TOV Injury and Safety Blog

Neighbor's negligent parental supervision claim is dismissed.

Michell Rollinson sued her neighbor, Janice Beresowskyj, after the defendant's 17-year old son struck her in the head with a baseball bat, causing multiple skull fractures and a loss of hearing.  Rollinson argued that Beresowskyj breached her duty to control and supervise her minor son's assualtive behavior.  The case arose out of a neighborhood altercation that involved a broken window and a loose dog.  The Court held that the defendant mother owed no duty to intervene and interrupt her son's assault of Rollinson, and on that basis the judge granted the defendant summary disposition.

Court addresses negligent physician credentialling claim; holds hospital not responsible for continuing to credential doctor with 17 prior lawsuits

Jesuben Englelhardt sued the St. John Health System after Dr. Rajesh C. Bhagat negligently performed surgery on Ehgelhardt's hand.  Bhagat struck a nerve causing permanent problems with Englehardt's hand.  Bhagat settled the claim by paying his insurance limits, apparently, and Englehardt continued the action against St. John.  He argued that St. John should have acted in response to Bhagat's 17 prior lawsuits to investigate Bhagat's competence. 

Engelhardt presented a credentialling expert who testified that if the Hospital had reviewed Bhagat's history, it would either have denied him surgical privileges or insisted that he be mentored.  The expert also affirmed that this process would have prevented Engelhardt's injuries, particularly since three of the prior claims involved surgeries similar to Engelhardt's.

Court holds violent acts "aren't foreseeable result of illegally serving alcohol" and "willful ignorance" of illegal consumption does not constitute "actual knowledge."

In one of the most disappointing examples of political, activist, result-oriented, injudicious decision-making we have witnessed in 30-plus years of lawyering, the Court of Appeals held in Uplinger v. Howe, et al., that homeowners who hosted an alcohol-laced party for "75-100" guests after their son's junior prom owed no responsibility for grave injuries suffered by one of the attendees.  The 19-year old plaintiff suffered a severe head injury after he was beaten by an intoxicated 24-year-old wielding a baseball bat.  The two "boys" had been involved in a verbal altercation earlier in the night--in the Defendants' polebarn--and the attacker, Jeffrey Howe, returned with companions and weapons to attack the plaintiff, Uplinger.

Couple allowed to sue insurance agent for value of expensive ring

Barbara and Steven Lemberg sought replacement value insurance coverage for an engagement ring with an appraised value of .....get this....$107,000.00. They consulted with their insurance agent, Kenneth Korotkin, who procured the insurance.  When the ring was lost, however, the coverage through Chubb Insurance was limited to $36,776.00.  The couple sued their agent for procuring inadequate coverage.  A four-day trial was held in Oakland County, after which the jury awarded the Lembergs the difference in value between the actual replacement value and the replacement value insured throught Korotkin.  Korotkin's insurers appealed the verdict, alleging that Korotkin owed no duty to the Lembergs. 

Shoplifter can't sue over broken collar bone; Kohl's not subject to statutory limit on use of force

Sarah Stolicker admitted that she had shoplifted in the Oakland County Kohl's Department Store.  Nevertheless, she brought an injury claim against the store and security agent Darryl Duncan after Duncan allegedly tacked her in the parking lot and fractured her collar bone.  She cited that Michigan statute that limits private retail securiity employees to "reasonable force" in effecting arrests.  Stolicker argued that by exceeding reasonable force in tackling her, Duncan and his employer could be held responsible for their share of her medical expenses on a comparative fault basis. 

The Court majority disagreed.  It held that since she was engaged in wrongful conduct, she forfeited any right to pursue an injury claim.  It also refused to apply the statute cited by Stolicker; the two judges implicitly decided that this statute applies only to "suspected" shoplifters but did not limit the force used to detain admitted shoplifters.  The dissenting judge pointed out that the majority decision did not follow existing Supreme Court holdings, the language of the "reasonable force" statute or the statute adopting comparative fault.

Injury at amusement park results in money verdict--but for the amusement park and against victim.

