TOV Injury and Safety Blog

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. 

"Taking" case against Township after flooding is dismissed

The Court of Appeals recently reversed the Ottawa County trial court and dismissed all counts of a lawsuit against Robinson Township arising out of several homeowners' claim that Township officials unfairly applied flood rules to "take" their property.  After two incidents of flooding caused by the nearby Grand River, Township officials concluded that the cost of repairing the Plaintiffs' flood-damaged homes would exceed fifty percent of the homes' value.  As a result, certain statutory and regulatory requirements became applicable, resulting in enhanced building code and occupancy expenses.  The plaintiffs alleged the resulting repairs and improvements were unnecessary and unreasonable, and that imposing these requirements constituted gross negligence or fraud or one of several alternative forms of wrong-doing. 

Leaving truck running, unattended and unlocked, isn't "operation of a motor vehicle?"

 The Hinz v. Almy case has a long and tortured history.  An MSU electrician left his college-owned pickup outside a building, unlocked and running, while he went inside to visit with co-workers.   Besides not being very smart, that decision violated MSU's rules and an Ordinance of the City of East Lansing.  Almy's decision was even dumber when one considers that MSU's campus is  one of the places in the state where a drunken prank is most likely to occur.   And it did.  A drunken undergrad jumped in the truck and took off down the street, crossed the centerline a mile or two away, and killed the Plaintiff's Decedent in a head-on collision.  The family sued Almy and MSU, in addition to the drunken student--probably in part because the drunk had little or no insurance, and in part on principle.  MSU has been attempting to dismiss the case ever since and finally succeeded this week.

Car buff cat-fight won't be dismissed on technicality

Thomas Hunt paid extra to drive his classic car around the oval at Michigan International Speedway.  Unfortunately, the day before, Hunt's wife had apparently disrespected one Sergeant Greg Hunt of Cambridge Township's Police force in front of the Sergeant's wife. (The record doesn't reflect whether the women are in-laws, but the surnames create an ugly inference.)   In any event, Sergeant Hunt pulled car-buff Hunt's classic car off the track and arrested and handcuffed car-buff Hunt, alleging excessive speed, reckless driving and failure to obey directions. 

Jury awards modest punitive damages against prison warden

In Thompson v. Caruso, the court system functioned precisely as it was designed, in one of those many cases that do not garner publicity or notoriety.  Two prisoners had sued the Director of the Michigan Department of Corrections to object to her policy of opening their legal mail outside the prisoners' presence.  A 2003 Sixth Circuit Court decision, Sallier v. Brooks,  had outlawed this practice, requiring that the prisoner be present when legal mail is opened, if the prisoner requests.

Prisoner cannot collect damages for violation of "Religious Land Use and Institutionalized Persons Act"

In Cardinal v. Metrish, it was essentially admitted that the Michigan Department of Corrections violated the RLUIPA by denying Cardinal proper meals.  He filed suit against the warden in charge.  The Court rejected his claim, finding that the statute mandating the proper treatment of religion in  state institutions did not adequately express the state's willingness to waive sovereign immunity rights against a money judgment.  Cardinal, and people like him whose religious beliefs were not legally observed, could object to the violation but could not enforce the RLUIPA by collecting a money judgment.

No automatic immunity for "arrest by vehicular crush"

Brian Bradford, by the Court's opinion, is a sort of hapless individual who lived hand-to-mouth and struggled with addictions.  City of Ferndale police attempted to arrest him after a LIEN check identified the vehicle he was driving as stolen.  Bradford got out of the truck and ran, but was apprehended when two officers trapped him between the bumpers of their respective police vehicles.  
Bradford suffered permanent, severe injuries to his leg as a result of an open femur fracture.   He sued the officers driving the two vehicles for "gross negligence" and they sought summary disposition of his claim. 

