• Constitutional Law (1)
• Contracts (1)
• Criminal Law (2)
• Insurance (1)
• Municipal (1)
• Negligence & Intentional Tort (2)
• School Law (1)
• Workers' Compensation (1)

Constitutional Law

 

This summary also appears under School Law

 

Issues: Whether universities can establish quotas for members of certain racial groups or treat their applications uniquely; Gratz v. Bollinger; Grutter v. Bollinger; Prohibition of affirmative action programs; Operation King's Dream v. Connerly; Mich. Const. 1963, art. 1, § 26; Equal protection; U.S. Const. amend. XIV; Right to enter political process; Washington v. Seattle Sch. Dist. No. 1; Hunter v. Erickson; "Discrete and insular minorities"; United States v. Carolene Prods. Co.; Education; Brown v. Board of Educ.; Green v. County Sch. Bd.; Establishment of Michigan universities; Mich. Const. 1963, art. 8, § 5; Authority of governing boards; Glass v. Dudley Paper Co.; Attorney Gen. ex rel. Cook v. Burhans; Board of Regents of Univ. of MI v. Auditor Gen.; Federated Publ'ns, Inc. v. Board of Trs. of MI State Univ.; MCL 390.5 & 390.3-.6; Constitutional amendment proposal; Mich. Const. 1963, art. 12, §§ 1 & 2; "Strict scrutiny"; Crawford v. Board of Educ.; Motion to be dismissed as "misjoined" parties; Joinder; Fed.R.Civ.P. 21; Permissive joinder; Fed.R.Civ.P. 20(a) & (a)(2); Glendora v. Malone (SD NY); Right to intervene; Fed.R.Civ.P. 24(a); United States v. Michigan; Morgan v. McDonough (1st Cir.); Trbovich v. United Mine Workers of Am.; Bradley v. Milliken

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality by Any Means Necessary v. Regents of the Univ. of MI

e-Journal Number: 53182

Judge(s): En banc - Cole, Martin, Daughtrey, Moore, Clay, White, Stranch, and Donald; Joining in Part II B & C – Batchelder, Gibbons, Rogers, Sutton, Cook, and Griffin; Dissent – Boggs and Batchelder; Separate Dissent – Gibbons, Batchelder, Rogers, Sutton, and Cook with Griffin joining except as to Part III; Separate Dissent – Rogers and Cook; Separate Dissent – Sutton, Batchelder, Boggs, and Cook; Separate Dissent – Griffin

 

The court held that the district court erred in granting summary judgment for the defendants because the provisions of Proposal 2 affecting Michigan's public colleges and universities are unconstitutional. Plaintiffs claimed that Michigan's Proposal 2, which eliminated the consideration of "race, sex, color, ethnicity, or national origin" in individualized admissions decisions, violated the U.S. Constitution and federal statutory law. Plaintiffs limited their request for relief to Proposal 2 as it applied to public education. After a series of rulings, the court granted the intervenor-defendant-AG's request for en banc review. The court began its analysis by noting that the sole issue before it was whether Proposal 2 violates the constitutional guarantee of equal protection "by removing the power of university officials to even consider using race as a factor in admissions decisions - something they are specifically allowed to do under Grutter." First, the court applied the Hunter/Seattle test to Proposal 2 and found that it targeted a program that "inures primarily to the benefit of the minority" and reordered the political process in Michigan "in a way that places special burdens on racial minorities." The court noted that it "need not look further than the approved ballot language - characterizing Proposal 2 as an amendment 'to ban affirmative action programs' - to confirm that the legislation targets race-conscious admissions policies and, insofar as it prohibits consideration of applicants' race in admissions decisions, that it has a racial focus." The court also concluded that Proposal 2 affects a "political process," noting that the elected boards of Michigan's public universities can, and do, change their respective admissions policies, making those policies part of the political process. Further, whether the board or a delegated body "sets the rules for consideration of race in admissions, these decisions fall under the umbrella of the elected board and are thus part of the political process." The court concluded that, because "less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to traverse a more arduous road without violating the Fourteenth Amendment." The court rejected defendants' arguments as to why Proposal 2 survived constitutional scrutiny. It first found that the distinction urged by the AG "erroneously imposes an outcome-based limitation on a process-based right." The court found that like Initiative 350 in Seattle, "Proposal 2 'burdens all future attempts' to implement race-conscious admissions policies 'by lodging decisionmaking authority over the question at a new and remote level of government.'" The court next analyzed Proposal 2 under the strict scrutiny standard, finding that because the AG did not argue that Proposal 2 satisfied a compelling state interest, the argument need not be considered, and those portions of the proposal affecting Michigan's public institutions of higher education violated the Equal Protection Clause. Finally, the court found that the district court did not err by denying the university defendants' motion for dismissal as misjoined parties, or in granting the Cantrell plaintiffs' motion for summary judgment to dismiss intervenor-defendant-Russell from the case because he no longer satisfied the requirements for intervention. Affirmed in part and reversed in part.

