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Tuesday, August 3, 2004

Case Summaries

Including summaries of six Michigan Supreme Court opinions and two Sixth Circuit Court of Appeals opinions in the following practice areas: Administrative Law, Constitutional Law, Criminal Law, Environmental Law, Insurance, Malpractice, Municipal, and Negligence & Intentional Tort.

Case Summaries

    Administrative Law

    This summary also appears under Environmental Law

    Issues: Whether the Michigan Environmental Protection Act (MEPA) (MCL 324.1701 et seq.) authorizes a collateral challenge to the Department of Environmental Quality's (DEQ) decision to issue a sand dune mining permit under the Sand Dune Mining Act (SDMA) (MCL 324.63701 et seq.) in an action challenging the flaws in the permitting process unrelated to whether the conduct involved has polluted, impaired, or destroyed, or will likely pollute, impair, or destroy natural resources protected by MEPA
    Case Name: Preserve the Dunes, Inc. v. Michigan Dep't of Envtl. Quality
    e-Journal Number: 24049
    Judge(s): Corrigan, Taylor, Young Jr., and Markman; Dissent—Kelly, Cavanagh, and Weaver

    MEPA does not authorize a collateral attack challenging flaws in the permitting process in the DEQ's decision to issue a sand dune mining permit under the SDMA unrelated to whether the conduct involved has polluted, impaired, or destroyed, or will likely pollute, impair, or destroy natural resources protected by the MEPA. MEPA affords no basis for judicial review of agency decisions under § 63702(1) because that inquiry is outside MEPA's purview. The focus of MEPA is to protect our state's natural resources from harmful conduct. It offers no basis for invalidating an issued permit for reasons unrelated to the holder's conduct. To hold otherwise would broaden by judicial fiat the scope of MEPA and create a cause of action with no basis in MEPA's language or structure. The Court of Appeals erred by treating plaintiff's challenge to defendant-TechniSand's eligibility for a permit under § 63702(1) as a MEPA claim. Since plaintiff brought its claim more than 19 months after the DEQ issued the permit, plaintiff's claim was time-barred. The court reversed the Court of Appeals' decision and remanded to that court for an expedited review of the plaintiff's remaining issues.

    Dissenting Justices Kelly, Cavanagh, and Weaver opined the majority's decision wrongly insulates the Sand Dune Mining Act permit eligibility determinations from judicial review. The decision to issue a sand dune mining permit pursuant to the SDMA inherently includes an environmental component. The justices would hold issuance of the permit in this case can be challenged under the MEPA. The Legislature intended the MEPA to apply to permit applications. Application of the act to permit determinations is entirely consistent with the Legislature's intent to stringently preserve Great Lakes sand dunes against degradation and to protect the integrity of that environment. Plaintiff's case was not barred by the statutory limitations periods of the APA and the RJA. The Court of Appeals correctly remanded the case for entry of an order granting summary disposition to plaintiff. Its decision should be affirmed.

    Full Text Opinion

    Constitutional Law

    This summary also appears under Municipal

    Issues: Eminent domain; Whether the proposed condemnations were necessary for public purposes; Whether the purposes were within the scope of the county's powers; Whether the takings were "for the use or benefit of the public"; Poletown Neighborhood Council v. Detroit; Const.1963, art. 10, § 2; MCL 213.23; Retroactivity
    Court: Michigan Supreme Court
    Case Name: County of Wayne v. Hathcock
    e-Journal Number: 24048
    Judge(s): Young Jr., Corrigan, Taylor, and Markman; Concurring in part, Dissenting in part—Weaver; Concurring only with section I of Justice Weaver's partial concurrence and partial dissent—Cavanagh; Separately Concurring in part, Dissenting in part—Cavanagh and Kelly

    Although the condemnation of defendants' properties was consistent with MCL 213.23, the court held the proposed condemnations did not advance a "public use" as required by Const.1963, art. 10, § 2. Section 2 permits the exercise of the power of eminent domain only for a "public use." Wayne County attempted to use the power of eminent domain to condemn defendants' real properties for the construction of a 1,300-acre business and technology park to reinvigorate the struggling economy of southeastern Michigan. However, the court concluded Wayne County's intent to transfer the condemned properties to private parties in this manner was inconsistent with the common understanding of "public use" at the time the Michigan Constitution was ratified. The court held the Poletown analysis provided no legitimate support for these proposed condemnations, and was overruled. Further, the decision to overrule Poletown was given retroactive effect to apply to all pending cases in which a challenge to Poletown was raised and preserved. The judgment of the Court of Appeals was reversed and the case was remanded for entry of an order of summary disposition in defendants' favor.

    Justice Weaver concurred with the majority's result and decision to overrule Poletown, but did so for her own reasons. She dissented from the majority's reliance on its recently created rule of constitutional interpretation that gives constitutional terms the meaning that those "versed" and "sophisticated in the law" would have given it at the time of the Constitution's ratification, and its application of the new rule to the facts of this case.