Evaluating the "discovery" rule under the Federal Tort Claims Act

Claims against the federal government cannot be brought in state court and carry no entitlement to a jury trial.  While the U.S. Government has waived its basic "sovereign immunity" from suit, it requires that the injury victim comply with the statutory requirements of the Federal Tort Claims Act.  That act requires that suit be brought within two years (See 28 USC Section 2401(b), in the case of death.  Susan Hertz lost her husband as a result of an air traffic control error.  The probable cause of the accident was disclosed to her within a month of the death by the National Transportation and Safety Board.  She hired an attorney, however, he did not sue the FAA within the proscribed two years. 

Court requires strict compliance with Notice of Injury against City

Catherine Curry was badly hurt in a fall at the Herman Keifer Hospital Building.  Her employer completed an Incident Investigation Report, and Curry claimed she delivered that to the City.  Six days after the fall, apparently in response to her report, the City prepared its own Security Incident Report.  Nevertheless, the Court dismissed Curry's injury claim because in the Court's opinion, her report did not comply with the statutory requirement that it identify "the exact location...of the defect" that caused her fall.  Her [defective] Report, prepared by her employer, merely identified the "North Stairwell--Bldg No. one", which the Court deemed inadequate.

Alleged arrest abuse will go to the jury

Steven Szwabowski created a large Haloween display that attracted a crowd.  When the crowd allegedly became unruly, Dearborn Heights' police showed up and told him to turn the display off.  From there, the police account of the incident diverges dramatically from Szwabowski's and onlookers.  They claim he was arranging for someone to hand out candy when he was struck and Tasered by police.  Police claim he became unruly and resisted arrest.  In any event, the Court of Appeals held that the lower court properly rejected the officers' insurer's motion for summary disposition.  The case turns entirely upon which set of witnesses the jury believes; a classic "he said, she said".  If the officers' account is accepted, they were within their rights in Tasering Szwabowski; if the jury doesn't believe the officers, they committed an assault and battery on him.  The case should go to a jury.

College has immunity for unsafe floor socket and plugs

By statute, governmental immunity does not apply to hold governmental entities harmless from the negligent operation of a motor vehicle or for defects in a public building.  In practice, the Engler Majority eliminated much of this governmental responsiblity for safe vehicle operation and building defects by "reinterpreting" the statutory language.  In Collins v. Oakland County Community College, a public entity was once again immunized from a dangerous condition, when the Court of Appeals held that the school wasn't responsible for serious injuries suffered by a dental student.  Acknowledging that a floor socket and the electrical plugs emanating from it may well be unsafe, as claimed by the injured student's architectural expert, the Court nevertheless concluded that the socket was an example of unsafe "design" rather than maintenance [even though it wasn't in the original design of the building], and therefore the College was immune from injuries it caused.

Ambulance transfer of entubated patient is an emergency resulting in immunity

Alvin Provot needed to be transferred to a different facility because the ICU where he was placed on a ventilator did not have services for chronically ventilated patients.  In preparing for the transfer, he was paralyzed and placed on mobile ventilating equipment.  The ambulance attendants claimed that this equipment was functioning properly initially, however, 25 minutes into the transfer, Mr. Provot "coded" and the EMTs concluded he was not being properly ventilated.  They did not attempt to resuscitate him manually.  Instead he was transported to the nearest Emergency Room, where he was pronounced dead.

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. 

Injured grandmother cannot sue school for negligent design of gym

A grandmother who fell from gymnasium risers attempted to sue the school for negligent design of the gym where she watched her daughter perform.  While governmental units normally enjoy "immunity" from their errors or negligence, by statute they remain liable for negligent operation of motor vehicles and for defects in public buildings. 

Closing a bus door is "operation of a motor vehicle"

Only in the post-Engler, post-Cliff Taylor Michigan courts would an insurer have the audacity to argue that negligently closing the bus door on a passenger does not constitute "operation of a motor vehicle".  In Michigan, governmental units enjoy immunity from their own liability for many negligent actions.  The Legislature has spelled out exceptions which include negligent maintenance of a public building and negligent operation of a motor vehicle. 

