TOV Injury and Safety Blog

Man hurt by tile falling from the ceiling at Cobo Hall cannot sue the City of Detroit

A ceiling tile fell and struck Franklin White while he was delivering newspapers inside the City-owned Cobo Hall.  A report was filed, however, White did not consider his injuries serious and did not investigate further.  His neck problems worsened over the next few months, however, and he had to undergo surgery four months after the incident.  When he attempted to sue the City, his case was dismissed because he could not prove that the City had notice of the ceiling problem sufficiently in advance to have repaired it. He claimed that city workers made remarks on the day of the injury which suggested that the ceiling problem was not new, however, these were determined not to be admissions against interest, because he could not identify the workers or substantiate the workers' scope of employment.

Children injured by toxic mold can recover against neighboring condominium owner

Mario Genna and his family sued the contiguous condominium owner after her unit was left unoccupied for several months and became contaminated by mold.  She had developed a serious plumbing leak that went undiscovered.  Several of the molds identified when the condition was finally discovered were known to cause significant health problems with constant exposure.

The Genna family suffered severe respiratory and digestive problems and ultimately had to leave their home before the children's health improved.  When the problem with the neighboring condominium was revealed, they sued the neighbor for damages and recovered a verdict of more than $300,000.00.  The neighbor's insurer appealed, arguing that the family did not present adequate expert testimony linking the children's health problems to the mold exposure.

Failure to illuminate exit steps is not an "open and obvious" danger and school may be held accountable

Dennis Ahola attended a basketball game with his sons at the Genesee Christian School.  It was daylight when they arrived, but dark when the game finished.  Ahola left the building and fell on steps outside the doorway that he could not see in the dark and did not recall from entering the building.  He filed suit to recover for his injuries, however the school's insurer claimed that it owed no duty to Ahola because the dangerous condition where he fell was "open and obvious" on casual inspection. 

Kid hurt in gym class cannot sue becaues she "assumed the risk" of playing soccer

Heather Willford suffered a serious knee injury after she was kicked by Travis Thorington in gym class.  Her father, as her Guardian, filed a negligence claim, alleging that Travis had been guilty of negligence or gross negligence in injuring her.  The insurer for Thoringtons filed a motion to dismiss the claim, arguing that under the Ritchie-Gamester v. City of Berkley decision, Heather had "assumed the risk of injury" by participating in the gym class soccer game.  The lower court had rejected this defense, finding that since Travis was allegedly not involved in the game being played, Heather had not assumed the risk that he might hurt her. 

Court overturns dismissal of claim arising out of fall on wet gas station floor

Helen Bialick fell and broke her ankle just inside the door of the Megan Mary, Inc., gas station in Oakland County.  She testified that when she entered the gas station, she checked out where she was walking, but did not notice that the floor was wet.  She claimed she fell on light-colored tile and only noticed that it was damp after she was on the floor.  The owner provided testimony that directly contradicted his own interrogatory answers on several key points, but testified at trial that  while customers had tracked moisture into the station, there were mats on the floor, and a warning sign was in place.  There was a clear conflict of testimony on these key points, with the station owner's evidence heavily impeached by his own significant inconsistent statments.  Nevertheless, the trial court had dismissed the case, holding that the owner owed no duty to Bialick because the wet floor was an "open and obvious danger."

The Court of Appeals reversed in a unanimous opinion. It noted that weighing the parties' conflicting claims about visibility, warnings and safety measures was properly a task for the jury.  It reminded the lower court that in order to relieve a premise-owner of his duty to take reasonable steps to make the premises safe, the hazardous condition that caused injury must be one which "an average user with ordinary intelligence [would] have been able to discover...upon casual inspection." 

