One Court of Justice

In Hunter v. Sisco, the Michigan Court of Appeals held that a plaintiff could not recover damages for emotional injuries against the City of Flint Transportation Department because under the governmental immunity act a government agency may only be held liable for “bodily injury” and property damage.  The court rejected the plaintiff’s argument that “bodily injury” under MCL 691.1405 encompasses injuries for emotional damage, pain and suffering.  The court reasoned that immunity is only waived for “physical or corporeal injury to the body.”  The legislature did not intend to allow damages for emotional suffering, even if a plaintiff also suffered a bodily injury.

In Price v. High Pointe Oil Company, Inc., the Michigan Supreme Court adhered to the long-standing common law rule that noneconomic damages are not recoverable for negligent destruction of property.  While the general rule in tort cases is that a plaintiff may recover for all injuries resulting directly from a wrongful act, including both economic and noneconomic injuries, a different rule applies in cases involving damage to property, for which a plaintiff may recover only the cost of replacement or repair. Read more »

In Knight Enterprises, Inc. v. RPF Oil Co., the Michigan Court of Appeals reversed the trial court’s judgment in favor of the plaintiff, because the plaintiff failed to demonstrate that the defendant instigated the breach of contract.  In this case, the plaintiff supplied gasoline to a gas station under a 10-year fuel supply agreement.  The gas station owner breached the contract with the plaintiff and entered into a new contract with the defendant.  But the undisputed testimony demonstrated that the gas station owner had told the defendant that he was not under any contract to purchase gasoline when he entered into the contract.  Further, the gas station owner solicited bids for the new supply contract; the defendant did not initiate the contact.  Therefore, the plaintiff’s claim failed as a matter of law, as there was no evidence that the defendant induced the breach of contract.

In Hoffner v Lanctoe, the Michigan Supreme Court held that an “invitee”–plaintiff, who knowingly crossed ice to enter her exercise facility, was not entitled to tort recoveries as the danger was “open and obvious” but not of a “special aspect” to make the “risk unreasonably dangerous.”  After mini-oral argument on the application for leave, the court reversed-in-part and affirmed-in-part the Court of Appeals, which, in agreeing with the Circuit Court, found a question of fact existed on whether the ice was “effectively unavoidable.”  For that reason, these courts denied the property owner’s summary judgment motion.  See previous One Court of Justice coverage.  Over three dissenters, the Supreme Court reversed and remanded the case to the Circuit Court for entry of summary disposition for the defendants.

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Plaintiff was ejected from her wheelchair and suffered injuries to her legs while riding on a Suburban Mobility Authority for Regional Transportation (SMART) bus, when the driver of the SMART bus applied the brakes at a yellow traffic signal.  In Seldon v. Suburban Mobility Authority for Regional Transportation, a/k/a SMART et al, approved for publication after release, the Court of Appeals held that SMART had no legal duty to advise plaintiff of the availability of a shoulder restraint or belt, and that the trial court erred in determining otherwise.  Further, the Court of Appeals determined that even if SMART owed such a duty, the failure to so advise plaintiff did not implicate the motor vehicle exception to governmental immunity, MCL 691.1405, because it did not constitute the “operation” of a motor vehicle within the meaning of the statute.  The Court of Appeals also held that the trial court erred in determining that plaintiff presented evidence establishing a justiciable question of fact regarding whether the driver operated the bus negligently because sudden stops are incidents of travel, absent evidence of other negligence.  Finally, the Court of Appeals held that the trial court correctly determined that SMART owed no duty to secure plaintiff in her wheelchair using a seatbelt or shoulder restraint, and that the driver’s failure to do so did not constitute gross negligence.   The partial dissent would affirm the trial court in whole.

