• Civil Rights (1)
• Criminal Law (7)
• Employment & Labor Law (1)
• Insurance (1)
• Litigation (3)
• Malpractice (1)
• Negligence & Intentional Tort (2)
• Real Property (1)
• School Law (1)

Civil Rights

 

This summary also appears under Employment & Labor Law

 

Issues: Racial discrimination; MCL 37.2102(1); MCL 37.2202(1)(a); "Disparate treatment"; Wilcoxon v. Minnesota Mining & Mfg. Co.; Whether the plaintiffs showed that they were treated differently than "similarly situated" employees; Smith v. Goodwill Indus. of W. MI, Inc.; Requirement that evidence be admissible; MCR 2.116(G)(6); McCallum v. Department of Corrs.; Affidavit requirements; MCR 2.119(B)(1); Other evidence of discrimination; Characterization of a screw driver as a "weapon"; People v. Brown; Facts contained in the police report; MRE 801(c); MRE 802; Solomon v. Shuell

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gholston v. Minority Auto Handling Specialists

e-Journal Number: 53198

Judge(s): Per Curiam – Murphy, O’Connell, and Whitbeck

 

Holding that the plaintiffs did not show that they were similarly situated with non-protected employees who engaged in similar conduct, the court concluded that the trial court correctly determined that they did not establish a prima facie case of employment discrimination as a matter of law. Thus, the court affirmed the trial court's order granting the defendants summary disposition. Plaintiffs were terminated from their employment with defendant-Minority Auto Handling Specialists for "fighting, threatening, or attempting bodily injury to another employee or supervisor on the Employer or customer's premises or the Employers time." They asserted that they were treated differently than similarly situated employees and submitted evidence of four other physical altercations at Minority Auto's workplace. The court concluded that the closest incident to which plaintiffs were similarly situated involved the altercation between GS and RM, in which Minority Auto initially thought that a weapon and property damage were involved. While plaintiffs argued that, like their own incident, this incident involved property damage, the court concluded they did not provide any admissible evidence that GS actually had a baseball bat and used it to break the headlight on RM's car. They only provided an affidavit from JM, a Minority Auto employee and union representative, which was not admissible. "The trial court can only consider evidence offered in support of or in opposition to a motion for summary disposition to the extent it is admissible." An affidavit "must be based on personal knowledge, state with particularity facts admissible as evidence, and show that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit. Inadmissible evidence does not create an issue of material fact." JM's affidavit did not show that he had personal knowledge of the incident between GS and RM. Thus, the evidence was not admissible, and did not create an issue of material fact. "On the undisputed facts, the incident did not involve weapons or serious threats, was short in duration, did not involve police, and did not result in damage to a third person's property." The second incident, between DM and CD, was not comparable to plaintiffs' incident. "To be similarly situated, the conduct must be nearly identical." Viewing the evidence in the light most favorable to the nonmoving parties, DM approached CD in a threatening manner with a metal pipe while yelling, and DM was not reprimanded after CD reported the situation. "This incident did not involve a validated complaint of property damage, and no one called the police." The third incident did not involve weapons, a police report, or property damage. The fourth incident involving H did not support plaintiffs' position because Minority Auto actually terminated H's employment, though an arbitration committee later reinstated it. While "other employees engaged in physical misconduct, including physical altercations in which objects were thrown or other employees were struck, in none of the incidents did a third party call the police, and none of the incidents involved a validated report of property damage."

 

Criminal Law

 

Issues: Whether the trial court in the defendant's bench trial applied the proper burden of proof; Plain error review; People v. Carines; Presumption that a trial judge knows the law; People v. Garfield; Whether the defendant's convictions for felon in possession and felony-firearm violated his double jeopardy rights; People v. Calloway; "Legislative inadvertence"; In re Schnell; Binding effect of Calloway; Ferguson v. Gonyaw; Sentencing; Whether the trial court properly ordered defendant's CCW sentence to run consecutively to his felony-firearm sentence; People v. Brown

Court: Michigan Supreme Court

Case Name: People v. Manners

e-Journal Number: 53372

Judge(s): Young, Jr., Cavanagh, M. Kelly, Markman, Hathaway, M.B. Kelly, and Zahra

 

In an order in lieu of granting leave to appeal (see e-Journal # 48321 in the 4/5/11 edition for the Court of Appeals opinion in this case), the court remanded the case to the trial court. The court instructed the trial court on remand to amend the 5/31/11 judgment of sentence to remove all references to the defendant being sentenced as a habitual third offender. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining issues presented.

 

Issues: Sufficiency of the evidence to support the defendants' convictions of common law obstruction of justice; "Aiding and abetting"; People v. Robinson; People v. Jackson; "Intent"; People v. Flowers; People v. Bennett; People v. McRunels; People v. Thomas; Claim that the removal and concealment of a dead body is not a "common law" obstruction of justice; People v. Davis; People v. Jenkins; R v. Stephenson (Q.B.); Defendant-Rand's claim that the conduct in this case was more properly charged under a different statute; MCL 52.202-205; Defendant-Danielak's claim of insufficiency of the evidence to support her conviction of tampering with evidence; Defendants' claim that their convictions of tampering with evidence were improper because there was no "present or future official proceeding"; Danielak's claim of insufficient evidence to convict her of removing a body without a ME's permission; Danielak's claim that MCL 52.204 only applies to MEs, their agents, or their equivalents; People v. Haynes; Danielak's claim of insufficient evidence to sustain her conviction of delivery of a controlled substance causing death; People v. Plunkett; Danielak's claim that the prosecution failed to prove that the victim's death was caused by a heroin overdose; Danielak's claim that her conviction of delivery of a controlled substance causing death violated her due process rights by imposing strict liability without requiring any showing of mens rea; MCL 750.317a; People v. Quinn; People v. Aaron; People v. Derror; Right to present a defense; People v. Benton; People v. Unger; Chambers v. Mississippi; United States v. Scheffer; People v. King; "Hearsay"; MRE 801(c); MRE 802; People v. Harris

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Danielak

e-Journal Number: 53236

Judge(s): Per Curiam – Talbot, Beckering, and M.J. Kelly

 