    Justices Cavanagh and Kelly wrote separately because they believed the analysis offered by Justice Ryan in his dissent in Poletown offered the best rationale to explain why Poletown should be overruled. Further, they dissented from the majority's conclusion the decision should be applied retroactively and would have applied the decision prospectively only.

    Full Text Opinion

    This summary also appears under Environmental Law

    Issues: Standing to bring suit under the Michigan Environmental Protection Act (MEPA) (MCL 324.1701 et seq.); Lee v. Macomb County Bd. of Comm'rs; Separation of powers; The "judicial power"; Requirement of a genuine case or controversy; A "particularized" injury; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.; Lujan v. Defenders of Wildlife; Const.1963, art. 4, § 52
    Court: Michigan Supreme Court
    Case Name: National Wildlife Fed'n v. Cleveland Cliffs Iron Co.
    e-Journal Number: 24050
    Judge(s): Markman, Corrigan, Taylor, and Young Jr.; Concurring in result only—Weaver; Concurring in the result—Cavanagh; Concurring in result only—Kelly and Cavanagh

    Adhering to the holding in Lee that questions of standing implicate the constitutional separation of powers, the court ruled under the particular circumstances of the case, plaintiffs-nonprofit groups had standing to bring a suit on behalf of their members under the MEPA. Plaintiffs sought injunctive relief on behalf of their members. They provided affidavits from members who lived near the mine, where defendants sought to expand their operations, in which the members alleged they bird-watched, canoed, bicycled, hiked, skied, fished, and farmed in the area, planned to continue to do so as long as the area remained unspoiled, and were "concerned" the mine expansion would irreparably harm their recreational and aesthetic enjoyment of the area. One member also alleged in his affidavit his well, on property adjacent to the mine, was nearly dry and he had to construct a new, deeper well due to the local aquifer dropping too low, which he alleged was due to the mining activities. These affidavits were nearly identical to those deemed adequate in Laidlaw, and the court concluded they sufficiently met the test for standing set forth in Lee. However, the court noted plaintiffs could not rely on these affidavits throughout the proceedings to prove standing exists. Subject matter jurisdiction may be raised at any time. Since the court held plaintiffs had standing without regard to MCL 324.1701(1), it did not reach the constitutionality of the statute. The decision of the Court of Appeals was affirmed and the case remanded to the trial court.

    Justice Weaver, concurring only in the majority's result, would hold plaintiffs have standing under MCL 324.1701(1) to bring an action to enjoin mining activities they alleged would irreparably harm natural resources, and dissented from the majority's analysis of "standing" and "judicial power" on the ground it ignored the will of the people in Michigan as expressed in art. 4, § 52. MEPA and its citizen-suit provision properly implement this constitutional directive. The "any person" standard clearly expressed by the Legislature, not the more restrictive judge-made standing test of Lee, should be applied.

    Justice Cavanagh, concurring in the result reached by the majority and Justice Weaver, wrote separately to acknowledge a change in position since the court decided Lee, in which he signed Justice Kelly's dissent agreeing with the adoption of Lujan as the test for standing in Michigan. Justice Cavanagh disavowed that position for the reasons expressed in Justice Weaver's opinion in Lee and in her concurrence in this case, concluding Lujan should not be used to determine standing in Michigan.

    Justice Kelly agreed with the opinion of Justice Weaver and the result reached by the majority, stating she believed Lee should not be applied in cases like this one and since the court's determination on standing rendered the discourse on separation of powers unnecessary, this discourse was simply dicta. However, if a decision was required about whether absent a showing of a particularized injury, MEPA's standing provision violated the separation of powers, she would hold it does not.

    Full Text Opinion

    Criminal Law

    Issues: Defense of duress; Denial of defendant's request for a jury instruction on duress as a defense to felony murder and assault with intent to commit murder charges; People v. Lemons; Whether the trial court erred in not sua sponte instructing the jury on accomplice testimony; Ineffective assistance of counsel; Denial of motion to adjourn trial so defendant could obtain an independent psychiatric evaluation to support a potential insanity defense
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: People v. Blue
    e-Journal Number: 23999
    Judge(s): Per Curiam—Griffin, Cavanagh, and Fort Hood

    The trial court did not err in denying defendant's request for a jury instruction on duress as a defense to the felony murder and assault with intent to commit murder charges, on the basis her abusive boyfriend told her to commit the crimes, because duress is not a defense to homicide and no evidence showed the abusive boyfriend was present during the crimes. Defendant failed to show the "threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm." Rather, the evidence demonstrated defendant planned the robbery and obtained a gun within a week before committing the crimes. The court concluded any alleged threatening conduct was not present, imminent, or impending, and a threat of future injury is insufficient to support a duress defense. The court also rejected defendant's argument the trial court erred in failing to sua sponte instruct the jury on accomplice testimony. Defendant waived any error in this regard, and the claim lacked merit since the issue of her guilt was not "closely drawn." Defendant's convictions were affirmed.

