MSC reverses COA on Sajewski, black ice was open and obvious

In our May 24, 2010 issue, Carol Lundberg detailed the blow-by-blow from the oral arguments in Janson v Sajewski Funeral Home, a case in which challenged the blanket application of the “open & obvious” doctrine to black ice injuries.

The Court of Appeals had overturned the circuit court’s summary disposition order, holding that there was no “visible indicia of an otherwise invisible hazard,” thus, the black ice could not be open and obvious.

In a 4-3 order, the Michigan Supreme Court reversed the appeals court :

The Court of Appeals failed to adhere to the governing precedent established in Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483 (2008), which renders alleged “black ice” conditions open and obvious when there are “indicia of a potentially hazardous condition,” including the “specific weather conditions present at the time of the plaintiff’s fall.” Here, the slip and fall occurred in winter, with temperatures at all times below freezing, snow present around the defendant’s premises, mist and light freezing rain falling earlier in the day, and light snow falling during the period prior to the plaintiff’s fall in the evening. These wintry conditions by their nature would have alerted an average user of ordinary intelligence to discover the danger upon casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475 (1993). Moreover, the alleged condition did not have any special aspect. It was avoidable and not unreasonably dangerous. Joyce v Rubin, 241 Mich App 231, 243 (2002).

Chief Justice Marilyn Kelly dissented:

I would affirm the result reached by the Court of Appeals. Given the facts of this case, summary disposition was improper. Plaintiff raised a genuine issue of material fact regarding the open and obvious doctrine, and the issue should be submitted to a jury.¹

Black ice is not open and obvious unless 1) there is evidence that it was visible on casual inspection by the person who fell or 2) other indicia of a potentially hazardous condition were shown to exist.² In this case, plaintiff presented evidence that when he fell, 1) precipitation was light and had tapered off earlier in the day, 2) the roads leading to defendant’s premises were not icy, 3) defendant’s parking lot appeared not to be icy, 4) plaintiff had not encountered ice in defendant’s parking lot before his fall, and 5) a person employed by defendant who had been in the area saw no ice where plaintiff fell.

On the other hand, defendant presented evidence that 1) there was snow on the grass by the roads leading to defendant’s premises at the time plaintiff fell, 2) temperatures had been below freezing throughout the day, 3) it had rained and misted earlier in the day, and 4) defendant’s parking lot was generally slippery.

The trial court was required to evaluate this evidence in the light most favorable to the plaintiff.³ Given the conflicting evidence, a genuine issue of material fact existed. I agree with the Court of Appeals that summary disposition should not have been granted.

¹ See, generally, Bertrand v Alan Ford, Inc, 449 Mich 606, 609-611 (1995).
² Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483 (2008).
³ See Wade v Dep’t of Corrections, 439 Mich 158, 162 (1992).

Justices Michael F. Cavanagh and Diane M. Hathaway voted to deny leave.

In their opinions …

“[T]he [trial] court and the DHS failed to facilitate respondent’s participation in the child protective action by telephone in light of his incarceration, as required by MCR 2.004. …

“The court effectively terminated respondent’s parental rights merely because he was incarcerated during the action without considering the children’s placement with relatives or properly evaluating whether placement with respondent could be appropriate for the children in the future.

“Incarceration alone is not a sufficient reason for termination of parental rights.”

– Michigan Supreme Court Justice Maura D. Corrigan, writing for the majority in In re: Mason. Dep’t of Human Services v. Mason, et al.

“[T]he majority reverses the judgment of the Court of Appeals, which affirmed the trial court’s termination of [respondent’s] parental rights, on the basis that the Department of Human Services (DHS) and the trial court did not do enough to help respondent become a better parent. I believe that the majority has it exactly backwards — respondent is the one who did not do enough to become a better parent.”

– Michigan Supreme Court Justice Stephen J. Markman, dissenting in Mason.

While Richard Mason was doing time for a drunken driving conviction, and then for the resulting probation violation of a larceny conviction, the DHS removed his two sons from Smith, the boys’ mother.

Mason and Smith’s parental rights were eventually terminated when Mason was up for parole. Smith didn’t attend the termination hearing and did not appeal. Mason was there and did appeal. The Court of Appeals shut him down.

