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If you are injured on public property due to government negligence, you will probably want to hold the government accountable for your injuries. In a case that recently came down from the Michigan Court of Appeals, the justices clarified the requirements to bring suit for injuries on government property. Since the government can sometimes claim immunity, unlike with individuals or businesses, there are additional hoops to jump through for those seeking damages. One of these differences is that you have less time to start the process to file your claim, so it is even more crucial that you contact a skilled Michigan premises liability attorney as soon as possible after an accident. The law gets complicated in this area, and if you don’t give notice to the proper entities in the proper way, the court may throw out your lawsuit, permanently barring you from bringing your case forward.

Government Responsibility

 In 2015, a woman was at the Michigan Hall of Justice in Lansing when she tripped on uneven bricks on the front porch of the building. She ended up falling and suffering injuries. The law requires that the government maintain and repair public buildings that are open for use by the public. If the government knows about a dangerous condition and does not fix it in a reasonable time, it could be held liable for injuries sustained due to the defect. Potential plaintiffs have 120 days to give notice to the government of the injuries and their intent to sue.

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.

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.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.

Subsequently, the plaintiff sued the defendant, alleging theories of negligence and premises liability. In particular, the plaintiff alleged that the defendant knew or should have known that the pea gravel immediately adjacent to the fire pit was unstable but failed to warn or protect her from the dangerous condition. Furthermore, the defendant’s conduct in lighting a fire in an unsafe fire pit was negligent.

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.

The defendant moved for summary disposition under MCR 2.116(C)(7) (prior judgment) and (C)(8) (failure to state a claim). The defendant argued that res judicata and collateral estoppel barred the circuit court action because the small claims action involved the same claims and the same parties. The plaintiff opposed the motion.

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.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.

The appeals court concluded that the defendant waived any claim that the action did not sound in negligence. Early in the case, the trial court issued an order providing that once a formal Joint Final Pretrial Order (JFPO) is filed, it supersedes previous pleadings and orders and controls the trial proceedings. It further provided that the JFPO shall contain a concise statement of a defendant’s defenses and cross-claims, including legal theories. A JFPO was presented to the court by the parties and entered as an order. Under the heading “Defendant’s Claims,” the defendant listed multiple defenses but included no reference to premises liability or a defense that the plaintiff’s injury was caused by an open and obvious condition. Given the court’s pre-trial orders and the JFPO to which defense counsel stipulated, the defendant waived this argument.

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.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.

Plaintiff argued that the floor had by defendant’s admission not been cleaned for many hours. However, although the residue on plaintiff’s hands and knees was sufficient to raise a question of fact as to whether there was residue on the floor when she fell, it was pure speculation when it was deposited, and based on her noticing a difference on her way back from the restroom and her own description of how difficult it was to get up after her fall, the evidence strongly implied that any such residue could not have been deposited longer ago than her trip to the restroom. Furthermore, its invisibility to her and to the other witnesses also suggested that defendant should not have been aware of its presence until plaintiff fell.

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.

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.

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.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.

Following oral arguments, the trial court denied the motion as to the scientific reliability of the defendants’ experts’ opinions, holding that a decision would be made at trial about whether an expert opinion is based on a sufficient foundation. However, the trial court granted the motion with respect to the testimony of the one witness for articulating the wrong standard of care, i.e., one of prudence, a standard of care not applicable in Michigan. Thus, his expert opinion was unreliable, and he was stricken as an expert witness.

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.

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