The Court also rejected the insurer's argument that the victim's observations should be inadmissible. (On the pretext that the test of "open and obvious" danger should be an objective one, the insurer wanted to allow jurors to hear only its own evidence about the weather, the floor and the measures taken by the owner to address the tracked-in moisture.)  After a decade of winning any arguments they made before the so-called "Engler Majority," Michigan insurers have developed an arrogant pattern of arguing theories that most reasonable people would find to be obnoxious.  Fortunately, the latter era has ended, and the current Supreme Court (although still with a 4-3 Republican majority) is far more balanced and reasonable.

Court rejects apartment complex claim that camouflaged step is "open and obvious"

This week, a panel of the Court of Appeals reversed the trial court and reinstated Katrina Hilton's injury claim against her apartment complex owner, the Barrington Group, Inc.  The Court also rejected the lower court's decision to set aside a default entered against Barrington previously.

In a very reasoned opinion, the appellate judges pointed out that the single step in the laundry room was "indistinguishable from the surrounding floor," creating an issue of fact with regard to whether it would be "obvious to a reasonable invitee on casual inspection."  The question to be answered, in order to eliminate the defendant's duty to eliminate a hazard, is whether an "average person of ordinary intelligence [would] discover the danger and the risk it presented on casual inspection."  That is, whether the hazard was "known to the invitee, or 'so obvious that the invitee might reaosnably be expected to discover [it].' "  The court also pointed out that the hazardous step was "unavoidable" if a tenant were to use the leased laundry facilities.

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.

Panel denies landlord's duty to provide secondary egress to each individual apartment

A conservative panel of the Court of Appeals upheld the dismissal of a family's wrongful death claim arising out of the death of Edward Brannon.  Brannon encountered a fire at the doorway of his apartment that blocked his exit, and ultimately jumped from a second-story window.  He suffered severe burns and injuries including paralysis that ultimately resulted in his death.  His family sued the landlord, KZ Properties, LLC, alleging that the landlord had violated its common law and statutory duties to provide a safe alternative egress to apartment residents.

Apartment complex not liable for foliage blocking view from entryway

Bicyclist Harmail Sidhu suffered numerous injuries, including two broken arms, when he swerved to avoid colliding with a car exiting an apartment complex owned by 830 South Main Street, L.L.C.  He claimed the incident resulted was caused by a wall of vegetation adjacent to the complex that blocked the view of motorists exiting the complex parking lot.  The trial court and Court of Appeals dismissed Sidhu's negligence claim, even though the complex was cited by the City of Ann Arbor for violating an ordinance that required trimming vegetation within the right-of-way. 

Condo owner cannot sue condo association for negligent acts of independent contractor

Steven Valentine's lawsuit against the Barclay Association was dismissed by the Court of Appeals this week, and the Court opened the door for additional fees and costs to be awarded to the association he sued.  Valentine had become embroiled in a dispute with his condo association after it hired a roofing company whose negligent acts allegedly caused damage to the interior of Valentine's condominium.  Valentine withheld his dues and sued the Association, arguing that it was responsible for the damage to his unit caused by the roofer's negligence in re-roofing [a common area duty of the Association]. 

Where employer leases parking lot, injured employee cannot sue landlord after fall.

Simon Thwaite attempted to sue Vincenti Court, LLC, and others, after he suffered injury in a fall on his way into his office.  He was employed by a company that enjoyed an exclusive lease of the parking lot, and was traversing the lot, on crutches, on his way to work, when he fell.  He argued that he fell on ice that resulted from a defect in the building, a pipe that allowed water to drain from the roof of the building on to the asphalt; and that the duty to repair this condition could not be delegated by Vincenti to his employer.

The Court of Appeals rejected Thwaite's claim, holding that his employer had the sole duty to clear ice from the parking lot, since it enjoyed exclusive possession of the lot.  Unfortunately, the judges failed to address the building owner's active negligence in failing to repair the known defective roof condition that was rendering the parking lot unsafe.  Under the employer's lease with Vincenti, the employer had no right to repair the roof defect.  Perhaps the Supreme Court will address this failure of common sense and justice.

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.