Insurer argues all information must be in notice, second timely notice inadequate

Last week the Court of Appeals rejected the Michigan Municipal Management Authority's attempt to throw out a defective roadway case.  The injured woman, Wilhelmena Burise, had filed her Notice of Injury, but did not list all known witnesses.  Within the short, 120 day deadline, however, she recognized her mistake and filed an amended notice listing her companion who observed the incident.  The insurer attempted to take advantage of this technicality to dismiss her claim against the City of Pontiac, with prejudice, and without any recourse.  The insurer argued Wilhelmina had to include all of her information within a single mailing and was limited to "one attempt" at notice.   The Court of Appeals rejected the insurer's argument. 

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.

So-called "two-inch rule" applied to sidewalk adjoining highway

In Robinson v. City of Lansing,  the plaintiff sued after falling on a sidewalk adjacent to a state trunkline.  The City attempted to raise the presumption that the sidewalk was "reasonably safe for public travel" based on statutory language holding that a defect of less than two inches is not unsafe.  While the trial court held that this presumption is applicable only to sidewalks adjacent to county highways, in accordance with MCL 691.1402a(2), the appellate court disagreed.  The higher court ruled that while the previous section of the latter statute expressly applies only to county highways, the remainder of the statute could be applied to all public roadways.  Therefore a defect of less than two inches in height was presumed to be safe, although an injury victim could rebut this presumption with adequate proof.

County sought dismissal of brain-damaged child's case under Roe v. Wade

Chelsie Barker is a 10-year old who walks with a walker, cannot write her name and requires 24-hour care.  Her guardian claims that she suffered brain damage when her mother, a Wayne County jail inmate, was deprived of adequate care during her delivery.  The Jail and guards sought dismissal of Chelsie's claims, arguing that under Roe v. Wade, she was not a "person" entitled to constitutional protection.

City of Ferndale may be responsible for "tortious interference" for denying antenna request

In Laurence Wolf Capital Management Trust v. City of Ferndale, et al., the City's original summary disposition was reversed by the Court of Appeals, which also cited the City's studied efforts to distort the facts on appeal.  The Plaintiff claimed that the City's arbitrary and capricious zoning decisions regarding Plaintiffs' cell tower applications arguably constituted an unlawful intereference with Plaintiff's advantageous business relationship with AT&T and sent that claim back to the lower court for trial.

Detroit settles lockup death claim for 2 million dollars

On February 25, it was reported by the Free Press that the City had agreed to pay two million dollars to the family of a man who died in custody after he was denied proper medical attention.  James Stone, arrested as a parole violator, complained of chest pain for hours before succumbing to a heart attack.  The case settled on the eve of jury selection and while the judge was considering a default against the City as a result of its "halting, delayed, piecemeal...egregious...misconduct" in responding to discovery requests.

Bush exit rules make it harder to sue negligent nursing homes

Last fall, on its way out the door, the Bush administration quietly enacted a new rule that effectively prohibits state inspectors and Medicare and Medicaid contractors from providing evidence in private cases.  The rules keeping evidence out of court affect about 16,000 nursing homes and more than 3 million residents.  After we have paid to regulate and inspect these homes for the safety of residents, we are not allowed access to the information gained, in order to hold violators responsible for bad practices.  The rules are denying access to key information both on how injuries and improper evictions have occurred, and also with regard to the state of the industry's health and safety practices generally.

Governmental unit that rents property for school at above-market rates is still immune fron negligence

Under established Michigan law, governmental units are not immune from negligence in conducting their "proprietary" activities.  If an activity is conducted for profit, the government doesn't enjoy the normal defenses for its own negligence.  In a recent case, employees of the Caro Learning Center, which leases space from the Caro Center, sued the landlord for negligence in allowing an incarcerated man (who wanted to "kill people") to gain access to their school through lax supervision of him and of the master keys.  The man attempted to kill the plaintiffs. 