 

Contracts

 

This summary also appears under Insurance

 

Issues: Whether there was a covered "occurrence" under the policy; Allen v. Bloomfield Hills Sch. Dist.; Liparoto Constr. Inc. v. General Shale Brick, Inc.; Latham v. Barton Malow Co.; American Home Assurance Co. v. Michigan Catastrophic Claims Ass'n; McGrath v. Allstate Ins. Co.; Radenbaugh v. Farm Bureau Ins. Co. of MI; "Your work"; Whether the damage caused by the shifting foundation walls was the result of gravity and thus was an accident and a covered occurrence; Merkur Steel Supply Inc. v. Detroit; Whether Radenbaugh supported coverage

Court: Michigan Court of Appeals (Unpublished)

Case Name: Heaton v. Pristine Home Builders, LLC

e-Journal Number: 53103

Judge(s): Per Curiam – Gleicher and Ronayne Krause; Concurring in the result only - Shapiro

 

Holding, inter alia, that the trial court correctly concluded that the situation in this case was not a covered "occurrence" under the policy, the court affirmed the trial court's summary dismissal of the garnishment action against defendant-Auto-Owners Insurance Co. Defendant-Pristine Home Builders served as the general contractor on plaintiff's home construction project and hired a subcontractor, Great Lakes Superior Walls, to install "precast concrete foundation walls" at the site. The foundation walls shifted during construction, damaging the entire structure. Plaintiffs won a jury verdict against several contractors involved in the construction of their home. Pristine did not pay its share of the jury award and plaintiffs sought a writ of garnishment against Auto-Owners (Pristine's commercial general liability insurer). The policy defined an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." According to Pristine's insurance policy, any work performed on its behalf by a subcontractor was attributable to Pristine. The policy defined "your work" as - a) "Work or operations performed by you or on your behalf" and b) "Materials, parts, or equipment furnished in connection with such work or operations." As a result of the shifting of the negligently constructed foundation walls, the entirety of the structure that was constructed to that point had to be razed and rebuilt. All of the work that was affected was done by Pristine or its subcontractors. "As 'the damage . . . [was] confined to the insured's own work product the insured [was] the injured party, and the damage cannot be viewed as accidental.'"

 

Criminal Law

 

Issues: Ineffective assistance of counsel for not admitting the first-trial testimony of a witness (M) after he refused to testify during the second trial; Premo v. Moore; People v. Payne; Strickland v. Washington; People v. Lockett; People v. Hyland; Whether counsel reviewed the first-trial transcripts; Wiggins v. Smith; People v. Unger; People v. Barnett; In re Ayres; Whether defendant was prejudiced by counsel's alleged lack of preparation; People v. Caballero; People v. Hoag; Whether the trial court's denial of defendant's motion to adjourn trial shortly before trial was to begin violated his due process rights; People v. Lawton; People v. Suchy; "Good cause"; People v. Coy; Whether defendant's due process rights were violated when the trial court made him wear shackles during the trial; People v. Dunn; People v. Dixon; People v. Davenport; People v. Solomon (Amended Opinion); People v. Vaughn; People v. Horn; Assault with intent to murder (AWIM); Assault with intent to do great bodily harm (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Powell

e-Journal Number: 53104

Judge(s): Per Curiam - Borrello and Riordan; Concurring in part, Dissenting in part - Ronayne Krause

 