Court dismisses claim arising out of fall on freshly-mopped floor

Jacqueline Maness sued the Carlton Pharmacy and a company hired to mop its floors, alleging that she hadn't been adequately warned of the slippery, wet floor on which she fell, suffering serious injury.  Initially, her claim was dismissed on appeal, after the defendants claimed that the trial court should have found the condition of the floor to be an "open and obvious" danger.  The Supreme Court reversed, however, noting that Maness' claim against the cleaning company, which was not in possession of the drugstore premises, could not be evaluated under the "open and obvious" doctrine, since that doctrine applies only to hazards maintained by a landowner/possessor.  The claim against the cleaning agency was sent back to the trial court to be evaluated on the basis of negligence and comparative fault.

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.

Ludington Holiday Inn case sent back to lower court to address fees owed by AutoOwners

Earlier on this website, we reported on litigation involving the Ludington Holiday Inn, where a family suffered a toxic exposure as a result of a problem with the heating system.  AutoOwners insured the Inn but refused to defend the injury claims against the Inn, arguing that they fell within an exclusion for injuries caused by pollution.  The trial court rejected that argument, and enforced an exception for "heating equipment" in the policy language applicable to the pollution exclusion. The lower court also awarded the Inn and the injured family significant attorneys fees and costs. 

Slip and fall in parking ramp cannot be pursued as ice was "open and obvious"

Christine Blue fell on ice in the parking ramp at St. John Hospital.  She filed an injury claim (probably in the hope of recovering enough to pay the St. John's bill for treating her).  The Court of Appeals this week overturned the trial court and held that Blue cannot sue.  Two of the three judges felt that there wasn't adequate notice of the icy conditions to hold the hospital responsible, and also applied the "open and obvious" doctrine to her claim.  The latter doctrine is an "Engler Majority" monstrosity that relieves a landowner of any duty to eliminate a hazard that would be visible to a visitor on casual inspection.

Landlord again avoids liability for criminal activity against tenant

Joyce Memminger sued the landlord of her gated apartment complex, McKinley Properties, alleging that it should be responsible for allowing access to her ex-husband.  The ex-husband held her captive for hours and shot her when she attempted to escape.  Memminger initially argued that the landlord was negligent in allowing the assailant unauthorized access to the premises, however, the court dismissed that claim.  She then filed a second action alleging that she had been fraudulently induced to rent the apartment based on false representations regarding the landlord's restrictions on non-tenant entry.  The Court of Appeals rejected this claim, as well.  That result probably did not surprise the parties, once Judge Henry Saad was assigned to the hear the appellate case.  His is a consistent voice for the interests of insurance companies.

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."

Landowners not responsible for death caused by fall of apparently healthy tree

Sixteen-year old Sufian ("Shawn") Amin was killed when a large tree suddenly cracked and fell on him as he was walking on the sidewalk adjacent to the defendant's property.  His mother, Kwala Amin, filed suit against the landowner, the Marino S. Papalas Trust, alleging negligence and nuisance in failing to maintain the tree.  The trial court refused the Trust's Motion for Summary Disposition, noting that neighbors had testified that flocks of birds gathered in the tree, allegedly eating insects in the diseased interior of the tree, and therefore, the Trust was on notice of the need to act to render the tree safe.

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.

Another claim that black ice is "open and obvious" is rejected

Irene Brown was injured when she fell while entering a Taubman owned mall.  She sued, alleging that she fell on invisible black ice near the (dark) entrance.  The trial court granted the Defendants summary disposition, based on the argument that the black ice (which their own maintenance man testified he could not locate, after the fall, but which the Mall security officer had confirmed) was "open and obvious."  Apparently the lower court deemed the invisible ice open and obvious because one witness claimed there was snow in the shrubbery nearby--putting Brown on notice of the possibility of black ice.  The Court of Appeals unanimously rejected this outcome, with Judge Saad even joining the opinion.  The higher court noted the conflicting testimony regarding the ability to locate [see] the ice as a basis to deny summary disposition.