Marilyn Lukas attended the Carnival at the Taylor Summer Fest with her husband and kids.  As they were walking down the midway near the "Beer Bust," a softball struck her in the face, broke her nose, lacerated her cheek and took some of the pleasure out of the family's outing.  Lukas sued the operator of the Beer Bust game and the operator of the carnival, alleging poor design and management of the ball-throwing game.  To make a long story short, the Carnival operator argued that Lukas couldn't prove that the Beer Bust was the source of the ball that struck her, and the jury concluded that the operator wasn't responsible for Lukas' injury. 

The Carnival operator then sued the Beer Bust operator to recover its defense costs of $117,000.00.  The lower court entered a judgment for that amount, based on the Beer Bust operator's indemnity contract with the Carnival (agreeing to hold the Carnival harmless for any claims arising out of the Beer Bust's activities).    The Court of Appeals reversed, holding that given the jury's verdict in the case brought by Lukas, the indemnity contract language was ambiguous in attempting to shift the defense expenses to the Carnival.  We guess there was "due process" here, but it is hard to see this result as a common sense example of a "system of justice."   Do you think this is what most people think they are buying when taxpayers fund the operation of a court system?  Certainly insurance companies are getting their money's worth.

Court examines "speculative cause" for sewer back-up and reinstates dismissed claim

Michael and Joy Kole sued Nagle Paving Company after their basement flooded with sewage.  It was clear that the sewer backup occurred because there was excessive debris in a nearby manhole, including large chunks of asphalt and brick.  Since the Nagle Paving Company was the only company known to have performed significant asphalt work in the area in the past decade (since the manhole was last inspected), Koles sued them for depositing the debris in the manhole. 

Nagle produced an affidavit from its work supervisor claiming that Nagle did not damage or deposit debris in the manhole when it removed the asphalt from the road surface and re-paved it for a housing development entrance.  The Koles produced a development engineer who testified that Nagle was the only reasonable source of the debris, and also confirmed by deposition that Nagle's supervisor was not present most of the day when the nearby asphalt was cut up, removed and replaced. The supervisor also acknowledged that debris is commonly deposited in manholes during asphalt reconstruction without the construction crew necessarily recognizing that it has happened.

Based on these proofs, the Court of Appeals ruled that the trial judge had committed error in dismissing the Kole's case.  The judge had deemed the Kole's evidence "too speculative."  The higher court unanimously ruled that there was ample evidence to support a jury's decision that Nagle caused the debris deposit---if the jury actually reaches that conclusion after weighing the testimony.

Painter loses common work area injury claim

James Shawl suffered injury to his back when a large electrical box  with protruding screws fell and struck him while he was working as a subcontractor painting the entrance to the Saginaw County Event Center.  The General Contractor on the project was Spence Brothers construction company.  Shawl sued Spence Brothers, arguing that it negligently fulfilled its duty to protect employees working in the common area from construction hazards.

The Court of Appeals upheld the dismissal of Shawl's claim.  It ruled that the electrical box did not pose a substantial risk of severe harm and that a significant number of workers were not endangered by the box.  Therefore, the risk it posed did not create a "common work area" duty on the part of Spence Brothers to protect the employees of subcontractors.

Nursing Center cannot sue negligent pharmaceutical provider after prescription error results in loss of valuable Medicaid program certification.

Woodward Nursing Center, Inc. sued Medical Arts, Inc. after it lost an important Medicaid certification.  Woodward argued that it lost the certification--and a significant source of profit--because Medical Arts negligently failed to fulfill a contract to provide pharmaceuticals on a timely basis.  Woodward claimed that it timely re-ordered the pharmaceuticals, but that Medical Arts lost the order for twelve days and then fabricated an excuse to blame Woodward for the order's "illegibility."  The Defendants argued that the claim sounded in medical malpractice and was not preceded by a Notice of Intent or accompanied by an Affidavit of Merit.  On this basis the trial court dismissed Woodward's claim. The Court of Appeals upheld the dismissal on the latter basis and also because the contract element of the action was not accompanied by a copy of the parties' contract.

