One Court of Justice

The Michigan Court of Appeals published its per curiam opinion on August 12, 2010 in Dawe v. Dr. Reuvan Bar-Levav & Assocs., P.C., No. 269147, on remand from the Michigan Supreme Court.  The Supreme Court reversed the Court of Appeals™ original opinion and held that a patient may pursue a common-law, medical-malpractice claim against her treating mental-health professional if the professional negligently placed the patient in danger of harm from another patient.  Our discussion of the Michigan Supreme Court™s March 30, 2010 decision remanding the case to the Court of Appeals can be found here.

On remand, the Court of Appeals largely adopted Judge Smolenski™s dissent in the earlier Court of Appeals™ opinion and concluded that defendant psychiatrists owed a duty of care to their patient to protect her from harm by a third party.  Further, the Court of Appeals held that a reasonable jury could conclude that the defendants proximately caused the plaintiff™s injuries “ being shot by defendants™ former patient with whom she had been placed in group therapy. The defendants knew or should have known that the former patient would form improper emotional attachments to persons in his group therapy and that he might seek to harm those persons and therefore should not have placed the former patient in group therapy. Read more »

Under Michigan’s no-fault automobile-insurance statute, an accident victim typically does not have the right to sue the person who caused the accident.  Instead, the victim is entitled to recover directly from the insurer, without regard to fault, thereby obtaining a certain and prompt recovery for economic loss, but giving up the uncertain possibility of greater relief through tort law.  The statute provides, however, a limited exception:  an injured person may sue under tort law “if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”  MCL § 500.3135(1) (emphasis added).  The legislature defined “serious impairment of body function” to mean “an objectively manifested impairment of an important body function that affects the person’s general ability to lead his or her normal life.”  MCL § 500.3135(7).

In McCormick v. Carrier, No. 136738 (July 31, 2010), the Michigan Supreme Court interpreted the phrase “serious impairment of body function” and, in a 4-to-3 decision, overturned the Court’s 2004 decision in Kreiner v. Fisher, 471 Mich. 109 (2004), that had interpreted the same language.  The majority (with Justice Cavanagh writing for Chief Justice Kelly and Justices Weaver and Kelly) held that a serious impairment of body function exists if there is “(1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).”  In a lengthy dissent, Justice Markman (joined by Justices Corrigan and Young) argued that the majority improperly eliminated any temporal requirement from consideration of the third prong.  The justices also divided over the proper application of stare decisis:  Justice Cavanagh spoke for his and Chief Justice Kelly’s view in the primary opinion, Chief Justice Weaver and Hathaway each wrote separately on the topic, and Justice Markman devoted a substantial part of the dissent to the doctrine.  The different opinions in McCormick thus provide insight not just into the current state of no-fault insurance law but also into the ongoing debate among the justices over judicial philosophy and the role of stare decisis.  Further discussion of the case follows after the jump.

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On July 13, 2010, the Michigan Supreme Court issued an order in Beattie v. Mickalich, SC No. 139438.  In lieu of granting leave to appeal, the Michigan Supreme Court reversed the judgment of the Court of Appeals and remanded the case to the trial court for further proceedings.  The Michigan Supreme Court stated that a plaintiff is not required to plead a claim in avoidance of the limitations on liability provided in the Equine Activity Liability Act (EALA), MCL § 691.1663 et seq.  The Michigan Supreme Court further stated that although EALA abolished strict liability for horse owners, it did not abolish negligence actions against horse owners.  Justice Markman, joined by Chief Justice Kelly, wrote a separate statement concurring in the Court’s order and responding to the dissent.  The dissent, in a statement authored by Justice Young, and joined by Justices Weaver and Corrigan, opined that the EALA only allows a negligence claim when it involves a negligent act or omission beyond the inherently risky equine activity, making the activity even more dangerous.  We previously discussed the Court of Appeals opinion here.

