Surveillance Recordings Created by Private Entity “Public Records” Subject to FOIA Disclosure Where Law Enforcement Takes Possession of Such Records in Pending Investigation

In Amberg v. City of Dearborn, released on December 16, 2014, the Michigan Supreme Court has held that video surveillance created by a private entity but handed over to law enforcement officials for a pending misdemeanor investigation were public records subject to disclosure under Michigan’s Freedom of Information Act (FOIA).

The video surveillance was created by the security cameras at a private business.  The plaintiff was an attorney who submitted a FOIA request for the video surveillance to the City of Dearborn Police Department, which was in possession of the video in connection with a pending misdemeanor criminal citation against the attorney’s client.

The trial court and the Court of Appeals had held that the police department was not required to hand over the video surveillance on the basis that it was not a “public record”, having been created by a private entity.

A public record is defined by Michigan Compiled Laws (MCL) 15.232(e) as a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function from the time it is created.  The police department asserted the records were created by a private entity and were not therefore records in their possession in the performance of an official function from the time they were created.

As noted by the Court, while the mere possession of the records does not make them “public records” subject to FOIA disclosure, the fact that the recordings were created by a private entity was not dispositive in the decision whether to disclose the records upon a FOIA request.  The Court holds that what ultimately determines whether such information should be disclosed is whether the public entity from which the information is sought prepared, owned, used, or possessed them in the performance of an official function.  Since the criminal misdemeanor citation was pending and the police department had received the records as evidence for that pending matter, they were “public records” in the possession of the city and the police department in the performance of its official functions.

The Court also holds the plaintiff’s attorney was entitled to costs and attorneys fees for the violation, even though during the pendency of the proceedings disputing the FOIA denial, the surveillance video was ultimately turned over to the attorney.  The Court reasons that the mere fact that plaintiff’s substantive claim for a refusal to comply with FOIA was rendered moot by disclosure of the information after suit was commenced, he ultimately prevailed in the FOIA action, which under the statute entitles him to fees and costs.

 

Equitable Tolling of Medical Malpractice Claim Waiting Period on Supreme Court’s Mini-Oral Argument Calendar

The Michigan Supreme Court has ordered mini-oral argument to be held in two cases addressing a very significant issue dealing with whether trial courts can disregard the notice waiting period required before filing a complaint in a medical malpractice action, either by disregard of the defect or allowing amendment of the complaint under MCL 600.2301.

Here is the Court’s order, Furr v. McLeod Order, which the Court consolidated with another case addressing the same basic issue, Tyra v. Organ Procurement Agency of Michigan, et al., MOAA Order.

I previously wrote about these cases as they were making their way up through the Court of Appeals.  Those prior posts are below:

Equitable Amendment of Complaint Allowed in Med Mal Action

Court of Appeals Impanels Conflict Panel to Consider Whether Trial Courts Can Allow Defective Medical Malpractice Claims to Go Forward

Michigan Supreme Court Reverses Court of Appeals Decision Forcing Workers Compensation Agencies to Remain Open at Certain Locations

The Michigan Supreme Court has reversed the Court of Appeals decision that held the Director of the Michigan Administrative Hearing System and the Director of the Department of Licensing and Regulatory Affairs were required to maintain local offices for litigation of Workers’ Compensation Agency hearings.  Read the opinion here:

Younkin v. Zimmer

In September 2012, the Director of the MAHRS had announced new efforts to reorganize, including closing the Flint office that previously handled workers’ compensation claims and transferring those claims to an office in Dimondale, approximately 70 miles away.

The Plaintiff in the underlying case injured his back while at his job in Flint.  He filed a workers’ compensation claim.  Because of the reorganization, he was required to litigate his claim in Dimondale, rather than in the now-closed Flint office.

He filed a writ of mandamus in Circuit Court to compel the Directors to maintain the Genesee County (Flint) hearing site.  The circuit court issued the writ and the Directors appealed.  The Court of Appeals (M. J. KELLY, P.J., and FORT HOOD, J. (CAVANAGH, J., dissenting)), affirmed, holding that the trial court had not abused its discretion. 304 Mich App 719 (2014).

In a unanimous opinion released November 18, 2014, the Supreme Court reversed, holding the trial court abused its discretion by issuing a writ of mandamus compelling the Directors to hold workers compensation hearings in Flint.

MCL 418.851 provides that a workers’ compensation hearing must be held at the locality where the injury occurred. The Supreme Court reasoned Defendants, in their official capacities as administrators of the workers’ compensation hearing system, interpreted the term “locality” as meaning a district or a definite region. This interpretation was entitled to respectful consideration. Because it did not conflict with the Legislature’s intent, there were no cogent reasons to overrule it.

The Court continued, reasoning that in accordance with the Directors’ interpretation of the statute, they divided the state into 11 reasonably located hearing districts, and workers’ compensation claims were assigned from definite regions of the state to one of those hearing district offices depending on where the injury occurred.

Nothing in the Worker’s Disability Compensation Act, MCL 418.101 et seq., requires that there be a hearing site in every county. While the hearing should be held at a place convenient for parties and their witnesses, it was not unreasonable to conclude that the locality where the injury occurred in this case was Dimondale given the injury occurred in Genesee County and that county falls within the Dimondale district.

The Court concluded although having the hearing in the latter rather than in the former venue would doubtlessly be less convenient for plaintiff, this would not constitute an unreasonable inconvenience. Accordingly, plaintiff did not have a clear legal right to a hearing in Genesee county, and the Directors did not have a clear legal obligation to hold the hearing there.