In this case where the defendant was convicted of unlawful imprisonment, the court held, inter alia, that while defense counsel's failure to admit the first-trial testimony of M may have fallen below an objective standard of reasonableness, the court could not conclude that trial counsel's failure deprived defendant of a substantial defense. Thus, he failed to establish the necessary prejudice to prevail on this issue (or any of the other issues of ineffective assistance of counsel he raised). The defendant and the victim were in an abusive relationship for over a year. After the relationship ended, the victim went to defendant's residence to retrieve some of his property. The victim did not think defendant would be there because he told him he would not be there at that time. Once inside the residence, the victim saw defendant and tried to escape. Defendant grabbed him, threw him on the floor and kicked him in the stomach. Defendant showed the victim a knife and dragged him by the hair into the basement. Then defendant began to hit the victim's head against the concrete floor, tied the victim's wrists, ankles, and mouth with belts and extension cords, and gagged his mouth with a sock. Later, defendant's roommate knocked on the upstairs front door. Defendant put the victim in a closet and left to answer the door. The victim hopped up the stairs to the basement door, which was locked. Defendant then went to the basement door, forced it open, and threw the victim back down the basement stairs. He proceeded to stab the victim several times in the face and shoulder. The roommate left and called the police. Defendant left the apartment and drove off in the victim's van. The victim was later rescued by a responding officer about 15 minutes after defendant left. The victim was cut on his tongue and was scratched on his back, wrist, and knees. Defendant was arrested and interviewed by the police. During the interview, he said that tying up the victim was his roommate's idea, the roommate was the one who wanted to confront the victim, the roommate had a gun during the incident and prevented defendant from participating in the confrontation with the victim. After a jury trial, defendant was convicted of UDAA, felonious assault, and domestic assault. He was found not guilty of the charges of AWIM and AWIGBH. The trial court declared a mistrial as to defendant's unlawful imprisonment charge because the jury could not reach a verdict. The prosecution elected to retry defendant on that charge and a trial date was set. Defense counsel moved for a second adjournment. Defense counsel had received the first-trial transcripts the prior day and a prosecution witness would not be available on the scheduled trial date. The trial court denied the second request for an adjournment. During the first trial M testified that he heard the victim bragging that he lied about what happened during the incident so that defendant would be arrested. However, M did not testify at the second trial. After receiving a subpoena, M told defense counsel that he intended to invoke his Fifth Amendment right against self-incrimination.The jury found defendant guilty of unlawful imprisonment. Affirmed.

 

Issues: Sufficiency of the evidence to establish defendant's identity as the perpetrator to convict him of carjacking, unarmed robbery, and two counts of CSC II; People v. Tennyson; People v. Nowack; People v. Yost; People v. Davis; People v. Scotts; People v. Wolfe; In-court identification; People v. Harris; Right to counsel at the photographic lineup; People v. Hickman; People v. Wyngaard; Suggestive pretrial identification; People v. Williams; People v. Hornsby; People v. Kachar; Whether defendant was properly bound over for trial; People v. Waltonen; People v. Bennett; "Speedy" trial; People v. Patton; People v. Mackle; People v. Williams; People v. Cain; People v. Gilmore; People v. Adams; People v. Cooper; Venue; People v. Unger; People v. Harvey; People v. Seals; Jury composition; Taylor v. Louisiana; People v. Traylor; Sentencing; Scoring of OVs 4, 7, and 8; People v. Wiggins; People v. Haacke; People v. Francisco; Prosecutorial misconduct; United States v. Wade; People v. Benson; Ineffective assistance of counsel; People v. Rodriguez; People v. Solmonson; Stipulation to admissibility of composite sketch; People v. Rockey; Incomplete jury instructions; People v. Kelly; Defendant's habitual offender status

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Preston

e-Journal Number: 53126

Judge(s): Per Curiam - O'Connell, Donofrio, and Beckering

 

