TOV Injury and Safety Blog

Court rejects claim loading handicap-access bus is not "operation of a motor vehicle"

Jeanette Collins' wheelchair fell while she swas being loaded on a Capital Area Transportation Authority bus.  She suffered multiple injuries and ultimately died.  The driver who was loading her on the bus claimed he did not know why the lift malfunctioned, dropping her.  Despite the fact that CATA had been warned previously that the subject lift was not operating properly and was not equipped with a safety belt, CATA defended Collins' family's wrongful death claim to the hilt. The trial court and Court of Appeals rejected CATA's defenses, including its argument that loading and unloading a bus doesn't constitute the "operation of a motor vehicle." 

School Board can limit duration of public speech at meeting

Several families who wanted to complain about the football coach's treatment of their sons secured a 5 minute slot on the monthly agenda for their lawyer to speak.  The following month, they attempted to secure another 5 minute slot, however, the Board refused them, concluding that the request was "repetitive."  The sued the Board, claiming that their sons had been denied a constitutional or civil right to participate in football.  Their case was dismissed; at which point the sued the Board claiming they had been denied the 1st and 14th Amendment rights of free speech at board meetings.  The Sixth Circuit wasted no time in dismissing their claim, as it concluded that the limitation on "repetitive" presentations during the public meeting was content neutral.  The case is Lowery, et al. v. Jefferson County Bd. of Educ., and it represents a small victory for all of us who have sat through interminable public meetings where a small group has repeatedly scolded the majority over a perceived slight or difference of opinion.

Police officers have no liability for death resulting from high-speed chase

The Sixth Circuit ruled this month that two Redford Township police officers would not be liable for wrongful death as a result of their failure to discontinue a high speed chase in the dark.  Clayton Jones was killed when his car was struck by a fleeing motorist who had turned off his headlights in attempting to elude the officers.  The officers believed that the occupants of the Ford Taurus they were chasing might be suspects in a local armed robbery.  After turning off their headlights, the suspects ran several traffic lights at high speed before striking Jones' vehicle and killing him.  He was on his way to work.

Sixth Circuit reverses lower court, dismisses claims against officers who shot 15 year-old in his closet

Dorothy Chappell sued on behalf of the Estate of Brandon McCloud, alleging that the Cleveland Police officers who fatally shot McCloud several times, should be responsible for his death.  The City argued that the officers did not act unreasonably, and therefore that they should be immune from damages for killing McCloud.  The lower court denied the City's motion for summary disposition, holding that there were questions of fact regarding the reasonableness of the officers' claims.  The Sixth Circuit disagreed, however, and dismissed the case, holding that no reasonable person could dispute that the officers acted reasonably, given their testimony that McCloud was wielding a knife when he "lunged" from his bedroom closet.

A "Gator" utility tractor used to transport tourists is a "motor vehicle" for immunity purposes

The City of Sterling Heights utilized a "Gator" utility tractor and trailer to haul tourists through town during a festival.  Helin Yousif's son, Richard, was badly hurt when he fell off the tractor-trailer.  His mother sued the City, which claimed immunity.  Yousif's attorneys argued that the City was responsible for Richard's injuries under the "motor vehicle" exception to governmental immunity.  The trial court agreed and its decision was upheld by the Court of Appeals.  While certain four-wheeled vehicles, such as a golf cart, are not "motor vehicles" for purposes of the immunity statute, this vehicle is more in the nature of a "car, truck or bus" and was being used for a similar purpose.  Therefore, the City's immunity from suit was waived by statute.

No fault PIP application is adequate notice of victim's injury and potential third-party claim

Vivian Atkins was injured when two Suburban Mobility Authority for Regional Transportation (aka "SMART" buses) collided in Wayne County.  She filed an Application for no fault PIP benefits promptly, and later filed a lawsuit alleging a more serious "third-party" injury meeting the "serious impairment" threshold.  Her claim was dismissed on the theory that she had provide only "notice of her injury" and not "notice of her claim" within 60 days.  The Court cited the controversial "Engler Gang of Four" Rowland v. Washtenaw County Road Commission decision, for its holding that the SMART defendant need not show that it was prejudiced by any defect in Atkins' Notice.

