TOV Injury and Safety Blog

The Supreme Court adds insult to injury in a tragic case involving two young girls.

  In Estate of Buckner v. City of Lansing the "gang of four" on the Supreme Court recently reversed a decision allowing the family of two young girls to sue the City for plowing snow over the sidewalk and forcing the girls out into the road on their walk home.  One girl was killed and the other suffered a catastrophic head injury when they were struck by a motorist.  The majority--composed of four activist Republicans-- held that the City's duty to maintain sidewalks and reasonably safe roads does not include a duty to avoid blocking the sidewalk with snow.

A case addressing "deliberate indifference" to an inmate's needs

  In Gibson v. Moskowitz, M.D., the Sixth Circuit upheld a verdict for the family of an inmate who died after being neglected in jail for several days.

No compensation for government defamation

   The State of Michigan recently made an inept effort to protect the safety of children at school by enacting a bill that excluded certain persons with felong convictions from working in the school environment.  Bureaucrats made a sloppy effort to fulfill that obligation by publishing a list of felons currently employed in  Michigan schools, knowing that the list would contain some "false hits".  Several of the innocent persons who were wrongfully included in the list filed suit against the bureaucrats involved for not exercising greater care to eliminate false claims.  The Michigan Supreme Court recently held that the government was not liable for this error, and pursuant to the Court majority's instructions, a panel of the Court of Appeals held on April 29 that the involved individuals were also immune from their stupidity and callousness.

CMU Stadium not a public building?

  Frieda Williams was injured when she stepped in a crack at Perry Shorts stadium on her way to the restroom.  She was at the stadium as a band camp participant.  The trial judge's decision that CMU is immune from suit because the stadium was not a public building and was not held open to the public was affirmed by the Court of Appeals.

"Death, in Michigan, is not a 'bodily injury' "

  In yet one more example of political activism at the expense of innocent consumers, the Engler majority on the Michigan Supreme Court has denied the victim's family the right to sue a government agency when the government driver negligently kills an innocent person.  They denied mom and dad's right to sue for their daughter's death by negligent operation of an ambulance, and denied a wife's claim for consortium when her husband was read-ended by a Road Commission claim.  Defenses that were universally and thoroughly dismissed by knowledgeable attorneys have now become the law of our state.

"Operation of a motor vehicle"

      When America adopted the English common law, it also adopted the concept of "sovereign immunity".  This concept can be functionally described, historically, as the King's willingness to provide a court in which disputes could be heard, but his unwillingness to provide a venue for anyone to air a dispute against him.  How odd, that revolutionaries founding a democracy should adopt this view of the courts; but they did.  Sovereign immunity [now called governmental immunity] has remained a concept attracting strange bedfellows.  The people most likely to champion it today tend to be politically allied with "starve-the-beasters" hoping to minimize government and government services, and arch conservatives who resent special privileges being accorded to government and government agents.

        With that two cents of historical perspective, Michigan has adopted a handful of statutory exceptions to governmental immunity.  They involve governmental vehicles on the highway, public buildings, government employees guilty of "gross negligence" and a handful of other specific factual situations.  The arch-Conservative and insurance-industry-captive majority of the Michigan Supreme Court has done its best to whittle away at these exceptions, and another example of its impact was published in November of 2007.

        The victim in Martin v. Rapid Inter-Urban Transit fell down the bus exit stairs as she was leaving a City bus, suffering serious injury.  The driver acknowledged in his Incident Report that the steps were slippery, but claimed that the fall was not preventable because his bus was not equipped with either heated steps or an ice scraper.  The victim sued, claiming that she was injured as a result of the negligent "operation" of a motor vehicle.  The Court of Appeals dismissed her case because the Supreme Court has held, in Chandler v. Muskegon County, that statutory "operation of a motor vehicle" encompasses only activities that are directly associated with the driving of the vehicle....not its intended function. Thus, Ms. Martin can sue if the driver runs her over, but not if he pushes her under an approaching vehicle (or allows her to slide off the bus steps and under the wheels). 