Intermittent tourist whistle is not a "private nuisance"

In a relatively unusual case, the Court of Appeals concluded that sounding a navigating whistle on the tourist riverboat operated in Frankenmuth does not constitute a private nuisance.  The resident who filed suit to limit or eliminate the whistle sounding was denied relief, even though the whistle is sounded almost ten time per hour during the 12 hours of operation and seven cruises daily.  In essence, the court held that the sound wasn't so obnoxious as to be unreasonable, given the Coast Guard regulations that applied and the location in a tourist magnet community.

Elderly man who falls in parking lot cannot sue landlord

The Court of Appeals upheld the dismissal of Charles Smillie's injury claim, when he could not confirm what caused his fall in his apartment parking lot.  Smillie suffered a mild head injury and had no recollection of the actual fall.  He offered the presumption that he did not fall "for no reason" and his belief that he fell in one of numerous potholes visible in photographs of the lot.  The trial court had concluded that Charles' presumption, without a specific memory or any witnesses or other evidence, was not a "scientific presumption" as he testified, and therefore there was no factual basis to support his claim that a defect caused his fall.  The Court of Appeals unanimously agreed.

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.

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."

Court allows "common work area" injury claim to go to jury

    In Alderman v. JC Development Communities, LLC, the Court of Appeals reversed a trial court dismissal of Alderman's injury claim.  The Defendant was the general contractor on a subdivision project of 200 homesites where Alderman suffered severe electrical burn injuries.  Alderman's injuries occurred when a subcontractor's employee accidentally contacted an overhead power line with a crane.  Alderman's attorneys claimed that he was injured because the general contractor failed to take reasonable steps to supervise or coordinate protections against readily observable dangers that created a high degree of risk to a significant number of workers in a common work area.

Court of Appeals rejects defense argument that black ice is "open and obvious"

Thomas Janson fell on black ice in the Sajewski Funeral Home parking lot, fracturing his ankle.  The defendants argued that black ice (by definition invisible) was "open and obvious" as a matter of law, therefore eliminating the landowner's duty to remedy it.  The trial judge bought this seemingly paradoxical argument, probably in reliance on a handful of very aggressive appellate opinions written by insurance-oriented judges.  The Court of Appeals reversed on appeal.

Storm drain hidden by grass is "open and obvious"

Dean Ouelette hurt himself when he cut across the grassy right of way while biking to the Kroger store in Grand Blanc.  His bike struck a French drain cover causing him to be thrown to the ground and injured.  The Court ruled that even though Ouelette didn't see the drain cover in the unmowed grass until he was two feet away, the hazard was "open and obvious" because "an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection." 

Don't step in puddles!

Alphonse Schaaf was badly hurt when he stepped in a mud-puddle at Pullman Industries and fell on an iron drain grate hidden under the muddy water.  He had pulled his truck onto the premises and was walking around the cab in an area of mud and standing water when he fell.  A jury concluded that the drain grate did not pose an "unreasonable risk of harm" and Schaaf appealed.  Two of the appellate court judges went beyond the jury's risk decision to hold that the drain grate hidden by the mud-puddle was an "open and obvious" danger which the premises' owner owed no duty to alleviate. 

Landlord's failure to eliminate "spider infestation" is not actionable

Tracey Redman sued her landord after she suffered a second spider-bite in her apartment.  She alleged that the apartment was "infested" with spiders and that the landlords' failure to respond to the infestation breached their duty to provide her with premises "fit for the use intended."  The Court's opinion does not indicate the extent of Redman's injury, but judging by the outcome, we assume that her damages were insignificant.

The Court of Appeals concluded that "[t]hough a spider infestation may not be an 'ideal condition,' plaintiff failed to establish that it rendered the premises unfit as a dwelling."  If this really was an "infestation" and if Redman could document any serious consequence from the two bites in two months, we'd call the situation something less than "ideal."