I previously wrote about this case in an earlier blog here:

Court of Appeals Rules Workers Compensation Hearings Must Be Held in “Locality” Where Injury Occurred Forcing Directors of Administrative Hearing Systems to Reopen Closed Offices Throughout the State

Missing Pane of Glass from Public Bus Shelter Not a Defective or Dangerous Condition Sufficient to State Cause of Action Against Public Bus Authority Under “Public Building” Exception to Governmental Immunity

The Summary Disposition Standard Debate

This case highlights a current conflict among the Court of Appeals.  There is a current “debate” among Court of Appeals panels in recent opinions about the sufficiency of pleading a cause of action against the government when assessing the government’s motion for summary disposition under MCR 2.116(C)(7), which provides for “[e]ntry of judgment, dismissal of the action, or other relief because of…immunity granted by law”.  There is also debate about the extent to which sufficiently pled allegations, without more, can survive a summary disposition motion brought under this court rule pursuant to the Governmental Tort Liability Act (GTLA), and the respective exceptions to governmental immunity being pled by the plaintiff in a given case.

Is it sufficient for a plaintiff to merely plead allegations that, if true, but not proved, would be sufficient to survive a motion for summary disposition filed by the government under MCR 2.116(C)(7)?  Should the trial court decide the factual question before allowing the case to go forward against the government?  Or, should the question be left to a jury (which of course means the case goes to trial)?

Hubbert v. SMART

This is a rather unremarkable case in terms of the outcome, but the majority and dissenting opinions are worth noting for several points.  The plaintiff was injured when he fell through a missing pane of glass on a public bus stop.  Plaintiff filed suit against the public bus authority seeking damages and claiming negligence.

The plaintiff never pled allegations in avoidance of immunity, i.e., never pled that the facts established his case fit with one of the five statutory exceptions to governmental immunity.  In fact, the plaintiff never acknowledged that governmental immunity applied.

The governmental defendant (the public bus authority), included “immunity” in its affirmative defense, and simply conceded the “public building” exception to governmental immunity was the exception under which the plaintiff had to bring her cause of action.  Public bus stops are considered “public buildings” within the meaning of MCL 691.1406 of the Governmental Tort Liability Act (GTLA) (the “public building” exception).  Ali v. City of Detroit, 218 Mich. App. 581, 585 (1996).

The bus authority filed a motion for summary disposition under MCR 2.116(C)(7), (C)(8) and (C)(10), contending that the public building exception did not apply because the missing pane of glass did not constitute a “dangerous or defective condition” within the meaning of the public building exception.

Plaintiff argued there was a genuine issue of material fact concerning whether the missing pane of glass was a “dangerous or defective condition”, and that this was a sufficient question to allow the action to proceed to a jury for consideration.  The trial court agreed and denied the bus authority’s motion.  Pursuant to Michigan Court Rules (MCR) 7.203(A)(1) and MCR 7.202(6)(a)(v), denial of a governmental entity’s motion for summary disposition on immunity grounds under MCR 2.116(C)(7) is appealable by right.

The Court of Appeals, in a 2-1 opinion reversed ordering judgment for the bus authority.  The Court reasoned that, as a matter of law, the missing pane of glass was not a “dangerous or defective” condition within the meaning of the public building exception.

Applying the MCR 2.116(C)(7) Standard –  “Immunity Granted by Law”

Even though the bus authority sought summary disposition under the standards applicable to such motions under all three court rules MCR 2.116(C)(7) (“immunity granted by law”); (C)(8) (“failure to plead or state a claim”); and (C)(10) (“no genuine issue of material fact”), the Court of Appeals majority properly oriented the motion as one falling under (C)(7).

Thus, the Court reasoned, that summary disposition is appropriate under MCR 2.116(C)(7) when a claim is barred by “immunity granted by law”.  Slip Op. at 2-3.  (emphasis added), citing Seldon v. SMART, 297 Mich. App. 427, 432 (2012).  The Court pointed out that the trial court is to resolve the governmental immunity issue at the summary disposition stage as “an issue of law”, “[i]f there are no material facts in dispute or if reasonable minds could not differ regarding the legal effect of the facts.”  Id., citing Norris v. Lincoln Park Police Officers, 292 Mich. App. 574, 578 (2011).

This is not an insignificant detail.  The jurisdictional view of governmental immunity adhered to in Michigan requires that for a circuit court to even have subject-matter jurisdiction over a cause of action filed against the government, the case itself (the underlying facts of the case) must establish that the claim against the government can go forward under one of the legislative exceptions to immunity in the GTLA.  Greenfield Construction Co. v. State Highway Dep’t., 402 Mich. 172, 194 (1978) (stating that “it is well settled that the circuit court is without jurisdiction to entertain an action against the State of Michigan unless that jurisdiction shall have been acquired  by legislative consent).  See also Ross v. Consumers Power Co., 420 Mich. 567 (1984) and Manion v. State Highway Comm’r., 303 Mich. 1 (1942).  As the Supreme Court has recognized: “the state created the courts and so is not subject to them” or their jurisdiction absent explicit legislative consent.  County Road Ass’n of Michigan v. Governor, 287 Mich. App. 95, 118 (2010), citing Pohutski v. City of Allen Park, 465 Mich. 675, 681 (2002).

Such consent comes only in the form of the narrowly applied exceptions to that immunity in the GTLA.  In re Bradley’s Estate, 494 Mich. 367, 389 (2013) (to state a claim for “tort liability” against the government, the only avenue to impose such liability and access any available remedy is through and under the provisions of the GTLA).  Only when the claimant pleads that the facts fall within an exception and proves the facts exist is there evidence of a waiver of the inherent and preexisting immunity granted by law.  Mack v. City of Detroit, 467 Mich. 186, 200-202 (2002) (a plaintiff pleads in avoidance of immunity by stating a claim that fits within a statutory exception).  And, later, the Court in a case I successfully briefed and argued, made clear that, at least with respect to actions against governmental entities, the burden of proof to both plead and prove the case falls within an exception is on the claimant at the outset.  Odom v. Wayne County, 482 Mich. 459 (2008).

