Gross Negligence

August 26, 2020

Lawsuits against 3M for hearing loss caused by defective earplugs score major victory

Soldier-200x300 On July 28, 2020, a Florida federal court ruling breached the central defense against claims certain military earplugs were defective, damaging the ear and causing hearing loss. The lawsuits claim the earplugs were improperly designed, and did not completely block loud noises common to the military, such as gunfire and or the operation of heavy machinery or vehicles. Neumann Law Group has previously written about the earplug litigation, and you can read that article here.

The defendant, 3M, attempted to invoke the ‘government contractor defense,” a doctrine that would relieve it of any liability even if it were proven to have produced and sold a defective product to the military. The Supreme Court articulated the government contractor defense in Boyle v. United Technologies Corporation, 487 US 500 (1988), which involved a wrongful death complaint made against a company that produced military helicopters—the plaintiff alleged the escape system in the helicopter was poorly designed, causing the death of a pilot.

The jury in Boyle found that the manufacturer was in fact negligent when it designed the helicopter, but the Supreme Court would eventually uphold an appellate reversal of the verdict. It outlined the strong federal interest in military equipment and concluded those interests outweighed any state law claims, but only when the federal government gave reasonably precise specifications for the equipment, the equipment conformed to the specifications, and the supplier warned the federal government of the danger involved in using the equipment to the best of its knowledge.

March 25, 2020

The safety of stent assisted coiling to treat brain aneurysm is in question

by Neumann Law Group

Dark-Hospital-300x191 In the 1990s, the use of a neurovascular stent for a procedure call “stent-assisted coiling” was considered a breakthrough treatment for treating brain aneurysms. The medical device offered a non-surgical method to address weak spots in blood vessels in the brain. An aneurysm occurs when a weak point in a vessel allows blood to bulge out the vessel wall. If the aneurysm bursts, it can cause traumatic consequences, particularly when the aneurysm is located in the brain.

A non-stent assisted coiling treatment for an aneurysm involved running a stint from a patient’s leg up into the location of the aneurysm in the brain. The catheter would then inject a string of soft platinum into the aneurysm, which coils upon itself within the “bubble” of the aneurysm. After the platinum was fully deployed, the blood in the aneurysm clots along the coil and eventually fills the either aneurysm, such that is no longer poses the threat of rupture.

The procedure described above worked well, unless the aneurism had a “wide neck.” Where a normal aneurysm looks like a bubble stuck on the side of the vessel, a wide neck aneurysm looks more like a semi-circle. Instead of having a small weak spot in the vessel bulge out into a bubble, the wide neck variety involves a larger weak spot that expands the vessel in a distorted manner. Introducing the platinum coil into the aneurysm is not feasible, as the coil is too exposed to the blood flow and will not remain in place.

February 12, 2019

Michigan Court Develops New Standard in Accidents Involving Recreational Activities

by Neumann Law Group

Photo Credit: BLACKWHITEPAILYN / Shutterstock.com

Last year, the state supreme court issued an opinion in a Michigan personal injury case requiring the court to determine the appropriate analysis to use in cases involving injuries that were obtained while engaging in a recreational activity.

The Facts of the Case

According to the court’s recitation of the facts, the plaintiff was playing a game of golf with the defendant. During the game, the defendant allegedly ran over the plaintiff’s foot with the golf cart the two were using to navigate the course. Both the plaintiff and the defendant offered very different versions of the facts.

The plaintiff filed a personal injury lawsuit against the defendant, claiming that the defendant’s negligence caused his injuries. The plaintiff asked the trial court to hold that the defendant was liable as a matter of law. The defendant argued that, because the two were engaged in a recreational activity, he could only be held responsible if he was found to have engaged in “reckless misconduct.” Because the plaintiff did not claim that the defendant was reckless, the defendant argued that the case should be dismissed.

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.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.

The plaintiff appealed from the trial court’s judgment on the ground that the trial court applied an incorrect standard of care. In December 2016, the appeals court agreed and concluded that the trial court applied an incorrect standard of care. The court reasoned that it could not assume from the jury’s verdict finding that the defendant was not reckless (a higher standard than negligence) that the jury also would have concluded that the defendant was not negligent. The appeals court also found it clear from the parties’ testimony at trial that there remained a question of fact for the jury as to whether the defendant breached his duty of ordinary care. Therefore, the appeals court vacated the jury’s verdict, reversed the trial court’s order finding that reckless misconduct, as opposed to ordinary negligence, was the applicable standard under the circumstances of this case, and remanded for further proceedings.