Supreme Court places slightly less onerous interpretation on building defect notice requirement

The Supreme Court's recent decision in Carla Ward v. Michigan State University helped to expose the raw political divisions on the Michigan Court.  Ward was severely injured when she was struck in the eye by a hockey puck.  She claimed the injury occurred because of the school's failure to replace a protective plexiglas on the perimeter of the rink, resulting in a safety defect.  She did not retain an attorney immediately, however, and when she did, the attorney's rushed notice was late, lacked details, mistakenly referred to an "automobile accident" on the pertinent date, and was sent to "MSU Munn Ice Arena," rather than an individual who could appropriately be served with pleadings.

Federal Tort Claim dismissed as government owes no duty to soldier's family

Claims against the federal government, or its agents and employees, are handled through a semi-administrative procedure called the Federal Tort Claims Act.  The injured or aggrieved victim must file an administrative claim, and if dissatisfied with the resolution may then file a Federal District Court non-jury action.  The law to be applied follows the civil law of the State that is the location of the injury.  Thus, when Janyce Brown filed a malpractice-type claim arising in Michigan, the Federal Court for the Eastern District of Michigan following Michigan's malpractice law in deciding it.  Brown had argued that she and her children were exposed to a parasitic disease called Leishmaniasis because her husband (the kids' father) had carried the disease home from the First Gulf War.  The disease is spread through bites of an infected sand flea and is common in the Middle East.

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."

Qualified immunity denied for arresting officer who allegedly mistreated handcuffed mental patient

In Amanda Morrison v. Green Township, et al. officer Scott Celender was called to a home where Ms. Morrison was allegedly armed with a knife and threatening suicide. She was tackled as she either walked or ran away from the officers [depending upon which account of the incident is believed] and handcuffed.  She alleged the cuffs were too tight and that the officer rubbed her face into the ground each time she attempted to speak.  The officer admitted that she was not uncooperative while handcuffed, and Morrison admitted that she screamed repeatedly while the officer knelt on her back.  Ultimately the court ruled that it was for jurors to decide whether the officer's conduct was a violation of 42 USC 1983 and the use of "excessive force."  The court noted that the marks on Morrison's wrists and other evidence supported her allegations, creating a question of fact for the jury.

No 1983 claim where propriety of underlying conviction is not challenged

Roderick Booth sued the Department of Corrections, alleging that he was wrongfully denied his constitutional rights, when he was punished by the DOC for misconduct in his jail cell.  He had never appealed the administrative finding of misconduct, and on that basis, his claim of a 42 USC 1983 violation of civil rights was dismissed. His argument that the adminstrative procedure was biased and a denial of due process could not form the basis for a separate legal action because he had not challenged the original decision on appeal.

Excessive force claim against Deputy is dismissed

Officers investigating a domestic disturbance arrested John Mahl, the ex-husband.  As they prepared to handcuff him, he told the officers that he suffered from a shoulder injury, had confirming physician documentation at his home, and asked that he be handcuffed with his wrists in front of his body.  Officers rejected his request and he later filed an injury suit alleging gross negligence and assault and battery.  The arresting officer's motion to dismiss was denied by the trial court, as the judge concluded the reasonableness of the officer's conduct was a question of fact to be decided by the jury.  Judges Chris Murray, Jane Markey and Stephen Borrello completed an anti-victim sweep of their cases for the month by overturning the Genesee County judge's decision and dismissing the claim.  They held that the gross negligence claim was incorporated into the battery claim, and that the latter claim should be dismissed because "there [was] no evidence that Defendant in bad faith disregarded plaintiff's request...There must be some discretion reposed in a sheriff or other officer...[A]nd this discretion cannot be passed upon by a court or jury unless it has been abused thorugh malice or wantonness or a reckless indifference..."

Of course, by the court's appellate standard in this case, the officer's account of his conduct simply can't be challenged at all, since the Court refused to consider the alleged victim's account of his arrest and treatment by the deputy.   The case is Mahl v. Maguire.