In this case, the Court of Appeals properly notes that the governmental immunity issue must be addressed at the summary disposition stage and as a “question of law”.  This properly orients the the preexisting and inherent characteristic of the government’s immunity.  As the Supreme Court has noted on more than one occasion, the government is immune from suit, not just liability, and if it has to expend its resources defending lawsuits all the way to the stage of the case reaching a jury, or a trial judge’s verdict, then immunity will be meaningless.  The government cannot be burdened with the expense of full-scale litigation in every case where a plaintiff merely recites allegations that, if true, would constitute a claim within an exception to immunity.

Conflict in Treatment of Governmental Immunity Motions Under MCR 2.116(C)(7)

Yet, the Court of Appeals is not consistent on this point.  In Kincaid v. Cardwell, 300 Mich. App. 513, 522 (2013), the Court of Appeals noted that where a fact question existed involving application of a bar to suit under MCR 2.116(C)(7), the question had to be submitted to a jury.

More recently, in Yono.v.MDOT.After.Remand.opn (Yono v. Michigan Dep’t of Transportation, Court of Appeals No. 308968 (released September 23, 2014)), the Court of Appeals, while recognizing the conflict of opinions in this area, conflated the (C)(7) standard with the “genuine issue of material fact” standard of (C)(10), as if there was no difference in application of these two court rules when assessing a motion for summary disposition.  This led to the result that a pled (but not necessarily proved) genuine issue of material fact (or a fact dispute) was sufficient to survive the summary disposition stage, even in a case against the government, which then leads to the case being submitted to the finder of fact.

This is error.  If this is the standard, then any well-pled allegation in a complaint setting for the parameters of an exception to immunity, and the factual allegations sufficient to fall within the exception will survive a motion for summary disposition on grounds of “immunity granted by law” under MCR 2.116(C)(7).

The Court of Appeals in this case got it right.  The trial court should decide the question “as a matter of law”.  In such cases, either party has an appeal by right to challenge the merits of the decision in the Court of Appeals, and the Court of Appeals has de novo reviewing authority over the case to check the trial court’s decision.

Otherwise, trial courts have the discretion to allow a case to proceed against the government, which is inconsistent with the jurisdictional view of governmental immunity and contrary to established case law, which preserves the government’s preexisting and inherent immunity from suit and liability in all but a small subset of narrowly applied circumstances.

Here is the Court of Appeals opinion:  hubbert v smart maj.OPN

And, the dissent:  hubbert v. smart .krause.dissent.OPN

Insurers and Businesses Should Always Consider What Options are Available for Insurance Coverage and Recovery of Insurance Assets When Facing a Dispute, Claim or Lawsuit

One of the most important ways insurance companies and businesses can manage their assets and control their liability is to think creatively about insurance and insuring agreements in managing their day-to-day business operations.  Disputes, claims, and yes, lawsuits often arise in the ordinary course of thriving and vibrant businesses.  This is a natural consequence of a successful business managing risk in the process of seeking to maximize profits.

As insurance coverage counsel, I regularly advise businesses and insurance companies as to their defense and indemnity obligations under commercial general liability, errors and omissions, and workers compensation insurance policies, among others.

I have assisted insurance companies and businesses by guiding them through various aspects of coverage, including initial assessment of coverage positions, preparation and drafting of coverage opinions, including preparing related correspondence to the insurers or insureds, and other parties involved, e.g., coverage denials, reservation of rights, etc., and pursuing, where appropriate, declaratory judgment and/or indemnity and subrogation actions with respect to coverage issues.

In this capacity, I have had several significant successes in both state and federal courts in securing judgments for businesses and insurance companies or in forcing agreeable settlements with insureds and other insurance companies.  Some of the cases and issues I have worked on include the following:

 

• Providing coverage analysis and primary litigation support in filing a declaratory judgment action filed in federal court for a major national retail store as to potential coverage and indemnification from an insurer under an “additional insured” provision in a vendor / supplier contract between the store and the manufacturer. I served as primary insurance coverage counsel for the store relating to the underlying case, which was a personal injury / product liability lawsuit against the store involving paralysis of a 15-year old.  The plaintiff jumped into shallow water from a water trampoline manufactured by a company that sold a variety of recreation products in the retailer’s stores throughout the country.  The manufacturer and the retailer had a vendor-supplier agreement in which the manufacturer agreed to add the retailer as an additional insured to its general liability insurance policies, and provide indemnity to it for liability arising out of use of its products.  The insurer had agreed to defend the retailer in the lawsuit in Michigan.    Lawsuits were pending against the manufacturer across the country for injuries suffered due to use of another one of its products.  The manufacturer filed for bankruptcy protection in the 8^th Circuit in Nebraska, after which the insurer pulled out of the defense of the retailer in Michigan.  I prepared a coverage opinion, concluding the insurer was obligated to continue defending the retailer, and I filed a declaratory judgment action in federal court in Michigan despite the bankruptcy stay.  I fended off attempts by the insurer to enforce the bankruptcy stay against the retailer in Michigan, won motions filed for contempt of the stay, and ultimately succeeded in forcing a settlement of the claim on behalf of the retailer for the total amount of the policy limits to which the retailer would have been entitled for coverage of the underlying claims.  This resulted in a $0 payout by the retailer in settlement of the underlying lawsuit in Michigan.