The court held, inter alia, that viewed in the light most favorable to the prosecution, the evidence was sufficient to enable the jury to conclude that the defendant was the perpetrator beyond a reasonable doubt. His challenges to the weight and credibility of the victim's identification testimony were matters for the jury to decide and did not affect the sufficiency of the evidence. Because the evidence was sufficient to support his convictions, the victim's identification of him was properly admitted at trial, and his convictions rendered harmless any identification error that may have occurred at the preliminary examination. He was not denied the right to a speedy trial, he failed to demonstrate plain error as to venue and the composition of the jury venire, and he was not entitled to resentencing. Further, the prosecutor did not commit misconduct, defendant was not denied the effective assistance of counsel, and the trial court did not abuse its discretion in conducting the proceedings. His convictions arose from a criminal episode during which a perpetrator invaded the victim's home, robbed her of money and jewelry, sexually assaulted her, and carjacked her vehicle. Immediately after the incident, the victim viewed many photographs, but did not identify anyone as the perpetrator. Defendant was apprehended after having fled from the victim's vehicle. His photograph was included in a new lineup, and the victim identified him as the perpetrator with 80% certainty. After hearing his voice at the preliminary examination the victim was 100% certain that defendant was the person who committed the crimes. His theory of defense at trial was misidentification and he argued that the victim's identification of him was inconsistent and not credible. The victim viewed 9 different photographic lineups consisting of 54 people, and never identified anyone other than the defendant as the perpetrator. She identified him with 80% certainty from his photograph and 100% certainty after she heard his voice. She testified that while he held her from behind during the incident she was able to see him when she initially encountered him in the foyer of her home. She described him as an African-American male about 5'9" tall, stocky, well built, about 200 to 230 pounds, and wearing blue jeans, latex gloves, and a hooded sweatshirt with the hood up. The victim had a second chance to see him and got a very good glance of him for 45 to 60 seconds through some bi-fold doors when he put her in a closet. By that time, the sun provided more light and his hood was positioned so that she could see his entire profile, including his hairline. She also described his facial features, his skin tone, and facial hair. The investigating detective testified that when he saw defendant, his immediate reaction was that he fit the description that the victim gave. Further, the defendant's possession of her vehicle provided circumstantial evidence linking him to the crimes. The court affirmed defendant's convictions and sentences.

 

Insurance

 

This summary also appears under Contracts

 

Issues: Whether there was a covered "occurrence" under the policy; Allen v. Bloomfield Hills Sch. Dist.; Liparoto Constr. Inc. v. General Shale Brick, Inc.; Latham v. Barton Malow Co.; American Home Assurance Co. v. Michigan Catastrophic Claims Ass'n; McGrath v. Allstate Ins. Co.; Radenbaugh v. Farm Bureau Ins. Co. of MI; "Your work"; Whether the damage caused by the shifting foundation walls was the result of gravity and thus was an accident and a covered occurrence; Merkur Steel Supply Inc. v. Detroit; Whether Radenbaugh supported coverage

Court: Michigan Court of Appeals (Unpublished)

Case Name: Heaton v. Pristine Home Builders, LLC

e-Journal Number: 53103

Judge(s): Per Curiam – Gleicher and Ronayne Krause; Concurring in the result only - Shapiro

 

Holding, inter alia, that the trial court correctly concluded that the situation in this case was not a covered "occurrence" under the policy, the court affirmed the trial court's summary dismissal of the garnishment action against defendant-Auto-Owners Insurance Co. Defendant-Pristine Home Builders served as the general contractor on plaintiff's home construction project and hired a subcontractor, Great Lakes Superior Walls, to install "precast concrete foundation walls" at the site. The foundation walls shifted during construction, damaging the entire structure. Plaintiffs won a jury verdict against several contractors involved in the construction of their home. Pristine did not pay its share of the jury award and plaintiffs sought a writ of garnishment against Auto-Owners (Pristine's commercial general liability insurer). The policy defined an "occurrence" as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." According to Pristine's insurance policy, any work performed on its behalf by a subcontractor was attributable to Pristine. The policy defined "your work" as - a) "Work or operations performed by you or on your behalf" and b) "Materials, parts, or equipment furnished in connection with such work or operations." As a result of the shifting of the negligently constructed foundation walls, the entirety of the structure that was constructed to that point had to be razed and rebuilt. All of the work that was affected was done by Pristine or its subcontractors. "As 'the damage . . . [was] confined to the insured's own work product the insured [was] the injured party, and the damage cannot be viewed as accidental.'"

