Issues: Loss under the Michigan Consumer Protection Act (MCPA)(MCL 445.901 et seq.); Zine v. Chrysler Corp.; Whether plaintiff needed to have suffered a loss under MCL 445.911(1); Claim that plaintiff "suffered a loss through the reduction in value of the firearm and his unfulfilled expectations as a result of defendant secretly replacing the barrel"; MCL 445.911(2); Mayhall v. AH Pond Co., Inc.; Churella v. Pioneer State Mut. Ins. Co.; Claim that the firearm was unsafe for use after it was allegedly secretly modified; Claim that defendant's refusal to admit that the barrel was replaced suggested that the firearm "was defective or unsafe"; Unlawful conduct under MCL 445.903
Court: Michigan Court of Appeals (Unpublished)
Case Name: Galecka v. Savage Arms, Inc.
e-Journal Number: 57516
Judge(s): Per Curiam – Whitbeck, Wilder, and Ronayne Krause
The court held that the trial court erred when it granted defendant's motion for summary disposition on all of plaintiff's claims. Because he did not need to have suffered a loss to maintain an action for declaratory judgment or injunction, summary disposition was not warranted on his claims related to MCL 445.911(1). "But, because suffering a loss is necessary to recover damages under MCL 445.911(2)," the trial court properly granted defendant's motion for summary disposition as to those claims. Further, the trial court erred in dismissing all of plaintiff's claims "based on its erroneous belief that all unlawful conduct under the MCPA required reliance on a misrepresentation." Plaintiff claimed that when he sent his firearm to defendant for a safety inspection, defendant secretly replaced the barrel and this violated several provisions of MCL 445.903(1). The trial court granted defendant's motion for summary disposition holding that plaintiff had not suffered any loss, which "prohibited him from prevailing on any claims under the MCPA." The court held that this conclusion was incorrect. The plain language of the statute establishes that only section (2) of MCL 445.911 (involving an action for damages) "requires a plaintiff to have suffered a 'loss' caused by a violation of the MCPA. Section (1) contains no such requirement." Thus, under the plain language of the statute, "a plaintiff may obtain declaratory judgment and/or enjoin any unlawful practices without having suffered any loss, and the trial court erred in dismissing plaintiff's claims for relief under MCL 445.911(1) on this basis." As to MCL 445.911(2), plaintiff argued that he "suffered a loss through the reduction in value of the firearm and his unfulfilled expectations as a result of defendant secretly replacing the barrel." The court disagreed. The trial court did not err in holding that plaintiff did not suffer a "loss" for the purposes of MCL 445.911(2). Plaintiff's complaint did not allege any facts to show that he suffered any actual damages. Notably, he did not allege that his firearm was "in 'worse' shape than when he initially sent it to defendant." All that his allegations established was that defendant replaced the barrel with a new one and then denied making the replacement. Plaintiff did not allege or show that the "firearm before the safety inspection was more valuable than the firearm after the safety inspection, or is otherwise less desirable for another reason, such as being less accurate than the gun with the original barrel. Because the firearm did not have a reduced value or intrinsic worth, no 'traditional' injury or loss occurred either to the property, or to plaintiff's expectations concerning it, so as to support an award of damages under MCL 445.911(2)." Affirmed in part and reversed in part.
This summary also appears under Negligence & Intentional Tort
Issues: Whether the plaintiffs-tenants stated a "negligence" claim based on a bedbug infestation; Hill v. Sears, Roebuck & Co.; Buhalis v. Trinity Continuing Care Servs.; A tenant as a landlord's "invitee"; Benton v. Dart Props., Inc.; Duty owed to an invitee; Hoffner v. Lanctoe; Whether the plaintiffs stated a Michigan Consumer Protection Act (MCPA)(MCL 445.901 et seq.) claim; Whether the defendant-landlord violated the "implied warranty of habitability"; MCL 554.139; Allison v. AEW Capital Mgmt., L.L.P.; Hadden v. McDermitt Apts., L.L.C.; Motion for reconsideration; MCR 2.119(F)(3); MCR 2.111(B)(1); Motion to amend the complaint; Lewandowski v. Nuclear Mgmt. Co., L.L.C.; Boylan v. Fifty Eight L.L.C.
Court: Michigan Court of Appeals (Unpublished)
Case Name: Krisel v. Silverbrook Villa Apts.
e-Journal Number: 57471
Judge(s): Per Curiam – Wilder, Saad, and K.F. Kelly
The defendant-landlord was entitled to summary disposition on the plaintiffs-tenants' premises-liability claim because they failed to establish that the defendant "knew or should have known" about the bedbug infestation in their apartment, and because the defendant "moved quickly to fix the problem." Plaintiffs, as tenants, were considered the landlord's invitees. "A landowner breaches its duty to an invitee . . . when he 'knows or should know of a dangerous condition'" and fails to fix the condition, guard against it, or warn the invitee about it. Plaintiffs "unconvincingly" argued that the defendant "knew or should have known about the bedbug infestation because: (1) plaintiffs did not have bedbugs in their prior apartment; (2) the bedbugs found in defendant's apartment were mature; and (3) the apartment had holes in its walls similar to holes used to treat a bedbug infestation." However, none of these factors showed that the "defendant had notice of a bedbug infestation when plaintiffs moved in." Moreover, "even if defendant was aware of the bedbug infestation, plaintiffs cannot claim premises liability because defendant moved quickly to fix the problem." The plaintiffs' MCPA claim failed because they were unable to show that the defendant used "'[u]nfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce.'" To "mislead plaintiffs or misrepresent the condition of the apartment, defendant had to have knowledge of the bedbug infestation. As the trial court properly concluded, plaintiffs failed to provide any evidence that defendant had notice of the bedbug problem. In fact, defendant offered evidence to the contrary: the apartment's prior tenant never had issues with bedbugs, and none of his maintenance requests and work orders included complaints of bedbugs." The defendant was entitled to summary disposition on the plaintiffs' claim that it violated the "implied warranty of habitability," where the plaintiffs "provided no evidence that defendant knew about the bedbug problem in the apartment. In fact, plaintiffs failed to show that there were bedbugs in the apartment before they moved in." The court also noted that, "oddly for a supposedly uninhabitable apartment, plaintiffs continued to live there, despite defendant's offer to let them leave without penalty." The plaintiffs' motion for reconsideration was properly denied, and they were not entitled to amend their complaint to add a "slip-and-fall" claim because they waited to amend until after the trial court granted defendant's motion for summary disposition, and the addition of this claim would be futile. Affirmed.
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