In these consolidated appeals, the court held, inter alia, that there was sufficient evidence to support the defendants-Danielak and Rand's convictions of common law obstruction of justice. Defendants' convictions stemmed from the death of the victim (I). I went with Danielak to buy drugs and then back to Danielak's apartment, where they used a syringe to inject themselves with heroin. Danielak woke up late in the afternoon and found I dead on the bathroom floor. On discovering I's body, Danielak called her boyfriend, R. According to Danielak, R told her to go to his mother's house (Rand's house), get ready for work, and that he would take care of it. Danielak did as R instructed. Later that evening, R went to Rand's house and informed her that there was a dead body in Danielak's apartment. R and Rand drove to Danielak's apartment and placed the victim's body in the back seat of Rand's car. Later, R and Rand moved the body to the trunk and drove to a bridge. Rand parked on the side of the road and R removed I's body from the trunk. R placed I's body on the side of road, but it later slipped down an embankment and fell into the creek. It was undisputed that Danielak was not present at the time I's body was removed. At trial, the prosecution argued that she was guilty under a theory of aiding and abetting. Although evidence that Danielak aided and abetted the removal and concealment of I's body was circumstantial, the court held that it was sufficient to convict her. On discovering that I was dead, Danielak did not call the authorities to report what happened. Rather, she called R. Her decision to contact R, as opposed to the authorities, supported that she intended to cover up I's death and sought help in doing so. Also, after speaking with R, she did exactly as instructed - went to Rand's house and got ready for work. Thus, a rational jury could find beyond a reasonable doubt that Danielak gave encouragement to R that assisted in the commission of the crime. There was also sufficient evidence that Danielak intended the commission of the crime or had knowledge that R intended the commission of the crime. Again, she did not contact authorities to report I's death - rather, she contacted R. A rational jury could conclude that she contacted R because she intended to conceal I's body. The evidence also showed that Danielak sent text messages to I after she died in an effort to conceal her knowledge of I's death. Rand argued there was no evidence that she did anything indecent with I's body, or that her actions interfered with the administration of justice. Rand's argument that she did nothing indecent to the body missed the point. She was not charged with the indecent disposal of a human body. Thus, her argument was irrelevant. Rand's argument that her actions did not interfere with the administration of justice was also without merit. She argued that she did not obstruct justice because the ME was able to perform an autopsy and successfully determine that I died of a drug overdose. The crime of "obstruction of justice is 'committed when the effort is made to thwart or impede the administration of justice."' I's body was removed from Danielak's apartment in an effort to hide her involvement. This conduct constituted obstruction of justice, regardless of whether I's body was ultimately found and an autopsy was successfully performed. Affirmed.

 

Issues: Sufficiency of the evidence to convict the defendant of receiving and concealing a stolen motor vehicle, felon in possession, and felony-firearm; People v. Wolfe; People v. Hawkins; People v. Reese; People v. Fennell; MCL 750.535(7); People v. Fortuin; People v. Toodle; People v. Gallagher; MCL 750.224f; People v. Peals; "Constructive possession"; People v. Burgenmeyer; People v. Hill; MCL 750.535(7); MCR 6.403; People v. Simon; People v. Johnson; People v. Strickland

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Hill

e-Journal Number: 53223

Judge(s): Per Curiam - Murphy, O'Connell, and Whitbeck

 

The court held that sufficient evidence supported defendant's felony conviction for receiving and concealing stolen property on which the trial court predicated his felony-firearm conviction. Officer S received a tip that there was a suspected "chop shop" at defendant's residence. S testified that he went to the residence and observed a car in the backyard. He ran the vehicle's license plate number through the LEIN and discovered that the car's owner (DB) reported it stolen two months earlier. S obtained a search warrant for the residence. Officers executed the warrant several days later. S testified that when executing the search warrant he observed a partially stripped Chevrolet in the backyard. The car's tires were missing, its windows were broken, and it exuded a bad odor. Defendant and his wife (O) were inside the house with their children. Officer F testified that he searched defendant and found a shotgun shell in his pocket. F asked defendant where the shotgun was and defendant told him that it was in his bedroom between the mattresses. F recovered a .12-gauge shotgun from between the mattresses in the bedroom. Officer Q questioned defendant. He gave Q a signed statement. He stated that a man named M asked him to leave the car in his backyard, so that M could hide it from his girlfriend. Defendant said that after two weeks, he thought about pushing the car into the street because he "thought it might be stolen." Defendant said that O told him about the shotgun only 20 minutes before the police arrived and that he had a shell in his pocket because O bought the wrong shells and he intended to look in the basement to see if he owned the correct shells. At the bench trial, O testified that she bought the shotgun for personal protection, but did not tell defendant about it until about 20 minutes before the officers executed the search warrant. O testified that defendant handled the gun to try to show her how to use it. O could not answer questions about the basic operation of a shotgun. The trial court found defendant guilty of receiving and concealing a stolen motor vehicle. It found that defendant knew that the vehicle was stolen but kept it in his possession for an extended time. The trial court also found defendant guilty of felon in possession and felony-firearm. It also found that O's testimony was "incredulous" because she said she owned the shotgun, but could not explain how it worked. The trial court found that the shotgun belonged to defendant and even though it was found in a different room when the officers arrived, defendant knew its location and it was accessible to him. Defendant contended that he did not know the vehicle in his backyard was stolen. The court concluded, inter alia, that viewing the evidence in the light most favorable to the prosecution, defendant continued to possess the vehicle after he knew that it was stolen. The court also held that the prosecution did not have to prove the value of the stolen vehicle under the relevant statute. Further, there was sufficient evidence that defendant possessed the shotgun where its location was known to him and it was reasonably accessible to him. Affirmed.

 

Issues: Request to dismiss a juror "for cause"; People v. Williams; People v. Legrone; Remand for correction of clerical errors in the judgment of sentence

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Moore

e-Journal Number: 53210

Judge(s): Memorandum – Wilder, Gleicher, and Boonstra

 

The court held that the defendant was not entitled to relief on his claim that the trial court erred in denying his request to dismiss Juror 62 for cause because Juror 62 did not sit on the jury and defendant did not exhaust all of his peremptory challenges. However, the court remanded the case for the correction of clerical errors in the judgment of sentence. Defendant was convicted of resisting or obstructing a police officer, breaking and entering a vehicle with intent to steal property less than $200, and refusing to submit to fingerprinting. He was acquitted of an additional count of breaking and entering a vehicle with intent to steal property less than $200. The trial court sentenced him to 2 years' probation, with 183 days to be served in jail for the resisting or obstructing conviction, 93 days in jail for the breaking and entering a vehicle conviction, and 90 days in jail for refusal to submit to fingerprinting. While defendant argued on appeal that the trial court "allowed people on the jury with a state of mind that would prevent [the] person from rendering a just verdict," the record showed that Juror 62 did not sit on the jury. Defense counsel used a peremptory challenge to excuse her. At the end of the voir dire, he had two peremptory challenges remaining. While the parties did not raise the issue, the court noted that there were errors in the judgment of sentence. The verdict form and trial transcript both indicated that the jury found defendant not guilty of Count Three, breaking and entering a vehicle with intent to steal property less than $200. However, the judgment of sentence erroneously indicated that he was convicted of Count Three and received a sentence of 90 days in jail. The 90-day sentence was actually imposed for his conviction on Count Four, refusing to be fingerprinted, which the judgment of sentence erroneously indicated resulted in a sentence of 0 days.

