One Court of Justice

The Michigan Supreme Court resolved three cases by peremptory orders reversing the Court of Appeals’ decisions and ordered oral argument on the application for two cases in its next term. 

The Michigan Supreme Court reversed the Court of Appeals’ decision in Kachudas v. Invaders Self Auto Wash, No. 139794.  In Kachudas, the plaintiff slipped and fell at an auto wash on a winter day and sued the company that operated the facility.  The Court of Appeals concluded that the open-and-obvious defense was not available to the defendant because the plaintiff’s claims sounded in general liability and not premises liability.  Four justices of the Michigan Supreme Court disagreed, explaining that the plaintiff alleged injury because of a condition of the land and thus the plaintiff’s claims were for premises liability.  The Court further found that a person of average intelligence would anticipate that spraying water on a day with average temperatures between 11 and 24 degrees would likely lead to the formation of ice.  Accordingly, the Court also concluded that the danger was open and obvious.  The Court peremptorily reversed the Court of Appeals’ decision, and reinstated the trial court’s grant of summary disposition to the defendant.  Chief Justice Kelly and Justices Cavanagh and Hathaway dissented.

The Court apparently decided to revisit the open-and-obvious doctine by ordering oral argument on the application in Ahola v. Genessee Christian School, No. 140447.  The Court of Appeals, in a divided opinion, concluded that faults to the defendant school’s steps that caused the plaintiff’s injury were not open and obvious despite the plaintiff’s navigation of those steps several hours earlier because the steps were unlit at the time of the injury.  Read more »

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 »

Yesterday the Michigan Supreme Court unanimously concluded that an individual who trips and is injured on a sidewalk adjacent to a county highway must, in order to establish that the municipality is liable, overcome a rebuttable inference that would not apply if the individual had tripped on an identical sidewalk located adjacent to a state highway.  The rebuttable inference, known as the “two-inch rule,” is the presumption that the sidewalk was properly maintained if the “discontinuity defect” in the sidewalk is less than two inches.  While at least one member of the Court thought this outcome produced an arbitrary distinction, all agreed that this outcome was the most natural reading of the plain language of MCL § 691.1402a.  Justice Markman authored the opinion in Robinson v. City of Lansing, No. 138669 (Apr. 8, 2010), and Justices Young and Weaver each wrote separate concurrences.

Read more »

On Friday, January 29, 2010, the Michigan Supreme Court signaled its intent to consider revising the discovery rule by granting leave to appeal in Colaianni v. Stuart Frankel Development Corporation.  In Colaianni, the plaintiff asserted tort claims against the defendants arising from purported exposure to toxic mold at her workplace.  The defendants moved for summary disposition based on the statute of limitations which the trial court denied based on the common-law discovery rule.  The Court of Appeals reversed the trial court’s decision under Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378, 738 N.W.2d 664 (2007), which eliminated the common-law discovery rule in Michigan.  The Court of Appeals panel majority urged the Michigan Supreme Court to reconsider its decision in Trentadue because, in the view of the Court of Appeals’ majority, the rule is unfairly harsh.  The Michigan Supreme Court appears to be willing to do just that, granting leave to appeal and ordering the parties to address whether Trentadue was correctly decided.

Justices Young and Corrigan authored a dissent complaining that the majority of Michigan Supreme Court justices are breaking from their previous views of stare decisis and taking cases to reverse recent precedent.

The Court invited the Negligence Section of the Michigan State Bar and the Michigan Defense Trial Counsel to submit amicus briefs.  The Michigan Association for Justice submitted an amicus brief in support of the plaintiff’s application for leave to appeal.

On Friday, January 22, 2010, the Michigan Supreme Court granted leave to appeal in Beach v. Township of Lima to address whether a plaintiff who seeks to establish an adverse possession claim that affects property in a recorded plat must bring a claim under the Land Division Act if the plaintiff is not expressly requesting that the plat be vacated, corrected or revised.  The Court of Appeals held that a plaintiff need not bring a claim under the Land Division Act when he or she brings a quiet title action to establish adverse possession because a Land Division Act claim only alters the plat consistent with already existing property interests.  In other words, under the approach adopted by the Court of Appeals, a plaintiff may prevail in a quiet title action and later bring a claim under the Land Division Act to alter the plat–the two claims do not need to be brought simultaneously.  Such an approach has the effect of permitting inaccurate recorded plats.  The Michigan Supreme Court invited the Michigan Municipal League and the Real Property Section of the State Bar of Michigan to submit amicus briefs.  Our earlier post on the Court of Appeals’ decision is here.

