Battle lines drawn as MSC denies leave in black ice case

The Michigan Supreme Court’s denial of leave to appeal in Brown v. Taubman Co., et al., means that a slip-and-fall plaintiff can take her black-ice case to a jury.

The Court of Appeals had ruled that there was conflicting evidence whether the black ice was open and obvious. The MSC denied leave on a 3-3 vote.

Justice Brian K. Zahra sat this one out because he was on the Brown panel.

The black-ice issue needs to be addressed, said Justice Stephen J. Markman in his dissenting opinion.

This case illustrates the ongoing confusion in the law of this state concerning the “open and obvious” status of “black ice,” confusion that this Court has an obligation at some point to dispel. Instead, once again, we fail to afford guidance and direction on this matter, leaving in place conflicting and discordant decisions, and thereby enabling defendants and plaintiffs to each rely upon different precedents in support of their respective positions that “black ice” is or is not “open and obvious.” …

As the highest court of this State — a state in which snow and ice have sometimes been known to accumulate during winter months — it is our responsibility to address the confusing and inconsistent approaches in our caselaw and to clarify the rights and obligations of persons who must regularly confront these conditions.

True enough.

As to how it should be resolved, the black-ice battle lines are drawn in Justice Marilyn Kelly’s concurrence and Markman’s dissent.

Here’s Markman’s take:

The Court of Appeals, citing the existence of conflicting evidence, concluded that reasonable minds could differ regarding whether the so-called “black ice” was open and obvious. I disagree. A lifelong resident of Michigan should be well aware that during winter, when for several days snow has been falling, and when temperatures have been and remain below freezing, ice may form on parking lots. These factors are more than sufficient, in my judgment, to establish the presence of potentially hazardous conditions that would have alerted an average person of ordinary intelligence to discover and react to the “danger” upon casual inspection.

Just a minute, replied Kelly, you appear to be saying that all icy conditions are open and obvious:

The dissent opines that a lifelong resident of Michigan should be aware that black ice forms during the winter. Hence it is open and obvious even when invisible. If this position were adopted by the Court, people in Michigan would be on notice that, in winter, black ice is to be expected and no liability for falling on it exists. This proposition is unprecedented in Michigan law. As our Court of Appeals has astutely observed, black ice, defined as an invisible or nearly invisible coating of ice on a paved surface, is not by its nature open and obvious.

Well, Markman responded, if you just focus on the visibility aspect:

black ice will never be considered “open and obvious,” and property owners, to whom black ice is similarly invisible, will always be held liable for accidents arising from this condition.

Further, contrary to the analysis of Justice KELLY, “[t]he ['open and obvious'] test is objective, and the inquiry is whether a reasonable person in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.” …

That “black ice” may have obtained in this case does not alter the reality that as wintry conditions persist in this state, a reasonable person will increasingly be alerted to the hazardousness of such conditions, and will increasingly be assumed to have encountered conditions fairly characterized as “open and obvious.”

Another black-ice case will find its way to the MSC in the foreseeable future and perhaps the Court will then seize the opportunity to provide needed guidance.

Until then, there’s plenty of a la carte precedent from which to choose.

In their opinions

“To now raise, as a last ditch argument, unsubstantiated and generalized notions of racial animosity into an otherwise unremarkable trial is both improper and unwarranted, and hopefully will not be presented to this Court again.”

– Michigan Court of Appeals Judge Christopher M. Murray, concurring in the unpublished per curiam decision of McMillan v. Davis.

John McMillan fell down the basement stairs of property he rented from Dwayne L. Davis. At the resulting trial, just about everything except the medical bills was an issue.

There was a dispute about the origin and extent of McMillan’s shoulder problems. The evidence suggested a prior shoulder injury unrelated to the fall.

McMillan’s claimed wage loss was thrown into question when he testified about his hourly rate and hours worked. He fell in May 2006 but did not file a 2006 tax return because he had no income. A medical leave request to his employer indicated he was able to work.

A hospital record from before the fall indicated that McMillan wanted to relocate to Tennessee. Davis testified that McMillan told him the same thing. McMillan denied making the statement and said he left the state because he couldn’t find work after his accident.

McMillan testified that his shoulder hurt him constantly, especially during the winter and that he had difficulty sleeping on his shoulder because it ached.