Tenant gets opportunity to prove that landlord was too slow in responding to ice and snow

In Farmer v. Practical Limited Dividend Housing Association, et al., the injured tenant was allowed to pursue her claim that her landlord did not take reasonable measures in response to a winter storm.  Although her claim against the company hired to clear the parking lot was dismissed, she was allowed the opportunity to prove to a jury's satisfaction that the landlord had not met its statutory obligation to make all "common areas...fit for the use intended by the parties."  This statutory duty is an exception from the judicially-created premise that a landlord is under no duty to address "open and obvious" dangers.

The Court relied on another judically-created doctrine to dismiss the snow removal contractor from the suit.  In Fultz v. Union-Commerce Assoc., the Engler Majority of pro-insurance Justices held that signing a contract to take action with one party eliminated any duty of reasonable care to third-parties other than identified direct beneficiaries.  Under the Fultz analysis, if I engage someone to clean my sidewalk, persons using the sidewalk are not "third-party beneficiaries" and the sidewalk cleaner owes these pedestrians no duty to act carefully.  Applying this distorted logic to the Farmer case, the Court of Appeals concluded that Farmer could not claim negligence by the contractor.

Court analyzes common work area doctrine in case vs. Northwest Airlines

Elizabeth Banaszak, an apprentice electician, was injured when she fell through a temporary plywood covering and into a mechanical pit at the end of a covered walkway at Metro Airport.  The walkway was being renovated at the time, and Banaszak claimed that NW Airlines had retained control of the construction site, thereby assuming a duty to the employees of sub-contractors to keep the common work area safe.  Following repeated motions by NW, the trial court eventually dismissed Banaszak's claim, holding that she had not established the foundation for a common work area claim against NW.  The Court of Appeals reversed.

Defective ladder claim is dismissed

In Churchill v. Ferry, the injury victim filed suit against a landowner after falling from Defendants' ladder while removing gutters from the home.  Churchill claimed that he was instructed to use the Ferry's ladder that had no feet, and in combination with the Ferry's deck, the ladder constituted an unreasonable risk of harm.  Ferrys argued that they had not instructed Churchill to use their ladder or to perform this task, and that through simple common sense they had "figured out" not to use the ladder on the deck.  On this basis, they persuaded the trial court to dismiss Churchill's claim. 

Ice on snow-covered porch is "open and obvious;" case is dismissed

Denise Moyer sued Nancy and Ken Sieloff after falling on their front porch.  She claimed that she fell on ice.  She admitted that the porch was snow-covered and that she could have left the home by the back door, but argued that the Sieloff's owed a duty to remove the ice from the porch within a reasonable time period.

Woman dies in home fire, Allstate investigates and destroys evidence: court rules no claim against Allstate

The Estate of Lillian Teel sued Lillian's landlord and Allstate after Lillian died in a home fire.  They alleged that Allstate sent an inspector to the apartment, without notice to the Teels, and that its inspector altered the scene, removing certain items that had the effect of destroying evidence of the fire's cause and origin.  When the Teels learned of Allstate's destruction or "spoliation" of evidence, they joined Allstate in their suit against the landlord, whom they claimed had not maintained reasonably safe premises.

Court confirms that true black ice is not "open and obvious"

It would seem to be beyond dispute that something which is by definition "either invisible or nearly invisible, transparent or nearly transparent" is NOT "open and obvious."  Nevertheless, insurance companies, emboldened with their success in defeating Michigan personal injury claims, have pushed most every defense theory to its ultimate absurdity.  This happened again in Garrison v. St. Paul Fabric Services, when the Defendant appealed a trial judge's decision that a fall on black ice in a handicapped parking space was not the result of an "open and obvious" defect.

Court interprets Equine Activity Liability Act to protect owner from negligence

Trina Beattie was injured when a horse being saddled by its owner startled and lifted her off the ground as she grasped its halter.  She missed several months of work and has continuing long-term physical ramificiations from the injuries she suffered.  Beattie and two companions alleged she'd been invited to defendant's home to ride a partially-broke horse, while defendant argued Beattie had invited herself.  Before reaching the factual discrepancies, however, the Court of Appeals upheld the dismissal of Beattie's case, based on its interpretation of the Equine Activity LIability Act.

