MSC’s Young: COA slip-and-fall ruling ‘defies common sense’

A Court of Appeals ruling that a jury should decide whether soap residue in a YMCA shower is an open and obvious danger is “flabbergasting,” says Michigan Supreme Court Chief Justice Robert P. Young Jr.

Milagros Dascola slipped and fell in the women’s shower at a Lansing YMCA. The case went to trial. At the close of proofs, the trial court granted Dascola’s motion for a directed verdict, ruling as a matter of law that soap scum on the shower floor was not an open and obvious condition.

The case went to the jury on the remaining issues. The verdict was $110,000; Dascola was found 40 percent negligent. The trial court entered a $62,000 judgment.

In a split decision, the COA, in Dascola v. YMCA of Lansing (majority opinion) (dissent), reversed and remanded for a new trial. The majority ruled that the open and obvious issue should have gone to the jury. The dissent, although not openly flabbergasted, said the trial court should have granted the YMCA’s motion for a directed verdict as a matter of law on the open-and-obvious issue and dismissed the case.

Dascola appealed. The MSC denied leave.

In a concurring opinion, Young, joined by Justice Stephen J. Markman, did a little coaching from the bench for the defense while explaining his vote to deny leave:

There is no question that, under Michigan’’s well-established premises liability law, the presence of water and soap residue in a public shower constitutes open and obvious dangers.

As such, these conditions do not give rise to liability for a premises owner, and I believe that the lower courts clearly erred in not reaching this conclusion as a matter of law. However, because defendant has not filed a cross-appeal in this Court challenging the lower court’s determination that defendant is not entitled to summary disposition, I concur in the Court’s order denying leave to appeal.

But Young had some choice words about the notion that there could be any factual dispute about the open-and-obvious issue in this case:

[T]he conclusion by the majority of the Court of Appeals that a question of fact exists regarding whether soap residue in a shower presents an open and obvious danger is, quite frankly, flabbergasting. Even a casual review of this state’s premises liability and “open and obvious” caselaw compels the conclusion that any danger created by soap residue in a public shower presents an open and obvious condition.

Although the proposition is so self-evident that it hardly merits stating, it is within common understanding that the flat tiled surfaces that comprise a shower will by their nature become wet and can therefore become slippery, particularly when soap or similar products are used. It is hardly surprising that soaps, shampoos, or other bathing substances will be used in a shower and may leave residue or “soap scum” on the shower’s surface. That such surfaces may become slippery represents a quintessential “open and obvious” hazard.

Moreover, there were no special attributes to this shower that rendered it uniquely or unreasonably dangerous. A reasonably prudent person of ordinary intelligence understands that a wet public shower poses a slip-and-fall hazard, particularly where soap or other residue may be present on the shower’s surface.

The conclusion of the Court of Appeals majority holding that there is a question of fact in this regard defies common sense.

Plaintiff can’t amend NOI to add a party, MSC rules

A medical malpractice plaintiff can’t use Bush v. Shabahang and MCL 600.2301 to amend his notice of intent (NOI) to add a party to the lawsuit, the Michigan Supreme Court ruled.

In the majority decision of Driver v. Cardiovascular Clinic, Justice Mary Beth Kelly wrote that the NOI only applies to the person upon which it was served. Therefore it didn’t toll the statute of limitations for any non-parties.

Further, she wrote, Bush is inapplicable to the case because it requires the case be pending, which this one was not, at least against the non-party.

By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. “An action is not ‘pending’ if it cannot be ‘commenced’ . . . .” In Bush,
however, this Court explained that an NOI is part of a medical malpractice “proceeding.” The Court explained that, “[s]ince an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’”
Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any “proceeding” against CCA because plaintiff’s claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case.

She also said that allowing the plaintiff to amend the NOI would alter the substantial rights of the non-party.

Every defendant in a medical malpractice suit is entitled to a timely NOI. The legislative purpose behind the notice requirement “was to provide a mechanism for ‘promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs . . . .’” Applying MCL 600.2301 in the present case would deprive CCA of its statutory right to a timely NOI followed by the appropriate notice waiting period, and CCA would be denied an opportunity to consider settlement. CCA would also be denied its right to a statute-of-limitations defense. These outcomes are plainly contrary to, and would not be in furtherance of, the Legislature’s intent in enacting MCL 600.2912b.

Finally, the court held that Burton v. Reed City Hosp. is still alive, even under Bush.

