's death. As Ezekiel's parent, Jeff owed Ezekiel a duty of supervision and a duty to protect him from open and obvious dangers on the property. Lyshak, 351 Mich. at 234, 88 N.W.2d 596 opinion by SMITH, J.); Stopczynski, 258 Mich. App. at 236, 671 N.W.2d 119; 62 Am. Jur. 2d, Premises Liability, § 227, pp. 600-601. In this case, the purportedly dangerous condition on defendant's property was the mixed-use nature of the service drive, i.e., intermittent motor vehicle traffic on a road that campers also used to traverse from the campgrounds to the barns on their bikes or on foot. Faced with this mixed-use roadway, Jeff allowed six-year-old Ezekiel to ride his bike alone from the family's campsite to the barn.
However, despite Jeff's claim that he thought the road was closed to motor vehicle traffic, in his trial testimony, Jeff conceded that, though "rare," he actually saw motor vehicles on the service drive. Additionally, he knew that there were "official" vehicles going to the barns, and more than once, Jeff saw an unofficial red convertible parked at the barn with hay in its trunk. Aside from seeing the "rare" vehicle on the road, Jeff also acknowledged that there were no signs or barriers prohibiting vehicles from driving on the service road, that numerous vehicles were parked along the service drive (though Jeff asserted that he did not believe these vehicles would move), and that, more generally, campers with vehicles parked on the campgrounds could come and go with their vehicles during the week. Likewise, other campers testified that they used the road to walk and ride to the barn, but they also confirmed that they saw vehicles using the drive, including garbage trucks, a backhoe or other vehicles gathering manure, golf carts, "Gators," and people coming to tend
Given Jeff's admissions and the other evidence of vehicles using the road, Jeff clearly knew—or would have been reasonably expected to know—that there was intermittent motor vehicle traffic on the service drive. Yet Jeff allowed a six-year-old to ride on the service drive unaccompanied. Bearing in mind "the immaturity, inexperience and carelessness of children," Moning, 400 Mich. at 446, 254 N.W.2d 759, reasonable minds could well conclude that a six-year-old should not have been on the roadway unsupervised. Cf. Feldman, 162 Mich. at 490, 127 N.W. 687; Price v. Manistique Area Pub. Sch., 54 Mich.App. 127, 132, 220 N.W.2d 325 (1974). In other words, Jeff's decision to allow Ezekiel to ride alone could be considered a breach of Jeff's duty to supervise his child. Indeed, plaintiff's theory of the case was that defendant was unreasonable in allowing even intermittent motor vehicle traffic on a road used by child bicyclists; and if such a purportedly dangerous condition poses an "unreasonable risk of harm" sufficient to support a premises-liability claim, see Hoffner v. Lanctoe, 492 Mich. 450, 460, 821 N.W.2d 88 (2012), it is challenging to see how a parent could not be considered negligent in allowing a six-year-old to confront this danger alone when the parent knew or should have known of intermittent motor vehicle traffic on the roadway. See 62 Am. Jur. 2d, Premises Liability, § 227, pp. 600-601. Ultimately, there is a question of fact regarding Jeff's negligence that the jury should have been allowed to resolve.
Further, given the evidence at trial, the jury could also find that this act of
On the whole, there is significant evidence supporting the conclusion that Jeff knew or should have known that the service drive was being used by motor vehicles. In these circumstances, his decision to allow his six-year-old to ride on the road, unsupervised by an adult, can be considered a breach of duty that was a proximate cause of Ezekiel's death. Consequently, defendant was entitled to argue Jeff's fault to the jury and the jury should have been allowed to apportion fault to Jeff. See MCL 600.2957; MCL 600.6304; Barnett, 478 Mich. at 170, 732 N.W.2d 472; Zaremba Equip., Inc. v. Harco Nat'l Ins. Co., 280 Mich.App. 16, 34, 761 N.W.2d 151 (2008). Yet, the trial court refused to allow the jury to apportion fault to Jeff and affirmatively instructed the jury not to consider the negligence of Ezekiel's parents. In these circumstances, failure to vacate the judgment in plaintiff's favor and remand for a new trial would be inconsistent with substantial justice.