John Crnkovich died from blunt force trauma to his neck and head after colliding with an anchor and guy wire when riding his motor scooter at a high speed down a sidewalk at night without safety gear and while under the influence of alcohol and marijuana.  A guy wire is a steel cable that runs from a telephone pole to an anchor in the ground.  The City of Royal Oak paved the sidewalk through the anchor and under the guy wire during a sidewalk improvement project, instead of having the anchor and guy wire relocated by the utilities company or leaving a substantial distance around the guy wire unpaved as suggested by the contractor.  The personal representative of Crnkovich’s estate sued the City of Royal Oak, the City Engineer, and an engineering assistant, as well as the utilities company and contractor.  The trial court denied the motions for summary disposition based on governmental immunity filed by the City, City Engineer, and engineering assistant. In the consolidated appeals of Lameau v City of Royal Oak, Nos. 290059 and 292006 (the published opinion shows a picture of the sidewalk at issue), the Court of Appeals affirmed in a 2-1 decision. Read more »

On Wednesday, June 23, 2010, the Michigan Supreme Court denied seventeen applications for leave to appeal and one motion for reconsideration.  In addition, the Court granted various procedural motions including several motions for leave to submit amicus curiae briefs.  The Court also took substantive action in four cases.  In Harrington v. Fatchett-Harrington, No. 140833, in lieu of granting leave to appeal, the Court vacated the order of the Court of Appeals which had dismissed plaintiff’s claim of appeal and remanded the case to the Court of Appeals for reinstatement of the appeal.  In Woodward Parking Co. v. City of Detroit, No. 140073, the Court vacated the Court of Appeals’ decision in light of the Court’s decision in Briggs Tax Service, LLC. v. Detroit Public Schools.  In People v. LaRose, No. 139699, the Court remanded the case to the Court of Appeals after determining that the defendant-appellant was deprived of a direct appeal as a result of ineffective assistance of counsel.  Finally, the Court granted leave to appeal in Hamed v. Wayne County, No. 139505 to clarify the application of Michigan’s Civil Rights Act to prisoners.  The Woodward Parking, LaRose, and Hamed cases are discussed further after the jump. Read more »

In Woodman v. Kera LLC, the Michigan Supreme Court ruled that a preinjury liability waiver signed by a parent on behalf of his or her child are not enforceable under common law because, absent special circumstances, a parent has no authority to bind his or her child by contract.  The Court unanimously voted to affirm the result of the Court of Appeals decision, with four justices voting to uphold the Court of Appeals’ reasoning.  Justice Young wrote the lead opinion joined, for the most part, by Chief Justice Kelly and Justices Hathaway and Weaver.  Justice Cavanagh concurred in the result, albeit because he believed that the poorly drafted release did not apply.  Justices Corrigan and Markman also concurred in the result, but dissented from the reasoning of the lead opinion and would have held that a parental preinjury waiver is enforceable. Read more »

Yesterday, the Michigan Supreme Court granted the application for leave to appeal in Yvletel-Rivard v. Rivard, No. 140065, and directed the parties to address three questions:

1. Whether MCL § 600.5078(1) and (3) contemplate no more than two arbitration awards (the initial written award and any modified award following a motion to correct errors and omissions);
2. Whether MCL § 600.5078(3) does not permit the filing of more than one motion to correct errors and omission; and
3. Whether the defendant’s motion to vacate the award was untimely.

The Court also asked the parties in Brown v. Taubman Co., No. 140385, to address whether indicia of a potentially slippery condition are sufficient to make so-called “black ice” open and obvious.

The Court also peremptorily reversed three Court of Appeals decisions in lieu of granting the application for leave to appeal and denied 10 applications for leave to appeal.  The peremptory reversals are discussed after the jump.