Excessive force, gross negligence claim vs. EMU and Ypsilanti police is dismissed

Rhonda Green sued several police officers after she was arrested in the Buffalo Wild Wings parking lot.  She had been involved in an altercation with her cousin over ownership of an article of clothing, and the altercation had drawn a crowd of 150 people.  Police acted appropriately in arresting Green, and the judges concluded that they also responded appropriately to Green resisting arrest.  Judge Beckering did point out that under the law, it was the duty of the individual deputies to plead and prove that they were entitled to governmental immunity for their actions.

Fewer residents, less traffic, more fatalities: rural roads are least safe

Because of their higher speeds, the rural roads that serve only 23 percent of the U.S. population are the site of 56 percent of motor vehicle deaths.  In addition to higher speeds, other causes for this phenomenon are increased average emergency response time (80 minutes in Montana, for example, compared with 15 minutes in Massachusetts), higher number of miles driven, a higher percentage of poorly-engineered roads, and the increased likelihood of illegal driver behavior resulting from absent law enforcement (e.g., drunken driving or failure to use seatbelts).  The findings are contained in a new report by the National Highway Traffic Safety Administration.

Congress explores giving active military the right to sue for malpractice

For almost sixty years, active duty members of the U.S. military were denied the right to seek compensation for medical malpractice, if the negligent treater was employed by the government.  This "immunity" for government doctors and their employer was established in a court decision rendered in the U.S. Supreme Court's 1950 Feres decision (and is, thus, called the Feres Doctrine.)

The U.S. House took a long step toward granting members of the military equal right to file a Form 95 compensation claim when the House Judiciary Committee passed a bill this week that would overturn the Feres Doctrine in cases of non-combat medical treatment. Treatment rendered in battlefield situations would remain exempt from meeting any standard of care, however, cases such as that of Marine Sgt. Carmelo Rodriguez, would now be compensable.  Rodriguez died from metastasized skin cancer, after the cancer was mis-diagnosed as a "boil" and mis-treated for years by a succession of military doctors.

Saad strikes again: changes to roof to eliminate leak are not "maintenance or repair"

Henry Saad is perhaps the insurance industry's most reliable Michigan judge.  He can be counted on to vote in favor of insurers and their interests in virtually every case.  That propensity was on display again this week, when he voted to deny a claim filed by Karen Renny against the Michigan Department of Transportation.

Renny  was "seriously injured" when she fell on ice while entering a rest area building in Roscommon County.  She claimed the building was defectively designed and maintained in a manner that caused an ice build-up at the entrance.  The building had originally incorporated a gutter-like roof design intended to channel water away from the entryway.  Eventually the roof developed a leak and MDOT repaired it by means of a new approach that involved use of a "4 or 5 inch diverter" intended to channel water away from the entrance.  The new approach didn't work and caused a build-up of ice at the entrance where Renny fell.

Her case was initially appealed by MDOT to the Supreme Court, where the Engler majority held that she would not have a viable claim for negligent design of the roof.  This interpretation of the State's duty to maintain public buildings in a safe manner is prone to reversal, given that Justice Weaver and other Justices who disagreed with the decision now appear to represent a majority of the Supreme Court.  In any event, Renny's case was sent back to the lower court to assess whether she had documented a "design" case or a "maintenance" case.  The Saad panel of the Court of Appeals interpreted this mix of facts to be a "design" claim and therefore held that Renny could not sue MDOT for failing to maintain the building in reasonable repair.

Just one more in a trend of decisions that have interpreted Michigan law in a restrictive, activist manner to deny the common sense obligations of reasonable public policy.  "The duty to maintain safe buildings doesn't require the State to maintain safe buildings if we can torture the English language enough to achieve a different outcome."

Sixth Circuit allows jail abuse case to go to jury

William Harris sued the City of Circleville and several individual Ohio State Troopers, after he suffered a spinal injury during incarceration.  Harris was initially stopped for speeding, and ultimately arrested when officers claimed to have found an outstanding misdemeanor warrant. He was handcuffed and the jail videotape was running when officers "took him down" for failing to respond to orders to kneel.

