TOV Injury and Safety Blog

Court reverses summary dismissal of road liability claim against Washtenaw County

Karen Utley sued the Road Commission after suffering severe injuries when her motorcyle hit a pothole  on Zeeb Road in Lodi Township.  One of her riding companions estimated that the potholed was six inches deep and 2-3 feet in diameter.  Others described it to police as "large" or "significant."  The Road Commission prevailed on the trial judge to dismiss Utley's claim on summary disposition by arguing that the pothole had been repaired three days prior to Utley's crash, but that a sudden rain fall had washed out the repair.  The Road Commission persuaded the local judge that it had taken appropriate steps to keep the road in reasonable repair.

The Court of Appeals reversed, holding that given the evidence about the extent of the pothole, it was a question of fact for jurors to determine whether the Road Commission's efforts at amelioration were adequate.  It held that "the mere presence of so large a pothole less than three full days after the road was spot-scraped supports a reasonable inference that the pothole was not repaired."  It also cited the Plaintiff's engineer expert, a gentleman with 30 years road maintenance experience with MDOT, who claimed that the pothole was "a high level severity pothole that's not been attended to."  Surprisingly, even Judge Christopher M. Murray, who virtually never sides with injury victims, agreed with the appellate court holding.

Drunken man arrested on his own lawn cannot sue police

Jiya Gupta was arrested on his front lawn in Ingham County because a neighbor had reported an unidentified drunk walking through the neighborhood.  Responding officers found Gupta on the sidewalk and attempted to interview him.  Instead of cooperating, he ran accross the street to his yard. The officers tackled him, handcuffed him, refused to release him to his wife's custody, and charged him with disturbing the peace.  The local prosecutor dismissed that charge and instead issued a warrant for "obstructing or opposing law enforcement officers." 

City is not immune from liability for defective curb cut

Antonio Moraccini was thrown from his motorized tricycle when it struck an irregular concrete curb cut between the sidewalk and a city street.  The City claimed it should be immune from Moraccini's injury suit because it argued that the so-called Engler Majority on Michigan's Supreme Court had issued an opinion that excluded curbs and other structures from a municipality's statutory obligation to maintain reasonably safe roads and sidewalks. 

The trial court rejected the Defendant's argument for summary disposition and the City appealed.  The Appellate Court held that the curb cut was either an "extension of the sidewalk" or an "installation" within the highway, and therefore the City was not entitled to immunity.

Court holds that intersection of alley and public highway is part of the highway for liability issues

Kurt Teramo suffered serious injuries when his moped struck a pothole at the "T" intersection of Clover Court and Broadway Alley in the City of Grand Rapids.  Although public entities remain responsible for maintaining "reasonably safe roads," the Republican majority of Michigan's Supreme Court has limited this duty--through successive decisions--to the road surface itself.  The more insurance-oriented Justices have concluded that the statutory duty does not include a duty to design safe roads, to maintain signs or traffic control devices, or to maintain curbs, rights-of-way or bridge structures.  It also interpreted the statute in such a manner that it does not apply to public alleys.

Homeowner cannot sue court-appointed receiver for negligence

Mark and Randa Mangano became embroiled in a dispute with their attorney.  Apparently they had financial trouble, generally, and the attorney sued them for fees.  The Manganos had moved from their home in Canton Township to Tennessee, when a judgment for the attorney was entered against them.  The Court appointed a receiver to take custody of the Canton residence and the current tenants moved out.  The Manganos filed for bankruptcy and the Tennessee-area bankruptcy referee assumed control of the home.  In the meantime, the home had suffered frozen pipes and water damage.

Employee can sue governmental supervisor who infringes First Amendment freedom

Lindsey Whitney sued her boss, Chris Crider, the Mayor of the City of Milan, alleging a denial of her civil rights.  The Sixth Circuit Court of Appeals addressed her case on appeal this week. Whitney alleged that when the Mayor fired the City Recorder, Keri Williams, Whitney was told by the mayor that she must avoid any contact with Williams or any public comments on the firing.  Whitney alleged that the Mayor, knowing that Williams and Whitney were close friends, was illegally using the risk of employment termination to force Whitney to avoid having contact with Williams.