The Plaintiff then sought to file a new action with proper procedural elements.  The Court of Appeals upheld the dismissal of the new action because the prior action had been dismissed "with prejudice" (making the dismissal a final order precluding further actions).  So, a pharmacy clerk loses an order for twelve days and causes havoc in a nursing home, but the pharmacy isn't held accountable because of technical defects in the Complaint brought against it--without an opportunity to correct the procedural flaws associated with calling the error "malpractice."  This is modern justice in Michigan.

Driver who claimed medical emergency cannot reverse strategy and claim physician-patient privilege to avoid turning over medical records.

Medical records are privileged:  normally a person can decline to produce medical records even in response to a subpoena.  In order to sue on an injury, however, the victim must make his or her records availabe to the at-fault individual and his or her insurance attorneys.  The victim has voluntarily placed his physical condition "in issue" by filing suit.   If the victim does not allow access to these records, his or her injury claim must be dismissed.  Similarly, if the allegedly at-fault person wants to avoid turning over his or her privileged medical records, the defendant cannot rely on a medical emergency to explain the occurrence. He or she has placed the his medical condition "at issue."

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.

Higher court reverses dismissal of 34-year old woman's negligence case arising out of double-mastectomy where pathology report found no cancer

Stacey Van Buren identified a suspicious lump on her breast and visited the doctor for evaluation.  Her surgeon, Carlotta Maresca, M.D.,  performed a needle aspiration, sent the specimen for analysis in the Covenant Health System, and recommended an immediate double mastectomy.   Although the pathology report indicated no cancer was present, that message never made its way to Maresca, and she removed both of the 34-year old woman's breasts nine days later.  When Van Buren learned that the double-mastectomy had occurred in the absence of any cancer, she sued Maresca and everyone else in the chain of custody of the path report for negligence.  She argued that it was not medical malpractice, but rather a lack of "ordinary care" to allow such invasive surgery to occur in the presence of a benign pathology report.

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. 

Claim arising out of rape in psychiatric award is upheld on appeal; recipient rights "decision" was not trustworthy or admissible

Mary Sloan was involuntarily admitted to Chelsea Community Hospital after a suicide attempt.  During her stay, a male patient entered her room and raped her.  The male patient had earlier been escorted from her room by staff after he entered uninvited.  Sloan sued the Hospital, arguing that it had improperly failed to protect her from the potential rapist.  She presented the testimony of two psychiatric nurses with a combined 50+ years of experience:  they testified that the nursing staff of a psychiatric unit owes a duty to vigilantly protect patients from this type of assault and that Chelsea's staff had violated the standard of care.  The jury awarded Sloan $100,000.00 in non-economic damages and $50,000.00 in economic damages.  Chelsea appealed.

Court of Appeals sends worker's fall claim back to Oakland County for trial

George Frommert fell twenty feet from a defective scaffold after stepping from a bucket truck to the scaffold to gather construction debris. The scaffold had been moved to its current location by a sub-contractor, Teera Construction Company, and left in an unstable condition without warnings.  Frommert sued Teera for common law negligence.  The trial court and two judges of the Court of Appeals agreed that Teera was entitled to summary disposition, relying on a mistaken interpretation of the Fultz "contractual immunity" holding by the Engler Majority of Michigan's Supreme Court.  Frommert appealed to the Michigan Supreme Court.

Injured oil derrick worker's family cannot sue owner of well

Franklin D. Davis, Jr., suffered very severe injuries when he fell a little over 20 feet after a cable snapped.  He died some time later and his family brought a legal action against the owner of the well, KCS Resources, Inc.  His family's attorneys argued that KCS was negligent in supervising the activities at the well-drilling site and in failing to maintain a safe "common work area."  The Court of Appeals affirmed a decision by the trial court dismissing the claim.  It noted that the owner of the well had sub-contracted the work to Davis's employer and that no other sub-contractors worked on the derrick.  Therefore it was not a "common work area."  Since the owner was no longer in possession of the site, the activity was not "ultrahazardous" and the derrick wasn't a common work area, the owner owed no duty to Davis with regard to safety.