    Full Text Opinion

    Issues: Sentencing; Whether the district court properly gave defendant a base-offense level under § 2K2.1(a)(4)(A) of the Sentencing Guidelines; Whether defendant's Michigan conviction for third-degree fleeing and eluding qualified under § 2K2.1(a)(4)(A) as a "crime of violence"; The "rule of lenity"
    Court: U.S. Court of Appeals Sixth Circuit
    Case Name: United States v. Martin
    e-Journal Number: 24019
    Judge(s): Sutton, Siler, and Daughtrey

    Holding third-degree fleeing and eluding under Michigan law is a crime of violence, the court held the district court correctly gave defendant a base-offense level of 20 under § 2K2.1(a)(4)(A) following his guilty plea to possessing a firearm in violation of 18 USC §§ 922(g) and 924(a)(2). Defendant argued § 2K2.1(a)(4)(A) did not apply because he had not been convicted of any "crimes of violence" at the time he committed the offense and his base-offense level should be 14 not 20. Since neither the guideline nor its application note named fleeing and eluding as a crime of violence, that offense must either (1) have "as an element the use, attempted use, or threatened use of physical force against the person of another" or (2) present "a serious risk of potential physical injury to another" to qualify. In deciding whether an offense amounts to a "crime of violence" under these tests, the court applied the "categorical approach"—thus, it looked at the fact of conviction and the statutory definition of the predicate offense, not the underlying facts regarding the offense to determine whether either test was satisfied. If the relevant statute of conviction does not supply a clear answer, the sentencing court may consult the indictment and either the jury instructions or plea agreement for the specific conduct with which defendant was charged in order to characterize the offense. The court concluded when a motorist disobeys an officer and flees in his car, that person creates a potential risk of injury to pedestrians, other vehicles, passengers in the fleeing car, and the pursuing officer. Thus, the guideline applied to defendant's sentence. Affirmed.

    Full Text Opinion

    Issues: Sentencing; Whether the district court correctly included defendant's Kentucky misdemeanor conviction for driving without insurance in its calculation of his criminal history; Exclusion of misdemeanors in the criminal history category (§ 4A1.2(c)(1) and § 4A1.2(c)(2)); Whether driving without insurance is a "minor traffic infraction" within the meaning of § 4A1.2(c)(2); United States v. Kingston; Whether a term of unsupervised probation should be treated as a term of probation under § 4A1.2(c)(2); United States v. Gorman; Whether the inclusion of defendant's "no insurance' conviction in his sentencing calculation violated the Guidelines' policy of creating uniformity in sentencing by treating violators of similar offenses in a like manner; Application Note 4 of § 4A1.2
    Court: U.S. Court of Appeals Sixth Circuit
    Case Name: United States v. Rollins
    e-Journal Number: 24042
    Judge(s): Sutton and Friedman; Dissent—Moore

    The district court correctly included defendant's Kentucky conviction for driving without insurance in its calculation of his criminal history. Defendant pleaded guilty to possession of less than 50 kilograms of marijuana with intent to distribute. At sentencing, this violation translated into a base offense level of 12, which the district court reduced to 10 based on defendant's acceptance of responsibility. The district court then attributed to defendant a criminal history category of II based on his prior state-court convictions for possession of marijuana and driving without insurance. After combining the vertical requirements of defendant's base offense level with the horizontal requirements of his criminal history category, the district court determined he faced a sentencing range of 8 to 14 months and sentenced him to an 8-month prison term. Defendant challenged the district court's inclusion of his conviction for driving without insurance—a misdemeanor under Kentucky law—in its calculation of his criminal history. The court concluded based on Kingston, the "no-insurance" conviction was not a minor infraction where Kentucky law authorizes up to a 90-day prison term for violation of the state's car insurance requirements. The court also held the "no insurance" offense was not excluded under the other guidelines provision listing non-countable misdemeanor offenses (§ 4A1.2(c)(1)). Affirmed.

    Full Text Opinion

    Employment & Labor Law

    Issues: Wrongful discharge; Claim plaintiff was discharged without just cause; Implied contract theory; Legitimate expectations theory; Nieves v. Bell Indus., Inc.; Novak v. Nationwide Mut. Ins. Co.
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Madu v. L & L Wine & Liquor Corp.
    e-Journal Number: 23995
    Judge(s): Per Curiam—Bandstra, Fitzgerald, and Hoekstra

    Plaintiff's wrongful discharge claim failed because the assurances he allegedly received from defendant-L & L's management he would have a job so long as he did his job and did not violate company policy did not give rise to a just-cause employment contract under either an implied contract or legitimate expectations theory. Plaintiff acknowledged in signing his employment application he was being hired as an at-will employee, and he also signed a separate form when he received a copy of L & L's handbook, again acknowledging his understanding it was L & L's policy the employment relationship was "at will." The evidence demonstrated it was made clear to plaintiff when he was hired his employment was at will unless changed by the chairman or secretary/treasurer of the company and reduced to writing. The statements on which he relied to show he had an implied contract for just-cause termination were allegedly made by management personnel, not L & L's chairman or secretary/treasurer, and only oral statements were made. These oral statements were also insufficient to support a claim based on a legitimate expectations theory. Summary disposition for defendants was affirmed.

