Michigan Injury Lawyer Blog

December 17, 2017

Michigan Appeals Court Upholds Ruling for Defendants in Dog Attack Case

Plaintiffs appealed an order granting summary disposition in favor of the defendant in a Michigan premises liability action involving an attack on the plaintiffs’ dog, Axle. The Michigan Court of Appeals affirmed.

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On May 13, 2015, the plaintiff brought Axle with her out into her backyard to do some gardening. Soon afterward, she left Axle out and went inside to retrieve some gloves. During her brief absence, the plaintiff heard barking at the back fence of her yard. She ran outside and saw Axle on the opposite side of her fence and two pit bulls “on top of him.” The plaintiff observed three or four men in the other yard, one of whom had a shovel and was attempting to beat the pit bulls off of Axle. The plaintiff also grabbed a shovel and cut her hand on the fence as she reached over to help. Eventually, they succeeded in stopping the attack. The plaintiff called Axle’s co-owner, and the two took Axle to a veterinary clinic for emergency care. Axle required specialty care about a week after the incident. Combined, the veterinary bills amounted to around $8,000.

Later, it was discovered that the two dogs belonged to one of several tenants living in the house behind the plaintiff’s backyard. The house where the tenant, his dogs, and his co-tenants resided was owned by their landlord, the defendant.

December 12, 2017

Michigan Appeals Court Allows Slip and Fall Case to Move Forward

by Neumann Law Group

A defendant appealed an order denying his motion for summary disposition in a Michigan slip and fall case. The Michigan Court of Appeals reversed and remanded for the entry of an order granting the defendant’s motion for summary disposition.

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On September 14, 2012, the plaintiff was in the defendant’s backyard, sitting by a fire that had been made in the defendant’s fire pit. The fire pit had been constructed that day and consisted of a corrugated metal fire ring set in a hole surrounded by a circular wall of landscaping blocks that was about nine inches tall. The area around the fire pit was covered with pea gravel. The plaintiff had helped spread and pat down that gravel the previous day. The plaintiff had been dating the defendant off and on since about 2004, and she had been to the defendant’s home hundreds of times.

On the night she fell, the plaintiff and the defendant were sitting in chairs by the fire pit drinking wine. The plaintiff was wearing rubber flip flop sandals and had her feet resting on top of the block wall surrounding the fire ring. At some point, the plaintiff felt too hot and decided to move her chair further away from the fire as the defendant was walking toward his house to get something. The plaintiff stood up and then turned around to grab the arms of the chair to move it, with her feet between the chair and the fire pit. As she leaned over to take hold of the chair, her feet started sliding backwards on the gravel, down a slight slope, until she lost her balance and fell backwards into the fire pit, causing her to sustain significant burns.

December 5, 2017

Michigan Appeals Court Holds Small Claims Judgment Did Not Bar Subsequent Circuit Court Action

by Neumann Law Group

A plaintiff appealed the lower court’s grant of summary disposition under MCR 2.116(C)(7) in favor of the defendant in a Michigan motorcycle accident case. The circuit court determined that the small claims judgment the plaintiff obtained against the defendant for damage to his motorcycle barred his subsequent circuit court action against her for bodily injuries because both claims arose from the same accident. The Michigan Court of Appeals reversed and remanded.

In July 2013, the defendant drove through an intersection and hit the plaintiff, who was riding his motorcycle. The responding police officer determined that the defendant failed to yield. The plaintiff brought a claim in the small claims division in March 2014, stating that the accident destroyed his motorcycle and caused him bodily injuries. The plaintiff explained that he did not have collision insurance on the motorcycle, which would have cost one-fourth of the motorcycle’s estimated $1,000 value. Consequently, the plaintiff asked for $900 because he expected to sell what was left of the motorcycle for $100. He obtained a judgment of $960, including $900 in damages and $60 in costs.

The plaintiff subsequently filed a complaint in the circuit court in July 2014 against the defendants (the driver and Frankenmuth Mutual Insurance Company) for claims arising out of the collision. He alleged that the driver’s negligence caused or exacerbated a neck injury that required surgery. The plaintiff agreed to dismiss one of his two claims against Frankenmuth, and Frankenmuth later settled his remaining claim.

November 15, 2017

Michigan Appeals Court Overturns Future Medical Expenses Damages in Personal Injury Case

by Neumann Law Group

The defendant appealed from a judgment entered after a jury verdict in a Michigan premises liability action. The Michigan Court of Appeals affirmed the trial judge’s denial of the defendant’s motion for judgment notwithstanding the verdict. The appeals court also affirmed the trial judge’s denial of the defendant’s motion for a new trial as to damages with the exception of those based upon past and future medical expenses. chair

While shopping at the defendant’s store, the plaintiff asked for assistance with some folding metal chairs that were located on a top shelf. An employee attempted to manipulate that stack of chairs, and they fell from the top shelf onto the plaintiff’s head. The plaintiff sued the defendant’s corporation, which, though it contested fault, did not contest that if the jury found its employee at fault, it would be liable under respondeat superior.