 

Municipal

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Trip and fall on a sidewalk; Whether the trial court properly denied the defendant-township summary disposition pursuant to MCR 2.116(C)(7) and (C)(10); The Governmental Tort Liability Act (GTLA)(MCL 691.1401 et seq.); MCL 691.1407(1); Whether the plaintiff presented sufficient evidence to rebut the inference that defendant maintained the sidewalk at issue in reasonable repair; Whether plaintiff showed that defendant had "constructive knowledge" of the sidewalk elevation; Whether the "highway exception" to governmental immunity (MCL 691.1402(1)) was applicable where the pavement elevation was ¾ inch at its highest point; The "two inch rule" (MCL 691.1402a); Whether defendant had actual or constructive notice of the alleged defect; Whether the sidewalk was maintained in reasonable repair and safe for public travel; Applicability of Gadigan v. City of Taylor; Quinto v. Cross & Peters Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Williams v. Township of Van Buren

e-Journal Number: 53100

Judge(s): Per Curiam - O'Connell and Donofrio; Concurrence - Beckering

 

The court held that the plaintiff failed to present sufficient evidence to rebut the inference that defendant maintained the sidewalk at issue in reasonable repair and the trial court properly granted defendant's motion for summary disposition on that basis. The court also held that plaintiff failed to present evidence showing that the elevation between the slabs had existed for at least 30 days before his fall. Thus, he failed to establish a genuine issue of material fact as to whether defendant had constructive knowledge of the condition. The case arose out of plaintiff's trip and fall on a sidewalk in 4/09 while he was jogging near his home. Plaintiff tripped and fell over an elevated portion of concrete that ran the entire width of the sidewalk and suffered a broken wrist. He sued defendant alleging that the highway exception to governmental immunity was applicable because defendant failed to maintain the sidewalk in reasonable repair so that it was reasonably safe for public travel. Defendant contended that the highway exception was inapplicable because the pavement elevation was only ¾ of an inch at its highest point, entitling defendant to a rebuttable inference that it maintained the sidewalk in reasonable repair because the defect was less than 2 inches. Defendant also argued that it had neither actual nor constructive knowledge of the defect since it had no reason to suspect that the adjacent homeowner had cut a part of the recently-installed sidewalk in order to run a pipe underneath it extending from the home's sump pump to the gutter in the street. Plaintiff submitted an affidavit of his expert construction engineer opining that the defect was unreasonably dangerous because the elevation had a "vertical, flat, blunt surface" which made it a "severe tripping hazard." Plaintiff contended that defendant was presumed to have been aware of the defect because it had existed for at least 30 days prior to the incident. The trial court agreed with defendant and granted the motion on the basis that the elevation was less than two inches high and readily observable. The court concluded that plaintiff's reliance on Gadigan was mistaken because its analysis on the issue was dictum. The court also held that plaintiff's expert's affidavit was insufficient to rebut the inference of reasonable repair. Further, his deposition testimony failed to create a genuine issue of material fact for trial. Plaintiff did not present sufficient evidence that defendant failed to maintain the sidewalk in reasonable repair. Plaintiff also contended that the defendant had constructive notice of the defect because it had existed for at least 30 days before the incident, but was unable to prove his claim. Affirmed.

 

Negligence & Intentional Tort

 

Issues: Premises liability; Slip and fall on snowcovered ice in defendant's grocery store parking lot; Young v. Sellers; Riddle v. McLouth Steel Prods Corp.; Rapistan Corp. v. Michaels; Bertrand v. Alan Ford, Inc.; "Open and obvious" danger; Slaughter v. Blarney Castle Oil Co.; Lugo v. Ameritech Corp.; Ververis v. Hartfield Lanes (On Remand); Royce v. Chatwell Club Apts.; Bialick v. Megan Mary, Inc.; Whether the snow-covered ice in defendant's parking lot was effectively "unavoidable"; Hoffner v. Lanctoe

Court: Michigan Court of Appeals (Unpublished)

Case Name: Garces v. La Providencia, LLC

e-Journal Number: 53149

Judge(s): Per Curiam – Owens and Ronayne Krause; Concurrence - Beckering

 