Plaintiff wins causation or speculation argument between two insurers

Nationwide Mutual Fire Insurance Company paid its coverage to the Isham family after their home burned down, and then sued, under its subrogation rights, a propane company and contractor for negligence.  Nationwide argued that Parker's Propane Gas Company and Staley Plumbing and Heating caused the fire when they installed a compromised flexible gas line behind the Isham's oven.  The Defendants argued that Nationwide's claim was based entirely on speculation about whether a leak fueled a fire in the oven-drawer for several hours, or whether the fire was caused by a faulty temperature regulator.

Couple can sue investment advisers

Nestor and Maria Kleer sued their investment advisers, James F. Peters, Jr. and Paul J. Simon, alleging a breach of fiduciary duty.  They did not allege that Simon was "still crazy after all these years."  The trial court dismissed the Kleers' lawsuit, but the Court of Appeals reinstated it.  The higher court pointed out that the parties executed a contract which defined their investment strategies.  After a number of years of aggressive growth, the advisers recommended a change in strategy to less aggressive investing to minimize potential losses.  The Kleers agreed and an amendment was executed stressing a "no loss" strategy. 

Court dismisses nurse's claim against elevator service company

Nurse Laura Wulff sued the Otis Elevator Company after falling while exiting an elevator at Henry Ford's Maplegrove Medical Center.  Otis had been called in on January 28, 2009 to service an elevator that was not levelling with the floor.  The repairman claimed the elevator was in good order when he left.   The next day, Wulff encountered a six-inch gap while walking out of the elevator, tripped and suffered injuries.  She sued Otis for negligence.

Contract claim against Nursing Care Center for death of parent is dismissed

The family of William Adam sued the Sisters of Bon Secours Nursing Care Center, alleging negligence and breach of contract.  The family claimed that poor care provided to William caused his death, and that the care violated the statutory duties of the Care Center to its patients as incorporated into the parties' contract.  Unfortunately, the family did not comply with the medical malpractice procedural requirements, including filing a multi-page Notice of Intent to Sue that explains to the professional what was done wrong and how it violated the standard of care and caused the death; and then waiting six months before filing the Complaint accompanied by Affidavits of Merit from medical professionals documenting the errors.  Given the procedural error, the family's negligence claim was dismissed. 

Court upholds jury verdict against family claiming "stalking" by neighbor's kids

Travis Turner sued his neighbor, Gail A. Pellot, a/k/a "Wanda," arguing that she negligently failed to supervise her sons and that the sons were stalking, threatening and intimidating his family. A jury heard arguments in the case and ruled that Pellot was not negligent in supervising her sons.  Turner appealed, alleging multiple errors in the jury instructions and lower court procedures.  The Court of Appeals rejected his complaints and held that errors made in the lower court did not result in a denial of substantial justice.

Woman's claim against cleaning service is reinstated for discovery

Patricia Billiau was badly hurt when she fell while fulfilling security measures during the opening of her employer bank's branch.  Billiau fell after stepping from a wet carpet to  a newly-waxed wood floor:   she claimed that the fall was caused by a combination of the new wax job and her wet shoes from the drying carpet.  She argued that if the overnight cleaning had been performed properly, the carpet would have been dry, and that she should have been provided with some form of warning of the conditions.

The trial judge dismissed Billiau's claim, holding that the cleaning services, Suburban Copntractor Cleaning, Inc., and Grand Rapids Building Services, Inc., owed Billiau and other employees no duty. After the decision in Loweke v. Ann Arbor, the Court of Appeals returned the case to the lower court to examine whether the cleaning service violated a common law duty to complete the cleaning tasks in a reasonable manner or to warn of the potentially dangerous condition existing prior to complete drying.

