TOV Injury and Safety Blog

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.

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.

Title insurance company is not responsible for expenses arising out of trespass claim

Carlton Dean owned property in Leelanau County that he had insured through Fidelity National Title Company.  A dispute arose between Dean and a contiguous neighbor, arising out of Dean's use of an abandoned road over the neighbor's property.  The neighbor sued for trespass and Dean sued Fidelity to provide him with a defense.    The neighbors worked out their differences, but without the cooperation of Fidelity.  The Court ultimately ruled that Fidelity's title insurance contract did not protect against liability arising out of road right-of-way at issue.

Dispute among "horsey" set in Oakland County addresses stray dogs and leash ordinance

Kallie Roesner and her neighbors Robert Tyler and Helen Hourdakis have engaged in a long-running dispute over property boundaries, alleged stalking, trespass, assault and whatever other neighborly conduct can be accompanied by a "hand gesture."  Eventually, Roesner filed a lawsuit (not the first between them) alleging that the Defendants' dogs had run into the road and startled the horse she was riding, causing her to suffer a broken nose, a herniated disk,  "whiplash" and a wrist injury.  The Circuit Court judge dismissed  her various claims, including her claim that the defendants' loose dogs violated Oakland County's leash ordinance.  On appeal, the Court of Appeals upheld  most of the dismissal, but reinstated the injury claim arising out of the violation of the leash ordinance.

Tenant can sue for lost possessions, landlord who fought demolition of fire-damaged premises may not

Charles Costa and his tenant, Ronald Carey Scott, sued the City of Detroit, claiming it was responsible for the loss of their personal property caused by the demolition of a fire-damaged building.  The Court of Appeals panel ruled that Costa, the owner, could not sue because he did not join his claim for personal property in his emergency legal action attempting to enjoin destruction of the property.  It upheld the tenant's right to sue on a limited basis because Scott, the tenant, was not a party to that action and not "in privity" with the landlord.

LaSalle Bank forced to pay damages for private nuisance after destroying neighbor's back yard

Richard and Suzanne Hainer sued LaSalle Bank after an Oakland County branch under construction changed the grade of its lot and flooded their backyard.  After a bench trial, the Hainers were awarded $15,000.00 in damages for the loss of the use and enjoyment of the back yard during a two-year period, but they were not awarded any attorney's fees.  The Bank appealed the award and the Hainers appealed the denial of attorney's fees.

Public utility's expansion of easement over suburban lot is question of fact for jury

In the 1940s, AT & T was granted a 6 foot wide easement over a suburban lot owned by D'Andrea and Liverpool in Grosse Pointe Farms.  In the 1970s, A T & T installed a "crossbox cabinet" in the right-of-way.  In 2005, it installed additional cabinets on the property and planted shrubs around them.  The homeowners filed suit alleging that A T & T's enhancements constituted an additional, unreasonable expansion of the easement and an unreasonable new burden on their property.  Noting that "the use of an easement must be confined strictly to the purposes for which it was granted," the Court of Appeals reversed the judgment for AT & T entered by the trial court and sent the case back for trial to determine whether the added burden is "reasonable" under the law, even though it stayed within the original six foot parameter.

Another party denied justice by Engler Majority's decision eliminated "continuing wrong" statute of limitations.

For decades, Michigan did not allow the statute of limitations to run if a wrong-doer continued engaging in the same wrongful conduct.  This policy encouraged victims to be patient in responding to negligence and nuisance and to seek out non-litigious solutions and negotiated settlements.  Several years ago, however, the insurance-friendly majority of the Michigan Supreme Court handed down a ruling completely wiping out the "continuing wrong" doctrine.  Under the reactionary approach of the Engler justices, the statute of limitations would run from the first day of any trespass or tort, and regardless of how many times it was repeated, the victim would have no recourse after the statute of limitations was applied to that first transgression.

