Negligence & Intentional Tort

This summary also appears under School Law


Issues: Governmental immunity act (MCL 691.1401 et seq.); Ross v. Consumers Power Co. (On Rehearing); Jones v. Bitner; Public building exception to governmental immunity (MCL 691.1406); Kerbersky v. Northern MI Univ.; Whether a dormitory is a public building when not open to the public; Maskery v. University of MI Bd. of Regents; Tellin v. Forsyth Twp.; Brown v. Genessee Cnty. Bd. of Comm'rs (After Remand); Stare decisis; MCR 7.215(C)(2); WA Foote Hosp. v. City of Jackson; "Dictum"; Cheron, Inc. v. Don Jones, Inc.; Carr v. City of Lansing; Griswold Props., LLC v. Lexington Ins. Co.

Court: Michigan Court of Appeals (Published)

Case Name: Pew v. Michigan State Univ.

e-Journal Number: 58336

Judge(s): Per Curiam – Meter, Whitbeck, and Riordan


The court held that the trial court did not err in ruling that the public building exception to governmental immunity did not apply because Case Hall on defendant-Michigan State University's campus was not a public building when the plaintiff-Pew was injured. Thus, it affirmed the trial court's grant of summary disposition for defendant. Pew was injured when she fell through a sixth story window in her friend's room at Case Hall at approximately 3:00 AM. She sued defendant, alleging it violated its duty to repair and maintain the building. The trial court found that the public building exception did not apply at the time she was injured. Noting that principles of stare decisis required it to apply Tellin, the court concluded that Case Hall was not a public building "at the time" Pew was injured. It rejected her argument that because Case Hall's vestibule was open to the public when she was injured, it was a public building because a portion of it was open to the public. Although people may enter the vestibule 24 hours a day, its sole purpose between the hours of 12:00 AM and 6:00 AM is to restrict access to the remainder of the building. "That the public could enter the area between Case Hall's outer and inner doors between the hours of midnight and 6:00 AM did not give the public a general right of entry to Case Hall. To the contrary, the evidence in this case indicates that public access to Case Hall was available only to residents and guests between those hours." Thus, it concluded that "Case Hall was not a public building for the purposes of the public building exception to governmental immunity. At the time that Pew entered the building, entrance into the building was restricted to residents and their guests. The public did not have a general right of entry to Case Hall when Pew was injured. Because the public building exception applies to public buildings 'when open for use by members of the public,' we conclude that the trial court properly granted summary disposition in this case."


Full Text Opinion

This summary also appears under Insurance


Issues: Action for no-fault benefits; Failure to yield the right of way; MCL 257.652; Inference of negligence; Zeni v. Anderson; Comparative fault; MCL 500.3135(2)(b); Huggins v. Scripter; Laier v. Kitchen

Court: Michigan Court of Appeals (Unpublished)

Case Name: Ascencio v. Snider

e-Journal Number: 58187

Judge(s): Per Curiam – Riordan, Cavanagh, and Talbot


The court held that the trial court properly granted summary disposition for the defendants-William, Kellie, and Daniel Snider on the plaintiff's claim for no-fault benefits. Plaintiff sued the Sniders for injuries he sustained when the bike he was riding was struck by a vehicle owned by William and Kellie Snider, but being driven by their son, Daniel Snider. Plaintiff was hit when he attempted to ride around the front of the Sniders' vehicle as Daniel was attempting to exit a parking lot and enter the roadway. The trial court granted summary disposition for the Sniders and denied plaintiff's motion for reconsideration. On appeal, the court rejected plaintiff's argument that the trial court erred in granting the Sniders' motion for summary disposition because Daniel violated MCL 257.652 and a genuine issue of material fact existed as to whether plaintiff was more than 50% at fault for the accident. "The record evidence established that Daniel came to a full stop and waited for the oncoming, one-way, northbound traffic to clear before attempting to pull out onto the road. Plaintiff testified that, when he was 60 feet away, he saw Daniel's vehicle stopped and waiting for traffic to clear. Plaintiff also testified that he did not drive his bicycle onto the roadway; rather, he drove his bicycle in a southbound direction across the apron of the parking lot exit and directly in front of Daniel's vehicle. Thus, Daniel yielded 'the right of way to vehicles approaching on the highway' and only attempted to pull out onto the road when the traffic cleared." The court further found that, even if Daniel violated the statute by failing to yield the right-of-way, he had an adequate excuse under the circumstances as plaintiff "darted unexpectedly" in front of his vehicle. "Daniel would not be expected to anticipate that plaintiff was present, that plaintiff would enter the exit area of the parking lot from the right side, or that plaintiff would ride his bicycle directly in front of his vehicle. Thus, any presumption of negligence by Daniel is sufficiently rebutted." Finally, it found that Daniel was not more than 50% at fault, holding that "reasonable minds could not differ; plaintiff was substantially more at fault than Daniel for the reasons set forth above." Affirmed.