    Full Text Opinion

    Environmental Law

    This summary also appears under Constitutional Law

    Issues: Standing to bring suit under the Michigan Environmental Protection Act (MEPA) (MCL 324.1701 et seq.); Lee v. Macomb County Bd. of Comm'rs; Separation of powers; The "judicial power"; Requirement of a genuine case or controversy; A "particularized" injury; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.; Lujan v. Defenders of Wildlife; Const.1963, art. 4, § 52
    Court: Michigan Supreme Court
    Case Name: National Wildlife Fed'n v. Cleveland Cliffs Iron Co.
    e-Journal Number: 24050
    Judge(s): Markman, Corrigan, Taylor, and Young Jr.; Concurring in result only—Weaver; Concurring in the result—Cavanagh; Concurring in result only—Kelly and Cavanagh

    Adhering to the holding in Lee that questions of standing implicate the constitutional separation of powers, the court ruled under the particular circumstances of the case, plaintiffs-nonprofit groups had standing to bring a suit on behalf of their members under the MEPA. Plaintiffs sought injunctive relief on behalf of their members. They provided affidavits from members who lived near the mine, where defendants sought to expand their operations, in which the members alleged they bird-watched, canoed, bicycled, hiked, skied, fished, and farmed in the area, planned to continue to do so as long as the area remained unspoiled, and were "concerned" the mine expansion would irreparably harm their recreational and aesthetic enjoyment of the area. One member also alleged in his affidavit his well, on property adjacent to the mine, was nearly dry and he had to construct a new, deeper well due to the local aquifer dropping too low, which he alleged was due to the mining activities. These affidavits were nearly identical to those deemed adequate in Laidlaw, and the court concluded they sufficiently met the test for standing set forth in Lee. However, the court noted plaintiffs could not rely on these affidavits throughout the proceedings to prove standing exists. Subject matter jurisdiction may be raised at any time. Since the court held plaintiffs had standing without regard to MCL 324.1701(1), it did not reach the constitutionality of the statute. The decision of the Court of Appeals was affirmed and the case remanded to the trial court.

    Justice Weaver, concurring only in the majority's result, would hold plaintiffs have standing under MCL 324.1701(1) to bring an action to enjoin mining activities they alleged would irreparably harm natural resources, and dissented from the majority's analysis of "standing" and "judicial power" on the ground it ignored the will of the people in Michigan as expressed in art. 4, § 52. MEPA and its citizen-suit provision properly implement this constitutional directive. The "any person" standard clearly expressed by the Legislature, not the more restrictive judge-made standing test of Lee, should be applied.

    Justice Cavanagh, concurring in the result reached by the majority and Justice Weaver, wrote separately to acknowledge a change in position since the court decided Lee, in which he signed Justice Kelly's dissent agreeing with the adoption of Lujan as the test for standing in Michigan. Justice Cavanagh disavowed that position for the reasons expressed in Justice Weaver's opinion in Lee and in her concurrence in this case, concluding Lujan should not be used to determine standing in Michigan.

    Justice Kelly agreed with the opinion of Justice Weaver and the result reached by the majority, stating she believed Lee should not be applied in cases like this one and since the court's determination on standing rendered the discourse on separation of powers unnecessary, this discourse was simply dicta. However, if a decision was required about whether absent a showing of a particularized injury, MEPA's standing provision violated the separation of powers, she would hold it does not.

    Full Text Opinion

    This summary also appears under Adminstrative Law

    Issues: Whether the Michigan Environmental Protection Act (MEPA) (MCL 324.1701 et seq.) authorizes a collateral challenge to the Department of Environmental Quality's (DEQ) decision to issue a sand dune mining permit under the Sand Dune Mining Act (SDMA) (MCL 324.63701 et seq.) in an action challenging the flaws in the permitting process unrelated to whether the conduct involved has polluted, impaired, or destroyed, or will likely pollute, impair, or destroy natural resources protected by MEPA
    Case Name: Preserve the Dunes, Inc. v. Michigan Dep't of Envtl. Quality
    e-Journal Number: 24049
    Judge(s): Corrigan, Taylor, Young Jr., and Markman; Dissent—Kelly, Cavanagh, and Weaver

    MEPA does not authorize a collateral attack challenging flaws in the permitting process in the DEQ's decision to issue a sand dune mining permit under the SDMA unrelated to whether the conduct involved has polluted, impaired, or destroyed, or will likely pollute, impair, or destroy natural resources protected by the MEPA. MEPA affords no basis for judicial review of agency decisions under § 63702(1) because that inquiry is outside MEPA's purview. The focus of MEPA is to protect our state's natural resources from harmful conduct. It offers no basis for invalidating an issued permit for reasons unrelated to the holder's conduct. To hold otherwise would broaden by judicial fiat the scope of MEPA and create a cause of action with no basis in MEPA's language or structure. The Court of Appeals erred by treating plaintiff's challenge to defendant-TechniSand's eligibility for a permit under § 63702(1) as a MEPA claim. Since plaintiff brought its claim more than 19 months after the DEQ issued the permit, plaintiff's claim was time-barred. The court reversed the Court of Appeals' decision and remanded to that court for an expedited review of the plaintiff's remaining issues.