 

Issues: "Other acts" evidence; MRE 404(b); People v. Roper; Prior inconsistent statements; MRE 613(b); Prosecutorial misconduct; People v. Fyda; "Vouching"; People v. Seals; Presumption that jurors follow their instructions; People v. Graves; Sufficiency of the evidence to establish the defendant's identity as the perpetrator; Confidential informant (CI)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Stanford

e-Journal Number: 53213

Judge(s): Per Curiam – Talbot, Beckering, and M.J. Kelly

 

The court held, inter alia, that the trial court did not err in admitting a retired police officer's (M) testimony because it was not prohibited under MRE 404(b) and it was admissible under MRE 613(b). Further, the evidence was sufficient to show establish the defendant's identity as the person who sold an undercover officer (S) the cocaine. Thus, the court affirmed defendant's conviction of delivery of less than 50 grams of cocaine. Defendant testified that he did not sell drugs to S and had never sold drugs. M testified on rebuttal that he had interviewed defendant before the controlled purchase in connection with an unrelated offense and that defendant told him that he bought and sold crack cocaine in Saginaw and Bay City. Defendant argued that the trial court erred when it permitted M to testify that defendant admitted to buying and selling crack cocaine. The court noted that the prosecutor did not offer M's testimony to prove that defendant had bad character and acted in conformity with that character - he offered the testimony to impeach defendant's testimony that he never sold drugs. Further, as required under MRE 613(b), defendant was given the opportunity to explain his prior statement when the prosecutor asked if he had told M whether he had "ever sold crack to anyone." He denied both statements, and the prosecutor properly impeached his testimony with M's testimony. Defendant also asserted that S's report contained an inaccurate description, which undermined S's identification. In his report S listed defendant's height and weight as 6'0" and 240 pounds, respectively. However, S agreed at trial that defendant appeared to be closer to 5'11" tall, and to weigh about 200 pounds. S explained that he used the personal information that was already entered into his department's computer system, and that he was remiss in not checking its accuracy. S explained the reason for the discrepancy between defendant's actual appearance and the description in the report, and whether his explanation was credible or undermined his identification was for the jury to determine. The court held that viewing the evidence in the light most favorable to the prosecutor, a rational trier of fact could have found that S's identification was credible. Defendant also cited testimony from the CI (W) in support of his claim that the evidence was insufficient to establish identity. However, W testified that she was under the influence of drugs on the day of the incident and did not remember anything that occurred that day. She agreed during cross-examination that she had written a statement for defense counsel stating that she had never seen defendant deliver cocaine to anyone, but this testimony was not compelling in light of her earlier statement about her lack of recall. Further, S testified that on the date of the controlled purchase, he asked W to make a purchase from defendant. S stated that W told him during an interview after the purchase that she had bought crack cocaine from defendant on a prior occasion. Although W's testimony contradicted S's testimony, the jury could properly disregard her version of events in favor of S's version. The court also rejected defendant's prosecutorial misconduct claim.

 

Issues: Sufficiency of the evidence to support the defendant's conviction of assault with intent to murder (AWIM); People v. Hawkins; People v. Kissner; People v. Wilkens; People v. McRunels; People v. Flowers; People v. Jackson; "Aiding and abetting"; People v. Robinson; People v. Carines; People v. Barclay; People v. Brown; "Great weight of the evidence"; People v. Lacalamita; People v. Lemmon; Sentencing; Scoring of OVs 1, 2, 6, and 14; People v. Endres (On Remand); People v. Lechleitner; People v. Kegler; People v. Mack; People v. Hoffman

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Williams

e-Journal Number: 53239

Judge(s): Per Curiam – Jansen, Stephens, and Riordan

 

The court held, inter alia, that the record evidence would allow a rational trier of fact to conclude beyond a reasonable doubt that defendant committed an act or encouraged T in a manner that assisted him in assaulting H with intent to murder. The fact that a gun was used to commit the assault against H, an instrument "naturally adapted to produce death," supported an inference that defendant acted with an actual intent to kill H. Under these circumstances, a rational trier of fact could have concluded that defendant either intended to kill H or knew that T intended to kill H. Thus, the court affirmed defendant's conviction of AWIM. H testified that she texted defendant to determine if he wanted to purchase two pounds of marijuana. Defendant responded that he wanted to purchase the marijuana and, over the course of several texts and phone calls, told H where and when to meet him for the exchange. Defendant never told H that he would be bringing another person, T, to the exchange or that this person would be purchasing half of the marijuana. H did not know T and had never spoken to T. H followed defendant's direction to walk down the street, retrieved the marijuana from her friend's car, and then followed defendant and T into the vacant house. Inside the house, defendant stood in front of H while T stood right behind her. When H showed defendant the marijuana so he could inspect its quality, defendant attempted to walk off with the marijuana, and H grabbed it back. Defendant said, "hold up," and then approached H. Shortly after, H was shot in the head. She could not testify as to who actually shot her because she never saw the gun. Even though defendant may or may not have in fact pulled the trigger, there was no doubt that defendant lured H into a vacant house, stood in front of one doorway while T stood in front of another doorway, and with T stole $2,200 worth of marijuana from H. There was also no doubt that either defendant shot H in the head or defendant stood by while T shot H in the head, at close range and with no warning. The evidence also established that defendant and T left H for dead, lying on the floor of a vacant house bleeding from the head, while they ran out of the back of the house with the bag of marijuana and fled the scene together.