III. OPEN AND OBVIOUS DANGER DOCTRINE
Next, defendant argues that the trial court erred by refusing to instruct the jury on the open and obvious doctrine. Specifically, defendant contends that the open
A. STANDARDS OF REVIEW
Claims of instructional error are reviewed de novo. Case, 463 Mich. at 6, 615 N.W.2d 17. "The instructions should include all the elements of the plaintiff's claims and should not omit material issues, defenses, or theories if the evidence supports them." Id. "[T]he trial court's determination that a jury instruction is accurate and applicable to the case is reviewed for an abuse of discretion." Hill v. Hoig, 258 Mich.App. 538, 540, 672 N.W.2d 531 (2003). "Instructional error warrants reversal if the error resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be inconsistent with substantial justice." Cox, 467 Mich. at 8, 651 N.W.2d 356 (quotation marks and citation omitted).
"In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v. Dart Props., Inc., 270 Mich.App. 437, 440, 715 N.W.2d 335 (2006). "With regard to invitees, a landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner's land." Hoffner, 492 Mich. at 460, 821 N.W.2d 88. Integral to a landowner's duty to an invitee is whether the defect in question is "open and obvious." Id. (quotation marks and citation omitted). Absent special aspects,
When it comes to children, this Court has recognized that the open and
Whether a dangerous condition is open and obvious "in the eyes of a child, and if open and obvious, whether the condition was unreasonably dangerous" in light of the presence of children are ordinarily questions for the fact-finder. Id. at 336, 687 N.W.2d 881.
Although Bragan applied a reasonable-child version of the open and obvious danger doctrine to children, the Court did so in a case involving an 11-year-old, and the Court did not address whether the doctrine should also be applied to younger children under the age of seven. The age of seven is significant because traditionally age seven has been treated as a "dividing line" in Michigan. Burhans v. Witbeck, 375 Mich. 253, 255, 134 N.W.2d 225 (1965). "Children under the age of
Given Michigan's long history of treating children under the age of seven differently under the law, we conclude that the open and obvious danger doctrine 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. In other words, while Bragan, 263 Mich. App. at 335, 687 N.W.2d 881, applied a reasonable-child standard to children over seven, this was consistent with long-established caselaw holding that a child over seven is expected to conduct himself "as a child of his age, ability, intelligence and experience would reasonably have been expected to do under like circumstances." Burhans, 375 Mich. at 255, 134 N.W.2d 225. The open and obvious danger doctrine is premised on the proposition that it is "reasonable to expect" the invitee to discover the danger, Hoffner, 492 Mich. at 461, 821 N.W.2d 88, and given the capabilities of children over the age of seven, it can be reasonably expected that children over seven will conform their conduct to a reasonable-child standard. In contrast, "the incapacity and irresponsibility" of children under the age of seven have longed been recognized, Queen Ins. Co., 374 Mich. at 658, 132 N.W.2d 792, and in view of this incapacity, there can be no reasonably careful minor standard for children under seven, see Baker, 374 Mich. at 498, 505, 132 N.W.2d 614.
Consequently, in the context of the open and obvious danger doctrine, it is not reasonable to expect that a child under seven will conform to a reasonable-child standard in discovering dangers, appreciating the danger involved, and responding to those dangers. Rather, the law presumes that a child under seven will not appreciate the danger, and therefore a landowner remains obligated to exercise reasonable care to protect a child under
Given our conclusion that the open and obvious danger doctrine does not apply to children under seven, it is inapplicable to Ezekiel, who was six years old at the time of the accident. Consequently, the trial court did not err by concluding that the open and obvious danger doctrine did not apply to Ezekiel. Defendant is not entitled to relief on this basis.
IV. CAMPGROUND REGULATIONS
Defendant argues that the trial court erred by instructing the jury under M. Civ. JI 12.05 with regard to defendant's alleged violation of Mich. Admin. Code, R. 326.1556(8) and Mich. Admin. Code, R. 326.1558(1). According to defendant, these rules are irrelevant to this case and any violation could not be considered a proximate cause of the accident. We agree that the trial court erred by instructing the jury under M. Civ. JI 12.05 with regard to the number of campsites (Rule 326.1556(8)); however, we conclude that the trial court did not abuse its discretion in concluding that M. Civ. JI 12.05 was applicable with regard to the size of the service drive (Rule 326.1558(1)).