 

• Filing suit against an insurance company in federal court for denial of coverage of an underlying lawsuit involving a shooting at a gas station. The case is Employers Mutual Casualty Company v. Al-Mashadi et al., 2009 WL 2711963.  While the underlying lawsuit was pending in circuit court, I filed the declaratory judgment action in federal court, drafted the summary judgment motion and brief, and argued there was no coverage for the underlying lawsuit and claim arising out of a shooting by an employee of one of his friends when the two were engaged in horseplay with a gun belonging to the gas station’s owner.  After arguing the motion, the district court granted the insurer summary judgment, ruling no coverage was owed by the insurance company in the underlying lawsuit.

 

• Providing emergency litigation and appeal response to a zoning dispute in which an international energy company sought to construct (and did construct) a meteorological testing antenna (MET) a “wind testing tower”, without a proper zoning variance from the insured township. The township’s Zoning Board of Appeals rejected the power company’s appeal for a variance and the power company sued the township.  I stepped in and filed several injunctive motions, including an emergency circuit court appeal to thwart the power company’s efforts to permit the tower to remain as constructed on the property.  The circuit court issued injunctive relief (including an order to tear down the fully constructed tower) and forced the power company to pick up the insurer’s legal fees.

 

• Preparing a coverage opinion and denial of coverage letter in a defective construction / defective product dispute under an occurrence based general liability policy (including products / completed operations hazards coverage). The insured, a cement company, filed suit against contractors and subcontractors, and a city, for failure to pay for delivery of cement.  The defendants filed a counter-suit under various theories and alleged the cement was defective, causing defects in and need for repair to the newly installed sidewalks.  In its ruling in the underlying suit, the trial court concluded the cement met specifications required by the contract and was therefore not defective.  A combination of factors led to the defective sidewalks, but not the delivery by the cement company of a defective product. The weight of authority provides that no “occurrence” arises from the provision of a non-defective product when the manufacturer of that product seeks coverage for damages alleged as the result of incorporation of its product into other work.  Since the insured provided a product that met the specifications required for the municipal sidewalk project there was no “occurrence” and therefore no coverage for the claims in the underlying lawsuit.

 

• Providing a “second look” coverage opinion where in-house coverage counsel concluded there was no coverage for business interruption losses as a result of a large stage collapse and resulting debris field on the floor of the Pontiac Silverdome during summer months when the Silverdome was rented out for various events. The insured supplied the staging, decking and truss grids for the event.  Contractors and subcontractors were employed to erect it.  I analyzed the applicable policy language and concluded coverage was owed on the precise risk involved.  The policy covered “property damage” which included the loss of use of property caused by an occurrence, even if that property had not itself been damaged.  Michigan courts have awarded consequential damages such as “delay damages”, “lost profits”, and “diminution in value and use”, in cases under commercial general liability policies with similar or identical language to the policies covering “occurrences” “because of” “property damage”.  As none of the “business risk” exclusions in the policy applied, and it appeared the stage collapse was not due to the fault of the subcontractors or contractors employed to erect the stage, coverage was arguably owed and the insurer had a duty to defend and potentially indemnify the owner of the Silverdome.

Feel free to call or contact me if your business would like to explore options regarding insurance coverage and recovery.

 

Special Appellate Counsel for Emergency Appeals in State and Federal Court of Appeals and Supreme Court

It is the eve of trial.  The trial court judge, bent on forcing you into an unsavory settlement with opposing counsel, has granted opposing counsel’s motion in limine to exclude your proposed evidence from the jury’s consideration.  This is a key part of your client’s case and without it your client may be facing 100 percent of the responsibility for the damages alleged as a result of the significant allegations in the underlying lawsuit.  Sound familiar?

Is there a way to even the playing field, or, even better, to have the trial court’s errant legal rulings on the motion corrected?  Or, do you simply capitulate?

There is still hope.  And it can be done, even during the trial.

Carson J. Tucker specializes in prosecuting high-stakes, last-minute emergency appeals seeking interlocutory review of suspect legal rulings.  After all, if the trial court is wrong, or even if the Court of Appeals agrees to take a closer look, this can significantly alter the posture of the parties to the lawsuit.

I am experienced and adept at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and ruled upon as soon as possible.

In most cases, these actions have stopped the trial from immediately proceeding.  In many of the cases handled by Mr. Tucker, these actions have even resulted in the creation of precedent from the Michigan Court of Appeals and Michigan Supreme Court that changes the entire make-up of the pending lawsuit.  In the least, this type of action can properly re-orient the parties positions and attitudes with respect to settlement demands.

With adept and efficient appellate counsel ready to assist at a moment’s notice, your case can be quickly analyzed by objective review of the facts of the case, the strengths and weaknesses of the legal issues being addressed, and the potential for success at the appellate level.  It’s never too late to act until your case is submitted!

I have real stories and experiences to share from lawsuits in which our clients and the other law firms we have assisted have been able to save thousands of dollars in litigation costs and, more importantly, in damages awards or forced verdicts because I have been able to step in and make new law, or at least bring the parties together to discuss realistic settlement options.

Please do not hesitate to contact me if you are contemplating an appeal, any appeal.

Supreme Court to Address Interplay (If Any) Between the No-Fault Act and the Governmental Tort Liability Act

Last Friday, September 19, 2014, I participated in a panel discussion at the Negligence Law Section breakout at the state bar conference in Grand Rapids to discuss the Michigan Supreme Court’s upcoming (October 8) hearing of oral arguments in the calendar cases of Hunter v. Sisco, et al, and Hannay v. MDOT, the latter in which I submitted an amicus curiae brief for Michigan Townships Association, and the counties of Macomb, Oakland and Wayne (99705.sc.amicus.curiae.br).