Court examines "gross negligence" in the context of road construction and warnings

While re-paving US-127 in Ingham County, MDOT employees were consulted by Rieth-Riley Construction employees about how to address a trench adjacent to the Holt Road exit.  The project engineers for MDOT told the contractors that nothing should be done to barricade, warn or pave over the trench, and that if Rieth-Riley took action on its own, the expenses would not be covered under the contract.  In May of 2005, Bruce Boone was operating his motorcyle on US-127 when he attempted to exit at Holt Road and found himself in the trench immediately adjacent to the fog line in an area where the shoulder, exit and paved lane were combined during construction.   Boone was paralyzed in the resulting accident.

Officer must demonstrate he acted in "good faith" to benefit from governmental immunity for false arrest

Catherine Simmons took $29,000.00 she obtained by refinancing her home to Greektown Casino to gamble.  She was suspected of money-laundering and Steven Ford, a State Police officer, detained her for several hours and held her cash.  She provided Ford with proof of the source of the cash and recovered her money two days later, and then sued Ford and Greektown for false arrest.  Ford argued that he was entitled to summary disposition based on immunity because there was probable cause to arrest Simmons.  The trial court found no probable cause for the arrest and Ford appealed.  The Court of Appeals sent the case back for a new hearing, pointing out that the question was not whether probable cause for arrest existed, but rather whether Ford had provided sufficient evidence that he believed in good faith that probable cause existed.

Case against City of Grand Rapids is dismissed, admittedly "elevating form over substance."

Judge Alton Davis wrote a concurring opinion to emphasize his dissatisfaction with the current state of the law, as applied in Maureen Ketchum v. City of Grand Rapids. Ketchum fell in a pothole while crossing the street in front of the Pearl Street entrance to the Amway Grand Plaza Hotel.  She suffered a serious ankle fracture, and would have the right to compensation from the City, if she could prove that the crosswalk was defective and the City had ample notice of the defect in time to fix it.  The case never got that far, however, because of a technicality that Davis found offensive.

Washington Supreme Court rules malpractice scheme similar to Michigan's is unconstitutional

This week, the Washington State Supreme Court unanimously agreed that a 2006 law governing medical malpractice suits was unconstitutional.  The judicial activists appointed by Governor Engler to the Michigan Supreme Court last decade had previously rejected similar challenges to several provisions of Michigan's tort "reform" statutes.  In short, the Washington court rejected the concept that an injury victim must prove his claim has merit prior to filing suit and enjoying the opportunity to investigate.  It noted that in many situations, reputable phyisicians will not sign a "certificate of merit" attesting to the victim's allegations, without hearing a complete explanation of what actually occurred. 

Ultimately, the Court concluded, it is a violation of constitutional separation of powers for the legislature to attempt to dictate court rules and procedures to the judiciary.  The so-called Engler Majority or "gang of four" overturned Michigan precedent and scoffed at this notion, even allowing the legislature to dictate which qualified experts would be allowed to testify.

Defective sidewalk case is dismissed

A gentleman named Salem Elbgal sued the City of Dearborn after falling and breaking his hip.  He claimed that his fall was caused by an accumulation of ice and snow at the area of a disruption in the City sidewalk.  The Court of Appeals upheld the dismissal of his claim.  The panel of judges noted that the disruption in the sidewalk was less than two inches in height, leading to the inference that it was reasonably safe; it held that Elbgal had not presented adequate evidence to rebut this inference.  The Court also held that the natural accumulation of ice and snow, alone, cannot warrant an unsafe road or sidewalk claim, and that Elbgal had not proved "a combination of ice and snow and [sidewalk] defect that, in tandem, proximately cause[d] the slip and fall."  It will surprise no experienced attorney that Judge Henry Saad was on this panel, voting against an injured person.

Transportation Authority loses argument that unloading bus passengers is "not operating a motor vehicle."

