TOV Injury and Safety Blog

Credit Union's defamation judgment against woman who published alleged theft from account is overturned.

Barbara J. Smith argued that the Michigan First Credit Union stole $40,000.00 from her account, and produced a bank document that appeared to support her claim.  The Credit Union argued that the document was a forgery and that the money was never deposited in Smith's account.  The trial court dismissed Smith's action, despite her evidentiary claim that she had deposited the money and it had been taken without her permission.  The Court of Appeals sent the case back to the lower court for a jury to decide, noting that Smith's testimony created a question of fact and credibility to be resolved by the jury.

Two former employees win battle with "defamed" home health care provider

Evergreen Home Health Care sued two former employees (a nurse and a nurse aid) in an effort to punish them for criticizing the care given by Evergreen.  It alleged breach of a non-compete agreement, defamation and interference in its legal contracts with residents and their families.  It rejected mediation-proposed settlements and nominal settlement offers before its claims were ultimately dismissed by the trial court. 

Evergreen never produced a non-compete involving one of the former employees and the court deemed the other agreement "unreasonable" and unenforcible.  It concluded the suit was filed in retaliation for the employees' complaints reaching the office of the Attorney General and were in the nature of a "spite" or vengeance action--particularly given the fact that the employees had no insurance coverage and the suit appeared intended primarily to "ruin them financially."  The Court found no "significant, material" evidentiary support for Evergreen's claim and awarded the employees  sanctions in the form of costs and fees. 

The Court of Appeals upheld the decision, and agreed with the lower court that the action was frivolous. The higher court also returned the case to the lower court to explain why it had not awarded the employees' attorney the full amount of fees that they documented.  Given the attorney's 30+ years of experience, the lower court's failure to sanction his $200.00 per hour fee appeared to the Court of Appeals to be arbitrary on its face.

Father cannot sue government investigators who respond to abuse reports

Patrick McCarthy was involved in an ugly divorce and custody battle when his ten- and eleven-year old daughters made complaints of inappropriate sexual contact to their daycare provider.  The family was forced to undergo a thorough investigation by human services and police agencies and McCarthy was charged with 2d degree Criminal Sexual Conduct.  Just prior to the commencement of a criminal trial against McCarthy, the girls recanted their  claims,  and both the criminal case against McCarthy and the child protective proceeding were dismissed.  McCarthy then sued the agencies and the involved individuals, arguing that investigators should have known that the complaints arose out of the custody battle and dismissed them without an investigation.  The Court of Appeals rejected McCarthy's reasoning and concluded that the state actors were immune from liability because the girls' claims created "probable cause" for an investigation that was not motivated by malice.

Defamation claim is dismissed because mayor enjoys immunity for calling employee a "liar."

The mayor of Potterville in Eaton County became embroiled in a dispute with the City Treasurer and Deputy Treasurer, who criticized the city manager's bookkeeping practices.  The mayor, Julia Nelson, eventually called the Deputy Treasurer, Donna Hannahs a "liar" in an exchange questioning whether Hannahs had disclosed to another city employee that a closed meeting had been held at the last council meeting.  Hannahs was later fired after no wrongdoing was attributed to the city manager, and Hannahs sued Nelson for defamation.  The Court concluded that whether or not Nelson had defamed Hannahs by calling her a liar, the comment, as part of an ongoing public investigation, was cloaked in governmental immunity.  She was "the highest elected official of the city and acting in her legislative capacity as a member of the City Council when she made the challenged remark."

Wild party man can't sue the witnesses who complain to police

Michael Stephen Irish apparently does not lead a sedentary lifestyle.  Others who live on Algonquin Lake in Barry County complained to police that they needed protection from his "reckless behavior," which included "drinking and driving, drinking and boating, and...indecent exposure."  The cops charged him with disturbing the peace and indecent exposure, however, after a trial he was convicted only of the former charge.  Never one to retire to the basement, Irish then sued the neighbors for defamation, malicious prosecution and also under various other theories.  Ultimately, his claim was dismissed.  The trial judge and the appellate judges all agreed that the complaints by citizens to criminal authorities were entitled to absolute immunity.

