Leave granted in no-fault bystander injury case

In March, The Michigan Court of Appeals ruled that a woman who suffered psychological injuries from witnessing her son’s death in a motor vehicle accident was entitled to no-fault PIP benefits. See, “Mother can get 1st party benefits after seeing son’s death,” MiLW, March 21, 2011.

The Michigan Supreme Court has granted leave to appeal the COA’s decision in Boertmann v. Cincinnati Ins. Co.

The MSC has asked the parties to address:

whether a no-fault insured who sustains psychological injury producing physical symptoms as a result of witnessing the fatal injury of a family member in an automobile accident while not an occupant of the vehicle involved is entitled under MCL 500.3105(1) to recover benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle.

The Court has invited the Michigan Association for Justice, the Michigan Defense Trial Counsel, Inc., the Commissioner of the Office of Financial and Insurance Regulation, and the Negligence Law Section of the State Bar of Michigan to file briefs amicus curiae.

Bowling alley immunity bill rolls on

When Michigan’s smoking ban was enacted, bowling alley patrons who smoked, like all other smokers who frequent bars, restaurants and other public places, had to start trooping outside to have a cigarette.

Now, it’s a hassle to take off your bowling shoes and put on your street shoes for a quick puff. Bowling alley operators say most bowlers leave their bowling shoes on when they go outside and light up.

The problem is that when coming back in, bowlers might track in moisture and debris on the bottom of their bowling shoes. This can lead to hazardous footing conditions, which, in turn, can lead to serious slip-and-fall injuries while swinging a heavy bowling ball. Such injuries lead to personal-injury suits.

Bowling alley proprietors, like all business owners, are interested in limiting their liability exposure whenever possible.

SB 281 helps them do just that. From the Senate Fiscal Agency analysis of the bill:

The bill would create the “Bowling Center Act” to require a bowling center operator to post a specific notice about the danger of wearing bowling shoes outside, and provide the operator with immunity from civil liability for injuries to a bowler due to a slip and fall inside the bowling center that resulted from outside use of bowling shoes.

Specifically, the bill would require a bowling center operator to post a notice in a conspicuous place near each entrance to and exit from a bowling center. The notice would have to read:

“Bowling shoes are specialized footwear and are not intended to be worn outside a bowling center because the bowling shoes may be affected by substances or materials such as snow, ice, rain, moisture, food, or debris. Such substances or materials on bowling shoes that have been worn outside a bowling center may cause the person wearing the bowling shoes to slip, trip, stumble, or fall on the floor or alley surfaces in the bowling center.”

If an operator posted the required notice, the operator would not be civilly liable for injuries to a bowler resulting from a slip, trip, stumble, or fall inside the bowing center solely caused by a substance or material on the bowler’s bowling shoes that was acquired outside the bowling center immediately before the bowler entered or re-entered the bowling center.

The bill cleared the Senate on a 30-8 vote early this year. The House Judiciary Committee is holding a hearing on the bill today.

Sidewalks and SOL on judiciary committee’s agenda

The House Judiciary Committee is considering HB 4589, which would give municipalities the benefit of the “two-inch rule” for any sidewalk they maintain.

The “two-inch” rule creates a rebuttable inference that a sidewalk is properly maintained if the height difference between two slabs is less than two inches.

The legislation would apply the two-inch rule to sidewalks adjacent to municipal and state highways, in addition to sidewalks adjacent to county highways.

The bill also revises how the term “highway” is defined. Currently, the term means a public highway, road, or street that is open for public travel and includes bridges, sidewalks, crosswalks, trailways, and culverts on the highway and does not include an alley, tree, or utility pole.

The bill would delete the reference to “trailways” and “culverts” and add “an appurtenance” to the list of things that “highway” does not include.

The bill affects MCL 691.1401, MCL 691.1402 and MCL 691.1402a.

The committee will also consider SB 77, which would amend MCL 600.5805 and MCL 600.5839 to make actions against architects, professional engineers, and professional surveyors subject to the two-year statute of limitations on malpractice actions.

The legislation would remove language under which the period of limitations on actions against those professionals and contractors is governed by MCL 600.5839.

SB 77 would legislatively overrule the Michigan Supreme Court’s decision in Ostroth v. Warren Regency, 474 Mich. 36 (2006). In Ostroth, the MSC ruled that MCL 600.5805(14) unambiguously directs that the period of limitations for actions against architects is provided by MCL 600.5839(1). Moreover, the six-year period of MCL 600.5839(1) operates as both a statute of limitations and a statute of repose.”

Critics of Ostroth say the decision allows too much time in which to sue architects, professional engineers and contractors.

The committee’s hearing on the legislation is scheduled for June 16, 2011, 521 House Office Building, Lansing, at 10:30 a.m.

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

ice covered carA 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.

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