Appellate criminal defense practitioners should note Justice Corrigan’s concurrence in People v. Henderson, No. 139375.  In Henderson, the Court of Appeals dismissed the defendant’s appeal because he did not timely file his appeal brief.  The Michigan Supreme Court remanded the case  to the Court of Appeals for consideration as though the defendant’s brief had been timely filed because the delay was solely attributable to the neglect of appellate counsel.  The Court concluded that defendant was deprived of effective assistance of counsel and ordered appellate counsel to pay costs to the Court.  Justice Corrigan concurred recommending that in cases where an attorney fails to timely prosecute a criminal appeal and thereby deprives the defendant of effective assistance of counsel, the Court should refer the negligent counsel to the Attorney Grievance Commission. Read more »

On January 12, 2010, the Court of Appeals published a 2-1 opinion in Hadden v. McDermitt Apartments, LLC, No. 286474, affirming the trial court’s denial of defendant landlord’s motion for summary disposition.  The plaintiff was a tenant in an upstairs apartment who slipped and fell on black ice when using an outdoor stairway attached to the defendant’s apartment building, fracturing her hip.  Prior to the incident, the plaintiff had called the defendant twice, complaining about the presence of snow and ice on the stairway.  Under MCL § 554.139(1)(a), the defendant had a duty to keep the stairway fit for its intended use.  The trial court found the conclusion reached in the Michigan Supreme Court’s decision in Allison v. AEW Capital Management, LLP, 481 Mich. 419, 751 N.W.2d 8 (2008), distinguishable on its facts.  In Allison, the Michigan Supreme Court concluded that one to two inches of snow did not render a parking lot unfit for its intended use.  Here, the Court of Appeals noted that the facts included black ice, and the intended use of walking to and from the upstairs apartment was different from the intended use of the parking lot in Allison, which was to park cars.  The trial court here noted that the statute, by its own terms, is to be “liberally construed.”  MCL § 554.139(3).  The Court of Appeals agreed with the trial court that here the plaintiff produced sufficient evidence to create a genuine question of material fact for the jury as to whether the stairway was fit for its intended use at the time the plaintiff slipped and fell.  Judge Meter dissented on the ground that this case is not materially distinguishable from Allison, and would grant summary disposition in favor of defendant.  Judge Meter’s dissent can be found here.

On December 1, 2009, the Court of Appeals published its per curiam opinion in Bialick v. Megan Mary, Inc., No. 286571, reversing the trial court’s order granting defendant’s motion for summary disposition in this premises-liability action.  Plaintiff suffered injuries on a “drizzling” day when she slipped and fell on a wet tile floor several steps inside a gas station.  Although there was no standing water on the floor, the floor was wet.  Plaintiff did not observe any caution signs regarding a wet or slippery floor.  The trial court found that the wet condition of the floor was open and obvious, and granted defendant’s motion.  The Court of Appeals explained that a premises possessor owes no duty to protect an invitee from dangerous conditions that are open and obvious.  The Court of Appeals emphasized that the test is whether a reasonable person in plaintiff’s position would have been able to discover the dangerous condition and the risk presented with casual inspection.  The Court of Appeals held that genuine issues of material fact exist regarding whether the wet condition of the gas station floor was open and obvious, and remanded the case for further proceedings.  The Court of Appeals rejected defendant’s argument that plaintiff should have been aware of a potential hazard based just on the “drizzly” or “misty” weather conditions, because the focus must be on the objective nature of the premises.

The Michigan Court of Appeals has published its opinion in Janson v. Sajewski Funeral Home, Inc., No. 284607.  In that case the trial court awarded summary disposition to the defendant in a slip and fall case on the grounds that the black ice which caused the fall was an open and obvious danger.   The Court of Appeals reversed, rejecting the notion that “black ice in Michigan is open and obvious as a matter of law.”  The Court of Appeals cited facts from the record emphasizing that the black ice was not visible, and concluded that the application of the open and obvious doctrine would not be appropriate.

On Thursday, April 9, the Michigan Court of Appeals issued a published opinion reversing a circuit court’s order for summary disposition in favor of an insured against its insurer based on the interpretation of a pollution exclusion clause.  In Auto Owners Ins. Co. v. Ferwerda Enterprises, Inc., Case No. 277574, toxic fumes from the insured hotel pool’s heating system built up while the heating system was under repair.  The fumes injured guests of the hotel, who then sued the hotel.  Auto Owners, the  hotel’s insurer, denied coverage under the policy’s pollution exclusion clause and filed an action for declaratory judgment to establish that it neither had a duty defend nor indemnify in this circumstance.   The circuit court granted summary disposition in favor of the hotel, holding that the pollution exclusion was counteracted by a “Building Heating Amendment” that modified the pollution exclusion clause.  It then awarded nearly $800,000 in damages against Auto Owners.  The Court of Appeals majority concluded that, while the hotel had colorable arguments to support its interpretation of the policy language, the policy was ambiguous and required a fact-finder to ascertain its meaning.  Judge O’Connell dissented and would have affirmed the circuit court in full.

On December 19, 2008, the Michigan Supreme Court denied applications or vacated previous orders granting applications in five cases.  The Court also remanded two cases for re-sentencing, People v. Poole and People v. Kurtz; held that the remedy of rescission is not available in an implied warranty action under the UCC against an out-of-privity seller, David v. Forest River, Inc.; and reversed a Court of Appeals opinion and remanded for entry of an order granting summary disposition in a premises liability action where the plaintiff failed to give the defendant (a government entity) notice within 120 days of the incident, as MCL 691.1406 requires, Chambers v. Wayne County Airport Authority (the Court peremtorily adopted the opinion of the dissenting Court of Appeals judge, which can be found here).