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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Tortious interference with a business relationship; Baidee v. Brighton Area Schs.; A manufactured or false representation as evidence a person intentionally interfered; Wood v. Herndon & Herndon Investigations, Inc.; Hearsay; MRE 801(c); Guerrero v. Smith; Admissions of a party-opponent; MRE 801(d)(2); Whether plaintiff signed an arbitration agreement; Hicks v. EPI Printers, Inc.; Elements of a valid contract; Eerdmans v. Maki; Principle that a party cannot create an issue of material fact by contradicting his or her own deposition testimony; Kennedy v. Great Atl. & Pac. Tea Co.; Statements of fact made in a clear, intelligent, & unequivocal manner; Barlow v. John Crane-Houdaille, Inc.; Use of an expert’s affidavit to create a genuine issue of material fact after contradictory deposition testimony; Dykes v. William Beaumont Hosp.
The court affirmed summary disposition for several of the defendants (referred to as the Garff defendants) on plaintiff-former employee’s claims alleging civil rights and consumer protection violations on the basis that an arbitration agreement barred her claims. It also affirmed summary disposition for two other defendants on her tortious interference with business relationships claim, concluding that she failed to show that defendant-Rivard, an employee of defendant-Ally Financial, intentionally interfered with her employment. The court rejected plaintiff’s argument that the trial court erred in determining there was no question of fact as to whether she signed an arbitration agreement with the Garff defendants. After being shown the agreement at her deposition, she identified her signature on it “in a clear, direct, and unequivocal manner. She recalled signing it, seemingly attributing her earlier partially contradictory affidavit on this point to her failure to recall it.” The court found that her later “statements to the contrary were not explanations or modifications, but direct contradictions of her earlier testimony,” and she failed to make any “showing of mistake or improvidence.” The court concluded that her unequivocal initial deposition statements were “binding and she did not create an issue of material fact by later contradicting herself at the same deposition.” As to her tortious interference claim, it found that the trial court erred in its ruling on the admissibility of certain testimony. As it was “not offered to prove the truth of the matter asserted, it was not hearsay.” Further, the testimony about statements during the witnesses’ “conversations with Rivard would be admissible as admissions by a party-opponent.” But the court held that plaintiff still failed to create a genuine issue of material fact as to “whether Rivard intentionally interfered with her prospective employment.” The evidence showed that his statements about her “were motivated by business reasons” and that he “was acting to protect the interests of Ally Financial rather than acting for his own benefit.” There was no evidence that his “statements of his beliefs about plaintiff were manufactured or false.”
Sentencing for indecent exposure as a sexually delinquent person; MCL 750.335a(2)(c); People v. Arnold (On Remand); Scoring of OV 13 (MCL 777.43)
In an order in lieu of granting leave to appeal, the court vacated the part of the Court of Appeals judgment (see e-Journal # 64791 in the 3/27/17 edition) that vacated defendant’s indecent exposure by a sexually delinquent person sentences, and remanded the case to that court. It directed the Court of Appeals to hold this case in abeyance pending its decision on remand in Arnold, and to reconsider this case after Arnold is decided. The court also directed the Court of Appeals to consider defendant’s challenge to the scoring of OV 13, which was not addressed in its initial review of the case. The court denied leave to appeal in all other respects because it was not persuaded that it should review the remaining questions presented.