Full Text Opinion

This summary also appears under Employment & Labor Law


Issues: Direct and vicarious liability; Whether a material question of fact remained as to whether one of the tort-feasors (R) qualified as an employee of defendant-Atlantis Lounge, Inc. or an independent contractor; Bailey v. Schaaf; Campbell v. Kovich; Reeves v. Kmart Corp.; Candelaria v. BC Gen. Contractors, Inc.; Intentional torts premised on a theory of vicarious liability; Hamed v. Wayne Cnty,; Whether there was a nondelegable duty relevant to this case; Van Dam v. Doty-Salisbury Co.; Thon v. Saginaw Paint Mfg. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Cole v. Bada Bing Club

e-Journal Number: 58207

Judge(s): Per Curiam – Beckering, Hoekstra, and Gleicher


Holding that the trial court correctly concluded that the defendant-Club's owner, defendant-Atlantis Lounge, may not be held directly or vicariously liable for the torts at issue, the court affirmed the trial court's grant of summary disposition to defendants. Plaintiff suffered a beating in the basement of the Club at the hands of four men, including R (the Club's manager). The men were all convicted of criminal charges for their involvement. This case involved plaintiff's efforts to obtain tort based damages from the Atlantis Lounge, based on principles of vicarious liability for R's conduct and negligence in hiring, retaining, and supervising R. The court concluded that the trial court appropriately determined that reasonable minds could not conclude that Atlantis Lounge "exercised the necessary control or supervision over" R's specific work activities so as to render him an employee of Atlantis Lounge. In particular, both M (Atlantis Lounge's sole shareholder) and R testified that R operated the Club pursuant to a verbal agreement giving R "control over, and responsibility for, the day-to-day operations of the Club, and plaintiff presented no evidence to contradict this evidence." On the contrary, R "undisputedly hired and fired the Club's employees. He paid the Club's expenses, including employee salaries. He maintained the Club's financial records and made decisions about the business, including the decision to employ plaintiff to complete construction in the Club's basement." R paid $12,000 each month in rent to Atlantis Lounge for the opportunity to run the Club, drawing his own compensation from the profits remaining after paying his employees, business expenses, and the set rent to Atlantis Lounge. In essence, he "paid for the opportunity to operate the Club as an independent contractor without interference" from Atlantis Lounge. Viewing the evidence in a light most favorable to plaintiff, reasonable minds could not conclude that a question of fact remained as to R's status as an independent contractor. Because he was an independent contractor and "Michigan recognizes no cause of action for the negligent hiring or retention of an independent contractor," the trial court did not err in granting summary disposition as to plaintiff's allegations involving direct liability. Further, the case law he cited to support his vicarious liability claim only indicated that an employer may be held vicariously liable for an employee's intentional conduct in certain circumstances and thus, did not apply given that R was an independent contractor. He also failed to identify any nondelegable duty relevant to this case.


