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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.

 

 

Case Summary


Cases appear under the following practice areas:

  • Constitutional Law (1)

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 69694
    Case: Deerhurst Condo. Owners Ass'n, Inc. v. City of Westland
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Servitto, and Shapiro
    Issues:

    Challenges to a municipality’s water & sewer rates; MCL 123.141(1)-(3); Trahey v. Inkster; Ratemaking as a legislative function; Novi v. Detroit; Maintenance of a capital reserve by rate-based public utilities; Jackson Cnty. v. City of Jackson; Const. 1963, art. 9, §§ 25-34 (the Headlee Amendment); Distinguishing a valid user fee from a tax; Bolt v. Lansing; Wheeler v. Shelby Charter Twp.; Graham v. Kochville Twp.; MCL 141.91

    Summary:

    Holding that plaintiffs failed to show a genuine issue of material fact as to their claims that defendant-city’s water and sewer rates violated MCL 123.141, the Headlee Amendment, or MCL 141.91, the court affirmed summary disposition for the city. While there was a fact question as to whether the city allocated too great a portion of certain administrative costs to the water and sewer department, the court disagreed with plaintiffs’ contention that this precluded summary disposition. They had to show the city’s rates were unreasonable, and they failed to produce evidence that the “overall allocation of administrative costs to the water and sewer department is unreasonable.” Their expert (O) testified that “he did not prepare a full cost allocation plan in analyzing the administrative expenses allocated to” the department. The court found it most significant that plaintiffs did not analyze the reasonableness of the city’s “overall rates by conducting a rate study. [O] agreed that if the rates cover the actual revenue requirements of the water and sewer department, then the rates are valid and customers will have suffered no damages.” But he was not asked to review the department’s overall expenditures, and he held no opinion overall on whether the department’s total expenditures were reasonable. Thus, plaintiffs made no effort to analyze the city’s “rates in lights of the department’s revenue requirements.” They also did not explain “how incorrect or improper administrative cost allocations in and of themselves” rendered the city’s water and sewer rates unreasonable. Further, in light of the city’s unrebutted evidence, they did not “overcome the presumption that a $500,000 annual addition to the City’s cash reserves to fund future improvements to the water and sewer system is a reasonable ratemaking practice.” As to their Headlee Amendment claim, after considering the Bolt criteria, the court held that they failed to show that the city had imposed an unconstitutional tax. Rather, the rates constituted “a valid user fee because users pay their proportionate share of the expenses associated with the operation and maintenance of the water and sewer systems.”

    Full Text Opinion

  • Construction Law (1)

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 69685
    Case: Barber v. Lombardo Homes of S.E. MI, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Servitto, Stephens, and Boonstra
    Issues:

    Negligence action arising from a fall on a construction site; The common-work-area doctrine; Funk v. General Motors Corp.; Ormsby v. Capital Welding, Inc.; Failure to guard against readily observable & avoidable dangers element; Principle that a trial court may not resolve factual disputes or determine credibility in ruling on a summary disposition motion; Burkhardt v. Bailey; The significant number of workers exposed to a high degree of risk element; Hughes v. PMG Bldg., Inc.; Alderman v. JC Dev. Cmtys., LLC; Phillips v. Mazda Motor Mfg. (USA) Corp.; Identifying the appropriate danger; Latham v. Barton Malow Co.; Motion for JNOV; Whether the jury’s verdict was legally & logically inconsistent; Granger v. Fruehauf Corp.; Admission of a photo; Relevance; MRE 401 & 402; Establishing negligence by circumstantial evidence; Spiers v. Martin; Forncrook Mfg. Co. v. E T Barnum Wire & Iron Works; Whether the photo was unfairly prejudicial; MRE 403; Authentication; MRE 901(a); Mitchell v. Kalamazoo Anesthesiology, PC

    Summary:

    The court held that the defendant-general contractor was properly denied summary disposition on plaintiff-subcontractor’s common-work-area doctrine claim because there were genuine issues of material fact on the second and third elements. Defendant’s motion for JNOV was also properly denied because there was testimony that, if believed by the jury, supported a finding that the Funk elements were met. Finally, the court concluded that the value to be given to the challenged photo and the inference to be drawn from it was for the jury to decide, that it was not inadmissible under MRE 403, and that plaintiff met the authentication requirements. Thus, it affirmed the trial court’s judgment on a jury verdict for plaintiff, who was injured when he fell through a porch hole cover at defendant’s construction site. As to defendant’s challenge to the denial of its summary disposition motion, the court agreed with the trial court that a question of fact existed as to whether “defendant failed to guard against readily observable and avoidable dangers.” Plaintiff’s testimony that he fell through an “unsecured plywood porch hole cover when he exited the home through its front door” was uncontested. Also, no evidence contradicted his statement that he entered the home through its garage earlier that morning. Defendant’s safety supervisor (F) “gave deposition testimony that the porch hole cover was inspected when it was first installed and on a daily basis thereafter. He testified that at all times it was found to be properly secured” and that he walked over it the day before the accident, without incident. But plaintiff offered a photo taken by F “approximately a half an hour after plaintiff’s fall that showed debris on the cement ledge between the house and the cover.” The owner of the company that installed the cover testified, among other things, that the cover was installed in a manner to prevent a gap for debris to collect and that the amount of debris that had accumulated on the ledge as shown in the photo indicated “that the cover had been unsecured for quite a while.” The court also held that there was a genuine issue of material fact as to whether a significant number of workers were at risk.

    Full Text Opinion

  • Corrections (1)

    Full Text Opinion

    e-Journal #: 69704
    Case: In re Parole of Albers
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Servitto, and Shapiro
    Issues:

    Review of a parole decision; In re Elias; In re Parole of Haeger; In re Parole of Johnson; MCL 791.233e(6); “Substantial & compelling reason"; People v. Babcock; MCL 791.233e(2); MI Admin Code R 791.7715(1); MCR 7.118(H)(3)

    Summary:

    The court reversed the circuit court’s reversal of the Parole Board’s decision to grant parole, reinstated the Board’s decision, and remanded to the Board for further action. The Board granted parole to appellant-Albers. He was to be released on or about 8/2/17. The county prosecutor filed an emergency delayed application for leave and an emergency motion to stay release, each of which were granted by the circuit court. The circuit court also reversed the Board’s parole decision. “Albers’s parole guideline score was +6, placing him in the high-probability of parole category.” The court held that the circuit court made several legal errors in reversing the Board’s decision. First, the Board did not violate MCL 791.233e(2) because the statute “does not create mandatory considerations in individual parole determinations.” Second, given that “the Board did not depart from the parole guidelines’ recommendation that Albers be granted parole, there was no need to provide substantial and compelling reasons. Having applied the wrong standard and having erroneously defined mandatory considerations,” the circuit court further erred by holding that the Board failed to consider all the facts and circumstances relevant to those considerations. As in Elias, the court held that the circuit court “overstepped the bounds of judicial review.” The circuit court erred in ruling that “the Board abused its discretion or violated the Michigan Constitution, a statute, or any administrative rule or regulation.” The court concluded that the “Board considered the relevant facts and circumstances and complied with required procedures. Finding no substantial or compelling basis to diverge from the parole guidelines, the Board properly concluded that there was ‘reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner’s mental and social attitude, that [Albers would] not become a menace to society or to the public safety.’” While the circuit court disagreed with the evaluation, it may not conduct a de novo review “or substitute its judgment for that of the Board.”

    Full Text Opinion

  • Criminal Law (2)

    Full Text Opinion

    e-Journal #: 69700
    Case: People v. Contreras
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Beckering, and Ronayne Krause
    Issues:

    Motion to dismiss; People v. Nicholson; Search & seizure; People v. Henry (After Remand); People v. Williams; Vehicle stop; People v. Simmons; Reasonable suspicion; People v. Maggit; Violation of a traffic law; People v. Davis; Stop for driving too slow on a highway; Former MCL 257.628(8); MCL 257.627(1); An objectively reasonable mistake; Heien v. North Carolina; Inference that video footage from the police car’s camera was exculpatory evidence; Failure to preserve evidence; People v. Hanks; Adverse inference instruction; People v. Cress; Operating a motor vehicle while intoxicated (OWI)