    Dissenting Justices Kelly, Cavanagh, and Weaver opined the majority's decision wrongly insulates the Sand Dune Mining Act permit eligibility determinations from judicial review. The decision to issue a sand dune mining permit pursuant to the SDMA inherently includes an environmental component. The justices would hold issuance of the permit in this case can be challenged under the MEPA. The Legislature intended the MEPA to apply to permit applications. Application of the act to permit determinations is entirely consistent with the Legislature's intent to stringently preserve Great Lakes sand dunes against degradation and to protect the integrity of that environment. Plaintiff's case was not barred by the statutory limitations periods of the APA and the RJA. The Court of Appeals correctly remanded the case for entry of an order granting summary disposition to plaintiff. Its decision should be affirmed.

    Full Text Opinion

    Insurance

    Issues: Whether the criminal-acts exclusion in the policy precluded coverage
    Court: Michigan Supreme Court
    Case Name: Allstate Ins. Co. v. McCarn
    e-Journal Number: 24047
    Judge(s): Taylor, Kelly, and Markman; Concurring in result only—Cavanagh; Dissent—Weaver and Corrigan; Separate Dissent—Young Jr. and Corrigan

    After remand, the court held the Court of Appeals erred in holding the criminal-acts exception precluded coverage in this case and held there was no question of fact whether plaintiffs' decedent's death was the reasonably expected result of defendant-Robert's act. This case arose out of the death of 16-year old Kevin at the home of defendants where their grandson, the then 16-year old Robert also resided. Robert removed from under his grandparent's bed a shotgun his father had given him the year before. The gun was always stored under that bed and was not normally loaded. Both Robert and Kevin handled the gun, which Robert believed to be unloaded. When Robert was handling the gun, he pointed it at Kevin's face and pulled the trigger and the gun fired, killing Kevin. The court further held Robert's expectation that no bodily harm would result from an unloaded gun was reasonable because an unloaded gun will not fire a shot. The court reversed the judgment of the Court of Appeals and remanded to the trial court.

    Justices Weaver and Corrigan dissented from the lead opinion holding the intentional and criminal acts exclusion of the homeowner's insurance policy at issue plainly and unambiguously excluded coverage under these facts since bodily injury can reasonably be expected to result when, without first determining that a gun is unloaded, a person points the gun at another person and pulls the trigger. The dissent would have affirmed the decision of the Court of Appeals excluding coverage under the intentional and criminal acts exclusion of the homeowner policy at issue.

    Justices Young and Corrigan in a separate dissenting opinion concurred fully in the dissenting opinion of Justice Weaver, but wrote separately to highlight the import of Justice Taylor's lead opinion where the opinion ignored the policy language and obliterated the distinction in our law between subjective and objective standards in insurance exclusion provisions, and would have affirmed the judgment of the Court of Appeals.

    Full Text Opinion

    Malpractice

    This summary also appears under Negligence & Intentional Tort

    Issues: Medical malpractice; Ordinary negligence; Nursing home resident's death by positional asphyxiation; Existence of a professional relationship; What constitutes a "medical judgment"; Adkins v. Annapolis Hosp.; Whether plaintiff's "accident-free environment" claim was legally cognizable; Failure to train and failure to inspect claims; Dorris v. Detroit Osteopathic Hosp. Corp.; Claim for defendant's failure to act after its employees found the decedent entangled in her bedding the day before her asphyxiation; Medical malpractice statute of limitations; Effect of the equities and procedural features of the case on the statute of limitations issue
    Court: Michigan Supreme Court
    Case Name: Bryant v. Oakpointe Villas Nursing Ctr.
    e-Journal Number: 24046
    Judge(s): Markman, Corrigan, Weaver, Taylor, and Young Jr.; Dissent—Kelly and Cavanagh

    While under Dorris, plaintiff's failure to train and failure to inspect claims against defendant-nursing center sounded in medical malpractice, her claim defendant failed to take action after its employees found plaintiff's decedent entangled in her bedding the day before she sustained the positional asphyxiation that resulted in her death, sounded in ordinary negligence. However, plaintiff's "accident-free environment" claim was one of strict liability and not legally cognizable. Plaintiff's decedent, who had multi-infarct dementia, had suffered several strokes, and lacked any control over her locomotive skills, died after slipping between the rails of her bed and her neck became wedged in the gap between the rail and the mattress, preventing her from breathing. Nursing assistants testified the day before this occurred, they told their supervisor they found the decedent tangled in her restraining vest, gown, and bed sheets, and bed wedges placed to prevent her from entangling herself in the rails were not sticking properly and kept falling off. The court held plaintiff's claims defendant failed to train its staff to assess the risk of potential asphyxia, and negligently and recklessly failed to inspect the beds, frames, and mattress to assure the risk of positional asphyxia did not exist for the decedent, required expert testimony. However, no expert testimony was necessary to determine whether defendant's employees should have taken some sort of corrective action to prevent future harm after learning of the hazard. Further, although the statute of limitations would otherwise bar plaintiff's medical malpractice claims, for this case and others currently pending involving similar procedural circumstances, the medical malpractice claims could proceed to trial with the ordinary negligence claim. Reversed and remanded.