Nothing in Bush altered our holding in Burton. The central issue in Bush involved the effect an NOI had on tolling when the NOI failed to comply with the content requirements of MCL 600.2912b(4). The central issue in Burton involved the effect the plaintiff’s failure to comply with the notice-waiting-period requirements had on tolling. Indeed, the Bush Court repeatedly emphasized that the focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b.67 In contrast to placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s holding that a plaintiff must comply with the notice waiting period to ensure the complaint tolls the statute of limitations.

Chief Justice Robert P. Young Jr. concurred, incorporating by reference his dissent from Potter v. McCleary regarding the service of an NOI on a professional corporation.

Justice Diane M. Hathaway dissented, arguing that the plaintiff should have been allowed to amend the notice of non-party statute.

The majority erroneously asserts that plaintiff cannot use the NNPF 91-day window because plaintiff did not provide an NOI to CCA six months before filing the original action. However, the majority errs in this analysis. Under this reasoning, no plaintiff who brings a malpractice lawsuit under the discovery rule can ever use the NNPF statute to bring a claim against an identified nonparty at fault because no plaintiff will ever have provided an NOI to a nonparty at fault six months before filing the original suit. This reasoning renders an entire provision of the NNPF statute, the provision
allowing plaintiffs to file claims against nonparties at fault, nugatory. This clearly was not the intent of the Legislature and violates the basic tenets of statutory construction.

The majority fails to recognize that the NNPF statute creates it own 91-day window in which to bring claims against identified nonparties at fault. If the majority’s reasoning were correct, and a plaintiff were not afforded the opportunity to start his or her claim by providing an NOI to the nonparty at fault during the 91-day window, the NNPF and NOI statutes would be in irreconcilable conflict.

She wrote that, in this instance, the plaintiff tried to meet the requirements of the statute, and therefore, Bushshould have allowed him to amend the NOI.

Justice Michael F. Cavanagh said he would concur with the result of Hathaway’s dissent.

MSC vacates conviction over Confrontation Clause issue

In People v. Fackelman, the Michigan Supreme Court ruled that the prosecution’s failure to call an independent psychiatrist to testify during trial violated the Confrontation Clause.

In the majority opinion, Justice Stephen J. Markman wrote that the psychiatrist’s opinion was essentially the tiebreaker in the “battle of the experts” and had great importance because 1) the exam took place soon after the alleged crime and 2) the expert had no affiliation with either party.

[O]ur review of the record leads inescapably to the conclusion that Dr. Shahid [the independent expert] was a true “witness against” defendant. The ultimate issue at trial was not whether defendant had actually engaged in the conduct that led to the criminal charges; instead, it was whether he was legally insane at the time. At trial, the medical term that both testifying experts used as shorthand for describing legal insanity was “psychosis,” which, as the prosecutor’s expert explained to the jury, is “when a person loses touch with reality.” Repeatedly, the jury’s attention was focused on this particular mental state. The experts defined “psychosis,” described the symptoms of a person in a “psychotic state,” debated whether a person “could slip in and out of [psychosis] at various time frames,” offered their opinions regarding the effect of psychosis on memory, and rendered their own diagnoses in terms of whether defendant was experiencing psychosis, with the defense expert, Dr. Mistry, concluding that he was and the prosecution’s expert, Dr. Balay, concluding that he was not. In this context, the prosecutor’s improper introduction and repeated use of Dr. Shahid’s diagnosis that defendant was not, in fact, experiencing psychosis fully rendered the doctor a witness against defendant.

Markman also noted that, even if otherwise proper, the report was misused because only the facts and data, and not the diagnosis, would be admissible under MRE 703

In all, Markman said the use of the report and diagnosis was plain error that was outcome-determinative because the sole issue of the trial was the defendant’s mental state.

Chief Justice Young dissented, joined by Justice Brian Zahra, arguing that the defendant waived his Confrontation Clause argument because he didn’t call the witness either. Such a decision was a strategic one because, “he believed that the author would be a bad witness for the defense and would undermine the proffered insanity defense,” Young wrote.

Markman and Young squared off in the opinions over whether the medical reports are testimonial under Melendez-Diaz v. Massachusetts.

Three MSC opinions in, five remain

Justice Mary Beth Kelly

The Michigan Supreme Court released opinions in three of the eight cases that remain pending for the 2010-2011 term.

All three opinions released yesterday were criminal cases.