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After oral argument on the application in Brooks v. Starr Commonwealth, No. 139144, the Michigan Supreme Court decided the Youth Rehabilitation Services Act does not create an actionable duty to the general public.  Accordingly, the Court reversed the Court of Appeals’ decision and reinstated the circuit court’s order granting summary disposition to the defendants.  Chief Justice Kelly and Justices Cavanagh and Hathaway dissented.  Read more »

Salt hurts blueberry bushes.  Based on this fact, a number of blueberry farms sued the Michigan Department of Transportation (MDOT), arguing that road salt that sprayed from highways and county roads onto their blueberry bushes, which were located on properties adjacent to those roads, hurt their blueberry production.  The blueberry farms alleged that the State had committed trespass nuisance, which is “a trespass or interference with the use of or enjoyment of land by way of a physical intrusion that the government sets in motion and that results in personal or property damage.”  In Blue Harvest, Inc. v. Department of Transportation, No. 281595 (published Apr. 29, 2010), the Court of Appeals held that sovereign immunity precluded the suit against MDOT because the state had not waived its sovereign immunity.  No statutory exception applied, so the Court turned to the harder question of determining whether the common law governing sovereign immunity as it existed before July 1, 1965 (when MCL § 691.1407 was enacted to reinstate sovereign immunity after it was temporarily abolished) provided an exception for trespass nuisance.  Concluding that it did not, the Court reversed the trial court’s denial of MDOT’s motion for summary disposition based on sovereign immunity.  Turning to a second issue, the Court affirmed the trial court’s dismissal of the blueberry farms’ claims for inverse condemnation, because the injury they suffered was not peculiar or unique, but rather was the same kind (though worse in degree) of injury that all properties adjacent to the roads suffered.  The majority opinion by Judge Meter is available here, and the concurring opinion by Judge Beckering, who analyzed the common-law history in greater detail, is available here.

A landowner in Grand Rapids sued the Kent County Drain Commissioner and a special-assessment drain district alleging that the design of the drain district caused flooding on his property.  In Arath II, Inc. v. Heukels County Drain District, No. 288725 (published Apr. 29, 2010), the Court of Appeals, in an opinion authored by Judge O’Connell, concluded that the landowner had failed to state a claim because he failed to petition the drain commission first.  Under the Drain Code, in particular MCL § 280.191, the drain commissioner has authority to improve or repair a drain only after a landowner files a petition and the commission determines the improvement is needed.  Furthermore, the petition must be joined by a certain number of other landowners in the district, as the landowners in the drain district will have to pay a special assessment to fund the work.  Because the landowner had not filed a petition, the drain district had never received the authority to make any improvements or repairs to the drains on the landowner’s property, and therefore the district could not be held liable for failing to take action.

On April 8, 2010, the Court of Appeals released an opinion in Jones v. DaimlerChrysler Corp., No. 285099, holding that whether the use, design, or location of a trapdoor created a dangerous condition was a fact question for the jury.  The question before the Court was whether the defendant was entitled to summary disposition on a premises-liability claim for injuries resulting from the plaintiff’s fall through an open trapdoor where the undisputed evidence established that the trapdoor was only open for a few seconds and none of the defendant’s employees were present while the trapdoor was open.  The trial court had granted the defendant’s motion for summary disposition, concluding that the defendant did not know and could not reasonably have discovered that the trapdoor was open under the circumstances.  The Court of Appeals agreed with the trial court that summary disposition was appropriate as to the plaintiff’s claim based on the opening of trapdoor; but it held that the trial court erred in not permitting the plaintiff’s claim to go to the jury based on the design, use, and location of the trapdoor in a walkway.  A copy of the Court’s opinion can be found here. Read more »

In Dadd v. Mount Hope Church, Case No. 139223, the Michigan Supreme Court reversed the Court of Appeals and reinstated the jury verdict for the plaintiff.  The Court concluded that the jury’s finding of malice overcame the defendant’s claim of a church-related, qualified-privilege defense to claims of slander and libel. Read more »

On March 30, 2010, the Supreme Court issued a unanimous decision in Dawe v. Dr. Reuven Bar-Levav & Assocs., P.C., No. 137092, holding that a patient may pursue a common-law, medical-malpractice claim against his or her treating mental-health professional if the professional negligently placed the patient in danger of harm from another patient. The question before the Court was whether MCL § 330.1946 completely abrogated the common-law duty of a mental-health professional to warn or protect others, including patients. In an opinion written by Justice Cavanagh, the Court held that by enacting MCL § 330.1946, the Legislature only intended to limit, not to completely abrogate, the common-law duties of mental-health professionals toward patients based on the “special relationship” between them. A copy of the Court’s opinion can be found here. Read more »