Full Text Opinion

This summary also appears under Litigation


Issues: Third-party no-fault action; Motion for a mistrial based on defense counsel's question about whether plaintiff had a felony conviction; Waiver; People v. Carter

Court: Michigan Court of Appeals (Unpublished)

Case Name: Hunter v. Auto Club Ins. Ass'n

e-Journal Number: 58192

Judge(s): Per Curiam – Owens, Jansen, and O'Connell


The court held that the plaintiff waived the issue of whether the trial court abused its discretion in denying his motion for a mistrial because his attorney expressly approved the curative jury instruction plaintiff now argued was futile. Thus, it affirmed the trial court's judgment of no cause of action entered for defendant-Hines in this third-party no-fault action. Plaintiff was injured in an auto accident that occurred when the vehicle he was driving collided with a vehicle driven by Hines. He voluntary dismissed the defendant-insurer from the case. Hines moved for summary disposition, arguing that "plaintiff was precluded from recovering noneconomic damages pursuant to MCL 500.3113(b) because he was driving an uninsured vehicle at the time of the accident and he was the owner of that vehicle." While the trial court denied the motion, the jury found that "plaintiff was an owner of the uninsured vehicle involved in the automobile accident," making him ineligible to recover noneconomic damages under the No-Fault Act. Plaintiff's only issue on appeal was "whether the trial court abused its discretion by denying his motion for mistrial where the trial court's curative instruction was insufficient to cure the prejudicial effect of defense counsel's question regarding whether plaintiff had a felony conviction." However, the trial court gave the curative instruction at the request of plaintiff's attorney. "By requesting the specific curative instruction, plaintiff, by action of counsel, affirmatively approved of the instruction, thereby extinguishing any error."


Full Text Opinion


Automobile negligence; "Wrongful-conduct rule"; Orzel v. Scott Drug Co.; Cervantes v. Farm Bureau Ins. Co.; Manning v. Bishop of Marquette; Meador v. Hotel Grover (MS); Pantely v. Garris, Garris & Garris, PC; Poch v. Anderson; Whether the trial court properly submitted to the jury the issue of whether the wrongful conduct rule applied; Charles Reinhart Co. v. Winiemko; Gottesman v. Fay-Bea Constr. Co.; Jury instructions; Cox v. Board of Hosp. Managers; Hardrick v. Auto Club Ins. Ass'n

Court: Michigan Court of Appeals (Unpublished)

Case Name: Rockman v. Estate of Masak

e-Journal Number: 58204

Judge(s): Per Curiam – Boonstra, Meter, and Servitto


Holding that the trial court erred in submitting to the jury the legal question of whether to apply the wrongful-conduct rule (so as to bar plaintiff's claim), the court vacated the jury verdict of no cause of action in this case, and reversed the trial court's denial of plaintiff's motion for a new trial. It affirmed the trial court's denial of defendant's motions for summary disposition and directed verdict. The case arose out of a one-car accident. The driver, M, was killed. Plaintiff, a passenger in the vehicle, was seriously injured, including sustaining fractures of the hip, spine, and knee. "Information recovered from the air sensor or 'CDR' box contained in the car indicated that the car was travelling 90 miles per hour when it first hit the guardrail, and that the brakes were not applied until several seconds after the first collision. Plaintiff admitted to having a heroin addiction. She stated that she regularly used heroin with" M. She testified that on the day of the accident, M called her and wanted to go to purchase heroin. The accident happened on their way home after they stopped and injected themselves with the heroin. Plaintiff brought this action seeking to recover from defendant's estate for her injuries. The central issue on appeal was whether the wrongful-conduct rule applied to bar plaintiff's claim. The court held that it did not, "and further that the trial court erred in submitting the issue of the application of the rule to the jury." The court found Poch instructive.While the latter two reasons stated in Poch were not applicable to this case, as in Poch, plaintiff "could prove a complete cause of action without proof of her own illegal conduct, 'notwithstanding that the illegal act may appear incidentally and may be important to the explanation of other facts in the case.'" M's "negligent operation of the car itself, regardless of any intoxication, could provide for recovery by plaintiff." She "did not allege that she was injured as a result of her purchase and use of heroin. She alleged that she was injured in an automobile accident" because M "negligently operated his vehicle." Under these circumstances, the court held that the wrongful-conduct rule did not apply to bar her claim. Further, the trial court erred in submitting to the jury the question of whether the rule applied.


Full Text Opinion
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