    Summary:

    Holding that the traffic stop was valid, that any mistake by the state trooper would have been reasonable under Heien, and that defendant failed to show bad faith as to the failure to produce the police car video footage of the stop, the court affirmed the circuit court’s order reinstating the charges against defendant. The district court granted his motion to dismiss the charges (OWI and violating basic speed laws). He argued that the trooper lacked reasonable suspicion to stop him for driving too slow on an interstate highway, contending that “he was justified driving slower than the 55 mph posted speed limit because the slower speed was necessary for the safe operation of” his vehicle. The court disagreed, noting that “even if the road conditions and the surrounding area justified defendant’s reduced speed, [the trooper] was only required to have reasonable suspicion that defendant may have committed a traffic violation.” Because he stopped him for traveling 51 mph, he “had reason to believe that defendant had committed a traffic violation, thereby justifying his stop of” the vehicle, and the circuit court did not err in so concluding. The court also agreed with the prosecution that “any mistake of law or fact in this case would have been reasonable under Heien.” It found that any mistake as to whether the road conditions necessitated a reduced speed under former MCL 257.628(8) was reasonable. “Defendant was not driving in a winter blizzard or in other extreme road conditions that would clearly merit a reduced speed.” While defense counsel claimed that “there was a risk that the roads were icy due to the temperature,” no evidence was produced showing that precipitation or other conditions “would have made it apparent that traveling at a slower speed was necessary” under the statute. The court also rejected defendant’s contention that the district court was allowed to infer that the missing video footage from the trooper’s in-car camera was exculpatory. He did not show that the trooper or the prosecution acted in bad faith in failing to produce the footage, and he failed to establish that the footage was actually exculpatory.

    Full Text Opinion

    Full Text Opinion

    e-Journal #: 69652
    Case: People v. Tucker
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Servitto, and Shapiro
    Issues:

    Other acts evidence; MRE 404(b)(1); People v. Mardlin; Relevance; MRE 401 & 402; Unfair prejudice; MRE 403; Prosecutorial discretion; People v. Lane; Receiving & concealing stolen property; People v. Watts; Principle that guilty knowledge may be inferred from all the facts & circumstances brought out at trial; People v. Laslo; Sentencing; People v. Lockridge; Departure sentence; Reasonableness & proportionality; People v. Steanhouse; People v. Milbourn; Waiver; People v. Carter

    Summary:

    The court held that the trial court did not err by allowing evidence of defendant’s past use of aliases, and that his departure sentence was reasonable and proportionate. He was convicted of receiving and concealing stolen property ($1,000 or more, but less than $20,000) and was sentenced as a fourth-offense habitual offender to 6 to 66 years, to be served consecutively to parole. On appeal, the court rejected his argument that the trial court erred by ruling that the evidence of his past use of 14 aliases was admissible, noting the evidence was relevant to a proper purpose – identity. “Defendant’s past use of aliases was relevant to explaining the process that [the detective] used in his investigation to identify defendant as the person who pawned the speakers.” In addition, it was not unfairly prejudicial. “Defendant’s use of a false name when he pawned the speakers tended to show guilty knowledge. Its admission was not more prejudicial than probative.” Finally, the court rejected his argument that “the departure sentence imposed was not proportional to the crime because he was 59 years old and had ‘reconsidered the path of his life’ during his nine months in prison.” It noted the sentence “was ‘proportionate to the seriousness of the circumstances surrounding the offense’ and defendant.” As the trial court highlighted, “defendant ‘has a voluminous, broad, and widescoping range of criminal conduct in the past, inability to comply with supervision, and [] a habitual fourth offense, very material violation of the law that he needs to serve time for.’” Thus, the minimum six-year sentence was proportionate to the seriousness of the crime. Affirmed.

