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The e-Journal provides summaries of all opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published and unpublished), the U.S. Sixth Circuit Court of Appeals (published), and selected U.S. District Courts.

Case Summaries           e-Mail to a Friend Printer Friendly Version

Cases appear under the following practice areas:


Civil Rights

 

This summary also appears under Employment & Labor Law

 

Issues: Retaliation claim under the Persons With Disabilities Civil Rights Act (PWDCRA)(MCL 37.1101 et seq.); MCL 37.1602(a); Aho v. Department of Corr.; Evidence of a "legitimate business reason" for the plaintiff's discharge; Absence of evidence of "pretext"

Court: Michigan Court of Appeals (Unpublished)

Case Name: Booker v. Henry Ford Health Sys.

e-Journal Number: 44133

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

The trial court's conclusion the plaintiff failed to show retaliation under the PWDCRA was correct because even if her allegations were sufficient to state a prima facie case, the defendant-former employer presented evidence plaintiff's supervisor (T) fired her due to her conduct immediately before her discharge and plaintiff neither argued this was not a "legitimate business reason" nor presented any evidence it was a mere "pretext" to conceal a discriminatory reason.  In March 2005, plaintiff requested April 21 off to go to a doctor appointment. T initially gave her permission, but changed her mind on April 13 due to scheduling problems. Plaintiff apparently informed her union representative and began a letter to the regional administrator. However, before she finished the letter, T relented and allowed her to take the day off. According to plaintiff she was never disciplined by her employer between 1980 and 2005, yet beginning in June 2005 she began to be "written up" by T for various infractions, including tardiness and dress code violations. Plaintiff was suspended for five days for closing the x-ray department when a patient was waiting in May 2006, and was warned "further occurrences may result in progressive actions up to termination." T scolded her in September 2006 for not getting her work done, and in response, "plaintiff became loud and argumentative, going out to the hallway outside" T's office and shouting "she wanted witnesses." T called security, notified defendant's HR department, and filed a "Corrective Action," checking the line for termination of plaintiff's employment. Plaintiff was terminated. On appeal, she argued the trial court improperly decided a fact question in granting defendant's summary disposition motion on the morning of trial - the HR department, and not T, fired her. Plaintiff asserted fact issues existed about what part T played in the firing. The court concluded plaintiff was correct she had evidence T was the decision-maker, and the trial court's statement T did not fire plaintiff was an improper factual finding. However, this statement was only one of several reasons the trial court gave for granting defendant's motion. The trial court's conclusion plaintiff produced nothing showing retaliation was correct and provided a sufficient basis for granting defendant's motion. Affirmed.

 


Corrections

 

Issues: Whether the trial court properly vacated the hearing officer's (HO) decision finding petitioner guilty of the major misconduct "accomplice to escape"; MDOC Policy Directive (PD) 03.03.105A defining "accomplice"; PD 03.03.105B defining "escape"; Whether the trial court misapplied the "substantial evidence" test to the agency's factual findings; Boyd v. Civil Serv. Comm'n; Whether the trial court discussed the "duress" defense raised by petitioner

Court: Michigan Court of Appeals (Unpublished)

Case Name: Welky v. Department of Corr.

e-Journal Number: 44136

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

Concluding the petitioner's actions did not satisfy the definitions of "Accomplice" to "Escape," the court held the trial court properly vacated the respondent's decision "as unsupported by competent, material, and substantial evidence on the whole record," and affirmed. The trial court vacated the HO's decision finding the petitioner guilty of the major misconduct of "accomplice to escape." The HO found petitioner guilty because he failed to report to authorities information about a planned prison escape attempt. Apparently, other prisoners had removed flooring from an area, broken through the concrete floor, and were digging a tunnel toward the prison fence. Petitioner was aware of the plan because one of those involved asked him if he knew how the person could get a car. Allegedly, petitioner did not report this information to authorities. Petitioner appealed to the trial court, which reversed and vacated the HO's decision as unsupported by competent, material, and substantial evidence on the whole record. The trial court concluded the evidence revealed no active involvement in the escape plan by petitioner, and held at most he was guilty of "passive concealment of information relating to an escape" and his claimed defense of duress was indisputably established. The court held the petitioner's actions did not satisfy the definitions of "Accomplice" to "Escape," where there was no indication he was involved with the other prisoners' escape efforts and his awareness of the plans did not show he "assisted" them in the commission of escape. There was also no indication he "concealed the violation from authorities" after it was committed. The respondent failed to offer a cogent explanation of how failure to inform authorities of other prisoners' plans or activities in preparation for escape satisfied the requisite definitions of "Accomplice" to "Escape." Affirmed.

