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Bernstein Dissents from Supreme Court’s Ruling to Overturn Appeals Court’s Decision on a City Park Commission, Governmental Immunity

The Michigan Supreme Court, in a 6-1 decision, held that the Court of Appeals was wrong to rule on whether a park commission was a governmental entity. In one of his first written opinions, Justice Richard Bernstein dissented.

Case: Nash v. Duncan Park Commission. You can read the 2 page Order and Justice Bernstein’s dissent here: Click Here.

The case involved the death of Diane Nash’s son while he was sledding in Duncan Park. The park land was donated to the city, but how the board functioned related to whether it could claim governmental immunity. The trial court held the city could not be sued.

The Court of Appeals had ruled that the Duncan Park Commission was, in fact, not a “board” of the City of Grand Haven, and therefore was not entitled to claim governmental immunity in tort liability.

The Michigan Supreme Court rejected that ruling, as the majority stated the issue of whether the commission was a governmental entity was not raised and therefore the Court of Appeals should not have reached such a decision on its own.

However, Justice Bernstein would have left intact the Court of Appeals ruling in order to emphasize that simply designating a commission as a “board” does not transform a private entity into a “political subdivision” of a governmental entity. Justice Bernstein stated, “[G]overnmental immunity should not be so readily accessible to an entity operating without governmental oversight in a manner similar to a private entity.”

And, the Court of Appeals and Justice Bernstein agreed, the Duncan Park Commission operated independently and autonomously from the City of Grand Haven as a private body that administers privately held land. The majority on the Supreme Court simply held that the Court of Appeals should not have reached such a conclusion on its own, without the issue being raised previously.

Fausone Bohn, LLP represents municipalities in Western Wayne County and has experience handling issues of governmental immunity and “political subdivisions” of a city. If you need counsel or advice on municipal law issues, the team at Fausone Bohn, LLP is here to help. Contact us today at (248) 468-4536 or online at

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