TOV Injury and Safety Blog

Claim against roller rink dismissed after employee collides with skater

The Court of Appeals ruled that Skateland Arena in Flint owed no duty to Daquiri Hines, a minor who was injured when he was run down by the Arena's employee, Kelly Maule, while both were observing a game of dodge ball at the arena.  The Court ruled that Hines' attorneys had not met their burden of demonstrating that Skateland did not comply with the safety standards published by the rink operators association, and that Skateland owed Hines no other duty under the Roller Skating Safety Act. 

While the court recognized that the Legislature did not intend to grant roller rinks complete immunity under the RSSA, it nevertheless concluded that Hines had "assumed the risk" of injury and refused to follow the guidance of a previous decision that required rink floor guards to exercise "good judgment".  The case is another example of the special privileges and immunities afforded business entities with special access to lobbyists and legislators. 

Were roller rinks leaving the state due to liability problems?  Do they serve such an important public purpose that we should afford them immunity from their mistakes and from the injuries they cause?  Sadly, none of that matters.  They had the votes in the legislature, and sometimes they have the votes in court, to grab civil protection that ordinary people aren't accorded.

Contractor must pay for cost to repair home to make it saleable, and diminution of market value

Gerald T. and Jonna Heaton sued their builders after the foundation of their new home shifted twice, during construction, necessitating substantial repairs and modifications.  They sued alleging contract violations and negligence, but only the negligence theories went to trial.  Ultimately, the jury awarded them more than $70,000.00 in costs to repair and another $200,000.00+ for diminution in market value.  The Defendants argued that Heatons should not have been allowed to recover both forms of damages. 

Battery and nuisance claims arising from burning lawn waste are dismissed

Helga Rose sued her neighbors, the Braciszewski family, claiming that their twice-annual burning of lawn waste created a battery to her and a nuisance to her property because the smoke entered her home and exacerbated her pre-exisiting respiratory problems.  The Court held that the standard is an objective one, meaning that if the smoke would not have constituted an unreasonable trespass that "substantially impair[ed] the comfort or enjoyment of adjacent premises" it was not actionable.  On this basis, the Court denied Rose any relief for nuisance.  It also held that she could not prove that the Braciszewski family intended the smoke to come into contact with her, and therefore no legal "battery" had occurred.  She was denied any financial compensation and also denied the right to enjoin the day-long burning.

Trucker can sue for lumber yard employees' negligence

Wilmer Floyd fell 13 feet from the top of a flatbed load of lumber as he was attempting to cover it with a tarp that weighed 150 pounds.  Floyd had been sent to the Insulspan, Inc., lumberyard to pick up the lumber and was attempting to cover it prior to transport.  Despite instructions to the contrary, the Insulspan employees allegedly had left the lumber stacked out in a snowstorm and loaded it on Floyd's flatbed without removing several inches of snow fromt the materials.  Floyd claimed that he slipped on the snow and fell while adjusting the tarp, and sued Insulspan for negligence in failing to cover the lumber or remove the snow prior to loading.  The lower court dismissed Floyd's claim, applying the "open and obvious" exclusion to premises liability to obviate any duty by Insulspan.  The Appellate Court reversed, pointing out that the claim was one for negligence unrelated to Insulspan's  possession of the property and not alleging a hazard on the property.

Buyer who opts for dual-agency contract with seller's broker cannot complain about the agent's failure to protect him

The VanHellemonts agreed to buy a $1.6 million dollar estate from the McManamons in Oakland County.  They used as their agent the McManamon's broker, and signed a dual-agency disclosure agreement.  The deal slowly fell apart and the VanHellemonts were sued for damages or specific performance.  They sued their realtor for malpractice, arguing that the agent should have written the buy-sell to protect them more fully:  in particular, they alleged the document should have called for the loss of their $35,000 earnest money deposit, rather than a $500,000 penalty, in the event that they did not close on the purchase.  The Court concluded that the VanHellemonts gave up their fiduciary duty claim against the realtor when they agreed to the dual-agency relationship.

Title Agency must defend claim of gross negligence

When BCV Colonnade attempted to sell the K-Mart it owned in Jackson, it relied upon United Realty Companies, LLC and the Morris Home Title Agency to close the transaction. It required the buyer to maintain a $100,000.00 cash deposit with Chicago Title Insurance Company and Morris Home until the closing date, and was twice assured by Morris that the deposit was secure.  The buyer failed to perform, and when BCV sought the escrow from Morris, it was informed that the buyer had also failed to place the cash deposit with Morris. 

California recognizes insured's right to sue insurer who destroys evidence

Lawyers USA reported this week that a California Appeals Court has recognized a cause of action in favor of an insured who could not pursue a product liability claim because his insurer, State Farm, disposed of an allegedly defective tire.  Under the facts of the case, the Court agreed that State Farm could be sued for "third party spoliation" of evidence.  Michigan's Supreme Court, while dominated by activist judges energized to protect insurance interests, have been reluctant to recognize this cause of action in Michigan.