In Horvath v. Don Johnson, et al., the Court of Appeals rejected the defendant's claim that loading and unloading bus passengers does not constitute operating a bus "as a motor vehicle".  Under governmental immunity statutes, governmental entities remain responsible for their employees' negligence in operating motor vehicles.  The so-called "Engler Majority" or "Gang of Four" insurance-oriented Justices of the Supreme Court have interpreted this statute in a way that has denied standing to a number of injury victims.  For example, it has held that maintaining a bus, conducting a police chase, or plowing snow may not constitute "operation of a motor vehicle"--even if the actor is doing precisely that.  This trend was rejected in the Horvath case, however, when the Court of Appeals dismissed the bus authority's claim that unloading passengers was not "operation" of the vehicle.

Sixth Circuit requests Supreme Court's guidance on issue of "property interest" in loved one's brain

Karen Waeschle sued the Medical Examiner of Oakland County, Ljubisa Dragovic, after he incinerated Waeschle's mother's brain following an autopsy.  The 88 year old mother had fallen in a nursing home prior to her death and her body was sent to Dragovic for a post mortem.  The Sixth Circuit Court of Appeals held that the medical examiner was personally entitled to "qualified immunity" for incinerating the brain, since he did not deny Waeschle a well-established due process right, but also directed the lower court to seek input from the Michigan Supreme Court with regard to whether the County might be institutionally liable for denial of a protected Michigan right.

City can't have its cake and eat it, too, when repairing a sidewalk

Angela Patrick was seriously injured while riding her bike on the sidewalk adjacent to Eight Mile Road.  She sued the City of Warren alleging that it was negligent in performing repairs to the sidewalk and failing to warn of the hazard created during repairs. The City claimed that it owed no duty to erect signs, warnings or barricades, based on a decision by the so-called Engler Majority that the statutory duty to maintain reasonably safe roads does not include the duty to maintain reasonably safe traffic control signs, signals or devices.  The City also claimed that it was immune from injury claims during construction and repair of roads and sidewalks.

Injury case dismissed because Notice of Defect was not sufficiently detailed

In Mawri v. City of Dearborn, the Plaintiff filed suit after falling and fracturing his hip on an icy sidewalk.  His attorney had attempted to comply with the notice requirement in the highway immunity statute, however, the attorney's notice did not describe the "nature of the defect" in the sidewalk and mistakenly identified the location as 5034 Middlesex Road, rather than the contiguous 5026 Middlesex.  On the basis of these errors, Mawri's injury claim was dismissed, even though the City did not document any prejudice resulting from the "inadequate" notice, and even though the City police department filed a report that properly identified the location.

Malpractice case against jail medical staff may go to jury

Christopher Morden was housed in the Grand Traverse County jail after a misdemeanor conviction.  Over the course of several weeks, the jail doctor and nurse charted his rapid decline into paranoid schizophrenia and "polysubstance abuse."  The doctor and nurse continued and increased Morden's psychotropic medications, even after he demonstrated symptoms of grossly abnormal behavior and potential toxicity.  When he suffered a seizure and died in the jail, his mother filed suit alleging that the medical staff was both negligent and "deliberately indifferent" to her son's condition--thus violating his Constitutional rights.

Court interprets two-inch sidewalk rule

Marie Handley, a minor child, suffered serious injuries while riding her bicycle in the City of Ann Arbor.  She struck a tree after losing control when her bike hit a sidewalk slab that was raised 1 and 7/8ths inches in height and obscured by vegetation and debris.  The City's duty to maintain roads includes the duty to maintain sidewalks, and a two-inch discontinuity in a sidewalk creates a rebuttable inference that the sidewalk has not been maintained in reasonable repair. 

The City argued that since the slab had not shifted two inches in height, Handley had not met her burden of proving that the sidewalk was not reasonably maintained:  the trial court and court of appeals both disagreed, pointing out that while Handley's evidence did not create a rebuttable inference of inadequate maintenance solely from the height of the discontinuity, she still presented adequate evidence to take the claim to a jury.

Prosecutor can prohibit civil suit as condition of dropping charges

In Cady v. Arenac County, et al, the Sixth Circuit upheld a prosecutor's management of an assault charge.  When Cady was arrested for battery, the prosecutor agreed to dismiss the criminal action, provided Cady agreed to forego filing a civil claim against the other involved parties for six months.  While on the surface this appears to be a violation of Cady's civil and constitutional rights, the Court of Appeals upheld the prohibition as a reasonable one, given that the ban would last for only six months and appeared to be a reasonable effort to dampen emotions following the civil disturbance.