Court allows rare claim against teachers to go to trial in wrongful death case

Maria Anderson, sued two teachers at the Swartz Creek Middle School after her sixth-grade son drowned during a physical education class.  Because of governmental immunity, she could not sue the school system, and can only sue the teachers if they were guilty of "gross negligence" that was "the" cause of her son's death.

Anderson provided evidence that a sixth and a seventh grade class were combined in the pool, more than fifty kids, when one of the teachers decided to take his class to the pool because the gym was occupied.  His class received only five minutes of instruction and inadequate testing before they were released for "free swim."  That instructor then left the pool to enter attendane in the computer--a task he was not time-limited to perform.

Michigan Supreme Court overturns Court of Appeals; dismisses motorcyclist's claim against Road Commission

Joseph Paletta sued the Oakland County Road Commission.  He lost control of his bike on loose gravel and suffered serious injuries.  He presented testimony from a man living near the area where he was injured, attesting to the fact that the witness had complained on a number of occasions that the Road Commission scattered loose gravel in the road when it turned in and out of a gravel storage area.  The witness claimed that the Road Commission failed to take any action in response to his complaints and continued to create a nuisance on the asphalt roadway. 

Wrongfully convicted man's suit is not late, but can't sue prosecutor

Wendell Crawford  overturned his criminal conviction larceny over $50.00 in 2009, after documenting that the decades-old conviction was obtained without due process.  He then sued the man who had been the Lapeer County Prosecutor under 42 USC 1983, alleging malicious prosecution and violation of his civil rights.  The trial judge ruled that his suit was not timely, but the Court of Appeals reversed that holding, pointing out that the three-year statute of limitations does not begin to run until a criminal conviction is overturned. It upheld the dismissal of the case, however, on the grounds that a prosecutor--as a state official--enjoys complete immunity for actions taken to prosecute a state law violation. 

Court grants immunity to City and officer involved in negligent police chase

Brian Ibrahim was seriously hurt when his car was struck by a vehicle operated by Ivan Lazar.  Lazar was fleeing a City of Detroit police officer at high speed.  The chase began when Lazar failed to make a complete stop at a stop sign.  Ibrahim's attorneys argued that police standards do not support high-speed chases where the perpetrator has committed a simple traffic violation:  the risks to the public from a high speed chase are deemed by authorities to out-weigh the value of effecting a police stop of the offending driver.  Nevertheless, the Court granted the City's and the officer's motion for summary disposition. 

Fall victim cannot sue City of Flint because his notice does not provide precise location

John Halford was injured when the sidewalk collapsed under him.  He sent a notice to the City within six weeks, documenting his injury and identifying the location as "a sidewalk along White Street near the intersection of Martin Luther King Boulevard..." The trial judge and the Court of Appeals held that this description of the area where the sidewalk collapsed was--by Supreme Court interpretation--inadequate to provide the City reasonable identification of the defect.  We wonder just how many areas of sidewalk in that block had collapsed that month. 

Occupants of stolen vehicle cannot sue officer after high-speed chase and bump

The families of a catastrophically injured young man and another man killed in the collision sued the City of Taylor and officer Phillip Alton Biggs, arguing that Biggs was negligent in pursuing and bumping a stolen car driven by another young man.  The City argued that since the vehicle must have known that the vehicle was stolen, and since they had allegedly been drinking, smoking marijuana, and contemplating shoplifting, their families could not argue that the officer was partially at fault in causing their death by bumping their vehicle at high speed.  They were lumped in with the driver as "wrongdoers" whose wrongful actions gave rise to the necessity of the police chase:  therefore, despite evidence that one of more of the young men tried to persuade the driver to stop the car or let them out, they were precluded from any legal action even if the officer was negligent.

"Joe the Plumber" loses federal civil lawsuit against Ohio bureaucrats

After Samuel Joseph Wurzelbacher verbally attacked Presidential candidate Obama's policies in a widely-publicized media event, three Ohio bureaucrats apparently investigated the Ohio databases related to welfare, unemployment and child support enforcement to determine whether Wurzelbacher was vulnerable to criticism.   All were suspended and their employment was terminated.