On appeal, the defendant first contended that the trial court erred by denying its motion for a directed verdict, in which it claimed that it had no duty to the plaintiff, based on the open and obvious danger doctrine. The appeals court agreed with the trial court that this motion was properly denied on both procedural and substantive grounds.

November 8, 2017

Michigan Appeals Court Affirms Holding for Defendant in Applebee’s Slip-and-Fall Case

by Neumann Law Group

Plaintiff appealed trial court’s grant of summary disposition in favor of defendant in a premises liability slip-and-fall action. Plaintiff was a business invitee at defendant’s Applebee’s Restaurant, walked to the restroom, and on her way back slipped and fell on an area of tiled flooring in front of the kitchen. After her fall, plaintiff noticed an oily residue on her hands and knees. Plaintiff contends that defendant knew or should have been aware of the condition of the floor and failed to properly maintain the premises. The trial court granted summary disposition upon concluding that plaintiff had failed to establish a genuine question of fact whether defendant had notice of or created the dangerous condition. The Michigan Court of Appeals affirmed.

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The appeals court first noted that the trial court properly deemed this a premises liability action rather than a negligence action, because plaintiff’s injury arose from an allegedly dangerous condition on the land. A plaintiff in a premises liability action has the burden to prove (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages. A premises owner breaches its duty of care when it knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect. When there is no evidence to show that a defendant had actual knowledge of the condition, the issue is whether defendant had constructive notice. Constructive notice is established if the evidence demonstrates that the condition is of such a character, or has existed for a sufficient length of time, that the landowner should have had knowledge of it. When the landowner or his agent creates the dangerous condition, active negligence exists, and proof of notice is not required.

Plaintiff did not assert that defendant had actual knowledge of the condition of the floor. The appeals court concluded plaintiff failed to prove that defendant had constructive notice of the defect by presenting evidence that the hazard was of such a character, or had existed for a sufficient time, that a reasonable premises possessor would have discovered it. By her own testimony, she had traversed the same area of the floor on her way to the restroom without noticing anything wrong, and she opined that it was “different” on the way back when she fell. Indeed, plaintiff did not observe any grease on the floor at all, but rather only on her hands and knees; other witnesses testified that they inspected the area after the fall and saw no grease or oil on the floor.

November 1, 2017

Michigan Appeals Court Holds Plaintiff’s Negligence Claim is Barred By Governmental Immunity

by Neumann Law Group

A defendant appealed an August 17, 2016 order denying his motion for summary disposition in an action arising out of injuries sustained by the plaintiff when he was riding his motorcycle, and a gas main exploded. The Michigan Court of Appeals reversed and remanded the Michigan motorcycle accident case for the entry of an order awarding summary disposition in favor of the defendant.

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On appeal, the defendant argued that the trial court erred in denying his motion for summary disposition, arguing that the plaintiff’s claim was barred by governmental immunity under the Governmental Tort Liability Act (GTLA), and there was no question of fact regarding whether he acted in a grossly negligent manner.

Except under certain circumstances, the GTLA provides immunity to governmental employees from tort liability. For tort claims involving alleged negligence, lower-level governmental employees such as the defendant are entitled to immunity if the following three criteria are met: (1) they are acting or reasonably believe they are acting within the scope of their authority, (2) they are engaged in the exercise or discharge of a governmental function, and (3) their conduct does not amount to gross negligence that is the proximate cause of the injury or damage. In this case, the plaintiff did not dispute that the defendant was acting within the scope of his authority, or that the defendant was engaged in the exercise or discharge of a government function. The central issue before the appeals court therefore was whether there was a question of fact regarding whether the defendant’s conduct amounted to gross negligence.

October 18, 2017

Michigan Supreme Court Agrees to Hear Golf Cart Injury Case

by Neumann Law Group

The Michigan Supreme Court has agreed to hear a Michigan sports accident case involving a golf cart injury from May 2013. The plaintiff and the defendant were playing the 17th hole at Farmington Hills Golf Club when the defendant struck the plaintiff with his cart. The plaintiff was hit in his rear end and knocked onto the ground. He was then struck a second time when the golf cart rolled over him. The plaintiff sued the defendant for negligence in 2014.

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Prior to trial, the plaintiff moved for the trial court to hold that the defendant was negligent as a matter of law and that the case should proceed to trial on the issue of damages. The defendant argued the motion was improper because it cited an incorrect standard of review. The defendant further argued that reckless misconduct was the applicable standard of care because the parties were participating in a recreational activity when the injury occurred. The trial court denied the plaintiff’s motion, finding that the motion in limine contained factual issues the jury should decide.

