Jennifer's Case:
How A Negligent Government Caused A Young Woman's Semi-Coma and Death. How the Republicans on the Michigan Supreme Court Left Her Without A Remedy.
Jennifer Koenig vs. South Haven
Jennifer Koenig was a bright, beautiful, energetic girl - full of vitality. She was the pride of her parents, Carol and Fred Koenig. Jennifer was full of love for her family and friends and ambitious about her future. But the breach of certain promises and gross negligence of the City of South Haven stole her future and her life from her parents. Adding injustice to Carol and Fred Koenig's grief, the Republicans on the Michigan Supreme Court left Jennifer and her parents without any remedy. Here is Jennifer's story:
On May 10, 1990, Jennifer Koenig traveled from her home near Kalamazoo to South Haven, Michigan with friends from her high school. Jennifer and her classmates visited the lakeshore to see the lake and walk on the North Pier at South Haven. Unknown to Jennifer and her friends, the city government of South Haven failed to protect Jennifer and her friends from dangers on the pier.
18 years earlier, the City of South Haven had signed a "Memorandum of Understanding" - a Contract - with the owner of the pier. The contract was intended to protect innocent visitors to the pier, like Jennifer, who were unfamiliar with the risk of sudden, large and unpredictable waves crashing over the piers.
The Agreement was clearly intended to protect people, like Jennifer and her friends, who may visit the pier. The Agreement provided: "The public shall be restricted from the North and South piers in the City of South Haven during periods of inclement weather and when great danger to persons or property exists, said times to be determined by the City Manager...."
Thus, the City of South Haven agreed to control access to the pier, a known tourist attraction. Specifically, the City had agreed to close the pier when it was dangerous for people to be on it. Fulfilling its part of the Agreement, the pier owner gave the city of South Haven fences, gates, locks, and keys which were to be put up by the city government, after the winter ice and snow had melted from the pier. The City Government agreed to use the fences, gates and locks to keep people out when it would be dangerous to be on the pier.
As of May 10, 1990, the City of South Haven had not yet bothered putting the fences up for the year. Because weather conditions were worsening that day - cold, drizzling and windy -, the City Government should have fulfilled its contractual promise to close the pier to the public. But the pier was left open.
Seeing no gate closing the pier, Jennifer and three of her friends strolled out onto it. They were unaware of the history of sudden waves crashing over the pier. After a while, one of her friends headed back to the car. As she left the pier, Jennifer's girlfriend glanced over her shoulder and saw an unexpectedly large wave crash across the pier. Jennifer and two of her friends were swept into the channel.
The water was cold and rough. One girl was rescued. One boy drowned. Jennifer was pulled from the water, "near drowned." She was left in a permanent, semi-comatose, vegetative state.
For four long years, Jennifer languished in a Grand Rapids nursing home. Virtually every single day, her parents, Carol and Fred Koenig, and other family members drove from Kalamazoo to attend and give her what comfort and care they could.
Though non-communicative, Jennifer clearly suffered. Visitors and staff observed that it was common to hear Jennifer's cries of anguish from the lobby of the nursing home all the way to her room.
By the fall of 1994, Jennifer's parents successfully arranged care for Jennifer in a nursing home near the family home in Kalamazoo, to make it easier for the family to keep their daily vigil. Jennifer finally succumbed to her injuries and died on July 27, 1995.
When they learned how the city government had failed to honor its agreement to protect the public from hazards on the pier, Jennifer's parents sought a remedy in court to hold the government accountable and to ensure nothing like this would ever happen to other parents' children.
Jennifer's case went to trial in the fall of 1994 before Jennifer died. Her case presented two claims against the City Government: First, a "third party beneficiary"* breach of contract claim against the city government, and the second for the gross negligence of two former city government employees.
Despite the government's failure to honor its agreement to lock the pier gates when necessary, the trial court would not even allow Jennifer a jury trial on her third party beneficiary breach of contract claim against the government. The Court limited Jennifer to only her gross negligence claim against the two former government employees. But, the trial court refused to admit critical evidence proving that the government had prior notice about other people who also previously drowned when they were swept off the pier. Without that critical evidence, the jury eventually granted the remaining defendants a "no-cause" verdict.
Though deeply disappointed, Jennifer's parents appealed to the Michigan Court of Appeals. After a careful review of Jennifer's case, the Court of Appeals reversed and agreed with Jennifer's parents that she should have been given a trial against the City of South Haven on the third party beneficiary breach of contract claim. The Court of Appeals Judges ruled that the "Memorandum of Understanding" was clearly intended to protect people like Jennifer Koenig.
The Michigan Supreme Court granted the government's application for leave to appeal to decide whether Jennifer could even make a claim against the government, but refused to consider whether she should have a new trial, or any trial at all against the individuals who were alleged to have been grossly negligent.
The Republican Majority ultimately reversed the Court of Appeals and held that Jennifer and her parents were not entitled to any trial on any claim whatsoever. Writing for the Majority, Justice Clifford Taylor ignored the clear language of the Agreement addressing the "great danger to persons" and the parties intent that "the public...be restricted...during periods of inclement weather." Increadibly Justice Taylor and his concluded that Carol and Fred Koenig's "daughter was not an intended beneficiary" of the Agreement.
But Jennifer was a "person" and a member of "the public." So, Michigan citizens are appalled by another injustice from the pens of the Republicans on the Michigan Supreme Court. We ask: if she was not an intended beneficiary of the Agreement who would ever be, Justice Taylor?
Adding injustice to Carol and Fred Koenig's grief, the Republicans on the Michigan Supreme Court left Jennifer and her parents without any remedy.
* Legalese to Plain English: What is a Third Party Beneficiary Contract?
Most contracts involve only the parties to the agreement. For example, when you buy a car, a home or an appliance, the agreement is between you and the person (or business) selling you the item with each party receiving a benefit. E.G., you receive a car; the seller receives money If the business breaches the agreement, you can go to court to seek a remedy for the breach.
Sometimes, the parties to an agreement intend that a third person, who is not a party to the contract, receive the benefit of the agreement. Perhaps the most common example of such a contract is a life insurance contract. When you die, you won't be there to collect the life insurance benefits, but your beneficiary will collect the proceeds. If the insurance company refused to pay, your beneficiary has the right to sue the insurance company to recover the benefits. Another example of such an agreement is when a mother engages another person or a business to provide day care for her child - The child is a third party beneficiary of the contract between his parent and the day care provider.
Even citizens can be third party beneficiaries of contract made between their government and another party. Though the right is now threatened by the current Republican Insurance "Injustors" on the Michigan Supreme Court, a third party beneficiary has a right to sue the government for damages when that person has been harmed as a result of the breach of an agreement between the government and another party. A classic example cited in a famous contract law text is : "A, a municipality, owes a duty to the public to keep its streets in repair. B, a street railway company, contracts to keep a portion of these streets in repair but fails to do so. C, a member of the public, is injured thereby. [C] may bring actions against A and B and can recover judgment against each of them" - that is,
- unless you are injured in Michigan, like Jennifer Koenig, and the Republicans on the Supreme Court have your case.