    Full Text Opinion

  • Insurance (1)

    Full Text Opinion

    This summary also appears under Litigation

    e-Journal #: 69698
    Case: WA Foote Mem’l Hosp. v. Michigan Assigned Claims Plan
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Beckering, and Ronayne Krause
    Issues:

    No-Fault Insurance Act (MCL 500.3101 et seq.); Personal injury protection (PIP) benefits; Whether Covenant Med. Ctr., Inc. v. State Farm Mut. Ins. Co. should be applied retroactively to cases pending on direct appeal at the time it was decided; W A Foote Mem’l Hosp. v. Michigan Assigned Claims Plan; Associated Builders & Contractors v. Lansing; Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI; Harper v. Virginia Dep’t of Taxation; VHS Huron Valley Sinai Hosp. v. Sentinel Ins. Co. (On Remand); Stare decisis; MCR 7.215(C)(2); WA Foote Mem’l Hosp. v. City of Jackson; Yankee Springs Twp. v. Fox

    Summary:

    Concluding that Covenant applied retroactively, following the precedent set forth in W A Foote Mem’l Hosp, as the court was bound to do, it held that the trial court did not err when it granted summary disposition in favor of defendants. Plaintiff-hospital sought “assignment of a claim as a healthcare provider in connection with services it provided to an uninsured person involved in a motor vehicle accident.” Plaintiff also sought PIP benefits for those services. It argued that the decision in Covenant “establishing that a healthcare provider does not have a direct cause of action against no-fault insurers, applies only prospectively.” The court disagreed. It was bound to follow the decision in Covenant. Further, in W A Foote Mem’l Hosp the court applied Covenant “retroactively because the issue there—whether the plaintiff possessed a statutory cause of action—was preserved and the case was pending on direct review when” Covenant was issued. The issue presented here—whether Covenant “should be applied retroactively to those cases pending on direct appeal at the time it was decided—is not factually distinguishable from” the court’s recent decision in W A Foote Mem’l Hosp. “That case turned on the fact that the healthcare provider had filed a direct action against defendants that was pending when” Covenant was decided. The same was true here. Affirmed.

    Full Text Opinion

  • Litigation (1)

    Full Text Opinion

    This summary also appears under Insurance

    e-Journal #: 69698
    Case: WA Foote Mem’l Hosp. v. Michigan Assigned Claims Plan
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Cameron, Beckering, and Ronayne Krause
    Issues:

    No-Fault Insurance Act (MCL 500.3101 et seq.); Personal injury protection (PIP) benefits; Whether Covenant Med. Ctr., Inc. v. State Farm Mut. Ins. Co. should be applied retroactively to cases pending on direct appeal at the time it was decided; W A Foote Mem’l Hosp. v. Michigan Assigned Claims Plan; Associated Builders & Contractors v. Lansing; Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of MI; Harper v. Virginia Dep’t of Taxation; VHS Huron Valley Sinai Hosp. v. Sentinel Ins. Co. (On Remand); Stare decisis; MCR 7.215(C)(2); WA Foote Mem’l Hosp. v. City of Jackson; Yankee Springs Twp. v. Fox

    Summary:

    Concluding that Covenant applied retroactively, following the precedent set forth in W A Foote Mem’l Hosp, as the court was bound to do, it held that the trial court did not err when it granted summary disposition in favor of defendants. Plaintiff-hospital sought “assignment of a claim as a healthcare provider in connection with services it provided to an uninsured person involved in a motor vehicle accident.” Plaintiff also sought PIP benefits for those services. It argued that the decision in Covenant “establishing that a healthcare provider does not have a direct cause of action against no-fault insurers, applies only prospectively.” The court disagreed. It was bound to follow the decision in Covenant. Further, in W A Foote Mem’l Hosp the court applied Covenant “retroactively because the issue there—whether the plaintiff possessed a statutory cause of action—was preserved and the case was pending on direct review when” Covenant was issued. The issue presented here—whether Covenant “should be applied retroactively to those cases pending on direct appeal at the time it was decided—is not factually distinguishable from” the court’s recent decision in W A Foote Mem’l Hosp. “That case turned on the fact that the healthcare provider had filed a direct action against defendants that was pending when” Covenant was decided. The same was true here. Affirmed.