    The dissent concluded all of plaintiff's claims sounded in ordinary negligence, and disagreed the first claim was not cognizable—the decedent was in defendant's custodial care, defendant was obligated to take reasonable precautions to provide a reasonably safe environment, and breach of this duty could support a claim for ordinary negligence. The dissenting justices also would have held the trial court's initial ruling, still well within the applicable limitations period, that plaintiff's claims sounded in ordinary negligence, tolled the limitations period under MCL 600.5856(a).

    Full Text Opinion

    Issues: Medical malpractice; Whether and to what extent, MCL 600.6304 permits a trier of fact in a medical malpractice action to consider the plaintiff's pre-treatment negligence to offset, at least in part, the defendant's fault; Whether the medical malpractice noneconomic damages cap of MCL 600.1483 applies to a wrongful death action based on an underlying claim of medical malpractice, and assuming such cap applies, whether an action filed under the wrongful death act is subject to the higher medical malpractice damages cap of § 1483; Jenkins v. Patel; Whether, and to what extent, MCL 600.6311 applies in a wrongful death action; The "doctrine of noscitur a sociis"
    Court: Michigan Supreme Court
    Case Name: Estate of Shinholster v. Annapolis Hosp.
    e-Journal Number: 24051
    Judge(s): Markman, joined in part by Justices Corrigan, Taylor, and Young Jr. in sections III (A) and III (B), Justices Cavanagh and Kelly joined in section III (C) and concurred in the result only in section III (B), and Justice Weaver joined in sections III (B) and III (C); Concurrence—Markman; Concurring in part, Dissenting in part—Corrigan, Taylor, and Young Jr.; Concurring in part, Dissenting in part—Cavanagh and Kelly; Concurring in part, Dissenting in part—Weaver with Kelly concurring in Sections I, III, and IV; Concurring in part, Dissenting in part—Kelly

    The court held on the basis of the clear and unambiguous language of § 6304(1), a trier of fact is permitted in "personal injury, property damage, [and] wrongful death" tort actions, which necessarily include medical malpractice actions, to consider a plaintiff's pre-treatment negligence in offsetting a defendant's fault where reasonable minds could differ regarding whether such negligence constituted "a proximate cause"—a foreseeable, natural, and probable consequence—of the plaintiff's injury and damages. On the basis of the evidence presented, the court found reasonable minds could find plaintiff's pre-treatment negligence—her failing to regularly take her prescribed blood pressure medication during the year preceding her fatal stroke—constituted a foreseeable, natural, and probable consequence of her fatal stroke. Thus, the court remanded the case to the trial court for proceedings consistent with the court's opinions. The Court of Appeals affirmed the trial court's decision that the higher medical malpractice noneconomic damages cap of § 1483 applies to a wrongful death action. Consistent with Jenkins, where the court held the medical malpractice noneconomic damages cap of § 1483 applies to a wrongful death action based on an underlying claim of medical malpractice, the court affirmed both lower courts and held the higher medical malpractice noneconomic damages cap of § 1483 applies where the injured person, at any time before his death and as a result of a defendant's negligent conduct, fits within the ambit of § 1483(1)(a), (b), or (c). Finally, regarding the Court of Appeals' finding § 6311 applied because both the personal representative and the decedent were or would have been 60 years of age or older at the time of the judgment, the court affirmed the decision the plaintiff's award of future damages should not be reduced to present value. Because the term "plaintiff," as used in § 6311, refers, for purposes of a wrongful death action, to the decedent, and because the decedent was 61 at her death and the time of the judgment, the court agreed with the trial court's interpretation of § 6311, and held on remand, the trial court cannot reduce any future damages awarded to plaintiff to their present value.

    Justices Corrigan, Taylor, and Young Jr. joined in section III (A) and with the determination in section III (B) the medical malpractice cap of § 1483 applies to a wrongful death action based on an underlying claim of medical malpractice. Justices Cavanagh and Kelly joined in section III (C) and concur in the result only in section III (B). Justice Weaver joined in sections III (B) and III (C).

    Justice Markman agreed fully with the majority, but wrote separately regarding his view concerning section II (A)(1) of the opinion. Since the jury already determined defendants breached their standard of care (which defendants did not appeal), the justice would reverse the judgment of the Court of Appeals and remand for a new trial on damages only.

    Justices Corrigan, Taylor, and Young Jr. in concurring in part and dissenting in part would reverse the Court of Appeals' decision and remand for a new trial on all issues. The justices agreed with the majority the language of § 6304(1) and § 2959 require that a jury is permitted in all medical malpractice actions to consider a plaintiff's pre-treatment negligence as comparative negligence to offset a defendant's fault, provided evidence has been admitted that would allow a reasonable person to conclude such negligence was a "proximate cause" of the plaintiff's injury. However, a new trial should be not limited to damages only. Further, the justices would hold § 6311 (reduction to present value) cannot apply in wrongful death cases because the true "plaintiff" is the estate, which is not a person and does not have an "age."