        This absurdly result-oriented interpretation of statutory language is a common feature of the opinions written by Governor Engler's appointees to the Michigan Supreme Court:  they have held that governmental entities are not responsible for design flaws in public buildings; only maintenance problems.  There are dozens of other holdings that make little sense, either logically or from a public policy standpoint:  for example, Michigan cases now hold that an innocent victim injured by an out of control police vehicle can recover if the vehicle strikes him, but not if it forces another vehicle to strike him.  A fireman racing to a fire in a Township truck is responsible for negligence (say for running a red light at high speed); but if he is responding in his own truck, he is not.  A public buiding must be maintained in a safe condition, but the covered entrance need not.  There are literally dozens of other examples.

        In Martin, the Trial Court noted that there was no reason "on God's green earth" for the existence of this vehicle, other than to transport passengers, and denied the City's request to dismiss the case.   Logically, he felt that to "operate" a bus means to allow passengers to board safely.  The Court of Appeals judges acknowledged that keeping ice off the steps was "integral" to this purpose. Nevertheless, they reversed the trial court, holding that the "operation" of a bus does not include the essential functions of passenger boarding or transportation:  under Michigan law it includes only the functions associated with driving.  If Ms. Martin had alleged that the driver swerved slightly as he approached the curb, she would have a cause of action:  if he and the City completely fail to keep the walkway and steps clear, injured victims have no recourse.  What a sad state of affairs.  To paraphrase the famed jurist:  "The life of the law is not logic; it is influence."

Safety concerns with regulating the chemical industry

        The Department of Homeland Security has just released its rules on reporting stockpiling of toxic chemicals, and true to form, the Bush administration has imitated the fox in the henhouse.  The new rules allow, for example, unregulated storage of up to 2500 pounds of chlorine:  one of the most deadly chemicals in regular use.  A company does not even have to report the theft of 450 pounds of chlorine, even though it could be more deadly than  ten times that quantity of high explosive.    Chlorine has been used against civilians by insurgents in Iraq.  [Think of the disaster in Bhopal, for example, and then imagine if it was designed to achieve maximum mortality by the architects of 9/11.]  The Department had proposed more stringent rules in April, however, they have been watered-down since by the Administration's corporate allies who provide what cerebral power is exercised by this Administration.  A Greenpeace spokesman attributed the tepid and unsafe rules to the usual pattern of former industry executives now serving in the federal government as regulators----who refuse to regulate.

Infrastructure, regulation and government

       News from Russia during November of 2007 helps to clarify what happens in a first-world culture when the government does not dedicate adequate resources to regulating for the public good.  It is common knowledge that under Vladimir Putin, the Russian State has used oil wealth and unregulated capitalism to grow the country's economy and create instant billionaires by selling state resources to the private market.  The underside of this rampant grasp of unregulated capitalism has been less well documented.  The Russian death rate from fire is a telling statistic that sheds some light on the dangers associated with ignoring the public infrastructure.

        In 2006, more than 17,000 people died in fires in Russia.  That is  a rate of 40 people per day and more than 12 people for every 100,000 people in the population, and it is TEN TIMES THE RATE OF FATALITY EXPERIENCED IN EUROPE AND THE U.S.  Why the difference?  Probably some of it is attributable to higher rates of alcoholism and smoking, but that doesn't explain a multiplying factor of ten.  Much of the difference comes from a failure to invest in public safety.  The fire equipment is aged, poorly equipped and frequently poorly maintained.  Public and private buildings rarely comply with meaningful building codes and frequently lack normal safety amenities.  Inferior materials are used throughout construction. 