 

Issues: Whether double jeopardy barred the defendant's retrial for felony murder; Yeager v. United States; Collateral estoppel; Ashe v. Swenson; Effect of the fact the prior jury returned inconsistent verdicts on the felony murder and first-degree home invasion charges; United States v. Powell; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Wilson

e-Journal Number: 53225

Judge(s): Per Curiam – Murphy, O’Connell, and Whitbeck

 

Holding that double jeopardy did not bar the defendant's retrial for felony murder, the court reversed the trial court's order dismissing the felony murder charge against him, reinstated the charge, and remanded the case. In the prior trial, a jury found defendant guilty of felony murder, second-degree murder, felony-firearm, AWIGBH, and two counts of unlawful imprisonment. In the same trial, the jury acquitted him of first-degree murder and first-degree home invasion. Defendant appealed his convictions and sentences to the court. The court vacated his convictions and sentences and remanded because the trial court erred in summarily denying his request to represent himself. On remand, the prosecution filed an amended information, again charging defendant with felony murder and other charges. For the felony murder charge, the amended information identified the predicate felony as first-degree home invasion. Defendant argued that because the prior jury acquitted him of first-degree home invasion, the constitutional double jeopardy protections barred the amended felony murder charge. The trial court agreed with defendant and dismissed the felony murder charge. The court noted that the "double jeopardy interest of preserving the finality of judgments includes the principle of collateral estoppel." This principle "prevents relitigation of an issue of ultimate fact 'that was necessarily decided by a jury's acquittal in a prior trial.'" The prior jury returned inconsistent verdicts on the felony murder and first-degree home invasion counts. This inconsistency negated the applicability of the double jeopardy collateral estoppel principle. The prior jury could not be deemed to have found an ultimate fact as to the first-degree home invasion. The trial court specifically instructed the jury that to convict defendant of felony murder, the jury had to conclude, in part, "that when he did the act that caused the death of [the victim], the defendant was committing the crime of first-degree home invasion . . . ." The jury found defendant guilty of felony murder, thus apparently concluding that he committed the crime of first-degree home invasion. However, the jury acquitted him of first-degree home invasion. While the jury had the prerogative of returning inconsistent verdicts, those inconsistencies precluded the court from identifying which facts, if any, the jury necessarily found as to the first-degree home invasion. "Absent an indication in the record of a necessarily decided ultimate fact, the double jeopardy collateral estoppel principle does not apply."

 

Employment & Labor Law

 

This summary also appears under Civil Rights

 

Issues: Racial discrimination; MCL 37.2102(1); MCL 37.2202(1)(a); "Disparate treatment"; Wilcoxon v. Minnesota Mining & Mfg. Co.; Whether the plaintiffs showed that they were treated differently than "similarly situated" employees; Smith v. Goodwill Indus. of W. MI, Inc.; Requirement that evidence be admissible; MCR 2.116(G)(6); McCallum v. Department of Corrs.; Affidavit requirements; MCR 2.119(B)(1); Other evidence of discrimination; Characterization of a screw driver as a "weapon"; People v. Brown; Facts contained in the police report; MRE 801(c); MRE 802; Solomon v. Shuell

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gholston v. Minority Auto Handling Specialists

e-Journal Number: 53198

Judge(s): Per Curiam – Murphy, O’Connell, and Whitbeck

 

Holding that the plaintiffs did not show that they were similarly situated with non-protected employees who engaged in similar conduct, the court concluded that the trial court correctly determined that they did not establish a prima facie case of employment discrimination as a matter of law. Thus, the court affirmed the trial court's order granting the defendants summary disposition. Plaintiffs were terminated from their employment with defendant-Minority Auto Handling Specialists for "fighting, threatening, or attempting bodily injury to another employee or supervisor on the Employer or customer's premises or the Employers time." They asserted that they were treated differently than similarly situated employees and submitted evidence of four other physical altercations at Minority Auto's workplace. The court concluded that the closest incident to which plaintiffs were similarly situated involved the altercation between GS and RM, in which Minority Auto initially thought that a weapon and property damage were involved. While plaintiffs argued that, like their own incident, this incident involved property damage, the court concluded they did not provide any admissible evidence that GS actually had a baseball bat and used it to break the headlight on RM's car. They only provided an affidavit from JM, a Minority Auto employee and union representative, which was not admissible. "The trial court can only consider evidence offered in support of or in opposition to a motion for summary disposition to the extent it is admissible." An affidavit "must be based on personal knowledge, state with particularity facts admissible as evidence, and show that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit. Inadmissible evidence does not create an issue of material fact." JM's affidavit did not show that he had personal knowledge of the incident between GS and RM. Thus, the evidence was not admissible, and did not create an issue of material fact. "On the undisputed facts, the incident did not involve weapons or serious threats, was short in duration, did not involve police, and did not result in damage to a third person's property." The second incident, between DM and CD, was not comparable to plaintiffs' incident. "To be similarly situated, the conduct must be nearly identical." Viewing the evidence in the light most favorable to the nonmoving parties, DM approached CD in a threatening manner with a metal pipe while yelling, and DM was not reprimanded after CD reported the situation. "This incident did not involve a validated complaint of property damage, and no one called the police." The third incident did not involve weapons, a police report, or property damage. The fourth incident involving H did not support plaintiffs' position because Minority Auto actually terminated H's employment, though an arbitration committee later reinstated it. While "other employees engaged in physical misconduct, including physical altercations in which objects were thrown or other employees were struck, in none of the incidents did a third party call the police, and none of the incidents involved a validated report of property damage."

 

Insurance

 

This summary also appears under Litigation

 

Issues: Whether the trial court properly denied the plaintiffs' motion for summary disposition and granted summary disposition to garnishee-defendant-AAA; "Spoliation of evidence"/whether plaintiffs were entitled to an adverse inference where AAA purged its files as to the case; Citizens Ins. Co. of Am. v. Juno Lighting, Inc.; Brenner v. Kolk; Woodard v. Custer; MCR 2.313(B) (permitting a trial court to impose sanctions for failure to comply with a discovery order but is inapplicable in the absence of a discovery order); Bloemendaal v. Town & Country Sports Ctr., Inc.; Banks v. Exxon Mobil; Bennett v. Detroit Police Chief; Whether the trial court correctly held that the policy transfer language precluded coverage; McGrath v. Allstate Ins. Co.; Klapp v. United Ins. Group Agency, Inc.; Casey v. Auto Owners Ins. Co.; Whether there was a "mutual mistake" in the issuance of the 2003-2004 policy; Mate v. Wolverine Mut. Ins. Co.; Olsen v. Porter; Ford Motor Co. v. City of Woodhaven; Insured non-cooperation

