In The News

In The News

Sunday, December 19, 2021

A Case for the Ages; Parents Beware and Props to the Gerrish Township Police Department and a Nearby Neighbor

By Michael Nichols
Categories: Michael J. Nichols

A 19-year old is prone in a mangled ATV screaming for help, fearing he may die. It’s just before 11pm on March 26, 2020 near Higgins Lake, Michigan. The ATV - a Polaris Ranger is smashed into a tree by his so-called best friend. At the same moment, this “friend” is not fearing he may die, but he’s fearing that he may go to jail or worse, prison. The driver/friend conjures up an awkward plan to sneak away and avoid law enforcement … and oh yeah, “hopefully my friends will be ok.”

The young man, whose body was prone in the mangled ATV was not the only injured player in this story; next to him in these exact same moments is another young man, who is unconscious with his head through the plexiglass windshield of the ATV. This is bad. Yet, the kid who was driving is only worried about himself.

The group had just gone out for what was supposed to be a short ride around the property of the 2 parents, who own businesses in “downstate” Michigan ... Dewitt to be exact. This story is set in rural northern lower Michigan, about an hour and change south of the Mackinac Bridge at a beautiful place called Higgins Lake. It is set in a small neighborhood of mostly summer-homes, at a time of year during which very few people are supposed to be around except for the year-round residents.

This is a vacation spot, a larger, inland lake with crystal blue water that would let you see 30-40 feet to the bottom on a sunny day. This is a spot, where people usually go to get away from the bustle of downstate homes in places like Lansing, Detroit and Grand Rapids. These kids, all but one of whom was under 21, spent the day riding around on “toys,” cutting wood and drinking beers – all while “mom” is around. They had no business getting in this ATV on a cold night in late March. Add to that: the driver was shutting off the lights, fishtailing and driving way too fast for the conditions. They were drunk, he was reckless, it was a recipe for disaster.

The driver turned down the wrong road, thinking he was driving on the road to his parents’ driveway. Instead, he turned down a short road that dead-ends at another road. Thanks in part to his intoxication and thanks in part to his conduct of turning off the exterior lights, he never saw the stop sign and flew past it, across the other road and into a tree with no evidence of braking and smashing into the tree at a high rate of speed. This was nearly deadly.

Back to those 2 young men, who were fighting for their lives: they get to hospitals in Northern Michigan, at which their lives are saved. They both recover slowly but surely: but their lives have been changed forever. For example, one of the adverse effects is that some of our hero’s teeth are gone. He will need jaw surgery. He will surely experience arthritis from the compound fracture in his leg and at least in the short term – he struggled with memory and PTSD. Fortunately, Janet, who lived near this accident scene - is a nurse. Janet saves lives for a living and she helps Sgt. Norm Labonte of the Gerrish Township Police Department save the lives of our 2 heroes.

I get a call that Saturday morning; my 19-year-old client’s father is on the phone. He is emotional. The other family is pretending that their son, the driver, did nothing wrong. It goes beyond that – the other family is actively trying to cover up what really happened. They snuck their son, the driver, to a hospital in Grayling just moments after this near-fatality. I can never prove what they actually said to him as he walked inside the hospital that night shortly before midnight, and they all deny it, but I wonder if what they said to the kid was “don’t let them stick a needle in your arm.” Why not? Because that means that they will be drawing your blood and that means someone will be analyzing that blood for the presence and they level of alcohol in your blood. And yes, he left when a care provider asked to draw blood from the kid.

That is not all: the dad tried to get one of the kids in the back to say she was driving. When that did not work, they tried to blame the accident on the kid in the middle seat in the front for driving and smashing into the tree. Why? They thought he would die and would not be able to refute it.

The adult brother of the driver and his soon-to-be wife show up to the accident scene and someone disturbed the ground below. Law enforcement knew it but couldn’t prove it. When Michigan State Police troops showed up back at this beautiful lake house on the shores of Higgins Lake in the early morning hours of the next day - the driver lied about who was driving. He blamed the kid who they thought would die.