    Justices Cavanagh and Kelly concurring in part and dissenting in part agreed § 6311 applied. Regarding the applicability of the medical malpractice noneconomic damages cap, the justices concurred only with the result because they remain committed to their position in Jenkins. Further, the justices dissented from the majority's decision allowing the trier of fact to consider plaintiff's alleged pre-treatment negligence. The justices would affirm the Court of Appeals.

    Justice Weaver dissented from the majority's holding that pursuant to § 6304 the decedent's pre-treatment negligence may be considered by the jury in assessing comparative negligence because it may have been a proximate cause of her death. The justice agreed with Justice Cavanagh's concurring and dissenting opinion that it would be improper for the jury to consider the decedent's pre-treatment negligence to determine comparative negligence and would affirm the Court of Appeals. The justice joined in full sections III (B) and III (C) of the lead opinion. Justice Kelly concurred with Justice Weaver with respect to sections I, III, and IV.

    Justice Kelly fully agreed with Justice Cavanagh's opinion and joined sections I, III, and IV of Justice Weaver's opinion.

    Full Text Opinion

    Municpal

    This summary also appears under Constitutional Law

    Issues: Eminent domain; Whether the proposed condemnations were necessary for public purposes; Whether the purposes were within the scope of the county's powers; Whether the takings were "for the use or benefit of the public"; Poletown Neighborhood Council v. Detroit; Const.1963, art. 10, § 2; MCL 213.23; Retroactivity
    Court: Michigan Supreme Court
    Case Name: County of Wayne v. Hathcock
    e-Journal Number: 24048
    Judge(s): Young Jr., Corrigan, Taylor, and Markman; Concurring in part, Dissenting in part—Weaver; Concurring only with section I of Justice Weaver's partial concurrence and partial dissent—Cavanagh; Separately Concurring in part, Dissenting in part—Cavanagh and Kelly

    Although the condemnation of defendants' properties was consistent with MCL 213.23, the court held the proposed condemnations did not advance a "public use" as required by Const.1963, art. 10, § 2. Section 2 permits the exercise of the power of eminent domain only for a "public use." Wayne County attempted to use the power of eminent domain to condemn defendants' real properties for the construction of a 1,300-acre business and technology park to reinvigorate the struggling economy of southeastern Michigan. However, the court concluded Wayne County's intent to transfer the condemned properties to private parties in this manner was inconsistent with the common understanding of "public use" at the time the Michigan Constitution was ratified. The court held the Poletown analysis provided no legitimate support for these proposed condemnations, and was overruled. Further, the decision to overrule Poletown was given retroactive effect to apply to all pending cases in which a challenge to Poletown was raised and preserved. The judgment of the Court of Appeals was reversed and the case was remanded for entry of an order of summary disposition in defendants' favor.

    Justice Weaver concurred with the majority's result and decision to overrule Poletown, but did so for her own reasons. She dissented from the majority's reliance on its recently created rule of constitutional interpretation that gives constitutional terms the meaning that those "versed" and "sophisticated in the law" would have given it at the ttime of the Constitution's ratification, and its application of the new rule to the facts of this case.

    Justices Cavanagh and Kelly wrote separately because they believed the analysis offered by Justice Ryan in his dissent in Poletown offered the best rationale to explain why Poletown should be overruled. Further, they dissented from the majority's conclusion the decision should be applied retroactively and would have applied the decision prospectively only.

    Full Text Opinion

    Negligence & Intentional Tort

    This summary also appears under Malpractice

    Issues: Medical malpractice; Ordinary negligence; Nursing home resident's death by positional asphyxiation; Existence of a professional relationship; What constitutes a "medical judgment"; Adkins v. Annapolis Hosp.; Whether plaintiff's "accident-free environment" claim was legally cognizable; Failure to train and failure to inspect claims; Dorris v. Detroit Osteopathic Hosp. Corp.; Claim for defendant's failure to act after its employees found the decedent entangled in her bedding the day before her asphyxiation; Medical malpractice statute of limitations; Effect of the equities and procedural features of the case on the statute of limitations issue
    Court: Michigan Supreme Court
    Case Name: Bryant v. Oakpointe Villas Nursing Ctr.
    e-Journal Number: 24046
    Judge(s): Markman, Corrigan, Weaver, Taylor, and Young Jr.; Dissent—Kelly and Cavanagh