Nevertheless, when Wurzelbacher became aware of the administrative search he sued the three government officials involved for money damages.  The money damage claims were dismissed by the trial court and the dismissal was upheld by the Sixth Circuit.  The Court concluded that Wurzelbacher did not have a valid "1983" claim of invasion of privacy.

Bailiff supervising eviction is sued for assault and gross negligence

Fred Dixon appealed to the Court of Appeals after the Circuit Court refused to dismiss a wrongful death/assault action against him.  The action was brought by the family of John Mazur.  They alleged that Dixon, a court bailiff, threw Mazur against a telephone pole and battered Mazur's head while executing an eviction order, resulting in an intracranial bleed and Mazur's death.  Dixon argued that he was entitled to immunity as a "state official" and as a quasi-judicial officer.  The Court denied Dixon's claim on both grounds.  It noted that under existing precedent, not all state employees are state officers and Dixon is analogous to a State Trooper--and thus not a state "official."  The Court also held that there is no quasi-judicial immunity for an alleged assault.

Officers and police agency are immune from errors resulting in arrest of wrong woman

Paula Ann Milligan was arrested for multiple fraud counts and humiliated when her arrest was televised by a local station.  All charges were dropped a week later when police authorities realized that they had mis-identified Milligan after a clerk failed to cross-check her identifying information with the information contained on the original arrest warrant.  The arrested Milligan had a single traffic ticket in her history that put her name in the "system:"  when it came up, the clerk simply issued the new warrant despite the fact that the age, physical description and address didn't match.  The day after charges were dropped, the local TV station twice aired video of Milligan's arrest and placed it on the station's website.  It was gradually removed at the Milligan's attorney's demand.

Township Supervisor who ordered tree-cutting in retaliation is immune from liability

Joseph Babiarz's neighbor evicted several hunters from Babiarz's property.  It turned out that the hunters were members of the Township Supervisor, Audrey Leslie's family.  Shortly after the hunters were evicted, Leslie contracted with the Road Commission to clear trees from the right of way along Babiarz's property, without providing notice to Babiarz.  Babiarz sued Leslie, arguing that she scheduled the tree-cutting in a fit of pique over her family being run off Babiarz's property. 

Housing Commission deemed "highest executive authority" of a level of government; granted immunity

Michigan's immunity statute confers immunity from liability upon "the highest appointive executive official of all levels of government."  When David Martin sued the Niles Housing Commission and several individuals, the trial judge interpreted this statute to protect the executive hired by the Housing Commission.  The Court of Appeals disagreed and conferred immunity upon the Housing Commission's Board of Directors, finding the Commission to be a "level of government" and the Board to be its executive.

Children not removed from abusive parents despite multiple incidents of neglect cannot sue protective service workers

In a major new holding, the Court of Appeals rejected wrongful death claims brought on behalf of two dead children.  One child suffocated in a house fire after being chained to her bed, while the other child was murdered by his father.  In both cases, the authorities had been alerted to multiple abusive episodes in advance of the fatal events.  The Republican Court of Appeals judges ruled that Michigan law provides no remedy for the kids' estates.

Edging into intersection is not gross negligence but may be ordinary negligence

Dawana Rodriguez was allegedly hurt when her car struck a police cruiser operated by Trooper Jasen Sack.  Rodriguez had the right-of-way at a Genessee County intersection when the right-turning Sack edged into her path in an attempt to see around a left-turning vehicle.  The trial court and the Court of Appeals ruled that Sack's behavior in blindly placing his vehicle into the path of another vehicle that enjoyed the right-of-way could not be considered "gross negligence."  Therefore, Sack personally enjoyed immunity from liability.  Nevertheless, it was a question of fact for the jury to decide whether Sack's conduct was ordinary negligence:  if it was, the governmental owner of the vehicle did not enjoy immunity under state law.

Government employees aren't responsible for sexual assault committed by a third person

Julie Srda, Next Friend of a child, sued employees of the Michigan School for the Deaf, alleging that the child was sexually assaulted by another student through the gross negligence of the School employees.  The Court of Appeals issued an opinion holding that the employees would not be responsible, regardless of the facts of the employees' negligence, because "the" cause of the incident would be the criminal action of the assaulting person--regardless of his mental capacity or legal responsibility, and regardless of the fiduciary duty owed the child by the school employees.