 


Employment & Labor Law

 

This summary also appears under Civil Rights

 

Issues: Retaliation claim under the Persons With Disabilities Civil Rights Act (PWDCRA)(MCL 37.1101 et seq.); MCL 37.1602(a); Aho v. Department of Corr.; Evidence of a "legitimate business reason" for the plaintiff's discharge; Absence of evidence of "pretext"

Court: Michigan Court of Appeals (Unpublished)

Case Name: Booker v. Henry Ford Health Sys.

e-Journal Number: 44133

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

The trial court's conclusion the plaintiff failed to show retaliation under the PWDCRA was correct because even if her allegations were sufficient to state a prima facie case, the defendant-former employer presented evidence plaintiff's supervisor (T) fired her due to her conduct immediately before her discharge and plaintiff neither argued this was not a "legitimate business reason" nor presented any evidence it was a mere "pretext" to conceal a discriminatory reason.  In March 2005, plaintiff requested April 21 off to go to a doctor appointment. T initially gave her permission, but changed her mind on April 13 due to scheduling problems. Plaintiff apparently informed her union representative and began a letter to the regional administrator. However, before she finished the letter, T relented and allowed her to take the day off. According to plaintiff she was never disciplined by her employer between 1980 and 2005, yet beginning in June 2005 she began to be "written up" by T for various infractions, including tardiness and dress code violations. Plaintiff was suspended for five days for closing the x-ray department when a patient was waiting in May 2006, and was warned "further occurrences may result in progressive actions up to termination." T scolded her in September 2006 for not getting her work done, and in response, "plaintiff became loud and argumentative, going out to the hallway outside" T's office and shouting "she wanted witnesses." T called security, notified defendant's HR department, and filed a "Corrective Action," checking the line for termination of plaintiff's employment. Plaintiff was terminated. On appeal, she argued the trial court improperly decided a fact question in granting defendant's summary disposition motion on the morning of trial - the HR department, and not T, fired her. Plaintiff asserted fact issues existed about what part T played in the firing. The court concluded plaintiff was correct she had evidence T was the decision-maker, and the trial court's statement T did not fire plaintiff was an improper factual finding. However, this statement was only one of several reasons the trial court gave for granting defendant's motion. The trial court's conclusion plaintiff produced nothing showing retaliation was correct and provided a sufficient basis for granting defendant's motion. Affirmed.

 


Negligence & Intentional Tort

 

Issues: Slip and fall; General negligence claim; "Duty"; Moning v. Alfono; "Foreseeability"; Groncki v. Detroit Edison Co.; Similarity between the "open and obvious hazard" doctrine and the general negligence standard for determining if a defendant breached a duty to warn; Laier v. Kitchen; Novotney v. Burger King Corp. (On Remand); Osman v. Summer Green Lawn Care, Inc.; Whether it was foreseeable the warning signs would be undetected by some customers so more signs should have been placed or they should have been placed differently; Effect of the court's prior holding as a matter of law on the related premises liability claim the wet floor was open and obvious with the warning signs placed as they were

Court: Michigan Court of Appeals (Unpublished)