The jury listened to all of this and came back with a verdict that equaled McMillan’s medical bills. No pain and suffering. No lost wages.

No way, said McMillan, who moved for JNOV or a new trial on the theory that if there were medical bills, there must have been pain and suffering to go along with them. The verdict is inconsistent, he said.

Not so, said the Court of Appeals. In the lead opinion, Judge Patrick M. Meter, citing Kelly v Builders Square, Inc., 465 Mich. 29 (2001), explained that

the jury may have concluded that [McMillan's] “subjective experience[ ]” was insufficient “to prove pain and suffering,” … or may have found that his testimony on the issue lacked credibility.

Well, what about those lost wages? That’s also a matter of credibility, said Meter.

As with the prior assertion of error … the jury could have discredited plaintiff’s testimony on the issue of wage loss and concluded that, in light of countervailing evidence, he had not adequately established an evidentiary basis for such an award.

Something was going on the jury room, McMillan insisted.

McMillan provided two affidavits from one of his trial-court attorneys. From Murray’s concurring opinion:

The first affidavit indicates that the affiant and defense counsel spoke to three members of the jury and, in response to a question about why non-economic damages were not awarded to the plaintiff, the three jurors stated something to the effect that they did not believe any party or any of the witnesses. Based on this, the affiant concluded that “the jurors were clearly biased against both parties and all witnesses in this case and showed definite animus.”

That affidavit was followed by an affidavit from co-counsel for plaintiff, who simply stated that, to the best of his recollection, all of the impaneled jurors were white, and that all but one of the witnesses and parties were black.

So let’s get to the punchline, said Murray.

[W]hat is presented is an argument that because a black plaintiff did not get all the damages he requested at trial from an all-white jury, the jury must have acted with racial animus.

However, an argument premised upon post-verdict conversations with several jurors about their thought processes is precluded by the law … while this specific and unsubstantiated argument can only detract from the public’s respect for our bedrock system of trial by jury … .

There is no argument made, and therefore no evidence presented, to suggest that the jurors acted in any manner other than how they were instructed to decide this case by the trial court. And, as noted by the majority opinion, the law squarely rejects the other arguments plaintiff has made in an attempt to overturn the verdict.

To now raise, as a last ditch argument, unsubstantiated and generalized notions of racial animosity into an otherwise unremarkable trial is both improper and unwarranted, and hopefully will not be presented to this Court again.

Judge Jane M. Beckering concurred in the result. The case, she said, was a “hotly contested” credibility contest from start to finish.

While the jury ultimately found that defendant’s negligence proximately caused plaintiff damages, there was much dispute over both the origin and extent of plaintiff’s shoulder problems … .

Paying due deference to the jury’s role in assessing credibility and weighing the evidence with respect to plaintiff’s pain and suffering associated with the fall at issue … I cannot find that the trial court abused its discretion in denying a new trial under the particular facts of this case.

The price of wrongful conviction: $2 million

Claude McCollum, who spent more than two years in prison for a murder he didn’t commit, has settled his wrongful-conviction suit for $2 million, according to a report in this morning’s Lansing State Journal.

McCollum was convicted four years ago of murdering a Lansing Community College professor in a classroom. Video evidence that showed him sleeping in another part of the campus when the murder occurred never made it to the jury. Later, another man confessed to the murder.

After McCollum was released from prison, he celebrated his freedom by suing everyone who had anything to do with his arrest and conviction. See, The Michigan Lawyer, Will patience pay off in civil suit against prosecutors and police?

Most defendants were dismissed from the case. From the LSJ:

The settlement, reached late Tuesday, brings an end to two and a half years of litigation that eventually centered on whether Lansing Community College police Detective Rodney Bahl hid evidence of McCollum’s innocence.

Three attorneys, Hugh Clarke, Jr., Thomas Wuori and E. Thomas McCarthy, represented McCollum in the civil suit.

They’ve structured the settlement to be paid out over a number of years. Says Clarke in the LSJ:

We have taken all the steps we can to protect him from any of the vultures and con-artists.

Don’t even apply – it’s locked up, it’s not there, and he won’t have it.

MSC rules in car wash slip-and-fall case

A divided Michigan Supreme Court has ruled that a plaintiff who slipped and fell while using a coin-operated car wash in freezing conditions can’t sue even though equipment designed to keep the wash bays ice-free wasn’t working.