City park limitation on solicitation is likely to be struck down as over-broad

The Sixth Circuit overturned a District Court in a ruling on a preliminary injunction, and ruled that a City of Fairborn ordinance was unlikely to stand given its overbreadth.  The City allowed a park to be used for a Lions Club function, and as part of the use permit, it allowed the users to prohibit any soliciting outside a rented booth.  Two residents objected on the ground that the permit prevented them from exercising freeedom of religion in proselytizing the crowd that gathered for the event.  The Court held that the individuals who objected were likely to prevail in their claim that the restricition on free speech in a public park was probably too broad, not adequately tailored to the needs it was addressing, and unlikely to withstand constitutional objection.

Drop a letter in the address; your notice is defective

Kirstin F. Kelly and conservative Republican judges struck another blow for the insurance industry this week when they overturned a Circuit Court judge's decision and dismissed an injury claim brought by Patrick Thurman.  Thurman had fallen after tripping on a cracked sidewalk.  He gave the statutorily-required notice of injury to the City of Pontiac, however, he simply identified the location as 35 Huron, Pontiac, Michigan.  There is a 35 E. Huron and a 35 W. Huron.  The trial judge deemed the notice more than sufficient, particularly after comparing photographs of the two sites.  The higher court reversed him and permanently dismissed Thurman's case, not because the sidewalk was "reasonably safe" but rather because he hadn't timely given notice of the "exact location" where he fell:  it was too much to ask the City to check both sides of the street at E. and W. Huron.  Our system of "justice" has evolved into a display of semantic and logical nonsense.

Claims arising out of medication-overdose in Grand Traverse County Jail are dismissed

The family of Christopher Robin Morden sued the County Jail, the nurse and doctor paid to provide coverage in the jail, the jail's retained psychiatrist and her employer, Northern Lakes Community Mental Health, after Morden died while incarcerated.  After his arrest, authorities noted suicidal warnings and placed Morden on suicide alert.  Morden was already taking psychotropic medications, and these were maintained. 

Morden's condition did not stabilize and over the following two months he was examined by the nurse, the jail doctor and the psychiatrist periodically, with the psychiatrist apparently seeing him about every two weeks.  His medications were increased and new medications were prescribed.   His condition varied from "druggy" to relatively normal.  The psychiatrist believed that his mental condition had improved, but that Morden was suffering side effects. On March 26, the jail physician noted that Morden may be "overmedicated" but also noted that the psychiatrist had changed the medication regime three days earlier, so he took no further action.  Five days later, Morden died of a sudden cardiac event.

Ordinance limiting soliciting to hours between 9 am and 6 pm is partially struck down

An environmental grass roots organization sued the City of Englewood, Ohio, arguing that its ordinance limiting and regulating door-to-door soliciting was too broad and violated First Amendment rights.  The District Court had struck down parts of the ordinance but upheld the curfew and the requirement that solicitors obtain and carry  a  "do not contact" list maintained by City administrators.  The Sixth Circuit upheld minor parts of the ordinance and upheld the Ohio Citizens Action group's standing to challenge it, but struck the more offensive provisions, including the curfew.  It found that the City's data did not support administrators' claim that the curfew was a crime or property value protection device.

Developer allowed to claim "taking" of property by reason of zoning rejection of PUD

AM Rodriguez Associates sued the City of Douglas in Allegan County, after the City's planning commission and council rejected a Planned Unity Development of the developer's 16 acres.  The Court of Appeals ruled that several of the developer's theories were barred by the fact that the Circuit Court had previously rejected its administrative appeals, however, the Court concluded that those prior appeals did not preclude an eminent domain or "taking" claim.

Conservator cannot sue school system for harboring student who repeatedly assaulted female classmates

Carole Pahssen sued the Breckenridge Community Schools, the Merrill Community School District and several individuals on behalf of Jane Doe after Doe was sexually assaulted by a boy who was repeating the ninth grade after a long suspension.  The Conservator acting for Doe, an eight-grader, claimed in a Title IX action that the Defendants were deliberately indifferent to the risks presented by the boy's sexual misconduct and to his sexual harrassment of Doe and that they failed to respond appropriately. 