In the first, People v. Kowalski, the court found that the trial judge’s omission of the actus reus was a plain error, but upheld the defendant’s conviction for accosting a minor for immoral purposes or encouraging a minor to commit an immoral act. The court found that defendant effectively waived the issue because his counsel didn’t object to the jury instruction, and even if he didn’t waive it, the prosecutor produced sufficient evidence at trial to support the jury’s guilty verdict. The count was 7-0, but Justices Michael Cavanagh and Marilyn Kelly concurred in the result only. Cavanagh wrote a concurrence in which he disagreed with the lead opinion’s waiver analysis. He also suggested the lead opinion should have applied a harmless error analysis for a constitutional error, rather than the plain error analysis it used.

Justice Stephen J. Markman

In People v. Huston, the court considered whether to upgrade the defendant’s sentence for engaging in “predatory conduct” on a “vulnerable victim.” In the majority opinion, Justice Markman wrote that the preoffense conduct need not be directed at “any specific victim,” just a victim, to be considered predatory under the statute, and the victim need not be “inherently vulnerable.”

Instead, a defendant’s “predatory conduct,” by that conduct alone (eo ipso), can create or enhance a victim’s “vulnerability.”

This was a 6-1 decision with Justices Diane Hathaway and Marilyn Kelly concurring in the result but dissenting to the part about predatory conduct. Justice Michael Cavanagh dissented.

Finally, in People v. Bonilla-Machado, the court found that a prison employee is a “person” to establish a continuing pattern of criminal behavior for scoring offense variable 13. Probably more importantly, it held that the application of enhanced maximum sentencing is discretionary and not mandatory as the trial court had stated. The justices quibbled over the scope of crimes OV 13 can be scored.

District court judge asked about expenditures

From the Freep:

Inkster Chief Judge Sylvia James has until Monday to explain to the Michigan Supreme Court why the 22nd District Court has a community service fund, and must submit written justification of several expenditures from the account, including thousands of dollars spent on travel.

The inquiry comes after the state court’s administrative office completed an audit of the Inkster court’s finances, which uncovered sloppy bookkeeping and raised questions as to whether the district court is paying payroll taxes or withholding taxes for workers who are paid monthly stipends.

Among the charges James must justify are donations to the Inkster High School Class of 1969 and to Delta Sigma Theta for a 50th anniversary book.

There’s also the issue of the $12,000 in travelling expenses to send the judge and court employees to drug court conferences. Inkster doesn’t have a drug court.

Oh, and there’s this:

According to the audit, the Inkster court transferred its bank accounts from Chase Bank to Bank of America in September, and maintains three accounts with Bank of America, which include a depository account, a trust account and the community service account.

City officials said funds totaling about $250,000 were transferred by the court from Chase to Bank of America after the City Council voted in August to add the city manager and treasurer as signatories for the accounts. James and Anderson are the only signers on the new accounts at Bank of America.

Stay tuned. This could get interesting.

Zahra to Supreme Court

Michigan Court of Appeals judge Brian Zahra was appointed by Governor Rick Snyder to replace Maura Corrigan on the Michigan Supreme Court.

In a statement, Chief Justice Robert P. Young Jr. said Zahra is an excellent choice.

“I have known Justice Zahra almost since he began practicing law.  He has had a remarkable career as a lawyer and as a judge; he is widely recognized as one of the state’s top jurists,” Young said. “I believe that this Court has adopted more of his decisions than those of any other sitting lower court judge.

“Justice Zahra will bring not only his considerable intellect but also his experience as a judge at all levels of our system.  As a jurist committed to following the rule of law, he is a worthy successor to my dear friend Justice Corrigan, who is departing to take on the challenge of protecting Michigan’s abused and neglected children.”

Snyder’s pick follows through on a promise the new governor made to select a “rule of law” justice to replace Corrigan, said Robert S. LaBrant, senior vice president of political action and general counsel for Michigan Chamber of Commerce.

“His record as a Michigan Court of Appeals judge shows that he is a rule of law judge,” LaBrant said. LaBrant added that Zahra’s track record of winning elections – twice since his appointment to Court of Appeals in 1999 – makes him a “solid appointment” who can win when he has to run for re-election in 2012 and 2014.

Snyder didn’t name Zahra’s successor in the Court of Appeals at the press conference.

 

Carol Lundberg and Brian Frasier collaborated on this post.

Hail to the Chief Justice

Newly elected Chief Justice Robert P. Young Jr.

As expected, Robert P. Young Jr. has been elected Chief Justice of the Michigan Supreme Court.