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.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?

The district court first found that, viewing the evidence in the light most favorable to the plaintiff, the individual police officers were not entitled to qualified immunity because genuine issues of material fact existed as to whether the officers used excessive force. The defendants argued they were entitled to qualified immunity based on the dash-cam video and the plaintiff’s signed statement, given at the hospital, that he slipped on the mud and ran into the police cruiser himself. But the medical records showed that he suffered a very serious injury involving the dislocation of his hip and a comminuted fracture of the left acetabulum, which required traction, surgery, six days of hospitalization, and a long period of recovery in a rehabilitation center. His treating physician noted that although police first told him that the plaintiff had run into the police car, the patient later told him he had been hit by the police car. In fact, numerous notations were set forth in the medical records stating that the plaintiff reported that he was struck by the police cruiser, which ran over his left leg. Given the severity of his injuries, it appeared plausible that the police cruiser struck him rather than that he merely ran into the vehicle himself.

August 9, 2017

Michigan Appeals Court Grants Summary Judgment to Defendants in Sports Accident Case

by Neumann Law Group

A plaintiff filed a Michigan sports accident case following injuries he sustained while playing softball at a sports complex operated by defendant Canton Township. Another defendant is an employee of Canton Township in its Parks Department who oversees maintenance at the softball fields. A third defendant is also employed by Canton Township as a laborer in the Parks Department, and his duties include daily maintenance of the softball fields. The plaintiff’s injury occurred as he attempted to slide into second base. He alleged that the cause of his injury was the failure of the base to disengage from the mound as designed when he slid into it, which he attributed to the gross negligence of the defendants. The defendants claimed that the injury was a result of his improper slide. The trial court concluded that a genuine issue of material fact existed with regard to whether the defendants engaged in gross negligence that was the proximate cause of the plaintiff’s injuries. Additionally, the trial court concluded that defendant Canton Township could be held vicariously liable for any gross negligence of its employees. The defendants appealed from the order of the trial court denying their joint motion for summary disposition under MCR 2.116(C)(7) (governmental immunity), (C)(8) (failure to state a claim), & (C)(10) (no genuine issue of material fact). The Michigan Court of Appeals reversed.The appeals court first explained that the trial court’s conclusion that Canton Township could be vicariously liable was clearly erroneous. The Government Tort Liability Act (GTLA) states that “except as otherwise provided in this act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” The Michigan Supreme Court has defined the phrase “tort liability” in the GTLA to mean “all legal responsibility arising from a noncontractual civil wrong for which a remedy may be obtained in the form of compensatory damages.” Therefore, the broad grant of immunity provided in the GTLA to governmental agencies includes cases in which a plaintiff seeks to impose tort liability vicariously. The language of the gross negligence exception in the GTLA states that it only applies to officers, employees, volunteers, and members of a board, council, commission, or statutorily created task force. Therefore, unless there is a specifically enumerated exception allowing a lawsuit against the governmental agency, rather than merely its officers or employees, the governmental agency cannot be held vicariously liable for the acts of its employees.

The issue concerning the claim against the employees, the appeals court explained, was whether the plaintiff presented sufficient evidence to create a genuine issue of material fact that they engaged in gross negligence that was the proximate cause of the plaintiff’s injury. In his complaint, the plaintiff alleged that the reason the base did not disengage from the mount as designed when he slid into it was because the defendants failed to properly clean the underside of the base and failed to adequately maintain the ground around the base, such that excess dirt and debris built up on the underside of the base and along its outside edges. In support of his position, the plaintiff relied on the deposition testimony of his manager, who testified that, after the plaintiff’s injury, he struck the base with a bat several times, and it did not disengage. The plaintiff also relied on the affidavit of an expert, who averred that a buildup of dirt and residue on the back and lateral sides of the base can cause the base to fail to disengage. The expert concluded that since the base did not disengage when the manager hit it with a bat, there must have been a significant buildup of dirt and debris, which could only have been caused by a failure to properly maintain the base.

At their depositions, neither employee disputed that the underside of the bases was not regularly cleaned. One employee testified that the underside would rarely, if ever, have any accumulation of dirt or debris. The other employee simply testified that such cleaning was not required for the bases to function properly. The first employee did testify in detail, however, about how he would clean up along the outside of the base mounds. He described how he dragged the field with a device pulled behind a utility vehicle and how he cleaned the mounting assembly for each base. A daily maintenance check sheet also showed that he dragged each softball field and then set all of the bases at the sports complex on an almost daily basis. The supervisor of umpires at the sports complex also testified that the fields were always in excellent condition before each game.