The family presented evidence of repeated disciplinary problems involving the boy over several years, including multiple arrests for sexual assault as well as other inappropriate behavior.  This activity culminated in the fall of 2007 when, after a lewd encounter at the girl's basketball bgame (the third incident that fall involving Doe), the girl's father warned administrators that the boy "was a volcano waiting to erupt."   The boy was monitored for 30 days by Breckenridge Schools, uneventfully, before raping Jane the following month on school property.  The Conservator argued that the two school systems (Breckenridge and Merrill--the school he attended during a prior school year) had shown deliberate indifference to Jane's civil rights and had conspired to deny her equal protection. 

Teacher acquitted of CSC involving student cannot sue prosecutor

Nicole Howell was charged criminally for allegedly having sexual relations with a high school student.  She was acquitted and subsequently sued the Prosecutor under 42 USC 1983, arguing that he had denied her civil rights by pursuing the unjustified claim.  While admitting that the prosecutor enjoyed immunity for prosecutorial decisions, she argued that he was not immune from the decisions he made in investigating the student's claim.  In particular, she argued that the prosecutor had agreed not to pursue a claim if she passed a polygraph, but then reneged on the promise.  The Court held that the prosecutor was immune from liability for his decision-making under the doctrine of prosecutorial discretion.

Contractor cannot sue over bidding issues for denial of civil rights under Elliott-Larson Civil Rights Act.

The Michigan Court of Appeals held this month that Brenda Geiling could not maintain a gender discrimination claim against Dow Corning and Hemlock Semiconductor because she was not an "employee" and the defendants were not "places of public accommodation."  Geiling claimed that she was barred by the Defendants from submitting bids to the Defendants, despite a successful performance history, because she had filed a gender discrimination claim.   The Court held that her claim was not authorized by law because she wasn't an "employee" under Article 2 and the Defendants wre not "places of public accommodation" under Article 3.  Therefore no law against illegal gender discrimination applied to the bidding activities and rules of the Defendants.

Woman dismissed from graduate counseling program can sue claiming civil rights violation

Julea Ward pursued a a graduate-level counseling degree from Eastern Michigan University.  Throughout the three-year program she maintained an outstanding grade point average, although she consistently raised concerns over the conflict between her individual religious beliefs and the counseling program's "values-affirming" approach to issues involving homosexuality and extra-marital sexual relationships.  During her final year she was assigned to counsel a gay patient and sought re-assignment of the patient to a counselor who did not share her religious objections.  

Federal Government seeks to expand immunity for negligent medical care of active duty family members

In a sad example of "what have you done for me lately?" attorneys representing the federal government are taking aggressive steps to broaden the immunity the federal government claims for medical negligence.  Several decades ago, a decision of the U.S. Supreme Court held that although active duty service members are entitled to government-provided medical care, they cannot sue for negligence.  Whether or not that was a good idea or sound public policy, the decision has never been applied to the family members of active duty servicemen.  Now, in an effort to "contain costs," government attorneys are arguing that the decision should also apply to cases where a serviceperson's dependant was damaged by poor care.  The Military Times reported this month that attorneys in Florida are raising the immunity issue in a case involving the death of a service couple's baby and in a case involving the failure to diagnose a  serviceman's wife's subsequently fatal cerebral hemorrhage.

Frankly, it is beyond us why the "sovereign" or "governmental immunity" English Kings granted themselves in court should continue to apply in a democracy in any situation.

US Supreme Court unanimously rules that attaching GPS tracker to car without a warrant is a violation of the Fourth Amendment

The Fourth Amendment to the US Constitution prohibits the government from engaging in "unreasonable searches and seizures."  Last week, the nine Justices of the Court issued a rare unanimous opinion agreeing that a breach of the Fourth Amendment's prohibition had occurred.  The Justices did not agree on the basis of the ruling, however.  The more conservative Justices concluded that a legal error had occurred only because attaching the GPS tracker required the police to invade personal property.  One judge indicated that while a broader right may exist, attaching the tracker to personal property was sufficient to constitute a breach.  The majority took a broader view and held that tracking a private individual for a month and collecting voluminous data without a warrant should be the foundation for the holding of a breach.