Sentencing; Whether defendant was properly resentenced on the assault with intent to murder convictions; Motion for relief from judgment; People v. Swain; People v. Allen; MCR 6.501 & 502; MCR 6.502(G); Whether the motion was a successive motion; MCR 6.502(G)(1); Whether good cause & actual prejudice existed to warrant granting defendant’s motion for relief from judgment; MCR 6.508; People v. Clark; MCR 6.508(D)(3); People v. Reed
The court held that the trial court did not abuse its discretion in treating defendant’s motion for relief from judgment as an initial rather than a successive one. Also, the trial court did not abuse its discretion in holding that good cause and actual prejudice existed to warrant granting his motion for relief from judgment. The prosecution asserted that the trial court never should have considered defendant’s motion for relief from judgment because it constituted a successive motion limited by the restrictions of MCR 6.502(G). The court noted that a large portion of the prosecution’s argument was that the trial court failed to apply MCR 6.502(G) to defendant’s motion. The trial court determined that his motion was not successive and thus, the issue was less about how MCR 6.502(G) applied and more about whether it applied at all. “Although the poorly organized condition of the lower court file complicates review of the issue on appeal,” the court found that it could not be said that the trial court clearly erred when it concluded that defendant’s motion “was not a successive motion, nor should defendant bear the responsibility for the disorder of the lower court file.” The prosecution claimed that defendant filed an initial motion for relief from judgment in 2005 and that the trial court issued an opinion and order denying it on 10/24/05. But a full review of the record clearly showed that the motion for relief from judgment disposed of by the 10/24/05 order was filed by his codefendant Sharp and not defendant. The record then reflected “continued failure by the trial court to rectify its mistake despite consistent communication and pleas from defendant for the error to be corrected.” The prosecution conceded that defendant seemed to be correct “about the motion, and that ‘the body of the order seemed to discuss the issues raised in Sharp’s motion, not defendant’s motion,’” yet still contended that he should have been barred from filing a motion for relief from judgment because he failed to appeal either the 10/24/05 order, or the 12/7/05 order denying his request for reconsideration. The court was “not left with a definite and firm conviction that the trial court was mistaken when it determined that, to the extent that defendant had ever filed a motion for relief from judgment, the motion had never been properly reviewed and decided.” Affirmed.
Sufficiency of the evidence to bind defendant over; People v. Bennett; People v. Cervi; Probable cause; People v. Shami; People v. Greene; First-degree murder; People v. Oros; MCL 750.316(1)(a); Premeditation & deliberation; People v. Plummer; Felon in possession (FIP); People v. Tice; MCL 750.224f; Felony-firearm; People v. Dillard; MCL 750.227b; Motion to quash the bindover; People v. Norwood
Holding that there was sufficient evidence produced at the preliminary exam to show probable cause to bind defendant over on the first-degree murder, FIP, and felony-firearm charges, the court reversed the circuit court’s order granting his motion to quash the bindover and dismiss the charges. It remanded for reinstatement of the district court’s bindover order and further proceedings. The evidence at the preliminary exam showed that defendant was with the victim (B) when B was initially shot, they were together while making phone calls to B’s cousin (M) using defendant’s cell phone, that cell phone was used in an area that included where B’s body was later found, defendant accurately described B’s wounds, and he lied about where he had left B. The court held that this evidence, taken as a whole, was sufficient to establish “probable cause to believe that defendant intentionally killed” B. As to the specific intent element, he and B “knew each other well enough that defendant’s cell phone number was entered in” B’s cell phone under the nickname “Ice.” The evidence suggested that they left in defendant’s car, and B was still alive for several minutes while he used defendant’s cell phone to talk to M. When B’s “body was found, he had been shot six times from behind and once in the head from the front.” Photos presented at the preliminary exam indicated that the area where his “body was found was somewhat remote, and one shell casing was found near” his body. This evidence was consistent with the prosecution’s theory that defendant purposefully shot B several times, then drove the wounded B “to a different location before fatally shooting” him, on the way allowing him to talk to M to instruct M not to tell that B was with defendant. After killing B, he used the same cell phone to instruct M not to reveal that defendant had been with B, and to tell both M and later B’s mother “incorrect and inconsistent information about [B’s] condition and location.” The evidence of his behavior before and after B was killed suggested “both premeditation and deliberation.” The same evidence that established probable cause to bind him over on the murder charge also supported binding him over on the FIP and felony-firearm charges.