Court rejects open and obvious defense in fall at car wash

Paul Kachudas fell and broke his wrist at a Genessee County car wash. The owner had discovered that the floor heating system of one bay of the car wash was not operable in the winter weather, but was distracted before he could erect cones to prevent the use of the affected bay.  Kachudas fell in the interim, but when he filed suit, the trial court dismissed the case on the grounds that the hazard of ice in a car wash during winter was "open and obvious."

Is failure to report child abuse governed by medical malpractice laws?

In Lee v. Detroit Medical Center and Children's Hospital, a panel of the Court of Appeals was presented with the thorny question of whether an abused child's representative must comply with medical malpractice rules in order to hold a medical professional responsible for the breach of the professional's statutory duty to report suspected child abuse.  Two judges concluded that since the statute creates a duty in both professionals and non-professionals, it does not create a "professional" duty and the malpractice rules are irrelevant to the statutory claim.  The third judge would have defined the duty based on the professional occupation of the person alleged to have committed the statutory breach.  The case is likely to end up before the Michigan Supreme Court before we have a final answer.

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. 

Law firm not responsible for employee's fraudulent notarization of signature.

Susan Grossman sued Liss and Associates, her ex-husband's attorneys, after an employee allegedly notarized her forged signature on an assignment of mortgage.  The case has made its way to the appellate court twice previously, and the court had overturned both a summary disposition and a directed verdict that had been granted to the defendant law firm.  Previously the court had held that whether the employee was acting "within the scope of her employment" at the time of the allegedly illegal act was a question of fact for the jury.  On this appeal, the plaintiff was attempting to overturn a jury verdict for the defense, based on what she claimed were unfair instructions from the trial judge.

Treble damage claim for fencing stolen property dismissed

American Auto Recyclers sued the Ferrous Processing & Trading Company, alleging that the defendant had illegally and knowingly accepted stolen automobiles for scrap.  Under Michigan law, MCL 600.2919a, a person who knowingly buys or accepts stolen property can be forced to pay treble damages to the theft victim. 

Family of murder victim can sue contractor who failed to report escape immediately

Sharon Brooks, P.R. of the Estate of Dominique Wade sued Starr Commonwealth after a juvenile escapee killed Mr. Wade.    Starr ran a residential treatment program under contract with Wayne County.  Despite a long arrest record and a history of violence and escapes at Starr's facility, Michael Kirksey was not placed in a locked facility.  After his fourth escape (he had not been disciplined for the prior three, either), he killed Mr. Wade.  Wade's Estate claimed that Starr could be held responsible for the death because it violated a safety statute requiring that it "immediately" report an escape to police.  In this case it did not report the escape of Kirksey and three others for nearly two hours.

Court of Appeals decides to publish case rejecting title insurer negligence

Several weeks ago, we described the holding in Wormsbacher and W & FLLC v. Phillip R. Seaver Title Company, Inc., holding, in which a panel of the Court of Appeals concluded that a title insurance company cannot be held responsible for negligence.  This month, the panel decided the decision should be published and serve as a precedent for the proposition that title insurers can only be held responsible to fulfill the duties they spell out in the title insurance contract.  Under the decision, insureds have no remedies other than those agreed to by the insurer in the contract.  The judges concluded that if a buyer or developer wants a remedy in the event of an error in examining the title, it should pay for an abstract rather than a title insurance commitment.

Court analyzes mobile home mold claim

Steven and Amber Raab purchased a manufactured home and leased a lot from River Ridge-Saline, LLC in November 2000.  The lot didn't drain properly, resulting in mold problems focused primarily underneath the mobile home.  The Raabs consulted experts who documented the mold problems, however, their findings did not indicate catastrophic damages.  One expert did testify, however, that it would cost $48,000.00 to remediate the problems.  Despite this claim, the trial court removed the case to District Court on the basis that reasonable minds could not conclude that the family suffered more than $25,000.00--the jurisdictional limit of the Court.

Woman who claims assault by doctor must plead medical malpractice

In Steele v. St. Lawrence Hospital, et al., the plaintiff claimed that after she sought voluntary admission to the defendant's psychiatric unit, she was abused by a male physician, Ralph Michael Kelly, M.D.  Kelly, an Internal Medicine specialist, was consulted after Steele's admission because her doctor was concerned about high blood pressure.  Kelly could not remember the exam but testified it is his practice to perform a complete physical, including a breast examination, on all patients.  Steele claimed she did not want a breast exam, that her own doctor had performed one the month before, and that Steele's exam, when performed was "strange".  She also complained that no other woman was in the room during the exam.