Prisoner assaulted by State psychiatrist cannot hold the state responsible

In Langton v. State of Michigan, decided December 30, 2011, the Court of Appeals reversed the Court of Claims and ruled that Langton could not hold the State responsible for assault and battery committed by its psychiatrist on Langton while incarcerated.  Although it is well-documented medical malpractice for a psychiatrist to initiate a sexual or romantic relationship with a patient, and although the psychiatrist's letters revealed a clearly inappropriate "romantic" interest, and although the psychiatrist was convicted of criminal sexual conduct, the Court held that the psychiatrist's employer was not responsible for the wrongful conduct.

Although the State has immunity for many acts of its employees, it does not enjoy immunity for negligently providing "medical care or treatment."  The Court rejected the State's claim that the psychiatrist's misconduct did not occur in the context of providing medical care, yet it held that the State was not responsible for this misconduct.  The reasoning of the opinion is not entirely clear, but it seemed to be based on the concept that the State could only be responsible for the psychiatrist's malpractice if it negligently failed to respond to knowledge of the employee's intentional acts of misconduct.

City not responsible for injuries caused by limb that fell from diseased tree

Clinton Bearss sued the City of Clawson after he was struck on the head by a falling tree branch.  He was standing on a City sidewalk when he was struck, and he argued that the City should not be immune from its alleged negligence in failing to remove the tree before it caused injury.  He argued that the City's "sovereign immunity" did not apply in this situation, because (under the statutory highway exception to immunity) the diseased tree in the City-controlled highway right-of-way rendered the highway and sidewalk "not reasonably safe for public travel."  The Court rejected his claim and granted summary disposition, noting that the Engler Majority of the Supreme Court had repudiated earlier decisions of Michigan's Supreme Court and returned to "a broad reading" of immunity with narrowly limited exceptions.

Another injury claim against government dismissed on a technicality

Khadija Glaspie left the Crazy Horse Saloon at 8140 Michigan Avenue in Detroit on July 10, 2009, and fractured her ankle in a pothole on St. Lawrence Street.  17 days later, she filed a formal notice of injury with the City, including 3 color photographs depicting the pothole, a view of St. Lawrence Street (not identified by sign in the picture, however) and the Michigan Avenue facade of the Saloon.  The notice, unfortunately, indicated that the injury occurred "in front of Crazy Horse Saloon at 8140 Michigan Avenue..."  The City sought to dismiss the claim, arguing that the notice Glaspie filed did not accurately describe "the exact location" of the injury.

Trial court reversed; claim against government tractor driver is dismissed

Angela Barrett was badly hurt when she fell of a Camp Dearborn hayride.  Allegedly the trailer on which she was riding was being driven at 30 to 40 miles per hour, lurching and executing figure-eights when Barrett fell.  She argued that the tractor driver was responsible for her injuries.

Landowners lose suit against neighbor alleging trespass by waterflow

The Droncheffs sued the Kerrs in Livingston County Circuit Court, alleging that every time it rains, the Kerrs' holding pond overflows and floods the Droncheffs' property.  One of their claims was that the flooding constituted a trespass-nuisance, however, the Court held that this theory of action applied only to claims against the government and had been "eliminated" by the Engler Majority Supreme Court in an earlier decision. With regard to a trespass by diverting water flow, the Court held that the Droncheffs hadn't met their burden of proof.

Supreme Court summarily dismisses death case against Royal Oak

The family of Thomas LaMeau sued the City of Royal Oak after LaMeau struck a utility pole guidewire embedded in the sidwalk, severing his spinal cord at the C-3 (neck) level.  LaMeau had been at a party where he became intoxicated.  He was riding home, on the sidewalk, on a motorized bicycle, in the dark.  Unknown to him, one of Detroit Edison's utility guidewires posed a fatal hazard.  The family argued that the City was negligent in failing to maintain a safe sidewalk and that two City employees were grossly negligent because they ignored multiple warnings from experienced individuals, and two prior incidents, and insisted on paving the sidewalk without requiring Edison to remove the guidewire.  Both the trial judge and the Court of Appeals agreed with the family that these issues should be resolved by the jury.  The Republican majority of the Michigan Supreme Court summarily disagreed, however, reversed the lower courts, and ordered the claims against the City and its employees dismissed.  It did not issue an opinion, however, and explained its actions in one-sentence of a single paragraph order that made reference to the reasons offered by a lower court judge.