Insulting letter isn't grounds for lawsuit if the "gist...is substantially accurate"

Carl Nicolet was fired by Brinks, Inc., after the ATMs he serviced experienced a number of unexplained cash "shortages/overages."  Nicolet's termination letter cited these shortages, explained Brinks' decision and his supervisor's loss of confidence in Nicolet's ability or willingness to perform his duties.  Nicolet filed suit alleging several theories, including intentional infliction of emotional distress, tortious interference with a business relationship, and that he was defamed by implication of theft.  The Court of Appeals affirmed the trial court's dismissal of Nicolet's suit, confirming that "if the gist of the article or the sting of the charge is 'substantially accurate,' a defendant cannot be liable."

Photographers may not be liable for improper publication of model's photos

Phenomenon Productions, Inc., an assumed name of photographers Toriano Treadwell and Anthony Thomas, signed a contract with Diamalynn Arnold to publish her pictures on a website they own.  The site is ostensibly used to garner publicity and contracts for models.  Eventually, however, Arnold found her likeness on another (allegedly racier) website operated by the photographers, a s0-called "street magazine" dedicated to illegal, underground conduct, and an advertisement ostensibly used for prurient purposes.  She sued claiming an invasion of privacy that portrayed her in a "false light" and also arguing that the defendants had illegally appropriated her likeness for commercial value.  The Court of Appeals upheld dismissal of all of her claims except the latter appropriation claim.

Man wrongfully convicted of rape cannot sue the victim

On Wednesday, the Sixth Circuit Court of Appeals ruled that Jeffrey Moldowan cannot sue the woman who incorrectly identified her ex-boyfriend as having participated in her Macomb County rape in 1990.  Moldowan, who spent 12 years in prison before his exoneration in 2003, filed suit against Jane Doe and several law enforcement officials as well as the City of Warren.  The appellate court ruled that even if the victim (who suffered permanent and serious injuries in the attack) lied to officers as part of their investigation, she was immune from her ex-boyfriend's lawsuit:  it concluded that rape victims must know that they can participate fully in a police investigation without concern over future civil liability. 

Quadraplegiac gets a new van under no fault rules.

Neil Begin was rendered a quadraplegiac in a motor vehicle collision while he worked for Michigan Bell Telephone.  Bell is self-insured for no fault and workers compensation.  It argued that since Begin drove a van before his injuries, it should not be required to provide him with a replacement van after his wore out; it relied upon the Engler majority's decision in the Griffith v. State Farm case, where the Court ruled that the no fault insurer was not required to compensate a seriously-injured accident victim for necessities that non-injured persons also require.

Proper venue for "per se" defamation case is location of original publication

Marcus Yono and the Suttons Pointe Development, L.L.C., sued the Leelanau Enterprise, alleging that an article about their Suttons Bay "Bay View" project had damaged Yono's and the corporation's reputation and caused cancellation of condo purchase agreements signed by residents of Livingston County.  Relying on medical malpractice cases holding that venue is properly placed where the "actual injury" is suffered, they attempted to secure a trial of the claim in Livingston County.

Complications of being "overcome by the spirit of the Lord"

Judith Dadd answered an "altar call" made by the pastor of her Eaton County Mount Hope Church during a leadership rally.  She was "overcome by the spirit of the Lord", fainted, and fell backwards striking her head.  She had apparently been overcome in this manner "over 100 times" during her membership in the church.  The pastor invited members of the congregation to make these altar calls and assured them that if they were "slain in the spirit" and collapsed, ushers were trained to catch them. 

When the church informed Dadd that it would not pay more than $5,000.00 in medical expenses, she filed suit, claiming a head injury and arguing that the Church should have fulfilled the pastor's promise to protect "overcome" parishioners.  Her pastor responded by suggesting she was faking and might be trying to commit insurance fraud (apparently he felt the spirit of the Lord had left her just as abruptly as it had overcome her). 

School board member's slander claim survives motion to dismiss

Julia Harvey sued fellow  Oak Park School Board member Alicia Jones, after Jones embarked on a campaign of criticism relating to Harvey's alleged mis-use of her position.  Among other claims, Jones alleged Harvey had improperly secured special hiring privileges for her husband, obtained special education privileges for her daughter and engaged in other illegal, unethical or unprofessional conduct.  Jones made these claims in Board Meetings, on a Detroit Free Press website and in a recall petition.   She defended the claim by alleging immunity based upon her school board responsibilities and privileges, and sought summary disposition of Harvey's defamation suit.