Sufficiency of the evidence of malice to support defendant’s second-degree murder conviction; People v. Smith; Malice; People v. Aaron; People v. Carines; Voluntary manslaughter; People v. Reese; Provocation; People v. Tierney; People v. Parney; People v. Mendoza
The court held that there was sufficient evidence for a reasonable trier of fact to find defendant guilty of second-degree murder. The jury was entitled to find that he was not subjected to the kind of reasonable provocation that would negate a finding of malice. The court observed that he presented no evidence suggesting that he was subjected to reasonable provocation that prompted him to kill the victim (his girlfriend) in the heat of passion. According to L (defendant’s father), defendant and the victim had a troubled relationship. According to L’s “testimony about defendant’s confession, defendant drove into a vacant parking garage at the end of a dead end street and killed the victim because the two had an argument. Defendant told [L] that he ‘was tired of [the victim] arguing and screaming at him.’” L also testified that “defendant and the victim had been dating for over a year, and that defendant told [L] that he was ‘depressed.’” The jury was instructed that it could find him guilty of voluntary manslaughter, and it declined to do so; by necessary implication, it found that he had not been reasonably provoked. The court held that the “jury’s finding was proper;” the court concluded that no reasonable jury could have found this “provocation sufficient to cause a reasonable person to lose control.” Thus, the evidence did not support a conviction of voluntary manslaughter. In contrast, the evidence “was sufficient for the jury to infer that defendant killed the victim with malice. The victim died of inflicted blunt force trauma, and sustained the vast majority of her injuries to her head, with multiple lacerations on her forehead, chin, and the back of her head. She also sustained contusions below her eyes, on her nose, and on her chin. The blunt force trauma was so severe that the victim’s skull was exposed, and fragments of brain matter protruded from her injuries.” Further, her “injuries distorted her face to the point where her face became nonsymmetrical. The police were compelled to broadcast descriptive information about” her and her clothing on the news because the injuries made her “unrecognizable.” The extent of her “injuries could not possibly have been accidental or unknowing, and thus at a minimum overwhelmingly imply that they were inflicted with the intent to cause great bodily injury.” The jury was permitted to draw reasonable inferences. Affirmed.
Sentencing; Scoring of OV 4; MCL 777.34; Whether serious psychological injury requiring professional treatment occurred to the victim; MCL 777.34(1)(a); MCL 777.34(2); People v. White; People v. Williams; Scoring of OV 8; MCL 777.38; Victim asportation or captivity; MCL 777.38(1)(a); People v. Barrera
Holding that the trial court did not err by scoring OV 4 at 10 points or OV 8 at 15 points, the court affirmed defendant’s conviction and sentence. He was convicted of CSC I for raping an incapacitated victim and was sentenced to 15 to 30 years. On appeal, the court rejected his argument that the trial court erred in scoring OV 4 at 10 points because there was no evidence that the victim suffered serious psychological injury. “The victim’s testimony and statements indicating that she went to therapy and was psychologically traumatized were sufficient to establish by a preponderance of the evidence that [she] suffered serious psychological injury requiring professional treatment.” It also rejected his claim that the trial court erred in scoring OV 8 at 15 points because there was no evidence that he removed the victim to another place of greater danger or held her captive beyond the time necessary to commit the charged crime. “The closed bedroom, in which the victim was isolated from [her boyfriend], was a place or situation of greater danger to the victim because it reduced the likelihood that [her boyfriend] would notice or discover the assault.”
28 USC § 2255 motion to vacate a sentence; Whether defendant properly brought his claim under Johnson v. United States (Johnson II); Raines v. United States; Potter v. United States; Whether a Michigan conviction for unarmed robbery constituted a “violent felony” for purposes of the Armed Career Criminal Act’s (ACCA) career criminal 15-year mandatory minimum (18 USC § 924(e)(1)); MCL 750.530; United States v. Mekediak (Unpub. 6th Cir.); United States v. Lamb (Unpub. 8th Cir.); United States v. Tirrell (7th Cir.); The ACCA’s “elements clause”; § 924(e)(2)(B)(i); Whether the Michigan statute’s inclusion of “putting in fear” necessarily involves the threat of violence; United States v. Mathews (Unpub. 6th Cir.); Michigan v. Kruper (MI); Michigan v. Hearn (MI App.); Michigan v. Randolph (MI); United States v. Mitchell; Stokeling v. United States; Whether attempted unarmed robbery is a violent felony under the elements clause; Michigan v. Burton (MI App.); Michigan v. Gardner (MI)
[This appeal was from the ED-MI.] The court held that Michigan attempted unarmed robbery, as it existed in 1981, is a violent felony under the ACCA’s elements clause. Defendant-Chaney was sentenced as an armed career criminal. One of his predicate crimes of violence was a 1981 Michigan conviction for attempted unarmed robbery. He argued that this conviction did not qualify as a “violent felony” after the Supreme Court invalidated the ACCA’s residual clause in Johnson II. He maintained that it did not constitute a violent felony under the “elements clause” because it “does not ‘ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another[.]’” The district court disagreed and denied his motion to vacate his sentence. The court first held that Chaney could bring his claim under Johnson II because the district court “might have relied on the residual clause” in making its sentencing decision. It then considered the merits of his claim and held that “Chaney’s 1981 Michigan conviction for attempted unarmed robbery is categorically a violent felony under the ACCA’s elements clause.” The statute covered “theft committed ‘by force and violence, or by assault, or putting in fear.’” The court previously held in Mathews that “putting in fear” involves “a ‘reasonable belief that [the victim] may suffer injury unless he complies with the demand.’” The court joined the Seventh and Eighth Circuits by holding that “Michigan unarmed robbery is a violent felony under the ACCA.” The court rejected Chaney’s argument that even if Michigan unarmed robbery qualifies as a violent felony, attempted unarmed robbery does not. It noted that “the ACCA’s elements clause expressly includes the ‘attempted use’ of ‘physical force.’” Affirmed.
