Articles Posted in Negligence

FDA-300x221On May 23, 2017, Dr. Amy J. Reed, an anesthesiologist and mother of six children, passed away in her home at the age of 44. Her life was cut short by an aggressive form of uterine cancer, leiomyosarcoma. For her husband, the tragedy of her early death is entwined with regret and anger, as the two of them fought not only Stage IV leiomyosarcoma, but an intractable profession and the industry which profits from its practice.

At the age of 40, Dr. Reed was diagnosed with uterine fibroids. Fibroids are masses of the smooth muscle cells lining the inside of the uterus. Although fibroids are generally considered benign, their presence can cause serious discomfort and pain in the pelvic area. To treat her condition, Dr. Reed underwent a hysterectomy. She chose to have the procedure performed at Brigham and Women’s Hospital in Boston—the hospital is affiliated with the Harvard Medical School, where both Dr. Reed and her husband, Dr. Hooman Noorchashm both held teaching positions.

After her surgery, the tissue was removed, and a biopsy was performed. The tissue contained leiomyosarcoma cells, an extremely aggressive form of uterine cancer. Although the biopsy revealed that the cancer cells had been confined to a very small area within a fibroid, the procedure through which the fibroids were removed seeded malignant cells throughout her abdomen. The dissemination of cancer cells caused her cancer to accelerate to Stage IV. The five-year survival rate for patients diagnosed with Stage IV leiomyosarcoma is only 14%.

pistol-and-bullets-300x200In 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”)into effect. The PLCAA prevents gun manufacturers and dealers from being sued in relationship to the production and/or sale of firearms, subject to a few exceptions. Historically, these exceptions have been construed narrowly, and as a consequence, manufacturers and dealers have been immune to most types of lawsuits.

The PLCAA permits certain commercial suits, such as a contractual dispute or a claim for breach of warranty. § 7903(5)(A)(iv). Further, immunity does not extend to the defective design or manufacture of a firearm. § 7903(5)(A)(v). Gun manufacturers are subject to the same rules as any other manufacturer of consumer goods. If a manufacturer places a firearm into the stream of commerce which malfunctions due to defective parts or improper assembly, or if it was designed in a dangerous manner and poses an unreasonable danger when operated, the manufacturer can be held liable for resulting injury.

Other exceptions apply when dealers provide firearms to people who should not have one in their possession. One such exception involves negligent entrustment. § 7903(5)(A)(ii). The PLCAA defines negligent entrustment as the act of supplying a firearm to someone the seller knew, or should have known, would likely injure others with the gun. § 7903(5)(B). Similarly, if a dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, the dealer is susceptible to suit. § 7903(5)(A)(i).

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If you are injured on someone else’s property, including businesses and government property, you may want to hold the property owner responsible for the damages incurred due to your injuries. However, in order to recover you will need to prove certain specific things, discussed in more detail below. While cases like the one described here can illustrate some of the important points of Michigan personal injury law, only a knowledgeable Western Michigan personal injury attorney can tell you how your case is likely to play out in court.

Michigan Premises Liability

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There are some sports that are known to have a significant risk of injury, such as skiing or rock climbing. Under the tort law theory of inherent risk, people who voluntarily engage in these sports cannot hold anyone else accountable for injuries caused by the sport itself unless the negligence rises to a certain level. In other words, if you go skiing and break your leg, unless the owners of the ski resort were extremely negligent, you will probably not be able to sue them for damages. Without this heightened negligence standard for inherent risk, no ski resorts could operate because the costs would be prohibitive.

Facts of This Case

The Michigan Court of Appeals issued an opinion earlier this year applying the “open and obvious doctrine” to resolve a lawsuit brought by an injured employee. Contractors were working on installing a fire protection system in an Ann Arbor building and had left some of the cables on the floor during the installation process. A security guard was patrolling the area and slipped and fell on the cables. He was injured and brought suit, alleging negligence and premises liability. The lower court did not allow the claim to go forward by granting the summary judgment motion of the defendants. The Michigan Court of Appeals agreed with the lower court and affirmed the summary judgment ruling for the defendant.  If you are injured on someone else’s property, whether at work or not, you should contact an experienced Michigan premises liability attorney.

Standards of Proof

This case comes from a motion for summary judgment. This is a motion that a party can make at the beginning of a case. In order to win a motion for summary judgment, one party needs to prove to the judge that both sides agree on the general facts. Furthermore, they need to prove that the party who moved for summary judgment deserves to win as a matter of law.

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.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.