Verdict against police officers overturned

In Reed v. Sitarski and Smith, a quarter-million dollar jury verdict based on malicious prosecution, against the two arresting officers, was dismissed by a majority of the 3 judge Court of Appeals panel that reviewed it.  The majority threw out the verdict because the jury was not adequately instructed on malicious prosecution, even though the Defendants' attorney had approved the instructions given. 

Malicious prosecution, gross negligence and false imprisonment claims dismissed

A City of Detroit Police officer, Stephen Pardo, was charged with planting a gun on a criminal suspect.  The investigating officers interviewed one witness who appeared to corroborate the claim and the Prosecuting Attorney authorized the issuance of a warrant.  Shortly after Pardo was arrested, however, additional witnesses were interviewed, the suspect's claims were brought into disrepute and the charges against Pardo were dropped. 

Pardo filed suit, alleging that a proper and thorough investigation would have obviated any basis for charging him criminally.  The Court dismissed Pardo's claims on immunity grounds, finding that since probable cause existed for his arrest, he could not take legal action against the charging and investigating authorities--even if their investigation was negligent or inadequate.  Given the existence of an apparently corroborating witness for the complainant's allegations, there was "reasonable basis" to charge Pardo, even though that basis was later undermined.

Defamation, invasion of privacy claims dismissed

Patrick Morrissey's supervisor criticized him for conducting private business by cell phone during the work day.  The supervisor then reviewed copies of Morrissey's phone records, all sent to him for approval, before terminating Morrissey's employment.  Morrissey filed suit, claiming an invasion of privacy and defamation.  His claims were dismissed by a unanimous Court of Appeals panel that announced several holdings of interest .

Appellate court addresses defamation claims involving public figures

In the Leelanau County case Smith v. Anonymous, et al., the appellate court was asked to overturn a jury verdict rendered on behalf of a political candidate against her opponents.  Smith had demonstrated that a mailing sent to voters by the defendants inaccurately portrayed her employment history, and the jury rendered a modest defamation money award and demanded an apology. 

Memo critical of law firm's billing rate is not defamatory

The Meisner & Associates law firm sued property manager Jeffrey Podolski, after his memo to a client, criticizing Meisner's billing rates, resulted in the firm's loss of the client condominium association.  Podolski had suggested that the firm's bills were "inflated", that the association's fees were "exorbitant", and that other "equally qualified and signficantly cheaper" firms were available.

Former student manager of football team can't sue MSU over Nike logo

The Court of Appeals recently denied 1960s-era student manager Gerald Sternberg the right to sue MSU over its decision to place the Nike logo on athletic apparel, including a replacement letter jacket Sternberg obtained in 1994.  The Court said Sternberg did not have "standing" to argue that the MSU-Nike agreement violated his right to freedom of religion or speech, or that it amounted to an intentional infliction of emotional distress.

Defamation claim against woman granted personal protective order is dismissed

Donald Rhoads brought suit against his former Baker College instructor and the college, alleging that she defamed him by the claims she made in a PPO request.  Rhoads also alleged that she inappropriately relied upon his college records in filling out her request.  Parenthetically, the PPO request was apparently granted by Genessee County Court authorities.  Rhoads' defamation suit was dismissed, as the Court of Appeals held that the instructor's PPO pleadings were immune from legal action.  The proper venue for responding to allegedly false pleadings is prove them false in the extant legal action and then seek sanctions from the Court, as provided under the Court Rules.  Court pleadings cannot be the basis for an independent claim of libel or defamation.

Defamation claims arising out of death of "white" deer are dismissed

John Ingersoll shot a mostly-white deer that people in the neighborhood considered something of a pet.  While it is illegal to shoot an albino deer, it is not illegal to shoot a "piebald" deer.  This technical distinction is lost on most people.  When word got out that Ingersoll had shot the neighborhood pet, several people wrote to the local paper criticizing him for shooting an "albino" deer.  Ingersoll responded with a lawsuit in Cheboygan County, claiming that he was defamed by the writers' mis-use of the term albino and erroneous claims that he had shot an illegal deer.

Supreme Court denies claim for posting defamatory pictures of employee

The Court of Appeals had unanimously ruled that an employee could sue management employees who allowed the posting, in a conspicuous location, of photographs that suggested the plaintiff had AIDS and had transmitted it to "hundreds" of young boys.  The Supreme Court ruled this week that since the Plaintiff acknowledged that the posting may have been intended as a joke, and since the employer did not have intent to injure him, he could not pursue a claim for defamation or invasion of privacy.