Divorce; Interpretation of a property settlement as a contract; In re Lett Estate; Binding effect of property settlements reached through negotiations & agreement by the parties; Keyser v. Keyser; Lentz v. Lentz; The trial court’s reliance on equitable considerations; Hagen v. Hagen; Sparks v. Sparks; Departing from the language of a properly executed consent judgment where the judgment is incomplete; Andrusz v. Andrusz; Weight given to the parties’ interpretation of a contract provision; North W. MI Constr., Inc. v. Stroud; Giving contract language its plain & ordinary meaning; Holland v. Trinity Health Care Corp.; Principle that marital assets are typically valued at the time of trial or when the judgment is entered; Woodington v. Shokoohi
The court held that the trial court erred if it relied on equitable consideration in awarding defendant-ex-wife $106,900 in satisfaction of the retirement benefits provision in the parties’ consent divorce judgment, and it erred in including contributions plaintiff-ex-husband made to his 401(k) after he filed the divorce complaint. It vacated the award and remanded for further factual development because the judgment was incomplete as it did not provide an ending date for calculating the retirement accounts’ division, “the date upon which the appreciation or depreciation should be calculated.” This constituted a void that the trial court must fill. Under Andrusz, “the trial court may rely on equitable concerns in determining how to fill the void” in this case, but it “must remain mindful of precisely what that void entails. That void is not a question of how much money is fair or appropriate to transfer, but rather, when to calculate the appreciation and depreciation.” The court found that the judgment did not provide any facially evident basis for choosing an ending date. Thus, it was ambiguous and the trial court “may ‘consider extrinsic evidence to resolve the ambiguity, but the overarching goal’” is to determine the parties’ intent. They seemed to have assumed that “appreciation and depreciation should be calculated as of the date of the motion to enforce,” but the court found no “indication that a motion to enforce was contemplated, suggesting that the parties had no such intention when they entered into the consent judgment. Conversely, marital assets are typically valued at the time of trial or when the judgment is entered when dividing property.” But the court noted that this timing is not mandatory. The trial court erred in “basing its award on equitable concerns.” Instead, it had to make specific factual determinations as to when the judgment required “any appreciation or depreciation to be valued, and then it must effectuate the parties’ consent judgment based on that determination.” The court noted that it was possible they intended appreciation or depreciation to be valued as of the date the judgment was entered, but on this record it could not tell and it would not assume.
Action seeking personal protection insurance (PIP) benefits for medical services provided to an insured; Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co.; Effect of an assignment of rights; Jawad A Shah, MD, PC v. State Farm Mut. Auto. Ins. Co.; Whether an unambiguous anti-assignment clause is enforceable; Roger Williams Ins. Co. v. Carrington; The one-year-back rule; MCL 500.3145(1); Burkhardt v. Bailey
The court held that the trial court did not err by granting summary disposition for defendant-insurer in plaintiff-medical service provider’s action seeking PIP benefits for medical services it provided to defendant’s insured after an accident. The trial court found that Covenant precluded recovery of PIP benefits, and that the anti-assignment provision in the insurance policy was clear and unambiguous and that the insured could not assign his rights to plaintiff. On appeal, the court found that enforcing the anti-assignment clause would be contrary to public policy. However, even though the anti-assignment clause was unenforceable, it concluded that remand to the trial court was unnecessary because plaintiffs’ action was barred by the one-year-back rule in MCL 500.3145(1). “Plaintiffs seek the payment of no-fault benefits for losses incurred between December 12, 2012, which was the date of the car accident, and January 26, 2016, which was the date that the original complaint was filed. Because the right to seek no-fault benefits only relates back one year from the date of assignment on June 1, 2017, plaintiffs can only recover no-fault benefits for medical services rendered between June 1, 2016, and June 1, 2017.” However, there was “no evidence in the record indicating that plaintiffs provided medical care to” the insured between these dates. Thus, “although the trial court erred by finding that the anti-assignment clause was enforceable, remand would be futile because the one-year-back rule, MCL 500.3145(1), prevents plaintiffs from recovering.” Affirmed.
