One Court of Justice

In Duffy v. Irons Area Tourist Association, the Court of Appeals examined the scope of the recreational land use act, holding that it protects only owners, tenants, and lessees.  There, the defendant-tourist association contracted with the State of Michigan to maintain the Little Manistee Trail.  While riding an all-terrain vehicle on that trail, the plaintiff crashed her vehicle and sustained serious injuries.  She sued the tourist association for negligently failing to maintain the trail.  The trial court held that the recreational land use act protected the tourist association from negligence claims.  The Court of Appeals reversed.  The recreational land use act limited its scope to “owner[s], tenant[s], and lessee[s].”  MCL 324.73301.  Because the tourist association was none of these, the act did not protect it from liability.

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 a 4-3 decision in Hill v. Sears Roebuck & Co., the Michigan Supreme Court held that installers of an electric dryer owed no duty to the homeowners with respect to an uncapped natural gas line that had been left by the previous homeowners.  The Court determined that the installers of the electric dryer, who were in the home for only 12 minutes and installed the dryer in a non-negligent manner, owed no duty to take action concerning the uncapped gas line.  The Court also concluded that the installers owed no duty to warn because the circumstances of the relationship between the parties did not give rise to any legal obligation because plaintiffs knew about the uncapped gas line before installation of the dryer.  The Court noted, “it is difficult to envision what social benefit would result were we to recognize plaintiffs’ claim because the result would be to absolve homeowners from any duty to protect themselves from hazards within their own homes.”

The Court reversed the Court of Appeals and remanded for entry of an order granting summary disposition to defendant installers.  The dissent, authored by Justice Marilyn Kelly, would have affirmed on the grounds that the installers owed a limited duty to warn the homeowners about the hazards of the natural gas line before they installed an electric dryer and concealed the line.

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.

The Court of Appeals found that because several people, including plaintiff, successfully traversed a raised stage (without any guard at the back of the stage) the open and obvious risk of falling was not “effectively unavoidable.”  Thus, in a published opinion of Chesser v. Raddisson Plaza Hotel,  authored by Judge  Krause, the Court reversed the trial court’s denial of Radisson’s summary disposition motion seeking to defeat plaintiff’s personal injury claim based on falling off the back of a stage after giving a speech at the hotel.  In awarding summary disposition to the defendant the Court of Appeals concluded that, under Michigan law, the hotel only owed a duty to protect invitees from the open and obvious danger of falling off a raised stage, if that danger was “effectively unavoidable.”  The Court rejected the argument that the hotel owed no duty because Plaintiff could have refused to ascend the stage, and rejected the contention that because it was possible to cross the stage without falling, the risk effectively avoidable.  However, the successful crossings of several people, including plaintiff, demonstrated to the Court that the ”statistical fluke was [plaintiff's] fall, not the other speaker’s safety.”  Thus, the risk of falling was not effectively unavoidable.

On January 10, 2012, the Court of Appeals vacated its earlier order and issued a new opinion in Alfieri v Bertorelli, No. 297733. In Alfieri, the plaintiffs purchased condominiums at a site that had previously been an abandoned factory. After reading a sales brochure and a newspaper article that indicated that chemical contamination at the site had been cleaned up, plaintiffs did not obtain an independent environmental inspection. After discovering that the chemical contamination was in fact still present, the plaintiffs brought a suit against the defendants, the seller’s agents, for negligent misrepresentation and silent fraud. At different stages of the trial, the defendants moved for summary disposition, directed verdict, and JNOV, each time arguing that as the seller’s agents, they owed no duty to plaintiffs.

The Court of Appeals disagreed. While the court acknowledged that silent fraud and negligent misrepresentation both require the defendants to owe a duty to the plaintiffs, the court found that a duty of disclosure may be imposed on a seller’s agent to disclose new information that renders a prior affirmative statement untrue or misleading, especially if a buyer has expressed a concern about that subject. Since the plaintiffs expressed their concerns about the contamination before the sale, the court found that the trial court was correct in deciding there was a genuine question of fact as to whether defendants owed plaintiffs a duty. The court went on to reject the defendants’ next appeal, in which the defendants argued that there cannot be fraud if the defrauded party had the means to independently determine the truth of the mater. While the plaintiffs failed to obtain their own environmental inspection, the court found that plaintiffs’ reliance on the newspaper article and sales brochure was reasonable. The court also rejected the defendants’ final appeal, in which the defendants argued that the trial court should have applied a contributory negligence standard, by simply noting that contributory negligence has long since been abandoned in Michigan.