At trial, both parties offered testimony regarding the defendant’s conduct on the golf course. The plaintiff agreed that the defendant was being careless–rather than reckless–when the collision occurred. Ultimately, the Oakland County jury concluded that the defendant was not reckless, and the court entered a judgment of no cause of action against the plaintiff.

October 11, 2017

Michigan Appeals Court Holds Trial Court Improperly Struck Expert Testimony in Medical Malpractice Case

by Neumann Law Group

On December 19, 2012, a doctor performed a Roux-en-Y gastric bypass and hernia repair on a patient. The doctor performed the gastric bypass procedure laparoscopically, but he found it necessary to open the abdomen to complete the hernia repair. During his recovery, the plaintiff vomited numerous times, including his intestinal contents. The doctor determined that the plaintiff needed a second surgery to repair an acute small bowel obstruction, which he believed was related to the hernia repair. On December 21, 2012, he operated on the plaintiff for the small bowel obstruction. The doctor and the anesthesiologist discussed whether to use a nasogastric (NG) tube, but the doctor decided against it because of the risk of perforating the fresh anastomosis from the gastric bypass procedure. The plaintiff subsequently aspirated, causing aspiration pneumonitis that in turn caused adult respiratory distress syndrome (ARDS), a stage IV bed sore, and neuropathy in the plaintiff’s legs.

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The plaintiff filed a Michigan medical malpractice action against the defendants, alleging that the standard of care was breached by the failure to place an NG tube before the second surgery, although one was placed after the plaintiff aspirated. Both parties retained expert witnesses who disputed whether the doctor should have inserted an NG tube to avoid aspiration before the plaintiff’s second surgery.

Following discovery, the plaintiff filed a motion to strike the testimony of the defendants’ two expert witnesses. He argued that the experts’ opinions that an NG tube should not have been placed before the second surgery were based solely on their own personal opinions and experience. Therefore, he argued the defendants’ experts’ opinions were scientifically unreliable and should be precluded under MCL 600.2955 and MRE 702. Furthermore, the plaintiff argued that one of them incorrectly defined “standard of care” as “[w]hat a prudent individual of similar experience and expertise would do,” and he incorrectly applied a local, rather than a national, standard of care.

October 4, 2017

Federal Court Allows Excessive Force Claim Against Michigan State Police to Go Forward

by Neumann Law Group

In a 42 U.S.C. § 1983 excessive force case, a plaintiff alleged two defendant Michigan state troopers struck him with their police cruiser, tased him, and forced him to stand and walk on his injured left leg after he dislocated his hip. The defendants filed a motion for summary judgment, arguing that they were entitled to qualified immunity based on their police cruiser’s dash-cam video of the pursuit and incident. The defendants further argued that the plaintiff ran into their parked vehicle and was therefore responsible for his own injuries.

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In addition to his excessive force claim, the plaintiff alleged a state law claim of gross negligence against the officers. They argued that his gross negligence claim should be dismissed because the factual allegations pled supported an intentional tort claim only. The United States District Court for the Eastern District of Michigan denied their motion for summary judgment as to the § 1983 claim for excessive force but granted the summary judgment motion as to the gross negligence claim.

The court first analyzed whether the defendants were entitled to summary judgment on the excessive force claim brought under § 1983. The defendants argued qualified immunity shielded them from liability. Qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The court employs a two-step inquiry in deciding qualified immunity questions. First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff shown that a constitutional violation has occurred? Second, was the right clearly established at the time of the violation?

September 20, 2017

Michigan Man Sues Hip-Hop Group For Concert Injury

by Neumann Law Group

A Michigan man has filed suit against an Atlanta-based hip-hop duo for hitting his nose with a water bottle during a show. Court documents signify that the plaintiff–who has not been identified–attended a show in October 2016, at which the rappers recklessly launched full water bottles into the audience. One hit the plaintiff directly in the face, allegedly leaving him with a migraine and permanent scarring.

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The plaintiff claimed the water bottle was catapulted forcefully enough to rip off a “chunk of his face.” He was sent via ambulance to the hospital, where they determined that he would be permanently disfigured and scarred. He filed suit for assault, battery, and negligence. He is seeking damages for medical fees, as well as punitive damages.

This isn’t the only lawsuit of its kind. Also this month, one of Katy Perry’s stagehands claimed she lost a toe while working on Perry’s tour. Christina Fish was hired for Perry’s 2014 international tour. At a North Carolina show, a wall Fish was asked to move got stuck and rolled over her foot. Her toe allegedly became gangrenous and eventually needed to be amputated. Fish is suing Perry, Live Nation, and several production companies for damages.