Probationer improperly jailed is allowed to sue

Edward Drogosch was having a beer in front of the TV when the MDOC and Wayne County Sheriff knocked on his door as part of "Operation SPOTCHECK", looking for probationers violating their terms.  Officers found nothing amiss--even checking for porn on his computer--but he did direct them to an unloaded, registered, trigger-locked handgun in his drawer.  The officers violated him, even though neither his drinking nor his handgun violated the terms of his probation (his full sentence was no jail time and one year probation); they refused to read the terms of the documents he provided them.  Then he was incarcerated as a parole violator, because the proper form couldn't be located, and did not see a judge for 13 days (because parole violators, unlike probation violators, aren't entitled to a prompt hearing).

Sixth Circuit endorses summary disposition where "qualified immunity" is not properly disputed

In Everson v. Leis, et al., the Sixth Circuit held that the trial court should not have extended the discovery period for Everson's replacement counsel when the Defendant Sheriff's Deputies asked for summary disposition.  Everson, an epileptic, alleged that he was mis-treated by the defendants after suffering a seizure in the local mall. 

Quadriplegiac entitled to jury trial on claim against prison nurse

A prisoner who is injured by the actions of a Department of Corrections employee has two potential outlets for legal recourse.  He or she can sue under state law and recover if he proves "gross negligence" that is "the" cause of his injuries.  He or she can also sue under federal law, alleging a constitutional violation.  If he has received inadequate medical care, the federal violation can result in liability of the individual employee, if the employee is guilty of "deliberate indifference" to the prisoner's legitimate medical needs and if the violation is clearly established such that the employee does not enjoy qualified immunity.  The Sixth Circuit recently upheld a trial court's determination that Luis Dominguez had established a right to jury trial on both of these theories in Dominguez v. Correctional Medical Services, et al., and Julie Fletcher.

City is immune from claim of negligently hiring contractor

In Milledge v. A-1 Builders and City of Detroit, the Court of Appeals held that the City was immune from claims that it negligently hired a builder who allegedly did shoddy work federally-funded low-income home repair program.  Cleaning up after the original $43,000.00 in work required an additional expense of $12,000.00,  and the City demanded that Milledge execute a lien on the property to cover this additional expense.  She was already obligated to repay the original expense lien within two years and balked at bearing the "clean up" expense for a contractor selected by the City.  The Court held that even if the City was negligent in selecting, supervising or prematurely paying the contractor, it was immune from its mistakes, which were neither proprietary nor ultra vires.

Road case against City of Flint is considered

In Lafner v. City of Flint, the Court of Appeals declined to distinguish road shoulder cases involving a municipality from the Engler Supreme Court majority's prior ruling involving state and county roads.  In the latter context, the Engler majority had held that the state and county owe no duty to reasonably maintain a road shoulder, based on the argument that a road shoulder "is not designed for vehicular travel, even if the shoulder is sometimes used for such purpose." The Taylor-led majority of the Court had held that even though the road authorities' duty to maintain roads in a condition that is "safe and convenient",  didn't extend to flaws in the shoulder of the road.  As a result, the governmental entities are held to be immune from mistakes or negligence in maintaining road shoulders (and drop-offs). 

Fired employee can't sue community mental health employer

Nancy Bricker was considered partially responsible for a scalding hot shower that caused the death of a group home patient for the developmentally disabled.  Her employer, AuSable Valley CMH, fired her and a supervisor.  She filed suit against the employer and several individuals, claiming wrongful discharge and various theories of breach of public policy or intentional wrongdoing. 

Woman injured at MSU hockey game cannot sue

In Ward v. MSU, the Appellate Court determined that the plaintiff's case must be dismissed, without reaching the merits of her claim.  She was struck by a puck at a college hockey game, and claimed that her injury resulted from a building defect:  the absence of a plexiglass shield protecting one section of spectators.  While governmental entities within Michigan are immune from ordinary negligence, an exception makes them liable for some injuries caused by hazardous conditions maintained in public sections of buildings.

