If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DAVID BROWN, Personal Representative of the 

ESTATE OF DAWSON L. BROWN, JERRY M. 

SOVA, JR., Personal Representative of the ESTATE 

OF KOLE ALFRED PHILIP SOVA, AMY S. 

SATTERTHWAITE and WILLIAM R. MAYS, SR., 

Co-Personal Representatives of the ESTATE OF 

WILLIAM RICHIE MAYS, JR., KURTIS B. STITT, 

and RAYFIELD JOHNSON II,

Plaintiffs-Appellants,

UNPUBLISHED

September 27, 2024

8:50 AM

v No. 365321

Lenawee Circuit Court

LIVE NATION WORLDWIDE, INC., LC No. 2022-226896-NO

Defendant/Cross-Defendant/CrossPlaintiff-Appellee,

and

MICHIGAN INTERNATIONAL SPEEDWAY, 

LLC,

Defendant/Cross-Plaintiff/CrossDefendant-Appellee.

Before: MALDONADO, P.J., and PATEL and HOOD, JJ.

MALDONADO, P.J. (dissenting).

Because there are questions of fact regarding whether defendants breached their duty to 

provide plaintiffs with a safe campground and because it is a jury’s job to apportion fault between 

defendants and plaintiff, I would reverse the trial court’s order granting summary disposition in 

favor of defendants. Accordingly, I dissent.
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“To establish a prima facie case of negligence, a plaintiff must prove the following 

elements: (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal 

duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of 

the plaintiff’s damages.” Anderson v Transdev Servs, Inc, 341 Mich App 501, 508; 991 NW2d

230 (2022). To the extent that plaintiffs’ claim is for premises liability, they must establish the 

elements of negligence. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 693; 822 

NW2d 254 (2012). “Generally, an owner of land owes a duty to an invitee to exercise reasonable 

care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on 

the land.” Id. (quotation marks and citation omitted). Michigan uses a comparative fault scheme 

for negligence actions. MCL 600.2957; MCL 600.6304. “A defendant attempting to mitigate his 

liability through a comparative fault defense has the burden of alleging and proving that another 

person’s conduct was a proximate cause of the plaintiff’s damages.” Holton v A+ Ins Assoc, Inc, 

255 Mich App 318, 326; 661 NW2d 248 (2003).

While the trial court presented this case as a question of duty, the correct focal points of 

the analysis are breach and comparative negligence. Nobody disputes that defendants owed 

plaintiffs a duty to provide reasonably safe campsites free from foreseeable risks of harm. 

Plaintiffs argue that defendants breached this duty by providing unreasonably small campsites, by 

having too many campsites in the campground, and by failing to have 24/7 security patrols. 

Defendants dispute these alleged breaches and assert that plaintiffs were at fault because they 

brought the portable generator and set it up such that exhaust would be vented under the camper. 

Defendants also argue that the hazard was open and obvious. All three of these issues present 

questions of fact that, at a minimum, require additional discovery.

I. BREACH OF DUTY

There is a genuine issue of material fact regarding whether defendants breached the duty 

owed to plaintiffs. Plaintiffs rely largely on administrative rules regulating campgrounds. 

Mich Admin Code, R 325.1556(1) requires that campsites “shall abut on a roadway, shall 

be of such size and so arranged to provide space for a recreational unit and vehicle parking, and 

shall have not less than 15 feet of road frontage width and 1,200 square feet of area.” However, 

Mich Admin Code, R 325.1586 allows EGLE to grant variances, and in this case, defendants were 

allowed to provide campsites as small as 800 square feet but were warned that campsites smaller 

than 800 square feet were not considered safe. Moreover, the variance was conditioned on the 

requirement that the campground be provided 24-hour security monitoring and medical dispatch. 

“[T]he violation of an administrative regulation constitutes evidence of negligence,” but unlike 

violation of a statute, it does not create a rebuttable presumption of negligence. Kennedy v Great 

Atlantic & Pacific Tea Co, 274 Mich App 710, 721; 737 NW2d 179 (2007).

There are questions of fact regarding whether these guidelines were followed. In particular, 

plaintiffs assert that the campsites were smaller than 800 feet and that defendants did not provide 

the required security monitoring. Plaintiffs have already provided some evidence that these 

regulations were not followed, and additional discovery could have yielded additional information 

into this matter. Plaintiffs submitted comments on social media posts from other campers at the 

festival complaining that the campsites were surprisingly small and not meeting their space needs. 
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Plaintiffs also submitted a news article that stated that new security and medical personnel would 

be available at the 2022 Faster Horses festival, suggesting that these administrative compliance 

measures were not in place in 2021. In addition to the evidence regarding compliance with these 

safety requirements, plaintiffs produced an expert affidavit suggesting that smaller campsites 

increase carbon monoxide risks. More generally, the expert opined that defendants “failed to 

mitigate a hazard to which the occupants of the incident RV were exposed causing a dangerous 

condition at the” campground.