"In Michigan, the violation of administrative rules and regulations is evidence of negligence, and therefore when a violation is properly pled it may be submitted to the jury." Zalut v. Andersen & Assoc., Inc., 186 Mich.App. 229, 235, 463 N.W.2d 236 (1990). See also Kennedy v. Great Atlantic & Pacific Tea Co., 274 Mich.App. 710, 720, 737 N.W.2d 179 (2007) (applying this rule in a premises-liability case). Specifically, an instruction regarding violations of regulations as evidence of negligence is set forth in M. Civ. JI 12.05, which states:
This instruction should only be given if: (1) the regulation is intended to protect against the injury involved; (2) the plaintiff is within the class intended to be protected by the regulation; and (3) the evidence will support a finding that the violation was a proximate cause of the injury involved. M. Civ. JI 12.03, use notes; M. Civ. JI 12.05, use notes. "These factors are necessary to a determination of relevance." Klanseck v. Anderson Sales & Serv., Inc., 426 Mich. 78, 87, 393 N.W.2d 356 (1986).
In this case, the two regulations at issue are rules created by the Department of Environmental Quality under its authority to "promulgate rules regarding sanitation and safety standards for campgrounds and public health." MCL 333.12511. First, under Mich. Admin. Code R. 326.1556(8), "[a] campground owner shall ensure that the number of sites in a campground is not more than the number authorized by the license." Regarding defendant's compliance with this regulation, the evidence at trial indicated that there were 399 sites on the campgrounds and that defendant only had a license for 133 campsites. Fair organizers maintained that they had a "temporary" permit for 399 campsites during the fair, and there was evidence that defendant was approved for 399 sites on August 31, 2012. However, a jury could certainly reject defendant's claim of an undocumented "temporary" license and conclude that defendant was in violation of Rule 326.1556(8) at the time of the accident because defendant had more campsites than allowed by its license.
Nevertheless, a violation of Rule 326.1556(8) is not relevant to this case, and the jury should not have been allowed to consider it. In particular, in the trial court, plaintiff maintained that the excessive number of campsites was relevant because it suggested congestion or overcrowding that would have increased both vehicular and bike traffic. But, first of all, the regulation says nothing about traffic, and it cannot reasonably be supposed that this licensing requirement is designed to prevent traffic accidents. Second, plaintiff's assertion that there were too many people for the campground to handle safely is belied by the fact that defendant was approved for 399 campsites shortly after the accident. In other words, defendant may have violated the regulation by failing to obtain a license for 399 sites before the fair, but, the approval shortly after the fair makes plain that it was not an issue of insufficient space or overcrowding that prevented defendant from obtaining a license. Third, and perhaps most importantly, there is no evidence that this purported overcrowding contributed to—let alone proximately caused—Ezekiel's death. Ezekiel was killed in an accident between a single vehicle and a single bike rider. There was no evidence that the service drive was overly crowded with pedestrians,
The second regulation at issue is Rule 326.1558(1), which states:
Regarding defendant's compliance with this rule, measurements of the service drive indicated that it was 13.5 feet wide, and therefore the jury could conclude that defendant violated its obligation to maintain a "road right-of-way that is not less than 20 feet wide."
The real issue is whether the size of the road can be considered a proximate cause of plaintiff's injuries. Although the question is a close one, the trial court did not abuse its discretion by allowing the jury to
V. TAXABLE COSTS AND PREJUDGMENT INTEREST
Finally, defendant argues, and plaintiff concedes, that if the underlying judgment is vacated, the award of costs and prejudgment interest in plaintiff's favor should also be vacated. We agree. That is, having vacated the underlying judgment, it follows that plaintiff is no longer a "prevailing party," and therefore plaintiff is not entitled to costs under MCR 2.625. See Ivezaj v. Auto Club Ins. Ass'n., 275 Mich.App. 349, 368, 737 N.W.2d 807 (2007). Likewise, absent a "judgment" in plaintiff's favor, there is no basis for awarding plaintiff pre-judgment interest as the prevailing party under MCL 600.6013(8). See generally Hunt v. Drielick, 322 Mich.App. 318, 333-335, 914 N.W.2d 371 (2017) ("MCL 600.6013 is remedial and primarily intended to compensate prevailing parties for expenses incurred in bringing suits for money damages and for any delay in receiving those damages."). Consequently, we also vacate the award of costs and prejudgment interest.
Vacated and remanded for a new trial. We do not retain jurisdiction.
Murray, P.J., and Hoekstra and Gadola, JJ., concurred.