Sears may have to pay for its "independent" installer's negligence

Marcy, Patricia and Christopher Hill sued Sears, Roebuck and others alleging negligence.  They had purchased a new home and bought a new, electric dryer from Sears.  They did not realize, however, that the previous owners of the home had removed a GAS dryer and failed to disconnect or "cap" the gas line.  The Sears installer brought in the electric dryer, did not address the uncapped gas line and in fact located the new dryer in a manner that obscured the uncapped line.

Electric utility not responsible for dropping wire that draped over road, striking motorcyclists

Steven Shievely and his wife Carol were biking on Springbrook Road in Jackson County when they struck a nearly-downed electrical power line operated by Consumers Power.  The line had drooped to within three feet of the ground after a tree limb struck a cross-arm on the utility pole, fracturing the cross-arm and causing the line to hang slackly over the road.

The trial court dismissed the motorcyclists' case because they had not hired an adequate expert witness to testify that Consumers' maintenance practices were adequate.  The expert they did hire was a former Consumers Power Company employee who testified that the Company's safety practices were unreasonable and not in conformity with the National Electric Safety Code.  The Court ruled, however, that he did not have enough hand's-on experience with forestry practices, utility line maintenance or the maintenance standards used by other Michigan utilities to quailify him to explain to the jury what Consumers did wrong.

Farmer's ex-wife loses case against the farm's accountant

Judith Zwerk sued Walter Don Zehnder in Saginaw Circuit Court after Zehnder removed her name from the farm's corporate books, eliminating her ownership of stock.  After a number of complicated rulings, the jury ruled that Zehnder had committed a form of silent fraud by not disclosing his "succession plan" maneuvering to Zwerk, but that Zwerk had suffered no damages as a result:  it appears that the jury determined that Zwerk's damages had been fully compensated by adjustments to the marital estate in her divorce.

Zwerk appealed but the jury's decision was upheld.  The Court held that the lower court did not err in allowing Zehnder to testify that he thought Zwerk knew about his actions and approved.  It also held that the trial judge did not err in admitting the pleadings from the divorce action.

Home-made scaffolding erected 15 minutes earlier is not a common work area

The sub-contractor employer who employed Wayne Goodfallow on a job site run by  Glennwood Custom Builders built a home-made scaffolding to install 3 windows on the second floor. Within 15 minutes, it collapsed, causing Goodfallow to fall 15 feet and suffer permanent injuries.  Only Goodfallow and one co-worker were on the scaffolding and no other subcontractor's workers would have used the scaffolding, as there were manufactured scaffolding elements present at the site.  On this basis, the court concluded that the scaffolding did not contitute a "common work area" because it did not endanger a signficant number of workers.  The court pointed out that even if a number of workers were endangered, the danger involved was not "readily observeable" by the general contractor, as it had only just been erected.

The Court also rejected Goodfallow's argument that the men working below the scaffolding were endangered by the scaffolding, thus endangering  a significant number of people:  the workers under the scaffolding were held to be subject to a different danger than workers on the scaffolding.  Another fine piece of semantic analysis by Judge Kirsten Kelly, the insurer's advocate.

Court dismisses claim against teacher and principal over management of sexual assault

Karen Thomas sued her daughter's special ed teacher and an administrator, claiming they were guilty of gross negligence in how they managed an incident where the  teacher entered her classroom to find the daughter and two boys engaged in sexual misbehavior. The 11-year olds were inconsistent in how they described the events, and the teacher did not immediately see any evidence of an assualt having occurred.  She sought a witness before intervening and initially the school planned to treat the incident as one in which all of the children violated school rules. 

It's hard to sue for injuries suffered while attempting to flee from your own attempted armed robbery

Scott Zelinski pleaded guilty to unarmed robbery after being accused of robbing Nick's Party Store in Macomb County at knifepoint.  He then sued two individuals who apprehended him while fleeing, arguing that they shot him in the back and beat him up, needlessly.  The Defendants cited the court to the statutory wrongful conduct rule that prevents a "victim" from suing for injuries suffered during the commission of a felony or while fleeing after perpetrating a felony-like crime, providing that the force used against the "victim" is not unreasonable.