But Corrigan, joined by Chief Justice Marilyn Kelly and Justices Michael F. Cavanagh and Robert P. Young Jr., faulted the trial court for not facilitating Mason’s participation by telephone during some phases of the proceedings.

The majority also said the court and the DHS didn’t “ensure[ ] that [Mason] had a meaningful opportunity to comply with a case service plan, or consider[ ] the effect of the children’s placement with his family.”

Markman, joined by Justice Diane M. Hathaway, didn’t see any problem with the extent of Mason’s participation:

Because respondent was incarcerated, he was not present at all the proceedings, but his counsel was always present on his behalf.

Respondent’s counsel indicated that although he wrote to respondent and notified him of the proceedings and of the fact that respondent could participate by way of speakerphone, respondent did not initially respond.

That is, contrary to the majority’s repeated contention that respondent was not informed of his right to participate in the hearings by telephone, respondent’s attorney did, in fact, inform respondent of this right. …

[R]espondent did also, in fact, participate by way of speakerphone during at least two of the proceedings, and he did physically attend the termination hearing.

Markman also took issue with the majority’s conclusion that the DHS and the trial court did do enough to help Mason “become a better parent.” Any mischief here was that of Mason’s own making:

The majority, quoting the children’s lawyer-guardian ad litem, asserts that respondent was “‘hamstrung from the beginning [in] trying to get things in order so that he [could] one day be a father to these children.'”

However, the majority disregards two quite significant points.

First, to the extent that respondent was “hamstrung,” this was of his own making — nobody but respondent can be blamed for the fact that he was in prison during the pendency of these proceedings.

Second, there is no evidence that respondent did anything to provide for his children while they were living with their unfit mother, with foster parents, or with their paternal aunt and uncle. Instead, respondent pleaded “no contest” to the removal petition that alleged that “Mr. Mason has failed to provide for the children physically, emotionally and financially.”

Justice Elizabeth A. Weaver joined Markman’s dissent in a separate opinion.

At least she wasn’t on Oceanic Flight 815

Attorney Geoffrey Fieger has filed a four-count lawsuit for negligence, false imprisonment, emotional distress and breach of contract, after his client, Ginger McGuire of Ferndale, was locked on an airplane for four hours after it landed.

The Detroit News reports:

[McGuire] flew Monday on a trip for an accounting training session that began in Detroit and ended in Philadelphia. During her travels, she was shuttled to Dulles Airport in Washington, D.C., before heading to Philadelphia, where she was left stranded on the airplane after landing.

McGuire said she was exhausted from traveling and fell asleep as soon as she took her seat on the Philadelphia-bound Trans States airplane — Trans States works in conjunction with United Airlines. She was not taking medication and did not have any alcohol to drink.

McGuire woke up at 3:50 a.m. and found herself alone on the 50-seat plane.

McGuire said she walked up and down the aisle for 15 minutes. She said she panicked and didn’t think of calling for help.

“Then the door to the airplane opened and two Philadelphia police officers were standing there with a TSA officer,” McGuire said. “They wouldn’t let me off the plane until I proved who I was. It was like, ‘Show us your ID, show us your ID.'”

Officials let her go after about 10 minutes. McGuire then checked into a local hotel.

A carrot and a stick for Michigan voters

Twelve years to the day after the Michigan Supreme Court ruled unanimously in Massey, et al. v Secretary of State that term limits for state legislators, approved by Michigan voters in 1992, are indeed constitutional, the state house judiciary committee discussed a possible tweak-and-massage of those limits.

It’s not the first time legislators have looked at the idea of tinkering with, but not eliminating, term limits. But yesterday was the first time they’d discussed sweetening the deal in hopes of gaining favor with Michigan voters.

The term-limit adjustment would go like this: it would allow legislators to serve up to 14 years, as they are now. Currently, elected members of the state legislatures can serve three two-year terms in the state House and two four-year terms in the state Senate. But the joint resolution, HJR EEE, proposes that they could serve all 14 years in the House, or 12 years in the Senate and two years in the house, which would slow the turn-over in the state legislature. The upshot would be that more experienced legislators could stay in office, and ideally could gain the experience and build the relationships necessary to sort out Michigan’s numerous and deep challenges.

Here comes the sweetener. Also proposed in the resolution is a provision that if the legislature does not present a balanced budget to the governor by July 1 of every year, each and every representative and senator would pay the price, and would forfeit his or her salary for every day until it’s it’s done. If the governor does receive the budget on time, but refuses to sign it, the governor and lieutenant governor would forfeit their salary until the governor seals the deal.