Court sorts out errors in condo driveway location

The Court of Appeals had to sort out whether Kendra and Kelan Pond could burden the condo property of Shelly and Mitchell Habian, after their driveway was mis-located during the condominium development and construction.  Under the current statute governing these issues, a condo owner cannot be burdened with an easement if the developer made an error, but in the case of these owners, the driveway was mis-located before the amendment of the statute.  As a result, the driveway was maintained in its actual location and an easement was awarded over the servient estate

Sewer back-up case will go forward despite defects in notice to County

Several families, including the Dybatas, Brownings and Olivers, suffered damage to their homes when a Wayne County sewer system failed under a heavy rain.  There is a specific statute that allows similarly-affected homeowners to sue the governmental entity, provided that they follow the proper procedures.  Those procedures are defined by statute and require written notice of the claim within 45 days.  The statute also requires the municipal authority to provide identified homeowners with information on where and how to file a claim. 

Court holds neighbor can erect fence along property line over small, shared artificial pond

The Persells and Mr. Wertz were friendly neighbors at one time.  Mr. Wertz decided to create a small pond in his backyard by excavating down to a spring. The Percells decided to join him and allow part of their property to form 1/4 of the pond.  Unfortunately, they apparently couldn't agree on how to use and tend the pond, which was less than 5 acres in size, and ultimately Wertz erected a wire fence along his property line.  The Persells sued alleging several complaints and seeking documentation of thier right to use the entire surface of the pond.  They secured a verdict in the lower court that totaled $42,000.00 and Weitz appealed.

Supreme Court overturns claim against police based on home invasion

Curtis Newell had sued two Oakland County deputies, arguing that their sloppy police work and gross negligence had resulted in a search warrant that led to the September, 2004 invasion of Newell's home by a drug task force.  Newell's door was broken down without warning by masked officers who beat him, handcuffed him and dragged him down a stairway resulting in physical injuries, a cardiac scare and later, injury to his reputation.  Newell alleged that he was wrongly chained to a hospital bed after the incident, while being interviewed by investigators.  Ultimately, the Defendants and the County acknowledged that Newell was innocent and had been mistakenly identified as a marijuana seller by the Defendant officers.  Newell argued that the officers' false statements in the affidavit they executed to obtain a search warrant for Newell's home were the cause of his mistreatment.

Why you shouldn't give a utility verbal permission to do work on your property.

Thomas Hannah admits he initially gave SEMCO ENERGY oral permission to enter his property to expand its gas main easement.  He became upset, however, when Semco refused to return the land to its original condition, and also refused to work with him to document the location and extent of the new encroachment.  He then attempted to revoke what he claimed was a limited oral license. Ultimately, he filed suit alleging trespass and other violations by Semco, however, he rejected a Case Evaluation that would have awarded him only $5,000.00. 

Tenants "locked out" are allowed to collect exemplary damages; verdict upheld

The Court of Appeals this week upheld a Grayling verdict on behalf of Gary and Patricia Christie against Charles L. Fick and his company.  The Christies had rented a cabin from Fick for seven years.  When Ms. Christie did not have the wherewithal to pay that month's rent on Fick's demand, and was asked to return when Mr. Christie returned from an errand, Fick apparently decided to resort to self help.  He returned while the Christies were not at home, removed and stored their belongings, and locked the Christie's out of the cabin, in violation of MCL 600.2918.  Their property was subsequently damaged in storage.

Court issues detailed ruling examining "right of privacy" and corporate bullying

Scott Dalley sued Dykema Gossett, Lincoln National LIfe Insurance and other defendants arguing that Lincoln's attorneys and agents had abused legal process and invaded his privacy through the mis-use of a Temporary Restraining Order [TRO].  Dykema represented Lincoln in a dispute with a third-party agent who sold Lincoln insurance.  It obtained a TRO prohibiting the third-party from deleting Lincoln information from its computers and authorizing Lincoln to copy the relevant data.  Dalley performed some information technology work for the third-party, and other clients, from his apartment. 