Fall from ladder evokes "common work area" doctrine; employee of sub-contractor can sue

David Slater was injured in a fall from a 32 foot ladder, as he attempted to unchain it.  The General Contractor had suggested that he unchain the ladder, left by another subcontractor, despite Slater's lack of experience on roofs, ladders or heights and his lack of fall protection.  His claim was initally dismissed by the trial court, but reinstatted by the Court of Appeals.  The higher court ruled that these circumstances brought into play the "common work area" doctrine, under which the owner or general contractor must assume a legal duty to maintain safety in certain construction areas.

No liability for fall on worn, wet carpet

Phillip Sapienza sued Stu Evans Lincoln Mercury Lakeside in Macomb County after he fell while getting out of his car.  Sapienza argued that the dealership negligently caused his fall, which occurred when he stepped on worn and wet carpet while exiting his car after parking in Defendant's facility.  The Court ruled that Sapienza had not met his duty of proving that the Defendant had notice of the wet area where he fell, since it was a "high-traffic area" and the liquid could have been present "for five hours or five minutes."

Court dismisses woman's toxic mold exposure claim after Supreme Court eliminates "discovery" rule

Connie Colaianni alleged that she suffered numerous sinus and respiratory problems after her workplace moved into a newly-renovated location in 1998.  She did not sue until July of 2003, however, and the landlord argued that her case should be dismissed because it was not in compliance with the three-year statute of limitations. The trial court held that Colaianni did not reasonably discover the basis for her claim until her doctor diagnosed her illness as stemming from toxic mold exposure, and therefore concluded her suit was timely, as it was filed within three years of reasonable discovery. 

The Defendants renewed their motion to dismiss, however, after the Engler Majority of the Supreme Court wrote its opinion in Trentadue v. Gorton in 2007.  The Court of Appeals panel in Colaianni noted that when the Supreme Court completely repudiated the common law discovery rule in 2007, it undercut the basis for Colaianni's lawsuit.  Therefore, the case had to be dismissed on the basis of the three year statute of limitations, even if Colaianni's doctors did not identify the cause of her problems during the statutory limitation period.

Landlord not responsible for fall from "settled" step lacking a handrail

The Court of Appeals upheld the trial court's dismissal of Don Wright's negligence claim against Meadowood Jackson, L.L.C., his landlord.  Wright fell while backing out of his apartment with two bags of garbage and suffered a very severe injury to his hip which was already afflicted with avascular necrosis.  He alleged the fall resulted from excessive settling of the step over a series of years, that the step did not comply with the applicable building code, that it needed a handrail, and that caulking on the steps proved that the landlord had actual notice of the defective settling of the step.

Court dismisses another injury claim arising out of a fall

In Tyro v. Builders Association of Southeastern Michigan, the Court of Appeals upheld the dismissal of Ms. Tyro's injury claim.  Tyro was seriously hurt when she tripped over electical cables lying on the floor between booths at a home improvement show.  There were factual disputes over whether the cables were under a cover with yellow sides, but in any event Tyro admitted she wasn't looking at the floor and did not see the cables or the cover. 

Sixth Circuit limits, rejects "contract immunity" defense

Joy Davis sued Venture One Construction after an unhinged door fell on her while she was retrieving a dustpan on her employer's premises.  The door had been temporarily stored outside the construction area by a subcontractor performing remodeling on a Subway restaurant, and Venture One was the general contractor having a duty to maintain safety at the site.  Venture had persuaded the trial court to dismiss Davis' claim by arguing that it owed no duty to Davis, relying upon the Michigan Supreme Court's activist interpretation of "contractual immunity."  The Sixth Circuit overturned the lower court's decision, rejected Venture's claim that it owed plaintiff no duty, and returned the case to the District Court for trial.