Court: Michigan Court of Appeals (Unpublished)

Case Name: Dokho v. Jablonowski

e-Journal Number: 53205

Judge(s): Per Curiam - Wilder, Gleicher, and Boonstra

 

The court agreed that garnishee-defendant-AAA should not have purged its files (including its underwriting file), but disagreed that the trial court's ruling as to the purged files required reversal. The court held that there was no evidence of fraudulent conduct by AAA or the intentional destruction of evidence on the part of AAA - thus, the trial court did not abuse its discretion in failing to give plaintiffs the benefit of an adverse presumption in this insurance coverage dispute. The appeal arose from a garnishment proceeding brought by plaintiffs. They originally sued defendant-Jablonowski seeking damages for injuries to Wael Dokho allegedly sustained on 4/8/03 as a result of a fall on the E-Street property where defendant lived. M and H Jablonowski purchased the property in 1966. After M's death, H became the sole owner until her death in 2002. Defendant (H's son) lived with H before her death, and continued to live in the home after her death until the home was conveyed to an unrelated person in 2005. Defendant never had an ownership interest in the property. Prior to her death, H purchased a homeowner's policy from AAA - the parties agreed that a homeowner's policy in her name was in place from 2/4/02 to 2/4/03. The parties agreed defendant was covered under this policy as a "resident relative." Although the policy was not produced, the parties agreed that only H was listed as the named insured. In late 2002, after H died, AAA mailed a "renewal homeowner's declaration certificate" to H at the E-Street address. H was the only named insured listed on the certificate. The renewal term was from 2/3/03 to 2/4/04. Plaintiffs alleged that defendant paid for the renewal of the policy and AAA agreed for summary disposition and appeal purposes. On 4/8/03, Wael slipped and fell on a snow or ice-covered handicap ramp while delivering mail to the E-Street address. Plaintiffs obtained a default and default judgment in the amount of $250,000 against defendant. He claimed he first heard of the lawsuit when plaintiffs unsuccessfully tried to obtain satisfaction of their judgment from H's estate. He notified AAA of Wael's fall on the property. Computer records of AAA indicated that it was aware of the lawsuit and H's death by 7/24/06. An adjuster (DH) was "not sure about coverage," had questions about service, inter alia, and denied coverage. Plaintiffs then filed a writ of garnishment against the 2003-2004 policy issued by AAA, which responded in its garnishee disclosure that "Garnishee never insured defendant . . . ." Plaintiffs sent interrogatories requesting various records. AAA responded that the records were not available because the files were purged. The trial court later granted summary disposition to AAA concluding that the 2003-2004 policy excluded plaintiffs' claim because the policy was not transferred to defendant. The trial court also addressed plaintiffs' claim that they were entitled to an adverse inference due to AAA's destruction of its files. The court concluded that plaintiffs simply did not carry their burden of producing evidence to establish a dispute about whether AAA had knowledge of H's death at the time it renewed the policy. Affirmed.

 

Litigation

 

This summary also appears under Malpractice

 

Issues: Medical malpractice; Motion for a new trial; Bynum v. ESAB Group, Inc.; MCR 2.611(A)(1)(b); Hunt v. CHAD Enters., Inc.; Motion for sanctions; Guerrero v. Smith; MCR 2.114(D)(2); MCR 2.114(A) and (C)(1); MCR 2.114(E) and (F); MCL 600.2591; MCR 2.625(A)(2); Jericho Constr., Inc. v. Quadrants, Inc.; Mid Michigan Medical Center (MMMC)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Brown v. Mid MI Med. Ctr.

e-Journal Number: 53192

Judge(s): Per Curiam – Cavanagh, Hoekstra, and Shapiro

 

Holding that the plaintiff failed to show any actual prejudice or proof that the juror at issue would have been dismissed, the court concluded that the trial court did not abuse its discretion in denying her motion for a new trial. Further, the trial court did not abuse its discretion in denying the defendants' motion for sanctions because there was a reasonable legal basis for a new trial if plaintiff's allegations were true - the fact that her arguments were unsuccessful did not mean that they were frivolous. Plaintiff alleged that defendants' failure to provide adequate medical care caused her to lose most of her small bowel. The jury returned a verdict of no cause for action. Plaintiff then told her attorney that she believed she knew one of the jurors. She executed an affidavit stating that she met the juror in the late spring or early summer of 2007 at a coffee shop, and that he asked for her telephone number, which she did not provide. She further stated in her affidavit that it was possible she met the juror at an AA meeting. Plaintiff's counsel investigated and learned that the juror volunteered to become the foreperson, that the jury was initially split four to three in favor of defendants, and the juror at issue was in the majority. He also learned that the juror graduated from a religious school, planned to attend medical school, and lived with his aunt, who applied for a job as a RN with, and was later hired by, defendant-MMMC. None of these details were disclosed during voir dire, and the juror denied knowing any of the parties or prospective witnesses during voir dire. Plaintiff's counsel provided an affidavit stating that had all the information about the juror been disclosed during voir dire, he would have excused him for cause or by way of a peremptory challenge. Thus, plaintiff's counsel moved for a new trial. He attached the affidavits to the motion, and argued that a new trial was required because he would have excused the juror, the juror was potentially biased, the juror failed to disclose relevant information during voir dire, and his presence on the jury likely prejudiced plaintiff's case. Defendants argued that plaintiff's motion was frivolous and moved for sanctions. The court concluded that "plaintiff did not offer any evidence showing that the juror was untruthful or biased. She did not establish that the juror knew her or misrepresented that he did not know her." While his aunt was a RN, he indicated he did not have a family member "in the medical profession" during voir dire because at that time she was unemployed. Even if the juror should have disclosed that his aunt was a RN, plaintiff did not show how this nondisclosure actually prejudiced her, or that the juror would have been excused had he revealed that his aunt was an unemployed RN. "Plaintiff retained other members on the jury who had relatives working in the medical profession." Further, while MMMC employed the juror's aunt after the trial, there was no evidence that the juror knew of any employment application or pending employment. Thus, the court concluded that the trial court did not clearly err by finding that plaintiff's allegations of knowing the juror were vague and denied by the juror, or in determining that there was no showing that the juror's ability to sit fairly and impartially was affected by his aunt later obtaining employment with MMMC. Affirmed.