Electrician cannot sue employer for intentionally-caused injury

The Michigan Legislature adopted a statute that defines the rare situations where an employee can sue his employer for injuries suffered at work.  Normally, the employee is limited to the benefits provided by the workers compensation scheme (that is statutory medical  or funeral/burial payments, partial wage loss and very limited attendant care).  The legislature did hold open the potential for an employee to sue his employer for injuries if they are the result of intentional misconduct.  It also defined "intentional" misconduct in a manner that allows a jury to infer the employer's intent.  That statutory definition was at the heart of a disagreement by the Court of Appeals judges who decided the Allard v. Detroit Edison case.

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

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

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

State Farm recalls defective promotional teddy bears

MSNBC announced today that State Farm was recalling 800,000 cheap, Chinese-made promotional "Good Neigh Bears" it handed out between 2005 and 2007.  The plush toys do not comply with standards requiring the elimination of detachable choking hazards and had already been recalled by Health Canada.  State Farm's subsequent recall was instituted in agreement with the US Consumer Product Safety Commission.  Kind of ironic when a company that advertises its concern for safety and touts itself as a good neighbor resorts to handing out cheap, unsafe foreign imports as a promotion, don't you think?  It's another example of the need for consumers to distinguish between these large corporations' marketing identity and reality:  Allstate may be the best example of the chasm that may lie between the two.

Farmers' "stray voltage" case dismissed as court rejects their experts' testimony

In Schaendorf v. Consumers Energy, the Court of Appeals acknowledged that it is common knowledge and undisputed by either party that stray voltage in a barn can and will decrease milk production.  Nevertheless, it upheld the dismissal of the Plaintiff's economic damage claim, citing a lack of scientific foundation for the farmers' three experts' testimony.

Employee's injury case sent back for a new trial

The Court of Appeals reversed the Wayne County Circuit Court judge's decision that summarily disposed of an injured worker's claim against a company that leased manufacturing equipment to his employer.  The worker was badly hurt when a slitter allegedly malfunctioned.  His attorneys claimed that his injury was caused by the breach of a contract obligating the defendant to train employees in the use of the machine and to inspect it for defects and dangerous conditions.  The Court of Appeals unanimously agreed.

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.

Title insurers aren't responsible for negligence in Michigan

Apparently because there was concern they would flee the state, Michigan title insurers have gradually been granted immunity by state court judges, at least according to the Court of Appeals' recent ruling in Wormsbacher v. Phillip R. Seaver Title Co.  A buyer who relied on title searches before buying land in a Rochester subdivision attempted to sue the title company when it turned out that the company failed to advise him of restrictions prohibiting commercial use of the land.

Progressive Insurance not liable for vehicle title "mistake"

Progressive Insurance totalled one of its insured's vehicles, but then sold it with a clear title instead of a salvage title.  A purchaser bought the vehicle after it was repaired, but Progressive refused to insure it because of the title "error."  (How's that for irony?)  The auction house, Pro-Tech, bought the vehicle back and a dispute developed between it and the dealer over the quality of the dealer's repairs.  When the dealer refused to contribute to the buy-back, it was banned from Pro-Tech auctions, and the dealer eventually sued the auction house and Progressive.  The Court of Appeals held that Progressive's titling "error" was too remote to make it responsible for the controversy that developed between the auction house and the repairing dealer.  If an insured made a similar "mistake" in his or her purchase documents, their insurance would be voided for fraud.  The term "progressive" has certainly assumed a different meaning over the past few decades.

Chemical supplier not liable for injuries suffered by GM workers

In an appeal from Genessee County, the Court of Appeals addressed several issues arising out of allegedly negligent exposure to a hazardous chemical.  The case is Bearup, et al. v. General Motors Corporation, et al. The Plaintiffs in the case were all former employees of GM (Isn't that everyone who lives in Flint, at this point?) who suffered serious lung injuries, allegedly as a result of exposure to a draw compound used in machining operations. The claims were defended on the basis that the statute of limitations had run (before the injuries were diagnosed, even), and on the basis that the manufacturer, Quaker Chemical, owed no duty to warn the employees of the potential hazard because they were selling the compound to a "sophisticated user".    The Court ultimately accepted these defenses almost in their entirety.  

Owner owes no "special duty" to man injured while doing a "favor"

Joe Smith had worked as a handyman on the Brooks' farm and also hunted there occasionally.  In return, he often did uncompensated odd-jobs for the owners.   After bow-hunting one day in 2005, Brooks asked Smith to cut a threshold plate in the barn door and gave him a pair of "tinsnips" to do the cutting.  As Smith was finishing the cut, the threshold plate curled back violently and seriously injured Smith's eye.  Brooks' insurer denied that Brooks owed any duty to Smith or any compensation, and the Court of Appeals agreed.