    Full Text Opinion

  • Municipal (3)

    Full Text Opinion

    This summary also appears under Constitutional Law

    e-Journal #: 69694
    Case: Deerhurst Condo. Owners Ass'n, Inc. v. City of Westland
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Murray, Servitto, and Shapiro
    Issues:

    Challenges to a municipality’s water & sewer rates; MCL 123.141(1)-(3); Trahey v. Inkster; Ratemaking as a legislative function; Novi v. Detroit; Maintenance of a capital reserve by rate-based public utilities; Jackson Cnty. v. City of Jackson; Const. 1963, art. 9, §§ 25-34 (the Headlee Amendment); Distinguishing a valid user fee from a tax; Bolt v. Lansing; Wheeler v. Shelby Charter Twp.; Graham v. Kochville Twp.; MCL 141.91

    Summary:

    Holding that plaintiffs failed to show a genuine issue of material fact as to their claims that defendant-city’s water and sewer rates violated MCL 123.141, the Headlee Amendment, or MCL 141.91, the court affirmed summary disposition for the city. While there was a fact question as to whether the city allocated too great a portion of certain administrative costs to the water and sewer department, the court disagreed with plaintiffs’ contention that this precluded summary disposition. They had to show the city’s rates were unreasonable, and they failed to produce evidence that the “overall allocation of administrative costs to the water and sewer department is unreasonable.” Their expert (O) testified that “he did not prepare a full cost allocation plan in analyzing the administrative expenses allocated to” the department. The court found it most significant that plaintiffs did not analyze the reasonableness of the city’s “overall rates by conducting a rate study. [O] agreed that if the rates cover the actual revenue requirements of the water and sewer department, then the rates are valid and customers will have suffered no damages.” But he was not asked to review the department’s overall expenditures, and he held no opinion overall on whether the department’s total expenditures were reasonable. Thus, plaintiffs made no effort to analyze the city’s “rates in lights of the department’s revenue requirements.” They also did not explain “how incorrect or improper administrative cost allocations in and of themselves” rendered the city’s water and sewer rates unreasonable. Further, in light of the city’s unrebutted evidence, they did not “overcome the presumption that a $500,000 annual addition to the City’s cash reserves to fund future improvements to the water and sewer system is a reasonable ratemaking practice.” As to their Headlee Amendment claim, after considering the Bolt criteria, the court held that they failed to show that the city had imposed an unconstitutional tax. Rather, the rates constituted “a valid user fee because users pay their proportionate share of the expenses associated with the operation and maintenance of the water and sewer systems.”

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 69682
    Case: Mays v. City of Detroit
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Sawyer, and Tukel
    Issues:

    The Governmental Tort Liability Act (MCL 691.1401 et seq.); Governmental immunity; The highway exception; Goodhue v. Department of Transp.; Notice requirements of MCL 691.1404; Rowland v. Washtenaw Cnty. Rd. Comm’n; Effective service on a city; Wigfall v. City of Detroit

    Summary:

    In the absence of evidence that the notice required by MCL 691.1404 was timely served, the court concluded that the trial court properly granted defendant-city summary disposition in this case arising from a single-vehicle accident. It added that the city was also entitled to summary disposition based on its alternative argument that plaintiff’s notice was not sent to the proper recipient. The trial court granted the city summary disposition on the basis that plaintiff failed “to serve notice within the 120-day statutory period.” The court held that it did not err in doing so. The evidence showed that plaintiff’s accident occurred on 8/26/14. Thus, he had 120 days from that date to serve notice on the city. As this fell on the Christmas Eve holiday, the due date became the next non-holiday weekday, 12/26/14. The city attached to its summary disposition motion a copy of plaintiff’s notice, which was stamped as received on 1/2/15. In opposing the city’s motion, plaintiff “did not submit any materials to refute that” the city received the notice on this date. When “asked at the motion hearing if there were any signed return receipts to show that the notice had actually been received, plaintiff did not have any.” Further, he “addressed his notice to the ‘City of Detroit Law Department,’ not to the mayor, the city clerk, or the city attorney.” Just as in Wigfall, this was legally insufficient. “Because plaintiff’s attempted notice in this case was ineffective, summary disposition also was appropriately granted on this alternate basis.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Negligence & Intentional Tort

    e-Journal #: 69661
    Case: Murawski v. City of Essexville
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Sawyer, and Tukel
    Issues:

    Dispute over whether there was a defect in a sewage system; Governmental immunity; Exception for a sewage disposal system event; MCL 691.1417(1)-(3); “Sewage disposal system” defined; MCL 691.1416(j); “Sewage disposal system event” defined; MCL 691.1416(k)

    Summary:

    The court held that the trial court did not err by denying defendant-city’s motion for summary disposition in plaintiff’s action seeking damages for a sewage disposal system event in his home. Plaintiff sued defendant after his home flooded with sewage. He claimed defendant was “negligent in its failure to provide adequate and safe disposal of plaintiff’s sewage, that [it] had a duty to do so, and that as a ‘proximate result’ of [its] negligence in not reconnecting his home’s sewer line, he and his family were required to unnecessarily vacate their home and spend money on alternate housing, food, other needs, and restoration and repair services.” The trial court found that there was “a genuine issue of material fact as to whether defendant’s employees caused a defect in the sewage disposal system, or whether the defect was in plaintiff’s sewage service lead for which he was responsible.” On appeal, the court rejected defendant’s argument that there was no genuine issue of material fact as to whether there was a defect in its sewage disposal system and that it was immune from plaintiff’s suit. It found that, “accepting all allegations in the complaint with regard to the defect as true, in addition to [plaintiff’s experts] opinions about the cause of the defect, and contrasting them with [defendant’s city manager’s] opinion about the non-existence of a defect in the sewage disposal system,” there was a genuine issue of material fact “whether defendant’s sewage disposal system had a defect.” In addition, “one could infer that city employees, in a reasonably diligent review of their own records, would have known of the defect in defendant’s sewage disposal system. There remains an open issue upon which reasonable minds might differ.” Further, while defendant “may have taken reasonable steps within a reasonable amount of time of actually knowing of the defect,” there was a question as to “whether it did so within a reasonable amount of time from when they should have known.” The contradictory factual accounts qualified “as a genuine issue of material fact.” The various allegations and statements showed the existence of “a genuine issue of material fact with regard to whether it was a failure to connect that proximately caused plaintiff’s damages.” Affirmed.

    Full Text Opinion

  • Negligence & Intentional Tort (3)

    Full Text Opinion

    This summary also appears under Construction Law

    e-Journal #: 69685
    Case: Barber v. Lombardo Homes of S.E. MI, LLC
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Servitto, Stephens, and Boonstra
    Issues:

    Negligence action arising from a fall on a construction site; The common-work-area doctrine; Funk v. General Motors Corp.; Ormsby v. Capital Welding, Inc.; Failure to guard against readily observable & avoidable dangers element; Principle that a trial court may not resolve factual disputes or determine credibility in ruling on a summary disposition motion; Burkhardt v. Bailey; The significant number of workers exposed to a high degree of risk element; Hughes v. PMG Bldg., Inc.; Alderman v. JC Dev. Cmtys., LLC; Phillips v. Mazda Motor Mfg. (USA) Corp.; Identifying the appropriate danger; Latham v. Barton Malow Co.; Motion for JNOV; Whether the jury’s verdict was legally & logically inconsistent; Granger v. Fruehauf Corp.; Admission of a photo; Relevance; MRE 401 & 402; Establishing negligence by circumstantial evidence; Spiers v. Martin; Forncrook Mfg. Co. v. E T Barnum Wire & Iron Works; Whether the photo was unfairly prejudicial; MRE 403; Authentication; MRE 901(a); Mitchell v. Kalamazoo Anesthesiology, PC

    Summary:

    The court held that the defendant-general contractor was properly denied summary disposition on plaintiff-subcontractor’s common-work-area doctrine claim because there were genuine issues of material fact on the second and third elements. Defendant’s motion for JNOV was also properly denied because there was testimony that, if believed by the jury, supported a finding that the Funk elements were met. Finally, the court concluded that the value to be given to the challenged photo and the inference to be drawn from it was for the jury to decide, that it was not inadmissible under MRE 403, and that plaintiff met the authentication requirements. Thus, it affirmed the trial court’s judgment on a jury verdict for plaintiff, who was injured when he fell through a porch hole cover at defendant’s construction site. As to defendant’s challenge to the denial of its summary disposition motion, the court agreed with the trial court that a question of fact existed as to whether “defendant failed to guard against readily observable and avoidable dangers.” Plaintiff’s testimony that he fell through an “unsecured plywood porch hole cover when he exited the home through its front door” was uncontested. Also, no evidence contradicted his statement that he entered the home through its garage earlier that morning. Defendant’s safety supervisor (F) “gave deposition testimony that the porch hole cover was inspected when it was first installed and on a daily basis thereafter. He testified that at all times it was found to be properly secured” and that he walked over it the day before the accident, without incident. But plaintiff offered a photo taken by F “approximately a half an hour after plaintiff’s fall that showed debris on the cement ledge between the house and the cover.” The owner of the company that installed the cover testified, among other things, that the cover was installed in a manner to prevent a gap for debris to collect and that the amount of debris that had accumulated on the ledge as shown in the photo indicated “that the cover had been unsecured for quite a while.” The court also held that there was a genuine issue of material fact as to whether a significant number of workers were at risk.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 69682
    Case: Mays v. City of Detroit
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Sawyer, and Tukel
    Issues:

    The Governmental Tort Liability Act (MCL 691.1401 et seq.); Governmental immunity; The highway exception; Goodhue v. Department of Transp.; Notice requirements of MCL 691.1404; Rowland v. Washtenaw Cnty. Rd. Comm’n; Effective service on a city; Wigfall v. City of Detroit

    Summary:

    In the absence of evidence that the notice required by MCL 691.1404 was timely served, the court concluded that the trial court properly granted defendant-city summary disposition in this case arising from a single-vehicle accident. It added that the city was also entitled to summary disposition based on its alternative argument that plaintiff’s notice was not sent to the proper recipient. The trial court granted the city summary disposition on the basis that plaintiff failed “to serve notice within the 120-day statutory period.” The court held that it did not err in doing so. The evidence showed that plaintiff’s accident occurred on 8/26/14. Thus, he had 120 days from that date to serve notice on the city. As this fell on the Christmas Eve holiday, the due date became the next non-holiday weekday, 12/26/14. The city attached to its summary disposition motion a copy of plaintiff’s notice, which was stamped as received on 1/2/15. In opposing the city’s motion, plaintiff “did not submit any materials to refute that” the city received the notice on this date. When “asked at the motion hearing if there were any signed return receipts to show that the notice had actually been received, plaintiff did not have any.” Further, he “addressed his notice to the ‘City of Detroit Law Department,’ not to the mayor, the city clerk, or the city attorney.” Just as in Wigfall, this was legally insufficient. “Because plaintiff’s attempted notice in this case was ineffective, summary disposition also was appropriately granted on this alternate basis.” Affirmed.

    Full Text Opinion

    Full Text Opinion

    This summary also appears under Municipal

    e-Journal #: 69661
    Case: Murawski v. City of Essexville
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Sawyer, and Tukel
    Issues:

    Dispute over whether there was a defect in a sewage system; Governmental immunity; Exception for a sewage disposal system event; MCL 691.1417(1)-(3); “Sewage disposal system” defined; MCL 691.1416(j); “Sewage disposal system event” defined; MCL 691.1416(k)

    Summary:

    The court held that the trial court did not err by denying defendant-city’s motion for summary disposition in plaintiff’s action seeking damages for a sewage disposal system event in his home. Plaintiff sued defendant after his home flooded with sewage. He claimed defendant was “negligent in its failure to provide adequate and safe disposal of plaintiff’s sewage, that [it] had a duty to do so, and that as a ‘proximate result’ of [its] negligence in not reconnecting his home’s sewer line, he and his family were required to unnecessarily vacate their home and spend money on alternate housing, food, other needs, and restoration and repair services.” The trial court found that there was “a genuine issue of material fact as to whether defendant’s employees caused a defect in the sewage disposal system, or whether the defect was in plaintiff’s sewage service lead for which he was responsible.” On appeal, the court rejected defendant’s argument that there was no genuine issue of material fact as to whether there was a defect in its sewage disposal system and that it was immune from plaintiff’s suit. It found that, “accepting all allegations in the complaint with regard to the defect as true, in addition to [plaintiff’s experts] opinions about the cause of the defect, and contrasting them with [defendant’s city manager’s] opinion about the non-existence of a defect in the sewage disposal system,” there was a genuine issue of material fact “whether defendant’s sewage disposal system had a defect.” In addition, “one could infer that city employees, in a reasonably diligent review of their own records, would have known of the defect in defendant’s sewage disposal system. There remains an open issue upon which reasonable minds might differ.” Further, while defendant “may have taken reasonable steps within a reasonable amount of time of actually knowing of the defect,” there was a question as to “whether it did so within a reasonable amount of time from when they should have known.” The contradictory factual accounts qualified “as a genuine issue of material fact.” The various allegations and statements showed the existence of “a genuine issue of material fact with regard to whether it was a failure to connect that proximately caused plaintiff’s damages.” Affirmed.