The court held that the plaintiff failed to establish a genuine issue of material fact as to whether the danger was open and obvious, and the trial court did not err in finding that the snow-covered ice was open and obvious as a matter of law. The court also held that as it was constrained to follow Hoffner, plaintiff was not "required or compelled to confront a dangerous hazard," and his claim the icy parking lot was unavoidable was without merit. Thus, the court affirmed the trial court's order granting summary disposition to defendant. Plaintiff's claim arose from injuries he suffered when he slipped and fell on snow-covered ice in defendant's grocery store parking lot. The trial court found that the danger was open and obvious as a matter of law and did not have any special aspects. The court has held "as a matter of law that, by its very nature, a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery." The court's holding in Ververis applied to the facts of this case. The court found unpersuasive plaintiff's assertions that he used care in parking in a spot away from the visible ice, wearing work boots, and watching where he was walking. The court has noted that "[w]hen deciding a summary disposition motion based on the open and obvious danger doctrine, 'it is important for courts . . . to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff.'" Regardless of the amount of care exercised by plaintiff, the court's analysis turned on the nature of the danger. Here, the court held that the snow-covered ice encountered by plaintiff constituted an open and obvious danger. Plaintiff next asserted that even if the ice was open and obvious, it was effectively unavoidable because the entire parking lot was covered in snow and plaintiff had to cross the parking lot to enter the store. In Lugo, the Michigan Supreme Court noted, as an example, that "a commercial building with only one exit for the general public where the floor is covered with standing water" would present an effectively unavoidable condition. Here, plaintiff did not allege and no evidence supported that it was necessary to cross the patch of ice on which plaintiff fell to enter defendant's store. The court held that the evidence here, when viewed in the light most favorable to plaintiff, failed to establish a question of fact as to whether the snow-covered ice in defendant's parking lot was effectively unavoidable.

 

This summary also appears under Municipal

 

Issues: Trip and fall on a sidewalk; Whether the trial court properly denied the defendant-township summary disposition pursuant to MCR 2.116(C)(7) and (C)(10); The Governmental Tort Liability Act (GTLA)(MCL 691.1401 et seq.); MCL 691.1407(1); Whether the plaintiff presented sufficient evidence to rebut the inference that defendant maintained the sidewalk at issue in reasonable repair; Whether plaintiff showed that defendant had "constructive knowledge" of the sidewalk elevation; Whether the "highway exception" to governmental immunity (MCL 691.1402(1)) was applicable where the pavement elevation was ¾ inch at its highest point; The "two inch rule" (MCL 691.1402a); Whether defendant had actual or constructive notice of the alleged defect; Whether the sidewalk was maintained in reasonable repair and safe for public travel; Applicability of Gadigan v. City of Taylor; Quinto v. Cross & Peters Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Williams v. Township of Van Buren

e-Journal Number: 53100

Judge(s): Per Curiam - O'Connell and Donofrio; Concurrence - Beckering

 

The court held that the plaintiff failed to present sufficient evidence to rebut the inference that defendant maintained the sidewalk at issue in reasonable repair and the trial court properly granted defendant's motion for summary disposition on that basis. The court also held that plaintiff failed to present evidence showing that the elevation between the slabs had existed for at least 30 days before his fall. Thus, he failed to establish a genuine issue of material fact as to whether defendant had constructive knowledge of the condition. The case arose out of plaintiff's trip and fall on a sidewalk in 4/09 while he was jogging near his home. Plaintiff tripped and fell over an elevated portion of concrete that ran the entire width of the sidewalk and suffered a broken wrist. He sued defendant alleging that the highway exception to governmental immunity was applicable because defendant failed to maintain the sidewalk in reasonable repair so that it was reasonably safe for public travel. Defendant contended that the highway exception was inapplicable because the pavement elevation was only ¾ of an inch at its highest point, entitling defendant to a rebuttable inference that it maintained the sidewalk in reasonable repair because the defect was less than 2 inches. Defendant also argued that it had neither actual nor constructive knowledge of the defect since it had no reason to suspect that the adjacent homeowner had cut a part of the recently-installed sidewalk in order to run a pipe underneath it extending from the home's sump pump to the gutter in the street. Plaintiff submitted an affidavit of his expert construction engineer opining that the defect was unreasonably dangerous because the elevation had a "vertical, flat, blunt surface" which made it a "severe tripping hazard." Plaintiff contended that defendant was presumed to have been aware of the defect because it had existed for at least 30 days prior to the incident. The trial court agreed with defendant and granted the motion on the basis that the elevation was less than two inches high and readily observable. The court concluded that plaintiff's reliance on Gadigan was mistaken because its analysis on the issue was dictum. The court also held that plaintiff's expert's affidavit was insufficient to rebut the inference of reasonable repair. Further, his deposition testimony failed to create a genuine issue of material fact for trial. Plaintiff did not present sufficient evidence that defendant failed to maintain the sidewalk in reasonable repair. Plaintiff also contended that the defendant had constructive notice of the defect because it had existed for at least 30 days before the incident, but was unable to prove his claim. Affirmed.