No one claims to have seen Axle enter the yard containing the pit bulls. The plaintiffs (Axle’s co-owners) suggested that the kinds of injuries Axle sustained to his neck and head on one side, and the markings on that same side, indicate that Axle was grabbed by the pit bulls and pulled over the fence before he was mauled. Although the landlord’s property was bounded by a four-foot-tall cyclone fence, the plaintiffs claimed that a two-foot-tall pile of leaves had collected in the corner of the yard, giving the other dogs a boost to the top.

The Michigan Supreme Court recently reversed a decision from the Michigan Court of Appeals, holding the appeals court misapplied proximate cause law in determining whether the defendant proximately caused the plaintiff’s injuries. In the fall of 2011, the then-13-year-old plaintiff was a member of the Chelsea High School cross-country team. Shortly after the season began, the coach held an early morning practice; it was the plaintiff’s first morning practice as a member of the team. The practice began at 5:59 a.m., when it was still dark outside. At the beginning of practice, the coach took the team off school grounds to run. During the run, the team approached an intersection with a two-lane highway. The “Do Not Walk” symbol was illuminated because the traffic light was green for the highway traffic. The coach and the group of runners with him stopped at the intersection. He saw a vehicle in the distance, but he determined that it was far enough away to safely cross. He instructed the runners to cross the intersection by stating, “Let’s go.” It was unclear whether all of the team members heard the instruction. Although most of the team safely crossed the road, a few runners in the back of the group were still in or near the roadway when the vehicle entered the intersection. The vehicle hit the plaintiff and one of his teammates as they were crossing the road. The plaintiff was severely injured, and he has no memory of the accident.

The plaintiffs, the victim and his parents, sued the coach and the driver. The coach moved for summary disposition under MCR 2.116(C)(7), asserting governmental immunity pursuant to the government tort liability act (GTLA). He also moved for summary disposition under MCR 2.116(C)(8) and (10). The trial court denied the defendant’s motion, stating that whether the defendant’s actions were grossly negligent and whether his actions were the proximate cause of the plaintiff’s injuries were questions of fact for the jury to decide.

The defendant appealed, and the court of appeals reversed. The panel concluded that any factual disputes were not material because reasonable minds could not conclude that the defendant was the proximate cause of the plaintiff’s injuries. The panel determined that the presence of the driver in the roadway and the plaintiff’s own actions were more immediate and direct causes of the plaintiff’s injuries and held that the most proximate cause of the plaintiff’s injuries was the fact that he was struck by a moving vehicle.

A Detroit-area resident recently sued Delta Air Lines, arguing it negligently failed to protect her from being molested on her flight home from South Carolina in 2016. She filed the lawsuit in Wayne County Superior Court last month, asking for $10 million in damages.A 41-year-old man from Myrtle Beach, South Carolina was sentenced in March after pleading guilty to misdemeanor simple assault and indecent exposure. He was ordered to pay $1,000 in fines, pay $400 in restitution, and spend seven days in jail. The plaintiff claimed the defendant, a long-haul trucker, came over to the seat next to her and slipped his hand up her shorts. She told reporters she was trapped in her window seat and was “frozen with terror.” According to the lawsuit, the defendant told the plaintiff he liked white women and asked where her “man” was. She repeatedly told him to stop. Delta has declined to comment on the lawsuit. The company offered her $2,500 in ticket vouchers.

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Over five years after a man was beaten to death inside the Grand Rapids Home for Veterans, his family is finally getting closure. His survivors reached a financial settlement for $544,000 in their civil lawsuit against the state of Michigan. The state will also cover $281,000 in attorneys fees and court costs. Sadly, however, the victim’s wife, sister, brother, and daughter have all passed since the filing of the lawsuit. The settlement was approved by his other family members in Michigan.The victim, a World War II veteran who suffered from Alzheimer’s disease, was attacked in April 2012 by another patient. He passed away just days after the attack from injuries he sustained during it, and the Kent County medical examiner ruled it a homicide. The prosecutor, however, did not file criminal charges. The prosecutor reasoned that he did not wish to compound the tragedy by prosecuting the suspect, who was also in the advanced stages of Alzheimer’s and dementia. He concluded that prosecuting him in addition would accomplish nothing, particularly since he likely has no memory of the attack.

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A plaintiff, suing on behalf of his deceased son’s estate, appealed an order granting summary disposition in favor of the defendant school officials in a case stemming from his son’s suicide. The appeals court affirmed the lower court’s holding for the defendants.In March 2012, the son was a 17-year-old senior at Marysville High School when he was suspected of stealing a teacher’s laptop. Instead of contacting the police and pursuing criminal charges, as advised by the school district’s attorney, the matter was handled as a school discipline issue.

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