Further comment on Moldowan case: impact on Brady rights

One of the primary areas of disagreement amont the Sixth Circuit judges who decided the Moldowan case related to the justification for allowing some of Moldowan's claims to proceed against the City of Warren defendants who handled his prosecution.  Moldowan served 12 years in prison for his ex-wife's kidnapping and rape before being exonerated.  During his incarceration, key evidence admitted against him was recanted or discredited and other, exonerating evidence known to police but not disclosed to Moldowan's attorneys, was identified.  In defiance of a Court order, evidence from his original trial was destroyed by a City employee.

Cement falls from overpass injuring doctor--he MIGHT have valid claim against road authority

Dr. Anthony Adeleye was hurt when a chunk of concrete fell from the M-39 overpass and struck his windshield, as he was driving south on the Lodge.  He sued the Michigan Department of Transportation (MDOT) for failing to properly maintain the overpass bridge.  Luckily, his attorneys alleged that one cause of the deterioration of the bridge was the failure to maintain the roadway surface that rested on the bridge.  MDOT argued that it should have no responsibility for failing to properly inspect and maintain the bridge because its statutory duty to "maintain a reasonably safe roadway" applies only to the traveled surface and not to the structure supporting it.

Defendant severs blind man's finger; not responsible for injury

Raymond Martens sued Jeff Zurkan and the Rochester school system after Zurkan slammed a car door and severed his finger.  Martens claimed that Zurkan was in a hurry and wanted to unload equipment from his vehicle before buses arrived, and failed to take ordinary and reasonable precautions to protect Martens, who is legally blind.  The traumatic loss of his finger is a particular hardship for Martens, since it was used extensively in the braille system to allow Martens to read.

Inspector can't be "the" cause of damages resulting from negligent construction

In Smylie v. Dryden Construction, Inc, et al., the Court of Appeals dismissed a case against the township building inspector arising out of defective construction.  The plaintiffs argued that the home they purchased was built over "natural underground watercourse" and that the inspector's failure to consult drain commission maps was the primary cause of their problems.  The Court of Appeals held that even though there was evidence of "gross negligence" by the inspector, he was immune from responsibility because his inspection responsibilities--when compared with the actions of the builder--could not qualify as "the one most immediate, efficient, and direct cause preceding an injury."  The latter is the formulation of "the" proximate cause requirement devised by the Engler Majority when it held that a government actor should not be jointly responsible for damages caused by multiple actors.

Sometimes what we really need is a man of the cloth: police chase goes to jury

Mary Ann Hennig sued the City of Troy and one of its officers after she suffered significant injuries in a car accident.  She was traveling on I-75 when she was rear-ended at high speed by a police vehicle involved in a chase.  The City appealed after the trial court refused to dismiss the claim; the City argued that the claim should be dismissed as a matter of law, but the trial judge said there were too many disputed facts to render judgment for the City and its officer.

Kids get extra time (to adulthood) to sue government, but must serve formal notice of claim within 6 months

Katerina Super suffered very severe injuries at age 3 when her car was struck by a MDOT vehicle driven on the freeway by an MDOT employee at 90+ miles per hour.  The employee, one Melissa Kane, was late for a meeting, driving like an idiot, and lost control of her car.  MDOT investigated the incident and disciplined her.  Katerina's family did not immediately take any legal action, however.  When it did file a lawsuit to compensate Katerina a year later, MDOT argued that the case must be dismissed because the three-year old did not serve MDOT with a written notice of her injury.  The family argued that the tolling provision giving minors (and other incompetent persons) the right to sue until a year after they reach the age of majority (or their disability is removed) applied to allow Katerina's suit to go forward.  Incredibly, the Court of Appeals majority reversed the trial court and held that Katerina's case must be dismissed because she didn't serve a written notice.