The 4-3 decision reverses the Michigan Court of Appeals in Kachudas v. Invaders Self Auto Wash, Inc. (majority opinion) (concurring opinion).

The COA held that Kachudas’ claim sounded in ordinary negligence, not premises liability, and as such, the trial court erred in applying the open and obvious doctrine to dismiss his claim.

The COA majority opinion in Kachudas set this factual scene:

• Two of the four wash bays “had ice formation.”
• The equipment designed to keep the bays ice-free wasn’t working but should have been given the outside temperature.
• The car wash owner was dealing with the issue when Kachudas fell and broke his wrist.
• The owner had begun placing orange warning cones in front of the bays but got sidetracked when a friend showed up and began talking to him.
• The owner went to bay three, where Kachudas fell; it was one of the two that did not have “ice formation” when the owner arrived to inspect his business.
• The floor looked wet but the owner concluded there was ice because the floor was slippery.
• The parties agree that the ice Kachudas slipped on formed when he sprayed his own car with water.

On these facts, the COA concluded:

Plaintiff’s allegations, that defendant knew of a malfunctioning heating system, but did not do anything, or did not take sufficient action, to protect the public from the likely effects of the malfunctioning system, and that defendant’s failure to act violated a duty to him and the public, are allegations concerning conduct that sound in negligence.

While we recognize that plaintiff’s complaint also pleads allegations typically found in premises liability claims, it is plain that the complaint challenges defendant’s conduct in the face of knowledge about the malfunctioning heating system. …

[T]he applicability of the open and obvious danger doctrine depends on the theory underlying the negligence action. …

Because the trial court misconstrued the underlying theory of the case as one for premises liability rather than negligence, the trial court erred as a matter of law in applying the open and obvious doctrine.

Last month, the MSC heard oral arguments on whether to grant leave to appeal. In a May 21 order, the Court declined to take the case.

All justices except Diane Marie Hathaway agreed that the trial court correctly classified the case as a premises claim.

Although an injured person may pursue a claim in ordinary negligence for the overt acts of a premises owner on his or her premises … the plaintiff in this case is alleging injury by a condition of the land, and as such, his claim sounds exclusively in premises liability.

But the Court was more closely divided on whether there was a jury issue involved.

Justices Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young Jr. and Stephen J. Markman said nothing could be more obvious than the notion that water sprayed into freezing air generally produces ice:

[T]he circuit court properly ruled that the alleged hazardous condition was open and obvious, because a reasonably prudent average user of ordinary intelligence spraying water outdoors in a temperature range of 11 to 24 degrees would anticipate the likelihood of freezing and the resulting danger therefrom. Mann v. Shusteric Enterprises, Inc., 470 Mich. 320 (2004); Slaughter v. Blarney Castle Oil Co., 281 Mich. App. 474 (2008).

Justice Michael F. Cavanagh, joined by Chief Justice Marilyn Kelly, conceded the point that the case was a premises claim. However:

I would nonetheless affirm the Court of Appeals result because, on the facts of this case, summary disposition was improper. Plaintiff has raised a genuine issue of material fact regarding the open and obvious doctrine, and the issue should be submitted to a jury.

Cavanagh didn’t get more specific about why the case should go to the jury.

Hathaway had this to say:

I respectfully dissent from the order of this Court which reverses the Court of Appeals and reinstates the Genesee County Circuit Court’s order granting summary disposition to the defendant.

I believe the trial court’s grant of summary disposition was in error and that the Court of Appeals properly reversed that decision. Accordingly, I would affirm the Court of Appeals.

MDP Chair Brewer slams MSC Justice Young

Michigan Democratic Party Chair Mark Brewer

Michigan Democratic Party Chair Mark Brewer is getting a jump start on the silly season of politics.

Brewer jabbed at Michigan Supreme Court Justice Robert P. Young Jr. in a press release issued yesterday. Young, who is running for re-election to the MSC this fall, doesn’t care about the average working Joe or Josephine, says Brewer.

Young, along with a majority of the justices, reversed the Michigan Court of Appeals in Alderman v. J.C. Development Communities, a construction-accident case in which Randy Alderman, a subcontractor’s employee, was badly burned when a crane hit a power line.

Michigan Supreme Court Justice Robert P. Young Jr.

