Articles Posted in Personal Injury

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.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.

Gross negligence is defined by the GTLA as conduct reckless enough to demonstrate a substantial lack of concern for whether an injury results. Simply alleging that an actor could have done more is insufficient, since a claim can always be made that extra precautions could have influenced the result. Instead, gross negligence suggests almost a willful disregard of precautions to attend to safety and a disregard for substantial risks. It is as though, if an observer watched the actor, he could reasonably conclude that the actor did not care about the safety of those in his charge. The determination of whether a governmental employee’s conduct constituted gross negligence that proximately caused the complained-of injury under the GTLA is generally a question of fact, but, if reasonable minds could not differ, a court may grant summary disposition.

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.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.

Likewise, a woman who was allegedly raped at a Future and Drake concert last year is suing both rappers (among other defendants) for $25 million. She claims the defendants’ negligence caused the rape. According to the federal lawsuit, the woman (identified as Jane Doe) claimed that during an August 2016 concert in Nashville, she was approached by a man associated with the venue who offered to take her backstage. As the woman followed the man backstage, the lawsuit claimed, he suddenly pushed her to the ground and “violently assaulted her, shattering her cell phone and causing severe physical and psychological injury.” The lawsuit claims that her attacker had a public history of assault, and therefore the defendants should have known that employing him could “pose unreasonable risk to others.”

A plaintiff was stopped on I-94 in Michigan when her vehicle was rear-ended by a vehicle driven by an FBI agent. The plaintiff asserted that the impact caused or exacerbated neck and back injuries and sued the federal government pursuant to the Federal Tort Claims Act. The defendant moved for summary judgment. The United States District Court for the Eastern District of Michigan granted in part and denied in part.In this Michigan car accident case, the district court explained, the accident occurred on a Michigan highway, and therefore, Michigan law governed the court’s determination of liability and damages. Under Michigan’s No-Fault Act, “tort liability for non-economic loss arising out of the ownership, maintenance, or use of a qualifying motor vehicle is limited to a list of enumerated circumstances.”

The appeals court explained that the defendant discharged their initial summary-judgment burden of showing that the accident was not the proximate cause of the plaintiff’s spinal issues.

First, it was undisputed that the plaintiff experienced neck and back issues prior to the accident. Second, her post-accident care supported the defendant’s causation position. She did not seek medical attention immediately following the accident, but she did go to the emergency room with neck, thoracic spine, and lumbar spine pain on the following evening. But she also refused pain medication at this time, and the ER doctor noted that while she had some neck tenderness, she had a normal range of motion in her back and musculoskeletal system. Third, the defendant’s experts concluded that the plaintiff’s spinal issues were not caused by the accident.

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 defendant appealed from the order of the trial court denying her motion for summary disposition under MCR 2.116(C)(7) (governmental immunity). The Michigan Court of Appeals affirmed the lower court’s judgment, holding that the plaintiff presented sufficient evidence to create a genuine issue of material fact on the elements of both gross negligence and proximate cause.The plaintiff brought suit after she sustained severe injuries to her hand while operating a table saw during a woodshop class that the defendant taught at Lakeville High School. She alleged that her injuries were caused by the defendant’s actions in removing a blade guard from the table saw, encouraging students to operate the table saw without the blade guard, and on the day of her injury, specifically directing the plaintiff to make a cut on the table saw that she had never before attempted without any supervision and without the presence of the blade guard.

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A plaintiff appealed the trial court’s order granting the defendant’s motion for summary disposition under MCR 2.116(C)(10). Holding that there was a genuine issue of material fact as to whether the plaintiff was more than 50 percent at fault for the accident, the Michigan appeals court reversed and remanded.At around 9:15 p.m. on November 2, 2013, the plaintiff was walking home from the Applebee’s restaurant where he worked. He testified that he was walking northbound on Monroe Street, while the defendant was driving northbound on Monroe Street, talking on his cell phone with his girlfriend. The defendant’s vehicle struck the plaintiff near the intersection of Monroe Street and LaSalle Road, severely injuring him.

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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.

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The Michigan Court of Appeals recently reversed the order of summary disposition granted to a defendant driver and Progressive Insurance in an action for third-party no-fault benefits following a car accident.On May 9, 2011, in the City of Bingham Farms, the plaintiff was driving southbound on Telegraph Road when he was struck by the defendant, whose vehicle “entered the wrong turnaround on Telegraph Road,” “failed to yield to oncoming traffic,” drove in front of the plaintiff’s vehicle, and caused a collision. The plaintiff, with his wife, filed a three-count complaint on May 9, 2014 against the driver and Progressive jointly and severally, alleging claims of negligence, underinsured motorist coverage, and loss of consortium resulting from the May 9, 2011 motor vehicle accident. Both defendants answered the complaint, and discovery ensued. Motions for summary disposition followed.

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The husband of a woman killed by robotic machinery at her factory job is suing for wrongful death. The federal lawsuit seeks $75,000 from the companies linked to the equipment. (Pursuant to the Federal Rules of Civil Procedure, federal courts can hear cases between citizens of different states only when the matter in controversy exceeds the sum or value of $75,000. (28 U.S.C. § 1332(a).)) The case raises the strange but increasingly relevant question of who should be held liable when robots injure or kill human staff.The victim was killed in July 2015 at Ventra Iona Main, an auto parts factory where she worked. Ventra Iona performs stamping of bumpers as well as welding, and it was recently fined by the state for workplace violations preceding the victim’s death. For 12 years, the victim made a good living and supported her husband as a journeyman maintenance mechanic for Ventra. She was succeeding in a male-dominated industry and carved out a specialty of fixing robots when things went wrong.

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The Michigan Court of Appeals recently affirmed an order of the circuit court granting summary disposition in favor of a defendant club owner in a case involving a physical fight at the defendant’s strip club.After a fight broke out between two of the club’s dancers, a bouncer became involved in the altercation, assisting in separating the combatants and bystanders. He worked at the club as a part-time bouncer but was present in the club as a patron at the time of the altercation. The plaintiff was performing as a dancer at the time and was a bystander to the altercation. She sustained an injury to her arm, which she alleged was caused by the bouncer when he seized her and pushed her into a doorway in the process of breaking up the fight. The plaintiff based her claim against the defendant club owner on a theory of vicarious liability for the bouncer’s conduct while he was acting within the scope of his employment with the defendant. She also alleged a claim involving negligent hiring and employment.

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