Contractor who moved and erected scaffold cannot sue owner

Wayne Lockard was an independent contractor using a scaffold to maintain ceiling lights in Defendant Siegfried's building, when the scaffold collapsed and he was badly hurt.  The scaffold collapsed because one of the spring-loaded holding pins in a scaffolding leg was not anchored in the corresponding hole, apparently.  The owner of the building had rented the scaffolding for Lockard and others to use in refurbishing and maintaining Siegfried's property.  Lockard believed that the owner should be liable for the injury because it was his duty to provide a safe scaffolding for Lockard to use.

Victim cannot sue equipment rental agency for negligent entrustment

Joseph Burlingame was paralyzed when Jason Brown accidentally dropped the boom of  a rented rough terrain forklift  on him drring operation.  Burlingame sued Brown for negligence, and sued Brown's mother, who rented the forklift, as well as the forklift rental owner, NationsRent, Inc.  He obtained a default judgment against Jason, who was apparently uninsured, and pursued independent actions against Mrs. Brown and NationsRent.

Worker's claim of negligence against equipment repairman is dismissed

Randall Carnell was hurt when he slipped on a puddle of hydraulic oil and fell in his his employer's industrial garage.   Crandall slipped on an oil spill leaking from the rear hub and chain case of a skid steer that had been repaired by a Wolverine Tractor & Equipment repairman three days earlier.  Nevertheless, the mechanic claimed that while he checked the hub and chain case fluid level, he did not perform any work on it.  His bill didn't charge for any work on the hub and chain case.

The Court held that since the skid steer was moved  into the garage after the mechanic completed his work--and could have been tampered with over the weekend--it was "mere speculation" for the injured man to claim that the mechanic had done something to cause the oil leak.  As a result, the injury claim could not be submitted to the jury to test the veracity of his testimony.

Is a negligent actor immune from liability because it is acting under a contract with a third party?

The Fultz case re-surfaced again this week, when the Court of Appeals dismissed an injury claim brought by George Frommert against Teera Construction Company.  Frommert fell with a collapsing scaffolding erected by Teera, a different sub-contractor on a building site, and claimed that Teera was negligent either in the erection of the scaffolding or in marking it out of service.

"Interference with business relationship" claim requires wrongful act

Michael Doyle was sued on a commercial loan guarantee and attempted to pursue a counter-claim against the Mercantile Bank of Michigan.  Mercantile's predecessor had loaned money to Doyle to build a commercial building in Okemos, and it had also loaned money to the building's largest tenant.  When the tenant defaulted on its note, Mercantile essentially shut it down by pursuing legal creditor's remedies, and wiped out a primary source of income to the building.  Doyle argued that Mercantile's aggressive pursuit of creditor remedies wrongfully caused his default on the mortgage on the building. 

Family Trust engenders litigation and fails to execute parents' intent

A Wayne County family ended up in the Court of Appeals after the surviving children--four brothers--could not resolve their dispute over their parents' assets.  The problem originated in their initially-surviving mother's attempt to share her estate equally among the four brothers, after she had already placed title to some assets in various brothers' names, either as joint owners or as beneficiaries.  After she died, the sons who enjoyed vested title refused to contribute all of the property back to the common estate for division.  The excluded brothers filed suit, alleging fraud, conversion, interference with a trust relationship and abuse of fiduciary duty, but the Court of Appeals held that they could not establish the elements of any of these causes of action.   The attorney who drew up her plans for testacy claimed that when she was warned of the need to re-title assets, the mother told him that "she trust[ed the boys] to do the right thing and to make sure my desires are carried out." 

Quadriplegiac cannot sue camp for injuries suffered on water slide

Robert Watkins sued the St. Francis Camp on the Lake after he suffered spinal injuries on the camp water slide.  Watkins is a mentally competent 34 year-old who was confined to a wheelchair due to cerebral palsy.  He also suffers from spinal disc disease, arthritis, and speech disorders, although he does not have an appointed guardian.  When he enrolled in the camp, his mother explained these problems in his camp application and recommended that his involvement in certain activities be limited.