Here is the two-paged handout distributed at the session. (Hunter-Hannay Venn Diagram Final.9.17.2014.1226 and Hunter Hannay page 2).

Based on the outcome of that event, there is still much debate about the result in Hunter (no noneconomic damages can be awarded against the government under the motor vehicle exception to governmental immunity, MCL 691.1405, even though such damages are ordinarily available against “civilian” defendants under Michigan’s Automobile Insurance “No-Fault” Act, MCL 500.3135).

Of course, Hannay came to the opposite conclusion, only with respect to “excess” economic (wage loss) and future earning potential, which is why the cases have been consolidated.

Some issues raised at the discussion concern how to quantify or identify “bodily injury” damages.

I believe this would be medical expenses related to the physical injury, only.  However, such “damages”, and liability therefor, are ordinarily borne by the first-party, no-fault carrier, not the third-party tortfeasor under MCL 500.3135.

Thus, how can any liability be imposed against the government when you mesh the outcome of applying the GTLA and the No-Fault Act to motor vehicle accidents in which the government’s negligent operation of a motor vehicle causes injury.  See the Venn Diagram I created (the overlap, if any, is the real sticking point and where the case law and/or the legislation will have to be reconciled, eventually).

One suggestion I have made is that perhaps the first-party, no-fault carrier can bring a subrogation action against the government if the PIP carrier can prove negligence and injury, just as a PIP carrier might seek subrogation under MCL 500.3109 from another carrier that is otherwise liable according to the law.  In my work on worker’s compensation cases, we see this a lot.  The no-fault carrier will seek to implicate the worker’s compensation carrier claiming the injuries incurred in an auto accident arose out of and in the course of employment, and thus, are the primary responsibility of the worker’s compensation carrier. Under the statute, the no-fault carrier steps into the shoes of the plaintiff seeking recovery of the benefits, and thus, the no-fault carrier would have to prove negligence and liability on the part of the government under the motor vehicle exception.  I think it could be argued MCL 500.3109 would work the same way vis-à-vis the government.  Although, this is just a theory.  Hunter / Hannay are not likely to address this latent issue.

Another issue that arose was the indication that even before the 1965 GTLA accidents caused by government owned/operated motor vehicles allowed for recovery of damages that were similar, if not identical in nature to noneconomic damages, i.e., pain and suffering, mental anguish, etc.

Why is the term “bodily injury” in the GTLA now restricted only to physical injury?  My answer would be the strict construction of statutes waiving the government’s immunity forbid court’s from expanding the meaning of terms.  Although, the counter to that is that the legislature adopted the term in the motor-vehicle exception with the “common law” definition allowing for such expanded damages in the first place.  This would be a good argument if not for the fact that we are discussing governmental immunity from liability and suit.  The assumption is only the legislature can waive the government’s immunity, and therefore, if the liability is to be “expanded” it has to come in express language.  The courts can restrict or limit the meaning of the terms in the GTLA exceptions, but they cannot expand the meaning.  This is well-established in Michigan case law.

Another theory I raised in my amicus brief for MTA / Oakland, Wayne, and Macomb counties was whether the government can ever be liable for first-party PIP benefits under the no-fault act when the motor vehicle exception requires a demonstration of “fault” on the part of the government.

This is also not an issue that will be addressed by Hunter / Hannay, but given the jurisdictional nature of government immunity, and the fact the government is immune from liability unless within the explicit legislative exceptions of the GTLA, it is a question that will have to be answered eventually (even thought the government has presumed it is subject to the No-Fault Act for the more than 40 years of the latter’s existence, and of course, continues to participate in the system as both a No-Fault “PIP” carrier (either self-insured, or through an auto insurance carrier (or both))), and as a presumptive third-party tortfeasor.

The question was also raised why, if Hannay came out as a published opinion before Hunter, which it did, why Hunter did not follow Hannay under the “first out” rule.  Although, that matters little if the Supreme Court has consolidated the cases to address the issues.

Finally, as I noted in my presentation, Hunter actually retained the “threshold injury / serious impairment” analysis even though it rules there are no noneconomic damages available under the No-Fault Act.

What does this mean?  Why would the threshold injury analysis even matter if the government is only responsible for “bodily injury”?  Does this mean that the government is only responsible for serious impairment or threshold “bodily injury” and nothing below, or less than that?

I doubt this is what the COA panel in Hunter meant, but it was a curious statement that they made at the end of the opinion.  Perhaps they were trying to reconcile their opinion with the Hardy v. Oakland County case in which the Supreme Court held that a plaintiff suing under the motor vehicle exception, MCL 691.1405, still had to prove threshold injuries under MCL 500.3135 of the No-Fault Act.

It will be interesting to see oral argument in the case on October 8.

Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade.

Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases:

• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
• Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
• Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
• Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases:

• Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

Effective appellate representation demands different skills than those required by litigation attorneys.  Appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

Below are some of the recent significant cases prosecuted by the Appeals and Legal Research Group.

• Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
• Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
• Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

“Gross Negligence” Exception to Governmental Immunity Under Attack in Cases Against First Responders / Law Enforcement Officers

The Court of Appeals has released two cases that appear to undermine the meaning of the “statutory” “gross negligence” exception, MCL 691.1407(2) under Michigan’s Governmental Tort Liability Act (GTLA). The GTLA, MCL 691.1401 et seq., provides immunity for law enforcement officers and other individual governmental employees engaged in the discharge of a governmental function and while performing duties authorized by their position.  The only exceptions to an individual governmental employee’s immunity are the statutory “gross negligence” exception and the “bad faith / intentional tort” exception, the latter of which was articulated by the Michigan Supreme Court in the seminal case of Odom v. Deputy Christine Kelly and Wayne County, 482 Mich. 459 (2008), a case I successfully briefed and argued in the Supreme Court on behalf of Wayne County.