City cannot avoid liability by claiming garbage truck stopped to load is not "operating" under statute

Alexus Strozier was hurt in a collision between her school bus and a Flint City garbage truck.  Her mother, Abby, filed an injury suit against the school district and the City Sanitation Department.  The City tried to dismiss the case, arguing that it's truck was stopped at the time of the collision and therefore not "operating."  It also sought a ruling by the court that a child's observations of the collision were not admissible.

Michigan Supreme Court Republican majority reverses Court of Appeals; dismisses injury claim against mining firm

Under a unique agreement, the State Department of Transportation leased land from O-N Minerals Company underlying M-134 in the U.P., and built a reinforced crossing site for the Minerals company to use when crossing the highway.  The O-N vehicles crossing the highway included very heavy and tracked vehicles and they severely damaged M-134 at the crossing site.  Debra K. McCue was very badly hurt when she attempted to bike across the site during a DALMAC bike tour and her husband brought a wrongful death survival claim against O-N.  He claimed that O-N was negligent in tearing up the crossing site, failing to repair it and failing to notify the State of the damage it had caused.  The Court of Appeals agreed with McCue and rejected O-N's effort to dismiss the claim.  On appeal, the four insurance-oriented Michigan Supreme Court Justices overturned the lower court's decision and dismissed McCue's claim. 

Modest jury award to woman for "aggressive" apartment search

Kia Maxwell sued several Secret Service officers after she and her sister were hand-cuffed during a search of her apartment.  The officers had seen her boyfriend enter, and concomitantly with his arrest, they performed a "protective" search without a warrant.  Maxwell, who was pregnant, claimed that she was not allowed to use the bath room and ultimately urinated on herself.  The officers seized various items of property and $9600.00.  Maxwell sued, claiming a violation of her constitutional rights.  The jury awarded her $2,000.00 against one agent and $1,000.00 against two others.  She sought to overturn the verdict but the Sixth Circuit Court of Appeals affirmed.

Workman injured on Community College sidewalk cannot pursue claim

Brian Little was employed by a sub-contractor working inside a building on the campus of Macomb Community College.  He and a co-worker were making several trips inside the building, carrying equipment used in the renovation, when he fractured an ankle in a fall on ice.  He made a claim against the general contractor and the College, arguing that they were responsible for eliminating hazards on the sidewalk.

Claim against Lenawee County Road Commission arising out of property flooding is reinstated

Leonard and Sharon Gust sued the Road Commission, arguing that the Commission's failure to maintain a culvert and drain caused their property to flood.  The lower court and the Court of Appeals both held that the Gusts had properly alleged an illegal taking of their property by reason of the Commission's failure to maintain the culvert and drain.  The Court of Appeals explained that the Gusts had properly alleged a nuisance condition affirmatively created by the Road Commission when it changed the elevation of the road crossing the Plaintiff's property. 

City of Ecorse wins reimbursement claim against former mayor who interfered with neighbor's occupancy permit.

Joseph Dorr sued his neighbor, Larry Salisbury, who was also the Mayor of the City of Ecorse, alleging that Salisbury interfered with the issuance of an occupancy permit for his recently repaired home.  Dorr eventually obtained a jury verdict and judgment of almost $106,000.00, including legal fees and costs. The City filed an appeal and was required to post a bond in the amount of $105,000.00.  When the lower court judgment was affirmed, it sought to collect the judgment amount attributed to Salisbury from the former mayor.

Woman injured in sidewalk fall did not give adequate notice of hazard

Lyn Bykonen injured her ankle when she fell while attempting to protect her son from a school bus backing up.  On her behalf, someone (not identified in the opinion) promptly sent a written complaint to the Village of Akron complaining about the hazardous condition of the sidewalk "from Beach to Lynn Street, between the church and Weihl's house on School Street."  The sidewalk in this area was characterized as a "hazard" in the written complaint, but the nature of the hazard was not identified.  Bykonen filed a lawsuit and relied upon the written complaint as her notice of injury.  It had been served on the Village within the proper time period.