I know what you’re thinking – wait these kids were all friends and rather than try to help, the driver and his parents snuck him off to a different hospital as they lay helpless potential breathing their last?

Yep – that’s what they did.

I know – disgusting, right?

The prosecutor charged the driver with reckless driving causing serious injury and charged 2 counts along with a count of failing to remain at the scene of the accident. Reckless driving causing serious injury means you drove with wanton and willful disregard for the likely outcomes of your conduct and 2 passengers in your vehicle suffered a serious injury defined in several ways including a comatose state or a serious fracture – and both our hero and his fellow passenger lost consciousness for several days. It’s punishable by a maximum of up to 5 years in prison.

I know what else you’re thinking: what about the parents? Don’t they bear some criminal liability if these kids were drinking and their kid smashed this ATV into a tree? Don’t they bear some criminal liability if they helped their son leave the scene of the accident, a crime in and of itself? The prosecution would have had to prove a number of things beyond a reasonable doubt that were difficult to prove in order to put the parents on the hook criminally.

But guess what, the burden of proof in a civil case is not as high as proof beyond a reasonable doubt: it’s what we call “preponderance of the evidence.” In other words, “50% plus a feather,” as I hear other lawyers describe it.

So we name everyone in a civil suit; the parents, the brother, the kid-driver. Thanks to the fact that Sgt. Labonte of the GTPDepartment had his mobile vision recorder (MVR) working and had it on after he arrived at the scene of this horrifying accident, we had lots of proof. Further, because the ATV is not considered a motor vehicle for purposes of Michigan’s no-fault auto insurance law, we were able to go after the kid driver under general negligence principles.

General negligence requires basic things:

a. Duty by the defendant to the injured party
b. Breach of that duty
c. Damages suffered by that injured party
d. Causation between the breach of duty and the injuries.

Here, it was simple to pin liability on the kid-driver. The passengers in the back testified at one of the criminal hearings that the kid was driving the ATV. We even see the kid sneaking away from the accident scene on Sgt. Labonte’s MVR as our heroes were moaning in pain and pleading for help.

Further, we sued the parents under principles of “negligent entrustment” for letting their kid drink alcohol and allowing their kid to have carte blanche to operate the ATV.

We also sued all of the owners who were on the title to the house for what is commonly called “social host” liability theory.

When we went through the discovery process, two of the more important things that we did, which were moves that we make in almost every case, were to send what are called interrogatories, requests to produce documents and things and; requests to admit. We knew that this family was trying to weasel out of their responsibility to these injured kids. We knew that they probably had different sources of coverage for insurance and we knew that we could both pin them down on inconsistencies and on things that they could not “back away” from for trial.

Then we deposed all the defendants. They could barely keep any of their stories straight. What’s even more amazing is that they contradicted each other, even though they were all in the same room during each other’s depositions. As parties in the case, a person in a lawsuit has the right to attend all depositions. Depositions are oral questions during which the witness or party being deposed has to answer all questions under oath unless a privilege applies.

We then went to what is known as “mediation” with the defendants’ and their attorney. All the discovery and mediation was consolidated for purposes of discovery. We prepared a “documentary” on the story of our hero, his injuries, his fight to recover and his emotional battle with wrestling with the fact that his best friend not only caused the accident but then snuck off from the scene and that he and his family tried to cover it up.

The 2 victims in this story recovered a total of about 1.2 million in proceeds. Is it enough? Some would say that it is too much. I did not name names in this tale out of respect to our client, who to me remains a hero based on how hard he fought to recover and based on how graceful he was in signing off on a very sweet plea offer and magnanimous sentence the driver received in the criminal case. The family involved in the cover-up knows who they are and the damage their conduct caused to so many lives. They have to live with themselves even though they managed to get away with a lot in the course of this story. I only hope that they remember that in the race to the finish line of life: karma is the horse that never loses.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.