The majority contends that “[p]laintiffs had a superior degree of possession and control of 

their campsite than Live Nation,” but plaintiffs did not have any control over how large their 

campsite was or over how many people were allowed to use the campground. The different 

perspectives on control of the land further demonstrates the need for a jury to resolve these issues. 

The majority emphasizes that plaintiffs “were injured by the carbon monoxide fumes emitted from 

the improperly vented generator” while overlooking the reality that many people are ignorant of 

the dangers of carbon monoxide and the safe operation of generators. There is a genuine issue of 

fact regarding whether it was foreseeable that one of the 1,272 campsites would be set up by 

someone who did not fully understand how to safely set up a generator. It should be a jury, not a 

court, that weighs defendants’ decision to have generators operating on such small campgrounds 

against plaintiffs’ failure to properly operate their generator. Put differently, a jury should decide 

whether defendants’ decision to operate with such small campgrounds unreasonably increased the 

risk that someone would make this mistake. The literature referenced by the majority is certainly 

relevant evidence but is not definitive. The majority opinion would certainly make persuasive 

closing arguments on behalf of defendants, but it demonstrates a misunderstanding of a court’s 

role in these matters.

II. COMPARATIVE NEGLIGENCE

Defendants argue that plaintiffs were at fault for the injuries because plaintiffs brought the 

generator to MIS’s property and then failed to set it up in a safe manner. Defendants correctly 

assert that plaintiffs created the specific hazard involved in this tragedy, and there certainly are 

questions of fact regarding the prudence of plaintiffs’ actions in this case. However, there are also 

questions of fact regarding the foreseeability of the harm caused by plaintiffs and whether an 

ordinary guest at the music festival would understand the risks associated with such a generator’s 

exhaust. The expert opined in his affidavit that it was unreasonable for defendants to believe that 

all of the campers would understand these risks, and the social media comments noted in section 

II.A, supra, indicated that there were other people at the campground who set their generators up 

in a manner similar to plaintiffs. While plaintiffs likely played a role in bringing about this tragedy, 

there remain questions regarding the apportionment of fault, and comparative negligence is 

generally resolved by juries. See Zaremba Equip, Inc v Harco Nat’l Ins Co, 280 Mich App 16, 

33; 761 NW2d 151 (2008).

The majority fails to recognize that this case is about the extent to which plaintiffs’ injuries 

were caused by defendant’s failure to provide safer camping conditions compared to plaintiffs’ 

failure to properly operate the generator. The majority decided as a matter of law that plaintiffs

were entirely at fault, but fault in this case should have been apportioned by a jury as a matter of 

fact. 
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III. OPEN AND OBVIOUS

Finally, defendants argue that they are not liable because the hazard was open and obvious. 

We conclude that this likewise presents a question of fact. “With regard to adult invitees, whether 

a danger is open and obvious is judged from an objective standard, considering whether it is 

reasonable to expect that an average person with ordinary intelligence would have discovered it 

upon casual inspection.” Estate of Goodwin v Northwest Mich Fair Ass’n, 325 Mich App 129, 

158; 923 NW2d 894 (2018) (quotation marks and citation omitted). “[A] plaintiff’s actions may 

be used as evidence of how a reasonable person would confront a dangerous condition.” 

Gabrielson v The Woods Condo Ass’n, Inc, ___ Mich App ___, ___; ___ NW3d ___ (2024) 

(Docket No. 364809); slip op at 6. The open and obvious doctrine is a question of fact that pertains 

to breach of duty and comparative fault. Id., citing Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95; 

1 NW3d 44 (2023).

There is a question of fact that should be decided by a jury regarding whether the hazard 

was open and obvious. It is true that the generator was put in place by plaintiffs and that it was 

openly observable that the generator was venting under the camper. However, there are questions 

regarding whether “an average person with ordinary intelligence would have” recognized the risks 

posed by this generator. Godwin, 325 Mich App at 158. Indeed, the fact that plaintiffs were at a 

campsite with several people who did not recognize the hazard is evidence that it was not open 

and obvious. See Gabrielson, ___ Mich App at ___; slip op at 6. Further, the unrebutted expert 

referenced above opined that it was unreasonable for defendants to expect that all of the attendees 

at the festival would understand these risks, and the messages referenced above suggest that many 

people had their generators set up in similar manners.

In conclusion, I would reverse the trial court’s decision to grant summary disposition in 

favor of defendants and remand this to be decided by a jury.

/s/ Allie Greenleaf Maldonado