 

School Law

 

This summary also appears under Constitutional Law

 

Issues: Whether universities can establish quotas for members of certain racial groups or treat their applications uniquely; Gratz v. Bollinger; Grutter v. Bollinger; Prohibition of affirmative action programs; Operation King's Dream v. Connerly; Mich. Const. 1963, art. 1, § 26; Equal protection; U.S. Const. amend. XIV; Right to enter political process; Washington v. Seattle Sch. Dist. No. 1; Hunter v. Erickson; "Discrete and insular minorities"; United States v. Carolene Prods. Co.; Education; Brown v. Board of Educ.; Green v. County Sch. Bd.; Establishment of Michigan universities; Mich. Const. 1963, art. 8, § 5; Authority of governing boards; Glass v. Dudley Paper Co.; Attorney Gen. ex rel. Cook v. Burhans; Board of Regents of Univ. of MI v. Auditor Gen.; Federated Publ'ns, Inc. v. Board of Trs. of MI State Univ.; MCL 390.5 & 390.3-.6; Constitutional amendment proposal; Mich. Const. 1963, art. 12, §§ 1 & 2; "Strict scrutiny"; Crawford v. Board of Educ.; Motion to be dismissed as "misjoined" parties; Joinder; Fed.R.Civ.P. 21; Permissive joinder; Fed.R.Civ.P. 20(a) & (a)(2); Glendora v. Malone (SD NY); Right to intervene; Fed.R.Civ.P. 24(a); United States v. Michigan; Morgan v. McDonough (1st Cir.); Trbovich v. United Mine Workers of Am.; Bradley v. Milliken

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality by Any Means Necessary v. Regents of the Univ. of MI

e-Journal Number: 53182

Judge(s): En banc - Cole, Martin, Daughtrey, Moore, Clay, White, Stranch, and Donald; Joining in Part II B & C – Batchelder, Gibbons, Rogers, Sutton, Cook, and Griffin; Dissent – Boggs and Batchelder; Separate Dissent – Gibbons, Batchelder, Rogers, Sutton, and Cook with Griffin joining except as to Part III; Separate Dissent – Rogers and Cook; Separate Dissent – Sutton, Batchelder, Boggs, and Cook; Separate Dissent – Griffin

 

The court held that the district court erred in granting summary judgment for the defendants because the provisions of Proposal 2 affecting Michigan's public colleges and universities are unconstitutional. Plaintiffs claimed that Michigan's Proposal 2, which eliminated the consideration of "race, sex, color, ethnicity, or national origin" in individualized admissions decisions, violated the U.S. Constitution and federal statutory law. Plaintiffs limited their request for relief to Proposal 2 as it applied to public education. After a series of rulings, the court granted the intervenor-defendant-AG's request for en banc review. The court began its analysis by noting that the sole issue before it was whether Proposal 2 violates the constitutional guarantee of equal protection "by removing the power of university officials to even consider using race as a factor in admissions decisions - something they are specifically allowed to do under Grutter." First, the court applied the Hunter/Seattle test to Proposal 2 and found that it targeted a program that "inures primarily to the benefit of the minority" and reordered the political process in Michigan "in a way that places special burdens on racial minorities." The court noted that it "need not look further than the approved ballot language - characterizing Proposal 2 as an amendment 'to ban affirmative action programs' - to confirm that the legislation targets race-conscious admissions policies and, insofar as it prohibits consideration of applicants' race in admissions decisions, that it has a racial focus." The court also concluded that Proposal 2 affects a "political process," noting that the elected boards of Michigan's public universities can, and do, change their respective admissions policies, making those policies part of the political process. Further, whether the board or a delegated body "sets the rules for consideration of race in admissions, these decisions fall under the umbrella of the elected board and are thus part of the political process." The court concluded that, because "less onerous avenues to effect political change remain open to those advocating consideration of non-racial factors in admissions decisions, Michigan cannot force those advocating for consideration of racial factors to traverse a more arduous road without violating the Fourteenth Amendment." The court rejected defendants' arguments as to why Proposal 2 survived constitutional scrutiny. It first found that the distinction urged by the AG "erroneously imposes an outcome-based limitation on a process-based right." The court found that like Initiative 350 in Seattle, "Proposal 2 'burdens all future attempts' to implement race-conscious admissions policies 'by lodging decisionmaking authority over the question at a new and remote level of government.'" The court next analyzed Proposal 2 under the strict scrutiny standard, finding that because the AG did not argue that Proposal 2 satisfied a compelling state interest, the argument need not be considered, and those portions of the proposal affecting Michigan's public institutions of higher education violated the Equal Protection Clause. Finally, the court found that the district court did not err by denying the university defendants' motion for dismissal as misjoined parties, or in granting the Cantrell plaintiffs' motion for summary judgment to dismiss intervenor-defendant-Russell from the case because he no longer satisfied the requirements for intervention. Affirmed in part and reversed in part.

