TOV Injury and Safety Blog

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.

Court rules underwear search for ibuprofen is unconstitutional

On Thursday, the U.S. Supreme Court ruled 8-1 (Justice Thomas the lone dissenter) that searching a 13 year-old's underwear for ibuprofen constituted an illegal search contrary to the Fourth Amendment.  Middle School officials had strip-searched the girl after another student suggested that she might be the source of prescription-strenght ibuprofen taken by another student. 

Their martinis were shaken, not stirred: no trespass or "taking" by Township

Brian Faulknor and Doris Kittle owned a tavern in Dalton Township, Muskegon County.  They refused to sell the Township an easement to construct and maintain a sewer through their property for $3200.00.  The Township then decided to place the sewer under the roadway adjacent to their building, and during construction vibrations from excavation and boring allegedly "substantially" damaged the Plaintiff's structure and fixtures.   Faulknor and Kittle sued, alleged a trespass and an illegal "taking" of their property.

Malpractice claim versus real estate appraiser explained

Michael Dorman sued the appraiser he hired to support his inverse condemnation claim, Gilbert Zook.  Dorman had sued Clinton Township, claiming an illegal "taking" of his right to develop a parcel of real estate.  He claimed that he lost his case because Dorman mistakenly failed to account for the Michigan Land Division Act and subsequently conceded (wrongly) that Dorman could still secure a profit on his development by complying with the Township's zoning requirements.

"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. 

Citizens Insurance ducks an obligation

In 2003, the City of Flint replaced the sidewalk in front of a building insured by Citizens.  The basement, occupied by Legal Services Plan of Eastern Michigan, occupied land up to and underneath the sidewalk.  During construction, the contractors accidentally opened an abandoned coal chute allowing access to the basement.  Over the July 4 weekend, a significant rain deposited 20 inches of surface water from the paved road adjacent to the sidewalk in the basement rooms occupied by the Plan.  The Plan looked to Citizens to cover the damage.

Statute of limitations when there is a "continuing wrong"

One of the least discussed errors of recent Michigan jurisdprudence has been a deliberate confusion and rejection of the concept of a "continuing wrong".  Whether the claim is for a trespass on someone else's property, or  for a professional's continuing malpractice, there are occasions when an error occurs not just on the first day of the wrong--but also on subsequent days.  The so-called Engler Majority turned Michigan jurisprudence on its ear in the 2005 Garg case by deciding that the statute of limitations begins to run the day the first of these continuing errors is made:  a patient litigant who did not run to the courthouse steps is punished for his attempt to resolve matters without suit.

Court emphasizes rejection of "continuing trespass" theory

The Frolings bought a vacant lot in Bloomfield and build a new home.  Thanks to inadequate storm sewers, irrigation at the local country club, neighbors re-shaping the topography and pre-existing drainage, their basement became the collecting spot for a subdivision's surface drainage.  They sued the City, the neighbors, the Country Club and a handful of others, but ultimately left the trial court owing their neighbors more than a quarter million dollars in sanction fees and costs.  On appeal, the higher court left them without recourse for flooding damage, but did reverse the sanction fee and cost decision.