At issue was whether the general contractor was liable to Alderman under the common-work-area doctrine. Under Ormsby v. Capital Welding, Inc., 471 Mich. 45 (2004), the doctrine requires proof of four elements:

• (1) that the defendant contractor failed to take reasonable steps within its supervisory and coordinating authority;
• (2) to guard against readily observable and avoidable dangers;
• (3) that created a high degree of risk to a significant number of workers; and
• (4) in a common work area.

Judge Edward Sosnick of the Oakland County Circuit Court said Alderman hadn’t made his case, reasoning that Alderman and the other five members of his crew were the only ones in the area. According to Sosnick:

At most, six employees of one subcontractor were exposed to the risk of electrocution. This is not sufficient to establish a common work area.

The COA panel, Judges Donald S. Owens, Deborah A. Servitto and Elizabeth L. Gleicher, disagreed.

Plaintiff presented evidence that this construction project was rather large and that his employer was not the only subcontractor working in the vicinity of the power lines on the date of this accident. …

Plaintiff’s crew may have been the only subcontractors working on lot 273 when the accident occurred, but the power lines did not merely run along the one lot. They ran along several lots under active construction, and electricity is commonly understood to be hazardous.

The crane could easily have torn down the power lines, creating a hazard to anyone within striking distance of the fallen lines, or could have caused a fire. The risk of harm associated with a crane hitting the power lines is high and is not as narrow as defendant would suggest.

The risk at issue is the potential harm to be had if the crane hit the power lines — not merely the harm to be had if the crane made contact with the power lines and someone was involved in the electrical circuit between the power lines the crane.

In an order issued last week, Young and four other justices reversed, using language that generally tracked Sosnick’s when he initially dismissed the case:

The risk of injury at issue here was the risk of electrocution from a subcontractor’s crane coming into contact with power lines above the construction site.

The only employees exposed to the risk of electrocution were two to six employees of one subcontractor, including the plaintiff, and therefore there was not a high degree of risk to a significant number of workers.

Brewer, on the Democratic Party’s website, was quick to pounce, painting Young as a friend of insurance and business interests and a working-class enemy:

On Law Day, which is intended to celebrate the benefits to all Americans of the American legal system, Michigan Supreme Court Justice Bob Young again denies those benefits to injured workers.

In an order released Friday, April 30th, Young and his colleagues denied relief to a construction worker, severely burned and nearly electrocuted on the job, because there was “not a high degree of risk to a significant number of workers.” …

“If six employees at risk of electrocution is ‘not a high degree of risk to a significant number of employees’ according to Young, how many workers doing what dangerous job is enough?” asked Michigan Democratic Party Chair Mark Brewer. …

“To Young, only insurance companies, corporations and their CEO’s, the people who fund his campaigns, are entitled to legal protection.”

But Brewer’s rhetoric proves a little too much.

Could you imagine Brewer leveling the same broadside against MSC Justice Michael F. Cavanagh, who has had the warm support of the Democratic Party in elections past? Not in this lifetime.

But Cavanagh joined Young, and Justices Elizabeth A. Weaver, Maura D. Corrigan and Stephen J. Markman in reversing the COA and reinstating Sosnick’s dismissal. Chief Justice Marilyn Kelly and Justice Diane M. Hathaway would have denied leave to appeal the COA’s decision.

That might make one think that Alderman is not about one justice looking for an opportunity to kick someone when they are down and, instead, is better understood as a principled disagreement about the scope of a legal doctrine that forecloses one avenue of relief.

The silly season of politics is upon us.

MSC reinstates defamation award against pastor and church

“You shall not bear false witness against your neighbor.”
The Bible
Exodus 20:16 (New King James Version)

David R. Williams is the pastor of Mount Hope Church and International Outreach Ministries in Lansing.

It’s what some would call a megachurch: a large, architecturally impressive building with an ample parking lot; flags representing almost every nation on the planet flapping beside a main entrance; a congregation numbering in the thousands and an ambitious outreach ministry.

Williams and his church have had their share of controversy.

A few years back, the church bought the same time slot on the same day on all of Lansing’s major television stations. This was done so Williams could preach to a presumably wide audience about “end time.” This strategy was well-received by some and not by others, who were upset that Williams had pre-empted the game shows and situation comedy reruns they usually watched.