In a press statement, Young said his highest priorities as chief justice will include reversing everything that happened in the last two years cutting the judicial budget and improving judicial services.

MSC affirms continuing child support obligation if parental rights terminated

Justice Robert P. Young Jr.

In March, the Michigan Court of Appeals ruled that a father whose parental rights were terminated still had an obligation to continue paying child support for his two children. (See In re Beck Minors)

On Monday, in its first opinion of the 2010-2011 term, the Michigan Supreme Court affirmed that decision, but with a different analysis.

The court found the father had no constitutional due process claim, and the legislative clearly intended to keep “parental rights” separate from “parental duties.” (“The sole parental obligation identified in MCL 722.3 is the duty to provide a child with support …)

The plain language of the termination statute, MCL 712A.19b, only implicates “parental rights.” Thus, when parental rights are terminated, what is lost are those interests identified by the Legislature as parental rights. In other words, the terminated
parent loses any entitlement to the “custody, control, services and earnings of the minor . . . .” Because nothing in the language of MCL 712A.19b affects the duty of support articulated in MCL 722.3, the obligation remains intact.

Thus, even after a parent’s rights have been terminated, the obligation to support continues “unless a court of competent jurisdiction modifies or terminates the obligation . . . .” This provision of MCL 722.3 indicates that a court has the discretion to terminate or modify a parent’s obligation to provide support, but is not compelled to do so.

Six of the justices signed the opinion, which was penned by Justice Robert P. Young Jr.  Justice Alton T. Davis recused himself because he was on the Court of Appeals panel that decided the case in March.

It was only a matter of time before Weaver/Young bickering resumed

“You’ve got plenty of material,” Weaver says near the end of this story. But something tells us there’s still more to come.

LANSING (AP) – A Michigan Supreme Court justice running for re-election acknowledged Friday that he used the N-word during a private conference with other justices in 2006.

Robert Young Jr. responded after former Justice Elizabeth Weaver gave a speech this week saying he used the racial slur and that it shows why he doesn’t deserve another eight-year term on the court.

Young, who is black, told the Associated Press that he used the word during an “impassioned plea” to emphasize how someone was being treated “without rights, without dignity.”

“I’m sorry that I used the term. … Obviously I was very hot about this. That’s why I used the word,” Young said. “I remember the heat and the purpose for using it.”

When pressed for details, he couldn’t recall the case.

Young said Weaver’s actions were an “outrage.”

“This is despicable. Justice Weaver hasn’t been called (the N-word) or been treated like one, but she finds it politically expedient to use it politically,” Young said. “All of my family has experienced it including me.”

In her speech in Traverse City, Weaver said Young used the slur in the plural form and was referring to a judicial candidate. She read from a May 2006 memo that she wrote and sent to all justices expressing disgust at Young’s remarks and other “unprofessional” incidents.

“Perhaps everyone should imagine that the court’s conferences are being televised,” Weaver said. “The public would be appalled at how the court’s business is often conducted.”

She also said that in April 2006 Young suggested to another justice that he use the phrase, “you ignorant slut,” when addressing the State Appellate Defender Commission. It was a phrase used years ago in a popular “Saturday Night Live” skit.

Young told the AP he couldn’t recall saying that.

Weaver, a moderate Republican, and Young, a conservative Republican, regularly clashed on the court. She quit in August, allowing Gov. Jennifer Granholm to appoint a replacement that put the court in a solid 4-3 Democratic majority.

Weaver’s speech and memo were posted on http://www.delayedjustice.com. Reached by phone Friday, she said she was golfing and couldn’t comment further.

“They’re waiting for me,” she said of other golfers. “You’ve got plenty of material.”

Young said Weaver’s “rant” broke a rule that forbids disclosure of the Supreme Court’s private discussions.

“Justice Weaver never respected the conference privilege and that’s why we had to promulgate a rule,” he said.

 

MSC denies rehearing of U-M v Titan, says no error using ‘insanity’ and ‘incompentency’ interchangeably

The Michigan Supreme Court has denied a motion for reconsideration in Regents of University of Michigan v Titan Insurance Co., one of the decisions released at the end of its 2009-2010 term.

The court ruled in Regents that University of Michigan Hospital, as a state entity, was not bound by the No-Fault Act’s one-year back rule under a statute that says that state claims for medical bills have no statute of limitations.