 

This summary also appears under Insurance

 

Issues: Whether the trial court properly denied the plaintiffs' motion for summary disposition and granted summary disposition to garnishee-defendant-AAA; "Spoliation of evidence"/whether plaintiffs were entitled to an adverse inference where AAA purged its files as to the case; Citizens Ins. Co. of Am. v. Juno Lighting, Inc.; Brenner v. Kolk; Woodard v. Custer; MCR 2.313(B) (permitting a trial court to impose sanctions for failure to comply with a discovery order but is inapplicable in the absence of a discovery order); Bloemendaal v. Town & Country Sports Ctr., Inc.; Banks v. Exxon Mobil; Bennett v. Detroit Police Chief; Whether the trial court correctly held that the policy transfer language precluded coverage; McGrath v. Allstate Ins. Co.; Klapp v. United Ins. Group Agency, Inc.; Casey v. Auto Owners Ins. Co.; Whether there was a "mutual mistake" in the issuance of the 2003-2004 policy; Mate v. Wolverine Mut. Ins. Co.; Olsen v. Porter; Ford Motor Co. v. City of Woodhaven; Insured non-cooperation

Court: Michigan Court of Appeals (Unpublished)

Case Name: Dokho v. Jablonowski

e-Journal Number: 53205

Judge(s): Per Curiam - Wilder, Gleicher, and Boonstra

 

The court agreed that garnishee-defendant-AAA should not have purged its files (including its underwriting file), but disagreed that the trial court's ruling as to the purged files required reversal. The court held that there was no evidence of fraudulent conduct by AAA or the intentional destruction of evidence on the part of AAA - thus, the trial court did not abuse its discretion in failing to give plaintiffs the benefit of an adverse presumption in this insurance coverage dispute. The appeal arose from a garnishment proceeding brought by plaintiffs. They originally sued defendant-Jablonowski seeking damages for injuries to Wael Dokho allegedly sustained on 4/8/03 as a result of a fall on the E-Street property where defendant lived. M and H Jablonowski purchased the property in 1966. After M's death, H became the sole owner until her death in 2002. Defendant (H's son) lived with H before her death, and continued to live in the home after her death until the home was conveyed to an unrelated person in 2005. Defendant never had an ownership interest in the property. Prior to her death, H purchased a homeowner's policy from AAA - the parties agreed that a homeowner's policy in her name was in place from 2/4/02 to 2/4/03. The parties agreed defendant was covered under this policy as a "resident relative." Although the policy was not produced, the parties agreed that only H was listed as the named insured. In late 2002, after H died, AAA mailed a "renewal homeowner's declaration certificate" to H at the E-Street address. H was the only named insured listed on the certificate. The renewal term was from 2/3/03 to 2/4/04. Plaintiffs alleged that defendant paid for the renewal of the policy and AAA agreed for summary disposition and appeal purposes. On 4/8/03, Wael slipped and fell on a snow or ice-covered handicap ramp while delivering mail to the E-Street address. Plaintiffs obtained a default and default judgment in the amount of $250,000 against defendant. He claimed he first heard of the lawsuit when plaintiffs unsuccessfully tried to obtain satisfaction of their judgment from H's estate. He notified AAA of Wael's fall on the property. Computer records of AAA indicated that it was aware of the lawsuit and H's death by 7/24/06. An adjuster (DH) was "not sure about coverage," had questions about service, inter alia, and denied coverage. Plaintiffs then filed a writ of garnishment against the 2003-2004 policy issued by AAA, which responded in its garnishee disclosure that "Garnishee never insured defendant . . . ." Plaintiffs sent interrogatories requesting various records. AAA responded that the records were not available because the files were purged. The trial court later granted summary disposition to AAA concluding that the 2003-2004 policy excluded plaintiffs' claim because the policy was not transferred to defendant. The trial court also addressed plaintiffs' claim that they were entitled to an adverse inference due to AAA's destruction of its files. The court concluded that plaintiffs simply did not carry their burden of producing evidence to establish a dispute about whether AAA had knowledge of H's death at the time it renewed the policy. Affirmed.

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Whether the trial court properly held that the Equine Activity Liability Act (EALA)(MCL 691.1661 et seq.) did not create an independent cause of action or a theory of liability and that the plaintiff failed to state a claim upon which relief could be granted; Johnson v. Pastoriza; Amburgey v. Sauder; Sherry v. East Suburban Football League; Beaudrie v. Henderson; Cummins v. Robinson Twp.; Hill v. Sears, Roebuck & Co.; Public nuisance; Cloverleaf Car Co. v. Phillips Petroleum Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Sholberg v. Truman

e-Journal Number: 53214

Judge(s): Per Curiam - Talbot, Beckering, and M.J. Kelly

 

The court held, inter alia, that by "providing that a class of persons is not bound or obligated as to an injury and by expressly disallowing claims under enumerating circumstances, the Legislature intended [EALA] to grant immunity to qualifying defendants[,]" and not to create a theory of liability for plaintiffs. Thus, the trial court did not err in granting summary disposition for the defendants-Truman in this case involving an automobile/horse accident that resulted in the death of plaintiff-Sholberg's daughter (Terri) the decedent. In the early morning hours of 7/13/10, the decedent was killed while driving to work on S road when her car collided with a horse. The horse had escaped from a stable on property located on the road owned by the Trumans. Sergeant R, the lead investigator of the accident, determined that at the time of the accident, the decedent's vehicle was traveling between 52 and 58 MPH in a 55 MPH zone. R, who is qualified as an expert in accident reconstruction, testified that the horse apparently got loose from a stable and ran across the road, an impact occurred between the horse and the vehicle the decedent was driving, causing her to lose control, go off the road, flip, and rotate. They found the decedent with her seatbelt on inside the vehicle. R also testified that he did not attribute fault in the accident to the decedent. Sholberg argued on appeal that the trial court err in finding that the EALA did not create an independent cause of action or a theory of liability and thus, Sholberg failed to state a claim upon which relief could be granted. The court noted that the EALA abolished strict liability for horse owners, but it did not abolish negligence actions against horse owners. The EALA, however, did not create an independent cause of action against the defendants. Rather, "[p]ursuant to the clear and unambiguous language of the EALA, if a participant's injuries result from an inherent risk of an equine activity, the participant may not make a claim for damages against an equine professional - conversely the equine profession is free from the 'penalty' or 'burden' of claims for damages." The court also held that the trial court did not err in dismissing the plaintiff's claim of negligence against the defendants. The trial court found "under the circumstances of this case, there's no situation that would properly give rise to a duty on [the Trumans] that would support any claim of negligence." The trial court asserted that the horse was "under the possession and control of a Daniel Truman" (the son) and there was no evidence to support a claim that defendants "actively managed, supervised, maintained, possessed or controlled the subject property" (the horse). There was no statute or contractual relationship imposing a duty on the defendants. Thus, the court looked to the common law and found no duty. The court also held that the trial court's grant of summary disposition for the defendants as to plaintiff's nuisance claim was improper. The court affirmed in part, reversed in part, and remanded.