Intermittent tourist whistle is not a "private nuisance"

In a relatively unusual case, the Court of Appeals concluded that sounding a navigating whistle on the tourist riverboat operated in Frankenmuth does not constitute a private nuisance.  The resident who filed suit to limit or eliminate the whistle sounding was denied relief, even though the whistle is sounded almost ten time per hour during the 12 hours of operation and seven cruises daily.  In essence, the court held that the sound wasn't so obnoxious as to be unreasonable, given the Coast Guard regulations that applied and the location in a tourist magnet community.

Court rules underwear search for ibuprofen is unconstitutional

On Thursday, the U.S. Supreme Court ruled 8-1 (Justice Thomas the lone dissenter) that searching a 13 year-old's underwear for ibuprofen constituted an illegal search contrary to the Fourth Amendment.  Middle School officials had strip-searched the girl after another student suggested that she might be the source of prescription-strenght ibuprofen taken by another student. 

Their martinis were shaken, not stirred: no trespass or "taking" by Township

Brian Faulknor and Doris Kittle owned a tavern in Dalton Township, Muskegon County.  They refused to sell the Township an easement to construct and maintain a sewer through their property for $3200.00.  The Township then decided to place the sewer under the roadway adjacent to their building, and during construction vibrations from excavation and boring allegedly "substantially" damaged the Plaintiff's structure and fixtures.   Faulknor and Kittle sued, alleged a trespass and an illegal "taking" of their property.

Malpractice claim versus real estate appraiser explained

Michael Dorman sued the appraiser he hired to support his inverse condemnation claim, Gilbert Zook.  Dorman had sued Clinton Township, claiming an illegal "taking" of his right to develop a parcel of real estate.  He claimed that he lost his case because Dorman mistakenly failed to account for the Michigan Land Division Act and subsequently conceded (wrongly) that Dorman could still secure a profit on his development by complying with the Township's zoning requirements.

"Taking" case against Township after flooding is dismissed

The Court of Appeals recently reversed the Ottawa County trial court and dismissed all counts of a lawsuit against Robinson Township arising out of several homeowners' claim that Township officials unfairly applied flood rules to "take" their property.  After two incidents of flooding caused by the nearby Grand River, Township officials concluded that the cost of repairing the Plaintiffs' flood-damaged homes would exceed fifty percent of the homes' value.  As a result, certain statutory and regulatory requirements became applicable, resulting in enhanced building code and occupancy expenses.  The plaintiffs alleged the resulting repairs and improvements were unnecessary and unreasonable, and that imposing these requirements constituted gross negligence or fraud or one of several alternative forms of wrong-doing. 

Citizens Insurance ducks an obligation

In 2003, the City of Flint replaced the sidewalk in front of a building insured by Citizens.  The basement, occupied by Legal Services Plan of Eastern Michigan, occupied land up to and underneath the sidewalk.  During construction, the contractors accidentally opened an abandoned coal chute allowing access to the basement.  Over the July 4 weekend, a significant rain deposited 20 inches of surface water from the paved road adjacent to the sidewalk in the basement rooms occupied by the Plan.  The Plan looked to Citizens to cover the damage.

Statute of limitations when there is a "continuing wrong"

One of the least discussed errors of recent Michigan jurisdprudence has been a deliberate confusion and rejection of the concept of a "continuing wrong".  Whether the claim is for a trespass on someone else's property, or  for a professional's continuing malpractice, there are occasions when an error occurs not just on the first day of the wrong--but also on subsequent days.  The so-called Engler Majority turned Michigan jurisprudence on its ear in the 2005 Garg case by deciding that the statute of limitations begins to run the day the first of these continuing errors is made:  a patient litigant who did not run to the courthouse steps is punished for his attempt to resolve matters without suit.

Court emphasizes rejection of "continuing trespass" theory

The Frolings bought a vacant lot in Bloomfield and build a new home.  Thanks to inadequate storm sewers, irrigation at the local country club, neighbors re-shaping the topography and pre-existing drainage, their basement became the collecting spot for a subdivision's surface drainage.  They sued the City, the neighbors, the Country Club and a handful of others, but ultimately left the trial court owing their neighbors more than a quarter million dollars in sanction fees and costs.  On appeal, the higher court left them without recourse for flooding damage, but did reverse the sanction fee and cost decision.