Operation of City golf course enjoys immunity from negligence

The City of Pontiac recently persuaded the Appeals Court to uphold the dismissal of a negligent design case brought against its municipal golf course by a man who was injured by another golfer's struck ball.  The injured man's attorneys claimed that the golf course should not enjoy immunity because the operation of the course was a proprietary function and not a governmental function.

The parties interpreted the City's financial data differently, with the golfer arguing it showed a profit, and the City arguing that when accounting for the bonds associated with the golf/residential development, the course actually operates at a loss and drains general revenue dollars.  The Court held that the City was entitled to a judgment of immunity as a matter of law, regardless of the actual profitability of the course, because its operation did not demonstrate a pecuniary motive and its revenues were essentially "self-sustaining".  The case is Transou v. City of Pontiac.

Supreme Court applies Title IX to students suffering sexual harassment

In a 9-0 decision the U.S. Supreme Court held on Wednesday that students who are sexually harassed or discriminated against are protected by the federal civil rights statutes.  A girl who was harassed on a school bus filed suit, through her parents, under Title IX and 42 US 1983,  claiming that the School District did not take adequate steps to protect the girl from an older student's inappropriate behavior.  The lower court held that Title IX actually barred a civil rights claim brought under the latter statute, and the jury ruled against the family on the Title IX claim. 

The unanimous Supreme Court held that the family should have been allowed to proceed under both statutes, as it was not the intent of Congress that Title IX bar other civil rights actions.

Company fastening tether is allowed to demand release from its own negligence

Joseph Jaye was injured when the House Arrest Services employee tightened the Court-ordered tether on his ankle too tightly.  Joe was required to wear the tether as part of his punishment for an alcohol-related driving offense.  He claimed the tether caused a severe laceration on his ankle before it was removed.  The Court of Appeals held that he could not sue the company because it had conditioned its contract on his signature releasing the company from liability for and "consequential...damages...arising out of...the transactions contemplated hereunder".  The three judges held that this language was adequate to represent a "meeting of the minds" by the parties to the contract that House Arrest Services would not be responsible for the negligence of its employees.

City's insurer's objections to notice requirements are rejected

In almost all situations where an injury victim seeks to make a claim against a governmental entity in Michigan, the victim is required by law to give formal notice to the at-fault governmental entity.  In the case of claims arising out of highways and sidewalks that are allegedly not maintained in a condition that is "reasonably safe for public travel", the injury victim must give notice to the entity having jurisdiction over maintenance of the sidewalk or highway within 120 days.  The Engler majority recently reversed the long-standing Supreme Court holding that the victim would be relieved of this requirement if the governmental entity suffered no prejudice from the failure to give notice.  Among many other anti-victim decisions handed down by the 4-3 majority of Engler appointees, the Court held that the Notice requirement would be strictly upheld, regardless of whether the governmental entity had actual notice of the defect and injury.

Court concludes ambulance driver was not negligent as a matter of law

In a surprising decision, the Michigan Court of Appeals held that a Boyne City ambulance driver was not negligent, as a matter of law, despite testimony that the operator was traveling 65 miles per hour in the dark on slippery, snow-covered roads.  The panel concluded that the family of a passenger victim of a fatal collision with the ambulance did not create a question of fact with regard to the ambulance driver's negligence, even though the family presented an ambulance passenger's claim of the above speed, along with a contemporaneous statement by a passenger EMT, suggesting that the driver "take it easy". 

Immunity for "intentional" acts by government employee

The Supreme Court of Michigan handed down a number of rulings on Justice Taylor's last day on the bench.  Without exception, the rulings favored insurers and invalidated claims made by injury victims or common citizens, and were signed by the four-person "Engler majority" while it still had the votes to control the outcome of proceedings.  In Odom v. Wayne County, the majority overturned a decision by the trial court and Court of Appeals in a case brought by a young woman who was falsely accused of prostitution.  The case was returned to the lower court for re-evaluation under the majority's guidelines.