On March 23, 2010, the Court of Appeals issued an opinion authored by Judge Sawyer in Persell v. Wertz, No. 288858, partially reversing a jury verdict in favor of the plaintiff homeowners against their next-door neighbor for trespass, nuisance, defamation, and infliction of emotional distress.   The Court dismissed three of the plaintiffs’ four trespass and nuisance claims and remanded for a new trial on the plaintiffs’ claim of infliction of emotional distress, because it was impossible to determine the extent to which the jury relied on the dismissed claims in concluding that the defendant inflicted emotional distress or in assessing damages.

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The debate over strict statutory language interpretation took a somewhat unusual, but very polite and respectful, turn in the Court of Appeals’ published opinion on March 16, 2010 in Progressive Michigan Ins. Co. v. William Smith, et al., No. 287505.  Judge Bandstra authored the opinion of the divided panel, which held that the warning notice requirement of MCL § 500.3009(2) for auto insurance policies must be strictly enforced as written, and thus the named driver exclusion here was unenforceable.  Judge Murray concurred, and Judge Markey dissented.  Judge Bandstra’s opinion of the panel can be found here.  Judge Murray’s concurrence can be found here, and Judge Markey’s dissent can be found here. Read more »

On Wednesday, March 10, 2010, the Michigan Supreme Court issued its opinion in the case of Department of Agriculture and Michigan Apple Committee v. Appletree Marketing, LLC and Steven Kropf, No. 137552, in a unanimous opinion authored by Justice Young.  In Appletree, the Court considered two issues of jurisprudential significance: (1) whether the plaintiffs could simultaneously pursue claims against the defendants for alleged violations of the Agricultural Commodities Market Act (“ACMA”), MCL § 290.651, et. seq., and for common-law and statutory conversation; and (2) whether plaintiffs could pursue claims for common-law and statutory conversion against Appletree’s principal, Steven Kropf.  The Court reversed the Court of Appeals opinion and concluded that the ACMA does not supersede claims of statutory conversion or abrogate claims of common-law conversion, and therefore plaintiffs were entitled to pursue those claims.  The Court further held that Steven Kropf could be held personally liable for any intentional torts he committed in the operation of his business.  A copy of the Court’s opinion can be found here. Read more »

On March 9, 2010, the Court of Appeals published its opinion in Alpha Capital Management, Inc. v. Rentenbach, No. 287280.  In this case, the Court of Appeals affirmed a jury verdict that found that a lawyer and law firm were not liable to their former client, Alpha Capital Management (“ACM”), in connection with their representation of a former ACM shareholder in a dispute concerning that former shareholder’s buyout agreement.  The Court of Appeals addressed multiple issues related to the trial court’s denial of summary disposition to ACM, and the conduct of the trial.  Notably, the Court of Appeals affirmed the trial court’s decision that defendants did not, as a matter of law, breach their fiduciary duties to ACM.  The Court of Appeals identified a conflict in the expert testimony regarding whether the work defendants performed for ACM had a substantial relationship to the work performed for the former shareholder, and noted that there was no evidence that defendants had any confidential information that advantaged the former shareholder.  On another interesting issue related to the conduct of the trial, the Court of Appeals upheld the trial court’s time limitations on witness examinations.  In making this decision, the Court of Appeals relied heavily on the trial court’s decision to allow lengthy examination of ACM’s primary witness on the basis of ACM counsel’s representation that all the subsequent exams could be completed in a half hour each.  Thus, the Court of Appeals concluded that the trial court’s limitation of all subsequent exams to 45 minutes for each side was not improper, particularly where there was adequate time to develop the facts and issues involved in the case.