Court holds notice of injury is defective; dismissed motorcyclist's injury claim

Republican Judges Christopher Murray and William Whitbeck enjoyed a satisfying week, dismissing two serious injury cases this week.  In the Marcoux case, they held that a van parked so that it blocked "only" half of a residential travel lane did not pose an "unreasonable" risk of harm.  In Agee v. Department of Transportation, they dismissed a motorcyclist's claim against the road authority.  In a notice of injury sent 15 days after the accident, Agee claimed he lost control of his bike on "the Service Drive for Southbound Southfield Freeway at Ford Road."  He claimed the cause of the accident was "defective pavement."

Federal appellate Court agrees with lower court that facts of arrest must be sorted out by jury

Daryl J. Bennett sued Jeremy Krakowski and several other City of Dearborn police officers, accusing them of assault and battery, gross negligence and violation of his civil rights.  The officers were investigating an attempted possible car theft and observed Bennett talking to a neighbor in his front yard.  They described an incident in which Bennett ran from them and then failed to cooperate in effecting an arrest and hand-cuffing.    Bennett and an on-looker described an entirely different incident.  They claimed Bennett voluntarily dove to the ground when the police approached, and that the officers beat and tazered him despite the fact that he offered no resistance.  Both higher and lower courts held that under the circumstances, it was a question of fact for the jury to decide whether the officers used excessive force or committed a battery.

Claim against University of Michigan and negligent employee-driver is dismissed for notice violation

Alex Lemerand sued Kevin Sheldon Hartman and the U of M, alleging that Hartman's negligent operation of a University vehicle caused injury to Lemerand.  Hartman was cited in the collision after he rear-ended Lemerand's vehicle at a stop light.  Although Lemerand's counsel provided written notice of the event and Lemerand's intent to pursue a claim within 60 days, no formal written notice of the potential claim was filed pursuant to MCL 600.6401 (the governmental immunity act and Court of Claims Act).  On that basis, the University sought summary disposition of Lemerand's claim.

No insurance coverage for sexual assaults commited by Sheriff's Deputy

Livingston County Sheriff's Deputy Randy Boos was sued by several women who had either alleged, or proven, that they were sexually assualted by him after being taken into custody.  The County's insurer, the Michigan Municipal Risk Management Authority, argued that it's broad "criminal acts" exclusion allowed it to refuse to provide indemnfication for Boos' victims.  It argued that Boos' actions were outside his authority and duties as a Deputy, criminal in nature, and therefore not covered by the insurance policy covering County Deputies.

Sixth Circuit finds violation of 4th Amendment in search pursuant to overly-vague warrant

Lansing Police were investigating a series of home invasions when they focused on a particular apartment complex.  Ultimately, after the arrest of one suspect, a warrant issued for the search of an apartment occupied by Stella Wheeler and her boyfriend, Michael Adams.  Pursuant to the warrant, police were authorized to seize broad categories of items, and they did.  Wheeler claimed that several of the items seized were her personal property and that the warrant, and the affidavit on which it was based, were so vague that they violated the U.S. Constitution.  The trial court agreed that the legal documents were unconstitutionally vague but ruled that Dennis Wirth, the officer who conducted the seizure, enjoyed qualified immunity from liability. 

Cities have no responsibility for injuries on sidewalks if not adjacent to highway

Charles Williams was injured on a section of sidewalk that diverts from Jefferson  Avenue to the Detroit River for several hundred yards.  There is no sidewalk adjacent to Jefferson along this stretch of road; to use a sidewalk, pedestrians must walk the river.  The Court of Appeals unanimously held that the river-side sidewalk in this situation met the statutory definition of a "trailway" and that the City was therefore bound to maintain it "reasonably safe for public travel." 

The Supreme Court's Republican majority overturned that decision this week. The high court held that a City has immunity for falls on any sidewalk that is not directly adjacent to the road.