Case Name: Maness v. Carlton Pharmacy

e-Journal Number: 44139

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

The court affirmed the trial court's order granting defendants-Crystal Kleen Cleaners and Asher summary disposition on the plaintiff's general negligence claim arising from her slip and fall on a floor Asher had just mopped, noting it had already held as a matter of law on the related premises liability claim the wet floor was "open and obvious" with the warning signs placed as they were and concluding Asher could not have made the hazard more apparent if it was already "open and obvious." Plaintiff fell on defendant-Carlton Pharmacy's floor after Asher (who worked for Crystal Kleen) mopped it. While Asher placed "wet floor" signs, the dispute concerned whether the warning was adequate. In a prior opinion, the court held the hazardous condition was open and obvious, and not unreasonably dangerous. There was a surveillance video showing plaintiff's fall, which removed debate about where she was, which way she was walking, where the warning signs were, and whether anyone else walked in the area. The court noted the trial court erred in applying the "open and obvious hazard" test as to Asher and Crystal Kleen because they were not in possession of the premises - the correct test was for general negligence. However, the court determined the evidence showed no genuine issue of material fact Asher performed her duties with due care. The Supreme Court vacated this portion of the court's prior opinion because the issue of ordinary negligence was not considered by the trial court. Justice Markman dissented, stating the court's determination the "wet floor" sign made the condition of the floor "open and obvious" for Carlton Pharmacy's purposes necessarily showed Krystal Kleen and Asher performed their duty to warn. On remand, the trial court granted Asher and Krystal Kleen summary disposition, stating its agreement with the court and Justice Markman. The court noted there was no question Asher's duty extended to providing adequate warning the floor might be slippery so customers could either avoid it or walk carefully. The issue was whether it was foreseeable the warning would not be seen by some customers so Asher should have placed more signs or placed them differently. "While the existence of an open and obvious condition is not always conclusive regarding the actor's negligence, under the facts of the present case, that conclusion means Asher could not have done more." Affirmed.

 


Termination of Parental Rights

 

Issues: Termination of parental rights pursuant to ยง 19b(3)(g)(failure to provide proper care and custody); Whether the trial court properly accepted the respondent-mother's plea to the supplemental petition as amended; MCR 3.971(A) and MCR 3.977; MCR 3.971(C); In the criminal context (MCR 6.302(C)); People v. Taylor; Whether the trial court conducted a permanency planning hearing; Whether the trial court properly accepted respondent's plea without first ascertaining she was competent to tender a plea; In the criminal context; People v. Whyte; People v. Mette; People v. Inman; People v. Harris

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Divers

e-Journal Number: 44154

Judge(s): Per Curiam - Fort Hood, Sawyer, and Donofrio

 

Since the respondent-mother did not challenge the trial court's substantive decision to terminate her parental rights to the minor child but argued various procedural errors warranted reversal, the court held she failed to establish the claimed procedural errors on appeal. The child was placed into care in part because respondent had a serious substance abuse problem. Respondent effectively consented to termination of her parental rights, having executed a document indicating "that she is unable to provide a safe, stable, nonneglectful home environment for her minor child [JD], and will be unable to do so within a reasonable amount of time," termination of her parental rights was in the child's best interests, and she "does not contest termination of her parental rights to [JD]." Respondent contended, inter alia, the trial court erred in accepting her plea to the supplemental petition as amended because the plea was not voluntarily made. The trial court advised respondent by agreeing to the amendment of the petition she would give up her right to a hearing on the supplemental petition, to have petitioner prove its case by clear and convincing evidence, to cross-examine witnesses, to subpoena witnesses, and to testify on her own behalf. If the plea was accepted, she would not have any rights concerning the child. When asked if her plea was the product of any promises or threats, at first she said she had been threatened and explained "he" (apparently a reference to her attorney) told her "if I took it to trial I would lose everything." The trial court indicated it could not accept a plea "from someone who says they've been threatened" and questioned her further. She then conceded she had not been threatened and wanted to proceed to the termination. Because she admitted she had not been threatened, her plea was not involuntary and the trial court did not plainly err in accepting the plea. Affirmed.