MCL 691.1407(2) provides that a governmental agency’s employee is “immune from tort liability” caused by the employee “while in the course of employment” if all of the following are true: (1) the employee is acting, or reasonably believes he or she is acting, within the scope of his or her authority; (2) the governmental agency is engaged in the exercise or discharge of a governmental function; and (3) the employee’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. MCL 691.1407(2).

The phrase “gross negligence” in the GTLA is a “statutory standard”, and thus is defined and applied by reference to the statute and the case law interpreting it.  See Costa v. Community Emergency Medical Services, Inc., 475 Mich. 403, 411-412 (2006), see also Odom, supra at 470.  Thus, common-law definitions and applications of “gross negligence” are not binding.

For example, an important product of limiting the standard by statute is exemplified in the Supreme Court’s decision in Robinson v. City of Detroit, 462 Mich. 439 (2000), which ruled, inter alia, that the statute required the employee’s conduct to be “the proximate cause” of the harm.  Id. at 445-446.  This means liability against the governmental employee, in that case law enforcement officers, can be imposed under the gross negligence exception only where the employee’s conduct is “the one, most immediate, efficient, and direct cause…of injur[y]….”  Id.  This is a crucial principle as in many cases the actions and reactions of governmental employees (especially, as in these cases, first responders and law enforcement officers) often occurs as the result of someone else’s negligent or criminal actions.  Since the statute requires to prove “gross negligence” against the employee, it must be shown the employee’s conduct was the proximate cause, i.e., the most immediate, efficient, or direct cause of the injuries complained of, liability can often be avoided by demonstrating the negligence of another, or even a break in the direct causal chain between the officer’s alleged “gross negligence” and the harm complained of.

The statute further defines “gross negligence” as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(7)(a) .

Importantly, although this is a substantive legal issue that has not been definitively resolved, the burden of pleading a cause of action in avoidance of governmental immunity rests on the claimant. Compare Mack v. City of Detroit 467 Mich. 186 (2002), with Odom v. Wayne County, 482 Mich. 459 (2008).  The principle established in Mack is based on the jurisdictional principle of governmental immunity adhered to in Michigan.  Therefore, “immunity” is an inherent characteristic of government and cannot be waived without explicit consent of the Legislature.  Thus, merely pleading facts in avoidance of immunity, without more, is insufficient to invoke the subject-matter jurisdiction of the courts over the cause of action.

Basically, allegations in a complaint should be supported by undisputed facts in order to lift the veil of immunity protecting the government.  However, this is not how the courts have interpreted and applied the principle of governmental immunity.  In Odom, supra, the Court made a distinction between actions brought against governmental entities, and actions brought against individual governmental employees.  In the latter case, for some unexplained reason, the Court noted that plaintiff’s did not bear the burden of pleading and proving an action in avoidance of immunity.  The ruling was not dispositive in the case, and thus, the case itself does not serve as precedent for the principle stated.

In these two recent cases, however, this application led the courts to find “questions of fact” based on alleged disputed evidence, and the allegations in the plaintiffs’ complaint alone, which were not necessarily supported by demonstrations of undisputed fact.

The facts of these two cases are remarkable.  In Estate of Young v. Pierce, the defendant, an emergency “first responder” employed by Montcalm County was responding to an emergency dispatch when he ran through a stop sign and crossed into an intersection.  His vehicle struck another vehicle killing the two occupants.  The Court of Appeals notes it was undisputed that the defendant ran through the stop sign, and that traffic on the cross road had the right of way. According to witnesses, the defendant was traveling at a high rate of speed (estimated at 80 mph) approximately 30 seconds before he arrived at the intersection; he had not activated his emergency lights or sirens, and he did not stop or slow down at the intersection.  The defendant claimed he did slow down and look before entering the intersection.  He also testified that he had activated his siren.

The trial court denied summary disposition on governmental immunity grounds per MCR 2.116(C)(7).  The Court of Appeals affirmed.  The Court noted there were “disputed factual” questions that could not be resolved without referring those questions to the scrutiny of a trial by jury.  Principally, the Court of Appeals panel noted the question of whether the defendant’s conduct rose to the statutory standard of “gross negligence” sufficient to withstand the governmental immunity defense was a question of fact to be resolved by the jury.

In Howard v. Pena, the defendant, a state trooper got lost while driving to a scheduled event for which he was assigned to provide law enforcement assistance.  He made a u-turn on a one-way street and crashed head-on into the plaintiff’s vehicle.  The plaintiff suffered serious injuries.  Testimony and other evidence presented demonstrated that there were signs indicating that the street was one-way.  The state trooper testified he was aware of the traffic regulations, but did not know that he was turning the wrong way onto a one-way road.

On reconsideration of an earlier dismissal order, the trial court ruled that because defendant had admitted to ignoring certain traffic control devices in violation of the law there was a question of fact as to whether his conduct rose to the level of gross negligence.

The Court of Appeals affirmed.  The Court applied the pleading rule that all allegations favored plaintiff, and thus, a question of fact remained as to whether the defendant’s conduct was “grossly negligent”.