In 2008, backers of gay and lesbian marriages, angered by the church’s stance on such matters, protested during a Sunday service. This prompted a pair of Lansing lawmakers, including one who represents the district where the church is located, to introduce legislation dealing with disrupting church services.

More recently, the legal aftermath of a religious practice involving a member of the congregation played itself out in the courts.

From the Michigan Court of Appeals in Dadd v. Mount Hope Church:

In July 2002, plaintiff was a member of Mount Hope … .

During religious gatherings at Mount Hope, Williams sometimes asks congregants “if they would like to give their lives to Jesus and they come down [to the altar]. You’ve seen it in the Billy Graham crusades … . That’s an altar call.” During altar calls, Williams and other assigned ministers of Mount Hope pray over the congregants who approach the altar. Sometimes, congregants who answer the altar call fall to the ground, a phenomenon referred to as “slain in the spirit.” …

Williams testified that congregants do not regularly fall during an altar call, but plaintiff testified that she may have been “slain in the spirit” over 100 times. Sometimes plaintiff would fall to the ground and other times she would not fall.

Evidence was presented “that ushers were regularly provided during altar calls to catch congregants that fell while being prayed over.”

Dadd took part in a leadership rally at the church. There was an altar call. Dadd answered it.

While being prayed over by an assistant minister, she was “slain in the spirit,” fell backward and struck her head on the floor. Plaintiff sustained a head injury, the seriousness of which was in dispute.

Dadd’s medical bills began to add up and she asked the church for help.

Sir Thomas Browne once observed that charity begins at home. But insurance coverage, a Mount Hope representative told Dadd, ends at $5,000. Dadd sued for negligence. Where was the usher who was supposed to catch me?, she asked.

After the suit was filed, Dadd heard some interesting hearsay. A friend said that her sister-in-law said that Williams said “some things that weren’t very nice” about Dadd at another leadership rally. From the COA’s opinion in Dadd:

After summarizing the events surrounding plaintiff’s fall and noting that plaintiff refused to fill out insurance forms, Williams indicated that “it almost makes you want to think that this was a design. That this, this was a premeditated design – but I can’t say for sure, and I don’t know… .”

Plaintiff testified that she felt hurt by Williams’ comments. [Later], Williams wrote a letter and sent it to the members of the “120-prayer group.” The 120-prayer group is a group of 50 Mount Hope members that pray daily for Williams. In the 120-prayer group letter Williams explained, “what I believe,” and without mentioning plaintiff’s name, (though he admitted at trial the 120-prayer group letter was about plaintiff) he indicated that the church had received warnings about plaintiff being “trouble,” implied plaintiff was malingering, and that she was attempting to commit insurance fraud.

When Dadd got wind of this, she amended her complaint to add counts for intentional infliction of emotional distress, false light, slander and libel.

Before trial, Williams argued that his comments about Dadd were protected by a qualified privilege — the “shared interest” privilege, which “extends to all bona fide communications concerning any subject matter in which a party has an interest or a duty owed to a person sharing a corresponding interest or duty. The privilege embraces not only legal duties but also moral and social obligations.” See, Rosenboom v. Vanek, 182 Mich. App. 113 (1989).

The trial court declined to so instruct the jury. The jury specifically found that Williams had “knowledge that the statement was false or … act[ed] with reckless disregard as to whether the statement was false.” The jury assessed damages for Dadd: $40,000 for her negligence claim; $23,750 for her false-light claim; $200,000 for her libel claim and $50,000 for her slander claim. The trial court tacked on $3,505.68 in various taxes, costs and fees.

The COA reversed in part. As to the negligence claim, an usher should have been standing by for Dadd, the COA ruled.

Williams made it clear to the congregants that ushers were trained to catch persons who fall during an altar call. Significantly, plaintiff alleges that an usher specifically solicited her participation in the altar call. This usher then directed her to a specific place before the altar where a specific minister would pray over her. A person in plaintiff’s position could reasonably conclude that the usher who positioned her for this altar call would also guard her through the process.

But as to the intentional tort claims, the COA said all of those must be retried because the court should have instructed about qualified privilege.

Last week, the MSC reinstated the entire judgment on a 5-2 vote.

The trial court properly instructed the jury on false light invasion of privacy, which included an instruction that “plaintiff must prove by a preponderance of the evidence that the defendant must have known or acted in reckless disregard of the falsity of the information and the false light in which the plaintiff would be perceived.”