The resolution, sponsored by Westland Democrat Richard LeBlanc, is a melding of two house bills, sponsored by Tim Bledsoe, D-Grosse Pointe, and Bill Rogers, R-Brighton. LeBlanc said that both ideas are appealing, but attaching the paycheck forfeiture to reforming term limits would provide an attractive selling point to get voters on board.

According to LeBlanc, voters like term limits. But Bledsoe noted that Michigan has the most “draconian” limits in the country. Only California and Arkansas have similar limits.

“At one point in our country, 21 states had term limits,” LeBlanc said. But they’ve had such devastating consequences that as of today, six of those states have repealed.

In 1992, he was in favor of them, he admits. And in fact, he wouldn’t have been elected without them.

People were “astounded” he said, when LeBlanc announced that he liked proposal B in 1992. But he’s had a change of heart, now that he’s seen what widespread inexperience does to the legislative process.

“They were right,” he said of term limit opponents. “I was wrong.”

Next year, if term limits are not tweaked, all of the most experienced representatives will be gone, at a time when Michigan is facing serious issues, said Rogers. He likened electing representatives to choosing a heart surgeon.

“I would rather have someone who’s been doing it for a few years than someone who is doing it for the first time,” Rogers said.

The proposal will come back to the committee, “very soon,” said Chairmain Mark Meadows, D-Lansing. Bill sponsors hope to get a ballot proposal in front of voters for the August primary elections.

6th Cir. Judge James Ryan retiring in Sept.

DETROIT (AP) — Federal appeals court Judge James L. Ryan of Michigan says he’s stepping down in September.

Ryan has been on the 6th U.S. Circuit Court of Appeals in Cincinnati since January 1986. He was nominated by President Ronald Reagan after 10 years on the Michigan Supreme Court and nine years as a Wayne County judge.

In a statement Wednesday, Ryan says he still loves the work but wants to do other things. Off the bench, he has taught at law schools and given lectures in more than 30 states.

The appeals court hears cases from Michigan, Ohio, Kentucky and Tennessee.

Kilpatrick off to jail again, fired by Compuware

DETROIT (AP) — Former Detroit Mayor Kwame Kilpatrick was sentenced to up to five years in prison Tuesday for violating the terms of his probation stemming from his conviction for lying under oath about an affair with his chief of staff.

Kilpatrick, 39, asked Judge David Groner to show him compassion during the hearing, but Groner said "that ship has sailed."

Groner said Kilpatrick would have to serve at least one-and-a-half years in prison. He is still obligated to pay back the remaining balance of his $1 million debt to the city of Detroit.

Kilpatrick, the father of three young sons, was led from the courtroom in handcuffs.

Groner ruled last month that Kilpatrick failed to report all of his assets and meet other conditions of his probation. In court Tuesday, Groner scolded Kilpatrick for his continued lack of candor about his finances.

"Your continued attempt to cast yourself as the victim, your lack of forthrightness, your lack of contriteness and lack of humility … clearly rehabilitation has failed," Groner told Kilpatrick after the former mayor spent about 15 minutes explaining why he should be allowed to return to his family in Dallas.

"I want to go home your honor, where I belong," Kilpatrick told Groner. "I’m not here because of a gun charge, or a drug charge. I’m here because of my confusion over some of the written orders that have been before me."

At issue is the restitution Kilpatrick was ordered to pay the city after he pleaded guilty in 2008 to obstruction of justice. Kilpatrick testified in a whistle-blowers’ lawsuit that he was not romantically involved with his chief of staff, but text messages between the two later showed he was lying. Before the text message scandal broke, the city paid the two whistle blowers an $8.4 million settlement.

Kilpatrick, a Democrat, resigned, served 99 days in jail, agreed to give up his law license, repay the city $1 million, and stay out of politics for five years.

After Groner announced the sentence, a loud, collective gasp rose from many of Kilpatrick’s supporters in the packed courtroom. Kilpatrick appeared shaken.

Kilpatrick has 42 days in which to file an appeal.