Action by healthcare providers to recover personal protection insurance (PIP) benefits under the No-Fault Act (MCL 500.3101 et seq.) for medical services provided to defendant’s insured; Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co.; Jawad A Shah, MD, PC v. State Farm Mut. Auto. Ins. Co.; Henry Ford Health Sys. v. Everest Nat’l Ins. Co.; Principle that an accrued cause of action may be freely assigned after the loss & that an anti-assignment clause is not enforceable to restrict such an assignment because such a clause violates public policy in that situation; Roger Williams Ins. Co. v. Carrington; Principle that an agreement for assignment of a right to benefits payable in the future is void; MCL 500.3143; Professional Rehab. Assoc. v. State Farm Mut. Auto. Ins. Co.
The court held that the trial court did not err by denying defendant-insurer’s motion for summary disposition in plaintiffs-healthcare providers’ action seeking to recover PIP benefits for medical services they provided to defendant’s insured. The court rejected defendant’s argument that it was entitled to summary disposition because medical providers do not have a cause of action against insurers under the No-Fault Act and the insured was prohibited from splitting his cause of action into separate damage claims and assigning them to others. “Under Covenant, plaintiffs and intervening plaintiff do not have a statutory cause of action against defendant to pursue payment of no-fault benefits, but clearly Covenant does not prevent their claims by way of assignment.” The assignments of rights in this case “specified that they allowed plaintiffs ‘to enforce payment of benefits due or past due for the Services.’” Thus, the question was whether they “afforded plaintiffs and intervening plaintiff a legally sufficient cause of action such that they could state a claim upon which relief can be granted in their amended complaints.” The court also rejected defendant’s claim that its insured was “prohibited from using assignments to split his single cause of action for PIP benefits into multiple claims” filed by several providers. “Because each payment presents a new claim, the [N]o-[F]ault [A]ct necessarily permits multiple suits to enforce the payments.” It next rejected defendant’s contention that the anti-assignment clause in the policy prevented the assignments that occurred. “Although the trial court found the clause to be an ‘anti-transfer clause,’” it was “actually an anti-assignment clause.” Under Roger Williams, the “policy’s prohibition against [the insured] assigning his claims [wa]s unenforceable because it [wa]s against public policy.” As such, “the anti-assignment clause [wa]s unenforceable to prohibit the assignments that were executed.” Finally, the court rejected defendant’s argument that MCL 500.3143 prohibited the assignments because the PIP benefits were disputed and had not yet been paid. “Because the Shah and Henry Ford assignments were enforced despite the providers’ refusal to pay benefits, [the insured’s] assignments [we]re enforceable too, even though defendant disputes the payment of benefits.” Affirmed.
Denial of a motion to reopen an in absentia removal order; Dada v. Mukasey; Whether the Notice to Appear (NTA) was “facially deficient” depriving the immigration judge (IJ) of jurisdiction; Pereira v Sessions; Hernandez-Perez v. Whitaker; The Attorney General’s promulgation authority under the Immigration & Nationality Act (INA); 8 USC §§ 1103(g)(2) & 1229a(a); 8 CFR §§ 1003.13 & 1003.14(a); §§ 1003.15(b) & 26; Karingithi v. Whitaker (9th Cir.); Whether petitioner established that he never received the subsequent Notice of Hearing; § 1229a(b)(5)(C); Scorteanu v. INS; Soumah v. Holder (Unpub. 6th Cir.); Mota-Roman v. Holder (Unpub. 6th Cir.); §§ 1229(a)(2)(A)(i)–(ii); Thompson v. Lynch; Ly v. Holder (Unpub. 6th Cir.)