May 17, 2017

Michigan Appeals Court Holds Township Protected by Governmental Immunity in Public Park Injury Lawsuit

by Neumann Law Group

A public park patron filed suit after being struck by a rock thrown from a passing lawnmower. The Michigan appeals court reversed the circuit court’s denial of the defendants’ motion for summary disposition, concluding the patron made no allegation rising to the level necessary to prevent the defendants’ use of governmental immunity.On May 20, 2013, the plaintiff visited Williams Island beach with her family. They sat at a picnic table. Approximately 30 minutes later, a Yates Township maintenance crew arrived. A Yates Township employee was tasked with cutting the grass using a riding lawnmower. The plaintiff asserted that on his first pass, the employee drove the power mower within 10 feet of the picnic table, causing dust and debris to be thrown into the air. As a result, the plaintiff and her family decided to leave. The plaintiff alleged that before they could retreat, the employee drove by again within a few yards. A rock shot out from the mower and struck the plaintiff between the eyes on the forehead. She suffered a fracture to the left nasal bone as well as swelling and bruising around her eyes and nose.

January 3, 2017

Michigan Appeals Court Upholds Ruling for Defendants, Pursuant to Firefighter Rule

by Neumann Law Group

Kristy Bastine, a Westland police officer, sued the city of Dearborn Heights, the city of Southfield, and Dearborn Heights Police Officer Tim Ciochon after being injured while participating in SWAT training in 2012. In a recent decision, the Michigan Court of Appeals upheld the lower court’s grant of summary disposition to the defendants, reasoning that the statutory firefighter rule barred the plaintiffs’ claims.In 2012, Kristy became a member of Westland’s SWAT team. During the subsequent SWAT training, the trainees were told to quickly get into a general purpose vehicle (GPV), a heavy-duty assault vehicle driven by Ciochon. Kristy testified that when she entered the vehicle, she looked for a seat belt but could not find one. Although the testimony of the witnesses varied, the evidence indicated that shortly before returning to the starting point, the GPV hit an object, probably a tree stump. The impact caused Kristy to fly off her seat, hit the roof with the back of her helmet, fall forward, and hit her chin and teeth on something inside the GPV. She was later diagnosed with a spinal fracture and traumatic brain injury.

December 28, 2016

Michigan Appeals Court Reverses Ruling for Defendant Gym Following Rock Climbing Injury

by Neumann Law Group

In April 2014, plaintiff David Alvarez plummeted from a rock climbing wall at LifeTime Fitness Center in Novi, Michigan. Alvarez had taken his family to the center. Neither his wife nor daughter had climbed before, and everyone signed a waiver releasing Lifetime from liability for negligence. Alvarez fell from the climbing wall because his harness was on backwards and was hooked incorrectly to the belay system. Shortly thereafter, he filed suit in Oakland County Circuit Court.Alvarez suffered numerous injuries to his legs and back during the fall. In the lawsuit, he argued that the LifeTime employee was “grossly negligent” in failing to determine whether Alvarez had correctly fastened his harness and belay system before instructing Alvarez to climb. Once he had reached the top of the wall, Alvarez asked the employee how to get down and was told: “just let go.” After letting go, the harness failed and Alvarez fell to the ground, seriously injuring himself.

November 16, 2016

Michigan Appeals Court Upholds Ruling for Defendants in High School Sports Injury Case

by Neumann Law Group

A Michigan appellate court recently upheld a trial court’s grant of summary judgment for the defendants in a high school sports injury case, reasoning the plaintiff did not provide sufficient evidence of gross negligence and proximate cause.The injury occurred at Avondale High School in February 2011. Plaintiff Ian Raber and a fellow high school student were playing catch with a baseball during gym, when a baseball nicked the edge of Raber’s glove and collided with his unprotected chest. Raber began to make convulsive, jerking motions before collapsing on the floor. Some of the other students ran from the gym to locate defendant Kourtney Thompson, a baseball coach and social studies teacher who was tasked with overseeing the gym. Kourtney had left the students unsupervised to use the restroom and visit his classroom. Thompson ran back to the gym, determined that the plaintiff was still breathing, and called 911. Observing some jerking motions, Thompson concluded that the plaintiff might have been suffering from a seizure. He cleared the area around the plaintiff to wait for paramedics to arrive. He did not check the plaintiff’s breathing or pulse again, although the plaintiff’s face and lips were turning gray or blue. He did not perform cardiopulmonary resuscitation (CPR) or attempt to employ an automatic external defibrillator (AED).