    While under Dorris, plaintiff's failure to train and failure to inspect claims against defendant-nursing center sounded in medical malpractice, her claim defendant failed to take action after its employees found plaintiff's decedent entangled in her bedding the day before she sustained the positional asphyxiation that resulted in her death, sounded in ordinary negligence. However, plaintiff's "accident-free environment" claim was one of strict liability and not legally cognizable. Plaintiff's decedent, who had multi-infarct dementia, had suffered several strokes, and lacked any control over her locomotive skills, died after slipping between the rails of her bed and her neck became wedged in the gap between the rail and the mattress, preventing her from breathing. Nursing assistants testified the day before this occurred, they told their supervisor they found the decedent tangled in her restraining vest, gown, and bed sheets, and bed wedges placed to prevent her from entangling herself in the rails were not sticking properly and kept falling off. The court held plaintiff's claims defendant failed to train its staff to assess the risk of potential asphyxia, and negligently and recklessly failed to inspect the beds, frames, and mattress to assure the risk of positional asphyxia did not exist for the decedent, required expert testimony. However, no expert testimony was necessary to determine whether defendant's employees should have taken some sort of corrective action to prevent future harm after learning of the hazard. Further, although the statute of limitations would otherwise bar plaintiff's medical malpractice claims, for this case and others currently pending involving similar procedural circumstances, the medical malpractice claims could proceed to trial with the ordinary negligence claim. Reversed and remanded.

    The dissent concluded all of plaintiff's claims sounded in ordinary negligence, and disagreed the first claim was not cognizable—the decedent was in defendant's custodial care, defendant was obligated to take reasonable precautions to provide a reasonably safe environment, and breach of this duty could support a claim for ordinary negligence. The dissenting justices also would have held the trial court's initial ruling, still well within the applicable limitations period, that plaintiff's claims sounded in ordinary negligence, tolled the limitations period under MCL 600.5856(a).

    Full Text Opinion

    This summary also appears under Real Property

    Issues: Landlord-tenant; Plaintiff-tenant's claim for breach of statutory duties (MCL 554.139); O'Donnell v. Garasic; Lipsitz v. Schechter; Woodbury v. Bruckner (On Remand); Tenant's negligence claim arising from her slip and fall down icy steps at a home she rented from defendant; Whether danger posed by the steps was open and obvious; Whether the steps constituted special aspects removing them from the open and obvious doctrine; Proximate cause
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Emmons v. Harden Acres, LLC
    e-Journal Number: 24000
    Judge(s): Per Curiam—Fort Hood, Donofrio, and Borrello

    The trial court erred in granting defendant-landlord summary disposition of plaintiff-tenant's claim defendant breached its statutory duties under MCL 554.139 because the open and obvious doctrine cannot be used to avoid a specific statutory duty and there was a genuine issue of material fact concerning whether defendant's conduct was the proximate cause of plaintiff's injuries. Plaintiff injured her left arm when she slipped and fell down steps at a home she rented from defendant. In addition to asserting a negligence claim, plaintiff alleged defendant breached its statutory duties to maintain the premises in a manner fit for the use the parties' intended, to keep the premises in reasonable repair, and to comply with the applicable health and safety laws. While the court agreed summary disposition of plaintiff's negligence claim was proper because the danger posed by the ice on the steps was open and obvious, summary disposition on the breach of statutory duties claim was error. Plaintiff produced expert evidence indicating an unnatural icy condition caused her fall due to improperly configured step, roof, and gutter systems. Accepting her arguments as true, the evidence suggested defendant's negligence was a cause of her fall and provided a reasonable basis for concluding it was more likely than not defendant's conduct was the proximate cause of her fall and injuries. Affirmed in part, reversed in part, and remanded.

    Full Text Opinion

    Real Property

    This summary also appears under Negligence & Intentional Tort

    Issues: Landlord-tenant; Plaintiff-tenant's claim for breach of statutory duties (MCL 554.139); O'Donnell v. Garasic; Lipsitz v. Schechter; Woodbury v. Bruckner (On Remand); Tenant's negligence claim arising from her slip and fall down icy steps at a home she rented from defendant; Whether danger posed by the steps was open and obvious; Whether the steps constituted special aspects removing them from the open and obvious doctrine; Proximate cause
    Court: Michigan Court of Appeals (Unpublished)
    Case Name: Emmons v. Harden Acres, LLC
    e-Journal Number: 24000
    Judge(s): Per Curiam—Fort Hood, Donofrio, and Borrello

    The trial court erred in granting defendant-landlord summary disposition of plaintiff-tenant's claim defendant breached its statutory duties under MCL 554.139 because the open and obvious doctrine cannot be used to avoid a specific statutory duty and there was a genuine issue of material fact concerning whether defendant's conduct was the proximate cause of plaintiff's injuries. Plaintiff injured her left arm when she slipped and fell down steps at a home she rented from defendant. In addition to asserting a negligence claim, plaintiff alleged defendant breached its statutory duties to maintain the premises in a manner fit for the use the parties' intended, to keep the premises in reasonable repair, and to comply with the applicable health and safety laws. While the court agreed summary disposition of plaintiff's negligence claim was proper because the danger posed by the ice on the steps was open and obvious, summary disposition on the breach of statutory duties claim was error. Plaintiff produced expert evidence indicating an unnatural icy condition caused her fall due to improperly configured step, roof, and gutter systems. Accepting her arguments as true, the evidence suggested defendant's negligence was a cause of her fall and provided a reasonable basis for concluding it was more likely than not defendant's conduct was the proximate cause of her fall and injuries. Affirmed in part, reversed in part, and remanded.

    Full Text Opinion