Taylor's parting shots at victims

In his final month on the bench, Cliff Taylor used his 4-3 majority status to throw out several claims brought by injury victims or consumers.  Among these last-minute decisions was the peremptory reversal of a case decided previously in the Court of Appeals, Chambers v. Wayne County Airport Authority.  In Chambers, the insurer/Defendant had claimed that Chambers  could not sue because he only gave oral notice of his injury to the Defendant and did not follow-up with a formal written notice served on the Defendant in accordance with the Court Rules. 

The Court of Appeals had noted that the language of the pertinent statute did not require a written notice or that it be served by a process server.  In a one-paragraph opinion, the Engler majority reversed the Court of Appeals and remanded Chambers' injury claim for "entry of an order of judgment for the defendant".  It provided no analysis or explanation for its holding and apparently did not consider it necessary to explain why four "textualists" would divert from the language of the statute to impose additional requirements on a litigant.

911 Operator who belittles caller is not responsible for "negligent infliction of mental anguish"

Lorraine Hayes was shot several times by a former boyfriend.  She called 911 on her cell phone, but was berated by the 911 operator who repeatedly insisted that she must be a mental patient.  Eventually Hayes recruited her son in Minnesota to send police and an ambulance to her aid.  When Hayes sued the operator for negligent or intentional infliction of emotional distress and anguish, her claims were dismissed unless she is able to prove that the 911 operator acted with intent to injure her.

Jail screener is not "providing medical care or treatment"

Under Michigan law, jail and prison employees owe minimal levels of care to prisoners, normally.  The employees of government are responsible for injuries they cause only if they are found to have acted with "gross negligence"; this standard is relaxed to the customary threshold of ordinary negligence or "due care" if the actor is providing medical care or treatment in a state institution.  Under federal law, the standard of culpability for an employee supervising inmates and prisoners is "deliberate indifference" to the inmate's medical needs. 

Wrongful death "cap" on non-economics does not limit household service expenses

More than a decade ago, the Michigan Legislature adopted limits  (or so-called "caps") on the amount of damages an injury victim could recover for non-economic damages in some cases.  Medical malpractice insurance companies have aggressively used these "caps" to limit the recovery of malpractice victims:  among other successes, they have persuaded the Supreme Court to apply the "cap" to wrongful death malpractice claims.  The Defendants in Thorn v. Mercy Memorial Hospital attempted to go one step further:  they persuaded the local court to rule that the household services previously provided by the malpractice victim could not be collected by her family.  They also argued that household services were collectible, the household service expenses should be considered a "non-economic" damage and reduce or eliminate the other damages recoverable for pain and suffering or loss of society and companionship under the cap.

Interpreting the two-inch sidewalk rule

Diane Gadigan suffered serious injury when she fell on a City of Taylor sidewalk.   The sidewalk where she fell was joint of two "teeter-totter" slabs where neither side demonstrated a full 2" high defect or discontinuity.  The City argued it could not be held responsible for her injury because the statute addressing sidewalk defects as an exception to governmental immunity immunized the City from defects of less than two inches.  The Appellate Court had to explain to the City how to interpret statutory language.

When you run from the cops, don't expect gentle treatment

The Sixth Circuit recently upheld the dismissal of a 1983 "excessive force" complaint filed by Kevin Dunn against two City of Southfield police officers.  According to the video and audio records of the incident and arrest, Dum continued driving when the officers attempted a traffic stop for a "mere traffic-related offense".  Dunn apparently accelerated to about 50 miles an hour and ran several stop lights before pulling over (after about two minutes).  When the first officer told him to exit his vehicle,  Dunn fumbled with his seatbelt for too long and was "assisted" in exiting the seatbelt and vehicle by the arresting officers, who "launched" him from the car just after he stated "I'm coming, I'm coming".  In the process of being "launched", Dunn suffered a fractured femur.  The Court held that the officers' actions were not unreasonable, as a matter of law, and that Dunn had no right to a jury trial on the issue of excessive force.