The jury found that the defendant acted with malice in making the statements which were the same ones alleged to have been defamatory. Because this finding of malice negates the qualified privilege that may exist in the context of the plaintiff’s claims for libel and slander, any error by the trial court in failing to instruct the jury on a qualified privilege for plaintiff’s libel and slander claims is harmless.

Justice Stephen Markman, joined by Justice Maura Corrigan, dissented.

Sixth Circuit: Wheels come off bicyclist’s case against postal service

whipsaw (hwip‘sô’) vt. … 2. to defeat or get the best of (a person) two ways at once …
Webster’s New World College Dictionary (4th Ed. 2007)

Joelle Premo was riding her bike in Royal Oak when a U.S. Postal Service truck hit her while she was in a crosswalk. Premo suffered a badly broken leg.

Premo did not have a no-fault insurance policy. She didn’t need one because she didn’t own a car. So, her attorney got in touch with the USPS to file a claim.

The USPS responded with a polite letter explaining that it was self-insured and that, thanks to the Supremacy Clause of the United States Constitution, Michigan’s no-fault act didn’t apply to the USPS. Included was helpful information about how to file a claim under the Federal Tort Claims Act, which, said the USPS, is the only possible way to get any money.

An FTCA claim was filed, and a fairly large one at that — $197,569.80 for personal injury and the property damage to Premo’s bicycle. The USPS responded with another polite letter. The USPS said, in so many words, we’ve looked into this, we’re terribly sorry you were hurt but our driver didn’t do anything wrong, good luck to you.

Premo decided against applying for insurance benefits from the state’s Assigned Claims Facility and instead sued in federal district court.

In Judge Avern Cohn’s courtroom, the USPS did a 180 and argued mightly that the FTCA required application of the no-fault act and that Premo was not entitled to either economic or noneconomic damages.

Cohn turned aside Premo’s argument that the USPS should be estopped from using the no-fault act first as a shield and later as a sword. He accepted the USPS’s arguments, in part, and awarded Premo $34,768.62 in economic damages.

Nobody was happy with Cohn’s ruling. But Premo was even less happy when the Sixth Circuit was through with the case.

Indeed, Michigan’s no-fault act applies to Premo’s situation, the appeals court ruled. The FTCA requires application of state law.

Then, as far as Premo was concerned, it got worse.

Under the FTCA, wrote Judge Eric Clay,

the government may be liable “for … personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government.” 28 U.S.C.A. § 1346(b)(1) (emphasis added). …

Pursuant to the No-Fault Act, a person injured can collect PIP benefits “without regard to fault.” M.C.L.A. § 500.3105(2). Given this language, “[a]bsolute liability … arises irrespective of how the tortfeasor conducts himself … . The degree of care used in performing the activity is irrelevant … .” Dalehite v. United States, 346 U.S. 15, 44-45 (1953). Thus, Michigan law imposes strict liability for economic damages in motor vehicle accident cases.

Bottom line: No-fault liability for PIP benefits is established without a finding of fault. Recovery under the FTCA is not possible without a finding of fault. Premo gets nothing, the Sixth Circuit ruled, and that’s her fault:

Plaintiff’s source of relief for economic damages was Michigan’s assigned claims plan, a remedy which she failed to pursue.

Whipsaw.

The case is Premo v. United States, et al.

Bill would let parents sign liability waivers for children

The Michigan House Judiciary Committee will take testimony tomorrow on HB 4970, which would allow a parent or guardian to sign a liability waiver on behalf of a child participating in sports or recreational activities.

The legislation was prompted by a Court of Appeals decision, Woodman v. Kera, LLC. The decision invalidated a liability release signed by a 5-year-old boy’s parent and let a negligence suit go forward against a commercial play area operator after the child broke his leg.

In his lead opinion, Judge Michael Talbot said under the current state of both statutory and common law, the waiver could not stand.

[T]his court is aware of no legislative enactments upholding exculpatory agreements, executed by parents on behalf of their minor children before injury, that waive liability for injuries incurred in either commercial or nonprofit settings. …

[I]n the absence of a clear or specific legislative directive, we can neither judicially assume nor construct exceptions to the common law extending or granting the authority to parents to bind their children to exculpatory agreements. Thus, the designation or imposition of any waiver exceptions is solely within the purview of the Legislature.