State of Michigan settles prisoners' rape claims

According to the Detroit Free Press and the Associated Press, on July 15, the State agreed to pay $100 million dollars to settle a class action lawsuit brought by women prisoners incarcerated in Michigan prisons.  The action included more than 500 female inmates who claimed sexual assaults, abuse and harassment by male corrections department staff.   Two jury trials had resulted in verdicts for 20 inmates that had already exceeded 60 million dollars in damages and interest, and there were dozens of cases yet to be tried.  The first verdict for $15.5 million dollars for the first ten inmates had been upheld on appeal in January.  The settlement will be paid in annual installments through the year 2014.    The lawsuit was filed in 1996 and documented an atmosphere of inappropriate treatment of women by male custodians.

Supreme Court agrees gunshot victim can sue 911 operator

Yesterday, the Michigan Supreme Court upheld the Court of Appeals' decision that Lorraine Hayes can sue the 911 operator who berated her when she called to report that she had been shot.  A more complete account of Hayes' claim can be found in earlier posts on this site.  In short, while Hayes was lying on the floor bleeding, the operator questioned her veracity and whether she was a "mental patient".  Hayes ultimately received medical care after calling her son in Minnesota, who called Detroit Police on her behalf.

Hayes filed suit on several theories, all of which were dismissed with the exception of her claim that the operator, Kimberly Langford, was guilty of the intentional infliction of emotional distress.  The Supreme Court majority allowed this claim to stand, although the 3 remaining members of the "Engler Majority" would have dismissed Hayes' claim entirely.  It remains questionable whether Hayes can prove to a jury's satisfaction that Langford's misconduct meets the operative definition of "intentional," and not merely stupid, insensitive and negligent.

Jail authorities responsible for quid pro quo sexual assault by supervisory personnel

The Court of Appeals held this week that even outside the employment sector, employers will be responsible for sexual misbehavior by employees in a supervisory role.  Michigan Courts have previously held that employers are not responsible for sexually assaultive behavior by an employee, if the actions are ultra vires, or outside the employee's job responsibility (for example assaults on a patient by respiratory therapist or other ministerial employee).  On the other hand, if the assaultive behavior occurs in a managerial employment context, the mutual employer has been held vicariously responsible. 

in Hamed v. Wayne County, the  Court of Appeals ruled that vicarious responsibility will also exist outside the employment context if the sexually manipulative behavior is facilitated by the assaulting individual's supervisory relationship. 

Misidentified victim of search and arrest can sue one officer

Curtis Newell sued two deputies and Oakland County after he was arrested as a suspected drug dealer.  Newell's home was raided, he was arrested by masked officers with a gun to his head, and after suffering chest pains, he was handcuffed to a hospital bed, before police concluded that the arrest and search were in error.  Newell filed suit alleging assault, battery, false imprisonment and gross negligence.  The Court concluded that his claims should be dismissed with the exception of his claim that Deputy Chad Lee Allen should be held accountable for false and deliberately misleading statements that led to Newell's mis-identification.

Pothole claims against City and driver are defeated after passenger suffers neck injury

Laura Woods required surgery on her neck after Margaret Naylor drove into a pothole containing wet cement.  Woods was a passenger in Naylor's car as they approached a work scene.  The City had posted no barriers or warnings, and both women claimed to have seen the pothole only at the last moment.  The claim against the City was dismissed because proper notice wasn't given--even though City workers were at the scene and observed the incident--and the jury then concluded that the driver was not at fault.

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. 

State Trooper's fail to yield right-of-way is not "gross negligence"

In Sulskis v. Van Effen, the Court of Appeals dismissed the injured motorist's negligence claim against a State Trooper who made a left turn directly in front of him.  The Trooper admitted fault, acknowledging that he never saw the oncoming Plaintiff despite adequate visibility, but claimed governmental immunity for his error.  The trial court had held that whether he was guilty of gross negligence, thereby negating immunity, was a question of fact.  The appellate court ruled that Sulskis had only presented evidence of ordinary negligence and therefore his case against the trooper should be dismissed.