After he was released from jail in February 2009, Kilpatrick found a job as a medical software salesman with Dallas-based Covisint. Since then, he has said he is working on his marriage and trying to be a better father to his three sons. He also has been making $3,000 monthly payments to the city of Detroit, saying he hopes to repay everything he owes.

But prosecutors contend he continues to lie — that Kilpatrick could afford to give more and has intentionally hid assets.

Groner agreed, saying Kilpatrick failed to disclose $240,000 in loans from prominent businessmen. He also said Kilpatrick failed to surrender nearly $23,400 in tax refunds and a share of cash gifts from two people.

In addition to his sentencing, Compuware Corp. CEO Peter Karmanos announced his company has fired Kilpatrick. [Detroit Free Press].

Court: BK franchisees can’t have it their way

And now for the third course in the trilogy of food-related legal matters.

First, we reported on a Hooters waitress being called out by management for carrying more than chicken wings and burgers, as she was put on “weight probation.” (This week, she filed an ELCRA lawsuit, and an Irish wagering site is accepting bets on how it turns out.)

Then, a burger joint in Cambridge, Mass., launches a burger that pays tribute to both U.S. Supreme Court candidate Elena Kagan and to the U.S. way of doing business.

Now, a federal court judge in Miami has ruled that Burger King management has the right to dictate value-meal pricing to franchisees. This comes after store owners, by way of the National Franchisees Association, were complaining that BK’s setting the double cheeseburger price at $1 was hurting their bottom line, making the value menu only a value to – gasp! – the consumers. (Though it should be noted that it’s not exactly been a value for cheese lovers, because, for the past month, BK has been skimping on the yellow stuff.)

Yet, allegations by the franchisees of bad faith by the company had enough plausibility to be argued in court.

Still, MSN reported, “[I]f franchisees and Burger King management know what’s good for them, they’ll spend less energy on this lawsuit and more energy on boosting BKC stock through stronger sales and profits.”

Maybe getting rid of those creepy commercials that feature the guy in the King costume would help, too.

MSC: Anonymous tip was sufficient for school search, reverses Perreault

The Michigan Supreme Court reversed the decision in People v Perreault, in which a Court of Appeals panel said a school administrator’s search of a student’s vehicle on school grounds violated the defendant’s Fourth Amendment rights.

At issue in that case was whether the school took appropriate steps to verify the information contained in the anonymous tip on which it based its search.

The Supreme Court said it reversed the decision “for the reasons stated in the Court of Appeals dissenting opinion.” The court also rejected a defense argument that the role of the police “rendered this a police search.” The police passed the tip it obtained from an anonymous tip line to a school administrator, and the police’s liaison officer was present during the search, but did not conduct the search himself.

The dissenting judge, Peter D. O’Connell, wrote that the totality of circumstances provided the administrator with “sufficient indicia of reliability to support reasonable suspicion of criminal activity.”

Justice Stephen J. Markman, joined by Justices Maura D. Corrigan, Robert P. Young Jr. and Elizabeth A. Weaver, concurred with the order, writing:

Thus, there was corroborating information to indicate that the tipster’s information was reliable. In my judgment, the tip and the corroborating information were sufficient for school officials to form a particularized suspicion that defendant was, in fact, selling drugs from his truck in the school’s parking lot. Therefore, the search of defendant’s vehicle conducted by school officials on school property did not violate defendant’s constitutional rights. Rather, it was an entirely reasonable search under the Fourth Amendment.

Chief Justice Marilyn Kelly, joined by Justice Michael F. Cavanagh, dissented, saying the case was a close call and that she would grant the parties leave to appeal.

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.

COA reinstates lawsuit against muffler manufacturer

DETROIT (AP) — If someone dies from inhaling exhaust in a garage, is it the fault of the companies that make or market a muffler-repair kit?

The family of a deceased Livingston County man thinks so. The Michigan appeals court has reinstated a lawsuit that claims the repair kit should have carried a warning about the dangers of carbon monoxide.

Craig White died in 2005 while working on his Buick. His family says companies associated with the product had a duty to warn that cars should not be run in a closed space.

A Livingston County judge ruled against the family in 2008, but the appeals court, in a 2-1 decision, sent the lawsuit back for more work this week.

The majority says there wasn’t enough evidence in the record to dismiss the case. The dissenting judge says White was knowledgeable about engines.

The per curiam decision can be found here, and the dissent from Judge Kirsten Frank Kelly is here.