The court denied petitioner-Santos-Santos’s petition seeking to reopen removal proceedings on the basis of a deficient NTA where a subsequent Notice of Hearing was issued stating the “date, time, and place” of the hearing and where he failed to offer evidence that he never received it. Santos-Santos, who entered the country illegally, claimed that the NTA served on him did not provide the “date, time, and place” at which he was required to appear, and that he never received the Notice of Hearing containing that information. When he did not appear, he was ordered removed in absentia, and the immigration court denied his motion to reopen the proceedings. Santos-Santos argued that the removal proceedings were void ab initio because of deficient notice, divesting the IJ of jurisdiction over the matter. However, the court ruled in Hernandez-Perez that jurisdiction is vested where a Notice of Hearing containing the mandatory information is sent after the NTA. Moreover, the INA permits the Attorney General to promulgate regulations governing removal hearings, including the vesting of jurisdiction, and “[n]o references to the time and place of the hearing are required to vest jurisdiction under the regulation. The NTA served on Santos-Santos and filed with the immigration court contained all of the requisite information and satisfies the regulation’s definition of a ‘notice to appear.’” The court also held that Santos-Santos failed to meet his burden of rebutting the presumption of delivery by showing that he never received the Notice of Hearing, which he was required to establish in order to obtain rescission of an in absentia deportation order.
Medical malpractice; Elher v. Misra; Proximate causation; Teal v. Prasad; Lockridge v. Oakwood Hosp.; Kalaj v. Khan; Ray v. Swager; Standard of care (SOC)
Holding that plaintiff presented evidence creating a genuine issue of material fact as to causation, the court reversed the grant of partial summary disposition and remanded. Plaintiff argued that the trial court, relying on the expert testimony of his causation expert, Dr. V, erroneously held that there was no genuine issue of material fact as to the issue of proximate causation. The court held that defendants’ position failed because plaintiff’s SOC expert, Dr. S, did not limit his testimony to requiring an MRI of the lumbar spine. S testified that the SOC for “a patient with Marfan syndrome with the specific symptoms plaintiff had, which included ‘pain inferior to the right scapula,’ ‘pain in the right flank,’ ‘pain in the lumbosacral area,’ ‘pain in the thoracic vertebrae area,’ pain that ‘moves around’ but ‘[a]ll related to the back’ called for ‘an MRI or a CT of the chest, abdomen, pelvis, and spine,’ and that a ‘focused spine radiological study’ was necessary ‘to see dural ectasia.’” S testified that “they didn’t do the proper radiological evaluation of the spine.” V’s remarks were based on a hypothetical scenario that did not match S’s SOC testimony, and he clarified before responding that the question at issue was whether “an MRI of the lumbar spine” would “image the mid thoracic spine.” S did “not opine that an MRI of the chest or a focused spine radiological study would fail to reveal plaintiff’s presenting condition.” To the extent V gave any opinion testimony as to what tests he would order, it was irrelevant and inadmissible, as it was undisputed that he was not qualified under MCL 600.2169 to render SOC opinions as to ER physicians. The essence of S’s opinion was not that the defendants-doctors breached the SOC by “failing to diagnose a dural ectasia per se. Rather, it was failing to perform the evaluation for dural ectasia called for by the [SOC] based on plaintiff’s presentation at the emergency room, because those tests—even if they did not show dural ectasia—would have revealed” his spinal epidural abscess. Nothing in S’s testimony indicated that he considered the “‘proper radiological evaluation of the spine’ to be an evaluation of the lumbar spine only, especially given the awareness that plaintiff’s pain ‘kind of moved around’ and could have radiated from a spinal disorder in the thoracic vertebra area.” S testified to a SOC that “called for the proper evaluation of the entire spine, not just that part of the spine where dural ectasia most likely occurs statistically.” S’s claim that ER doctors practice medicine based on clinical presentation, not on statistics, also supported such an inference.