Court holds mother cannot sue 3 year-old daughter's father for wrongful drowning death

Nicole Mickel sued her ex-husband, Daniel Wilson, after their youngest daughter died while in Wilson's custody.  Wilson had taken the couple's three daughters to a relative's graduation party on an inland lake.  The girls went swimming and Wilson did not supervise them.  While he was in the home, briefly, the 3 and 1/2 year old, Jordyn, drowned.  Mickel sued him for wrongful death, claiming negligent supervision.

Families of fire victims cannot sue oxygen supplier who continued deliveries to "careless smoker"

The agents of Senior Home Health Care, Inc.  apparently observed that one Mr. Renwick was carelessly smoking in close proximity to the oxygen they were delivering to him.  They apparently made record of this fact, but continued deliveries of oxygen for 17 months, until Renwick caused a fatal apartment fire in which the plaintiff families suffered injuries and fatalities.  The families then filed suit against Senior Home Health, arguing that it was negligent to continue providing oxygen to Renwick after determining that he would not stop carelessly smoking near the oxygen.

Court holds that property owner can sue water main contractor after flooding

Cheryl Boylan's property was flooded the season after a major water main project was completed in Lyon Township of Oakland County.  She alleged the flooding occurred because the contractors eliminated a nearby swale and changed the topography of her land to allow surface water to pool.  Her experts suggested that failures by the contractors building the new water main resulted in surface water overwhelming the septic system and causing it to fail.

Court upholds jury verdict on assault; throws out defamation claim

Shahn Farokhrany sued Marlin Jackson alleging that Jackson assaulted him.  Jackson counter-sued for defamation, claiming that Farkokhrany's original claim that he was struck with a beer bottle caused injury to Jackson's reputation and interfered with his NFL draft standing.  The jury refused to award damages for the assault, and instead awarded damages to Jackson for defamation, and Farokhrany appealed.

Insurer avoids paying for damage caused by insured's employee

BFC Management owns an adult establishment named Cheetah's.  It was induced by Jani-King of Michigan to change janitorial services, allegedly in part because Jani-King claimed that it stood behind and insured all employees.  The Jani-King sales department assigned the contract to a local franchisee who couldn't do the work because of his regular full-time job.  The franchisee then hired a friend of a relative to clean the club. 

"Slide tackle" in soccer is "part of the game."

Julie Hlywa sued Liberty Park of America and Denise Pond, after she was injured during a soccer game.  Hlywa claimed that the opposing goalie, Ms. Pond, injured her in the process of denying her the ball; she offered into evidence affidavits from two teammates attesting to the fact that Pond used a slide tackle to deny possession of the ball.  At Liberty Park, slide tackles are illegal and posted regulations make that clear. 

Ambulance driver is not required to report partner's suspected abuse of transported minor patient

Teen-aged Jane Doe was being transported between institutions by ambulance after an attempted suicide.  The driver of the ambulance, operated by the Henry Ford Health System, began to suspect that his partner, Matt DeFillippo, was molesting the restrained young girl.  He called his supervisor to report his suspicions, but took no action to interrupt the molestation or report the conduct to civil authorities. 

Soldier wins preliminary fight with bank over foreclosure procedural abuse

James Hurley sued Deutsche Bank Trust Company and others, after they foreclosed on his home while he was on active duty in Iraq.  The Bank had secured the foreclosure by filing a false affidavit attesting to the court that Hurley was not in the military.  He sued for intentional infliction of emotional distress and alleged violations of the Servicemembers' Civil Relief Act. 

Court makes judgment about comparative fault and dismisses claim

Michael Spencer encountered a downed Detroit Edison power line that contacted a ladder atop his van.  Just as he extricated his vehicle from the charged line, he apparently saw an approaching school bus.  He attempted to hurry from his vehicle to warn the bus driver, but in the process slipped on a wet sidewalk, fell and suffered an injury.  He tried to hold the Power Company responsible for his fall and injury, pointing out that the entire misadventure stemmed from the downed line.