Judge Richard Bandstra “reluctantly” concurred with Talbot.

[O]urs is an extremely and increasingly litigious society. Any entity that provides an educational, recreational, or entertainment opportunity to a minor does so at great risk of having to defend an expensive lawsuit, meritorious or not. To avoid some of that, preinjury waivers have become commonplace. If the law does not honor those waivers, the implications appear inevitable: the cost of providing opportunities will rise, some families who would like their children to participate will no longer be able to afford to, and, ultimately, some opportunities will simply become unavailable altogether. …

Because of the impact of today’s decision and the compelling arguments against abrogating preinjury parental waivers, I encourage the Michigan Legislature or Supreme Court to further consider the issue.

Judge Bill Schuette (now off the court and campaigning hard to be the state’s next attorney general) pragmatically noted in his concurrence that important public policy considerations cut both ways.

Certainly, no one in the Michigan judiciary desires to turn a deaf ear or a blind eye to wayward businesses, dishonorable nonprofit organizations, or volunteer groups that might place a child in a dangerous situation, notwithstanding a parent’s executing a release and waiving liability for resulting injury. Equally significant is the fact that an immense amount of youth activities — church groups, Boy Scouts, sports camps of all kinds, orchestra and theatrical events, and countless school functions — run and operate on release and waiver-of-liability forms for minor children. …

[T]he Michigan Legislature will have to determine whether a statutory exception to the common-law rule for preinjury waivers should be adopted, and whether there should be any differentiation between for-profit and nonprofit groups as some states have seen fit to do.

The Legislature heeded the call with the introduction of HB 4970 last year. A House Fiscal Agency analysis predicts “an indeterminate, but likely positive, fiscal impact on the judicial branch. Any fiscal impact would depend on the amount of litigation avoided due to the waiver of claims of liability.”

In the meantime, the Michigan Supreme Court granted leave in Woodman and heard oral arguments in October. A decision is due by the end of July.

Judge throws out $4.3M verdict for war vet

DETROIT (AP) — A federal judge has thrown out a $4.3 million jury verdict in a case involving a U.S. Army veteran who says he quit a job because co-workers made fun of his disabilities.

James McKelvey lost his right hand and suffered other permanent injuries in a bombing in Iraq in 2004. He returned to Michigan and worked as an explosive specialist at the Army’s Warren Arsenal in suburban Detroit.

U.S. District Judge John Corbett O’Meara said Wednesday that reinstating McKelvey is a better remedy than awarding him millions of dollars. The Army has offered him a $71,000 job. At trial last fall, McKelvey said it made him “sick” to even think about returning.

His lawyer says the Macomb County man will appeal. McKelvey took a job with Oakland County in 2007.

The full text of of McKelvey v. Geren is available here.

MSC grants leave in ‘two-inch rule’ sidewalk defect case

The Michigan Supreme Court has granted leave in Gadigian v. City of Taylor, a case involving a defective municipal sidewalk and the two-inch rule of MCL 691.1402a.

The statute provides a “rebuttable inference” of reasonable repair if a discontinuity between two sidewalks slabs is less than two inches.

In Gadigian, the Court of Appeals affirmed a trial court ruling that sent the case to a jury after plaintiff rebutted the statutory inference with testimony from an engineer, who said the sidewalk was dangerous, and from a city foreman, who said the city knew about the defect for years.

In doing so, the COA clarified that a sidewalk defect measuring less than two inches creates a rebuttable inference, not a rebuttable presumption, that the city has maintained the sidewalk in reasonable repair.

The Gadigian panel noted that prior cases dealing with the two-inch rule had used the terms “inference” and “presumption” interchangeably, when, in fact, the distinction between the two words is legally significant.

The Gadigian ruling was criticized by attorneys involved with the case, see “Creating concrete confusion: In sidewalk cases, ‘two-inch rule’ inference may not win dismissal for cities,” who said the decision sent mixed signals about whether a municipality was entitled to summary disposition if a plaintiff did not rebut the statutory inference.

In its leave granted order, the MSC asked that parties to brief “(1) whether the Court of Appeals correctly interpreted MCL 691.1402a(2); and (2) what evidence a plaintiff must present to rebut the inference of reasonable repair.”