Gross negligence; Xu v. Gay; Tarlea v. Crabtree; Willful & wanton misconduct; Burnett v. City of Adrian
The court held that the trial court did not err by granting summary disposition for defendants-health club and personal trainer in plaintiff’s action alleging gross negligence and willful and wanton misconduct in the provision of personal training services. On appeal, the court rejected his argument that it should reverse the trial court’s grant of summary disposition on these two claims because a reasonable juror could conclude that defendants’ conduct constituted gross negligence and/or willful and wanton misconduct. “Here, reasonable minds could not differ regarding whether defendants’ conduct rose to the level of gross negligence.” The record showed that the personal trainer “kept plaintiff’s limitations in mind and never forced plaintiff to perform any unsafe or dangerous exercises that would amount to conduct so reckless as to demonstrate a substantial lack of concern for whether injury resulted.” Further, he “was invested in improving plaintiff’s health and fitness, including the condition of his back both in and out of the gym. Plaintiff also failed to demonstrate that [the trainer] showed an intent to harm him or exhibited an indifference to whether harm would result during the course of their personal training relationship.” Moreover, plaintiff offered “no evidence that any personal training responsibilities that [the trainer] engaged in were performed so deficiently as to equate with a lack of concern for plaintiff’s safety.” Finally, plaintiff provided “no legal support for his assertions that: (1) defendants were required to keep records of their physical assessment of plaintiff for a specified period of time and failure to do so was evidence of gross negligence, and (2) defendants’ alleged failure to administer a health assessment was a deviation from the American College of Sports Medicine [] guidelines and could therefore be used to impose tort liability on defendants.” In sum, the court held that the evidence did “not raise a factual question on whether defendants disregarded plaintiff’s safety, showed an intent to harm plaintiff, or showed an indifference as to whether harm would result from the personal training activities.” Affirmed.
Premises liability; Mouzon v. Achievable Visions; Possession & control; Morelli v. City of Madison Heights; Possessor defined; Orel v. Uni-Rak Sales Co.; A “holdover tenant” under a lease; TCG Detroit v. City of Dearborn; Possession & control defined; Derbabian v. S & C Snow Plowing, Inc.; Landlords’ & tenants’ duty of care in a commercial setting; Bailey v. Schaaf; Siegel v. Detroit City Ice & Fuel Co.; Principle that possession depends on the actual exercise of dominion & control; Kubczak v. Chemical Bank & Trust Co.; Little v. Howard Johnson Co.; Duty owed to a business invitee; Sanders v. Perfecting Church; Whether the dangerous condition caused by ice on the parking lot surface was open & obvious; Hoffner v. Lanctoe; Bialick v. Megan Mary, Inc.; Royce v. Chatwell Club Apts.; Special aspects; Lugo v. Ameritech Corp.; Lymon v. Freedland; Whether the ice was effectively unavoidable
Holding that there was no question that defendant-Sage’s Investment Group exercised dominion and control over the parking lot where plaintiff slipped and fell, the court concluded that it could be held liable for her injuries. While the trial court erred in determining that the icy condition was not open and obvious, the court found that there was a genuine issue of material fact as to whether the condition was effectively unavoidable. Thus, it affirmed the trial court’s denial of summary disposition for Sage and remanded. Defendant leased a portion of the plaza it owned to defendant-Grand Dimitre’s, plaintiff’s employer. The court concluded that even if “Dimitre’s had a duty as a holdover tenant to adhere to the terms of the original lease agreement covering the restaurant space, defendant clearly exercised possession and control of the common areas by exclusively choosing to employ” the company that did snow removal on the property and charging the plaza’s tenants, including Dimitre’s, a fee for snow removal and salting services. The facts indicated that “defendant possessed and controlled the parking lot to the degree necessary for it to potentially be held liable.” As to whether the hazard was open and obvious, the court concluded that the existence of the ice “on the surface of the parking lot was clearly open and obvious upon casual inspection based on plaintiff’s own testimony that she was able to observe that the entire parking lot was covered in a layer of ice and she recognized that such conditions posed a slip hazard, despite the fact that the parking lot was dark.” However, the court found that the evidence created “a genuine issue of material fact as to whether any part of the parking lot was in a reasonably safe condition to traverse in order to enter the restaurant and report for work.” Plaintiff testified in her deposition that “the ‘whole parking lot’ was ‘[a] sheet of white ice,’ a ‘solid block,’ and ‘a solid sheet of white.’” Her co-worker testified that “there was ‘snow, ice and water pretty much through the parking lot,’ and when asked if any part of the parking lot did not have that condition present, she responded, ‘No, it was covered[,]’ as was the sidewalk.”