 

Malpractice

 

This summary also appears under Litigation

 

Issues: Medical malpractice; Motion for a new trial; Bynum v. ESAB Group, Inc.; MCR 2.611(A)(1)(b); Hunt v. CHAD Enters., Inc.; Motion for sanctions; Guerrero v. Smith; MCR 2.114(D)(2); MCR 2.114(A) and (C)(1); MCR 2.114(E) and (F); MCL 600.2591; MCR 2.625(A)(2); Jericho Constr., Inc. v. Quadrants, Inc.; Mid Michigan Medical Center (MMMC)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Brown v. Mid MI Med. Ctr.

e-Journal Number: 53192

Judge(s): Per Curiam – Cavanagh, Hoekstra, and Shapiro

 

Holding that the plaintiff failed to show any actual prejudice or proof that the juror at issue would have been dismissed, the court concluded that the trial court did not abuse its discretion in denying her motion for a new trial. Further, the trial court did not abuse its discretion in denying the defendants' motion for sanctions because there was a reasonable legal basis for a new trial if plaintiff's allegations were true - the fact that her arguments were unsuccessful did not mean that they were frivolous. Plaintiff alleged that defendants' failure to provide adequate medical care caused her to lose most of her small bowel. The jury returned a verdict of no cause for action. Plaintiff then told her attorney that she believed she knew one of the jurors. She executed an affidavit stating that she met the juror in the late spring or early summer of 2007 at a coffee shop, and that he asked for her telephone number, which she did not provide. She further stated in her affidavit that it was possible she met the juror at an AA meeting. Plaintiff's counsel investigated and learned that the juror volunteered to become the foreperson, that the jury was initially split four to three in favor of defendants, and the juror at issue was in the majority. He also learned that the juror graduated from a religious school, planned to attend medical school, and lived with his aunt, who applied for a job as a RN with, and was later hired by, defendant-MMMC. None of these details were disclosed during voir dire, and the juror denied knowing any of the parties or prospective witnesses during voir dire. Plaintiff's counsel provided an affidavit stating that had all the information about the juror been disclosed during voir dire, he would have excused him for cause or by way of a peremptory challenge. Thus, plaintiff's counsel moved for a new trial. He attached the affidavits to the motion, and argued that a new trial was required because he would have excused the juror, the juror was potentially biased, the juror failed to disclose relevant information during voir dire, and his presence on the jury likely prejudiced plaintiff's case. Defendants argued that plaintiff's motion was frivolous and moved for sanctions. The court concluded that "plaintiff did not offer any evidence showing that the juror was untruthful or biased. She did not establish that the juror knew her or misrepresented that he did not know her." While his aunt was a RN, he indicated he did not have a family member "in the medical profession" during voir dire because at that time she was unemployed. Even if the juror should have disclosed that his aunt was a RN, plaintiff did not show how this nondisclosure actually prejudiced her, or that the juror would have been excused had he revealed that his aunt was an unemployed RN. "Plaintiff retained other members on the jury who had relatives working in the medical profession." Further, while MMMC employed the juror's aunt after the trial, there was no evidence that the juror knew of any employment application or pending employment. Thus, the court concluded that the trial court did not clearly err by finding that plaintiff's allegations of knowing the juror were vague and denied by the juror, or in determining that there was no showing that the juror's ability to sit fairly and impartially was affected by his aunt later obtaining employment with MMMC. Affirmed.

 

Negligence & Intentional Tort

 

This summary also appears under Litigation

 

Issues: Whether the trial court properly held that the Equine Activity Liability Act (EALA)(MCL 691.1661 et seq.) did not create an independent cause of action or a theory of liability and that the plaintiff failed to state a claim upon which relief could be granted; Johnson v. Pastoriza; Amburgey v. Sauder; Sherry v. East Suburban Football League; Beaudrie v. Henderson; Cummins v. Robinson Twp.; Hill v. Sears, Roebuck & Co.; Public nuisance; Cloverleaf Car Co. v. Phillips Petroleum Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Estate of Sholberg v. Truman

e-Journal Number: 53214

Judge(s): Per Curiam - Talbot, Beckering, and M.J. Kelly

 

The court held, inter alia, that by "providing that a class of persons is not bound or obligated as to an injury and by expressly disallowing claims under enumerating circumstances, the Legislature intended [EALA] to grant immunity to qualifying defendants[,]" and not to create a theory of liability for plaintiffs. Thus, the trial court did not err in granting summary disposition for the defendants-Truman in this case involving an automobile/horse accident that resulted in the death of plaintiff-Sholberg's daughter (Terri) the decedent. In the early morning hours of 7/13/10, the decedent was killed while driving to work on S road when her car collided with a horse. The horse had escaped from a stable on property located on the road owned by the Trumans. Sergeant R, the lead investigator of the accident, determined that at the time of the accident, the decedent's vehicle was traveling between 52 and 58 MPH in a 55 MPH zone. R, who is qualified as an expert in accident reconstruction, testified that the horse apparently got loose from a stable and ran across the road, an impact occurred between the horse and the vehicle the decedent was driving, causing her to lose control, go off the road, flip, and rotate. They found the decedent with her seatbelt on inside the vehicle. R also testified that he did not attribute fault in the accident to the decedent. Sholberg argued on appeal that the trial court err in finding that the EALA did not create an independent cause of action or a theory of liability and thus, Sholberg failed to state a claim upon which relief could be granted. The court noted that the EALA abolished strict liability for horse owners, but it did not abolish negligence actions against horse owners. The EALA, however, did not create an independent cause of action against the defendants. Rather, "[p]ursuant to the clear and unambiguous language of the EALA, if a participant's injuries result from an inherent risk of an equine activity, the participant may not make a claim for damages against an equine professional - conversely the equine profession is free from the 'penalty' or 'burden' of claims for damages." The court also held that the trial court did not err in dismissing the plaintiff's claim of negligence against the defendants. The trial court found "under the circumstances of this case, there's no situation that would properly give rise to a duty on [the Trumans] that would support any claim of negligence." The trial court asserted that the horse was "under the possession and control of a Daniel Truman" (the son) and there was no evidence to support a claim that defendants "actively managed, supervised, maintained, possessed or controlled the subject property" (the horse). There was no statute or contractual relationship imposing a duty on the defendants. Thus, the court looked to the common law and found no duty. The court also held that the trial court's grant of summary disposition for the defendants as to plaintiff's nuisance claim was improper. The court affirmed in part, reversed in part, and remanded.