On July 27, 2012, the Michigan Supreme Court decided Cedroni Associates, Inc. v. Tomblinson, Harburn Associates Architects & Planners, Inc., No. 142339.  In this opinion issued on the application, the Court reversed the November 2010 judgment of the Court of Appeals and held that the lowest bidder on a school construction project has no reasonable expectation that it will be awarded the contract and therefore may not maintain a lawsuit for tortious interference. Read more »

On Friday, in Titan Ins. Co. v. Hyten, et al., Case No. 142774, the Court ruled that an insurance company may avail itself of traditional legal and equitable remedies to avoid liability under an automobile insurance policy, even where the fraud may have been “easily ascertainable” if the insurer had performed an investigation, and where the claimant is a third party.  The Court’s decision overruled the “easily ascertainable” rule established by State Farm Mut. Auto Ins. Co. v. Kurylowicz, 67 Mich. App. 568 (1976), and its progeny.  Additionally, the Court reaffirmed its prior holding in Keys v. Pace, 358 Mich. 74 (1959), in which it made a similar ruling prior to the enactment of the No Fault Act.  The Court’s ruling will likely have a significant impact on no fault insurance litigation throughout the state. Read more »

Since 2005 Michiganlaw imposes liability for negligence causing the death of a non-viable fetus; but according to the Michigan Supreme Court, that was not the case when Mrs. Johnson’s obstetrician refused to perform a procedure that could have prevented the miscarriage of Baby Johnson.  In Johnson v. Pastoriza the Court held that the “fetus wrongful death act”—the only act that applied to death of a fetus at that time—requires an affirmative act to trigger liability, not just a negligent omission.  The refusal to perform a medical procedure was not an affirmative act.  Further, the 2005 amendment adding death of a fetus to the scope of the “universal wrongful death act”—where negligence does trigger liability—was not retroactive.  Joined by three other justices, Justice Zahra explained that generally statutes apply prospectively, in the absence of language to the contrary.  And the exception to that rule for “remedial” statutes—where retroactive effect would be presumed—does not apply to “remedial” statutes that affect substantive rights.  Here, the 2005 amendment to the universal statute expanded the substantive rights of plaintiffs upon death of a nonviable fetus, and contains no language expressing a legislative intent that it apply retroactively.  It therefore applies only prospectively.

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In Buhalis v. Trinity Continuing Care Services, the plaintiff slipped and fell on ice after parking her bike on the defendant’s outdoor patio, which was not shoveled. Adjacent to the patio was a walkway that was clear of snow and ice and lead to the main entrance of the nursing home. The Court held that a premise possessor does not have the duty to warn an invitee, such as the plaintiff, if the danger is known to the invitee or so obvious it would be reasonable for the invitee to discover it. The Court then determined that the plaintiff should have been aware that there would be ice because she knew that it had rained and snowed the previous night and she had extensive knowledge of Michigan winters having lived through eighty-five of them. Additionally, the Court found that there was no question as to whether the defendant had taken reasonable care because the defendant had removed the snow on the main walkway and on all sidewalks around the building, the only reason the plaintiff encountered slippery conditions was because she chose to park her bike on the seasonal patio. Accordingly, the Court held that where “a premise possessor provides a clear means of ingress and egress and the invitee strays off the normal pathway onto an area that is obviously not reserved for that purpose, the landowner has not breached a duty of ‘reasonable care.”

Judge Kelley authored a dissent, and would hold that there was a genuine issue of fact with respect to whether the plaintiff was invited onto the patio, and whether the ice was open and obvious.

A curb cutout that runs from a sidewalk to abut a county road is part of a county highway, but exists outside of that portion of the highway designed by vehicular travel.  This conclusion from the Court of Appeals through Judge Murphy’s opinion in Moraccini v. City of Sterling Heights, No. 301678, resulted in Court affirming the trial court’s denial of the City of Sterling Heights motion for summary judgment arguing that it was immune from a suit alleging injury caused by a defect in such a curb cutout.  The legal issues turned on MCL 691.1402, which excepts highways from governmental immunity, but also states that municipalities are generally not liable for injuries allegedly caused by a county highway.  The statute, however, does state that in the event that a plaintiff can prove statutory knowledge and causation prerequisites, a municipality may be liable for defects in portions of county highways existing outside of the improved portion of the highway designed for vehicular travel, including sidewalks and “other installations.”  The Court of Appeals concluded that because the general definition of highway explicitly includes “sidewalks”, it also includes a curb cutout of a sidewalk that abuts a county highway.  Thus, the general highway exception to governmental immunity applies.  The Court of Appeals, however, concluded that cutout was not designed for vehicular travel, and thus a municipality is not immune from suit alleging defects in that cutout.