    Full Text Opinion

  • Probate (1)

    Full Text Opinion

    e-Journal #: 69689
    Case: In re Conservatorship of Jaye
    Court: Michigan Court of Appeals ( Unpublished Opinion )
    Judges: Per Curiam – Boonstra, Sawyer, and Tukel
    Issues:

    First annual accounting & denial of the petition to modify the conservatorship; Article V, Part 4 of EPIC (MCL 700.1101 et seq.); MCL 700.5416; MCL 700.1212(1); MCL 700.5401(3); MCL 700.5425(b); MCL 700.5417(2); MCL 700.5418(1); MCR 5.409(C)(1) & (5); MCR 5.310(C)(2)(c) & (d); In re Temple Marital Trust; Appointment of an independent professional conservator; MCL 700.5415(1); Good cause; MCL 700.5414; Consumers Power Co. v. Department of Treasury; Good cause defined; In re Utrera; Petition to modify the guardianship; Article V, Part 3 of EPIC (MCL 700.5301 et seq.); MCL 700.5310(2); Distinguishing In re Redd Guardianship; In re Guardianship of Gerstler; Co-guardian; Prince v. MacDonald

    Summary:

    The court held that the probate court did not abuse its discretion by allowing the first annual accounting or by denying the petition to modify the conservatorship and guardianship. Elaine Jaye is 92 years old and the mother of appellant-Chris and appellee-Karen. She had lived with Chris, who served as her co-guardian, in Las Vegas. She then returned to Michigan, and in 2016 Karen was appointed sole guardian and conservator. Chris argued that the first annual accounting was deficient and should not be accepted and that Karen should be removed as conservator. The “expenses in the first accounting appeared to be ‘reasonably necessary’ for Elaine’s support, care, and benefit as required by MCL 700.5425(b). The probate court’s findings that the various expenses were not fraudulent and that the account was balanced were not clearly erroneous.” Although Chris wanted “more specific itemization, the accounting was broken down into eight total categories, and Karen submitted ledgers and voluminous receipts for various costs. While 100% of the costs may not have been accounted for, in the absence of bad faith or overreaching,” the court held that “the probate court’s decision not to scrutinize every single expense was not clearly erroneous, and that its decision to allow the accounting was not an abuse of discretion because it was not outside the range of reasonable and principled outcomes.” Also, because the probate court did not clearly err by finding that Karen substantially complied with her duties or abuse its discretion by allowing the first annual accounting, Chris’s objections did “not meet the definition of ‘good cause.’” Thus, the probate court did not abuse its discretion in denying his petition to remove Karen as conservator. Further, “a professional conservator was not necessary because Karen was competent, suitable, and willing” to serve. While Chris argued that the circumstances that led to the guardian’s removal in Redd also were present here, unlike in Redd, “there was no testimony or evidence that Karen was unduly influencing Elaine and impeding her relationship with Chris.” Further, Elaine’s attorney testified that the petition to remove Karen as guardian lacked merit and that there was no evidence Karen was unfit to serve. The probate court’s finding that she was a suitable guardian and had satisfactorily provided for Elaine’s care, custody, and control was not clearly erroneous. Thus, it did not err by refusing to appoint a professional guardian in her place. Affirmed.

    Full Text Opinion

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