Court stretches to enforce pre-injury release executed by volunteer

Teresa Theodore volunteered to work at a racetrack in Oakland County.  On her first day, she was required by the racetrack to execute a release which "waives, discharges and covenants not to sue" for any injuries suffered "arising out of or related to the event(s)" held at the racetrack. An undetermined time later, she was struck by Raymond Horenstein's trailer as he was leaving the paddock area.  She sued Horenstein for her injuries, but his insurer persuaded the trial court that her claim against Horenstein was waived by the release she signed when she agreed to volunteer.  The Court of Appeals agreed.

Low overhead on stairs is "open and obvious"

Kevin Romitti was attending a deposition at the offices of Peter Ryan and had to descend a stairway with a low overhead.  Romitti made his way to the conference room safely twice, before striking his head on the third time down.  Perhaps he was disoriented by too many mind-numbing questions from one attorney or another.  In any event, apparently he was seriously hurt and he filed a claim against the owner of the building.

No remedy for fall on icy business sidewalk

Cynthia Brown sued the Alterra Healthcare Corporation after she fell and injured her shoulder on the sidewalk approaching Alterra's building.  Her claim was dismissed before she was allowed to depose employees of the Defendant, and she appealed.  She argued that the dismissal was premature because she should have been allowed to explore what the corporation knew about the icing problem, what had been done about it and how long it had been present.  The Court of Appeals rejected her claims.

General contractor not responsible for wall collapse that caused serious injury

Brian Crumley, a carpenter, suffered very serious injuries on the job when a wall being erected collapsed in a stiff wind.  He sued Multi Building Company, Inc., a lumber supplier, alleging that Multi, the general contractor on site, had been negligent in protecting workers by failing to assure that the wall was "toed in" immediately.  Under Michigan law, a general contractor owes all workers on a site the duty to protect them from known dangers that pose a hazard to multiple employees in a "common work area."

Restaurant not liable for criminal attack on patron

Mauricio Veal was attacked and robbed in the Defendant, V. Veseli,Inc.'s restaurant.  He filed suit claiming that the restaurant's employees were negligent in allowing the several men responsible for the attack to loiter on its premises and in failing to promptly seek police support.  The Court of Appeals pointed to uncontradicted testimony documenting that no one had anticipated the attack and that Mr. Veal left the establishment immediately after the attack to follow his assailants. 

Premises' liability aspect of tree-cutting claim is dismissed; negligence survives

Kamal Fayad agreed to help the Darwichs cut down a tree in their yard.  While Ismail Darwich cut the tree with a chainsaw, Mr. Fayad and Souha Darwich prepared to guide it down with ropes.  Unfortunately, when Ismail finished his cut, Souha dropped her rope and ran, and the tree fell on Fayad.  He filed a negligence action.  The trial court dismissed Fayad's complaint, holding that it sounded only in "premises liability" and that felling the tree was an "open and obvious" danger as to which the Darwichs owed no legal duty.    

The Court of Appeals overturned the summary judgment granted by the trial court, pointing out that in this case, Souha Darwich's alleged duty arose in part from her negligent participation in the tree-felling activity.  Her alleged negligence was not related to her ownership or control of the land where the injury occurred.  Therefore, an ordinary negligence claim had been pleaded and a duty of reasonable care existed; there were sufficient factual allegations to create a material question of negligence which a jury would need to decide.

Tenant who repaired defective handrail cannot sue landlord who installed it

Deborah Marino fell down the stairs in her rented home when a stairway handrail detached from the wall.  She and her husband claimed the handrail had been anchored only in the drywall and not in a wall stud.  Unfortunately, they repaired the handrail and drywall before filing suit for the injuries she suffered.  The appellate court upheld the trial court's decision to exclude any evidence of the manner in which the handrail had been mounted, since the landlord was not allowed the opportunity to inspect the failure before it was repaired.