On March 9, 2010, the Court of Appeals issued a per curiam opinion in Dextrom v. Wexford County, No. 281020.  Plaintiff property owners sued the county, alleging that contaminants from the county-operated landfill entered their groundwater.  The Court of Appeals determined that the trial court correctly concluded that, contrary to certain plaintiffs’ contention, a landfill that violates state licensing and environmental laws does not constitute an ultra vires activity.

Defendants asserted a governmental immunity defense.  Generally, the defendants’ operation of a landfill constitutes a governmental function, and is protected by governmental immunity.  There are, however, exceptions to governmental immunity, including the proprietary function exception.  An activity is deemed a proprietary function if (1) the activity is conducted primarily for the purpose of gaining a pecuniary profit, and (2) the activity cannot normally be supported by taxes or fees.  To determine whether an agency’s primary purpose is to produce a pecuniary profit, courts must consider “whether a profit is generated,” and then “where the profit generated by the activity is deposited and how it is spent.” 

The Court of Appeals affirmed the trial court’s denial of summary disposition.  However, the Court of Appeals also remanded the case to the trial court to hold an evidentiary hearing to determine the threshold question of law of whether the defendants’ operation of the landfill was subject to the proprietary function exception to governmental immunity.

Defendants who entered the plaintiff’s apartment to execute a temporary restraining order (TRO), but wrongly told the plaintiff the TRO was a federal subpoena that allowed them to enter the apartment to either take his computers or copy what was on them, may be liable for invasion of privacy and trespass.  In Dalley v. Dykema Gossett, P.L.L.C., No. 289046, a published opinion issued on February 11, 2010, the Michigan Court of Appeals reversed in part a circuit court order granting summary disposition to the defendants under MCR 2.116(C)(8).  In a separate federal action, the defendants had obtained a TRO to secure certain computer data, including data from a non-party to that lawsuit, the plaintiff in this action.  Several of the defendants served the TRO by slipping it under the plaintiff’s apartment door, and soon thereafter called the plaintiff to explain that the TRO was a federal subpoena that allowed the defendants to enter the plaintiff’s apartment to either take the plaintiff’s computers and hard drives or copy the data on them.  According to the amended complaint, the plaintiff reasonably believed that he had no choice and would go to jail if he refused access to his computers.  He thereafter allowed the defendants to enter his apartment, and then directed them to the only computer that might contain information described in the TRO.  But the defendants nonetheless copied the data from two of the plaintiff’s computers and four hard drives.  The Court of Appeals held that because the plaintiff alleged defendants gained access to the plaintiff’s apartment through subterfuge and threat, and then copied more than the one computer to which the plaintiff had consented, the plaintiff stated a claim for invasion of privacy.  For the same reasons, the Court held that the defendants’ misrepresentations could reasonably be found to have vitiated the plaintiff’s consent to enter his apartment, and the plaintiff also stated a claim for trespass.  The Court affirmed the trial court’s dismissal of claims for intentional infliction of emotional distress, abuse of process, and tortious interference with a business relationship.

On February 9, 2010, the Court of Appeals released an unpublished opinion in Socia v. Pacers Basketball Corp., No. 284845, affirming the dismissal of a Palace worker’s suit against two Pacers players under theories of negligence and gross negligence.  On November 19, 2004, the plaintiff was injured during the infamous “Palace brawl” that occurred at a basketball game between the Indiana Pacers and the Detroit Pistons at the Palace of Auburn Hills.  The plaintiff was working at the Palace and was injured while helping to keep a tunnel clear for the players to exit.  As the two defendants were confronting spectators near the tunnel, another spectator threw a chair that hit the plaintiff on her head.  The Court of Appeals concluded that the plaintiff failed to establish that the defendants owed a duty to the plaintiff.  The Court of Appeals emphasized that an individual has no duty to protect another from the criminal acts of a third party without a special relationship giving rise to that duty.  Here, where the plaintiff did not allege that she entrusted her safety to the control of the defendants or that she lost control to protect herself, there was no special relationship.