Bank not responsible for conversion of two-party check lacking endorsement

In Elsebael v. JP Morgan Chase Bank, the Court of Appeals recently ruled that Morgan Chase was not legally responsible for allowing a check to be processed without a necessary second endorsement.  The Plaintiff argued that bank employees "knew or should have known" that the check was being converted because it had been endorsed by only one of the two payees.  The Court rejected this analysis, holding that the Plaintiff was required to show that a Chase employee "was aware, or understood, or had no substantial doubt, that the check was missing a required endorsement."  Maybe we're missing something here, but does this holding imply that the bank employees aren't required to look at both sides of the check?  Is the implication that the bank is only responsible for improperly honoring a check if someone explains to the teller, on presentation, that he is stealing the money?  Something about this result just doesn't "add up."

Police are immune from liability after failing to comply with mandatory arrest statute in domestic disturbance

The Estate of Leon Smithers filed a civil lawsuit against the City of Flint and two police officers after the officers failed to detain Shirley Washington for the 20 hours mandated by statute in cases of serious domestic disturbance.  Washington, Smithers' girlfriend, was at Smithers' home when a verbal altercation commenced; he called police, who removed the intoxicated Washington from his home.  The family alleged that despite her threats to kill Smithers, police charged Washington only with trespass and did not comply with the statutorily-mandated 20 hour "holding" requirement.  She returned to the home and shot and killed Smithers and wounded another man who was at the home watching television.  This week the Sixth Circuit dismissed Smithers' Estate's wrongful death claim, holding that the officers retained the discretion to charge Washington with a different offense and were not the proximate cause of Smithers' death.

Juror awards punitive damages against Boy Scouts and Mormon Church

The Wall Street Journal reported today that an Oregon jury awarded a man $1.4 million dollars in punitive damages against the National scouting organization and the Church of Jesus Christ of Latter-day Saints.  The man was abused by an assistant scout master after he confessed to the church--which apparently sponsored his troop--of abusing 17 young boys during his term as a scout master.  The jury awarded $840,000.00 against BSA and $350,000.00 against the Church.  It directed that the remainder of the punitive damages, $210,000.00, come from the Regional Council of the Scouting organization.  The Mormon Church was the charter organization for about 1/3 to 1/2 of all the antion's scout troops in the 1980s, according to the Wall Street Journal.

Verdict against minister who acted with malice is upheld by Supreme Court

Judith Dadd attended an Assembly of God Church near Lansing where parishioners gather at the altar to be prayed over by the minister, one David R. Williams.  Apparently, if the "spirit moves them" enough when Williams prays over them, congregants fall over backward and collapse in a heap.   Ushers are present to cushion the fall, but their belief system holds that they won't suffer injury in any event.  Something went haywire for Dadd, however, who wasn't caught and suffered a head injury when she struck the floor. 

When Dadd asked the Church's insurance to help cover her medical expenses, it limited its assistance to the medical co-pay of $5,000.00.  Dadd then brought a civil claim alleging the ushers were negligent in not protecting her when she was "slain in the spirit" and fell over backwards.

Caretaking family has assumed no duty to houseguest

In a superficial opinion issued by the Court of Appeals last week, the judges held that Patricia Mosser could not sue Dianna Pepper for injuries that were not described, resulting from negligence that was not identified.  All that can be understood from the court's 3 page opinion is the fact that the judges felt Pepper and her family owed no duty to Ms. Mosser. 

Company owner can be liable for his personal torts in the operation of corporation

The Michigan Supreme Court recently held that Steven Kropf could be sued individually for his alleged conversion of funds in the operation of Appletree Marketing, LLC.  Appletree was Kropf's corporation, and it collected money in the nature of a tax under the state's Agricultural Commodities Marketing Act.  It was alleged that Kropf illegally converted these funds to pay corporate bills of the now-defunct entity.  In an opinion by Justice Young, the Supreme Court held that Kropf could be sued personally for his "personal torts" in the operation of Appletree.