The Court of Appeals also rejected an appeal brought by the plaintiffs, in which the plaintiffs argued that the trial court should not have instructed the jury on comparative negligence because the plaintiffs’ negligent misrepresentation claim did not involve a claim for personal injury, property damage, or wrongful death, as set out in MCL 600.2959. The court disagreed, finding that an “invasion of a personal right” qualifies as a personal injury under the language of the statute, and that Michigan case law supports comparative negligence when there is sufficient evidence for the jury to find negligence on the part of the injured plaintiff. Given that the plaintiffs failed to obtain their own environmental inspection, the court found that the comparative negligence instruction was proper, and affirmed the trial court.

In Snead v John Carlo, Inc., No. 298575, the Court of Appeals considered an appeal by the Michigan Department of Transportation (“MDOT”) from a trial court’s order for partial summary judgment on behalf of the plaintiff.  The plaintiff was a motorist who sustained injuries after driving into a large hole in the roadbed of a highway exit lane.  The plaintiff sued both the construction company and MDOT, alleging negligence because the confusing layout of traffic barrels at the scene of the accident led her (and three other motorists who crashed into the hole at roughly the same time) to believe that the highway exit lane was open and safe for travel.

As a state agency, MDOT would normally be immune from suit under the Governmental Tort Liability Act (“GTLA”); however, the highway exception to the GTLA provides that the state and its subdivisions have a duty to maintain the improved portions of the road intended for vehicular travel.  In her motion for summary judgment, plaintiff argued that the highway exception to governmental immunity should apply as to MDOT.  MDOT also moved for summary judgment, arguing that since the traffic barrels and the presence of construction equipment made it obvious that the highway exit lane was not actually open, the exit lane was not an improved portion of the road meant for vehicular travel at the time of the accident.

The Court of Appeals held that while the trial court was correct to dismiss MDOT’s motion for summary judgment, it erred in granting plaintiff’s motion for summary judgment, as a genuine issue of material fact existed.  The Court of Appeals found that the appropriate test for determining if a road is open for public travel is whether “a reasonable motorist, under all of the circumstances, would believe that the road was open for travel.” The court determined that the state’s duty to keep the highway in reasonable repair would be suspended when the highway was effectively closed, but that the duty would still be owed if the highway was improperly closed.  Since the circumstances of the case allowed for a genuine dispute as to whether the highway exit lane was effectively closed, the court found that a genuine issue of material fact existed, and summary judgment for the plaintiff on the governmental immunity issue was improper.

Judge Talbot filed a concurring opinion.

In Price v. High Pointe Oil Co., No. 298460, the Court of Appeals held that “in negligence actions, a plaintiff may seek recovery of mental anguish damages naturally flowing from the damage to or destruction of real property.”

In Prince, plaintiff was awarded $100,000 in non-economic damages resulting from defendant filling the basement of plaintiff’s home with nearly 400 gallons of fuel oil.  A year before the incident, plaintiff converted her home heating system from an oil furnace to a propane furnace.  Plaintiff notified defendant of the change, and defendant took plaintiff off the “keep full” oil list.  Despite this notice, however, plaintiff was inadvertently placed on the “keep full” list, which resulted in defendant’s oil truck driver filling the fill pipe located on the exterior of the house while plaintiff was at work.  Because the oil furnace had been replaced, the fuel oil flooded the basement.  The resulting contamination required the demolition of the house and plaintiff being displaced from a permanent home for nearly two years.

Read more »

In Estate of Domonique Daquan Wheeler v Central Michigan Inns, Inc, No 296511, the Court of Appeals held that claim for ordinary negligence, rather than premises liability, does not place upon a defendant a duty to supervise a child if the child’s parent was present and the defendant does not voluntarily assume responsibility for supervising the child. Read more »

On Thursday, April 6, 2011, the Michigan Court of Appeals published its opinion in the consolidated appeal Meemic Ins. Co. v. DTE Energy Co., Case Nos. 295232 & 296102.  In Case No. 295232, the court affirmed the trial court’s grant of summary disposition in defendant’s favor because the plaintiff had failed to provide sufficient evidence that an issue of fact existed as to the cause of this house fire.  In Case No. 296102, the Court reversed the trial court’s denial of defendant’s motion for case evaluation sanctions.  In reaching this conclusion, the court reiterated its prior ruling in Peterson v. Fertel, 283 Mich. App. 232; 770 N.W.2d 47 (2009) and determined that a “verdict” for purposes of MCR 2.403(O) includes an order on a motion for reconsideration of the summary disposition ruling.  Defendant’s motion for sanctions was timely in this case because it was filed and served 16 days after the trial court’s order on plaintiff’s motion for reconsideration. Read more »