These two cases highlight separate extant problems in the application by lower appellate courts of the statutory “gross negligence” standard.  In Estate of Young, supra, the Court allowed unsupported factual allegations to substitute for the type of supported factual allegations that should be required to prove in avoidance of immunity.  The Court of Appeals has stated, and the Supreme Court has agreed on more than one occasion, that governmental immunity means more than immunity from liability; it is supposed to provide immunity from litigation, i.e., the costs and expenditure of time and resources the government must commit to defend lawsuits based only on the unsupported allegations in a complaint.  If immunity from litigation can be avoided simply by factual allegations and unsupported claims then the purpose of immunity is irrelevant.  While the factual dispute in this case is whether and to what extent the defendant heeded the stop sign and provided proper warning, there was no question that he was responding to an emergency.  And, despite how the lower appellate courts have applied “gross negligence”, it is a standard that requires nearly culpable conduct, recklessness, and a demonstration of lack of care or compassion about the consequences of one’s conduct.  It is a standard that should be difficult to prove.

In Howard, the issue is a bit more subtle.  The lower court, and apparently, the Court of Appeals, latched on to the fact that the state trooper knew and disregarded the basic rules of traffic regulation.  But the panel does not demonstrate that there were factual disputes about the defendant’s state of mind.  Thus, although the trooper was not responding to an emergency and may have had more time to heed the conditions of traffic and his whereabouts, it seems the panel substitutes a disregard for the traffic regulations, for the statutory standard which requires a showing of a mental state rising to the level of reckless disregard and lack of concern about whether injury results in engagement of the conduct at issue.  The analysis in the latter case may have been sound if there was direct evidence that the trooper was intentionally turning the wrong way to get to the location he was supposed to be at on time.  In other words, if there was proof that the trooper knew he was turning the wrong way, and did so anyway because it was a short cut to the venue.  That seems to be the type of proof required by the statute as a reckless disregard and a willful ignorance of the potential consequences.

These two cases present difficult factual circumstances.  However, the rulings of law appear to allow unwarranted expansion of the “gross negligence” exception.  It will be interesting to see whether further appellate review will occur.

Carson J. Tucker has participated in and argued some of the most significant governmental immunity cases in Michigan during the past decade.

Mr. Tucker presented direct representation to the governmental defendants and prosecuted the entire appeal, including all appellate briefings and oral arguments before the Court of Appeals and Supreme Court in the following cases:

• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Atkins v. SMART, 492 Mich. 707 (August 20, 2012), application granted, and briefed and argued by Carson J. Tucker in the Supreme Court
• Gentry v. Wayne County Deputy Sheriff Daniel Carmona, unpublished opinion of hte Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580), briefed and argued by Carson J. Tucker in the Court of Appeals
• Hamed v. Wayne County, 490 Mich. 1 (July 29, 2011), briefed and argued by Carson J. Tucker in the Court of Appeals and Supreme Court
• Odom v. Wayne County, 482 Mich. 459 (December 30, 2008), application for leave to appeal granted, and briefed and argued by Carson J. Tucker in the Supreme Court

In addition, Mr. Tucker has provided direct support to governmental entities in filing “friend of the court”, i.e., amicus curiae briefs in support of the governmental defendants in the following cases:

• Yono v. MDOT, ___ Mich. App. ___ (2014), after remand order, amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• State Farm v. MMRMA, amicus curiae in Supreme Court for Oakland County, Wayne County, Macomb County, and Wayne County in support of MMRMA’s application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ (2014), application granted and consolidated with Hunter v. Sisco, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae in Michigan Supreme Court for Michigan Municipal League, et al., by Carson J. Tucker

Effective appellate representation demands different skills than those required by litigation attorneys.  Appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

Below are some of the recent significant cases prosecuted by the Appeals and Legal Research Group.

• Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
• Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
• Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

“Intentional Tort Exception” to Exclusive Remedy Provision of Workers Compensation Act Did Not Apply to Employee’s Claim of Injury by Allegedly Defective Machinery

Yesterday, the Michigan Supreme Court issued an order summarily reversing the published decision of the Court of Appeals in Thomai.v.MIBA Hydramechanica Corp., et al, 303 Mich. App. 196 (2013), a case in which the Court of Appeals allowed a circuit court suit to proceed against a manufacturer on the basis that the employee had sufficient basis to proceed under the intentional tort exception to the exclusive remedy provisions of the Michigan Workers’ Disability Compensation Act (WDCA), MCL 418.101 et seq.

The plaintiff was injured while operating a machine at work.  The machine leaked oil onto the floor and workers were constantly required to wipe up the oil with rags to keep the floor and work area dry.  While cleaning up the oil, the plaintiff’s arm became trapped in the machine.  He filed suit in circuit court, which dismissed the action, citing MCL 418.131(1) (the “intentional tort” exception to the exclusive remedy provisions of the WDCA).  The exclusive remedy in Michigan for workplace injuries is under the provisions of the WDCA.

In its published opinion, the Court of Appeals reversed, holding the statute, as well as prior Supreme Court precedent, allows this exception to apply to “deliberate acts” by the employer that are shown to have occurred over a period of time. Here, the allegation is that the machine that injured the plaintiff was in disrepair and needed constant maintenance.  Since the employer knew about this, but did nothing about it, the act of the employer being deliberate could constitute the “intentional” act needed to bring the case out of the exclusive remedy provision of the WDCA.

In its order, thomai.v.MIBA.order.reverse.coa, the Supreme Court notes the trial court gave the plaintiff sufficient time to prove the necessary elements of the intentional tort exception, and, after properly applying those elements to the facts that were in the record, properly dismissed the claim.  The Court therefore reverses the Court of Appeals’ decision noting:  “There is simply no evidence in the record to establish that the defendants wilfully disregarded knowledge that an injury was certain to occur to the plaintiff from his operation of the grooving machine.”