        When hundreds of school children died after terrorists seized a school in Beslan, many of the deaths were attributable to an uncontrolled fire that raged through the school and not directly to violent actions of the terrorists:  120 bodies were found under the collapsed roof of the gymnasium.  When fire engines arrived, they did not have adequate supplies of water.   Firefighters earn only about $400.00 per month, so firefighting agencies are unable to attract excellent candidates.   Even the road infrastructure plays a role; urban roads are clogged and response time for emergency vehicles is ridiculously high, given the distances involved.

        At a time in our country when all public discourse seems to be directed to reducing taxes, "starving the government beast" and deregulating the economy, it pays to look around the world and to examine what our tax dollars buy.  Being wealthy in a culture without infrastructure may not be what we really want.  While many "premium" buyers of home insurance managed to save their mega-homes in the American west during the forest fires of 2007 after their insurers supplied private fire protection, that two-tiered safety system isn't always reliable [regardless of the ethical questions].  Ten years ago, Premier Putin's own dacha burned to the ground.  He blamed the loss on inadequate firefighting resources.

Road Liability "reform"

Responsibility for unsafe roads:  The most extreme majority of the Michigan Supreme Court has launched a five-year crusade to eliminate the rights of victims injured by the errors of government actors.  In May of 2007, they took one more step in that direction by overturning several decades of established Supreme Court decisions addressing the notice requirement for road defects.

The statute allowing injured citizens to sue if they are hurt by an unsafe road allows suit only if the road authority receives a detailed notice of the claim within a couple of months of the injury.  When the Supreme Court interpreted this statute on several occasions in the past half-century, it held each time that the short notice period was only Constitutional and legal if it was applied only if the road authority could prove that it suffered prejudice as a result of not receiving notice:  after all, the purpose of the notice requirement was to assure that the unsafe condition could be investigated and relevant evidence preserved by the road authority.

This month, the Supreme Court overturned these long-standing decisions and held that the Road Authority can require the dismissal of any claim where it did not receive the early notice--even if it was on the scene within hours and had completely preserved and documented the evidence.  Of course, this decision has nothing to do with preserving "justice", since the pre-existing decisions protected both victims and the road authority of no notice was given and evidence was lost.

This case should be considered alongside decisions that interpreted "reasonably safe road" to include only the road bed, and NOT signs, traffic control devices, or even road shoulders.  The conservative minority says that the statute applies only to road bed maintenance, and not to design characteristics.  It doesn't apply to depressions in the road surface, if they are made slippery by ice or other material, because in that case the "cause" of the problem is the slippery material--NOT THE DEPRESSION THAT ALLOWED IT TO ACCUMULATE.  (We used to believe that this kind of decision about "proximate cause" was a jury decision.)

If the Road authority notices a stop sign knocked down, and decides to fix it in ten months out of next year's budget, it bears no liability for the road remaining unsafe for the rest of the year, because the sign "is not a part of the road".  Whether the downed sign (or any other excluded condition) causes 1 death or dozens, the Road authority never becomes responsible.

The road ends in a rural lake with inadequate warning?  No responsibility, because that represents a "design" flaw--even if a doctor and her three kids drown as a result.  No matter that they are not the first fatality at the site and the Road authority has had years to fix it but does not.

A Traffic control signal continues to malfunction, leading to intervals of conflict at a busy intersection:  sorry, not a "road condition"; no one is liable.  Inadequate barricading at a construction project?  Sorry, the road isn't open for public use--only for local use.  The misleading design of a highway regularly results in people misunderstanding a freeway exit and stiking a T at freeway speed without warning?  Doesn't matter how many fatalities result:  no duty to re-sign or redesign.

Railing missing or not repaired:  not the roadbed; no liability.  The shoulder is deeply rutted or has an exposed culvert:  these wise justices decided that it was designed for travel, so no responsibility.

We have argued for years that it makes no sense to protect government actors from carelessness or stupidity.  The cost of governmental mistakes should be borne by all of us--through the at fault authority--rather than by the victim.  Unfortunately, our representatives have chosen a far less altruistic, less "Christian", approach which apparently meets with the approval of uninjured taxpayers who have been misled by insurance propaganda.