Court rejects MDOT claim that it is not responsible for concrete falling off bridge

Robert Moser was hurt when a chunk of concrete fell off a highway overpass and through his windshield.  The overpass was owned by the City of Detroit, but maintained under a contract by the Michigan Department of Transportation.  Needless to say, MDOT was sued for failing to "maintian the highway in reasonable repair so that it is reasonably safe for public travel," under the statutory exception to governmental immunity.  MDOT argued that the bridge structure, and specifically the concrete facia where the fracture occurred, were not a part of the roadway, and therefore it was immune from suit.

Dump truck parked in dangerous location was not "operated"

In another example of the semantic fictions to which some courts have resorted to achieve "tort reform", the Court of Appeals recently ruled that an allegedly dangerously located Department of Transportation  [MDOT] dump truck had not been "operated" as a motor vehicle.  In Brumfield v. LaBair and MDOT, the plaintiff was precluded from offering testimony that the MDOT truck he rear-ended in the left lane of the Lodge Freeway moved slowly into his lane, because he had failed to timely answer Requests for Admission.  As a result, he was limited to arguing that even if the truck was stationary, as alleged by the defendant driver, its location rendered it unsafe for approaching motorists.  The Court ruled that if it wasn't being operated at the time of the accident, the Department was immune from a negligence claim because parking the truck in a stupid location does not constitute the "negligent operation of a motor vehicle." 

Court affirms power to decide whether indigent criminal defendants are denied effective counsel

In Duncan v. State of Michigan, the Court of Appeals has upheld three Circuit Judges who ruled that indigent defendants in Genessee, Berrien and Muskegon Counties were entitled to a hearing on their claim that they were systematically denied their constitutional rights.  The lower courts had found that the County systems created to afford the State and federal Constitutional right to counsel to these criminal defendants were not sufficient, due to inadequate funding by the State. 

Case against State Trooper dismissed

Andrew Strane chose to challenge a State Trooper over his "power trip" and ultimately lost.  Strane was bicycling in  Emmet County with another man when he stopped  to adjust his shorts.  The trooper, Jeffrey Ruthig, mistakenly thought he was urinating in public and told him to pull over.  When Strane chose to continue  several hundred yards to stop in a convenience store parking lot, Ruthig admittedly lost his temper and became confrontational.  Strane then made the mistake of insulting Ruthig about his breath and was ultimately issued a citation for failing to obey an officer.  Strane called the Post to complain, and a few days later when he learned that his complaint would not be heard, he called to complain about that:  in consequence, that night he was arrested and charged with a felony.

Liability for sidewalks is limited to those contiguous to a highway

In Evans v. City of Livonia, the Court of Appeals ruled that the City was immune from liability for defects in a sidewalk that was adjacent to a public parking lot.   During construction, a young bicyclist had been injured by a cut-off pipe in a replacement gravel patch.  The Court held that the statutory liability exposure for defective or hazardous sidewalks includes only those walks that are "along the side of a road." 

Because the sidewalk in this case was a pedestrian connection between two streets, the Court applied prior decisions interpreting "sidewalk" to exclude this walk from the statutory definition.  The reached this conclusion even though the statutory term "highway" is defined as "a public highway, road or street that is open for public travel and includes bridges, sidewalks, trailways, crosswalks, and culverts on the highway."

Injury action against school principal is dismissed, based on immunity

A Detroit parent sued her daughters' principal after both daughters were assaulted in separate incidents at school.  The parent claimed that after one of her twins was involved in an altercation, the second twin should have been sent home, also, because she was likely to be attacked by friends of the girl involved in the first altercation with the sibling.  The court pointed out that the principal is immune from ordinary negligence and responsible only for injuries resulting from "gross negligence."  The court concluded that the parent had not established any factual basis for arguing that the principal had been guilty of a "reckless disregard for a known risk of injuries."  It ruled that "reasonable jurors" could not "honestly" reach the conclusion that the principal had shown "a substantial lack of concern for whether an injury [would] result." 

Claim of excessive force will go to trial

The Sixth Circuit upheld a trial judge's decision that two Clare-area policemen should go to trial on claims that they used excessive force during an arrest.  The case is Grawey v. Drury, Davis and Saad.  The alleged victim, a Detroiter, was in Clare to attend a family graduation celebration.