 

This summary also appears under School Law

 

Issues: Slip and fall in a school auditorium; Governmental immunity; MCL 691.1407(1); The "public building exception" (MCL 691.1406); "Actual or constructive knowledge" of the allegedly dangerous and defective floor; Ali v. Detroit; Banks v. Exxon Mobil Corp.; Hampton v. Waste Mgmt. of MI, Inc.; Hulett v. Great Atl. & Pac. Tea Co.; MRE 702

Court: Michigan Court of Appeals (Unpublished)

Case Name: Harris v. Detroit Bd. of Educ.

e-Journal Number: 53204

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

Holding that a reasonable jury could conclusively presume the defendant's knowledge of the floor's dangerous condition based on the plaintiff's expert's (Z) description of the floor, the court concluded that the trial court properly denied defendant's motion for summary disposition. Plaintiff suffered severe injuries when she slipped and fell while walking toward the stage of an elementary school auditorium to receive the school's "parent of the year" award. She sued defendant, alleging that the auditorium floor was worn smooth, rendering it defective and dangerously slippery. Defendant contended that it lacked actual or constructive notice of this condition. The court concluded that the deposition testimony of Z, a safety consultant, "supported that the floor's worn-smooth condition was readily apparent to the eye" due to "its discoloration, and could also be detected by simply feeling the floor's surface." Z's affidavit averred that the floor was in the same condition for years before plaintiff's fall. Further, other aspects of Z's testimony, if credited by a jury, raised an additional inference that defendant knew of the floor's condition. "The notice doctrine does not shield a premises owner from liability for injury where the premises owner itself unreasonably creates, tolerates or causes a dangerous condition." Record evidence supported that "defendant improperly maintained the central aisle of the auditorium, causing the tile to become visibly discolored and palpably worn. Viewed in the light most favorable to plaintiff, defendant created the slippery floor by using too much water when cleaning it, thereby stripping away the friction-creating asperities." The court concluded that as an experienced safety professional and consultant who had worked in the field for decades, Z possessed specialized knowledge as to floor coverings and floor maintenance. His deposition testimony, affidavit, and written report supported that he examined the entirety of the auditorium floor and used reliable methods of inspection. Defendant identified no factual or legal basis to question this foundation for his expert opinions. Affirmed.

 

Real Property

 

Issues: Whether the assignee of a mortgage has the same priority rights as the assignor in the context of the Condominium Act (MCL 559.208(1)); Coventry Parkhomes Condo. Ass'n v. Federal Nat'l Mtg. Ass'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Greenbrooke Parkhomes Condo. Ass'n v. Thomas

e-Journal Number: 53241

Judge(s): Memorandum – Jansen, Stephens, and Riordan

 

In light of Coventry Parkhomes Condo. Ass'n, the court held that the trial court erred in finding that plaintiff-Greenbrooke's lien was superior to defendant-Midfirst's mortgage and that Midfirst was liable for unpaid assessments and related expenses. Thus, the court reversed and remanded the trial court's grant of summary disposition to plaintiff. In Coventry Parkhomes Condo. Ass'n, the court held that "an assignee stands in the shoes of the assignor and that the 'first mortgage of record' as used in the Condominium Act, MCL 559.208(1), is the mortgage that is recorded before all others, which includes a mortgage that is recorded first but subsequently assigned."

 

School Law

This summary also appears under Negligence & Intentional Tort

 

Issues: Slip and fall in a school auditorium; Governmental immunity; MCL 691.1407(1); The "public building exception" (MCL 691.1406); "Actual or constructive knowledge" of the allegedly dangerous and defective floor; Ali v. Detroit; Banks v. Exxon Mobil Corp.; Hampton v. Waste Mgmt. of MI, Inc.; Hulett v. Great Atl. & Pac. Tea Co.; MRE 702

Court: Michigan Court of Appeals (Unpublished)

Case Name: Harris v. Detroit Bd. of Educ.

e-Journal Number: 53204

Judge(s): Per Curiam – Wilder, Gleicher, and Boonstra

 

Holding that a reasonable jury could conclusively presume the defendant's knowledge of the floor's dangerous condition based on the plaintiff's expert's (Z) description of the floor, the court concluded that the trial court properly denied defendant's motion for summary disposition. Plaintiff suffered severe injuries when she slipped and fell while walking toward the stage of an elementary school auditorium to receive the school's "parent of the year" award. She sued defendant, alleging that the auditorium floor was worn smooth, rendering it defective and dangerously slippery. Defendant contended that it lacked actual or constructive notice of this condition. The court concluded that the deposition testimony of Z, a safety consultant, "supported that the floor's worn-smooth condition was readily apparent to the eye" due to "its discoloration, and could also be detected by simply feeling the floor's surface." Z's affidavit averred that the floor was in the same condition for years before plaintiff's fall. Further, other aspects of Z's testimony, if credited by a jury, raised an additional inference that defendant knew of the floor's condition. "The notice doctrine does not shield a premises owner from liability for injury where the premises owner itself unreasonably creates, tolerates or causes a dangerous condition." Record evidence supported that "defendant improperly maintained the central aisle of the auditorium, causing the tile to become visibly discolored and palpably worn. Viewed in the light most favorable to plaintiff, defendant created the slippery floor by using too much water when cleaning it, thereby stripping away the friction-creating asperities." The court concluded that as an experienced safety professional and consultant who had worked in the field for decades, Z possessed specialized knowledge as to floor coverings and floor maintenance. His deposition testimony, affidavit, and written report supported that he examined the entirety of the auditorium floor and used reliable methods of inspection. Defendant identified no factual or legal basis to question this foundation for his expert opinions. Affirmed.

 

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