 

Workers' Compensation

 

Issues: Whether the defendant was an "employer" under MCL 418.115 of the Worker's Disability Compensation Act (WDCA) (MCL 418.101 et seq.); McCaul v. Modern Tile & Carpet, Inc.; Luster v. Five Star Carpet Installations, Inc.; Alford v. Pollution Control Indus. of Am.; MCL 418.115(a); Berridge v. Willcome; MCL 418.115(b)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Booth v. DJ's Prof'l Tree Serv.

e-Journal Number: 53099

Judge(s): Per Curiam – Markey, Shapiro, and Ronayne Krause

 

Holding that the trial court did not err by finding that defendant was not an "employer" under MCL 418.115(b) and in dismissing the relevant count in plaintiff's complaint, the court affirmed and remanded for further proceedings as to plaintiff's negligence claim, which was not dismissed. Plaintiff was injured while working for defendant. Defendant did not have worker's compensation insurance at the time of plaintiff's injury. Plaintiff later sued defendant asserting in one count that defendant was an uninsured employer under the WDCA and was strictly liable for plaintiff's damages. Defendant moved for summary disposition, arguing that it was not an employer for the purposes of the WDCA and thus, plaintiff could not base his claim on defendant's failure to purchase worker's compensation insurance. Defendant submitted labor records for the 56 weeks preceding plaintiff's injury, and both parties relied on these labor records to support their respective positions. After reviewing defendant's labor records, the trial court found that defendant was not an "employer" under MCL 418.115 of the WDCA and granted defendant's motion for summary disposition. The court first considered the application of MCL 418.115(a), which provides that an employer is subject to the WDCA if it regularly employs at least three employees at one time. The defendant bears the burden of demonstrating that it does not regularly employ three or more employees at one time. The controlling case as to the application of this test was Berridge. In Berridge, the court explained that the statute does not require that the employer always employ three or more employees. The court held that "where there is a 'pattern of conduct' of having three employees at a time even if the work is seasonal and there are periods of no work, or there are periods of work with less than three employees, the standard is met." However, here, the wage records on which both sides relied revealed that defendant rarely employed three or more employees during the same week and on only 3 occasions during the 56 weeks preceding plaintiff's injury employed 3 or more employees on the same day. Plaintiff argued that these records were not accurate, but did not offer evidence of any different data and in fact, relied on the defendant's records. Plaintiff also argued that the standard is not purely retrospective and that it can be met if the defendant intends to have three employees on a regular basis going forward, including the date of plaintiff's injury going forward. The court agreed that a prospective analysis is not excluded by the language of the statute. However, although there were three employees on the date of plaintiff's injury, plaintiff did not offered any proofs upon which the employer's intent to have three employees regularly thereafter could be based. Thus, the trial court properly concluded that plaintiff's proofs did not raise a question of fact under subsection (a). The court held that "subsection (b) has, by its language, a purely retrospective test and requires that defendant have employed one employee for 35 or more hours for 13 of the 52 weeks preceding plaintiff's injury." The records submitted did not support such a finding or create a question of fact.

 

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