It is also worth noting, although the trial court did not dismiss on these grounds, that the Michigan Workers’ Compensation Agency has primary and exclusive jurisdiction over claims that should be filed under the WDCA, at least at the commencement of an action. On the basis of Michigan Constitutional authority of administrative agencies, as well as on the statutory jurisdiction of circuit courts, the question of compensation for injuries sustained by employees while at work resides exclusively within the purview of the workers’ compensation agency and the automatic benefits and remedies available under the WDCA.  If, during the course of discovery, it is determined that the “intentional tort” exception may apply, then, and only then, should a circuit court exercise jurisdiction over the claim.

For more than a century, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

• Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker
• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
• Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

Retail Storeowner’s to Face Challenge on Unsafe Aisle Claim in Premises Liability Suit

The Michigan Court of Appeals has issued a 2-1 published opinion and requested a conflict panel under Michigan Court Rule 7.215(J)(2) to address whether retail store owners owe a duty to keep aisles reasonably safe in a case in which the plaintiff tripped over a protruding end-cap platform.  In Quinto v. Woodward Detroit CVS, et al., the Court of Appeals, bound to follow its own precedent in Kennedy v. Great Atl. & Pacific Tea Co., 274 Mich. App. 710 (2007) per MCR 7.215(J)(1) (precedent established by a Court of Appeals opinion published on or after November 1, 1990 is binding on subsequent panels), nonetheless ruled that “consistent with Supreme Court case law” the merchandise-display aisles of a self-service retail store present particular circumstances such that the “open and obvious” doctrine does not eliminate the duty of the store owner to make those aisles reasonably safe for its customers-invitees.  However, the panel was unable to reverse the trial court’s grant of summary judgment for the store because of the precedential effect of its 2007 opinion in Kennedy.

The plaintiff alleged she tripped and fell on a protruding platform on the end cap display of one of the store’s aisles.  Testimony from the store indicated the platform was empty, not being used at the time, and could have easily been removed.  The plaintiff further testified she was looking up and at the merchandise in the aisles while shopping and therefore did not see the obstruction.

The majority reasoned that no Michigan Supreme Court case had held that the “open and obvious” doctrine would apply to the factual circumstances presented by the case.  The “open and obvious” doctrine is a defense in a premises liability suit that allows the business premises owner to avoid liability where the particular hazard alleged to have been the cause of the plaintiff’s injury was “open and obvious”, and therefore visible to one who takes reasonable care for their surroundings while a business invitee at the premises owner’s establishment.  The majority panel here uses the factual uniqueness of the case and the absence of Michigan Supreme Court precedent applying the “open and obvious” doctrine where “distractions” diverted the plaintiff’s attention away from the hazardous condition, even if “open and obvious”, to conclude it would reverse the trial court’s grant of summary judgment for the store, but for the binding precedent of the Kennedy case.

Kennedy relied on the Supreme Court’s decision in Lugo v. Ameritech, 464 Mich. 512, 519-520 (2001), and held the presence of distractions does not obviate the “open and obvious” doctrine, and therefore, a store owner did not have a duty beyond that of a reasonable store owner to maintain safe aisles.

The dissent, Judge Cavanaugh, would not request a conflict panel resolve the case.  He reasons that the majority would impose a heightened duty of care on self-service retail store owners after concluding that merchandise displays and advertisements cause customers to be so distracted that they cannot reasonably be expected to observe even an open and obvious condition that exists in an aisle while shopping, i.e., a condition that “an average person with ordinary intelligence would have discovered [ ] upon casual inspection.” Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012).

It does appear the majority puts form over substance.  The duty a store owner has is to maintain the premises in a reasonably safe condition.  Pallets and other objects of retail merchandise actually blocking the aisles and/or in the aisles are usually open and obvious – like inventory being restocked.  It might be a different story if a single pallet, unoccupied by any merchandise, were left in the middle or at the end of an aisle.  In such a case, the ordinary distractions of a retail merchandise aisle (products and advertisements) might legitimately come into play in obviating even an open and obvious hazardous condition.  This latter principle is the one the majority refers to as being left open by Lugo.

However, it is a stretch to say that the platform in this particular case, which appears to be nothing more than an ordinary physical extension, whether appended or not, to the end of a retail merchant’s aisle display stand is something that would fall into the category of hazards or hazardous conditions blocking, obstructing or otherwise impeding the reasonable pathways through the store’s aisles.  Without this conclusion, one cannot begin to discuss the “open and obvious” defense at all.  It is not an unreasonably dangerous or hazardous condition as it does not implicate the duty to maintain the premises in a reasonably safe condition.

Secondly, even if the protruding shelf extended further than the bulk of the aisle display stand, the majority fails to differentiate it from any other visibly open and obvious hazardous condition, like blue liquid detergent on a white or grey surface, or squashed grapes laying on the floor in the produce section.  The “open and obvious” doctrine applies to the latter situation, as much as it should the former, as noted by Judge Cavanaugh.

Perhaps the question is whether the plaintiff in such a case ultimately testifies that he or she noticed the “condition” either before or after the injury.  If there is no indication the plaintiff noticed or reasonably should have noticed the condition, then the open and obvious defense does not even apply.

However, to forward this case as a vehicle to effect any significant change in the well-established law of premises liability, and, particularly, the open and obvious defense is, as the dissenting Judge points out, misguided.  The facts are far too generic.  If a conflict panel is ultimately convened, it will be interesting to see if the outcome is different.

For more than a century, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.

We are experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

• Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
• Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted
• Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
• State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
• Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
• Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
• Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
• Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
• Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
• Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
• Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
• McMurtrie v Eaton Corp, 490 Mich 976 (2011)
• Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
• Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
• Stokes v Chrysler, 481 Mich 266 (2008)
• Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
• Rakestraw v Gen Dynamics, 469 Mich 220 (2003)