According to Titan’s attorney, Mark D. Sowle of Anselmi & Mierzejewski P.C., the decision created a problem that may not have been intended: in ruling as it did, the court overturned its own decision in Cameron v Auto Club Ins. Cameron held a minority/insanity tolling statute didn’t apply to the one-year back rule.

But the majority continuously used the terms “insanity” and “incompetency” interchangeably, which could open the door for a whole new class of plaintiffs to avoid the one-year back rule.

Sowle explained the scenario in August:

“Let’s say I was in a car accident 10 years ago and I claim I had a head injury, and therefore, I’m covered under the insanity provision,” he said. “Under this decision, I can theoretically file suit against my no-fault carrier and say, ‘Hey, you underpaid me for attendant care $1 an hour for the last 10 years.’ All of the sudden, I have a million-dollar lawsuit and I’m not bound by any statute of limitations. That’s the real danger here.”

Sowle filed a motion of reconsideration, which is still pending in the Michigan Supreme Court. His biggest concern, he said, was the Court using the term “incompetent” 15 times in place of the term “insane.”

“When you look at the dictionary definition of ‘incompetent,’ it’s a whole lot broader than the dictionary definition of ‘insane,’” he said. “On top of that, the statute defines the word ‘insane.’ It doesn’t define ‘incompetent.’”

Chief Justice Marilyn Kelly explained why she decided against reconsidering the case on the “incompetency/insanity” issue:

I write also to address our opinion’s use of the word “incompetent” rather than “insane” in discussing MCL 600.5851(1). This was not improper nor was it intended to expand the scope of MCL 600.5851(1). Indeed, I would not hesitate to vote to grant rehearing if I thought there was a need for clarification on this point. However,  there are several reasons why the opinion’s use of “incompetent” in place of “insane” is not a basis for granting rehearing. First, the legally recognized definition of “incompetent” is consistent with the statutory definition of “insane” in MCL 600.5851(2). Both terms contemplate persons who are unable to comprehend their legal rights. Second, there is nothing novel about using these terms interchangeably. The United States Supreme Court and numerous other courts, have done so for years.

Finally, it is pure speculation to predict the economic consequences of our decision. Defendant claims that it will inevitably lead to higher insurance premiums for Michigan drivers. No one is omniscient regarding when or why insurance companies choose to raise or lower premiums. However, the practical effects of our decisions generally do not dictate this Court’s reading of statutory language. This is a point with which at least one dissenting justice agrees.

One of those dissenting justices is Maura Corrigan:

In overruling Cameron v Auto Club Insurance Association, 476 Mich 55 (2006), the majority inaccurately described the class of individuals protected by the tolling provision in MCL 600.5851(1). The statute protects a person who “is under 18 years of age or insane at the time the claim accrues.” The majority distorted this clear language by repeatedly using the term “incompetent” interchangeably with  insane.” Whereas “insane” is statutorily defined as “a condition of mental derangement” that prevents a person from comprehending his rights, the term “incompetent” includes persons who are not properly qualified, capable, or legally fit to make a decision. MCL 600.5851(2);
Websters II New College Dictionary (2005). Thus, the term incompetent” has a potentially far broader reach than “insane,” thereby expanding the class of protected persons beyond those suffering from insanity.

The practical ramifications of the majority’s error in overruling Cameron include potentially higher premiums for all Michigan motorists who must by law purchase nofault automobile insurance. Defendant has documented that from 1978 through 2009, the Michigan Catastrophic Claims Association received a total of 24,533 claims, nearly half of which involved a brain injury, the type of injury most likely to trigger the tolling provision in MCL 600.5851. By expanding that provision beyond the reach of its plain language, the majority permits a new universe of claims for accidents that occurred decades ago, claims that will ultimately be paid by the public through increased premiums.

Justice Robert P. Young, Jr. echoed Corrigan’s dissent as well as Justice Stephen J. Markman’s dissent from the original Regents decision:

And so, in this case, on an issue of the majority’s own creation—an issue not even related to the case at hand—the majority has inexplicably attempted to rewrite MCL 600.5851(1) by broadening the class of individuals covered from those who are insane to those who are merely incompetent. There is perhaps no clearer example than this case of
this majority’s demonstrated indifference to the actual words of a statute and the legislative process that considers, debates,  compromises, and ultimately selects those words. Neither the author of the majority’s opinion nor the justices who today sanction that opinion by denying rehearing deign to explain why it is appropriate for this Court to substitute a new protected category of persons for the one the Legislature actually chose. Once again in Michigan, judicial preferences trump legislative ones.